LLB203 CONSTITUTIONAL LAW EXAM NOTES SEMESTER

Transcription

1 LLB203 CONSTITUTIONAL LAW EXAM NOTES SEMESTER

2 Week One - Constitutions and Institutions of Government - Lecture Podcast One: Basic Concepts What is a constitution? - Description of the way something is made up/constituted (Latin things that stand together ). - Legal bodies, from small associations to large nations, have a constitution basic rules that set up a body, define who is in charge, give powers to the leaders and maybe limit their powers as well. - When we talk of a constitutional government, assume that powers are limited by a constitution. - Even though England had no written constitution after 1688, it was regarded in Europe as model for a constitutional government because powers of the King and Ministers were limited by law. Rule of Law - The classic definition of the rule of law is provided by A.V. Dicey a British lawyer and scholar who in 1885 wrote the classic work, Introduction to the Study of the Law and the Constitution. In this work, Dicey described the rule of law as having three aspects: 1. the absolute supremacy of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of a wide discretionary authority on the part of the government ; 2. equality before the law ; 3. the laws of the Constitution are not the source, but the consequences of the rights of individuals, as defined and enforced by the courts. 1. Dicey s first aspect : The supremacy of law - The rule of law is in a sense the antithesis (opposite) of arbitrary rule. - The law should be consistent, predictable opposed to law made at behest of ruler/governing institution. - Professor T.R.S. Allan, an academic at the University of Cambridge, describes the first aspect of Dicey s formulation as follows: - At its core is the conviction that law provides the most secure means of protecting each citizen from the arbitrary will of every other. By being constrained to govern by means of general laws, the rules of society cannot single out particular citizens for special treatment. The law is to constitute a bulwark between governors and governed, shielding the individual form hostile discrimination on the part of those with political power. (see T. S. Allan, Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism (1985) 44 Cambridge Law Journal 111, ) 2. Dicey s second aspect : Equality before law - The rule of law requires those who govern parliamentarians, judges, Ministers and so on to be subject to the law, and to be held to account if they exceed or usurp their powers. - Contrast with George Orwell s, Animal Farm : All animals are equal, but some are more equal than others. 3. Dicey s third aspect : The Constitution reflects the rule of law - This reflects the idea of a written constitution as a product of popular will. - In other words, will of the people is reflected in drafting the Const, & people have power to change it. - S the Constitution can be changed by a referendum - As Dixon J said in Australian Communist Party v Commonwealth at 193:

3 - The Constitution is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect as, for example, in separating the judicial power from other functions of government, others of which are simply assumed...among these I think that it may fairly be said that the rule of law forms an assumption. - The existence of rule of law forms an assumption that underpins Const - not a rule that s stated explicitly. Rule of law in practice - In reality the idea of the rule of law is a complex mix of fundamental ethical and political principles. These are necessarily influenced by changing values, and in turn they influence those who exercise authority in our society, most notably the judges. (see K Mason, The Rule of Law, in P Finn (ed), Essays on Law and Government, Volume One: Principles and Values, Lawbook, 1995, 114.) - Ask yourself: how well does Australia s constitutional system of government embody the rule of law? - Is there a tension between parliamentary sovereignty and the rule of law? - There is an increasing recognition of the tension between the deference of the will of parliaments as expressed in legislation and maintenance of the rule of law. Parliaments are increasingly seen to be the de facto agents or facilitators of executive power, rather than bulwarks against it. (see Justice Toohey, A Government of Laws, and not of Men (1993) 4 Public Law Review 158, 163.) What is a constitution? - What can a constitution do? 1. It could make the executive government subject to the rule of law, while allowing parliament to make any law it likes (eg. Britain); 2. It could limit the powers of parliament as well, to protect civil rights (ie. a Bill of Rights); 3. In a federal system, it can divide powers between a central government and State or provincial governments. - US Constitution does 2 and 3; the Commonwealth Constitution does a bit of 2 but mainly 3. Basic Elements of the Constitution and Australian Federalism - The two main motives driving the colonial politicians towards federation were: - the desire for free trade between the colonies; and - the perceived need for a common defence and external affairs policy. - With the Commonwealth of Australia Constitution Act 1900 (Imp) the former six Australian colonies were federated under the Commonwealth Constitution into one nation. - The Constitution of the Commonwealth of Australia is technically s 9 of the Commonwealth of Australia Constitution Act (Imp). - Sections 1-8 are generally referred to as the covering clauses to distinguish them from the sections of the Constitution itself. - The Cth Constitution established the institutions of a national government and outlined their powers. - The colonies became States in the federation and retained their existing Constitutions and governmental arrangements, but these were modified by and subject to the Commonwealth Constitution (see ss ). - That is, in addition to the Commonwealth Constitution, each State has their own constitution - a Constitution Act - that imposes basic limits on the State executive government (and few limits on the State Parliament).

