Principles of Public Law 2014 Complete Notes

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1 Principles of Public Law 2014 Complete Notes Example Law Notes Page Numbers Omitted from this example Only the first Heading shown Over 140 pages of notes The complete package of Seminar notes, Lecture notes and pre Lecture notes combined into one handy document!!! Very eligible and clear headings used.

2 Table of Contents CONSTITUTIONALISM 7 EARLY 17 TH CENTURY STRUGGLES 7 THE GLORIOUS REVOLUTION 8 THE RULE OF LAW 8 CONSTITUTIONAL SUPREMACY 8 SUBORDINATION OF THE EXECUTIVE TO LAW 9 WHO CREATED THE AUSTRALIAN CONSTITUTION? 10 THE AUSTRALIAN CONSTITUTION: THE ROLE OF THE PEOPLE 10 SOME OF THE REASONS FOR FEDERATION 10 WHY A FEDERATION? 11 ESSENTIAL ELEMENTS OF THE AUSTRALIAN CONSTITUTION THE WASHMINSTER MODEL 11 THE BRITISH INHERITANCE 12 THE AMERICAN MODEL 12 SEPARATION OF POWERS THE THREE POWERS FEDERALISM FEDERALIST PAPERS SEPARATION OF POWERS IN THE AUSTRALIAN CONSTITUTION BOILERMAKERS FOR & AGAINST INDICIA OF JUDICIAL POWER THE BOILERMAKER DEBATE RECAP - BOILERMAKERS CASE: INDICIA CALLED UPON TO TAKE ACTION: LIMITED ROLE OF THE JUDICIARY IN ACCORDANCE WITH LEGAL STANDARDS JUDICIAL DISCRETION JUDICIAL PROCESS: INDICIA OF JUDICIAL POWER: CHAMELEON POWERS COMMON ELEMENTS EXAMPLE: DETERMINING WHETHER A CHAMELEON POWER IS EXECUTIVE OR JUDICIALERROR! BOOKMARK NOT DEFINED. TASMANIAN BREWERIES THE CHOICE TO USE A TRIBUNAL: IN CONCLUSION APPLYING THE INDICIA OF JUDICIAL POWER APPLICATIONS LUTON V LESSELS TCL AIR CONDITIONER A NOTE ON BINDING AND AUTHORITATIVE JUDICIAL DISCRETION AND PROCESS: THOMAS V MOWBRAY (2007) 233 CLR 307 EXAMPLE PROBLEM QUESTION APPLICATIONS OF THE FIRST LIMB OF BOILERMAKERS

