Constitution Notes. S Ratnapala (above ix, 6 7)

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1 Constitution Notes Constitution: a body of fundamental principles or established precedents according to which a state is acknowledged to be governed by. Written record. The supreme law of a country. A document setting out the powers and operation of government. the written, complete document is only a means. What really matters is the end, the telos. And the purpose, the telos, of English, American and European constitutionalism was, from the outset, identical [T]his common purpose could be expressed and synthesized by just one word: the French (and Italian) term garantisme all over the Western area people requested or cherished, the constitution, because this term meant to them a fundamental law, or a fundamental set of principles, and a correlative institutional arrangement, which would restrict arbitrary power and ensure a limited government. (Sartori B&W 2) S Ratnapala (above ix, 6 7) A constitution is not a piece of paper that magically produces constitutional government. Many countries have clearer and better-intentioned constitutions than Australia, but nowhere near the success of Australia in securing constitutionalism The rules and structures that written constitutions mandate are maintained by a complex web of institutional constraints, of which the constitutional text and its interpretation by courts form only a part A constitution in the philosophical sense is a constitution of a particular type. It limits the powers of rulers by subordinating them to enduring rules that they themselves cannot abrogate. Such a constitution is inextricably associated with the ideal of the rule of law, which seeks to ensure that people are not at the mercy of the momentary will of a ruler or a ruling group, but enjoy stability of life, liberty and property The essence of the constitution in the philosophical sense is thus the limitation of power and the prevention of its arbitrary exercise by the rule of law. S Ratnapala et al, Australian Constitutional Law: Commentary and Materials (Melbourne: Oxford University Press, 2007) 4 [By constitutional government] we mean a system of government under law where rulers are denied extensive arbitrary power by institutional checks and balances and they rule with the consent of the people. Constitutionalism refers to the commitment to this form of government. No country has achieved constitutional government in its ideal form but some countries are closer than others. Australia has an enviable standard relative to most countries. CONSTITUTIONAL REFORM - remove the race pwr? replace w/ what? - a statement of recog. of abo ppl? in preamble? - recog. of councils in const? - republic? opportunity to adders reconciliation - rights for citizens. right to vote, right to stand for plmt. - guidance about who is a citizen - rel/ship w/ rest of the world. - should provide for member ship of int. organization - add. mechanisms for dealing w/ treaties. - mechanism for turning int. law into domestic law. - environment. recognition of environment.

2 - federation: evolved since fed. 110 years to make it work better. should we abolish the states? big country/small pop., retune federation? - same-sex marriage. referendum? - what should be the processes leading up to const. reform? elected convention? expert panel to consult w/ people & develop reports? - Bill of Rights? in the const. - adopt a leg. charter of rights? under what HOP? weak form of protection, can be overruled by other leg. - Right to Higher Education? would have to be adequately funded. Const. is silent on all forms of education. Compulsory education? - Conscription? Either army or university/apprenticeship/tafe - Prohibition of conscription? Lecturers notes: What is included in a constitution, or constitutional system? -assumptions -principles text intent of the framers of the constitution? other seminal documents? judicial interpretation conventions political and, more specifically, constitutional, culture - practice Apart from the constitution (entrenched rights - 5 entrenched - trial by jury, just compensation for land, freedom of religion, free trade b/w states & implied rights, freedom from discrimination based on state of residence), how are our rights protected? -Common Law -Victorian charter (Charter of Human Rights and Responsibilities Act 2006 (Vic)) -International treaties -Statutes -Representative government (representatives look after peoples interests/rights) -the culture - strongest &weakest protection. weakest because there are no laws etc. that protect us against it Writing of the constitution - federation. (australia had racist values ) 1967 referendum s. 51 Federalism? the relationship between the commonwealth & the state. need to have limits on the comm. power - comm. has gained power however every referendum to give comm. more power has been rejected. Comm. collects all tax - therefore all the money. States have difficulty getting money for projects. Should local govt. be recognised or protected by const.? Should one tier of govt. be abolished? Local? state? States make up Australia - have the infrastructure to provide services & the combined power to stand up to the comm. Pros of federalism - no dominating govt., states provide an intermediate level looking after local interests. -Which govt. can you turn to? Which will provide the services you want? -How can you stop the govt.? last time England was conquered HISTORY

3 King: Harold Godwinson (son of godwin) surrounded by enemies One enemy: In Normandy (France) William Duke of Normandy Norway attacked Northern England - King and all army fought here and won! While England fighting in the North, William the Conqueror (Duke of Normandy) attacked Hastings and won - took control of England. Feudalism: everyone owes allegiance to someone higher William the Conqueror introduced: taxes (Domesday Book) Common Law (through moot discussions) - introduced idea of judges and their judgements to be used to decide cases later: precedent french language Church very important: controls marriage. When the crown is chosen their marriage status is very important - church has lots of pwr signing of Magna Carta - the Great Charter Barons forced unpopular King John to sign the charter, agreeing to limit his pwr and abide by the rule of law after: every time a Crown was sworn in, they signed the Magna Carta - England's first form of Constitution Brackten: legal theorist King is under God and the Law idea that the King cannot make the Law, he is governed by it. Law operated on a system of customs -Hundred Years War: mid 1300 s Kings needed more money to continue the war and developed parliament to regulate/create taxes parliament made up of: Lords of the Land & Church Bishops, Commons King still had pwr : chose the ministers & was not responsible to plmt. 15th Century plagued by fights between 2 royal houses. Eventually Henry VIII crowned:somehow represented both royal houses King Henry VIII believed in absolute monarchy shut down the monasteries - unpop. w/ church priests were part of govt. ministers unpop. w/ king were tried for treason and dismissed or killed didn t have an heir King Henry s eldest brother had married Catherine, a spanish princess but then died. Henry wanted to marry kathryn but church law said could not marry dead siblings widows because when ppl married they become one and so to marry your brothers widow was considered incest. Henry needed special permission to marry Catherine: which he got. They had a daughter, but daughters were not good heirs because, while they could be Queen, if they married the crown would pass to their husbands and leave the family. Catherine grew too old for anymore children:still no heir. start of reformation: german Martin Luther criticizing Catholic Church, began protesting against Church, ppl joined him. Start of protestant movement

