LAW 1504 PRINCIPLES OF PUBLIC LAW. Final Exam Notes

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1 LAW 1504 PRINCIPLES OF PUBLIC LAW Final Exam Notes

2 Week 1 Constitutionalism & the Australian Constitution Constitutionalism Function of Constitutions: Mechanism devised to address the problem of unlimited and arbitrary power. Concept of Constitutionalism: Absolutism in Europe led to ideas of constitutionalism, which spread across the Atlantic. Initial idea of the Divine Right of Kings; Kings authority granted by God, and King is answerable to God only. Magna Carta (1215): o Rather than replace King, idea to place restraints on power. o Had extensive reiteration through subsequent centuries eg. Doctrine of Due Process in US embraced idea of Magna Carta. Early 17 th Century started main evolutions. Coke CJ Prohibitions del Roy (1607) 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 judgement of the law. Bill of Rights (1688) Proclaimed sovereignty of Parliament. o Fitzgerald v Muldoon (NZ, 1976): PM Muldoon instructed constituents to not pay the compulsory superannuation payment before the Bill was passes judiciary held that the executive does not have the power to instruct people to ignore a law until passed by Parliament. John Locke in Two Treatises of Government (1690) developed rule of law. o Taken to America where it was strengthened and constitutionalised so that all must adhere to it. Thomas Paine, Common Sense (1776) In America, the law is King. Constitutional supremacy: The last step in the evolution of public law in Australia the law is supreme over Parliament, chosen by the people AND that courts can override the laws of Parliament to give effect to the Constitution. Enunciated by Paterson J in Vanhorne s Lessee v Dorrance (1795). Marbury v Madison (1803) court decided that it could undertake review of legislation. Entick v Carrington (1765) Executive warrant to search and seize papers to prove seditious libel (overthrow government) held invalid; executive does not have power to order the breaking into someone s house unless prescribed by Parliament. Subordination of the Executive to law: o A v Hayden: ASIS exercise at Sheraton executive cannot break laws unless Parliament allows it, therefore not allowed to break into hotel for training. Principles of Public Law 2

3 Rule of Law: Operates as an underlying principle of legality, constraining government action. Not expressly mentioned in Constitution, but is accepted as part of our Constitutional system and some believe the rule of law provides authority for the Constitution itself. Two main analytical approaches in elucidating its meaning: o Thin/procedural approach: Hayek government in all actions is bound by rules fixed and announced beforehand rules which make it possible to foresee with fair certainty how the authority will use it coercive powers in given circumstances and to plan one s individual affairs on the basis of the knowledge. Friedrich Hayek, Road to Selfdom (1975) 54 Key here is certainty and predictability. Laws to be generally and equally applied not singling out people/groups. Dicey three part definition The rule of law means, in the first place, the absolute supremacy or dominance of regular law as opposed to the influence of arbitrary power; [second] equality before the law; [third] the laws of the constitution are not the source, but the consequence of the rights of individuals, as defined and enforced by the courts. Laws provide the most secure means of protecting against the arbitrary will of every other. Joseph Raz list of conditions for rule of law: independent judiciary, limited form of legislative and administrative review, open and fair hearings, accessible justice, laws that are prospective, open, clear, public, certain and relatively stable. Joseph Raz, The Rule of Law and its Virtue in Joseph Raz (ed), The Authority of Law (1979) 210 Argues that because there is no necessary connection between law and morality, the rule of law should be balanced with other virtues and should not always trump them. o Thick/substantive approach: Agrees that Raz s procedural conditions are necessary but adds a further condition, that of morality. Evident in the 2004 UN definition of the rule of law: [the rule of law is a] principle of governance in which all persons. Institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards (p20 text). This approach emphasises rights. Ronald Dworkin rule of law contains fundamental civil and political rights that pre-exist the written law. o Courts should interpret ambiguity with rights in mind. Principles of Public Law 3

4 Lord Bingham of Cornhill (English Judge) fourth sub-rule in his 2006 speech setting out eight sub-rules of rule of law: law must afford adequate protection of fundamental human rights. Ronald Dworkin, Taking Rights Seriously (1977). The Australian Constitution: The Washminster system Principles borrowed from UK Westminster system and US Washington system: Representative Government: Sections 7 and 24 Cth. Parliament shall be directly chosen by the people. Indicates representative government by direct election. Implications considered by HC in Nationwide News Pty Ltd v Willis, ACTV Pty Ltd v Commonwealth, Lange v Australian Broadcasting Corporation HC found an implied freedom of political communication. Roach v Electoral Commissioner HC found implied freedom of political participation. Responsible Government: Legislature and Executive fused. Section 64 all Ministers must sit in Parliament. From Westminster system. Govt. Ministers responsible and answerable to Parliament. Constitutional Rights Express and Implied: Idea of entrenching rights in Constitution from US. Australia has few express individual rights in Constitution. Separation of Powers: Central to rule of law. Strict separation in US Constitution. Strict separation of powers exists at federal level in that federal judicial power is completely separate from the legislative and executive power (R v Kirby; Ex Parte Boilermakers Society of South Australia). No strict separation of powers at State level, but there are restrictions on the functions that can be performed by state courts. Federalism: Idea of dispersing power between two or more levels of government first engineered in US. Aims to provide check against excessive power and to protect rights of significant minorities. Powers of Federal Government in Australia are limited (ss 51 and 52 of the Constitution). Principles of Public Law 4

