!"#$%&'&( #$%&'(!)*+!,-./0! !!!!!! ! "

Transcription

1 !"#$%&'&( #$%&'(!)*+!,-./0!!!!!!!! "

2 Table of Contents )*+(,-*.*/(01(2-*(3456/*( (8! Constitutional Law and the Rule of Law!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#! A(BC:/-.91/2*6(D+E69<F( (G! Structural Overview of the Australian system of public law!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!$! Introduction: Liberal Ideas!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%! Models for designing an Australian Constitution!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%! Features of the US and UK Models!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!%! Contested Traditions: Political and Legal Constitutionalism!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!&! Indigenous Sovereignty and Crown Sovereignty!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!'! Indigenous People, Voting and The Constitution (go back over and shorten this)!"""""""""""""""""!((! From CLVA and the Path to Federation!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!()! Popular Sovereignty!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!(#!,-*(>*H9/;:256*( (&G! History, Functions & Characteristics!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!($! Who is eligible to sit for Parliament?!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!(%! Accountability!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!(&! Who can vote?!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!('!,-*(>*h9/;:256*(ijk( (jl! Voting Rights at Federal Elections!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#$! M2:25246+(012*6N6*2:2941(I&K( (J'! Language, Purpose, Context!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#%! Extrinsic Materials!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#%! Constitutional Considerations!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#&! Judicial Parsimony!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#&! Ambiguity and Judicial Choice!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#'! Principle of Legality!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#'! M2:2*(341/ /(:1<(M2:2*(>*H9/;:29O*(P4?*6( (JQ! State Legislative Power!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!*'! History & Composition!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!)#! Power!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!)#! Accountability: The Examples of Delegated Legislation!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!)%! Accountability: Judicial Review of Administration Action!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!+,! Accountability: Non Judicial methods - Responsible Government!"""""""""""""""""""""""""""""""""""""""""""""""""""!+)!!5<9T9:6+( ('%! History and overview!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!+%! Composition and appointments!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!+&! Power!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#,! Judicial Independence and the Separation of judicial power!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#,! Exceptions:!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#*! Accountability!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#)! #9H-2/(P642*T2941( (@@! Introduction!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!##! Parliament!""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#$!! 1

3 Common Law!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!#%! Overview!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!$#! The People and the Judges!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!$%! Expert Panel on Indigenous Recognition!"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""!$%! Key Themes In the Course Constitution: A document setting out the rules governing the composition, powers and methods of operation of the main institutions of government, and the general principles applicable to their relations to the citizens. (Sir Ivor Jennings, 1959) Constitutional Monarchy: A form of government established under a constitution which retains a monarch Federalism: A political system in which governmental power is shared between a central or federal government having power over the whole country, and regional governments having power over their respective regions Flexible: A constitution that can be changed as easily as ordinary legislation Judicial Parsimony: Practice of the courts exercising self-restraints. Essentially they look at legislature first and consider the constitution as a last resort. P 582 B&W for more information. Judicial Review: The power of the court to declare an enactment unconstitutional and invalid, where that enactment exceeds the powers recognized or conferred by the Constitution or infringes some express or implied constitutional limitation Monolithical Government: Façade of monolithical government. The Queen, represented in Australia by the Governor-General is Australia s head of state. Under the constitution it appears the Queen possesses a range of important powers. Section 59 of the Constitution enables the Queen to disallow laws made by federal parliament. In realist, this provision is obsolete and the Queen and Governor- General have little scope to act independently of advice Parliamentary Sovereignty: The principle that parliament may make or unmake any law it wishes Principle of Legality: A common law presumption that is related to the rule of law and has the assumption that all humans have rights. When interpreting statutes, it is considered that statute does not intend to impact on human rights unless it is explicitly stated. Representative Government: A system of government that requires members of parliament (the legislators) to be directly chosen by the people and to represent their electors in parliament Responsible Government: A system of government where the executive arm of government is responsible and accountable to the House of Representatives, which is in turn accountable to the people Rigid: A constitution that cannot be changed in the same manner as ordinary legislation. Instead, a special procedure needs to be followed Separation of Powers: The doctrine that the three arms of government (executive, legislative and judicial) are separate and that their respective functions and powers are mutually exclusive.! Designed to ensure stability in the system, prevent the abuse of power, provide checks and balances for each branch.! Constitutionalism: Idea that government should be limited in its powers and that constitutions should clarify the existence of these powers and identify their source.! Modern Views:! Legislative: words in the Acts passed by this branch not only contain the law, but in a sense constitute the law. Without a legislative body, a state could not provide law easily enough to meet modern conditions.! Executive: branch frames policy and chooses manner in which the law may be made to render that policy possible. Possible scope of these policies is now very wide.! 2