4 Henry VIII wrote a book defending Catholicism and the Pope, was named Defender of the Faith King wanted a divorce from Catherine, however Catholic church does not allow divorce. Henry tried to prove the original permission he got to marry her was wrong and to get an annulment. Pope wouldn't accept it. Henry then broke w/ the Church and began the Church of England, with himself as the head of the new Church. (Anglican) The new Church allowed divorce. People did not like the new Church. King executed Catholic priests that did not accept the new church. Henrys daughter Mary remained Catholic. Henry then married Ann Boleyn she bore him a daughter: Elizabeth misscarried a son: fell out of favor w/ king king tried her for treason and she was executed Henry then married Jane Seymour: died in childbirht bore him a son: Edward, sickly and died young Henry needed protestant allies and so married a protestant german princess: Anne of Cleaves married her by proxy but once she arrived in England King decided she was not good looking enough and divorced her Henry then married Kathryn Howard:19 y/o was too young, did not like being w/ an old man and so slept around was executed when king found out Henry then married Kathryn Parr *Mary was heir to the throne held crown for 6 years married Phillip King of Spain reintroduced catholicism burnt ppl at the stake if they did not accept catholicism was named bloody mary *Mary died and Elizabeth took the crown reintroduced church of england never married King Phillip of Spain formed a huge fleet of war ships - the Spanish Armada tried to conquer England and overthrow Queen Elizabeth I Queen Elizabeth I died and left no heir parliament to decide on new crown invited James VI King of Scotland to the throne

5 absolute monarch not used to parliament or judges Uniting of the Crowns King James dismissed Sir Edward Coke: v. opinionated chief justice set up his own court: Court of Star Chamber operated in secret, v. political, executed ppl w/out proper trial translated the bible into English Guy Fawkes attempted to blow up parliament Charles inherits the crown likes absolute monarchy argued w/ parliament about what he needed permission to do and what he could by his own prerogative king and parliament raised armies to fight eachother: CIVIL WAR ends and king charles is found guilty of treason (acting against the crown?) thinking had evolved and they had separated the person (king) from the office (crown) king charles executed Invited Oliver Cromwell: General of Parliamentary Forces, to take the crown did not want crown but took on the role of Lord Protector dissolved the parliament Acted as king but did not accept crown died and his son:richard, took on the role England didn t like him and he was dismissed Parliament reconvened invited son of king charles I to take the crown he had gone into exile after execution of his father invited back on condition he would abide by the customs and accept the protestant religion restored the monarchy Charles II succeeded by James II : his brother was catholic and tried to introduced a new church of england prayer book (which was pretty much all catholic) was driven out for not accepting protestant religion William of Orange: ruler of Holland, married to an English princess Glorious Revolution! outed catholic rulers and brought in protestant rulers invited to be king w/ princess Mary as his Queen came to England w/ his fleet and met no resistance parliament introduced a Bill of Rights : list of certain things the king couldn't interfere w/ established supremacy of plmt over the crown Succeeded by Mary s sister Anne: no heir Parliament to decide who would become new king Invited the German King of Hanover to rule England George I of England: England of little importance to him, didn t speak English England and Scotland formerly united

6 George I succeeded by George II, their royal family line exists to this day George III completely British suffered from bouts of madness and had a regent: someone who made choices and acted as King when the King was in no state to rule- his son George IV British Empire expanding drove French from Canada s lost USA could no longer send convicts to US, needed to find a new place claimed NSW sent fleet to establish penal colony in NSW Responsible govt. developed in 1800 s by convention. ministers chosen from parliament: house of commons Party system began to develop idea that you could be loyal to king but oppose the govt. enables peaceful transfer of pwr opposition named Her majesty s opposition : still used to this day George III succeeded by William IV: no heir set up Adelaide: named after his Queen Victorian Era William IV succeeded by his niece Victoria Great Reform - vote extended (no females & not all males) british distracted by boer war british govt. and plmt had to approve Commw/ of Aus Const. Act 1900 refused to allow white supremacy clause-worried it would offend India (the jewel in the crown) insisted on allowing appeals to privy council AUSTRALIAN CONST./ PREAMBLE Enacted in 1901 Constitution exists under clause 9 of the British Act. -originally, due to the constitution being a british act, the govt. could repeal it (technically), however in 1986 it was made separate - cannot be repealed.