Constitutional Law. Fundamental Concepts, Institutions and Instruments. AV Dicey. - British constitutional scholar. Parliamentary sovereignty

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1 Constitutional Law Fundamental Concepts, Institutions and Instruments AV Dicey - British constitutional scholar Parliamentary sovereignty - Definition: o Parliament s power to make or unmake any law whatever o No person or body is recognised by law of England as having right to override or set aside legislation of Parliament - In UK: o Idea that ultimate legal power rest on parliament - Executive can t implement without parliament approval - In Aus: o Not completely sovereign o Partially sovereign Judges only strike down statutes if there s constitutional authority By express words/necessary implication Generally, wouldn't b/c perceive unjust/immoral o Idea still relevant and influential o Modified o Examples: S 92 Cth Constitution Constrains state and federal parliaments trade and commerce between states shall be absolutely free S 51, 52 Exhaustive list of areas of law that Cth parliament can legislate for - Parliament: o Legislature making law o Executive enforcing law o Judiciary interpret law Not elected but appointed - Absolute parliamentary sovereignty o Criticise: Failure to incorporate checks and balances on legislature o Judiciary can t ignore law (when not absolute, judiciary can disagree) o If passed horrible law: Illusory concern not plausible Constrained by o External limits potential resistance of subjects and voters o Internal limits inherent rationality of rep Parliament 1

2 Rule of law - Ruled by law, and law alone o Punished for breach of law only o Should be clear, accessible, comprehensible, prospective (apply form date into force or future NOT past), stable o Application predictable, consistent, non-discriminatory o Limited discretionary power When one makes decision about rights not much scope of discretion - Equality before the law o Between governors and the governed o Officials subject to law same as ordinary person o Executive/crown subject to law - Constitution comes from rights of citizens o Refers to bottom up nature of UK constitutional law o Not imposed via positivist code or rule o UK still has no written constitution In Australia - Plaintiff S157/2002 v Cth (2003) 211 CLR 476 o Australian Constitution is framed upon assumption of rule of law - Rule of law should guide interpretation of statues or even Constitution - Rule of law explains purpose or value of certain constitutional principles/institutions o Judicial review of executive action Constitutional Conventions - Political rules o Customs or practices that are habitually followed by govt - Governments under moral/political obligation to continue following them - Breaches not enforceable in court of law o No legal sanction o If govt break, can complain but can t take govt to court or get remedy for breach - Prime Minister o Not mentioned in Constitution o Creature of convention - Governor- General o Important but by convention acts on advice of govt, the PM - Impossible to codify all rules surrounding processes of govt - Govern exercise of these legally conferred discretions - Allow flexibility to permit shifts in power 2

3 Bicameralism - 2 houses in Parliament o Upper house o Lower house popularly elected most power - Conventions in lower house - In UK: o House of Commons (elected) o House of Lord (hereditary before) - In Victorian Parliament o Upper house: legislative council o Lower house: legislative assembly - In federal (Cth) level o Upper house: Senate o Lower house: House of Representatives - Queensland has only 1 house of parliament What makes a government representative? - Doctrine of representative govt refers to composition of lower house of Parliament - Lower house chosen by the People and democratically elected - Senate democratically elected but not in the same way as rep o 12 for each state - Represent Australia Do we have a responsible government? - Under doctrine of responsible government executive is responsible to legislature - By convention the Crown (rep by GG) acts on advice of its Ministers - Ministers in turn, incl PM, may only remain in govt whilst have confidence of Lower House o Majority in the House of Rep - Govt require majority in Senate to govern? o No - doesn't happen often - Parliamentary control of supply o Money = supply o To be able to govern, must be able to guarantee supply o Must originate in lower house o By convention, senate pass supply Only constitutional restriction S 53 requires bills originate in House of Representatives denies Senate powers to amend such bills o Reserve power for GG 3

4 Separation of Powers - Prevent concentration of too much power in single arm of govt - Operates as check and balances o No one govt arm unduly harms interests of governed Judicial Independence - Executive o Implements the law o May not influence judiciary - Judiciary o Interprets the law o May not make or implement law - Parliament o Makes law o May not influence judiciary Federalism - Constitution assumes federal systems o Federal parliament Canberra o State parliament 6 o Territory Parliament Not autonomous Remain under fed Could legally abolish Override legislation s Aus federation o Likely bring self-governing colonies together than pact to cede all power to central govt o Provides decentralisation of power Acts as check against abuse of power and development of unwieldy bureaucracies More local participation in decision-making o Preserve rights and preferences of local communities - S 51 of Cth Constitution o States retain exclusive authority over residual powers - S 109 o Cth laws prevail over State laws in cases of inconsistency Referenda and Reform - Section 128 o Requires majority of electors in majority of states - 44 referenda only 8 successful 4