4 Podcast Two - History: UK and US Influence UK and US influence - Much of our early political and legal history is English history. Therefore you need to know some English political history and a few of the classic English cases. - However, our system is a blend of UK and US influence - the Washminster model. UK history limited monarchy, constitutionalism: - Early English government had Parliament to recommend laws, Ministers to do detailed executive government, Courts to administer justice all done under more or less pressure from the King (occasionally Queen) who was still the real ruler. - The divine right of Kings as articulated by James I: - Kings are justly called Gods, for that they exercise a manner or resemblance of Divine Power on earth. God hath power to create or destroy, make or unmake at his pleasure, to give life or to send death, to judge or to be judged, nor accountable to none. And the like power have Kings. They make and unmake their subjects, they have the power of raising and casting down of life and of death, judges all over their subjects and in all causes and yet accountable to none but only God. - However, Aristotle had written that it was better to be ruled by law than by a man, and the English put it into practice after the Glorious Revolution. - The Bill of Rights 1688 made the King s powers subject to Parliament and law see articles 4 and 9 especially. UK history Separation of powers? - Montesquieu claimed that England observed a strict separation of powers between legislative, executive and judicial bodies. - In fact this was incorrect - legislative and executive power must overlap in the system of responsible government (see Irving, 5 Things, and next week s lecture) - But what England did have was government subjected to the rule of law, a limit on prerogative powers, and independence of judiciary. UK history - Independence of the judiciary and the Rule of Law: - In Prohibitions del Roy (1607) 12 Co Rep 64, Coke CJ held that the King can t decide cases himself. - Act of Settlement 1701 provided that judges commissions continued quamdui se bene gesserint (on good behaviour). This gave judges independence from the executive government. - In Entick, the court declared seizure of property under general warrants illegal, and more generally that the executive could not do coercive things to subjects without a recognised source of power. UK history - Limits on prerogative power: - In early England, Kings claimed to have a range of prerogative powers - ie. powers that nobody else has. - Case of Proclamations (1610) 12 Co Rep 74 held the King could not make law by proclamation, and more generally, The King has no prerogative but that which the law of the land allows him (and of course the courts decide what the law of the land says). - As such executive powers come from two sources ancient prerogatives and express grants by statute. - Attorney-General v De Keyser s Royal Hotel - Government tried to avoid conditions imposed on resumptions by statute by arguing that they were using the prerogative, not the Act. - House of Lords held that where a prerogative power overlapped a statutory power, the prerogative was abridged by a statute, or subsumed into the similar statutory power.