3 THE FIRST LIMB OF BOILERMAKERS: LEGISLATIVE USURPATION BILLS OF ATTAINDER/BILLS OF PAINS & PENALTIES LIYANAGE V THE QUEEN [1967] 1 AC 259 POLYUKHOVICH V THE QUEEN (1991) 172 CLR 501 DETENTION (LIM) KRUGER V COMMONWEALTH (STOLEN GENERATIONS CASE) (1997) 190 CLR 1 QUERIES IF DETENTION RESTRICTED BY CH III AT ALL? PUNITIVE DETENTION? DETENTION (RECAP) EXCEPTIONS TO THE 1 ST LIMB OF BOILERMAKERS RE TRACEY; EX PARTE RYAN (1988) 166 CLR 518 (1): APPLICATIONS OF THE SECOND LIMB OF BOILERMAKERS PERSONNA DESIGNATA ERROR! BOOKMARK NOT DEFINED. THE SECOND LIMB OF BOILERMAKERS: PERSONA DESIGNATA EXAMPLES OF PERSONA DESIGNATA APPOINTMENTS HILTON V WELLS (1985) 157 CLR 57 GROLLO V PALMER (1995) 184 CLR 348 WILSON V MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS (1996) 189 CLR 1 ERROR! BOOKMARK NOT DEFINED. LIMITS ON PERSONA DESIGNATA RECAP THE AL-KATEB V GODWIN (2004) CASE STATE COURTS AND THE KABLE DOCTRINE SEPARATION OF POWERS UNDER STATE CONSTITUTIONS PREVENTIVE DETENTION KABLE V DPP (NSW) (1996) 189 CLR 51 RESTATEMENT: NAALAS V BRADLEY- SLIGHT REFORMULATION STATE COURTS BE AND APPEAR INDEPENDENT AND IMPARTIAL TRIBUNAL. APPLICATION OF KABLE KABLE DISTINGUISHED PREVENTIVE DETENTION KABLE THE WILDERNESS YEARS APPLYING KABLE CRITICAL FEATURES THE MINIMUM CHARACTERISTICS OF STATE COURTS JUDICIAL PROCESS PROCESS AUTONOMY RE CRIMINAL PROCEEDS CONFISCATION ACT 2002 [2002] 1 QD R 40ERROR! BOOKMARK NOT DEFINED. INTERNATIONAL FINANCE TRUST CO LTD V NEW SOUTH WALES CRIME COMMISSION (2009) 240 CLR 319 EVIDENTIARY AUTONOMY GYPSY JOKERS MOTORCYCLE CLUB INC V COMMISSIONER OF POLICE (2008) 234 CLR 532 K-GENERATION PTY LTD V LIQUOR LICENSING COURT (2009) 237 CLR 501 PROCEDURAL FAIRNESS GYPSY JOKERS (3) 2 ND ISSUE IN THE CASE ASSISTANT COMMISSIONER CONDON V POMPANO PTY LTD (2013) 295 ALR 638 (A BIKIE CASE) ERROR! BOOKMARK NOT DEFINED.

4 REASONS - WAINOHU V NEW SOUTH WALES (2011) 243 CLR 181 (ANOTHER BIKIE CASE)ERROR! BOOKMARK NOT DEFINED. INDEPENDENCE INDEPENDENCE SOUTH AUSTRALIA V TOTANI (2010) 242 CLR 1 (1): INDEPENDENCE ATTORNEY-GENERAL (QLD) V LAWRENCE (2013) 306 ALR 281 NATURE OF POWERS - MOMCILOVIC V THE QUEEN (2011) 245 CLR 1 NATURE OF POWERS WAINOHU AND POMPANO SUPERVISORY JURISDICTION KIRK V INDUSTRIAL RELATIONS COMMISSION (NSW) (2010) 239 CLR 531ERROR! BOOKMARK NOT DEFINED. CONCLUSION EXECUTIVE ACCOUNTABILITY RE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS; EX PARTE LAM (2003) 214 CLR 1, 23 (MCHUGH AND GUMMOW JJ) SOURCES OF EXECUTIVE POWER TYPES OF EXECUTIVE POWER CONSTITUTIONAL POWERS NATIONHOOD POWER STATUTORY POWERS PREROGATIVE POWERS RELATIONSHIP BETWEEN STATUTE AND PREROGATIVES PARLIAMENTARY ACCOUNTABILITY EGAN V WILLIS (1998) 195 CLR 424, 451 (GAUDRON, GUMMOW AND HAYNE JJ)ERROR! BOOKMARK NOT DEFINED. INDIVIDUAL MINISTERIAL RESPONSIBILITY IMPACT ON PUBLIC SERVANTS COMMITTEES TRIBUNALS AND MERITS REVIEW FREEDOM OF INFORMATION ACT 1982 (CTH) 54 INTERNAL REVIEW--ACCESS REFUSAL DECISION FREEDOM OF INFORMATION ACT 1982 (CTH) 54C INTERNAL REVIEW--DECISION ON INTERNAL REVIEW OMBUDSMAN ROYAL COMMISSIONS SET BY A LETTERS PATENT INDEPENDENT COMMISSIONER AGAINST CORRUPTION ACT 2012 (SA) (STARTED IN 2013).ERROR! BOOKMARK NOT DEFINED. JUDICIAL ACCOUNTABILITY SOURCES OF JUDICIAL REVIEW A SIMPLE JR CHECKLIST END NOTES PUBLIC ACCOUNTABILITY RIGHT TO VOTE CONSTITUTION ACT 1934 (SA FREEDOM OF INFORMATION