4 ! Judicial: Branch interprets the law and applies it by rule or by discretion to the facts of the particular cases. The Doctrine of Repugnancy: The doctrine of repugnancy (s 2 in the Colonial Laws Validity Act 1865 (Imp)) meant that if Australian legislation is inconsistent (repugnant) to that of the UK, it is invalid. Written and Unwritten Constitutions: Constitutional law may be written whereby it is written down in a single document, as is the case with the United States, India and South Africa. It can also be unwritten, where there is no actual document, which specifically sets out constitutional law, as is the case with the United Kingdom. : Australia s constitutional law is considered to be both written and unwritten. This is because the Constitution is supplemented by other acts such as the Statute of Westminster 1931 (Imp) and The Australia Act 1986 (Cth), as well as unwritten conventions and the common law : Constitutional Conventions- understandings, which supplement or even contradict the written rules. Of particular importance in an unwritten constitution but present in any political system! 3

5 Constitutionalism and the Rule of Law Constitutional Law and the Rule of Law Constitutional Law Public law: this is the body of law that governs the relationship between those in power and those who are not; examples include the ICAC, Ombudsman, administration, freedom of information, police powers; rules of court, Evidence Act, rules for lawyers; Parliament, electoral laws. The Commonwealth of Australia 1900 (Imp) sets out basic processes and defines the limits of governmental power. e.g. s. 57 describes the procedure for resolving a disagreement between the upper and lower houses of Parliament. If a bill has gone backwards and forwards between the House of Representatives and the Senate for more than three months, the Governor-General can call a double dissolution. If, afterwards, the bill is still presented for approval and disagreement ensues, a joint sitting occurs. Here, an absolute majority (>50%) of all the members who could have voted (even if they did not attend the sitting) is required. Despite the importance of the position, the Prime Minister is not mentioned in the Constitution. Rule of Law AV Dicey, Introduction to the Study of the Law of the Constitution 1885 pg B&W : Principle was centered around: 1. No man should be punished without breach of the law; 2. No man is above the law; 3. Constitution is the result of previous judicial decisions determing the rights of private persons. : Westminster System appears to mirror the views of Dicey. : Rule of law is ultimately the result of the ordinary laws of the land. Pg. 90 : Has faith in the government and favors parliamentary sovereignty. Has faith in it with respect to responsible and representative government, perceiving it as the supremacy of the law of the land. Argues that respect of rule of law comes from engrained values in the law. : In addition, will of parliament! increases authority of judges! immediately becomes subject to judiciary! word of enactment. Pg. 96 Barendt, Dicey and Civil Liberties 1985 : Questions Dicey s perceptions, noting that he has an exaggerated faith in parliament will respect the right of individuals and that too much power is concentrated on the legislative branch. : Argues that what Dicey considered arbitrary power was the autonomous, executive or prerogative power, whereas now concerned with the risk of governments abusing their power through legislature. : Dicey ignored the role of Parliament in safeguarding the Rule of Law: Valueless unless it is accepted as a rule, which binds the legislature, either as constitutional law or as a general political convention. : Dicey exaggerated willingness and ability of judges to safeguard the rule of law: most judges do not give certain rights enough weight or refuse to recognise the rights in question. : Also, freedoms are residual means everyone is free to do what the law doesn t prohibit. Common law unable to protect right against like discrimination or invasion of privacy. Jennings, The Law and the Constitution 1959 pg : Rule of law means a limitation of power on every authority, except perhaps a representative legislature. : A sovereign or any person acting on behalf of a state can only exercise power so long as he can authorise his act through an existing law : Equality before the law is flawed much legislation only apply to specific classes. : Very critical of Dicey look at it!! 4

6 A Washminster Hybrid Structural Overview of the Australian system of public law Constitution! High Court accepted that it is not just a document or statute but it is a contract between the people of the states. Recent years judges have gone further and suggested that the authority of the constitution now rests in continuing assent and therefore the sovereignty of the people! Aboriginal Australians possess no special status or origins under the constitution! Constitution combines the Westminster system of responsible government, in which the government ministers are members of parliament and regarded as responsible to it with an American style federal system that distributes legislative, executive and judicial powers between the state and federal levels! Chapters of the constitution 1. Chapter 1: Structure and powers of the commonwealth parliament and are detailed and comprehensive. Specify the composition, respective powers and procedures of the two houses of parliament 2. Chapter 2: of the constitution dealing with the structure of powers of the executive government and are so terse and elliptical as to be positively misleading. 3. Chapter 3 deals with the structure, powers and independence of the federal judicature Politics within Australian Public Law : Since Dicey s time, the public more often votes for a party than a set of policies (and one s chosen party rarely changes between elections), and political parties themselves are more disciplined. The effect of this is that more emphasis is placed on judicial review than on executive self-review. : J R Lucas points out that the US Supreme Court is both generous in its interpretation of the US Constitution and effective in its judgments (that is, they are adhered to by the government). : Cooper v Aar on (1958): The court believed that la w and order w ere not to be preserved b y depriving African American children of their constitutional rights, and also reaffirmed the judgement of Marbury v Madison, that the federal judiciary is supreme in the exposition of the law of the Constitution. Review of Government Decisions:! Merits review is a Process by which a person or body, other than the primary decision maker, reconsiders the facts, law and policy aspects of the original decision and determines the correct or preferable decision. Merits review, a new decision can be made after review of facts : Internal Merits Review: Decision made by officer of an agency is reviewed by another person in the agency; : External merits review: Fresh consideration of a case by an external body : Administrative Investigation: Commonwealth Ombudsman investigates complains about the administrative actions and decisions of most Australian government agencies to consider if unreasonable, unlawful or discriminatory. : Australian Human Rights Commission (AHRC) Judicial review! Review by a court of a decision to determine whether it was made within the lawful limits of the decision maker s authority including, where necessary in compliance with the requirement of procedural fairness;! The Constitution allows the courts to review (and, if necessary, invalidate) statutes enacted by any parliament which exceed the powers conferred by the Constitution or which infringe an express or implied constitutional limitation. In practice, constitutional issues are almost always reviewed by the High Court; judicial review cases are rare within the states.! Historically, the United Kingdom did not have this provision; until the case of Marbury v Madison, neither did the United States. One of the most famous Australian review cases was the Communist Party Case (Australian Communist Party v The Commonwealth (1951) 83 CLR 1)! Consistency with democracy (referring specifically to the High Court):! 5