5 UK history - Limits on prerogative power: - BBC v Johns [1965] Ch BBC (set up by charter, not by Act) claimed exemption from taxes as an emanation of the Crown, and also claimed immunity from judicial review. - Held, subject to jurisdiction of the Courts: It is 350 years and a civil war too late for the Queen s courts to broaden the prerogative. - Laker Airways Ltd v Department of Trade [1977] 2 ALL ER Held, having failed to enter by the front door [a statutory power], the Crown cannot enter by the back door [a revived prerogative]. UK history - Judicial review of administrative action: - Old prerogative writs (prohibition, certiorari, mandamus) had been available from early times, used by superior courts to supervise Justices of the Peace etc not used to correct actual decisions (which would be merits review ) but to check that their decisions were truly within their jurisdiction and they had considered all relevant factors etc - This principle gradually extended to all public servants, and eventually to Ministers in R v Minister of Agriculture and Fisheries ex p. Padfield [1968] AC 997, and is now the basis of administrative law. - Note the use of term judicial review in this context - the judiciary will review legality of administrative action (but not merits of eventual decision), but in UK there is no judicial review of validity of laws because of the sovereignty of Parliament. UK history - Sovereignty of Parliament: - Stuart Kings had claimed absolute power, and parliament led the fight against them, so parliament ended up with absolute power - A.V. Dicey, Introduction to the Study of the Law and the Constitution, popularised notion of parliamentary sovereignty parliament can make and unmake any law it likes. - This principle was confirmed in Pickin v British Railways Board [1974] AC Pickin tried to challenge validity of an Act on ground that its passage was induced by fraud - Held, once Court is satisfied that Act has been passed and received assent, it can t question validity. UK history - English system brought to the colonies: - Notwithstanding indigenous here before First Fleet, English settlement brought English law to Australia. - Colonies all ended up with Constitution Acts (enacted by their own Parliaments under powers granted by Imperial Parliament) which established Westminster-ish constitutions. - In the 1890s, colonists found life in separate colonies caused problems and sought to federate which brought in American ideas. US history - The American colonies rebelled in 1776 and called themselves States (meaning nations), and formed a confederation central government had no tax powers, and there was a need for unanimous decisions. - The States realised the central government was too weak, so in 1787 the States sent delegates to Philadelphia to draft amendments to the Articles of Confederation. - Instead they drafted a completely new Constitution with a stronger central government (still calling the units States, even they weren t sovereign any more). - The new Constitution tried to keep central power under control by:

6 1. dividing central power between legislature, executive and judiciary (Arts 1,2,3); and 2. dividing legislative power between the central government and States; 3. (later) adding a Bill of Rights. US history - Division of legislative power: - a list of powers given to the Federal Congress (Art 1, s 8 - list of 18 powers); - everything else left to the States (assumed at first, spelled out in 10th Amendment). - Separation of powers in the federal government: - Art 1, s 1 - legislative power is vested in the Congress; - Art 2, s 1 - executive power is vested in the President; - Art 3, s 1 - judicial power is vested in the Supreme Court. - Compare ss 1, 61 and 71 of Commonwealth Constitution. US history - Judicial review in the US: - Although US Constitution gives restricted list of powers to Congress, it doesn t say who polices this - Some thought Congress should police itself, but Hamilton argued in the Federalist Letters, No 78, that Supreme Court should have power to interpret Constitution and rule laws invalid. - This was confirmed by Supreme Court in Marbury v Madison. - Therefore, the US has judicial review of the validity of legislation (and so do we in Australia). UK and US influence - The main outline of the Constitution followed the model of the Constitution of the United States of America. - The two main features copied from the US Constitution were: 1. a division of legislative powers between the Commonwealth and State Parliaments, on the principle that the Commonwealth has an enumerated list of legislative powers, and the States retain the residue (see ss 51, 52, 107, 109); 2. a structure for the Cth government which reflects the doctrine of the separation of powers. UK and US influence - On the other hand, the founders consciously departed from the American model, and preserved elements of the English Constitution, in the following respects: - the monarchical element was retained - ss 1 and 61 ostensibly make the Queen herself a part of the system of government (but then s 2 and further words in s 61 make it clear that her powers are in fact to be delegated to a Governor-General); - the doctrine of Cabinet government was expressly recognised by the requirement in the final paragraph of s 64 (What does this mean for the separation of powers?); - while the US Constitution includes a wide-ranging Bill of Rights, no such general limitation on legislative power was included in our Constitution. However, there are some few sections which amount to a mini-bill of Rights - see ss 80, 92,

