Public Law Exam Notes Guide Contents:

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1 Public Law Exam Notes Guide Contents: Intro to Con Law.. 2 Const. Docs and History.. 2 Const. Structure and themes.. 4 Australian Const & Amendment.. 8 Manner & Form Human Rights Protection.. 12 Representative Democracy.. 14 Judiciary Apt and Rem of judges...17 Separation fed judicial power...17 Defining judicial power...19 Judicial power and admin tribunals...22 Exceptions to sep. of power.. 22 Implications arising from Ch III...25 Detention & Cth Ch III and states Executive GG Sources/scope of exec power...38 Responsibility of exec to parliament...42 Exec rule-making Accountability to parliament...46 Open Govt FOIs Exec Accountability Judicial review Reasons for Admin Decisions...58 jurisdiction justiciability Tribunals: merits review Tribunals: investigative Ombudsman ICAC

2 Introduction to Constitutional Law: Commonwealth has defined powers that are usually concurrent with the states, but also financial + exclusive powers in certain areas States have plenary powers Where there is an inconsistency between state and commonwealth legislation, the commonwealth prevails (s 109) Constitutional Documents and Their History: Colonial Origin 1788: penal colony where English law displaced the law and the land of the original people, absolute rule by Governor 1823: Supreme Courts of NSW and Tasmania 1842: Legislative Council established in NSW, 24 elected and 12 nominated 1850s Australian Constitutions Act 1850 (Imp) o framework for local constitution-making 1865 Colonial Laws Validity Act o s 3: freed colonies from wide interpretation of repugnancy principle (only if UK addressed that colony did repugnancy apply) o s 5: allowed colonies to alter their constitutions (state) o CLVA remained in Commonwealth law until 1939 with ratification of Statute of Westminster o CLVA remained in state law until Australia Act (1986) Background to Federation Customs tariffs were an issue at colonial borders There was also a fear of common enemies in Pacific and Asia Constitutional Conventions in the 1890s Canada and UK both provided models of Westminster federation BUT they both gave too much power to central govt and didn t recognise rights of states (with UK being a unitary govt) The US offered best solution of federation, separating powers at state and federal level Rejection of Bill of human rights (suggested by Clark) reflected the British psyche at the time of implied responsible governance 2

3 and rule of law under Westminster (upholding Dicey s belief in strength of common law) Draft Constitution approved in referenda in colonies Commonwealth of Australia Constitution Act 1900 (UK) s 9 Constitution reflected the concerns of the time: trade, commerce, defence not human rights or aspirational The Statute of Westminster 1931 (UK) Drafted after Balfour Declaration 1926 Marked major shift from British Empire to British Commonwealth of Nations Adopted by the Cth Parliament in 1942 (retrospective to 1939) Applied to Cth (but not states) could now repeal or amend a UK Act which had previously applied to it States still operated under CLVA until Australia Act 1986 The Australia Acts Final step in severing legal ties with UK Australia Act 1986 (Cth) On the request and consent of each state Brought end to UK parliament legislating for Australia Removed doctrines of extraterritoriality and repugnancy Terminated appeals from the states to Privy Council S 15 provides that neither Australia Act nor Statute of Westminster can be amended except by referendum or with request and consent of all the states Sue v Hill (1999): HCA held that UK citizen was not eligible to run as MP until she renounced her UK citizenship Upheld the Australia Act, where they regarded United Kingdom as a foreign power Per Gleeson CJ, Gummow and Hayne JJ: o no institutions of government of the United Kingdom exercise any judicial powers with respect to this country o while the text of the constitution has not changed, its operation has the constitution speaks to the present and its interpretation takes account of and moves with these developments o 3

4 AG v Marquet Constitutional validity of the Australia Act (Cth) AG(WA) v Marquet (2003): Australia Act held valid under s 51(xxxviii) Rejected the necessity for and relevance of the UK Australia Act Constitutional Structure and Themes What is a constitution? Source of legitimacy in Australia: o Legal sovereignty of British Parliament which enacted Australian Constitution o Popular/political sovereignty in Australia: Australian people as electors Deane J: the present legitimacy of the constitution lies exclusively in the maintenance by the Australian people (by referenda) Two common characteristics: o Fundamental or basic law of the land (legal source of legitimate authority) o A higher form of law: hierarchically superior to other laws, prescribed procedure for amendment Separation of Powers Dispersal of power between 3 branches of constitution legislature, executive and judiciary Cth Constitution: organised e.g. Chp 1 Parliament No strict separation between legislature and executive (unlike American Presidential system) But generally: o legislative is the making of new law o executive is general and detailed carrying on of government according to law o judiciary is interpretation of the law and its application/discretion to facts of particular cases The complexity of society is making separation of powers less clearcut But there is importance of separation of judicial power from legislation/executive (Boilermaker s Case) 4