5 FOI ACT (CTH) S 3 THE FOI PROCESS DO YOU HAVE A RIGHT OF ACCESS & DO FEES APPLY? WHAT DOCUMENTS DOES THE FOI REGIME APPLY TO? IS THE AGENCY EXEMPT FROM THE FOI LEGISLATION? MIGHT THE RELEVANT DOCUMENTS BE EXEMPT? CTH ACT S 34 FOI ACT (CTH) S 11B IF YOU ARE REFUSED ACCESS, IS THERE A RIGHT OF REVIEW? JUDICIAL REVIEW VS MERITS REVIEW; REASONS AND FREEDOM OF INFORMATION ERROR! BOOKMARK NOT DEFINED. JUDICIAL REVIEW VS MERITS REVIEW RIGHT TO REASONS VS FOI THE FOI PROCESS DO YOU HAVE A RIGHT OF ACCESS & DO FEES APPLY? WHAT DOCUMENTS DOES THE FOI REGIME APPLY TO? IS THE AGENCY EXEMPT FROM THE FOI LEGISLATION MIGHT THE RELEVANT DOCUMENTS BE EXEMPT? THE EVOLUTION OF THE PROVINCE AND STATE OF SOUTH AUSTRALIAERROR! BOOKMARK NOT DEFINED. RECEPTION OF THE COMMON LAW: MABO V QUEENSLAND [NO 2] (1992) 175 CLR 1 MABO NATIVE TITLE: SOUTH AUSTRALIAN GOVERNANCE SOUTH AUSTRALIAN JUDICIARY: THE POWERS OF THE PARLIAMENT OF SOUTH AUSTRALIA THE LEGISLATIVE POWERS OF THE STATE OF SOUTH AUSTRALIA IS PEACE, ORDER AND GOOD GOVERNMENT A LIMITATION? RESTRICTIONS ON LEGISLATIVE POWER: CONSTITUTIONAL RESTRICTIONS: TERRITORIALITY: MANNER AND FORM MANNER AND FORM IN SA DOUBLE ENTRENCHMENT (IN PRACTICE) MANNER AND FORM IN SA: FUNDAMENTAL COMMON LAW PRINCIPLES REPUGNANCY NO LONGER APPLICABLE QUESTIONS AND ANSWERS ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES AND THE AUSTRALIAN CONSTITUTION WHO CREATED THE AUSTRALIAN CONSTITUTION? GIVEN BY THE PEOPLE OF AUSTRALIA TO THEMSELVES THE AUSTRALIAN CONSTITUTION: THE ROLE OF THE PEOPLE SOME OF THE REASONS FOR FEDERATION SECTIONS OF THE AUSTRALIAN CONSTITUTION AFFECTING ABORIGINAL PEOPLES THE AUSTRALIAN CONSTITUTION AND ABORIGINAL PEOPLES: A GREAT SILENCE

