PRINCIPLES OF PUBLIC LAW! Exam Notes! CONSTITUTIONALISM! The relationship between the government and the governed! Controlling the power of

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1 PRINCIPLES OF PUBLIC LAW! Exam Notes! CONSTITUTIONALISM! The relationship between the government and the governed! Controlling the power of government! Principles of constitutionalism developed in England from the 11th century! Divine Right of Kings! Authority given by god! Allows kings to do as they wish! Magna Carta! Restraints forced on King John by his barons! In Australian law! A person! Can't be imprisoned unless they broke the law and have had a fair trial! Can't have property seized unless a law says it can! Can't be deprived access to the courts! About 90 other principles! Subordination of the Executive! The executive can only act if its actions are founded by law! There must be a source of power to authorise the action and the executive must act lawfully within that authorisation! Constitution! Statute! Common law!!

2 THE THREE POWERS OF GOVERNMENT! Legislative! Enact, amend and repeal laws! Power vested by C s1! Can only rule on certain topics! C s 51-2! Executive! Administration, enforcement, execution and maintenance of laws! Power vested by C s 61! Queen is head of state (nominally vested)- represented by Governor General! Cabinet! Isn't mentioned in C! Cabinet confidentiality! Papers released after 30 years! Cabinet solidarity! Federal executive Council advise GG! C s 62! GG acts on advice of cabinet! C s 63! GG appoints officers to administer departments (MPs)! C s 64! Members other than MPs! Departments - public servants (includes defence)! Agencies - eg ASIC, ACCC! Tribunals - eg AAT, MRT, RRT, SSAT! Responsible Government! MPs must also be senators or members of the House of Representatives! C s 64! A system of responsible government traditionally has been considered to encompass the means by which Parliament brings the Executive to account so that the Executive s primary responsibility in its prosecution of government is owed to Parliament Egan v Willis (1998) 195 CLR 424, 451 (Gaudron, Gummow and Hayne JJ)! Delegation of Legislative Power! Legislature can defer some of its power on to the executive! Not included in this course! Constitution! Express! C s 5! Appoint times for holding the sessions of the Parliament! Prorogue the Parliament dissolve the House of Representatives! Summon Parliament to meet within 30 days of the return of writs at an election! C s 32! Writs for General Elections (in Council)! C s 68! Command in chief of the naval and military forces of the Commonwealth! C s 72! Appointment and removal of Chapter III judges (in Council)! Implied!

3 Implied nationhood power! a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation : Victoria v Commonwealth ( AAP Case ) (1975) 134 CLR 338, 397 (Mason J).! Economic stimulus package during economic crisis! Pape v Commissioner of Taxation (2009) 238 CLR 1.! CSIRO! Bicentennial celebrations! Davis! Limited coercive power! Must be reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power! Davis v Commonwealth (1988) 166 CLR 79, 100 (Mason CJ, Deane and Gaudron JJ).! Reserve Powers! Unwritten, held by convention! Exercised independently of advice! GG exercises powers without the advice of cabinet! Choice of PM: Appointment (in hung parliament) and dismissal (after no confidence motion)! Refusal to dissolve Parliament! Failure to obtain supply? (When budget isn't passed)! Others?! Lang Government (New South Wales) 1932! Whitlam Government (Commonwealth) 1975! Tasmanian Election 2010! Legislation! Where most powers come from! Issuing of visas under the Migration Act 1958 (Cth)! Determining social security benefit applications by Centrelink under the Social Security Act 1991 (Cth)! Delegated legislative power! Regulations! Subject to judicial review of administrative action (partially entrenched in Constitution)! Common Law (prerogative)! Powers left over from old English monarchy that haven't been removed! Treaties and foreign relations! War and control of armed forces! Ex-officio indictment (force somebody to go to trial)! Mercy (forgive a criminal offence)! Prevent people not part of the Australian community from entering Australia! Ruddock v Vadarlis (2001) 110 FCR 491 (Tampa Case)! Immunities from suit and preferences as creditor! Rights to royal metals, royal fish, treasure trove, swans, escheats, ownership of foreshore etc!

