PUBLIC LAW - Week 1

Introduction and Constitution Exercise

The Constitution

1. At the republic referendum on 6 November 1999, what vote of the people was required for the “Yes” case to succeed?

Section 128 Absolute majority of Parliament (eg proposal passed by lower and upper houses) National majority (eg 50% of the Population) Majority of the States (eg 4 of the 7 states) “Double Majority”

2. At what age must High Court judges retire? Section 72 70 years old.

3. What body enacted the Australian Constitution? When did the Constitution commence operation?

The British Parliament enacted the Australian Constitution It is an Act of the Imperial Parliament The Constitution commenced operation on 1 January 1901

4. Who is granted the power to ‘disallow any law’ passed by the federal Parliament? Section 59 The Queen - within 1 yr of the Governor General’s assent

5. What is the term of the House of Representatives? What is the term of the Senate? House of Reps: 1 term (maximum of 3 years) Senate: 2 terms (maximum of 6 years)

o Except in the case of a Double Dissolution Re-election where a senator may sit only 1 or 2 terms depending on the amount of votes he/she receives

6. Is there a Bill of Rights in the Australian Constitution? List the human rights that are protected by the Constitution?

There is no Bill of Rights in the Australian Constitution The Human Rights that are expressly protected by the Constitution are:

o Section 41 : Right of Electors of States – If you have the right to vote at state level, then you also have the Commonwealth franchise (transitional provision)

o Section 51 (xxxi) : The acquisition of property on just terms from any State or person for any purpose in respect of which Parliament has power to make laws (The Castle)

o Section 80 : Trial by Jury – the trial on indictment of any offence against any law of the Commonwealth shall be by jury…

o Section 116 : Commonwealth not to legislate in respect of religion – (Freedom of Religion)

o Section 117 : Rights of Residents in States – States cannot discriminate against people of other states.

7. Sections 51 and 52 confer legislative power upon the Parliament. Is there any practical difference between the two provisions?

Section 51 : Concurrent Powers (States have jurisdiction with the commonwealth) Section 52 : Exclusive Powers to the Commonwealth (States cannot legislate in these

areas)

8. Does the Senate have power to reject a budget bill that has been passed by the lower house?

Section 53 : Powers of the Houses in Respect to Legislation Budget Bills cannot originate from or be amended in the Senate. The Senate can,

however, reject a budget bill and recommend amendments to the House of Reps.

9. Does the Constitution specify any procedure for resolving conflicts between the House of Representatives and the Senate? (deadlock situation)

Section 57 : Disagreement between the Houses If the Senate rejects a proposal, the House of Reps can amend it, or just leave it the

same If the Senate rejects the proposal again, the Governor General may dissolve both

houses and call an election (a double dissolution election) If, after the double dissolution election, the proposal is still rejected by the Senate, a

joint sitting is held with members of both houses, convened by the Governor General

10. Does a federal Minister have to be a member of the federal Parliament? Section 64 : Ministers of State Ministers to sit in Parliament – longest time a minister can hold office without

sitting in Parliament is three months

11. Could a State Parliament protect its legal profession by preventing barristers from another State from practicing?

Section 117 : Rights of Residents in States This would prevent the State Parliament from preventing barristers from another State

from practicing

12. Under which provision could the federal Parliament give money directly to a State Government? Can it impose conditions?

Section 96 : Financial Assistance to States … The Parliament may grant financial assistance to any State on such terms and

conditions as the Parliament sees fit.

13. Can there be more than six States? If so, could the Northern Territory be converted into a State? What about New Zealand?

Section 121: New States may be admitted or established The Parliament may admit to the Commonwealth or establish new States…

14. Who is Australia’s Head of State? The Governor General and/or the Queen

PUBLIC LAW - Week 2Required Reading: 6-21 (sections 2-5)

Constitutionalism and the Fiji Crisis

2. Constitutionalism and Constitutional Law p. 6

Constitutional law describes the body of rules according to which:o a state is constituted or governedo the way in which the organs of government are structured and definedo the way in which those organs relate to one another and to citizens.

NOTE: this definition does not exclude the point made by Sartori that one purpose of the rules is to protect the citizens against the excessive use of government power

O Hood Phillips and P Jackson, O Hood Phillips’ Constitutional and Administrative Law

(Sweet and Maxwell, 7th ed 1987)

Written and Unwritten Constitutions: Constitution is “written” if it has been enacted

Unwritten e.g.: UK, NZ, Israel Written e.g.: US (war of independence), France (revolution), Switzerland (federation

of units) and Australia (emergence of a new independent nation) Written constitutions should only have what is practical, it would be unpractical to

have ALL constitutional laws written. Flexible and Rigid Constitutions Flexible: “one under which every law of every description can legally be changed

with the same ease and in the same manner by one and the same body” (Dicey) Rigid: “one under which certain laws generally known as constitutional or

fundamental laws cannot be changed in the same manner as ordinary laws” (dicey) Rigid constitutions special procedures (e.g. referendum, quorum etc) Australian law is both written and unwritten documents The Constitution, The

Statute of Westminster 1931 (UK) and Australia Act 1986 (Cth) supplemented by common law and unwritten conventions.

States have written, but largely flexible, constitutions also supplemented by common law and unwritten conventions

Public Law is derived from the battles between Parliament, Executive and Judiciary

Australian system has been called “Wash/Minster” = a hybrid of US and UK

US UK

Federalism Responsible Government Separation of Powers Members of Executive are from the

Legislature (cabinet members must be Members of Parliament)

Bicameralism (two houses) Bicameralism Power of Judicial Review at

constitutional level Constitutional Monarchy

Representative Government

PROCEDURE OF JUDICIAL REVIEW

Bill is formed in the Legislative Assembly Court “declaration of incompatibility” (the only remedy, no damages can be taken) Attorney General has 6 months to respond to the declaration AG gives recommendation Legislative Assembly amends or repeals bill according to the recommendation given by the AG

3. Judicial Review p. 7

The provision of the Constitution that the Courts have the power to declare an act of parliament to be unconstitutional and therefore invalid.

It must be noted that for the act of parliament contended to be unconstitutional by the judiciary, it needs to be presented to the judiciary first makes it hard as litigation is expensive

Is Judicial Review consistent with a democratic system of government?

Gives judges power to strike down laws passed through parliament The Judiciary are not popularly elected, whereas the parliament are Judiciary are

usually rich, old, white men However, Governments appoint Judges Keeps the people in power (the parliament) in “check” weaker people will get

access to Rule of Law against Rule of Power Another advantage, Judiciaries are independent (no political allegiances) Minorities, whose views would have been overruled by the stronger majority views,

can receive democracy

Marbury v Madison5 US (1 Cranch) 137 (1803)

The US case where the power of judicial review was “axiomatically entailed in the constitutional scheme”

Republican president, Thomas Jefferson, refused to commission four new federal judges appointed by the preceding Federalist president, John Adams (one of which was Marbury Madison was Jefferson’s Secretary of State)

Marshall CJ (John Adam’s former secretary of state) ruled that the appointees were entitled to their commissions, and hence to a writ of mandamus; but that the Supreme

Court could not grant such a writ because of the Judiciary Act of 1789, empowering it to do so, was unconstitutional.

Supreme Court ruled that it didn’t have power to exercise writ of mandamus however, ruled that they could interpret statutes as unconstitutional

   Isn’t that just about the superiority of the constitution and how it overrides any repugnant legislation?   Technically, the judiciary is sovereign because governmental power comes from the constitution but their sovereignty is limited to those cases which come before it, so the exercise of their power is restricted only to matters which are raised. Ex post facto

JR Lucas, The Principles of Politics(Clarendon Press, 1966)

The US Constitution… includes enough statements of general principle to communicate to any reader the spirit of the Constitution, while ensuring, by means of judicial review, that the other organs of government cannot disregard the general principles it has set out.

If a new situation arises and application not clear authoritative interpretation However, raises question: if Supreme Court is the sole authoritative interpreter of the

Const. it is guardian of the Constitution; quis custodiet ipsos custodies? As far as lawyers are concerned, Constitution = what Supreme Court says it is, and as

a result:o SC interpretation is not originalist generous/unrestricted view of

interpretative powerso Decisions of SC are effective

However, SC can only adjudicate disputed matters and if they abuse their power, they will lose respect from parliament cease to be effective

4. Legal Foundations and Discourse p. 11

Constitution establishes the institutions that serve as authoritative sources of law, and endow them with legislative power there can be explicit and implicit limits on powers given

Theories of Legal Positivism came to dominate legal theory during the 19th century and have greatly influenced the development of Australian Constitutional Law.

Positivism: various schools of legal theory which subject laws to structural analysis. o Validity of any legal rule depends solely on questions about power: i.e., on

whether the authority issuing the rule had the legal power to do so.o Since the grant of legal power must itself be conferred by a legal rule, the

object is to show that the legal order is a self-contained universe of discourse, within which any legal question can be given a purely legal answer.

H Kelson, Pure Theory of Law(University of California Press, 1967; translated by M Knight from Reine Rechtslehre

(Franz Deuticke, 2nd ed 1960))

Stufentheorie (“steps and stairs theory”)Grundnorm (“basic norm”) the assumption that the Constitution (the source of all the authorities powers) is bindingNormative systems (morals or “natural law”): it could be seen that the content of each derivative law might be logically derived from the content of the immediate higher norm. However, Kelsen argued that positive law: the downwards derivation of legal validity flowed exclusively through successive normative acts of authorization or empowerment to engage in law-creation

The Reason for the Validity of the Legal Order A general norm derives its power from the law; the law is valid because it was created

by the legislature; the legislature is authorized by the constitution “first constitution”

“If we ask for the reason of the validity of the historically first constitution, then the answer can only be (if we leave aside God or “nature”) that the validity of this constitution – the assumption that it is a binding norm – must be presupposed if we want to interpret (1) the acts performed according to it as the creation and application of valid general legal norms and (2) the acts performed in application of these general norms as the creation or application of valid individual legal norms”

The Basic Norm as Transcendental-logical Presupposition The basic norm furnishes the reason for validity of the constitution and of the

coercive order created in accordance with it not a product of free invention Only if this basic norm is presupposed… can the subjective meaning of a

constitution-creating act and following acts be interpreted as their objective meaning, i.e., as objective legal norms?

It may be a just or unjust; it may or may not guarantee a relative condition of peace the presupposition of the basic norm does not approve any value transcending positive law

Positivistic scientific view of the law regards constitution the highest authority norm does not obey the commands of “creator” of constitution (eg god or nature) “basic norm is the condition under which the subjective meaning of the constitution-creating act, and the subjective meaning of the acts performed in accordance with the constitution, are interpreted as their objective meaning, as valid norms, even if the meaning of these acts is so interpreted by the legal science itself”

The Hierarchical Structure of the Legal Order

Basic norm (grundnorm)constitutionlegislationregulationrules/ordinances The relationship between the norm that regulates the creation of another norm and the

norm created in conformity with the former can be metaphorically presented as a relationship of super- and subordination.

The legal order is not a system of coordinated norms of equal level, but a hierarchy of different levels of legal norms these norms regress to the basic norm basic norm is the highest reason for the validity of the norms, one created in conformity with another, thus forming a legal order in its hierarchical structure.

M Foucault, “Politics and the Study of Discourse”(1978) 4 Ideology and Conscious 7

Pluralist attempting to individualise discourses A sovereign, unique and constraining form is “foreign” Studied different discourses characterized, defined, established and described them

where necessary, Foucault allowed the systems to proliferate Change has to be accepted willingly: (1) set aside “old forms” of thought (eg

traditions, habits), (2) stubbornly stressing instead the lively intensity of difference. Discourses change through time, half the old ones are no longer relevant, most of the

new ones have been introduced by “a [new] all powerful subject” who manipulates them very instable, inconsistent, discontinuing, flux and change.

Archaeology (study of cultural archives) Very different to Kelsen stable framework for pure theroy of law hierarchy and

unity ahistorical and apolitical Ultimately, Kelson’s system is abstracted from the material world “the purity of

the pure theory of law is a defence for turmoil of politics” Foucault insists that discourse can only ever be inconsistent and ruptured, and that only out of such a discourse can ideas originate.

For Kelson the law-creator is a “subject”, whose meaning is initially “subjective” it becomes the legal norm when legal cognition endows it with objectivity (reference to basic norm) implies a dichotomy between the objective product of law creation and the person by whom it is created.

For Foucault, there is no such dichotomy, as “there are not on the one hand inert discourses… and then, on the other hand, an all-powerful subject which manipulates them”

Despite Kelsen’s emphasis on the dynamics of law, his hierarchy of norms would seem to Foucault foreign and inert

5. Grundnorm and Coup d’Etat: The Fiji Crisis p. 15

A court formed before the coup and not overthrown by it may be faced with proceedings that raise the question whether the new regime ought to be given judicial recognition

o Court ought to uphold the rule of law as embodied in the prior legal ordero Court could be faced with fait accompli (accomplished fact) under which any

order it makes in support of the displaced legal system would not only be futile but might prolong the distress and uncertainty of the nation’s people

FM Brookfield, Waitangi & Indigenous Rights: Revolution, Law and Legitimation(Auckland University Press, 1999)

Two views a court can take when deciding if a new revolutionary regime has become lawful: Older constitutionalist view that a court created under the pre-revolutionary

constitution has no jurisdiction to recognise a revolutionary regime as lawful but is bound to the constitution which created it (even though it may give limited recognition to the regime’s day-to-day acts of government under the de facto doctrine) same for new court under new constitution, cannot operate under old constitution

Newer view (favorably viewed by courts in a number of countries including the Privy Council in Madzimbamuto v Lardner-Burke) courts, including those created by a written constitution, are authorised and required to decide when and if a revolutionary regime has become lawful.

Court assumes “supra-constitutional” jurisdiction to decide whether or not a revolutionary regime has become lawful, and has not regarded the issue as conclusively determined by the constitutional source of the court’s jurisdiction.

How is one to explain the basis for the supra-constitutional jurisdiction? Seemingly, the supra-constitutional jurisdiction which a court necessarily claims if, as the Privy Council says it ‘must’, it accepts the role of deciding whether the revolution has succeeded, is based “on some principle of law independent of any particular system [which] authorises a judge, simply by virtue of his office, and irrespective of the source of… jurisdiction, to recognise the revolutionary regime”

Eg Pakistan judges hold office basic norm: sovereignty of Allah What principles or principles must the court apply in exercising the supra-

constitutional jurisdiction? One principle is that of by-and-large effectiveness revolution must be practical to be successful.

Madzimbamuto v Lardner-Burke[1969] 1 AC 645

Majority of the High Court of Southern Rhodesia held that only the 1961 Constitution, and the laws flowing from it, had any legal validity

Also held, for public safety, the de facto effectiveness of the Smith regime required that its day-to-day “law and order” directives should be enforced

2 constitutions competing 2 basic norms concept of basic norm did not provide a solution

another way to think of it: no basic norm the assumption of a binding legal norm is only possible when it is in fact assumed by most of the population as a matter of unambiguous and unquestioned consensus.

On appeal, majority of Privy Council held that this was not possible there can only be one lawful government, court must decide only legal binding constitution was the 1961 one.

Lord Reid accepted that the test is one of effective control, and that it is not made out when a former government is still striving for power.

Mokotso v HM King Moshoeshoe II[1989] LRC (Const) 24

Cullinan CJ: A court may hold a revolutionary government to be lawful, and its acts to have been legitimated ab initio, where it is satisfied that (a) the government is firmly established, there being no other government in opposition thereto; and (b) the government’s administration is effective in that the majority of the people are behaving, by and large, in conformity therewith.

Did not follow the two extra elements of the Mitchell v Director of Public Prosecutions test: (c) such conformity and obedience [must be] due to popular acceptance and support and not mere tacit submission to coercion or fear of force; and (d) it must not appear that the regime was oppressive and undemocratic. held that other regimes throughout the years had been oppressive etc. but there was no denying that they had set up a new legal order.

Republic of Fiji v Prasad[2001] 2 LRC 743

Prasad, an Indo-Fijian farmer, had been displaced when he and his family were forced off their land in the wake of the Speight (someone in the army)coup attempt

Prasad sought a declaration that the 1997 Constitution remained in force and that the elected government of Fiji had not been lawfully dismissed

Won in the lower court the decision on appeal (i.e. this one) was unique as the only occasion on which a domestic court has denied legal recognition to a usurper in control of the apparatus of government.

The Court: “We do not think it necessary to include a requirement that a usurping regime has to show adherence to international human rights treaties… It is permissible when assessing the test for efficacy in this context to take into account the evidence which suggests contentment with or acceptance of the 1997 Constitution by the population at large”TEST FOR EFFICACY

(a) The burden of proof of efficacy lies on the de facto government seeking to establish that it is firmly in control of the country with the agreement (tacit or express) of the population as a whole

(b) Such proof must be to a high civil standard because of the importance and seriousness of the claim

(c) The overthrow of a Constitution must be successful in the sense that the de facto government is established administratively and there is no rival government

(d) In considering whether a rival government exists, the inquiry is not limited to a rival wishing to eliminate the de facto government by force of arms it is relevant in this case that the elected government is willing to resume power, should the Constitution be affirmed

(e) The people must be proved to be behaving in conformity with the dictates of the de facto government.

(f) Such conformity and obedience to the new regime by the populace as can be proved by the de facto government must stem from popular acceptance and support as distinct from tacit submission to coercion or fear of force

(g) The length of time in which the de facto government has been in control is relevant longer time, greater chance of acceptance

(h) Elections are powerful evidence of efficacy(i) Efficacy is to be assessed at the time of the hearing by the court making the

decision

DOCTRINE OF NECESSITYAllows courts to allow others to do something ‘unconstitutional’ to preserve the old legal order (constitution)

SUPRA CONSTITUTIONAL JURISDICTIONWent outside the constitution – used as a different legal doctrine (doctrine of efficacy)

DOCTRINE OF EFFICACY No rival Government People living in conformity with administration Reason for conformity: not terror – popular acceptance Not undemocratic or oppressive

Courts said that the fourth condition was not required (read above)

Conclusion: (1) Chaudry was still PM (2) Strong evidence of non-acceptanc

WEEK 2 – QUESTIONS

Is the power of judicial review consistent with a democratic system of government?Yes

What is the source of authority of the Australian Constitution? Why do Australians obey it as their basic law?The British Parliament who created the Australian Constitution, which derives its power ultimately from the grundnorm or basic norm…

Was the Fiji Court of Appeal correct in its decision in Prasad?