6 CHANGING THE CONSTITUTION: HOW CHANGES MADE THE 1967 REFERENDUM WHY THE 1967 REFERENDUM WAS SUCCESSFUL THE LEGAL EFFECT OF THE 1967 REFERENDUM FUTURE LEGAL STEPS FOR ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES ERROR! BOOKMARK NOT DEFINED. SOME CONTEMPORARY INDIGENOUS LEGAL ISSUES STATUS OF LETTERS PATENT CLAIM APOLOGIES TO THE STOLEN GENERATIONS STATE CONSTITUTIONAL RECOGNITION FEDERAL STATUTORY RECOGNITION CONSTITUTIONAL AMENDMENT: UNFINISHED BUSINESS FOR ABORIGINALS EXPERT PANEL RECOMMENDATIONS FUTURE LEGAL ISSUES FOR INDIGENOUS AUSTRALIANS HUMAN RIGHTS LAW IN AUSTRALIA HUMAN RIGHTS IN THE AUSTRALIAN CONSTITUTION HUMAN RIGHTS UNDER STATUTE HUMAN RIGHTS AT COMMON LAW HUMAN RIGHTS OVERSIGHT INSTITUTIONS AUSTRALIAN HUMAN RIGHTS COMMISSION PARLIAMENTARY SCRUTINY OF HUMAN RIGHTS BILL OF RIGHTS MODELS FOR AUSTRALIA AUSTRALIAN BILLS OF RIGHTS VICTORIAN CHARTER (1): - THIS IS THE MODEL THAT IF THE AUSTRALIAN JURISDICTIONS CHOOSE TO HAVE A BILL OF RIGHTS THIS WOULD BE THE ONE THAT THEY WOULD FOLLOW. FEDERAL HUMAN RIGHTS PROTECTION THE NEXT STEPS? POSTSCRIPT

7 Constitutionalism The Divine Right of Kings The King s authority is granted by God, the King is answerable only to God Magna Carta (1215) Restraints forced on King John Rather than replace the King, attempted to limit his powers Extensive reiteration through subsequent centuries Due Process (US) No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land. To no one will we sell, to no one will we refuse or delay, right or justice. Early 17 th Century Struggles Prohibitions del Roy (1607) (Coke CJ) the King in his own person cannot adjudge any case the King said, that he thought the law was founded upon reason, and the he and others had reason, as well as the Judges: to which it was answered by me, that true it was, that God had endowed His Majesty with excellent science, and great endowments of nature; but His Majesty was not learned in the laws of his realm causes are not to be decided by natural reason but by the artificial reason and judgment of the law law was the golden metwand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm I said the King should not be under man, but under God and the Laws. Prohibitions del Roy (alternative version): his Majestie fell into that high indignation as the like was never knowne in him, looking and speaking fiercely with bended fist, offering to strike him etc, which the lo Cooke perceaving fell flatt on all fower James I in 1616 my Lords the Judges you shall answere to GOD and mee: For as I have only GOD to answere to, and to expect punishment at his hands, if I offend; So you are to answere both to GOD and mee

8 It is Atheisme and blasphemie to dispute what God can doe: good Christians content themselves with his will revealed in his word. So, it is presumption and high contempt in a Subject, to dispute what a King can doe, or say that a King cannot doe this, or that The Glorious Revolution The ascendance of the Parliament over the King Crown settled on William and Mary by Parliament Bill of Rights 1688 The Rule of Law Proclaimed sovereignty of Parliament the pretended Power of suspending the Laws, or the Execution of Laws, by regal Authority, without consent of Parliament, is illegal Fitzgerald v Muldoon (NZ, 1976) PM yes there is an obligation under the statute; the parliament will repeal it afterwards. The PM violated the bill of rights. Freedom of men under government is to have a standing rule to live by, common to everyone of that society, and made by the legislative power erected in it: and not to be subject to the inconstant, uncertain, unknown and arbitrary will of another man in America, THE LAW IS KING. For as in absolute governments, the King is law, so in free countries the law ought to be King; and there ought to be no other Thomas Paine, Common Sense (1776) Constitutional Supremacy In England The power of Parliament is absolute and transcendant; it is omnipotent in the scale of political existence. In America the case is widely different: The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature every act of the Legislature, repugnant to the Constitution, is absolutely void. Vanhorne s Lessee v Dorrance (1795) (Paterson J) The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. all those who have framed