5 Fundamental instruments 1. From Colonisation to Federation 2. Colonial and State Constitutions, including the Constitution Act 1975 (Vic) 3. Overview of Australian Constitution focusing on Cth of Australia Constitution Act 1900 (UK) 4. Imperial connection: a. Colonial Laws Validity Act 1865 b. Statute of Westminster 1931 c. Australia Acts 1986 d. An Australian republic? - Indigenous language group/nations of Australia at 1788 From Terra Nullius to Recognition - Cooper v Stuart (1889) 14 App. Cas. 286 o Colony which consisted of a tract of territory, practically unoccupied, without settled inhabitants or settled law terra nullius - Millurpum v Nabalco (1971) 17 FLR 141 o Evidence shows subtle and elaborate system highly adapted to country in which people led lives o Which provided stable order of society and was free form vagaries of personal whim or influence o Government of laws and not of men Mabo v Queensland [No 2] (1992) 175 CLR 1 - Native title - Didn't question validity of reception of English law in Aus - HC: o Some aspects of pre-existing Indigenous customary law survived importation of English Law Specifically Indigenous property law o Didn't accept diminution in validity of reception of English law in Aus - Despite fictional basis o English settlement and application of own law was legal in int law at the time o Remains valid in Aus law o Although not valid in Indigenous law When was English law received? - Applied automatically to settled colonies - Legal validity deemed by (by Imperial Parliament) of Australian Court Act Date of reception of statutory law 1828 for NSW, Tasmania, Victoria, Queensland - Reception date of common law is date of each colony s settlement - Australian Court Act 1828 o Confirmed ability of Imperial Parliament to enact new legislation for Aus colonies after settlement 5

6 From Dictatorship to Responsible Government Dictatorship Colonial Laws Validity Act 1865 (UK) Commonwealth Constitution Act 1900 New South Wales Courts Act 1823 (UK) Victorian Constitution Act 1855 (UK) Australian Courts Act 1828 (UK) Australian Constitution Act (No 2) (UK) Colonial govt - Largely autocratic o Not representative or responsible - Some moves toward more limited system of govt o Court Acts o Australian Constitutions Acts Colonial Parliaments could make laws, but for what? - Limits on Colonial Parliaments o Repugnance Colonial Laws Validity Act 1865 (UK) Confirmed paramount force of certain legislation deliberately extended to colony after settlement Conceded power to colonial parliaments to amend or repeal laws incl common law received by colonies o Upon settlement OR o Upon date determined by the Australian Courts Act 1828 (UK) subject to limits o Extra-territoriality Presumed to have territorial limits to jurisdiction o Disallowance S 59 Cth Constitution Permits Queen to disallow Cth law within 1 year of GG assent By convention doesn t exercise power After Constitution enacted - Statute of Westminster 1931 (UK) and Statute of Westminster Adoption Act 1942 (Cth) o Applies to Cth laws 6

7 o Abolished repugnancy rule Cth could repeal/amend any UK law that has prev applied to it o Cth Parliament has full extra-territorial power o UK Parliament no longer has power to extend laws to Cth except by request o Nothing in Statute of Westminster authorises Cth to override Constitution o But CLVA (repugnancy, extraterritorial limits, disallowance) applied to state parliaments Disallowance still applied to Cth parliament Appeals to Privy Council still permitted - Australia Acts 1986 (Cth) o Ended power of UK Parliament to legislate for states o States have authority to make laws with extra-territorial application o Affirmed plenary legislative power of states o CLVA no longer applies o State parliaments can repeal UK law o Abolished Privy Council appeals o Provided Australia Act and Statute of Westminster can t be amended other than via s 128 or via consent Why join together? - Trade - Defence - Emerging patriotism 7

8 Cth of Australia Constitution Act 1900 (UK) General Features Chapter I The Parliament - Establishes House of Representatives and the Senate Part I - Section 1 defines Parliament constituting o Queen o Senate upper house o House of representatives lower house - Section 2 Queen s rep is GG - Section 5 permits GG dissolving lower house as he thinks fit Part II - Senate Part III - House of Rep - Section 24 method of election of House Part IV - Miscellaneous matters pertaining to both HoP o Oaths o Affirmations of allegiance o Disqualifications o Disputed elections o Privileges o Remuneration Part V - Powers of Parliament - Section separate legislative powers exercised by Parliament o Held concurrently with State - Section 52 3 powers exclusively held by Cth - Section 53 powers of each H in respect of legislation - Section 57 deadlocks o Provides alternative legislative procedure Allows laws to pass without formal Senate approval o Steps pg 23 Chapter II the Executive Government - Section 61 8