PUBLIC LAW - Week 3Required Reading: 67-92 (sections 1-2), 105-110 (section 4b)

The Westminster System (Westminster Constitutionalism)

1. Introduction p. 67

Constitutional law has a twofold functiono (1) Its principles are invoked by those who seek a stable and secure basis for

the exercise of governmental power o (2) But also by those who seek to limit that power

Australian Constitutional Law similar to British What we’ve gotten from the Westminster System

o Strict – Structure – conventions (practices developed over the years)

2. English Constitutional History p. 67

(a) Magna Carta

SIGNIFICANCE: Symbolic role in limiting the arbitrary exercise of monarchical power has been accepted by every English monarch as a result, seen as a precursor of the principle now known as the rule of law

G de Q Walker, The Rule of Law: Foundation of Constitutional Democracy(Melbourne University Press)

“Restatement of the notion of government under law, as well as of the ideas of constitutional monarchy and limited government”

Ex parte Walsh and Johnson; In re Yates(1925) 37 CLR 36

Isaacs J gave a favorable review: “Magna Carta as a great confirmatory instrument… which is the groundwork of all Constitutions”

Chapter 29 (right to a trial by jury): (1) every free person has an inherent individual right to his life, liberty, property and citizenship; (2) his individual rights must always yield to the necessities of the general welfare at the will of the State; (3) the law of the land is the only mode by which the State can so declare its will

J Alder, Constitutional and Administrative Law(Macmillan, 2nd ed 1994)

Magna Carta is sometimes regarded as Britain’s closest equivalent to a written constitution it really was just “ordinary piece of legislation” dealing with disputes with the King

Magna Carta is of symbolic interest revealing as it does the subservience of the king to ideas of law, and also setting up rudimentary enforcement machinery against the king (legalised rebellion)

Magna Carta (The Great Charter)(9 Hen III (1225), as confirmed in 25 Edw I (1297))

List of the Magna Carta King Edward I signed. Chapter 7 : Widows rights Chapter 29 : Right to a trial by jury Chapter 34 : Women can’t provide evidence in murder (except if victim was husband)

(b) Parliament

Discussion – Legislative Assembly (usually House of Representatives)

CF Padfield, British Constitution Made Simple(WH Allen, 4th ed 1977)

Kings of England used to rule by “divine right” – however, they were assisted by a Witenagemot, an assembly of the wisest men in the kingdom Witan disappeared with the Anglo-Saxon Kings

Normans held Great Councils instead: assemblies of the King’s tenants in chief (ie the nobles and others who held their lands directly from the King) – 3 times a year

In 1295, Model Parliament, of Edward I: barons (nobility), knights, burgesses, senior clergy and lower clergy – summoned on the principle “that what touches all should be approved by all”

Lords Spiritual – Lords Temporal – Commons Since then, the parliaments and monarchs have both claimed power (Elizabeth I used

parliament, James I claimed divine right all over again)

FG Marcham, A Constitutional History of Modern England, 1485 to the Present(Harper & Brothers, 1960)

Tudor period say the rise of the parliament, through parliamentary privilege and freedom of speech

(c) Common Law Courts and Prerogative Courts

Tudor period England close to having “state” apparatus statutes and administration The ecclesiastical Court of High Commission and the Court of Chamber were Tudor inventions

FG Marcham, A Constitutional History of Modern England, 1485 to the Present(Harper & Brothers, 1960)

Star Chamber took its form during Tudor period purpose of the Court of Star Chamber was therefore to remedy a defect in the working of the established judicial system. to prosecute the law breakers who did not get punished under the normal courts.

Legislation gave the court powers in gathering evidence, in the examination of parties involved and in dealing out punishments no confrontation between accuser and accused, charges and rebuttals in written statements examination of witness took place in private (huis clos in camera – closed court – secret proceedings) court only came public to deliver punishment no consistency in sentencing

The court was free to award punishment according to the penalties provided in existing statutes, or at its discretion

The court had almost complete freedom as to the procedure it followed, the evidence it considered and the punishment meted out usually public humiliations (branding on the face etc.) basically a propaganda machine to scare English men

However, it wasn’t too unpopular, some people thought that it was the only court that would provide them with a remedy.

What were some of the problems of star chamber? no confrontation of accuser and accused; written charges and rebuttals examination of witnesses in secret; public only to announce a decision could punish according to statutory penalties, or at its discretion; eg whipping,

mutilation, branding virtually complete freedom as to procedure it followed, the evidence it considered,

and punishment meted out Speed and finality over justice issued and enforced its own decrees; no separation of functions tyrannical, because it became ‘a court of politicians enforcing a policy, not a court

of judges administering the law’

JR Tanner, Tudor Constitutional Documents AD 1485-1603 with an Historical Commentary

(Cambridge University Press, 2nd ed 1930)

The Star Chamber not only made a special business of punishing offenders against royal proclamations, but also claimed the right of issuing decrees, some of them of a very comprehensive character, and enforcing them by penalties

The Star Chamber was tyrannical, because it tended to become “a court of politicians enforcing policy, not a court of judges administering the law”

Similar to the situation at Guantanamo Bay Tyrannical because it was both the adjudicator and creator of law.

G Smith, A Constitutional and Legal History of England(Dorset Press, 1990)

James I believed in the “divine right of kings” Resistance a sin; King above the law, accountable only to God; rights by grace of the

King as God’s deputy Sir Edward Coke insisted that the common law controlled the province of the royal

prerogative power – right of kings and parliament was derived from and defined by precedent

To [Coke] the peculiar wisdom of the common law determined the goods and liberty of the people. The wisdom of the king, asserted by Coke, could not do that. The king, Coke held, was legally limited by the common law; the law was greater than the Crown.

Prohibitions del Roy(1607) 12 Co Rep 63; 77 ER 1342

In this, Coke rejects the idea that the king could create offences by his proclamations. He also said that to make laws, you need to be familiar with “artificial reasoning” not natural. He also stands for judicial review

How and why was Coke sacked?

Dr Bonham (1610): medical college lacked power to punish Bonham under statute: “censors cannot be judges, ministers, and parties”

Partly explains dismissal (+ feud); relied on dubious precedent; invalidated statute for unreasonableness in judge’s opinion

Natural law judicial review? (US) Or procedural (vs substantive) due process? Obsolete? ie Judicial and legislative powers not then strictly separated? James I speech (1616): judges apply and interpret the law, do not make it (see speech

by Justice Dyson Heydon!)

(d) The Constitutional Settlement

The eventual compromise between the Monarchy and the Parliament, with Parliament as the supreme lawmaking body governing through a monarch of its own choice, came about through the “bloodless revolution” of 1688

MABO – courts recognised native title – judicial activism – people argued that Parliament (not the High Court) should recognise this

PA Joseph, Constitutional and Administrative Law in New Zealand(Law Book Co, 1993)

Bills of right: A declaration of the Lords and Commons affirmed the rights and liberties of the people and settled the Crown on William and Mary of Orange. William and Mary accepted the declaration which was proclaimed to the nation and enacted as the Bill of Rights 1688

Bill of Rights 1688(I will & Mary, Sess 2 c 2)

List of the Bill of Rights Installed the supremacy of the rule of law King subject to Parliament S9 Freedom of Speech S8 Free election of Members of Parliament S10 No Cruel or unusual punishments S13 Parliament to be held frequently

S6 of the Imperial Application Act 1969 (NSW) declares that the Bill of Rights and Magna Carta remain in force in NSW to the extent that they are not “affected by” other State or Imperial enactments in force in NSW they are ‘weakened’

Bill of Rights in force in Australia today?

Like Magna Carta, but invoked to affirm parliamentary privilege (Egan; Murphy; Sankey); parliamentary control of tax (Northern Suburbs); parliamentary consent to military in peace (military law cannot supplant criminal law) (Re Tracey); right to petition (Mann); support habeas corpus to limit police detention (Williams); preclude discretionary executive taxation (Commissioner cases); and prevent cruel/unusual punishment (Sillery)

(e) Entick v Carrington and Sommersett’s CaseLimited government power

Entick v Carrington(1765( 19 St Tr 1030

Reinforcing the supremacy of parliament, the rule of law and the separation of power Two King’s messengers broke into Entick’s house and stole papers alleged to be

“seditious writings” Entick sued for trespass defendant argued that the warrant was legal as the power to issue such warrants was essential to government as “the only means of quieting clamours and sedition

Lord Camden CJ: If it is law, it will be found in out books. If it is not to be found there, it is not law. If no such excuse [justifying the trespass] can be found or

produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment warrant to seize and carry away the party’s papers in the case of seditions libel is illegal and void.

State powers cannot be implied, they must be written in law

Sommersett’s Case(1772) 20 St Tr 1

Writ of habeas corpus was addressed to the captain of a ship where James Somersett, a Negro slave, as held in irons

The return to the writ assert that Somersett was a runaway slave who had been recaptured by his master, Charles Steuart, and was held in irons at Steuart’s request

It was held that this was not a sufficient return (there were also no slavery or ownership of slave laws in Britain).

Common law as a safeguard of individual liberty HABAS CORPUS – cannot be held without lawful reason to be held – state must try

you or release you

(f) Development of Responsible and Representative Government

P Parkinson, Tradition and Change in Australian Law(LBC Information Services, 2nd ed 20001)

Parliament gradually began to take on a more representative character As representative government developed so did responsible government Monarch reduced to ceremonial role Rule of Law firmly entrenched

4. Diceyan Constitutional Theory

(b) The Rule of Law

AV Dicey, Introduction to the Study of the Law of the Constitution(Macmillan, 1st ed 1885, 10th ed 1959)

THE RULE OF LAW: IT’S NATURE AND GENERAL APPLICATIONS1. The undisputed supremacy throughout the whole country of the central

government2. The rule or supremacy of law (equality before law)3. Rights are a result of judicial decisions determining rights of private persons in

particular cases brought before the court4. The constitution is the consequence, not source, of individual rights.

How is Dicey’s conception criticised? Nazism was rule of law? Jennings: expression of liberal democratic principles;

separation of powers; limitation of power; precision of laws Vague notion of (formal) equality (eg unequal distribution of property; Paris bridges;

no political equality in franchise); discretion in punishment; treat similarly situated people similarly?

Vague notion of liberty; minimal State? formalism and neutrality masks the hegemonic, economic and political underpinnings

of law Rule of law is an ethical, rather than merely a legal, doctrine (Stone); eg conventions

restrain power-holders; includes human rights; substantive equality and fairness (not just procedural); uniformity not required if policy interests require otherwise

ICJ view: 1. Embryonic international consensus2. Supreme value of human personality; 3. Basic (but variable) principles, institutions and procedures; 4. To protect individual from arbitrary govt power and enable human dignity

How is rule of law applied in Australia? No-one above the law plus law not arbitrary according to will of monarch;

separation of powers (Communist Party case); not yet fully explored (Hindmarsh Island)

Judicial review ensure different of government not exceeding their jurisdiction Does the rule of law require judicial review of government decision-making in refugee and migration cases?

Part 8, Migration Act precludes most procedural fairness/natural justice review (only citizens have rights?); Privative clauses oust judicial review?

Development of Rule of Law

Bill of Rights 1688 – rule of law entrenched in common law, except as altered by parliament – King was compelled to govern through Parliament

King also compelled to accept the independence of judges under the Act of Settlement 1701 (part of rule of law) (also prevented restoration of Stuarts)

Entick v Carrington (1765): King’s messengers, under warrant issued by the Secretary of State, broke and entered Entick’s house and took his papers; allegedly authored seditious writings

Entick sued for trespass; govt argued that action was “the only means of quieting clamours and sedition”

Limitation of govt power according to Lockean natural right to property: “men entered into society… to secure their property”; common law trespass unless statutory justification

Sommersett’s Case (1772): writ of habeas corpus granted; only a positive law could support “odious” slavery

WEEK 3 – QUESTIONS

Is the Magna Carta relevant to us today?Significant in terms of what it stood for – not very powerful as a doctrine of law though, as statutes and common law overrule it so much to the extent that not much of it is useful

What was the function of the Star Chamber?To provide remedies for when the courts could not

What is the rule of law? Is it always applied in Australia?Where everyone is equal under the law – usually, only rare cases where people are seen to be above the law.

PUBLIC LAW - Week 4Required Reading: 146-157 (sections 1-3), 167-172 (section 5-6)

Federation to Popular Sovereignty

1. The Path to Federation p. 146

P Parkinson, Tradition and Change in Australian Law(LBC Information Services, 2nd ed 2001)

Reasons why Australia Federated Fear of common enemies was one cause of co-operation between the rival colonies Tariffs between the colonies would be removed free trade Ideologies:

o Victoria – “Protectionist”o NSW – “Free Trade”

Tariffs Income and Federation would consolidate tariffs. Bigger colonies of NSW and Victoria were scared that they would have to subsidize

smaller colonies Smaller colonies were scared that they would be taken over by the bigger colonies ORIGINALISM: The original intention of the act – what they subjectively intended

the act for PURPOSIVE: objective intention/interpretation of the act HISTORY OF CONVENTION DEBATES 1890: Henry Parkes – NZ represented 1891: Australasian Convention – How to structure Federalism within Westminster

system – Griffith produced a draft constitution 1895: Agreement for new convention with elected delegates (referendum) 1897-98: Appeal to Privy Council was controversial – Colonies v Britain – British

Corporations were scared that their rights would be taken away by an Australian High Court they wanted to keep the Privy Council

Finally the Commonwealth of Australia Constitution Act was passed by the British Parliament in 1900

The beginning of federation on January 1901

G Williams, Human Rights under the Australian Constitution(Oxford University Press, 1999)

Clark (Tasmanian AG seeking HR’s inclusion in Const) view was inconsistent that the Australian Constitution should be founded on a system of responsible government in which there would be little or no role for provision that explicitly protected human rights

Writing within a scheme of responsible government, Dicey argued that civil liberties could be adequately protected through the common law and political processes without the incorporation of guarantees of rights in a written constitution.

Cockburn “we aren’t savages, we don’t need to be protected by a provision in the Constitution from the state doing the grossest injustices”

O’connnor “We are making a Constitution which is to endure, practically speaking, for all time. We do not know when some wave of popular feeling may lead a majority in the Parliament of a state to commit an injustice by passing a law that would deprive citizens of life, liberty or property without due process of law”

Debate on whether HR’s should be included in the Constitution (clause 110) was not because people genuinely thought responsible government would protect rights of minorities racially motivated meant that Constitution did not prevent states from enacting racially motivated laws “It protects Chinamen too, I suppose, as well as Negroes?”

Female Suffrageo SA, women had suffrageo Convention didn’t want to FORCE the suffrage on the other states

2. The Colonial Legacy: The Commonwealth p. 152

Australian Constitution was enacted in the British Parliament a British Statute applying to Australia by paramount force

The Const. impliedly repealed the Colonial Laws Validity Act to the extent of any inconsistency

However, in Union Steamship Co of New Zealand Ltd v Commonwealth, the High Court held that the repugnancy doctrine continued to apply to the Commonwealth.

Yet in Cth v Limerick Steamship Co Ltd, the High Court held that the Judiciary Act (Cth) (section 39(2) excluded appeals to the Privy Council for State Supreme Constitutional cases) was not repugnant to Australian Courts Act (Imp)

Commonwealth v Kreglinger & Fernau Ltd (Skin Wool Case)(1926) 37 CLR 393

Explanation of why one legislation was found to be repugnant, whilst another wasn’t Doctrine of Extraterritoriality also still applied Moderate Version: an exercise of colonial legislative power was invalid unless its

operation had a sufficient connection with the geographical area of the legislating colony

Extreme Version: A colony’s laws could have no operation outside its territorial borders at all.

Macleod v AG (NSW) [1891] AC 455 – Macleod married 1st wife in NSW married 2nd in USA – the Privy Council held that he could not be prosecuted for bigamy under the NSW law since the 2nd (bigamous) marriage had taken place outside the territorial limits of NSW

3. Statute of Westminster 1931 (UK) p. 155

The Statute of Westminster freed the Dominions, including the Commonwealth, from Imperial restrictions by excluding the operation of the Colonial Laws Validity Act and thereby the repugnancy doctrine. The Statute also removed any restrictions upon Commonwealth legislative power arising under the extraterritoriality doctrine.

Made in 1931, didn’t apply to Australia till 1939 (backdated from 1942) Took a while to be accepted as we were thought to be “British Subjects” rather than

Australian Citizens Reluctance to cut British ties contrast to Canadian, South African and Irish persistence for autonomy

Balfour Report: We refer to the group of self-governing communities composed of Great Britain and the Dominions. Their position and mutual relation may be readily defined. They are autonomous Communities within the British Empire, equal in status, in no was subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.

G Sawer, The Australian Constitution(AGPS, 2nd ed 1988)

5 conflicts between status so defined and existing British legal powers or practices highlighted in Balfour report.

o Royal Style and titleso Position of GG’so Operation of Dominion legislationo British merchant shipping legislationo Privy Council judicial appeals

Section 2 of the Statute of Westminster provided that the Colonial Laws Validity Act, thus the doctrine of repugnancy, did not apply to the Dominions

Australian reluctance to accept self-sufficiency from the Statute of Westminster shown by – only adopting it after more than 11 yrs (1942 backdated to 1939) – the liberating effect extended only felt to the commonwealth, not states.

5. Australia Act 1986 p. 167

The continued application and paramountcy of Imperial laws in the Australian States was finally brought to an end by the Australia Act 1986

The passing of the Australia Act signalled the end of the power of the British Parliament to:

o S1 : legislate for Australiao S2 : removed the doctrine of extraterritorialityo S3 : removed the doctrine or repugnancy

PROBLEMS WITH THE AUSTRALIA ACT1. s15 of the Act allows s8 of Statute of Westminster to be amended/repealed (or

any other section for that matter)2. s8 of Statute of Westminster the Constitution can ONLY be changed in

accordance with the Constitution3. The Commonwealth could enact an ordinary statute purporting to change the

ConstitutionHOWEVER, this would in contravention with the constitution itself (s128 referendum)

6. Popular Sovereignty p. 168

Where does the Constitutions power come from? Elsewhere, constitutions read “We the people…etc” (eg India and US). Ours, written by the British Imperial parliament: “Whereas the people of [the colonies]… have agreed…etc” formally, the Constitution derives its validity from an exercise of British sovereignty

Sir Owen Dixon, “The Law and the Constitution”(1935) 51 Law Quarterly Review 590

It is not a supreme law purporting to obtain its force from the direct expression of people’s inherent authority to constitute a government. It is a statute of the British Parliament enacted in the exercise of its legal sovereignty over the law everywhere in the King’s Dominions

Constitution is an Imperial Act Australia Act diminished the continuing legal relevance of the Imperial legislation opening recital “Whereas the people…” has assumed a deeper significance. It may also supply a persuasive explanation of why the Constitution is Binding

GJ Lindell, “Why is Australia’s Constitution Binding? – The Reasons in 1900 and Now, and the Effect of Independence”

(1986) 16 Federal Law Review 29

The Answer in 1900 Legal status derived from the fact that it was contained in an enactment of the British

Imperial Parliament Political legitimacy or authority based on the words contained in the preamble to that

enactment which refer to the people of the Australian colonies having agreed to unite in a “Federal Commonwealth” words draw attention to the political reason for its enactment

Legal status is the ultimate answer

“Independence”, the Statute of Westminster and the Australia ActsChanges have occurred in relation to the constitutional and international status of the Australia Nation since the constitution was enacted in 19001. Development of Australia’s independence in the eyes of the international community2. Inability of the British Parliament to legislate for Australia

3. Ability of Cth or State parliaments to alter or repeal British statutes

The Answer in 1986 Historical answer still holds Preamble also when we federated, we agreed to have the constitution

G Williams, “The High Court and the People”In H Selby (ed), Tomorrow’s Law (Federation Press, 1995), 271

Approval by Referendum The Constitution was supported by the people at referenda Statistics demonstrate that, while the Constitution was supported by a majority of the

people who voted, large sections of the community were excluded from voting (eg women, aborigines) and many people who were entitled to vote did not do so.