7 : YES: judges are appointed by an elected government, they are intended to be independent, they must retire at age 70 (allowing for a regular turnover), there are checks on the court s power (e.g. parliament can make new laws, judges can be removed for misconduct), it in reality has little power of its own (it relies on the executive to punish offenders and to fund it; it can only decide disputes brought to its attention whereas the parliament can make laws about anything). : NO: judges tenures are very long and are assured (assuming no misconduct), governments often make partisan decisions when choosing judges having certain views, courts should not be allowed to meddle with parliament (according to A V Dicey). Introduction: Liberal Ideas Baron de Montesquieu! Considered the spirits of the laws! Noted that the first branch enacts temporary or perpetual law and amends/abrogates those that have already been enacted; second takes care of foreign policy; third resolves disputes and punishes criminals. : Without a separation there is no liberty. A judiciary joined with the legislature would expose citizens to arbitrary control of their lives, since the maker of laws would also be the judge of them. A judiciary joined with the executive would allow the judge to behave with violence and oppression. Models for designing an Australian Constitution! Talks about (1890) different models Australian constitution should adopt; Included Canada, UK, Switzerland, America and Germany! Much debate about whether to follow Canada! Captain William Russel (NZ) suggested adopting what is best from every kind of constitution to fit in particular needs! Referendum (Swiss); Pensioners (German)! Debate (Extensive) also went into the name of the commonwealth. Deakin defended it (well) stating that it simply meant common- well of the people! Constitution ended up adopting British and American principles! Adopted a principle for the first time with conflicting thoughts. It was the first time this had been done in the world, people feared it wouldn t work Features of the US and UK Models United Kingdom (Focus- establishing a chain of command) - Representative Government: Government by the people through their elected representatives - Responsible Government: The executive branch of government is responsible to Parliament (and therefore the electors too) for its actions United States (Focus- Protect people from the government by diffusing power) - Federalism: Government power is allocated among different political and territorial units - Separation of Powers: Allocates Executive, Legislative and Judicial powers to different institutions. - Judicial Review: Judicature has the power to strike down laws which are deemed inconsistent with the Constitution Australia s Washminster mutation: Australia s system takes features from both models: UK: two houses of elected legislature ( representative government ), an executive derived from the legislature ( responsible government ) i.e. can be elected and then dismissed at the next election), a judiciary appointed by the executive, Governor-General.! 6

8 Contested Traditions: Political and Legal Constitutionalism Institution/Concept US System Judiciary Review in the M v M sense: piece of legislation needs to be compatible with Constitution. Australian System - Parliamentary Sovereignty - Key philosopher is dicey Justifications/Benefits Separation of powers for impartiality of judges Limitations to this Power - Bound by the Constitution - Bound by precedent (to an extent) - Judicial is vulnerable due to limited sources reliant on other branches of government to enforce their conditions and rely on public sentiment - Legalism: 'rules of the game' objective view of the law - Final say and it is reflective of the people: Representativeness - Accountable electorate - Goldsworthy: extreme times its good to have a regulatory body that can work efficiently to solve the problems instead of it being distributed to the people, this can also be a detriment - Goldsworthy also says that generations should be able to change the law as they see fit with community values - No practical limitations - Conventions in place to stop abuses of power - Parliament has to act for the people otherwise they will not get re elected - Theory from Alan: if very justification for parliamentary sovereignty and qns if parliament does not legitimately establish a law: the judiciary can state doesn t correspond with current laws. E.g. fox hunting act Potential Problems Democracy - is it transparent or should decisions be made in parliamentary sphere - Parliament has the power to pass undemocratic laws - Effective! 7