5 Constitutional Entrenchment: A constitution is entrenched if it can be amended only according to the procedures prescribed in it. Section 128 sets out relevant amending procedures. Marbury v Madison (US) Supreme Court interpreted the Act of writing and entrenching the US Constitution to mean that the Court has the power of constitutional judicial review. This tradition has been followed in Australia. State constitutions are known as flexible but are not wholly entrenched. Parliamentary Sovereignty (Supremacy): Parliament can make/unmake any law it wishes. Limit cannot bind successors, and no court is able to invalidate the law of Parliament. In Australia, we have an entrenched written constitution and constitutional judicial review meaning that courts are able to invalidate Parliament laws if they are in breach of the Constitution. However, within the limits of the Constitution, the Federal Parliament is sovereign. Constitutional Conventions: Unwritten customs and practices. Pivotal in public law, particularly in relation to the principle of responsible government. Example Whitlam dismissal. Common Law and its Relationship with Public Law: Common law said to exist in a symbiotic relationship with constitutional law. Common law important part of constitutional interpretation. Where common law inconsistent with Constitution, common law must yield. Values Underpinning Public Law: Freedom/liberalism. o Belief, opinion, expression, association, to make political decisions, freedom of movement and residence, freedom of occupation. Equality: o All individuals are of equal wealth despite differences in attributes, wealth and power, contribution to society before the law. o Further, substantive equality is concerned to address imbalances in opportunity. Difficulty with pursuing substantive equality is that it invariably affects the freedom of others, and thus conflicts with the principle of liberty. o Expressed through non-discrimination. Community: o Particularly strong in continental expression of democracy (eg. France built on liberty, equality and fraternity ). o Sense of community and common bond which is the role of the state to protect and foster. o Strong in times when state is under threat (eg. war). Principles of Public Law 5

6 The Australian Constitution: Details from John Bannon Lecture Development: 1 Jan 1901 proclamation of British Act by Queen Victoria. 1890s self governing colonies who treated themselves as nations. Large power base and ambitions. Wanted to retain as much power as possible. Reasons for Federation: Defence. Common/uniform immigration. Inefficiencies due to tariffs/trade barriers. Inefficiencies in communications (eg. railway gauge sizes). Options for Constitutional System: Custom union to reach agreements between colonies and coordinate in specific issues, eg. post/telegraphic services/tariffs. Confederation: o Federal Council of Australia Act 1886 (UK). o Established legislative council that could enact legislation to which each member nation would then subscribe individually. o NSW/NZ did not join and SA did not accept for any substantial period. Federation. Ideology Behind Constitution: Drew on examples of states and polities of late 19 th Century. US Constitutional Federal structure highly influential. Canadian federation. Switzerland; combination of cantons. Aim to create union without destroying colonial governments. Not to redraw map/boundaries; already too well established. o Only to surrender as much power as necessary for federal government to achieve its objectives without eroding state power base. 3 tier strategy adopted to keep decision making as close to the people it affects as possible. Process of Creating Constitution: 1891 Convention drafted Constitution. o Failed in review by colonial Parliaments Premiers Plan: o Radical democratic method: Democratically elect delegates to next conference THEN Refer Constitution back to the people to approve at referendum Second Convention Principles of Public Law 6

7 Australian Uniqueness: Westminster concept combining legislature and executive. Maintaining familiarity by allocating specific power only to the Commonwealth, with everything else residing with the States. Executive appoints judges, the legislature had the power to dismiss after consideration by both Houses. o Unlike US, judges don t require congressional approval upon appointment. Senate half size of House of Representatives: o Designed so as to ensure the House does not have excessive power when it comes to joint sittings. o But has diminished the power of individual Senators. Key Public Law Concepts David Clarke, Principles of Australian Public Law (LexisNexis Butterworths, 3 rd ed, 2010) Parliamentary Supremacy: Rule of Law: Federalism: Term describes a doctrine that originated in England and refers to the notion that parliament may make or repeal any statute it chooses. Perhaps never true for Australia colonial Parliaments subject to UK statute, and this survived after federation until removed by Australia Act 1986 (UK) s 3. Territory Parliaments limited by Cth statute under s 122 and Cth Parl limited by Constitution, particularly prescribed powers in s 51. Narrowest sense all persons are under a duty to obey the law of the land. Originally, King immune to laws and could not face action in own courts. The executive (councillors and advisors) sought the same immunity but once a distinction was made between them and the monarch, the impact of the doctrine of the rule of diminished considerably (as this was significant at the time). Commonwealth of Australia Constitution Act 1900 (UK) created federal system of government, which came into force on 1 January Focus on cooperation rather than conflict, eg. cooperation on gun control laws in 1996, terrorism laws in 2002 and defamation laws in Responsible Government: Nowhere expressly referred to in current Constitution Acts, but no doubt it is part of Const. law of every jurisdiction. As an event, refers to introduction, in 1850s, of a fully elected legislature. Conceptually, resp. govt. refers to a particular relationship between the legislature and the executive and involves the following elements: o The sovereign (Governor/GG) must choose as Ministers persons who enjoy the confidence of the Lower House of Parliament (Ministers come from majority party). Principles of Public Law 7