7 Podcast 3: An introduction to constitutional law issues Structure of the Constitution Division of legislative power - Source of Commonwealth legislative power: - The Cth Constitution established the Cth Parliament and conferred legislative power upon it. - The most important grants of legislative power are to be found in ss 51 and State legislative power: - The colonial Parliaments already had general grants of power to make laws for the "peace, welfare" (in two cases, "order") "and good government" of each colony. - The new Constitution kept colonies in existence as States (covering clause 6, and s 106 as to their Constitutions), and provided, in s 107, that the State Parliaments should continue to have all the powers which they had previously had except for those that were vested exclusively in the Cth Parliament. Constitutionality of Commonwealth Statutes - To test whether a Commonwealth law is valid, you first need to ascertain whether there is some provision in the Constitution specifically authorising the making of that kind of law. - Commonwealth power is also subject to some prohibitions in the Constitution, of which the most important are ss 80, 92, 99, 114 and 116, and the inbuilt limitations in paras 51(ii), (xiii), (xiv) and (xxxi). There is also an implied prohibition of laws discriminating against the States. Constitutionality of State Statutes - There is no need to look for a grant of power when considering State laws - State Parliaments have the power to make laws for the "peace, welfare and good government" of the State. - So you do not need to check a State law to see if it is supported by a head of power, but you do need to check whether: 1. it infringes one of the prohibitions in the Commonwealth Constitution which, although expressed generally, tend to apply particularly to the States - ie ss 92 and 117; 2. it infringes a prohibition applying specifically to the States (ss 114 or 115), or relates to a topic which the Cth Constitution reserves as exclusive to the Cth, ie ss 52 and 90; 3. it breaches an implied prohibition such as free speech or the independence of the judiciary; 4. it is contrary to some binding "manner and form" provisions regulating the relevant State's power to make certain laws; 5. if it purports to apply outside the State, whether the subject matter has a sufficient connection with the State; and 6. even if prima facie valid, whether it is inconsistent with a valid Commonwealth law (s 109)

8 Week 2 Tutorial - Week 1 Content Question 1 What is the rule of law? To what extent are the basic characteristics of the rule of law operative in Aus? - All persons and organisations including the government are subject to and accountable to the law - The law is clear, known, and enforced - The Court system is independent and resolves disputes in a fair and public manner - All persons are presumed innocent until proven otherwise by a Court - No person shall be arbitrarily arrested, imprisoned, or deprived of their property - Punishment must be determined by a Court and be proportionate to the offence Example of the rule of law: - Judiciary reigning in the executive when they go beyond their power - Senators getting charged with bankruptcy Question 2 What are the basic characteristics of a Westminster system of government? To what extent are those characteristics operative in Australia? - Bicameral parliament, - Separation of powers - Royal prerogative special powers of royalty - Heads of exec appointed from Legislature - Free trade between the states - Notion of responsible government Prime Minister acts upon the advice of the Party s ministers, who are in turn members of parliament Question 3: Case Reading Question Read Marbury v Madison, 1 Cranch 137; 2 Law Ed 135 (1803), especially the last couple of pages. As between the parties, who won formally and in reality? In so much as it was a contest for power between the Supreme Court and the legislature and executive, did the Supreme Court renounce power or expand its power? Why are we asking you about this American case in a course on Australian law? - Main finding judiciary has the right to scrutinize a law and declare it invalid if it is inconsistent with the constitution or it is a power not granted to the executive Lecture/ readings takeaways? - are constitutions all about power? in historical and contemporary context, can you think of examples of: - grants of power - limits of power - sharing of power - Const is a power sharing arrangements, could be seen as a contract between the men who ran the states - Judges decided on what the limits of power should be: - Eg states given residual powers ours is a federalism in action what does this mean? - Federalist structure is constantly evolving and changing - Education, tax, gst, gonski reforms, the balance between state and federal governments (more power you give to cth the less state has) - Federal government is our biggest earner income tax, gst, - State governments have little ways to earn money only have stamp duty, payroll tax ours is a system that is fundamentally broken do you agree? - Broken cross over in executive and legislature (executive is being appointed from the legislature) - Broken power imbalance as states have to beg for money from cth