In these circumstances, the Constitution cannot be said to be the people’s document because of their support in the referenda at the turn of the century popular support for the Constitution must therefore be sought from other avenues or from future referenda

Approval by Acquiescence While recent referendums have shown that people are reluctant to amend the

constitution it cannot be assumed from this that the people continue to support, or even tacitly approve of, the Constitution Australians are largely ignorant of the Constitution only 18% have an understanding of it, 40% can correctly name both Houses of the Federal Parliament

H Irving, “The People and their Conventions”In Cooper, M and Williams, G (eds), Power, Parliament and the People

(Federation Press, 1997), 113 Argues that, despite the low number of votes actually cast for the new constitution,

Federation can still be regarded as a “popular” process How can Federation be considered “popular”, or the Constitution to have received the

approval of the people, it might be asked, if a total numerical majority did not vote “yes”?

We don’t know the reasons why people did not vote – alienation, rejection or complacence, even approval and acceptance.

WEEK 4 – QUESTIONS

Is the Australian Constitution a people’s document?No – hardly anyone will know what it really consists of

Is Australia now a fully independent nation?Yes

Is popular sovereignty an adequate explanation of the underpinnings of the Constitution?Yes – to the extent that people accept it

PUBLIC LAW - Week 5Required Reading: 175-180 (sections 1-2), 204-211 (section 4a-d), 226-239 (section 5d)

Indigenous Peoples and the Question of Sovereignty

1. Introduction p. 175

Orthodox sources of law – Statutes (British and Australian) – the Common Law – International Law – “NEW” indigenous customary law

USA, Canada and NZ Indigenous peoples recognised as “domestic dependant nations” SEMI-AUTONOMY

o Dependant: on the ‘host’ governmento Nations: recognised as distinct

Colonial settlement and expansion unfolded against the background of an older, perhaps competing, source of constitutive normative order of Australia the diverse patterns of normative belief and authority expressed through the various traditions and practices of the indigenous Australian peoples.

Given a federal system of government which already encompasses different laws co-existing at different levels, we need to ask ourselves whether such an exclusive monistic (singular law) conception is necessary, or even possible.

Property Law TITLE: relationship to a piece of property Radical Title: the ultimate ownership rights over land, vested in the Crown. Freehold Title: own property – exclusive possession for perpetuity Leasehold Title: someone else owns it, but you have ownership rights for a fixed

amount of time Native Title: Cannot sell or lease – easily extinguished. A right or interest over land

or waters that may be owned, according to traditional laws and customs, by Aboriginal peoples and Torres Strait Islanders. It is recognized by the common law of Australia.

Common law recognition of native title is not equal to indigenous sovereignty.

2. Aborigines and the Constitution p. 176

Before Federation, Aborigines could vote except in WA and QLD Women in SA & WAS could vote in 1901 Fed election S41 had no effect on voting rights – didn’t completely allow/disallow voting rights of

Aborigines In 1912 Garran amended the Electoral Handbook to state: “It has been held that a

right under s41… does not entitle any person to vote whose name is not on a Commonwealth Electoral role removed rights from Aborigines who could have voted under s41 that were not on the roll

P Stretton and C Finnimore, “Black Fellow Citizens: Aborigines and the Commonwealth Franchise”

(1993) 25 Studies Australian Historical 521

Individual bureaucratic whim rather than legal consistency seems to have determined who was barred

As a practical guideline Garran advised that anyone already on the roll should be allowed to stay on it bureaucrats could decide who was ‘on the roll’

Electoral officers also had to decide whether people were ‘preponderantly’ of Aboriginal descent since “half castes” were permitted to vote. bureaucrats could decide who was ‘half caste’

Constitutional amendment in 1967 previously s51(xxvi) had empowered the Parliament to make laws with respect to “The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws” (words in italics were deleted in the 1967 referendum)

S127 was repealed as well. It said that Aborigines were not to be counted in census’ for the State and the Commonwealth statistics

Since 1967, the Constitution has contained no explicit reference to Australia’s indigenous peoples.

4. Mabo and Indigenous Law p. 204

Milirrpum v Nabalco Pty Ltd (Grove Land Rights Case)(1971) 17 FLR 141

Blackburn J: If ever a system could be called “a government of laws, and not of men” it is shown in the evidence before me

In spite of this finding, Blackburn J adhered to what he saw as the traditional view the assumption that Australia was “settled” had itself been settled as a matter of law – ULTIMATELY DENIED HIS FINDING BECAUSE:

o There had been a previous “assumption” that Australia was “settled” (legally settled)

o This assumption was so fundamental to Australian Law, esp Property Law, that its existence could not be questioned.

The HC in 1992 rejected the “settled” classification as a misapplication of Blackstone’s categories and never an accurate statement of common law.

More concerned with whether it was open to them to change the common law – 2 propositions for its change:

o That Australia, NSW in particular, was not terra nullius in 1788o That the Crown on acquisition did not immediately and automatically assume

full beneficial ownership of all land in Australia

(a) Rejecting Terra Nullius In Mabo (no 2) majority tried to reformulate the legal conceptualization to bring it in

line with reality result: the court did not alter the traditional assumption that Australia was settled, instead, the rules for a settled colony were said to be assimilated to the rules for a conquered colony.

This recognised the pre-existing Aboriginal law would remain in force except for where it was modified or extinguished by legislative or executive action

Mabo v Queensland (No 2)(1992) 175 CLR 1

Doctrine of tenure: Full beneficial ownership and radical title With radical title recognizes the pre-existing right and interest of the landBrennan J:

1. Australia and NSW were not terra nullius in 1780 – “The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country”

2. Native Title – Common (Judge-made) Law – there is no statute – should be made by the Parliament, not the Courts

3. Common Law should be influenced by international law – “The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the developments of the common law, especially when international law declares the existence of universal human rights”

(b) Repudiating Absolute Crown ownership

Brennan J:4. Repudiating Crown ownership – if the land were occupied by the indigenous

people and their rights and interests in the land are recognized by the common law, the radical title which is acquired with the acquisition of sovereignty cannot itself be taken to confer an absolute beneficial title to the occupied land.

5. The combination of radical title and sovereignty over native title did not add up to full beneficial ownership.

(c) Customary Nature of Native title

Brennan J:6. Common law can recognise traditional laws have to be interpreted using

Traditional views – “Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs…”

(d)Extinguishment of Native Title Valid exercise of sovereign power inconsistent with enjoying native title; clear and

plain intention to extinguish Valid alienation of land by granting interest inconsistent extinguishes native title to

the extent of the inconsistency Eg freehold, leases, appropriation of Crown land for public use; but not necessarily

lesser interests (mineral prospecting; bee keeping, vacant crown land, some national parks and forests)

Examples of rights: ownership, but also the right to enter land for ceremonies or to hunt, fish or gather foods and bush medicines

Brennan J:7. Positive action needed to extinguish native title – “Native title could be

extinguished without compensation by clear and unambiguous legislative action… such extinguishment might be subject to other limitations (eg s51(vvvi) “on just terms)”

Acquisition of soveriegnty by crown cannot be challenged in a Municipal Court of Law – Such a claim will and must fail.

5. Mabo Incohato: The Unfinished Story p. 226

(d)Sovereignty and Self-Determination

The question of how Australia’s indigenous peoples might most effectively build upon the partial recognition of their rights in Mabo (No 2) has been controversial some argue for full and independent sovereign aboriginal nations

Mason CJ: made it clear that self-determination in terms of independent nationhood is unlikely to occur in Australia, at least by judicial means, in the near future

Coe v Commonwealth (No 2)(1993) 118 ALR 193

Wiradjuri claimed: sovereignty – in act of settling that the Commonwealth had committed genocide they lost

Mason CJ: held not support to Aboriginal sovereignty from the 1979 Coe v Commonwealth case.

Noted differences between US and Australian settlers US people signed treaties, didn’t claim terra nullius US always recognised the Indian’s sovereignty

Walker v NSW

(1994) 182 CLR 45

Bandjalung people claimed NSW criminal law did not apply to them because NSW had not received consent from the people to try Walker

Mason CJ: The statement of claim alleges that the common law is only valid in its application to Aboriginal people to the extent to which it has been accepted by them

It was submitted that statutes must be construed so as to accord with what was said to be the common law principle set out by Blackstone, with the consequences that the criminal statutes of NSW did not apply to people of Aboriginal descent

Even if it be assumed that the customary criminal law of Aboriginal people survived British settlement, it was extinguished by the passage of criminal statutes of general application

El Daes, “Some Consideratons on the Right of Indigenous Peoples to Self-Determination”

(1993) 3 Transitional Law and contemporary Problems 1

External Self Determination: determination of future international states – liberated from alien

Internal Self Determination: decide their won system of Government In theory, external self-determination – the act by which a people determines its

future international status and liberates itself from alien rule – may be distinguished from internal self-determination, which includes the selection of both the desired system of government and the substantive nature (democratic, socialist, etc) of the regime selected.

Whether a group is a people for the purposes of self-determination depends in my view on the extent to which the group making a claim shares ethnic, linguistic, religious or cultural bonds, although the absence or weakness of one of these bonds or elements need not invalidate a claim.

McClanahan v Arizona Tax Commission411 US 164 (1973)

Whether the US Government were infringing on Indigenous rights

United States v Wheeler435 US 313 (1978)

Laws have not been extinguished Laws apply only to Navajo people Laws must be inline with the US laws

Council for Aboriginal Reconciliation, Recognising Aboriginal and Torres Strait Islander Rights(AGPS, 2000)

In international law self-determination is ‘the right of all peoples to freely determine their political status and to pursue their own economic, social and cultural development’

It is necessary for all governments in Australia to ensure that Aboriginal and Torres Strait Islander peoples have equal rights to effectively participate in public life and that no decisions directly relating to their rights and interests are taken without their agreement

The Council also urges all political parties to introduce measures that will increase the involvement and representation of aboriginal and Torres Strait Islander peoples in their discussion and selection processes, and ultimately in the parliaments.

WEEK 5 – QUESTIONS

What mention does the Constitution make of Indigenous peoples?Since 1967, the Constitution has contained no explicit reference to Australia’s indigenouse peoples – page 179

Did Mabo recognise the ‘sovereignty’ of Indigenous peoples?Yes – but their native title to the land had been extinguished.

Should there be a treaty between Australia’s Indigenous and non-Indigenous peoples?Because we conquered them… yes

Can Indigenous peoples be granted self-determination without fracturing Australia’s constitutional structure?yes

Public Week 6

The Australian Federal System and Citizenship

Required readings 243-246 (Section 1 dicey extract only), 248-255 (section 2), 55-65 (section 10)

The Australian Federal System’’

1. Federalism

James Gillespie defines federalism as “ a system of government in which authority is constitutionally divided between central and regional governments. The two levels of government are interdependent; neither can abolish, and each relies on the other in making and implementing policy. Sovereignty, the source of legitimate political power in a society, is divided on a territorial basis.

A V Dicey, Introduction to the Study of the Law of the Constitution(Macmillan, 1st ed 1885, 10th ed 1959)

A federal state requires for its formation two conditions:

1. A body of countries such as the cantons of Switzerland, the colonies of America, or the Provinces of Canada, so closely connected by locality, by history, by race, or the like, as to capable of bearing, in the eyes of the inhabitants, an impress of common nationality.2. (Absolutely essential) The existence of a very peculiar state of sentiment among the inhabitants of the countries which it is proposed to unite. They must desire union, and must not desire unity.

In the supremacy of the constitution are involved three consequences:

1. The constitution must almost necessarily be a “written” constitution Complicated contract - should help to clear up blurred situations2. The constitution must be ‘rigid’ or ‘inexpansive’ E.g. referendum - must be changed by a consensus - ALL parties involved have to

consent to a change, not just one party3. The distribution of powers is an essential feature of Federalism Reduces the amount of ‘grey area’ if powers are clearly divided

Other characteristics that are consequent of the supremacy of a constitution

4. Federal government means weak government No equivalent to a sovereign as powers are all distributed between the different levels5. Federalism tends to produce conservatism The constitution is written and rigid6. Federalism means legalism

The predominance of the judiciary in the constitution - the prevalence of a spirit of legality among the people - Judiciary has the final say in constitutional matters - we must have faith in the judicial system for federalism to work - matters are viewed in a legalistic sense (i.e. it is illegal if it is unconstitutional, but not considered illegal if it isn’t immoral)

Federalism also means we have Dual citizenship or Double Democracy

2. Australian Federalism

Constitutional Commission, Final Report of the Constitutional Commission(AGPS, 1988), Vol 1

Federal features in the Australian Constitution

While our Framers rejected the presidential system of government and a comprehensive Bill of Rights, in other respects they found, in the American system, what Sir Owen Dixon described as “an incomparable model”. The federal features of that country’s Constitution that we followed were

a) The establishment of a central (or Federal) Government and State Governments, each with its own governmental institutionsb) A distribution of authority between the Federal and State Governments that confined the former to express enumerated subjects, while leaving the undefined residue to the states. (division of power)c) A judicial authority, appointed by the Federal Government, to determine whether either level of government had exceeded its legislative, executive or judicial powers (judicial review)d) The supremacy of federal laws over State laws in cases of inconsistencye) An entrenchment of these features by a rigid constitutional framework that is difficult to alter.

Other aspects of the Constitution which, while not creating a federal state, reflect its federal nature:s51(ii) which restricts the taxation power “so as not to discriminate between States or parts of Statess51 (iii) and s88 which require bounties and customs duties, respectively, to be ‘uniform throughout the Commonwealth’s99 which provides that “the Commonwealth shall not, but any law or regulation of trade, commerce, or revenue give preference to one State or any part thereof over another State or any part thereof”

Relationship between Governments

Coordinate federalism – co-operation between states and cth – financially independent

The Australian model of federalism is not a Coordinate federalism, as defined by Professor KC Wheare: “Does a system of government embody predominantly a division of powers between general and regional authorities, each of which, in its own sphere, is co-ordinate with the others and independent of them?””Indeed, even the institution of a Senate designed to intrude State interest into the federal authority (regarded by many as a federal aspect of our system) detracts from this ‘coordinate’ modelCoordinate Federalism - division of State and Federal powers are separateeg. Telstra Sale - Independent Senator Brian Harradine of Tasmania, effectively ‘bargained’ with the Federal government to help out Tassie in exchange for his vote to pass the legislationRevenue Raising - done mainly by the commonwealth and given to the states on condition, via s96

B Galligan and C Walsh, “Australian Federalism Yes or No?”in G Craven (ed), Australian Federation (Melbourne University Press, 1992) 193

Key attributes of federal theory:That federalism provides a robust constitutional system that anchors pluralist democracy, and that it enhances democratic participation through providing dual citizenship in a compound republic.Dual citizenship means you can be the citizen of both state and federal level, for which the power will not too concentrate in one arm. Australian critics who reject federalism usually do so because of they prefer more direct and unrestrained democracy at the national level, and have little respect for the more localised democracy that State governments provide.Federalism preserves the States as small democratic polities and establishes a system of dual citizenship or double democracy. Federalism enables the national strength of a large nation to be added to the enhanced participatory qualities of small democratic states: in Tocqueville’s summing up, federalism combines the “different advantages which result from the magnitude and the littleness of nations”.Although the Aussie states would appear to be the same in their views due to the “cultural homogeneity” of aussies, the states actually differ quite a lot in their viewsSince federalism both increases popular participation in politics and allows public goods to be more finely tailered to popular preferences, it dan be sed to enhance democracy. This enhancement of democratic participation through dual citizenship and multiple governments in a compound republic is undoubtedly federalism’s most positive quality and largely explains its strength and resilience in Australia.

J Gillespie, “New Federalisms”in J Brett, J Gillespie and M Goots (eds), Developments in Australian Politics

(MacMillan, 1994), 60

Does federalism have the potential to limit the oppressive powers of government?

One of the oldest arguments for a federal system is based on the belief that the division of powers between levels of governments is a guarantee that the state will not become too large or oppressive.If sovereignty were divided between rival government, each with its own democratic franchise, it would set a major barrier to the concentration of political power in too few hands.First, federalism can limit government power to infringe rights, since it cerates the possibility that a legislature wishing to restrict liberties will lack the constitutional power, while the level of government that possesses the power lacks the desireSecond, the tortuous and legalistic decision making processes characteristic of federal systems limit the speed with which governments can act - even if their actions prove to be constitutional.Federalism helps enshrine the principle of ‘due process’, limiting arbitrary action by the state.

The strength of demands for political democracy - and the potential tyranny of democratic majorities - with the growing size of the imperial state seemed to threaten the liberal traditions of British politics. Divided sovereignty was seen as an important measure of protection of the rights of minorities

Galligan, Knopff and Uhr suggest that “a federal constitution is itself a bill of rights” as the division of authority between different spheres of government, ‘guarantees due process in government’; in turn this promotes what they term ‘rights-oriented citizenship’. The complications, overlapping jurisdictions and administrative inefficiencies of a federal system are transformed into virtues. The citizens of a federal state have more remedies and political resources to draw upon. Equally, in the face of an oppressive state, at least they have the possibility of sheltering from its excesses beneath the sovereign powers of other levels of government.

However, it is difficult to detect any federal component to the protection of individual rights in Australia (Galligan, Knopff and Uhr do not cite any cases to support their civil libertarian defence)Instances of the coincidence of states’ rights and individual rights have been rare.Second, they confuse the rights of the individuals with those of the states.Finally, their position is based on a very narrow notion of liberty

K Wiltshire, “Barriers to Rationalising Commonwealth/State Overlap”in Towards a More cooperative Federalism? (Economic planning Advisory Council,

Discussion paper 90/04, July 1990)

Specific federalist provisions?

s 117 (discrimination & state residency) s 118 (full faith and credit to state laws) s 92 (free trade, commerce and intercourse among the states) s 102 (unreasonable State railway rates) s 114 (States and Cth cannot tax each other’s property) ss 51(23) & (14) banking and insurance powers exclude relevant State areas

equal representation of original States in the Senate (but not future States – subject to federal parliament in s 121)

Was it really a system of “independent and coordinate” governments?

Senate intrudes federally for States States relied on federal revenue (customs, excise duties, s 96 grants) Federal jurisdiction in State courts; state prisons to house federal offenders

Benefits of Australian federalism?

Anchors pluralist democracy Enhances democratic participation through dual citizenship Creates institutional processes rather than substantive outcomes Cultural homogeneity between states is no reason to reduce democracy

Does federalism protect human rights?

you can move to another State (exit) govts may lack constitutional power to oppress decision-making power is dispersed and processes restrict arbitrary action divided sovereignty protects minorities due process & rights-based citizenship inefficiencies prevent oppression

Criticisms of human rights thesis:

few examples of states’ rights and personal liberties coinciding; states maintain much control over personal affairs (morality, health, land, indig.)

federal intervention may protect rights federalism not necessary for judicial supremacy, just constitutionalism a negative liberty argument – whereas govt intervention may secure rights (social

security, health insurance)

Disadvantages of federalism?

Inefficiency, cost, duplication, disputes

Is a federal system the “best” system of government for Australia? Should the States be abolished? Should the Northern Territory be made into a State?How has the federal-state balance shifted?

Centralisation of power federally: constitutional amendments, but also High Court interpretation; legally doubtful federal schemes; cooperative arrangements blurring the legal division of powers; federal control of finance

Coordinate federalism until mid-1920s: financial and political independence of govts, despite WW1 federal expansion

Cooperative federalism until WW2: returned to clear division of powers; cooperation on loans, debt, grants

Coercive federalism until mid-1970s: federal monopoly on income tax; conditional grants and loans to States

Coordinative federalism from 1975: improved inter-governmental policy coordination; Premiers’ Conference etc

Citizenship

Where is citizenship defined, and how?