8 o o o o Minister must be MPs. Gov/GG to act on advice of ministers (unless, rarely, when exercising reserve powers which are not codified in law but which, by constitutional convention, may be exercised in exceptional circumstances without taking ministerial advice. Working of resp. govt. assumes the effectiveness of political parties and party discipline within Parliament. Parliaments wholly elected based on principle of representative government. Separation of Powers: The notion that the powers of the three branches of govt. ought to be kept separate from each other to avoid the over-concentration of power. In Aus, emphasis on separation of judicial power. SOP well established implicit in structure of Constitution. No formal doctrine of SOP in State/Territory Constitutions, though largely respected in practice. Due Process of Law and Natural Justice: Ultra Vires: Public officials should act in accordance with the law and that a person subject to the law ought to be accorded due process of law. Term due process of law debated and decided not to be included in Constitution: o View that American included in 14 th amendment because it needed it to deal with the problems following their Civil War ( ); an allusion to the status of freed slaves in the southern United States. Rather blithely assumed no such problems existed here. o Specific protection of rights would amount to adverse reflection on our civilisation, thus left out. o Thought that the existing common law protected rights adequately in any case. Two principles of natural justice: o Entitlement of a person to a fair hearing before a decision is made by a public official. o Decisions made by public officials exercising legal authority ought not to be biased in a legal sense. Beyond (ultra) the powers (vires). Refers to the broad question the courts ask when considering if official action is lawful or not. Ultra vires test applied to determine whether regulations/other subordinate legislation is within (intra vires) the powers given by primary legislation and whether a decision to exercise or refuse to exercise a statutory power is lawful. Principles of Public Law 8

9 Week 2 Separation of Powers Introduction, the Executive and Separation of Judicial Power as per Boilermakers Theory of Separation of Powers: In England, not serious concern Parliament would abuse power; history had shown that the arm of government more likely to abuse power was the Executive. o Reflected in John Locke s Second Treatise on Government (1689): Three arm and functions of govt leg/exec/judiciary. Main focus here in separation between legislative and executive and that of these two, legislative must be supreme reflects discontent in England at time of abuse of power by the Crown (Executive). Separate organ as check an executive power very important. In America, different experience of abuse of power was reflected in adoption of SOP in their Constitution (18 th Century). Took theory of separation of powers and its purpose from French Philosopher, Montesquieu. o When legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will executive them tyrannically. o Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge could have the force of an oppressor. Charles-Louis de Secondat, Baron de Montesquieu, The Spirit of the Laws (1748) James Madison, The Federalist No. 51: o A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. ie; believed that more was needed than just democracy/the vote. James Madison, The Federalist No. 47: o The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny. Separation of powers exists so as to prevent the concentration of power with one person or body, as this is likely to result in the arbitrary exercise and abuse of power. The second part of the quote indicates that the courts should not be supreme, but all powers are equal. Principles of Public Law 10

10 The Three Powers: Legislative: o Enact, amend, and repeal laws. o General in nature and for future application. o What should the law be? Executive: o Administration and enforcement of the law. o Apply general rules to specific cases. o How should the law be applied? Judicial: o Interpretation and application of law - facts, apply law to facts to resolve dispute. o How does the law resolve the dispute? Horizontal and Vertical Separation: Vertical: refers to the division of legislative power between Cth, State and Local Governments so as not to concentrate power and keep decision making as close to those as it affects. Horizontal: SOP between each level into powers split even more. Separation of Powers in Australian Constitutions: State Constitutions: No SOP but due to the federal SOP, some rules are implied for state courts. Australian Constitution: Structure: Chapter I The Parliament o Part I General o Part II The Senate o Part III The House of Representatives o Part IV Both Houses of the Parliament o Part V Powers of the Parliament Chapter II The Executive Government Chapter III The Judicature Chapter IV Finance and Trade Chapter V The States Chapter VI New States Chapter VII Miscellaneous Chapter VIII Alteration of the Constitution The Schedule Principles of Public Law 11