5 Source of Power: Popular Sovereignty Australian constitution historically derives its validity from exercise of British sovereignty But Constitution did accept popular sovereignty from prefederation referenda (although only 52% of Australia s eligible voting population did so) Also argued that Constitution is binding by popular sovereignty because of its continued acquiescence by Australian people (Deane J in Theophanous) However George Williams & Helen Irving argue that this does not reflect support or popular sovereignty Federalism: Distribution of power between federal and state governments (centre and regions) The need for a written legal document to bind both federal and state governments, that neither government can change Distribution of legislative power: o Powers of the Cth Parliament listed in: S 51 (concurrent): s 109 valid Cth law prevails S 52 (exclusive) o States have powers to make laws for any undefined residue not in s 52 or s 51 Federalism in the Cth Parliament: o Each state has equal number of senators (12) plus 2 for ACT and NT o Other federal elements: E.g. s 51(ii) Taxation power but so as to not discriminate between states S 92: trade within the Cth to be free Why federalism? o No centralised power preventing tyrannical rule (pluralist democracy) o More opportunities to access the government (dual citizenship/double democracy in state and Cth) o More particularised resources 5

6 Federalism is described as either having centripetal/centrifugal tendencies: power either moving towards centre (centripetal) or moving away from centre (centrifugal) Westminster System Responsible government: balance of power in lower house of Parliament determines leader of government and composition of ministry Governors/GG act on advice of parliamentary leader Ministers administer Depts of State and must be members of Parliament Collective and individual ministerial responsibility to Parliament Parliamentary Sovereignty Supremacy of parliament: parliament has the right to make/unmake any law and no body can override parliament (Dicey) British constitutional theory of 19 th Century: parliament can make/unmake any law it chooses A parliament cannot bind future parliaments But not necessarily supreme power as some sovereigns have law above parliament (e.g. Australian constitution) o Cth constitution limits parliaments powers o Judicial review However states do have closer to supreme parliamentary sovereignty Rule of Law: All persons and authorities public and private bound by law Core idea is limited government: principle of legality Not specifically referred to in Cth or State Constitutions o But assumed to be part of fabric of public law S 75(v) was recognised by Dixon J as Australia s rule of law no commonwealth officer shall be above the law There should be legal norms that are prospective, open and clear The rule of law isn t value-free (needed to be considered in context) 6

7 The intention of Parliament is a product of both legislative purposes gleaned from the statute as a whole and judicial interpretation sensitive to deep-rooted Western values Dicey: rule of law is o No man is punishable unless they breach the law o Every man is subject to ordinary law of realm o Enforcement of rights of individuals Al Kateb v Godwin: executive imprisoned Palestinian, High Court held that there was nothing they could do to override executive (4:3 split) 7

8 12/02/2012 4:52:00 PM Australian Constitutions and their Amendment Rigid versus flexible constitutions: Cth is a rigid constitution that cannot be changed like ordinary law o S 128: a proposed law to alter the Constitution must be both passed by an absolute majority of both Houses, AND at a referendum State constitutions are flexible and can be changed by ordinary law (however may have manner and form provisions to protect it) Amendment of Commonwealth Constitution Two-track law making system: ordinary law & constitutional law Amendment of Cth constitution: S 128 o Requires absolute majority in both houses; AND o At a referendum, passed by a majority of the population as a whole, and a majority of the population in a majority of the States 3 types of referenda: o federal amendments (to alter state-commonwealth relations) o social amendments (Aboriginals 1967) o machinery amendments (Republic 1999) Amendment of State Constitutions Constitutional Amendment Flexibility of State constitutions confirmed by HCA in Taylor v AG(Qld) 1917: Taylor v AG Qld Constitution required laws to be passed by Legislative Assembly and Legislative Council 1908 Act provided an alternative procedure for dealing with deadlocks: viz a referendum bypassing the Legislative Council HCA held 1908 Act is valid