9 written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void Marbury v Madison (1803) (Marshall CJ) Politically charged with a change of government, where judges were given commissions and some did not grant them. Marbury lost. Marshall achieved to render legislation invalid. Subordination of the Executive to Law Entick v Carrington (1765) Executive warrant to search and seize papers to prove seditious libel held invalid Secretary of state got a warrant to search a house for the papers, the court found that the executive cannot do whatever it may like only parliament may authorise such a measure. Australian Communist Party v Commonwealth (1951) 83 CLR 1 History and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power : at 187 (Dixon J). a stream cannot rise higher than its source A power to make laws with respect to lighthouses does not authorize the making of a law with respect to anything which is, in the opinion of the law-maker, a lighthouse. A power to make a proclamation carrying legal consequences with respect to a lighthouse is one thing: a power to make a similar proclamation with respect to anything which in the opinion of the Governor-General is a lighthouse is another thing: at 258 (Fullagar J). A v Hayden (1984) 156 CLR 532 ASIS Exercise at Sheraton Hotel in Melbourne Sledgehammer doors Firearms with blank ammunition Challenged by hotel security on way out Car stopped by Victoria Police Neither ASIS nor the Minister nor the executive government could confer authority upon any of the plaintiffs to commit an offence or immunity from

10 prosecution for an offence once committed. The incapacity of the executive government to dispense its servants from obedience to laws made by Parliament is the cornerstone of a parliamentary democracy... all officers and ministers ought to serve the crown according to the laws... This is no obsolete rule; the principle is fundamental : at 580 (Brennan J). The Executive power of the Commonwealth must be exercised in accordance with the Constitution and the laws of the Commonwealth. every officer of the Commonwealth [is] bound to observe the laws of the land. astonishingly one of the plaintiffs asserted that it is not beyond the executive power to order one of its citizens to kill another person. Such a proposition is inconsistent with the rule of law. It is subversive of the Constitution and the laws : at 562 (Murphy J). Who created the Australian Constitution? the Constitution emerged from the labours of an overwhelming majority of hairy men : J A La Nauze The Conventions of the 1890s The Australian Constitution: The Role of the People Election of Delegates to the Conventions: 1897 and 1898 Referenda to Approve the Constitution 3-4 June 1898 April-September July 1900 (WA) Women? SA and WA only. Aboriginal People? Very few. Some of the reasons for Federation Social and Economic Unity: The crimson thread of kinship runs through us all (1890) New South Wales divided from Victoria by a narrow stream and a line of Custom-house officers (1891) Sir Henry Parkes (long time premier of NSW)

11 Geographical unity Immigration Restriction: The yellow peril Defence Why a Federation? Diversity So that each state may pass laws as they may Liberty Freedom of moving from state to state for difference for which would make a common move from each. A common understanding the powers and privileges and territorial rights of the several existing colonies shall remain intact, except in respect to such surrenders as may be agreed upon as necessary and incidental to the power and authority of the National Federal Government : Sir Henry Parkes the essential condition-the preliminary condition-that the separate states are to continue as autonomous bodies, surrendering only so much of their powers as is necessary to the establishment of a general government to do for them collectively what they cannot do individually for themselves, and which they cannot do as a collective body for themselves : Sir Samuel Griffith Essential Elements of the Australian Constitution The Washminster Model Representative Government Democracy elections to parliament Responsible Government English institution where the executive is responsible to the government. Not the only option, there is irresponsible government American option, the President. Federalism Some matters handled nationally but some matters for the states themselves. Separation of Powers Power of making, enforcing and judgment. Rule of Law The law is supreme.

12 Judicial Review of Legislation The courts will strike down law inconsistent with the constitution Judicial Review of Administrative Action Actions by the executive. Faith in Parliaments (Human Rights largely ignored) Parliaments will protect human rights. The Crown Always going to be government under the crown, no question of a republic. The British Inheritance Evolution of Representative Government in Australia Grant of Responsible Government in 1850s (1890 for WA) Bicameral Parliaments two chambers of parliament. Rule of Law The Common Law Judicial Review of Administrative Action Courts would enforce the limits of the powers of the executive government Faith in Parliaments Human Rights largely ignored Parliamentary Supremacy in the States states to retain all pre-existing powers subject to the constitution. The Crown Subject to the Constitution The American Model Federalism states and national governments. Separation of Powers Judicial Review of Legislation The Senate represents the idea that I had for the UK. Each state has an equal amount of seats.