1948 Australian Citizenship Act:

(1) by birth in Australia, with one Australian or permanent resident parent; (2) by adoption by a citizen;(3) by descent if registered overseas;(4) by grant of citizenship

major exclusion: not automatically by place of birth (jus soli)

grant of citizenship is a ministerial discretion: permanent resident, over 18 years, understand application; lived here for 2 of previous 5 years (incl. 12 months in prior 2 years); good character; basic English; adequate knowledge of responsibilities and privileges; likely to reside here or be closely connected; pledge commitment

Why so late? Why not in Constitution?

No citizenship power; British subjects vs aliens; but wanted to racially exclude eg Chinese, Indian colonial subjects

What does citizenship mean?

Historical theme of inclusion-exclusion Little said about legal consequences 1993 preamble: formal membership of community; common bond, reciprocal rights

and duties; loyalty to Australia; belief in democracy; obeying laws Rights and responsibilities of citizens; participate in government, civil society;

rights regardless of virtue; rule of law Exclusiveness: universal or exclusive?; by descent (Japan, Germany, Israel) Egalitarian: regardless of class or status

Do legal and normative citizenship differ?

Masculine or gendered construction of citizenship? Anzacs, war, blood, maternal duty, “populate or perish”

Special treatment of returned soldiers Women as equal citizens in practice? Lack of representation, participation Other mechanisms for inclusion: dedicated seats for minorities (eg NZ, India),

including indigenous people

What is the relationship between citizens’ rights and human rights? Why discriminate on the basis of nationality?

Distinguish political rights – or not? Economic rights? Employment?

Is the concept of citizenship necessary? Why not human rights in a global world

PUBLIC LAW - Week 7

Voting and Election to the Federal Parliament

3. Voting and Elections p. 410

a) “[D]irectly chosen by the people”

Sections 7 and 24 of the Constitution require that the members of the Senate and the House of Representatives be “directly chosen by the people”.

While there is no EXPRESS right to vote in the constitution, the High Court of Australia has implied that from these words, Australians possess a constitutionally protected freedom of political communication.

Even though the Court held in R v Pearson; Ex parte Sipka (1983) 152 CLR 254 that s41 does not confer an express right to vote, it might be argued that ss 7 & 24 can support an implied right to vote (A Twomey, “Federal Constitutional Right to Vote in Australia” (2000) 28 Federal Law Review 125)

After all, these provisions require a “choice” by the “people”, which, as s7 makes clear, is to be made by electors “voting” at the ballot box.

The current entitlement to vote is governed by the Commonwealth Electoral Act 1918

Commonwealth Electoral Act 1918 (Cth) p. 411

From section 93: Must be 18 Australian Citizens Cannot hold a temporary visa Cannot be an “unlawful citizen” Cannot be “of unsound mind” Cannot be serving a sentence of 5 yrs Cannot have been convicted of treason or

treachery

Section 94 and 94A exclude from enrolment Australian citizens residing overseas who, when they left, did not intend to resume residing in Australia within 6 years.

It was not until 1962 that the Act was amended to give Aboriginal Australians the right to vote in federal elections

In McGinty v Western Australia (1996) 186 CLR 140, Toohey J stated: “[A]ccording to today’s standards, a system which denied universal adult franchise would fall short of a basic requirement of representative democracy”. Gaudron J stated: “Notwithstanding the limited nature of the franchise in 1901, present circumstances would not, in my view, permit senators and members of the House of Reps to be described as ‘chosen by the people’ within the meaning of those words in ss & and 24 of the Constitution if the franchise were to be denied to women or to members of a racial minority or to be made subject to a property or educational qualification”

Voting at federal elections has been compulsory since 1924.

s 245 (1) of the Commonwealth Electoral Act states: “It shall be the duty of every elector to vote at each election”. The section then goes on to establish a penalty of $20 (or $50 if the matter is dealt with by a court) for electors who fail to vote and who cannot provide a valid and sufficient reason for not doing so.

Langer v Commonwealth(1996) 186 CLR 302

s 240 of the Commonwealth Electoral Act prescribed that: “in a House of Reps election a person shall mark his or her vote” by numbering every square “1, 2, 3, 4 …” until an exhaustive order of preference is stated.

s 268 prescribed that any ballot paper which fails to express an exhaustive preference is informal, provided that if one square is blank and all others are numbered in sequence, the blank will be taken to express the voter’s lowest preference; and further that if there are only two candidates, a ballot paper will be formal if one is marked “1”, and the other is either left blank or given a number larger than 1

s270 a ballot paper “shall not be informal” if it includes a sequence of consecutive numbers beginning with “1”, even if numbers are duplicated and even if one square is blank. Thus a paper numbered “1, 2, 3, 3…” will be counted as indicating a preference for candidates “1” and “2”

s329A it was an offence, attracting up to 6 months’ imprisonment, to “print, publish or distribute… any matter or thing with the intention of encouraging persons… to fill in a ballot paper otherwise than in accordance with” s240

Langer argued that s329A was invalid unconstitutional infringed the implied constitutional freedom of political communication.

s240 also invalid since its stipulations as to voting method were inconsistent with the command in s24 of the Constitution that representatives be “directly chosen by the people”, and the people (if choosing freely) must be free not to choose by not numbering every square.

All six judges held that s240 was valid. By 5:1, Dawson J dissenting, it followed that s329A was also valid.

Brennan CJ: “… the power to enact s329A in order to protect what the Parliament intends to be the primary method of choosing members of the House of Reps…”

After the 1996 Election, s240 was amended to include the words “consecutive numbers, without the repetition of any number” and s329A was repealed in the Electoral and Referendum Amendment Act 1988 (Cth).

2. Civil and Political Freedoms p. 1101 (Express Freedoms)

a) Section 41 – Right to Vote

S41 of the Constitution might be viewed as a guaranteed right to vote in Federal elections for anyone entitled to vote for a lower house of State Parliament.

However, s41 has also been seen as merely a transitional provision, designed to preserve the rights of SA women until the new Commonwealth Parliament could enact a uniform federal franchise.

On this view, once the Commonwealth Franchise Act1902 (Cth) had been passed, s41 was superseded: it had no continuing operation for the benefit of persons becoming entitled to vote in State elections after 1902

King v Jones(1972) 128 CLR 221

High Court was asked to apply s41 to resolve a political controversy over lowering the voting age to 18.

Ms Susan King argued that she was an “adult person” by virtue of both social and legal acceptance, relying as to the latter on the Age of Majority (Reduction) Act 1970 (SA). As an “adult person”, she argued that she was entitled by s41 to exercise voting rights at a federal level equivalent to those she had already acquired in SA.

S41 of the constitution : No adult person who has or acquires a right to vote at elections for the more numerous House of the parliament of a state shall, while the right continuous, be prevented by any law of the commonwealth from voting at elections for either house of the parliament of the commonwealth.

Stephen J: … if “adult” in s41 is to be given some meaning other than that of having attained the age of 21 yrs, it is likely to be a meaning which, used in a Constitution to secure important political rights to the citizens of federating colonies, was both certain and uniform throughout the Commonwealth. (ORIGINALIST VIEW)

Transitional View that s41 only applied to people in 1901 was not used in the judgment (ie the view that King received her State franchise 70 years too late to use s41 in order to gain a Federal franchise), it was the obiter dicta of this case

Menzies J: The character of s41 is that of a permanent constitutional provision. It is not a provision to make temporary arrangements for the period between the establishment of the Constitution and the making of Commonwealth laws. It applies to a person, who, in 1901, had or who, in the future, acquires particular voting rights by the laws of a State.

R v Pearson; Ex parte Sipka(1983) 152 CLR 254

Despite the dicta in King v Jones, the court in R v Pearson accepted the “transitional” view of s41 by a 6:1 majority (Murphy J dissented) (ruled against the extension of the franchises to vote)

s45 of the Commonwealth Electoral Act 1918 (Cth) provided that: “Claims for enrolment… which are received by the Registrar after six o’clock in the afternoon of the day of the ISSUE OF THE WRIT for an election shall not be registered until after the close of the polling at the election”.

Under s57 a double dissolution of both houses of parliament was granted for the PM (Malcolm Fraser) by the GG; the writ being issued the very next day. Therefore, people allowed to vote in the state elections who hadn’t registered for the federal election couldn’t vote.

ISSUE: Whether s41 allows the franchise to vote in a State Election to be extended as a franchise to vote in a Federal Election.

Brennan, Deane and Dawson JJ: s41 only operated from 1901 to the commencement of the Commonwealth Franchise Act 1902 (Cth), after this was implemented “no person could acquire the right to vote at federal elections in accordance with its terms”eg. If s41 still stood, the States could give the franchise of voting in Federal Elections (through granting a franchise to vote in State Elections) to people whom the Commonwealth may not have desired to have a voting franchise.Murphy J (dissented): An interpretation which requires that “adult person”, must in 1983 be read as referring to centenarians, cannot be correct…

4. Eligibility for Election p. 435

s163 of the Commonwealth Electoral Act 1918 (Cth) specifies who is eligible to be elected to the federal Parliament: At least 18 Australian Citizen Entitled to Vote Qualified to be entitled to vote

s43 of the constitution: provides that “A member of either House of Parliament shall be incapable of being chosen or of sitting as a member of the other House”.

Moreover, a person who falls within the disqualifying categories listed in s44 of the Constitution “shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives”

In re Webster(1975) 132 CLR 270

Webster’s family owned company (of which he was the managing director, secretary and manager) had, at various times in 1973 and 1974, submitted quotations and tenders, accepted offers and entered into contracts for the supply of timber to Commonwealth departments.

S44(v) of the constitution: has any direct or indirect pecuniary interest in any agreement with the public service of the commonwealth otherwise than as a member and ain common with the other members of an incorporated company consisting of more than twenty-five persons

Insofar as the negotiations had resulted in contracts, the issue was whether Senator Webster had “any direct of indirect pecuniary (of or concerning money) interest in any agreement with the Public Service of the Commonwealth” within the meaning of s44(v)

Barwick CJ held the general view that s44(v) had been replaced, that its wording was obscure and anachronistic (out of date; belonging to another time period) and that its application should therefore be narrowly confined

Since the contracts between Webster’s company and the Commonwealth were NOT ongoing, it was deemed that there was no pecuniary interest on either side and therefore he was not disqualified from his seat in the Senate.

In re Wood(1988) 167 CLR 145

Robert Wood was elected as a senator for the state of NSW. High Court held that Wood had not been validly elected into the NSW Senate as he

was a British citizen s163(1)(b) Commonwealth Electoral Act required any person wishing to be elected

must be an Australian Citizen. The court was able to avoid the problem of s44(i) of the constitution.

Sykes v Cleary(1992) 176 CLR 77

Cleary, an independent, was elected to the seat of Wills, which had been held by Hawke. The Liberal Party candidate was Delacretaz and the Labor Party candidate Kardamitsis.

Cleary had been a secondary school teacher employed by the Victorian Education Department under the Teaching Service Act 1981 (Vic). He had been on leave without pay for almost 2 years but he did not resign from his position in the teaching services until AFTER his nomination for the seat of Wills and AFTER the election day. He did, however, resign BEFORE the result of the election was announced.

Therefore, both on the day that he lodged his nomination and on election day, he was an “officer” under the Teaching Service Act.

On this basis, the High Court unanimously held that Cleary was the holder of an “office of profit under the Crown” within the meaning of s44(iv) and, by 6:1 (Deane J dissented) that he was incapable of being chosen or of sitting as a member of the House of Representatives.

The 6 assenting judges held that the expression “being chosen” in s44 refers not to the declaration of the poll, nor even to the Election Day, but to the entire “process of being chosen, of which nomination is an essential part. Thus, Cleary could only have avoided being caught by s44(i) by resigning before lodging his nomination.

Criticised: Cleary was employed by the VICTORIAN state government, not the Commonwealth.

The other candidates (Delacretaz and Kardamitsis) were also disqualified since they had not taken every possible step to divest themselves of foreign citizenship, they remained “entitled to the rights or privileges of a subject or a citizen of a foreign power” within the meaning of s44(i). They were therefore incapable of being chosen or of sitting as members of the House of Representatives.

5 of the judges held that candidates had to divest themselves of citizenship in terms of BOTH the Australian framework of law AND (to a reasonable extent) the framework of law of their “home” countries (ie a Greek citizen had to write a letter the Greek foreign minister to divest citizenship [but not if they had to kill their child or something unreasonably])

Gaudron J dissented and argued that the matter should be considered solely within the framework of Australian law. Within the framework the two men had each been through a naturalisation ceremony “renouncing (to give up formally) all other allegiance”. Whether the law of Greece or Switzerland accepted the efficacy of that renunciation was, in her view, irrelevant.

Sue v Hill(1999) 199 CLR 462

Ms Heather Hill, of the One Nation Party, was elected to the Queensland Senate. She was a British Citizen took up Australian citizenship before the 1998 election after election, found out she could pay a fee of $135 and hand over her British passport to further renounce her British Citizenship (which she did)

It was argued that she did not satisfy the requirements of s44(i) of the Constitution. The central issue was whether the UK was “a foreign power” under that section.

Gleeson CJ, Gaudron, Gummow and Hayne JJ held that it was, and that Hill had not been duly elected. This finding was reached despite clear recognition, for example by Gaudron J, that “at federation, the UK was not a foreign power for the purposes of s44(i) of the Constitution”

They held that s1 of the Australia Act 1986 (Cth), in terminating the power of the Parliament of UK to legislate for Australia, mean that “at least since 1986 with respect to the exercise of legislative power, the UK is to be classified as a foreign power”

Was Britain a FOREIGN POWER at the relevant time?At Federation, apparently no. But, at the relevant time it had (even though there were no examples of events)

Callinan J argued that there should have been more events listed to show the development of Britain as a foreign power.

PUBLIC LAW - Week 8

State Constitutions and Legislative Procedures

1. Introduction p. 462

The various State Constitution Acts were originally enacted by the Imperial Parliament to provide each colony with its own instructions of representative government. However, as s5 of the Colonial Laws Validity Act 1865 (Imp) made clear, each local representative legislature had “full power to make laws respecting [its own] constitution, powers, and procedure” State Parliaments can change their own constitutions WITHOUT the need for a

referendum The colonial constitutions which were in force on 1 January 1901 were expressly

preserved in force by s106 of the Constitution – to “continue as the establishment of the Commonwealth… until altered in accordance with the Constitution of the State”.

s107 provided that, apart from the powers given exclusively to the Commonwealth, the existing legislative power of the State Parliaments were to “continue”

s108 was pretty much the same as s107, but also ensured that the State’s “powers of alteration and repeal in respect of any such law” (ie power to repeal laws without referendums) would remain in force.

However, s108 was made subject to the possibility of Commonwealth legislative override. Moreover, while s106 preserved the State constitutions, it did so “subject to this Constitution” the state legislative powers are subject to limitations arising from the Constitution itself.These limitations are of three main kinds:

1. Areas of power exclusively vested in the Commonwealth parliament are necessarily excised from the powers of the States s90 (states cannot levy duties of excise)& s51(xii) (State cannot mint coins etc.)

2. Certain provisions of the Constitution expressly impose limits on State legislative power (s114, a State “shall not… impose any tax on property of any kind belonging to the Commonwealth”)

3. Sin s106 makes the State constitutions “subject to this Constitution”, State legislative powers may be subject to limitations implied in the Constitution.

2. State Legislative Power p. 464

a) Peace, Welfare And Good Government

(Do these words provide the government with a plenary or limited power?)

Constitution Act 1902 (NSW)

s5 The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare and good government of NSW in all cases whatsoever

It is sometimes suggested that the formula “peace, welfare [or order] and good government” in the grant of legislative power might be judicially construed as a limitation on parliamentary sovereignty. The courts would then have the power to ask themselves: Is this really a statute for the peaceof NSW; the welfare or the good government of NSW? If the answers to these questions were “No”, the statute would then be unconstitutional. Street CJ suggested that “peace, welfare and good government” were words of

limitation in the BLF Case.

Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (BLF Case)

(1986) 7 NSWLR 372

Facts: A union being deregistered. Appealed to SC. Dismissed. Before could appeal to next level, NSW Parliament passed legislation to resolve any doubts on appeal.

Prior Proceedings: dismissed by Lee J in the Supreme Court of New South Wales. Union appealed, but before the appeal could be heard NSW Parliament passed the Builders Labourers Federation (Special Provisions) Act 1986 (NSW) which sought to remove doubts which had arisen in the hearing before Lee J.

Arguments: It was argued before the NSW Court of Appeal that the Act was invalid because s5 of the NSW Constitution did not empower the Parliament to abrogate certain fundamental rights. This argument failed, as did a separate argument that the Act was invalid because it breached a doctrine of separation of powers in the NSW Constitution.Contrary to “peace, welfare, and good government” – so invalid

Kirby P: Calling upon [a] long stream of authority, dating back to 1610, the BLF urge that there should be implied into the constitutional arrangements of NSW, a common law right “so deep” that the legislature could not invade it. This right assured the subject unimpeded pursuit of the entitlement to have a case before the Court determined according to law. In particular the right could not be destroyed by ad hominem legislation directed specifically and only at the termination of the right and, a well, at the termination of the entitlement to costs accrued in the normal way.

Ad Hominem – to the individual. An argument designed to appeal to the personal sentiments or prejudices of the listener. That is, a law passed specifically for an individual/institution [ie Kable in Community Protection Act1994 (NSW) and BLF in Builders Labourers Federation (Special Provisions) Act 1986 (NSW)]

Street CJ: Ruled that the plenary (sovereign) powers of the parliament were limited (thus the BLF Act was unconstitutional), (even though their words confer a plenary power, they are words of limitation)

“[Referring to R v Burah (1878) 3 App Cas 899] This is a significant demonstration that a legislature may have “plenary powers of legislation, as large, and of the same nature, as those of Parliament itself (ie the English Parliament) but may at the same time be subject to ‘limits which circumscribe these powers’. This, in my view, is the position in which the NSW Parliament stands. It has plenary or sovereign powers. But they are circumscribed or limited by the requirement of ‘the peace, welfare, and good government of our Laws inimical (unfriendly, hostile, tending to prevent or discourage) to, or which do not serve, the peace, welfare, and good government of our parliamentary democracy, perceived in the sense I have previously indicated, will be struck down by the courts as unconstitutional.”

The dicta assembled by Street CJ, ranging from Coke to Sir Robin Cooke, suggested an independent line of authority asserting a judicial power to protect certain fundamental rights against legislative encroachment (going beyond what is right, natural or desirable), AS OPPOSED to any restrictive reading of the ‘peace, welfare and good government’ formula. No precedent in Australia to continue this line of authority

Kirby P ultimately rejected this approach

Kirby P: Ruled that the plenary powers of parliament were unlimited (hence BLF Act was constitutional)

It is not necessary for me to consider in this case whether a power is reserved to the judiciary by the Constitution Act of 1902, s5, to declare invalid a manifestly arbitrary and unjust law as repugnant (contradictory) to the Constitution on the grounds that it could not conceivably be, as the Constitution Act 1902, s5, requires, a law “for the peace, welfare and good government of NSW”. (ie Judiciary shouldn’t need to decide whether a law is contradictory to the Constitutional requirement that a law be “for peace…”).