4 SEPARATION OF JUDICIAL POWER! Background! The Constitution of the Commonwealth expressly and distinctly distributes between the Parliament of the Commonwealth, the Crown, and the Federal Judiciary the legislative, the executive and the judicial powers exercisable under its authority! The Constitution does not provide for any consultation or co-operation between the Crown and the Judiciary, or between the Parliament and the Judiciary, in the exercise of the judicial power of the Commonwealth, and therefore any attempt on the part of the Parliament or the Crown to exercise functions which are essentially and distinctly judicial must be invalid! Andrew Inglis Clark, Studies in Australian Constitutional Law (1901)! The provisions of sec. 71 are complete and exclusive, and there cannot be a third class of Courts which are neither federal Courts nor State Courts invested with federal jurisdiction'! New South Wales v Commonwealth ( Wheat Case ) (1915) 20 CLR 54, 93 (Griffith CJ).! Any attempt to vest any part of the judicial power of the Commonwealth in any body other than a Court is entirely ineffective! Waterside Workers Federation of Australia v J W Alexander Ltd ( Alexander s Case ) (1918) 25 CLR 434, 442 (Griffith CJ).! Federal judicial power can only be conferred on a Ch III Court (implication from s 71)! This is different from the States, and from England (neither has a strict separation of judicial power)! Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434.! High Court Justices - C s 72! (i) shall be appointed by the Governor-General in Council;! (ii) shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity;! (iii) shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office.! The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed be appointed as a Justice of the High Court if he has attained that age.! No longer for life, but until age 70 (Constitution Alteration (Retirement of Judges) 1977)! The purpose of judicial tenure is to promote judicial independence! Defining Judicial Power! No conclusive definition! It has not been possible to frame an exhaustive definition of judicial power! R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 373 (Kitto J).! Court has instead created indicia! Sovereign authority! Huddart Parker & Co v Moorehead (1909) 8 CLR 330, 357 (Griffith CJ).! Binding, authoritative and conclusive decision! Inter Partes (unless there's a good reason for it not to be (Thomas)! Controversy about existing rights or obligations!

5 Determining facts, Interpreting the law, Applying law to the facts! R v Trade Practices Tribunal; Ex Parte Tasmanian Breweries (1970) 123 CLR 361, 374 (Kitto J).! A matter! C s 75! Original Jurisdiction of High Court! In all matters:! (i) arising under any treaty;! (ii) affecting consuls or other representatives of other countries;! (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;! (iv) between States, or between residents of different States, or between a State and a resident of another State;! (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;! the High Court shall have original jurisdiction.! C s 76! Additional original jurisdiction! The Parliament may make laws conferring original jurisdiction on the High Court in any matter:! (i) arising under this Constitution, or involving its interpretation;! (ii) arising under any laws made by the Parliament;! (iii) of Admiralty and maritime jurisdiction;! (iv) relating to the same subject matter claimed under the laws of different States.! 'There can be no matter unless there is some immediate right, duty or liability to be established by the determination of the Court [the Legislature] cannot authorise this Court to make a declaration of the law divorced from any attempt to administer that law! In re Judiciary and Navigation Acts (1921) 29 CLR 257, (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ).! Exercised in accordance with judicial process! Nicholas v The Queen (1998) 193 CLR 173, (Gaudron J).! Appropriate judicial discretion! Thomas v Mowbray! 'The role of Australian courts is to do justice according to law not to do justice according to idiosyncratic notions as to what is just in the circumstances! Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 231 (Gaudron J).! 'The discretion must not be of an arbitrary kind and must be governed or bounded by some ascertainable tests or standards! R v Spicer; Ex parte Waterside Workers Federation of Australia (1957) 100 CLR 312, 317 (Dixon CJ, Williams, Kitto and Taylor JJ).! The standards to be applied must be not so indefinite as to be insusceptible of strictly judicial application! R v Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Section (1960) 103 CLR 368, 383 (Kitto J).! R v Kirby; Ex parte Boilermakers' Society of Australia (Boilermakers Case) 94 CLR 254 (2 March 1956)! First Limb!