9 o Executive power vested in Queen and exercisable by the GG - Section 64 o Appointment of Ministers to head administrative departments - Ministers also members of Federal Executive Council o Advices GG in exercise of some of his executive powers s 62 Chapter III the Judicature - HCA - Other federal courts created by Parliament: o Federal Court o Federal Circuit Court o Family Court - Section 71 exercise of judicial power of Cth in HC, fed courts, State courts - Section 72 tenure of fed judges - Section 73 appellate jurisdiction of HC - Ss 75, 76 judicial power of Cth Chapter IV Finance & Trade - SS 81, 92, 96 Chapter V Colonies/States Inconsistency - SS , 109, 116 Chapter VI New States and the Territories - S 122 Chapter VII Miscellaneous - S 125 o Location of seat o federal govt, ACT - S 126 o Authorises GG delegate duties - S 127 o Prescribe Aborigines not counted in census o Deleted by constitutional amendment in 1967 Chapter VIII Amendment of the Constitution - S128 o All statutes except Constitution may be amended or repealed, expressly or impliedly, by subsequent inconsistent legislation o Shields Constitution o Prescribes more onerous process o Amendment must normally be passed by absolute majority in both houses of Parliament o Restrictive procedure o Manner and form provision 9

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11 Appraisal of Constitution - Constitution reflects contemporary attitudes of drafters and persons in power in colonies: white, wealthy men - Indigenous Australians no input o No acknowledgement of prior custodianship of land - Women excluded o Male concerns addressed: Defence, trade and commerce o Women concerns not: Social welfare reform, welfare of family, domestic private sphere Republic? - Enactment of Australia Acts o Transformed into sovereign independent nation - Only remaining legal tie with British institution o Status as constitutional monarchy Queen of England o In her capacity as Queen of Australia head of State o GG as her rep 11

12 State Legislative Power - Each former colony had own Constitution - Authority to enact conferred on colonial parliaments by Australian Constitutions Act (No 2) 1859 (Imp) - Typically stated that colonial parliaments had power to make laws for the peace, order and good govt of colonies Union Steamship v King (1988) 166 CLR 1 - Regarded as plenary legislative power o Plenary and ample o State law doesn't need to be checked like Cth law o Power to make laws for peace, welfare and good govt of State is enough - Constitutions preserved by s 106 of Australian Constitution - Limitations imposed by Colonial Laws Validity Act removed by the Australia Acts in 1986 Cth c.f. State Legislative Power - Cth legislative power limited by Australian Constitution o Ss 51 & 52 enumerate heads of legislative power - Legislative power of States plenary o Not enumerated in Australian Constitution o State legislation can t be invalidated for being unconducive to peace, order and good govt o State legislatures can make laws with respect to any matter they think fit Exceptions can t abolish themselves, can t replace with non-parliamentary body State Parliament continue to exist in democratic form Obiter o Vic Constitution, 16: powers in and for Vic in all cases whatsoever How can state legislate extraterritorially Regulating laws is enough Problems: Enforcement: can t enforce other state need permission Powers of Australia s State Parliaments Plenary Legislative Power - Constitution Act 1975 (Vic) s 16: o Parliament shall have power to make laws in and for Victoria in all cases whatsoever - Constitution Act 1902 (NSW) s 5: o Legislature shall, subject to provisions of the Cth of Australia Constitution Act, have power to make laws for the peace, welfare, and good govt of NSW in all cases whatsoever - Australia Act 1986 (Cth and UK) s 2(2): o Legislative powers of Parliament of each state include all legislative powers that the Parliament of UK might have exercised before commencement of this Act for the peace order and good govt of that State Power to make delegated legislation and extraterritorial laws 12

13 - State can make laws giving wide power to executive to make delegated legislation - Can make extraterritorial laws Power to amend own Constitution Acts - HC: o Even though state constitutions could be amended by Parliaments o Were binding o Overrode inconsistent laws o Until expressly amended - Cooper v Commissioner of Income Tax [1907] HCA 27 o Power of state legislature derived from grant o Could not make any law inconsistent with Constitution - McCawley v The King [1920] UKPCHCA 1 o Constitution uncontrolled Consequences of freedom admit no qualification o State parliament could Ignore constitutions, amend them By express amendment By passing alter acts inconsistent with them As long as matter amended not entrenched o Established doctrine of implied repeal/amendment 13