Those words have hitherto (until now) been seen as an ample grant of power “in all cases whatsoever”. By their history, purpose and language these words may not be apt to provide a limitation on what the legislature may enact

In any case, if the legislature were to enact such a manifestly unacceptable statue as is postulated, it is unlikely to be restrained either by the Constitution Act, s5, or the courts. Our protection against such predicaments remains, fundamentally, a political and democratic one. (Responsible government)

Whether there should be more significant legal protections is a matter of current debate in the Australian community. But that debate cannot influence the determination of the present summons. It must be resolved in accordance with the present law.

Natural law is out of line with mainstream legal thought. If you use this approach, then you have to subject the legislation to another frame of reference.

Legislation can only be invalid if it is inconsistent with written law, not the “natural” view

Street CJ’s suggestion that the words “peace, welfare and good government” do not convey plenary power was firmly squashed by the High Court in Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1. Also, a similar suggestion as to Commonwealth power, based on the words “peace, order and good government” in s51, was rejected by the High Court in Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR 501.

Union Steamship Co of Australia Pty Ltd v King(1988) 166 CLR 1

Argument: That the words “peace, welfare and good government of NSW” in s5 of the Constitution Act 1902 (NSW) did not merely confer power upon the NSW parliament, but were also words of limitation.

Facts: The ship was registered in NSW. The respondent claimed damages from the owner of the ship depending on the Worker Compensation Act. The company argued that this act was not good, welfare and peace government because of the insufficient territorial connection.

The Court accepted the orthodox view of colonial legislative power, that is, that the “peace, welfare and good government” formula has no special semantic (of the meaning of words) significance but is simply the conventional formula used by the Imperial Parliament when it wished to confer plenary power. The states still need to pass legislation with territorial connection. The fact that the ship was registered in NSW was a sufficient connection with the state to enable the parliament to apply its law to the ship and to justify the application to seamen employed on that ship of a statute entitling them as against their employer to worker’s compensation benefits.

The Court: Such a power is a plenary power and it was so recognized, even in an era when emphasis was given to the character of colonial legislatures as subordinate law-making bodies. However, it cannot conflict with the federal structure of the constitution.

3. Manners and Form Requirements p. 477

“Manner and form” requirements are restrictive procedures for state constitutions. They restrict the legislative powers of the Parliament by requiring that laws on certain topics may only be enacted by a special and more difficult procedure. That is, that a Parliament can bind its successors.A special way of passing legislation e.g. s128

The idea that this might be possible has its origins in the proviso to s5 of the Colonial Laws Validity Act arose in NSW. Also reproduced in s.6 of the Australia Act. Following the success of the Queensland Labor party in abolishing the Queensland Upper House, the Labor Party in NSW attempted to follow suit. An attempt had been made in 1929 to forestall this by amending the Constitution Act 1902 (NSW) to insert a new s7A.

s5 Colonial Laws Validity Act : Every Colonial legislature shall have, and be deemed at all times to have had, full power within its jurisdiction to establish courts of judicature, and to abolish and reconstitute the same, and to alter the constitution thereof, and to make provision for the administration of justice therein, and every representative legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers and procedure of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any act of parliament, letters patent, order in council, or colonial law for the time being in force in the said colony.

s6 Australia Act : Manner and form of making certain State laws: Notwithstanding section2 and 3(2) above, a law made after the commencement of this act by the parliament of a state respecting the constitution, powers or procedure of the parliament of the state shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that parliament, whether made before or after the commencement of this act.

Constitution Act 1902 (NSW) see page 478

s7A sub-s(1) The legislative council shall not be abolished nor, subject to the provisions for subsection six of this section, shall its constitution or powers be altered except in the manner provided in this section (referendum).s7A sub-s(6) The provisions of this section shall extend to any Bill for the repeal or amendment of this section, but shall not apply to any Bill for the repeal or amendment of any of the following sections of this Act, namely, sections thirteen, fourteen, fifteen, eighteen, nineteen, twenty, twenty-one and twenty-two.

Section 7A meant that the Legislative Council could not be abolished without a referendum and also, by virtue of sub-section (6), that s7A itself could not be amended or repealed without a referendum. Thus, if s7A “entrenched” the constitutional status of the Legislative Council, sub-s(6) made this a “double entrenchment”

This situation was similar to the Philosophical Paradox of “God creating a stone so heavy that even God could not lift it”

Can Parliament limit its own power (eg enact a manner and form provision that reduces its own power)?

Both Houses of Parliament (the Legislative Council and Assembly) both passed, without referendum, bills purporting to abolish the Legislative Council.

By 4:1, the NSW Supreme Court granted an interim injunction and declared that neither Bill could be presented for the Royal Assent without referendum:1. If s7A had not been doubly entrenched, that is, if there had been no sub-s(6), the

whole of s7A could have been repealed2. On the same hypothesis, once s7A was repealed, the Legislative Council could be

abolished by an ordinary Act of Parliament.3. Moreover, what could thus be done in two steps could also be done in a single

step. There was no need first to repeal s7A before abolishing the Legislative Council. Parliament could simply legislate to abolish the Legislative Council and, insofar as that legislation was inconsistent with s7A itself, it would impliedly repeal the section

4. However, the inclusion of sub-s(6) led to a different result. That sub-section could not be repealed by an ordinary Act of Parliament. It could only be repealed in the manner prescribed by s7A, itself, that is, by a referendum. Section 7A thus incorporated a “manner and form” requirement imposed by a law within the meaning of the proviso to s5 of the Colonial Laws Validity Act.

Attorney-General (NSW) v Trethowan(1931) 44 CLR 395

High Court ruled 3:2 that neither Bill could be presented for the Royal Assent without referendum

Rich J: In my opinion the efficacy (effectiveness) of sec7A depends upon the answer to the questions – does it fall within the proviso as to a requirement of manner and form? And does it introduce into the legislative body a new element? If the true answer to either of these questions is Yes, then the Legislative Council cannot be abolished without a referendum (a MFP) unless and until sec7A is repealed, and sec7A cannot be repealed except by a Bill approved at a referendum before it is presented for the royal assent.

There is no reason why a Parliament representing the people should be powerless to determine whether the constitutional salvation of the State is to be reached by cautious and well-considered steps rather than by rash and ill-considered measures. McCawley’s Case [[1920] AC at 703, 704] establishes that there is no difference in this respect between a unitary and federal system.

Dixon J: Unless it be void, sec7A is undeniably a prior law of the NSW legislature. It is no less a law of that Legislature because it requires the approval of the electors as a condition of its repeal. But it is not void unless this requirement is repugnant to sec5 of the Colonial Laws Validity Act. No requirement is repugnant to that section if it is within

the contemplation of its proviso (clause, etc that is insisted on as a condition of agreement), which concedes the efficacy of enactments requiring a manner and form in which laws shall be passed

McTiernan J argued that s7A could not operate to impose a referendum requirement. He insisted that the Parliament could not cut down its own powers in a way that would bind future Parliaments and rejected the idea that a “manner and form” requirement would be imposed without any reduction in substantive legislative powers. The provision cedes power to the people, deprives parliamentary power not legal

McTiernan J: If the persons designated by the section, who are outside the Parliament, do not approve of the Bill, the Legislature is prevented from resuming the process of enacting the Bill into law and the Bill lapses. In my opinion, therefore, sub-sec6 of sec7A is not in substance a law dictating “manner”; it is in substance a law depriving the Legislature of power. The words of the section measure the extent to which the power of the Legislature is cut down. It renders the King, the Legislative Council and the Legislative Assembly assembled in Parliament powerless to repeal the section unless an external body intervenes and approves of the repeal. In my opinion the Legislature, consisting of its three constituent elements in Parliament assembled, may, under sec5 of the Colonial Laws Validity Act, resume the power to repeal sec7A.

PUBLIC LAW – WEEK 10

The Executive I

Required Readings p 508-525 (section 2 & 3)

1. The Crown

The King of England once ruled through autocratic means, making laws and dispensing justice through his courts. In time, the King lost much of his personal power, especially in regard to legislation, which became the domain of Parliament. Parliament emerged from the revolution of 1688 as a dominant and sovereign institution, with power to make or unmake any law. The King or Queen, however, continued to administer the laws. Gradually, the Westminster tradition evolved according to which a representative Parliament made the laws, with the Royal Assent reduced to a formality, and the Monarch and his or her executive government acted on the advice of responsible ministers both in administering the law and in their higher executive function.

2. Responsible Government p. 508

In Australia, the Queen is represented in the States by the Governor and in the Commonwealth by the GG.

By convention, the GG, the doctrine of responsible government requires that except in the exercise of ‘reserve powers’, the Queen’s representatives in Australia (GG) act on the advice of their ministers, who must be elected members of parliament and therefore accountable to it.

G Lindell, “Responsible Government”In Finn, PD (ed), Essays on Law and Government: Principles and Values

(Law Book Co, 1995) vol 1, 75

Professor Parker’s definition of the English system of responsible government, or as he preferred to describe it, the “Westminster syndrome”, in Australia

1. Ministers have to be members of parliament2. Ministers require a majority in the popular house of the parliament to hold office3. The Houses of the parliament (presumably the popular Houses) can be dissolved

before the expiration of their maximum terms4. Public servants must have different tenures from their Ministers

Elements in Parker’s definition which may no longer be reflected in the practice of government in Australia1. The notion of Ministers being individually responsible to the parliament which now

operates, if at all, only in a truncated form2. There are now several jurisdictions in Australia which have either adopted or are

proposing to adopt, a qualified fixed term for the duration of their parliaments.

3. Changes have occurred to the organization of the bureaucracy of government which point to a departure from the Civil Service model as developed in England during the last century.

The individual/collective responsibilities of the Ministers are also associated with these features of government:1. The conventions that ‘bind’ the GG to act on Ministerial advice2. Cabinet solidarity (it is rare to have a Cabinet consisting of members from both sides

of Parliament)3. Cabinet secrecy

The Cabinet, which consists of government ministers, is the principle decision-making body of the executive

Minister for Arts Heritage and Environment v Peko-Wallsend Ltd(1987) 75 ALR 218

Bowen J: Cabinet is not mentioned in the constitution. It is a body which functions according to convention.

In theory, the essential feature of responsible government is the capacity of parliament to scrutinise the actions of the executive. However, the dominance of the party system in Australia has meant that parliament is usually controlled by the same party that forms the executive. Parliament may therefore be directed by, rather than acting as a check upon, the executive.

Back bench ppls ren’t ministers… front benchers are

Wartime Cabinets were the last to have members from both sides of Parliament

K Turner, “Parliament”In R Smith (ed), Politics in Australia (allen and Unwin, 2nd ed 1993), 78

The house of representatives has apparent power to make and break government By convention, the government will resign if it no longer has the confidence in the

lower house Parliament does not normally make or unmake government The executive controls the parliament Where a parliament has an upper house in which the government does not have a

majority, there may be greater opportunities for scrutiny of government action

Egan v Willis(1998) 195 CLR 424

Treasurer Michael Egan was called upon by the legislative council to table documents, but refused to do so since the cabinet had earlier agreed that Ministers should decline to comply with such orders

When Egan refused to table the documents, the Legislative Council charged him with contempt and he was escorted out by the Usher of the Black Rod

Egan brought an action seeking declarations he was not in contempt and that his removal into the street was a trespass, since he had been removed beyond the parliamentary precincts.

The NSW Court of Appeal dismissed the claim that the resolutions were invalid, but held that a trespass had been committed.

Egan appealed to the High Court. The issue before the High Court was limited to whether pars 2 and 3(a) of the resolution of 2 may 1996 were within the powers of the Legislative Council under the Constitution Act 1902 (NSW)

The Court dismissed the appeal Whether the legislative council was under its powers to dismiss Egan

Gaudron, Gummow and Hayne JJ: In Australia, s75(v) of the Constitution and judicial review of administrative action under federal and State law, together with freedom of information legislation, supplement the operation of responsible government in this respect Questions respecting the existence of the powers and privileges of a legislative

chamber may present justiciable issues when they are elements in a controversy arising in the courts under the general law.”

As Priestley JA emphasized in the Court of Appeal, to decide whether a particular power is reasonably necessary for the Legislative Council to perform any constitutional function, it is necessary first to identify that function.

What is “reasonably necessary” at any time for the “proper exercise of the “functions” of the Legislative Council is to be understood by reference to what, at the time in question, have come to be CONVENTIONAL practices established and maintained by the Legislative Council provides flexibility – conventions.

But on no view of the authorities did the action taken in passing and implementing pars 2 and 3(a) of the resolution go beyond the boundary of what is permissible

McHugh J: the power to adjudge the appellant guilty of contempt of the Council and to suspend him for failing to produce the papers inheres in the Council by reason of its being part of the Parliament of NSW.

Bradley Selway points out that while the majority judgments “resulted in the judicial confirmation and affirmation of the current conventions of responsible government” and “confirmed the review function of the upper houses of Australian Parliaments”,

They have also “identified a significant (and… formerly unsuspected) power in the judiciary to inquire into the reasons for orders made by a House of Parliament

Egan v Chadwick(1999) 46 NSWLR 563

In resolutions of 24 and 26 November 1998, the Legislative Council again required Egan to table certain documents or deliver them to the Clerk. Again Egan refused, this time claiming that the documents were protected by legal professional privilege or public interest immunity

Again, he was found to be guilty of contempt and was escorted out by the Usher of the Black Rod.

Egan brought an action on the basis that his removal from the House constituted an assault, and argued that he could not be required to table documents protected by public interest immunity and legal professional privilege.

Spigelman CJ: Public Interest Immunity not absolute… doesn’t trump This court must decide what recognition should be given to a claim for public interest

immunity in the context of determining the scope of a common law power to call for documents that satisfy the test of ‘reasonably necessary for the performance’ by the Legislative Council of its constitutional functions (ie, can Public Interest TRUMP “Reasonably Necessary for the Performance”) balance conflicting interests

The determination of a claim of public interest immunity requires the balancing by the court of conflicting public interests. THE IMMUNITY IS NOT ABSOLUTE.

The high constitutional functions of the Legislative Council encompass both legislating and the enforcement of the accountability of the Executive. Performance of these functions may require access to information the disclosure of which may harm public interest.

When the issue of access to Cabinet documents has arisen in the context of claims for public interest immunity in the course of litigation, the courts have recognised the significance of Cabinet confidentiality as an application of the principle of collective responsibility. (ie Cabinet Documents are important should remain confidential)

However, a distinction has been made between documents which disclose the actual deliberations within Cabinet and those which are described as “Cabinet Documents”, but which are in the nature of reports or submissions prepared for the assistance of Cabinet. (i.e. There is a difference between types of Cabinet documents)

RATIO DECIDENDI: In order to avoid inconsistency between the power to call for documents and one of the bases on which it has been determined that the power is reasonably necessary (namely executive accountability derived from responsible government), the power should, at least, be restricted to documents which do not, directly or indirectly, reveal the deliberations of Cabinet. Any document that reveals cabinet discussions are Holy… generally will be hard to force a Minister of Parliament to reveal something. Its private.

However, Spigelman CJ concluded that the claim to legal professional privilege must yield to the accountability principle.

Meagher JA: When public interest immunity is claimed in court proceedings, the court will assess the validity of such a claim.

Priestley JA: In the adversary situations where public interest immunity may attach to documents to prevent their production, there is no doubt that the decision whether the doctrine attaches or not is, finally, not for the Executive to make, but for a court, after the court has had the documents produced to it. The court may not require to see the documents itself. It may be satisfied by evidence about the nature of the documents or other

circumstances in the particular case that it should refuse production to the parties because of public interest immunity: but it undoubtedly has the power to compel production to itself even of cabinet documents, even though the power will in regard to certain cabinet documents be used with the highest degree of circumspection.

No legal right to absolute secrecy is given to any group of men and women in government.

3. The Role and Powers of the Executive p. 516

The powers of the executive are not unlimited, but are contained by the Constitution, especially s61. In Barton v Commonwealth (1974) 131 CLR 477, Mason J stated that the executive power “enables the Crown to undertake all executive action which is appropriate to the position of the Commonwealth under the Constitution and to the spheres of responsibility vested in it by the Constitution. It includes the prerogative powers of the Crown, that is, the powers accorded to the Crown by the ‘Common Law’

Sir John Comyns, A Digest of the Laws of England(4th ed by Samuel Rose, A Strahan, 1800) vol 6, sub voce “Praerogative”

Prerogative (in the 1800’s) was divided up into 4 main fields:1. The Kings Prerogative2. Prerogative as to Foreign Nations3. Prerogatives in respect of the King’s own subjects, in Time of War4. Prerogatives, which regard Time of Peace

Sir Frederick Pollock, Editorial Note(appended to V St Clair Mackenzie, “The Royal Prerogative in War-Time”

(1918) 34 Law Quaterly Review 152)

Prerogative is nothing more mysterious than the residue of the King’s undefined powers after striking out those which have been taken away by legislation or fallen into desuetude.

i.e., if a ‘power’ is already covered by legislation (common law) it can no longer be used by the executive Prerogative is subject to common law

Republic Advisory Committee, An Australian Republic: The Options(AGPS, The Report of the Republic Advisory Committee, 1993), vol 1

What are the prerogatives?The prerogative powers include powers over foreign affairs (such as making treaties, requesting extradition and appointing diplomatic representatives), the power to declare war and make peace, powers relating to the disposition and control of the armed forces, power to conduct inquiries and the ability to enter into contracts.HV Evatt divided the prerogatives of the Crown into three categories:

1. ‘Executive prerogatives’, under which the monarch had power to do various acts, e.g. execute treaties, declare war, make peace, coin money, incorporate bodies by royal charter, pardon offenders and confer honours

2. ‘Immunities and Preferences’, such as the priority of Crown debts over those owed to other creditors, immunity from the ordinary process of the courts and freedom from distress for rent

3. ‘Property Rights’ such as the entitlement of royal metals, royal fish, treasure trove, and the ownership of the foreshore, the sea bed and its subsoil.

The prerogative in Australia Proprietary prerogative: the crown has original or radical title to all land, people hold

land as tenants of crown. Executive prerogative: it is vested in the Queen, and exercisable on her behalf by the

GG

The prerogative powers depend on the common law, they are subject to modification by statute.1. A statutory regime may regulate the exercise of a prerogative power2. It may wholly supplant or extinguish the prerogative

Attorney-General v De Keyser’s Royal Hotel Ltd[1920] AC 508

The UK Government, during WWI, had requisitioned a hotel for use as the headquarters of the Royal Flying Corps. The requisition was explicitly made pursuant to regulations under the Defence of the Realm Consolidation Act 1914 (UK), which provided for compensation; but when the hotel owners claimed compensation, the government asserted that it had acted in the exercise of a prerogative power to take property without compensation.

The House of Lords held that the legislative scheme governed the matter, so that compensation was payable.

However, as to the relation between the legislative power and the prerogative power, no 2 Lords took quite the same view.

Ruddock v Vardalis (Tampa Case)(2001) 183 ALR 1

North J of the Federal Court held on 11 September 2001 that the “rescuees”, as he called them, had been detained without lawful authority (Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs (2001) 182 ALR 617).

He ordered that they be released onto the mainland of Australia – after which they would again have been detained, but this time with the opportunity to make a visa application under the Migration Act 1958 (Cth).