9 Week Two - Separation of Powers - Lecture Podcast One - Separation of Powers History - The divine right of Kings as articulated by James I: - Kings are justly called Gods, for that they exercise a manner or resemblance of Divine Power on earth. God hath power to create or destroy, make or unmake at his pleasure, to give life or to send death, to judge or to be judged, nor accountable to none. And the like power have Kings. They make and unmake their subjects, they have the power of raising and casting down of life and of death, judges all over their subjects and in all causes and yet accountable to none but only God. - Up until the 18th century in the UK, all power of government, namely the power to legislate, to administer and to judge, resided in the one source, namely the King. - The doctrine of the separation of powers was the political and theoretical response to the movement from the divine right of kings to a model of government in which power was shared by different institutions and groups within a society. Theory - The theory behind the separation of powers is essentially that power corrupts and absolute power corrupts absolutely. - Consider the writings of Baron D Montesquieu: - Political liberty is to be found only where there is no abuse of power. But constant experience shows us that every man invested with power is apt to abuse it and to carry his authority as far as it will go. It is not strange, though true, to say that the virtue itself has need of limits. Separation of powers and the Commonwealth Constitution - The separation of powers is embodied in the structure of the Constitution: - Chapter 1: The Parliament (legislature) - Chapter 2: The Executive Government (executive) - Chapter 3: The Judicature (judiciary) High Court and the separation of powers - Marbury v Madison - Wilson v The Minister for Aboriginal Affairs - The Constitution is based upon a separation of functions of Government between the three classes of legislative, executive and judicial functions. - Each branch of Government and its powers are vested by the sections of the Constitution and relevant chapters of the Constitution. - The understanding and the character of these powers are to be determined with regard to historical British conceptions. - The vesting of judicial power by Chapter 3 of the Constitution in the Courts is taken to be a fundamental requirement for the maintenance of liberty, with the Court referring back to Montesquieu s proposition that there is no liberty if judicial power is not separated from the legislative and executive power. - The Court has placed a greater level of importance around the separation of judicial power than it has around the separation of legislative and executive power. - R v Davison - It is well to remember that the framers of the Constitution in distributing the functions of Government amongst separate organs, are giving effect to a doctrine which was not a product of that abstract reasoning alone, and was not based on precise definitions of the terms employed. As

10 an assertion of the two propositions that the Government is in its nature divisible into law-making, executive action and judicial decisions, and that it is necessary for the protection of the individual liberty of the citizen that these three functions should be to some extent dispersed rather than concentrated in one set of hands, the doctrine of the separation of powers has developed in political philosophy and was based on an observations of the experience of democratic states, and particularly upon observations of the development and working of the system of government which had grown up in England. Podcast Two - The Executive The Executive - What are we talking about when referring to the Executive. - Term often is interchanged with The Crown or The Government or The State - Different meanings when used in different settings. - For a comprehensive examination of the uses of the term the Crown, see Sue v Hill at Generally the executive refers to the executive government comprising of the Queen, Governor-General and Governors, Ministers and Departments and agencies of government. The Queen - Constitutional Monarchy with the Queen playing a limited but continuing constitutional role. - Numerous references to the Queen in the text of the Constitutions of the Commonwealth and States. - For example: - s 61 of the Commonwealth Constitution provides that the executive power of the Commonwealth is vested in the Queen. - s 2 of the Commonwealth Constitution provides that the Queen appoints the Governor-General (and, by implication, can dismiss the Governor-General). - s 64 of the Commonwealth Constitution describes Ministers as the Queen s Ministers of State for the Commonwealth. - The actual role played by the Queen, however, is governed by unwritten conventions of political practice and constitutional behaviour. - The evolution of the relationship between Australia and the United Kingdom reflected in landmark events such as the Balfour Declaration 1926, the Statute of Westminster 1931 (UK) and its adoption by the Commonwealth Parliament in 1942, and the passage of the Australia Act 1986, all reflect that the Queen now plays an entirely constrained role in the workings of the Executive. - The sole role for the Queen is to appoint (and dismiss) the Governor or Governor-General on the advice of her Australian Ministers. - The Queen rejected any involvement in the 1975 constitutional crisis. Governor-General and Governors - The office of Governor came to Australia with the assertion of British sovereignty and the pattern of settlement leading to the creation of the separate colonies. - The Governor held extensive, and initially in New South Wales, near-absolute legislative and executive power, subject to the oversight and direction of the British Government via the colonial office. Over time, the role of the Governor subsided as self-government of the colonies emerged and the colonies moved towards federation. - Modern foundation for Qld Governor is found principally in the Australia Act 1986 and Qld Const. - See ss 7 (1), (2) and 10 of the Australia Act and s 11 (A) of the Constitution Act 1867 and Chapter 3, Part 2, ss of the Queensland Constitution Governor post- Australia Act is a local and independent office and not an agent of British Government.