14 Limits of powers of State Parliaments - Durham Holdings Pty Ltd v NSW (2001) o Implicit constitutional limitations o In Aus: State not free-standing Not mere historical colony given diff name It is State of Cth Derives constitutional status from federal Constitution May be inferred, from Constitution, State is a polity of particular character S 107 provides, and requires, each State should have parliament Must be of kind appropriate to state of Cth and to legislature that can fulfil functions envisaged for it by Constitution o CL limit state legislative power? State legislatures empowered to limit CL rights provided legislation sufficiently clear o Compensation payable would be kept o Law invalid: Common law protection of compensation that it received from govt Common law presumption that parliament don't intend to acquire property without compensation o HC: no problem Parliament State power is plenary - Kable v DPP (NSW) (1996) 189 CLR 51 o No non-territorial restrains on parliamentary supremacy arise From nature of power to make laws for peace, order (or welfare), and good government OR From notion that there are fundamental rights which must prevail against will of legislature o Court once ascertained true scope and effect of Act of Parliament should give unquestioned effect to it accordingly o Main argument: Legislation unconstitutional Vested power in supreme court incompatible with integrity Fundamental CL right parliament can t destroy Right to liberty o Parliament supremacy imbedded - Power of court to go against parliament sovereignty? - Union Steamship Co v King (1988) 166 CLR 1 o No nexus at all no legislative power o Peace order and good governance Limits on State Legislative Power - Australian Constitution o Express ex, s 92 o Implied 14

15 - Human Rights o CL o Charter of Human Rights and Responsibilities 2006 (Vic) Protected rights: sections 8 27 Section 7(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including a) the nature of the right; and b) the importance of the purpose of the limitation; and c) the nature and extent of the limitation; and d) the relationship between the limitation and its purpose; and e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve. Civilian rights Rights aren t absolute Proportionality test Judges shouldn't make value judgements o Because should apply the law scientific exercise o No personal opinions and values o Represent elite white elder male (inherently conservative) Bring certain ideology to judgement Judges make judgements? Or legislative? - Case: mon se o Judges Nature of judging and judicial power Victorian Charter: Dialogue Model of Rights Protection Legislature Executive Judiciary S 28: - Statement of compatibility must be tabled S 29: - SoC doesn't affect validity, operation or enforcement of law S 38: - Public authorities must act in manner compatible with protected rights, and take rights into account when making decisions S 37: - Where court has made declaration of incompatibility, responsible minister must table 15 S 32: - Laws must be interpreted in way that's compatible with rights, insofar as is possible consistently with their purpose S 36: - If a compatible interpretation is not possible, courts can make declaration of incompatibility

16 response in Parliament - No effect on validity of Act S 39: - No cause of action arises due to breach of Charter by public authority - Not useless power of declaring rights and diff branches o Raise profile of rights in community Power to enact racist laws prevented only by Racial Discrimination Act RDA stopped states from making it impossible for Ind people to apply for land title o Mabo v Queensland (No 1) - If not for RDA o States could impose race-based restrictions on voting rights 16

17 Manner and Form Requirements Changing State Constitutions - Flexible - Subject to 1 exception, can be: o Amended by ordinary legislation o Impliedly amended by inconsistent legislation o Without any special process eg referendum - CL parliament can t rigid - Australia Act can make whatever law they want - Exception to general principle that state constitutions are flexible: o Australia Acts s 6: A law made after the commencement of this Act by the Parliament of a State respecting the constitution, powers and procedures of Parliament of the State shall be of no force or effect unless it is made in such a manner and form as may from time to time be required by a law made by that Parliament. Can make whatever law they want Have to comply with manner and form requirement o Why rigid? Bind later parliaments consistency, provides good instability (composition of govt can t be changed according to whim of parliament at the time) o Some structure are fundamental, highly valued must be protected from interference o Issue: Cause implications to parliament sovereignty Less than plenary legislative power Struggle between parliament sovereignty and idea parliament should restrict laws relate to fundamental laws o Court: provided not substance changed doesn t constitute impermissible abrogation of parliament sovereignty Substantive restraint abdication power Wouldn't permit changing substance of law Ex, extreme onerous referendum State constitution contain some that can t be amended/repealed o Require special procedures Referendum Absolute majority Constitution, Powers and Procedure Dixon J in Trethowan - Constitution o Enables legislature to deal with its own nature and composition - Procedure o Enables it to prescribe rules which have force of law for own conduct 17

18 Laws which relate to its own constitutions and procedure must govern legislature in exercise of its powers including exercise of its power to repeal those very laws - Powers o Might deal with own legislative authority Under such a power a legislature, whose authority was limited in respect of subject matter or restrained by constitutional checks or safeguards, might enlarge the limits or diminish or remove the restraints Conversely, the power might be expected to enable a legislature to impose constitutional restraints upon its own authority or to limit its power in respect of subject matter - Eg: o Changes bicameral to unicameral o Changes majority requirement o Composition of houses o Parliamentary privilege o Electoral distribution 18