The first step in his reasoning involved a finding that the handling of the rescuees aboard the Tampa had amounted to detention, since the government had shown itself “committed to retaining control of the fate of the rescuees in all respects”

The second step in reasoning involved a rejection of the government’s argument that the expulsion of non-residents from Australian waters “is a valid exercise of prerogative powers”. The two arguments North J made about this were:

o It was doubtful whether the supposed prerogative had ever existedo (Even if it did exist) Whatever the scope of the prerogative in this respect, it

had now been wholly supplanted by the statutory scheme of the Migration Act 1958 (Cth)

Went to a full court, being overturned by a 2:1 decision.French J: The executive power can be abrogated, modified or regulated by laws of the Commonwealth. Its common law ancestry, the royal prerogative, was similarly subject to abrogation, modification or regulation by statute. The executive powers of the Cth under s61 cannot be treated as a species of the royal

prerogative While the executive power may derive some of its content by reference to the royal

prerogative, it is a power conferred as part of a negotiated government reflected in Chapters I, II and III of the Constitution and, as to legislative powers, between matter that flow directly from the Constitution but also to the laws of the Commonwealth made under it.

There is no place then for any doctrine that a law made on a particular subject matter is presumed to displace or regulate the operation of the executive power in respect of that subject matter.

The power to determine who may come into Australia is so central to its sovereignty that it is not to be supposed that the government of the nation would lack under the power conferred upon it directly by the constitution, the ability to prevent people not part of the Australia community, from entering Clear prerogative power to regulate who comes into Australia

Migration Act does not impliedly abrogate the prerogative it exists notwithstanding this. Migration Act confers power to Commonwealth government and control entry, it does not take power away and abrogate the power to prevent entry

He held that the rescuees had not in fact been detained, and that the executive power of the commonwealth extended to the expulsion of the rescuees and to their detention for that purpose

Black CJ dissented, holding that the power to expel people entering Australia illegally derives only from legislation, and not from powers otherwise exercisable by the executive

Black CJ: There is also no doubt that, as a general principle of law, there is no executive authority, apart from that conferred by statute, to subject anyone in Australia, citizen or non-citizen, to detention. In Chu Kheng Lim [176 CLR at 19], Brennan, Deane and Dawson JJ said:Since the common law knows neither lettre de cachet nor other executive warrant authorizing arbitrary arrest or detention, any officer of the Commonwealth executive who purports to authorize or enforce the detention in custody of such an alien without judicial mandate will be acting lawfully only to the extent that his or her conduct is justified by valid statutory provision… There is an argument that a long period of disuse extinguishes the prerogative,

because it would be illusory to say that parliament has, in such circumstances, made a choice to leave the prerogative in the Crown’s hands.

Review of the Migration Act shows that it provides for a very comprehensive regime relating to – in the words of the long title – “the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens.

The prospect of a successful High Court appeal from this decision was seemingly foreclosed by the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth) this statute retrospectively authorised the detention of the rescuees and the other acts done by the government.

Public - Week 11

The Executive II

Required readings 113-119 (section 4(d)), 534-545 (section 5)

4. Diceyan constitutional Theory

(d) Conventions

A V Dicey, Introduction to the Study of Law of the Constitution(Macmillan, 1st ed 1885, 10th ed 1999)

LAWS rules that must be followed enforced by the courts CONVENTIONS regulatory in nature not law not enforced by the courts

may influence courts Must be followed by lay people – fundamental political conventions are not Main purpose, helps the Constitution work – “GREASE” that makes a finely tuned machine run, nothing more, nothing less in contra distribution Constitutions are not Judge made rules. They are precedents from the Governments NOT from the courts To make a convention enforceable by law, it needs to be enacted in a statute

It is assumed that an act of parliament would be in line with the conventions E.g. it is a convention that Government is set by a Majority in the Lower House

“Laws” are the strictest of rules as they are enforceable by the courtsThe other set of rules, eg conventions, understandings, habits etc are not in reality laws at all since they are not enforceable by the courts.Dicey terms this part of constitutional law “conventions of the constitution”, or constitutional morality.

CONSTITUTIONAL LAW consists of two elements“Law of the constitution”, is a body of undoubted law“Conventions of the constitution” consists of maxims or practices which, though they regulate the ordinary conduct of the Crown, of Ministers and of other persons under the constitution, are not in strictness laws at all.Are conventions laws or not?

What is the constitutional basis for this? Conventions: understandings, habits, practices or morality regulating the conduct

of sovereign actors (Dicey) Usually unwritten, though may be documented (Re Resolution case) Ensure constitutional legal framework operates according to prevailing values or

principles (Re Resolution case); “democratic principle”: must exercise power

according to wishes of electorate Characteristics (Hughes): (1) make the law workable; (2) appear, change,

disappear, reflect new circumstances; (3) uncertain in content (and criteria for identifying them are also uncertain)

Practices became conventions when consistent with main constitutional principles: democracy, parliament, monarchy, Cabinet system (Jennings)

Re Resolution to Amend the Constitution[1981] 1 SCR 753; (1981) 125 DLR (3d) 1

The legal status of conventions was considered by the Supreme court of Canada in this case

In 1981, both Houses of the Canadian Parliament adopted a resolution requesting that the British Parliament pass legislation amending the Canadian Constitution, then titled the British North America Act 1867 (Imp), which was an Act of the British Parliament to be done wholly in Canada (instead of going 2 UK)

This was part of a successful federal plan to “Patriate” the Constitution and to obtain a domestic amending procedure and the Canadian Charted of Rights and Freedoms.

The governments of several of the Canadian provinces opposed the resolution. Was there a convention? By 6:3, the Supreme court held that the constitutional

convention existed that the Parliament would not request amendments to the Canadian Constitution affecting the powers, rights or privileges of the provinces without first obtaining a “substantial degree of provincial consent”

Did the convention have Legal Status? However, the Court also held, this time 7:2, that this convention did not impose a legal requirement and accordingly that this degree of consent was not constitutionally required.

So, there was a convention in place, but it was not constitutionally required.

Laskin CJ, Estey and McIntyre JJ agreed that “while a breach of the legal rules, whether of statutory or common law nature, has a legal consequence in that it will be restrained by the courts, no such sanction exists for breach or non-observance of the conventional rules””

Examples of conventions in the ConstitutionPrime Minister’s Office is not mentioneds61 provides that the Commonwealth’s executive power “ is exercisable by the GG as the Queen’s representative”s64 that ministers may be appointed by the GGs68 that the GG is the commander in chief of the Commonwealth’s military forces.However, convention based upon the doctrine of responsible government means that the Governor General’s powers are largely illusoryBy convention, the GG will, except in very limited circumstances, exercise his or her powers on the advice of the parliamentary leader of majority party in the House of Reps

C Hughes, “Conventions: Dicey Revisited”

in P Weller and D Jaensch (eds), Responsible Government in Australia(Drummond Publishing, 1980)

Constitutional conventions provide the “flesh which clothes the dry bones of the law; they make a legal constitution work; they keep it in touch with the growth of ideas”A constitution does not work itself; it has to be worked by men. Breach of convention may lead to undermine the legal system. Political threat for government to obey the convention. (Jennings 1943: 80-81)They are rules of political conduct or binding usages, most of which are capable of being varied or simply disappearing as political conditions and ideas change.Constitutional conventions are primary rules of obligation unaccompanied by an adequate apparatus of secondary rules of recognition, interpretation (or adjudication) and change.Hard to agree upon, and when agreed upon, hard to enforce.Conventions are clear cut, some flexible and some are so elusive that one is left wondering whether the ‘convention’ is an ethereal will-o’-the-wisp (DeSmith 1971: 37,59)The breach of convention may basically run into conflict of law of the land and threat to break the law. (Dicey)The breach of it may destroy respect of constitution and undermining the law an dlegal system. (Marshall and Moodie)

Constitutions expand and render workable the letter of the lawThey appear, change and disappear, reflecting new circumstancesThey are often uncertain in content

A lot of commentary on the constitution is from Britain, which does not have a written constitution, and therefore is more reliant on the conventions of the constitution. However, on the other hand, the richer constitutional history of the British experience and essential source of ideas for the Australian constitution.

Are conventions legally enforceable?

No: conventions are principles and rules of responsible government, developed through British political custom and precedent and exported to the colonies (Re Resolution case); made by political institutions not judges

No legal sanctions for breaches, only political remedies; still unconstitutional Conventions cannot be enforced by courts because they conflict with legal rules –

conventions limit the exercise of wide legal powers, discretions, rights This conflict prevents conventions crystallising as laws, unless by statute But courts can notice & consider them, particularly in statutory interpretation

(parliament presumed not to breach conventions: Copyright Owners case)

If conventions are not enforceable in the courts, why are they obeyed? Dicey: argued courts of law can compel obedience, in addition to public opinion

(formerly the dread of impeachment); and a breach of a convention is likely to lead to a direct breach of law

But this view was rejected by Jennings: constitutional law is not enforceable against the government; protection lies in the democratic system

But Keith replied that law is sometimes enforceable against the government… Intermediary position: question is whether an act is likely to destroy or sustain

respect for the distribution of authority (Marshall & Moodie) (eg limited monarchical, representative, responsible, efficient government)

5. The Role and Powers of the GG Pg.534

s2 of the Constitution provides that the GG is the Queen’s representative in the Commonwealth and that he or she “ shall have and may exercise in the Commonwealth during the Queen’s pleasure, but subject to this Constitution, such powers and functions of the Queens as Her Majesty may be pleased to assign to him”

G Sawer, :The GG of the Commonwealth of Australia”Current Affairs Bulletin, Vol 52, No 10 (March 1976), 20

The role of the GG includes, and in strict constitutional theory may be confined to, the exercise of powers conferred upon him or her by the Constitution

GG gets power from 2 sources:1 the royal documents (Letters Patent, Instructions under the Royal Sign Manual, Assignments of Power and Commissions) by which the office is created, some of the powers of the holder set out, instructions concerning the exercise of powers given, and particular GG appointed2 the constitution (which seems to be more relevant nowadays)

Republic Advisory Committee, An Australian Republic: The Options(AGPS, The Report of the Republic Advisory Committee, 1993), vol 1

The Office of the GG

The GG May

s5 dissolve, prorogue and summon Parliaments32 issue writs for a general election of the House of Repss57 Dissolve both houses of parliaments58 grant or withhold royal assent bills passed by the Parliament, and, if he or she wishes, return a bill to the Parliament with proposed amendmentss60 reserve bills for the Queen to consider whether to grant royal assents61 exercise the executive power of the commonwealth.s64 appoint Ministers of States68 act as ‘commander-in-chief’ of the armed forces

3 main roles of the GG

1. Those ‘governmental’ functions in relation to which the GG is obliged by statue or convention to act on the advice of the Government of the day (such as the appointment of High Court Judges under s72 of the Constitution

2. Functions that are conventional (such as dismissal of a Government which ignores a vote of no-confidence in the House of Reps) these powers are described as ‘reserve powers’

3. There are the ceremonial and representative functions which may involve the GG opening new buildings etc

Republic Advisory Committee, An Australian Republic: The Options(AGPS, The Report of the Republic Advisory Committee, 1993), vol 2

For present purposes the most important convention is that (subject to limited exceptions in relation to the ‘reserve powers’) the GG acts only on the advice of responsible MinistersThe GG is entitled to be kept informed of the Ministers actions and is also entitled to express an opinion on the activities or on the courses of action being proposed; but, if the Ministers persist in their ‘advice’, the GG is bound by convention to follow it.As a result, as long as Governmental advice is Ministerial, Ministers are therefore responsible for those decisions and the position of the head of state is kept relatively free from political controversy.

EXCEPTIONS - THE RESERVE POWERS

There are only 4 powers which are generally accepted as reserve powers:1. To appoint the PM2. To dismiss the PM3. To refuse to dissolve parliament4. In very limited circumstances, to force a dissolution of parliament.

Apart from questions arising from the provision for dissolving both houses in s57 of the Constitution, the reserve powers of the GG are essentially the same as those of State Governors and those of the monarch in Britain.

Dismissing the PM

“A recourse of a last resort, an ultimate weapon which is liable to destroy its userRarely exercised, no British PM has been dismissed by a Monarch since 1834In [Adegbenro n Akintola [1963] AC 614 at 631], the Privy Council noted that the dismissal of a British PM was “not treated as being within the scope of practical politics”2 groups of situations in which, it seems to be accepted, the GG may dismiss a PM: where the PM has been defeated in the lower House on a vote which is regarded as a

vote of no-confidence where the government is persisting in illegal or unconstitutional conduct

there has been considerable debate in Australia as to whether the GG may dismiss a PM who is unable to secure the passage of supply bills through the upper House

No-confidence motionWhere the lower House passes a simple motion of no confidence in the PM, the convention is that he or she must either resign, thereby terminating the appointments of all other Ministers, OR advise the GG to dissolve Parliament (the PM is allowed a reasonable period to attempt to reverse the vote, esp if members of his party were absent during the vote) The GG can dismiss the incumbent should he fail to take one of these courses of action. However, even here, it is stressed that the GG should only dismiss the PM if all attempts to induce the PM to do his or her duty have failed.

IllegalityA government can be dismissed because it is acting in breach of a fundamental constitutional principle.Professor Winterton argues that the power of dismissal may only be exercised where:a) It is clear that the government has ‘persisted in breaching a fundamental constitutional provision”b) The government has ignored calls from the GG to desist from this conductc) The contravention is not ‘justiciable’ - that is, it cannot be brought before the courts.

The separation of powersMr Lang’s dismissal as the Labor Premier of NSW was criticised because, “although the dismissal took place in a complicated financial and political crisis, the only ground cited by the Governor for his action was the alleged illegality of the circular by reason of its conflict with the Commonwealth regulation. On this basis, the weight of opinion is that the Governor’s decision was improper because the questions of illegality could have been dealt with by the courts.

PM cannot obtain supplyA refusal by the lower house to pass a supply bill would be regarded as an expression of no confidence in the Government, and would generally lead to resignation or dismissal on that bases. Different questions arise when supply is refused by the upper House (if, as is the case in Australia at the commonwealth level and in most states, the upper house has power to refuse supply)

The second and best known exercise of the reserve of power of dismissal in Australia was the dismissal of Gough Whitlam’s Labor Government by the GG Sir John Kerr in 1975 on the ground that it had not been able to obtain supply (the Senate having repeatedly deferred consideration of the Appropriation Bills) and was refusing to resign or advise a double dissolution. Whitlam requested GG for half Senate election, but GG did not do so as not necessarily guarantee to solve the problem. (p537)

Argument for Kerr: Government at the Federal level in Australia requires, as Sir Garfield Barwick put it, the ‘confidence’ of both houses on supply in the sense that the Government must be able to secure the passage of supply bills through both houses. The Government was therefore under an obligation to resign. On this view, action by the GG was necessary to resolve a deadlock which was threatening the economic fabric of the nation, and the GG acted properly: he removed a government which was acting improperly and appointed one which would obtain funds for the administration of the country and would let the electorate resolve the deadlock between the Houses by advising a dissolution

Argument against Kerr: On another view it was wrong of Kerr to dismiss a government which continued to enjoy the confidence of the House of Reps, the confidence of the Senate never having been regarded under principles of responsible government as a requirement for remaining in office.Had the Government attempted to stay in office once supply had run out, and in doing so made payments from the Consolidate Revenue Fund without the authority of a parliamentary appropriation, that would have involved a breach of a fundamental constitutional principle (and the express words of s83) and might well have justified dismissal; BUT that point had not been reached and, arguably, until that point was reached there was no sound basis for dismissing the Gov. Kerr acted when there were other conceivable options available to the GG.Finally, he did not warn the government of his intentions. The government may have acted differently had they known that Kerr was going to dismiss them for a double dissolution.

CARETAKER GOVERNMENT

By Convention: No Contentious Acts – No New Policies – No Appointments

Western Australia v Commonwealth (First Territory Senators Case)(1975) 134 CLR 201

The question of whether s57 of the Constitution grants a reserve power to the GG was left open in this case

Barwick J: It is unnecessary for the aspect of the matter with which I am dealing to decide whether the power of double dissolution is only exercisable by the GG upon the advice of a Minister or may be exercised as a discretion of his own.

What happened on 11 November 1975 was that the GG, Sir John Kerr, dismissed the Whitlam Government by purportedly exercising a reserve power. The incoming caretaker PM, JM Fraser, was then granted a double dissolution under s57

LM Barlin (ed), House of Representatives Practice(AGPS, 3rd ed 1997)

Provides a history of the Dismissal and Double Dissolution election in 1975

Statement by the GG, 11 November 1975in JA Pettifer (ed), House of Representatives Practice (AGPS, 1st ed 1981)

The actual statement of the GG for the Dismissal and SS, defending his decision

Sir Garfield Barwick, Letter of Advice to the GGin JA Pettifer (ed), House of Representative Practice (AGPS, 1st ed 1981)

Barwick GJ offers legal advice as the GG’s “constitutional rights and duties in relation to an existing situation which, of its nature, was unlikely to come before court.

1. The Constitution of Australia is a federal constitution which embodies the principle of Ministerial responsibility.2. The parliament consists of two houses, the House of Reps and the Senate, each popularly elected, and each with the same legislative power, with the one exception that the senate may not originate nor amend a money bill.Two relevant constitutional consequences flow from this structure of the Parliament. First, the Senate has constitutional power to refuse to pass a money bill; it has power to refuse supply to the Government of the day. Secondly, a PM who cannot ensure supply to the Crown, including funds for carrying on the ordinary services of Government must either advise a general election (of a kind which the constitutional situation may then allow) or resign.If, being unable to secure supply, he refuses to take either course, your excellency (the GG) has constitutional authority to withdraw his Commission as PM.

Accordingly, my opinion is that, if your Excellency is satisfied in the current situation that the present Government is unable to secure supply, the course upon which Your Excellency has determined is consistent with your constitutional authority and duty.

It has been argued that the events of 11 November 1975 had important implications for the practical politics, as well as the constitutional theory, of responsible government in Australia.

C Hughes, “Conventions: Dicey Revisited”in P Weller and D Jaensch (eds), Responsible Government in Australia

(Drummond Publishing, 1980)

The present writers opinion is that although the GG’s final action in dismissing the PM and installing a new PM who could secure supply and would advise an election was perfectly constitutional, the undermining of the foundation of that part of the constitutional system which established the principle of responsible government was a more serious matter than the GG appears to have recognised then, or subsequently

Now that the Senate has been recognised as a co-custodian if the power to withhold supply and thereby force a government to the people, two consequences follow:

1. Where previously the withdrawal of confidence from a government meant that, unless a new majority could be found to support a new government (which was fairly unlikely after the party system hardened), there would be dissolution of the house which had withdrawn its confidence and an expression of the national will, now if it is the Senate which withdraws its confidence it may not be possible to require the house to go to the people - though the House of Reps which still has confidence in the government will have to go.

Moreover, even if the constitutional requirements for a double dissolution are to hand, the electoral may return the same majority in both Houses, as has happened three times before, but it may merely re-elect the Senate and the House of Reps with divided control as happened in 1974, and it is not inconceivable that it could reverse the majorities and put the wrathful deposed government in control of the Senate.Although a double dissolution election and subsequent joint sitting should dispose of the legislation which triggered the machinery off, there is no certainty that it will cure the disease of which disagreement over certain legislation is only a symptom.