11 - The Queen acts on the advice of the Queensland Premier in appointing the Governor, as required by s7 (5) of the Australia Ac t. - At the national level, the position is similar with the Governor-General: - s 2 of the Commonwealth Constitution provides that the Governor-General appointed by the Queen shall be Her Majesty s representative in the Commonwealth. - s61 provides that executive power is exercisable by Governor-General as the Queen s representative. - The Commonwealth Constitution then places a seemingly large array of matters into the hands of the Governor-General, such as the power to withhold assent to a law passed by the Parliament (s 58) or command of the Naval and Military forces of the Commonwealth (s 68). - It is by constitutional convention that these powers are only exercised by the Governor-General on the advice of the Prime Minister and other Ministers. Prime Minister, Premier and Ministers - The Prime Minister does not rate a mention in the Commonwealth Constitution. The modern Queensland Constitution 2001 acknowledges the Premier. - Commonwealth Constitution provides for Ministers and Departments: - s 64 provides for the Governor-General to appoint officers to administer Departments, with these officers to be members of the Federal Executive Council. These officers are Ministers of State for the Commonwealth and they must be drawn from members of the Federal Parliament. - The important issues of how the system actually works is left to the conventions. - Note, however, that the Queensland Constitution 2001 provides more detail on how the Executive in the form of how the Cabinet actually works. Executive Council - Both the Commonwealth and Queensland Constitutions deal with the body known as the Executive Council. - See ss 62, 63 and 64 of the Cth Constitution and Part 4 of Chapter 3 of the Qld Constitution. - The Executive Council consists of the Governor-General or Governor for the Commonwealth or a State respectively, and Ministers appointed by the Governor-General or Governor. - The Council acts as the legal mechanism by which the Governor-General or Governor receives advice from his or her Ministers and puts into effect the decisions taken by Cabinet or individual Ministers. - The Council is not a deliberate body as such, but a formal step in converting political decisions into legally effective decisions (see FAI Insurances Ltd v Winneke ). Recap on the makeup of the executive - The executive is an arm of government exercising political and legal power, separate from legislative and judiciary. - The executive is made up of a combination of formal legal structures and offices; namely the Queen, the Governor-General and Governors, Executive Council, Ministers and Departments, all of which are mentioned in the written constitutions of the Commonwealth and the States. - Written Constitutions provide a bare framework with actual workings found in the conventions.