Further, as has been frequently remarked, it was only through the most extraordinary good luck that the bits fell into place on 11 November 1975.

Labor allowed Fraser to secure supply in the lower house

There was legislation available to found a double dissolution, and thereby give an appearance of even-handedness by the despatch of all parliamentarians to their masters for new instructions

PUBLIC LAW - Week 12Required Readings – 603-606 (section 1), 612-617 (section 2 (from halfway down 612)),

619-623 (section 4), 633-642 (section 6(b))

The Separation of Judicial Power

1. The Separation of Powers p. 603

Baron de Montesqueiu, The Spirit of the Laws(transl T Nugent, Hafner Press, 1949)

In every government there are three sorts of power: the legislative (enacting the law), the executive in respect to things dependent on the law of nations (international relations), and the executive in regard to matters that depend on the civil law (enforcing law). When the legislative and executive powers are united in the same person, of in the

same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again, there is no liberty when the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined with executive power, the judge might behave with violence and oppression.

O Hood Phillips and P Jackson, Constitutional and Administrative Law(Sweet and Maxwell, 7th ed 1987)

We may attempt a general description of the various governmental functions in the modern state on the following lines:

I) The legislative function making of new law and the alteration or repeal of existing law. Legislation may be issued by a democratic assembly wholly or partly elected by people.

II) The executive or administrative function the carrying out of government according to law, including the framing of policy and the choice of the manner in which the law may be made to render that policy possible

III) The Judicial Function consists in the interpretation and the application by rule or discretion to the facts of a particular case

The categories are inclined to be blurred the Constitution requires the executive to be members of the legislative

Complete separation of powers would bring government to a standstill What the doctrine must be taken to advocate is the prevention of tyranny by the

conferment of too much power on any one person or body, and the check of one power by another.

G Carney, “Separation of Powers in the Westminster System”

Legislative Studies (Vol 8, No 2, Autumn 1994), 59

There is a complete separation as regards powers, institutions and personnel. Yet, there seems to be no current constitutional system which adopts this complete separation of powers. The strict doctrine is only a theory. While permitting the overlaps to exist, a system of checks and balances has developed (and needs to continue to develop)

The US Constitution of 1787 incorporates the doctrine of separation of powers with a system of checks and balances as Table 1 illustrates:

Table 1

Institution Power Personnel ControlCongress Power to make laws Elected

representatives Presidential veto

(right to reject) Supreme Court

review of validityPresident Executive power Elected. Cannot be

a member of Congress

Senate ratification necessary for cabinet and diplomatic appointments and treaties

Judicial review Impeachment by

removal by CongressSupreme Court Judicial power

including review of legislative and executive activity

Appointed by President with Senate ratification

Impeachment by Congress

The framers of the Australian constitution were influenced by the American version of the separation of power. It also influenced by the Westminster system and the doctrine of responsible government. S64 provides that federal ministers (members of the executive) must sit in the parliament.

The Westminster System effects only a partial separation of powers:

Institution Power Personnel ControlParliament Make Laws Representatives elected

to lower house elected or appointed to upper house

(Royal Assent) Supervision and/or expulsion by the House

Executive Council (Cabinet)

Executive power Ministers appointed by the Crown with the support of the lower House. Must be Members of the parliament.

Maintain support of the lower House.Parliamentary and Judicial Review

The Courts Judicial Power Judges appointed by the Executive

Superior Court justices removal by the Crown on an address from both Houses on certain grounds.

2. The Separation of Federal Judicial Power from p. 612

Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan

(1931) 46 CLR 73

Dixon J had suggested that by virtue of the separation of powers the Parliament was restrained “both from reposing any power essentially judicial in any other organ or body, and from reposing any other than that judicial power in such tribunals”. That dictum embodied two principles1. That the judicial power of the Commonwealth could not be vested in any tribunal

other than “a CH III court” (ie, a court established or authorized by CH III of the Constitution) court needs to be set-up according to ChIII of Constitution

2. That a Ch III court could not be invested with anything other than judicial power (except for those ancillary powers which were strictly incidental to its functioning as a court) Court cannot be given non-judicial powers separation of powers.

The combined effect of these propositions was that judicial and non-judicial power could not be mixed up in the same tribunal

R v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ Case)(1956) 94 CLR 254

Metal Trades Employers’ Association sought to enforce a no-strike clause in an award.

Arbitration Court had made an order requiring the union to comply with the award (non-judicial power), and a further order fining the union for contempt of court by reason of disobedience to the earlier order (judicial power).

Arbitration court can only exercise judicial power.(s71) In the High Court, the union obtained an order nisi (unless) from McTiernan J

calling upon the judges of the Arbitration Court to show cause why a writ of prohibition should not issue, on the ground that the vesting of judicial power in a body also exercising non-judicial power was unconstitutional.

Order nisi provisional decision this is what, in my opinion, should be the remedy, but we’ll sit as a whole bench and give a proper decision later.

Stare Decisis hierarchy of binding decisions HC > Fed > State Sup > District 4:3 with Williams, Webb and Taylor JJ dissenting, the order nisi was made absolute Dixon CJ, McTiernan, Fullagar and Kitto JJ: “But the existence in the Constitution of Chap III and the nature of the provisions it

contains make it clear that no resort can be made to judicial power except under or in conformity with ss71-80”

“Indeed to study Chap III is to see at once that it is an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested.”

“A number of considerations exist which point very definitely to the conclusion that the Constitution does not allow the use of courts established by or under Chap III for the discharge of functions which are not in themselves part of the judicial power and are not auxiliary or incidental thereto”

“The basal reason why such a combination is constitutionally inadmissible is that Chap III does not allow powers which are foreign to the judicial power to be attached to the courts or created by or under that chapter for the exercise of the judicial power of the Commonwealth”

Unconstitutional exercising both judicial and arbitral powers (the tribunal)

Attorney-General of the Commonwealth of Australia v The Queen (appeal of the boilermaker’s case to the Privy council)

[1957] AC 288

Lord Simonds (for their Lordships): Is it permissible under the Constitution of the Commonwealth of Australia for the Parliament to enact that upon one body of persons, call it tribunal or court, arbitral functions and judicial functions shall be together conferred?

s71 and the succeeding sections, while affirmatively prescribing in what courts the judicial power of the Commonwealth may be vested and the limits of their jurisdiction, negative the possibility of vesting such power in other courts or

extending their jurisdiction beyond these limits. It is to Chapter III alone that the Parliament must have recourse if it wishes to legislate in regard to the judicial power as there is no express prohibition of other legislation in this field, it is open to the Parliament to turn from Chapter III to some other source of power

there could not well be a clearer case for the application of the maxim “express mention of one mean exclusion of other”

Their lordships do not doubt that the decision of the High Court is right and that there is nothing in Chapter III, to which alone recourse can be had, which justifies such a union.

As a result of the decision, division took place “the judgment in the Privy Council was given on 19 March 1957, but amendments to the Conciliation and Arbitration Act (assented to on 30 June 1956) had already divided the former Court of Conciliation and Arbitration into a Conciliation and Arbitration Commission (judicial power) and a Commonwealth Industrial Court (non-judicial power)

As a result of this case Court of Conciliation and Arbitration had been invalidly constituted ever since its restructuring in 1926 (30 years earlier)

R v Joske; Ex parte Australian Building Construction Employees & Builders Labourers’ Federation

(1974) 130 CLR 87

Barwick CJ: The principal conclusion of the Boilermakers’ Case was unnecessary,… , for the effective working of the Australian Constitution or for the maintenance of the separation of the judicial power of the Commonwealth or for the protection off the independence of courts exercising that power.“Decision leads to excessive subtlety and technicality in the operation of the Constitution without, in my opinion, any compensating benefit”

R v Joske; Ex parte Shop Distributive & Allied Employs Association

(1976) 135 CLR 194

On a challenge to the supervisory powers of the Commonwealth Industrial Court over the internal affairs of trade unions, the prosecutors in the High Court prohibition proceedings argued that the relevant sections of the Conciliation and Arbitration Act had sought to confer non-judicial power on the Industrial Court in contravention of the Boilermakers’ Case.

In reply, the defendants argued that Boilermakers’ was wrongly decided The case was disposed of on the ground that the relevant sections did not, after all,

confer non-judicial power didn’t need to resolve Boilermakers’

4. Defining Judicial Power p. 619

Basically “resolving disputes” according to the legislature.

Huddart, Parker & Co Pty Ltd v Moorehead(1909) 8 CLR 330

Griffith CJ: I am of the opinion that the words “judicial power” as used in sec 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action. Key problem with defining judicial power – while it is easy to define what they can

do, it is hard to define exactly what they are The imprecise nature of this definition has meant that tribunals whose functions might

seem to overlap with “judicial powers” have nevertheless been held to be validly constituted if the particular grant of power is appropriately tailored to the legislative purpose.

R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd(1970) 123 CLR 361

In this decision, it was held that the functions of the Trade Practices Tribunal, as defined by the Trade Practices Act 1965 (Cth), did not involve judicial power and were thus validly conferred.

Part IV of the Act purported to confer upon the Tribunal powers to hear proceedings instituted by the Commissioner of Trade Practices and to make determinations and orders in respect of those proceedings.

It was held, with Menzies J dissenting, that the Tribunal did not exercise judicial power.

Kitto J: “it has not been found possibly to frame an exhaustive definition of judicial power uncertainties generally arise from the fact that there is a “borderland in which judicial and administrative functions over lap” (Labour Relns Board…)”

There are no traditional concepts to be applied as there were in R v Davidson, and two considerations, one negative and the other positive, appear to me when taken together require the conclusion that the powers entrusted to the Tribunal are essentially non-judicial.

The powers must, of course, be performed in a judicial manner, that is to say with judicial fairness and detachment, but the same is true of many administrative powers.

Close examination of the relevant provisions of the Act shows, I think, that on one hand no exercise of any of the Tribunal’s powers is an adjudication, and that on the other hand the result achieved by an exercise of any of the powers is a result foreign to the nature of judicial power.

Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be declined as between those persons or classes of persons

The definition of judicial power is often considered as vague and thus no precise definition for judicial power.

AP Blackshield, “The Law”In Power in Australia: Directions of Change

(Centre for Continuing Education, Australian National University, 1981)

“Judicial Power” is controlled power, in the sense that its exercise must be based on authoritative legal materials; the rules, principles, conceptions and standards applied must be drawn from existing law.

In Tasmanian Breweries Case held that “contrary to the public interest” was also not a sufficiently justiciable standard” Windeyer J: The public interest is a concept which attracts indefinite considerations of policy that are more appropriate to law-making than to adjudication according to existing law

On the other hand, it is sometimes argued that the formulation of legislative guidelines so tightly defined, or so automatic in their prescription of consequence, as to leave the court no leeway for choice at all in its application of the predetermined law, is also incompatible with the idea of “judicial power” There should be some level of discretion eg Mandatory Sentencing undermines Judicial power as it provides the judge with no discretion in sentencing

What appears to be meant by the insistence on the need to apply “existing law” is that the application of the authoritative legal materials must leave the judges some room for independent interpretive judgment, (but not tom much)

In the end all that can be said is that, in order to be “judicial”, power must SOMEHOW be circumscribed and controlled, whether by law or the facts (or both).

6. Exceptions to the Boilermakers’ Principle(b) Persona Designata (or Personal Capacity) Rule p. 633

Exception to the Boilermaker’s case: The commonwealth legislation assigns non-judicial function to a judge in their personal capacity, not in their position as a judge. It has been held that although it is impermissible to supplement the judicial functions

of a federal judge by adding non-judicial functions, a person who happens to be a federal judge may validly be appointed or assigned to the individual person

Such functions may be conferred even if federal judicial tenure is the criterion by which that person was selected.

The argument is well illustrated by the holding in the Federal Court that Davies J, of THAT court, was validly appointed also as a Deputy President of the Administrative Appeals Tribunal

Drake v Minister for Immigration & Ethnic Affairs(1979) 46 FLR 409

Bowen CJ and Deane J: The general argument that it was constitutionally impermissible for Davies J to be appointed a Deputy President of the Tribunal confuses the appointment of a person, who has the qualification of being a judge of a court created by the Parliament, to perform an administrative function with the purported investing of a court under Ch III of the Constitution with functions which are properly administrative in their nature. There is nothing in the Constitution which precludes a justice of the High Court or a

judge of this or any court created by the Parliament under Ch III of the Constitution from, in his personal capacity, being appointed to an office involving the performance of administrative or executive functions including functions which are quasi-judicial in their nature.

Such an appointment does not involve any impermissible attempt to confer upon a Ch III court functions which are antithetical to the exercise of judicial power

Hilton v Wells(1985) 157 CLR 57

The case arose from a Federal Police investigation into allegations of bribery and corruption in procuring the early release of prisoners from New South Wales prisons. The evidence of the alleged conspiracy was in part obtained by telephone tapping pursuant to warrants issued by judges of the Federal Court under s20 of the Telecommunications (Interception) Act 1979 (Cth) .

S20 provided that “upon application being made to a Judge… the Judge may, by warrant under his hand… authorize [approved persons]… to intercept… [telephone] communications”

S18 provided the word “Judge” was defined to mean “a Judge of the Federal Court of Australia” or of the Australian Capital Territory Supreme Court or, subject to intergovernmental arrangements, of the Supreme Court of a State or the NT.

One of the alleged conspirators challenged the admissibility of the phone tapping evidence, in part by arguing that s20 of the Act was unconstitutional

The Challenge failed.

ISSUE: whether act conferred powers on the fed court which would make it invalid OR whether it conferred non-judicial powers on the judges personally valid3:2 majority ruled that it was conferred persona designata valid

Gibbs CJ, Wilson and Dawson JJ: The power conferred by s20 is not ancillary or incidental to any judicial function

It clearly appears from these authorities that where a power, judicial or non-judicial, is conferred by statute upon a court or a judge, it is not necessarily conferred on the court or the judge as such – the question is one of construction.

Where the power is conferred on a court, there will ordinarily be a strong presumption that the court as such is intended.

Where the power is conferred on a judge, rather than on a court, it will be a question whether the distinction was deliberate, and whether the reference to “judge” rather than to “court” indicates that the power was intended to be invested in the judge as an individual (personal capacity) who, because he is a judge, possesses the necessary qualifications to exercise it.

The nature of the power conferred is of importance in deciding whether the judge on whom it is conferred is intended to exercise it in his capacity as a judge or as a designated person

If the power is judicial, it is likely that it is intended to be exercisable by the judge by virtue of that character; if it is purely administrative, and not incidental to the exercise of judicial power, it is likely that it is intended to be exercised by the judge as a designated person

Mason and Deane JJ: (dissenting) The function of issuing warrants is conferred upon all the judges of the Federal Court indiscriminately. The metaphysical notion of a judge acting in his character or capacity as a judge, at

large, so to speak, detached from the court which he is a member, cannot be supported as a matter of legal theory

There needs to be a clear expression that the functions are to be exercised by [the federal court judge] in his personal capacity, detached from the court of which he is a member

Another reason for adhering to a strict application of settled principle is that when a function is entrusted to a judge by reference to his judicial office the legislators and the community are entitled to expect that he will perform the function in that capacity

To the intelligent observer, unversed in what Dixon J accurately described – and emphatically rejected – as “distinctions without differences” (meyer [58 CLR at 97]), it would come as a surprise to learn that a judge, who is appointed to carry out a function by reference to his judicial office and who carries it out in his court with the assistance of its staff, services and facilities, is not acting as a judge at all, but as a private individual

Such an observer might well think, with some degree of justification, that it is all an elaborate charade eg common sense suggests that he is a judge

We therefore conclude that the function of issuing warrants was imposed upon the judges of the Federal Court not as designated individuals but as a function to be performed by them as judges of the Court in their capacity as such.

No real distinction between acting as a judge on court and in individual capacity

Jones v Commonwealth(1987) 71 ALR 497

Court was asked to reconsider Hilton v Wells but only Gaudron J dissentedGaudron J: Because the question of compatibility of the functions purportedly conferred by s20 of the Act with the discharge of the duties of judicial functions is closely related to the doctrine enunciated in the Boilermakers’ case which only arises in the event that s20 confers powers on the Federal Court, and not on the judges thereof as persona designata, as was held by the majority in Hilton v Wells, I would grant leave to the plaintiff to reargue that decision.

Following the decision in Hilton v Wells, the Telecommunications (Interception) Act 1979 (Cth) was amended in 1987 to make it clear that a judge issuing a warrant for telephone tapping was doing so as a persona designata “Judge” became “eligible judge See page 637

Grollo v Palmer(1995) 184 CLR 348

The validity of these new provisions was considered by the HC in this case Unanimously held that the issuing or authorising of warrants to tap telephones is not a

judicial function and acknowledged that the 1987 amendments had made clear the Parliament’s intention that the function be entrusted to judges as personae designata rather than as members of a Court

However, the question now considered more anxiously was whether such a function, performed as part of the criminal investigation process, was compatible with judicial office even for persona designata

INCOMPATIBILITY DECISION

Brennan CJ, Deane, Dawson and Toohey JJ: the distinction which the conception of persona designata draws between judges and the courts to which they are appointed is said to be too fine and specious to be supported The conditions thus expressed on the power to confer non-judicial functions on

judges as designate persons are twofold:1. First, no non-judicial function that is not incidental to a judicial function can be

conferred without the judges consent2. Second, no function can be conferred that is incompatible either with the

judge’s performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power (“the incompatibility condition)

Incompatibility might consist (1) in so permanent and complete a commitment to the performance of non-judicial

functions by a judge that the further performance of substantial judicial functions by that judge is not practicable

(2) Or that the capacity of the judge to perform his or her judicial function with integrity is compromised or impaired

(3) Or that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished

The applicant submits that judicial integrity is compromised (2) Adoption of appropriate practice (like US) A judge who has issued a warrant in a

particular matter can ensure that he or she does not sit on any case to which the warrant relates

Basically that warrants are used in serious crime someone knowledgeable is required to issue them Federal Court judge is ok

Only McHugh J held that to assign to “eligible Judges” the function of issuing warrants for telephone tapping was incompatible with their judicial office

McHugh J: The public perception must be diminished when the judges of the Federal Court are involved in secret, ex parte administrative procedures, forming part of the criminal investigative process, that are carried out as a routine part of their daily work. The sense of a public duty that is characteristic of those judges has resulted in 85% of

the judges of the Federal Court becoming “eligible Judges” to perform the non-judicial work that the national Parliament has inferentially asked them to perform.

PUBLIC LAW - Week 13Required Readings – 1088-1100 (section 1)

Express Freedoms

1. Human Rights and the Constitution p. 1088

(a) Human Righhts

Notions of human rights are affected by a person’s social, economic and cultural background perceptions of human rights will differ between the different groups (ie men vs women, rich v poor [poverty line]) context is important

Gerhardy v Brown (1985) 159 CLR 70 Brennan J: “an attempt to define human rights and fundamental freedoms exhaustively is bound to fail, for the respective religious, cultural and political systems of the world would attribute differing contents to the notions of freedom and dignity and would perceive at least some differences in the rights and freedoms that are conducive to their attainment”

human rights have a western paradigm said that Asian Values Collective well-being rather than individual rights more important in the Malaysian context

Some opponents argue that sometimes that it is obvious that individual rights are being neglected in these countries regardless of their “collective well-being” policy

POSTIVE RIGHTS: Rights to do things government has to ensure that there is a structure which allows people to exercise those positive rightsNEGATIVE RIGHTS: Rights to have things not done to you

L Henkin, The Age of Rights(Columbia University Press, 1990)

Human rights are derived from accepted principles, or are required by accepted ends – societal ends such as peace and justice; individual ends such as human dignity, happiness and fulfillment

They are those benefits deemed essential for individual well-being, dignity and fulfillment and that reflect a common sense of justice, fairness and decency.

Human rights include not only NEGATIVE “immunity claims” but also POSITIVE “resource claims,” claims to what society is deemed required to do for the individual liberties – freedom from (eg detention, torture) and freedom to (eg speak , assemble) also right to food housing and other basic human needs

ACTION for breach of HR can only be brought against the government HR Cannot be transferred Terrorists and human rights Hr are fundamental but not absolute 1st consequence – HR will conflict with each other eg freedom of speech, right to

privacy

2nd consequence – times in which HR need to be compromised eg Public Emergency impingement on HR must be the absolute minimum

Human rights are rights of individuals in society Human rights are universal; they belong to every human being in every human

society Human rights are rights; they are not merely aspirations, or assertions of the good Human rights imply the obligation of society to satisfy those claims Human rights are claims upon society The idea of human rights has implications for the relation of the individual’s rights to

other public goods The idea of rights accepts that some limitations on rights are permissible but the

limitations are themselves strictly limited I have referred to rights as claims upon society, not against society. International community has sought to entrench notion that human rights are

universal regardless of context UN Universal Declaration of Human Rights International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Ratified by Australia

Covenant on Civil and Political Rights art 19 freedom of expression art 26 equal protection under the law

Covenant on Economic, Social and Cultural Rights art 9 recognize the right of everyone to social security art 11 right to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions

International Covenant on Civil and Political RightsAdopted 16 December 1966; entered into force 23 March 1976;

999 UN Treaty Series 171

International Covenant on Economi, Social and Cultural RightsAdopted 16 December 1966; entered into force 3 January 1976;

993 UN Treaty Series 3

2nd Covenant is weaker obligation not same degree as Civil and Political Rights not as legally enforceable

eg in India principles are “fundamental in the governance of the country” and that “it shall be the duty of the State” to apply them in making laws; but it also insists that they “shall not be enforceable by any court” doesn’t mean that the legally unenforceable commitments are irrelevant

In Australia, used to use English constitutional documents Magna Carta Bill of Rights 1688 ratification of International Covenant on Civil and Political Rights Human Rights Commission Act 1981 (Cth). Human Rights and Equal Opportunities Commission Act 1986 (Cth) HREOCA 25 Sept 1991 Australia acceded to the (first) Optional Protocol to the International Covenant of Civil and Political Rights

Art 2 “Individuals who claim that any of their right enumerated in the Covenant have been violated and who have exhausted all available domestic remedies” may submit a

written complaint (“communication”) to the human rights committee of the UN Committee can “forward its views to the State Party concerned and to the individual” national government then decides on how to deal with the issue ie whether to bow in to the pressure or to stand firm on its existing policy

Eg Toonen failed in all aussie cts went to Geneva new Commonwealth legislation and therefore s109 meant that Tassie legislation was overruled

What is the status of these Conventions that have been signed and ratified? They need to be legislated by our Parliament for legally enforceable rights to be madeFor a convention to become part of Australian law, it needs to be signed, ratified and incorporated into Australian law, enacted as Australian legislation

Sources of HR in Australia

1. Australian Constitution not a bill of rights spread out, eg s51 (xxxi) ‘acquisition of prop on just terms’WA v WARD (2002) 191 ALR 1 at [961] Callinan J the constitution is our fundamental law not a collection of principles to be read by man no implied rights in the constitution the culmination of international law and constitution doesn’t give rise to HR culmination of international law and Statute don’t give rise to HR

2. Old law: Magna Carta – Bill of Rights diluted over the years3. Statutes: eg Racial Discrimination Act, Disability disc act and Sex discrimination

act – Human Rights and Equal Opportunities Commission Act HREOCA (Cth) 1986 Australian’s can use article 2

4. Common Law: traditional forum for protecting of human rights in Australia – don’t need strong protection in constitution and statutes cause common law should do it

Teoh Case 183 CLR 273

(b) Freedoms Not rights

Henkin’s distinction between “immunities” (ie ‘limitations on what gov. may do to individual) and “resource claims” (ie ‘claims to what society is deemed required to do for the individual’) = distinction between ‘civil and political rights and ‘economic, social and cultural rights’

Wesley Hohfeld: rights are enforceable legal duties. Privilege or liberty is something less than a ‘right’; not an enforceable duty to allow the activity in question, but merely the absence of any enforceable legal ‘right’ to obstruct it. Immunity is a disability ie absence of legal power to affect the individual’s legal position in the relevant respect

Lange v Australian Broadcasting Corporation ss 7 & 24, which give rise to an implied freedom of political communications, “do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power” negative right

The express limitations in the Australian Constitution arm citizen with “Shield not sword“; their only function is to protect the citizen against what might otherwise be

lawful governmental action limited rights governemnt doesn’t have to take steps to protect this

James v Commonwealth(1939) 62 CLR 339

South Australian dried fruits grower FA James brought an action in the High Court seeking damages for the Commonwealth’s repeated invasions of his premises and seizures of his property according to s92 “trade within the commonwealth to be free”

Dixon J held that James was entitled to damages in tort for four specific seizures of dried fruits.

As to each of those seizures, the Commonwealth’s officers might normally have claimed a defence of lawful authority; but the finding that the relevant statutory provisions were invalid had negated that defence

It was only in that sense that the operation of s92 (guarantee that interstate trade, commerce and intercourse shall be ‘absolutely free’) assisted James’ claim to damages

Dixon J: Isaccs J (in James v Cowan), described the right protected by s92 as a personal right attaching to the individual and not attaching to the goods The question [is] whether sec 92 conferred upon the individual a private right, breach

of which involves an action for damages. Standing in the Constitution as it does, the provision should not, I think, be construed

as dealing with the private rights of individuals under the civil law…. Prima facie a constitution is concerned with the powers and functions of government

and the restraints upon their exercise There is no sufficient reason to regard sec92 as including among its purposes the

creation of private rights sounding in damages It gives to all an immunity from the exercise of governmental power. But to find whether a governmental act be wrongful the general law must be applied. Sec 92 will do no more than nullify an alleged justification. The plaintiff cannot, therefore, recover damages under sec 92 independently of any

other tort by the Commonwealth Use constitutional argument in general law claimNot a positive right – negative rightIf Commonwealth has ONLY breached your constitutional right, you cannot get damages – no remedy from constitution – remedy is a declaration that it is unconstitutional or whatever… only breach of statutory right can be remedies with damages

Kruger v Commonwealth (Stolen Generations Case)(1997) 190 CLR 1

Brennan CJ, Toohey and Gaudron JJ, substantially supported by Gummow J, held that even if the provisions authorizing the forced removal of Aboriginal children from their families were unconstitutional, any resulting entitlement to damages would depend on the ordinary principles of tort law. There is no action against the Commonwealth or its officers for breach of constitutional rights

Brennan CJ: The Constitution reveals no intention to create a private right of action for damages for an attempt to exceed the powers it confers or to ignore the restraints it imposesGaudron J: By its terms, s116 does no more than effect a restriction or limitation on the legislative power of the Commonwealth. It is not, “in form a constitutional guarantee of the rights of individuals” [AG (Vic); Ex rel Black v Commonewealth] confers a bare negative right

Even if breach of const. no rise of entitlement to damages

(c) The United States Experience p. 1095

The Bill of Rights included in the US Constitution is the classic example of express provision for judicially enforceable limitations on the powers of government some expressed as ‘limitations’ as opposed to ‘rights’ but in practice they are all considered as conferring constitutional ‘rights’

The constitution of the United States of AmericaBoth positive and negative rights conferredRights are constitutionally enshrined special protection. The guarantees in the 1st amendment (and impliedly the rest) only apply at Federal

Level 14th amendment (after the civil war - 1868) was added to provide protection against

actions taken by the States NO STATE SHALL MAKE OR ENFORCE ANY LAW WHICH…….. bill of

rights now bound the states 14th is formulated as an express guarantee but has also proved to be in effect a fertile

source of implied guarantees 14th Controversial because:

o (a) virtually all Supreme Court decisions invalidating legislation on Bill of Rights grounds, have been concerned with State legislation (rather than federal legislation), made vulnerable to the Bill of rights through the “gateway” of the 14th conservatism to protect ‘states rights’

o (b) whether to protect “Civil and Political Rights” as opposed to “Economic, Social and Property Rights”

eg Lochner v New York (the Bakers case). New York law prohibited employment in bakeries for more than 60 hours a week should they be allowed as individuals to work more? should they be allowed to have less work in order for their social good? 5:4 majority law deemed invalid

o Peckham J: “the right of the individual to labor for such time as he may choose” legislative attempts to regulate working conditions denied “substantive due process” because they were “meddlesome interferences with the rights of the individual”

o Justice Olliver Wendell Holmes Jr: (dissenting) “The 14th Amendment does not enact Mr Herbert Spencer’s Social Statistics… a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire”

dissent let states make decisions as long as they are constitutional 1930 SHIFT President Roosevelt intended to pack the Supreme Court from 9 to 15

judges shift to civil n political as opposed to social and economic West Coast v Parish (“the switch in time that saved nine”) over-ruled Lochner v

New York 3 new SC judges roe v wade - abortion Brown v Board of education – segregation in schools Conflict between personal rights and property rights

o Worst decision in US legal history Dred Scott v Sandfor SC denied rights of slaves to defend property rights of slave owners (property. personal)

o Upheld segregation in Plessy v Ferguson separate but equal

United States v Carolene Products Co304 US 144 (1938)

Stone J: There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first 10 amendments, which are deemed equally specific when held to be embraced within the 14th Social rights protected by First 10 amendments shift in the SC approach

JUDICIAL RESTRAINT economic rights JUDICIAL ACTIVISM civil and political rights

(d) The Australian Response

No Bill of Rights: constitutional or statutory Were proposals for it, esp. by Andrew Clark of Tasmanian defeated resoundingly No separate bill where rights are all written down together, instead they are scattered

throughout the constitution same in state and territory constitutions only recently has the Australian Capital Territory (ACT) made a bill of rights

In absence of a Bill of Rights, some judges have turned to international human rights norms and have implied new rights from the Constitution

Australia only western nation without a Bill of rights uses common law traditions and Diceyan notion of parliamentary sovereignty to protect basic freedoms traditional conceptions of parliamentary sovereignty and the separation of powers continue to have a firm hold in Australia, as the recent report of the Standing Committee on Law and justice of the NSW Parliament demonstrates

Standing Committee on Law and Justice, A NSW Bill of Rights(NSW Parliament, Report No 17, October 2001)

During this inquiry there have been examples given where human rights of individuals or of minority groups have been neglected recognized failures in recognizing rights

The cost of this uncertain marginal improvement is a fundamental change in the relationship between representative democracy, through an elected Parliament, and the judicial system

The Committee believes an increased politicization of the Judiciary is an inevitable consequence of the introduction of the Bill of Rights bill of rights would give too much power to the judiciaries

IF there was a Bill of Rights increased scope for judicial decision making public pressure and criticism Judiciary are not elected – can make unpopular decisions without losing appointment unlike a ‘responsible gov’ governments likely to make appointments based on judges political views as opposed to legal skills undermining of the independence and quality of the judiciary

Basically, not a good thing to give power to the courts

PUBLIC LAW - Week 14Changing the Constitution and the Republic

Required Readings – 1301-1335 (sections 1-3)

Changing the Constitution

1. Introduction p. 1301

Recent sentiment shows that people think that the constitution is not modern However, referendums to modify the constitution have all failed (four of them)

2. Amending the Constitution p. 1301

A Government of Laws, and Not of Men? (1993) 4 Public Law Review 158, justice John Toohey of the High Court referred to the argument that written constitutions create a “two-track lawmaking system”.

Under such a system, “the normal lawmaking path” lies through Parliament, but the changes to the Constitution, that is, to “the judgments previously made in the higher law accents of We “the People”, must go down a “higher lawmaking track”. In Australia, this means a referendum under s128

“A written constitution which is susceptible to popular amendment” serves popular will

Section 128 provides that “…vote shall be taken in such manner as the Parliament prescribes” referendum is also regulated by the Referendum (Machinery Provisions) Act 1984 (Cth)

S45 provides that voting is compulsory for all electors S11 – the electoral commissioner must send to each elector a pamphlet showing the

proposed amendment to the Constitution along with arguments for and against the proposal

S11 also states that money shall not be spent on encouraging electors to vote for or against the proposal

However, the Referendum Legislation Amendment Act 1999 (Cth) created an exception for the 1999 referendum, and $15m divided between “Yes” and “No” campaigns on the republic. $9.5m was also spent on ‘neutral’ advertising.

Data Tables

When we have voted ‘yes’ on a proposal, they have been emphatic ‘yes’ votes However, we have voted ‘no’ a lot more often Usually quite technical – relevant? There is also a very large ‘informal’ vote

J McMillan, “Constitutional Reform in Australia”In One People, One Destiny (Papers on Parliament, No..

Some of the possible reasons why constitutional reform in Australia has been often rejected:

Inadequate Political Management the opposing cause use ‘hype’ to scare voters Rejection of ALP initiatives if identified as exclusively labor, usually met with

vocal opposition Predictable Opposition nowadays, proposals will always meet rejection due to the

higher importance of the minority groups within Australia Negative voter inclination instincts will make voters vote against than for (as

opposed to consideration)

Civics report found that only 18% of people knew what was in the constitution and that more than 25% believed that the Supreme Court was the top court in Australia

JC Finemore, “Commentary”

Shouldn’t assume that Australian voters were wrong in voting “”NO’ in referendums Voters have seen the exploitation of the rules by the gov. and the high court over the

years “perhaps they have suspected on many occasions that proposals have been put forward for short-term party political purposes rather than to make the Constitution more efficient or equitable.

Constitutional Commission, Final Report of the Constitutional Commission

Lists the recommendations of the Hawke governments constitutional commission

Also note that “elector’s initiatives”, or “citizens initiated referendums” exist in other federal nations (Swiss, NZ, Ita, US) but not Australia

3. The Republic p. 1313

Issue that has dominated constitutional change since early 90’s (whether Australia should become a republic) had been touted ever since 1891 former NSW premier Dibbs described republic of Australia as the inevitable destiny of the people of this great country

Constitution establishes Australia as a constitutional monarchy in Constitution Act (IMP)

Although the Australia Act 1986 (Cth) marked the end of the power of the British Parliament to legislate for Australia, the constitution has never been formally repatriated (remit back to UK). even though Sue v Hill proved that Britain was a “foreign Power”

This shows that contemporary debate on a republic is not about whether Australia should amend the Constitution to become an independent nation

The debate is about whether the constitution should be altered to reflect the existing reality of independence and whether the nation should take a final symbolic step of replacing the Queen with an Australian president

(a) Republicanism

Theories of republicanism have been around since Athenian times…

FOR & AGAINST Citizen initiated referendumFOR AGAINST

Education Could infringe with parliamentParticipation Intentions could be wrong

The ‘strong’ would overrule the protection of the minorities

Constitutional monarchy – s61, s2, s58

G Williams, “A Republican Tradition for Australia?”

Principles1. direct democracycivic virtuecommon good

The revival

1. Deliberaton – this was about shit2. Political Equality – this was also about shit3. Universalism – still more shit4. Citizenship – the last part of the shit

C Sunstein, “Beyond the Republican Revival”

Ed sed that this was long boring and shyte

A Fraser, “In Defence of Republicanism: A Reply to George Williams”

If you want to be a proper republic you got to make fundamental changes, not just changing the head of state – distinction between public and private – monarchical, citizen is confined with in the private sphere, citizen has no involvementRepublic model, citizen involved in the public sphere – got to take positive practical steps to - in US you vote for everything, judges, sheriffs, sanitization person

(b) An Australian Republic?

“Crowned Republic” – oxymoron – distinction between the facade (monarchy) and the reality (republic)

G Williams, “A Republican Tradition for Australia?” refers to Pettit (minimalist) –

o anti-monarchical motif – don’t want a POM to be our head of state… that’s why we want a republic

o republics must embody the rule of law and a rule of check and balance separation of powers BUT our constitution does not actually explicitly say that we have a Separation Of Powers not explicitly expressed, implicit

o the rule of virtue expressed both in a politically active citizenry and public no difference.

Republic Advisory committee, An Australian Republic: The Options

Appointment of Head of State Four Options

o Appointment by Prime Minister like process for GGo Appointment by Parliament would show majority support from both

partieso Popular Election rejected because it could form a “Difference” between

the PM and the President, gives president a mandate if he is popularly elected aussies don’t want another politician as our head of state.

o Appointment by Electoral College - US

Powers of Head of state Should all reserve powers be codified

Prime Minister Paul Keating, An Australian Republic: The Way Forward

Impossible to codify the reserve powers

G Williams, “Why Australia Kept The Queen”

3 issues Should Australia become republic Which model What time frame and what circumstances

4 models for the method of choosing the president Direct election model Hayden model Mcgarvie model Bi-paartisan appointment model successful, advocated by the Austr

republic movement

(c) The 1999 ReferendumChose bi-partisan approach

Constitution Alteration (Establishment of Republic) 1999

YES/NO Referendum ‘99

(d) The Preamble-an introduction statement in the constitution, outlining the reasons for the document

Introduction – NO LEGAL FORCE “non-justifiable” – can’t rely on it as a source of law in court.

M McKenna, A Simpson and G Williams, “With Hope in God, the Prime Minister and the Poet: Lessons from the 1999 Referendum on the Preamble”

1st draft – supported by labor front-bencher, Gareth Evans 2nd draft – Howard and poet Les Murray

o Ern Malley – created by Max harris Point of this is that the preamble was unintelligible – didn’t say significant stuff –

watered down – didn’t properly recognize abos – use of the word mateship, masculine term alienates women.

Howard-Murray preamble – explicitly known to be non-justifiable

Constitution Alteration (Preamble) 1999

G Winterton, “The States and the Republic: A Constitutional Accord?”

Observes potential problem Debatable whether s128 embraces the preamble

o Believes s128 does provide mechanism to change preamble, but he realizes it is a minority view its probably the majority view now though, ie s128 is sufficient

Alternative – use the Australia Act to change the preambleo First, get state parliaments OKo Then amend the UK act which purports to bind Australia which would

amend, repeal the preamble provisions of the preamble of the constitution (as it is a uk act)

o Not as desirable as using s128 for the preamble

Constitutional Commission, Final Report of the Constitutional Commission

(e) The Referendum Outcome

On 6/11/1999, Australians were asked to mark their ballot papers “Y” or “N” to A PROPOSED LAW: To alter the constitution to establish the Common wealth of

Australia as a republic with the queen and the GG being replaced by a President appointed by 2/3 majority of members of the Commonwealth Parliament

A PROPOSED LAW to alter the constitution to insert a preamble

Australians answered a resounding “NO” to both questions

H Irving, “The Republic Referendum of 6 November 1999”

M Kirby, “The Australian Referendum on a Republic – Ten Lesson