12 Podcast Three - Executive Power and the Parliament Responsible Government - Responsible government has disappeared. It involved a lower house of parliament with the ability to dismiss a government and appoint another between elections. This system has been replaced by one whereby the government of the day controls the lower house by a built-in, totally reliable and rusted on majority. Not only is the government not responsible to, that is, removable by, the lower house, but it is also not accountable to it. The government s control of the parliamentary processes means that it is never effectively called to account in the lower house. Executive Power and the Parliament - The non-elected components of the Executive, namely the Queen and the Governor-General and Governors, have an entirely constrained role and are to fulfil their duties on the advice of the elected Executive in the form of the Prime Minister or Premier and the Ministers. - Ministers are drawn from the Parliament and accordingly are responsible to the Parliament for the policies and the administration provided by the Executive. - Responsibility incorporates notions of collective responsibility of the Cabinet and Ministry as a whole, and individual Ministerial responsibility. - The Parliament, in theory at least, has an important role to hold the Executive to account and to scrutinise the performance of the Executive as a whole, and of individual Ministers. Responsible Government - The Constitution assumes responsible government: - s 61 vests power in the Governor-General on behalf of the Queen; - s 62 provides that the Federal Executive Council advises the Governor-General; - s 63 provides that the Governor-General in Council is construed as referring to the Governor-General acting with the advice of the Federal Executive Council. - s 64 provides that the Governor-General may appoint officers to administer Departments and these officers, known as Ministers, are to be Senators or Members of the House of Representatives. Collective Ministerial Responsibility - Cabinet is collectively responsible to the Parliament for the decisions and policies of the Executive. - Ministers must accept a Cabinet decision and publicly advocate the position or resign. - Advice to the Governor-General is assumed to be unanimous. Individual Ministerial Responsibility - In theory, individual Minister is responsible to the Parliament for actions of the Minister s Department. - Not followed nor practical to follow for many decades, given the complexity and size of government. - Generally only resignations for personal dishonesty or unequivocal lying to Parliament (not outside Parliament). Political considerations will decide the fate of a Minister. Constitutional Conventions - A V Dicey, in his work Law of the Constitution, refers to the Constitutional law which is enforceable in the Courts, and - The other set of rules consist of conventions, understandings, habits or practices which, though they may regulate the conduct of officials, are not in reality laws at all, since they are not enforced by the Courts. This portion of Constitutional Law may, for the sake of distinction, be termed the conventions of the Constitution or constitutional morality.

13 Reserve Powers of the Governor/Governor/General - One of the most commonly-encountered is the commissioning of a Premier/Prime Minister after an election to form a government - Case study: - March 2010 Tasmanian election resulted in a hung Parliament of 10 ALP, 10 Liberal and 5 Greens with the Liberals winning more primary votes than the ALP. - Governor refused to the commission of the leader of the Liberal Party to form a government, even though the Premier advised him to give the Liberal Party the first opportunity to form a government. - You will consider the 1975 Constitutional Crisis in tutorials next week. Parliamentary control of finance - The principles of responsible government are based on a combination of law, convention and political practice. Though they are often described as the conventions of responsible government, the fact that the government cannot raise or spend money without parliamentary approval is, both historically and legally, the basis of the principle. - This principles was originally contained in article 4 of the Bill of Rights but is not contained in s 83 of the Commonwealth Constitution s 83 (as to spending; the rule as to tax is implied) and ss 65-6 of the Queensland Constitution. - If a tax is collected without statutory authority, the court will rule it invalid. See Attorney-General v Wilts United Dairies Ltd (1921) 37 TLR However, if the government announces a tax they can start collecting it and courts will stay legal action expecting that Act will eventually be passed. See Ex parte Wallace & Co (1892) 13 NSWLR (L) 1 and Suntory (Aust) Pty Ltd v Commissioner of Taxation (2009) [2009] FCAFC 80. Parliamentary control of expenditure - Government needs an appropriation of money before it can spend lawfully. That is why we have annual budgets and Appropriation Acts (and sometimes Supply Acts for temporary spending). - Note that a lot of spending now authorised by permanent appropriations, but annual budget is important. - If an Act imposes a condition on spending, the government has to comply with conditions. - Auckland Harbour Board v R held that public money paid without legal authority can be recovered. - Whether, once money has been appropriated by the Parliament, the Commonwealth government can lawfully spend money on just any purpose or whether it is limited to Commonwealth purposes will be studied later in the semester. - Pape v Commissioner of Taxation; Williams v Commonwealth (No 1) and (No 2) Delegated legislation - Another important feature of the interplay between the Parliament and the Executive is delegated legislation. - As Acts can t cover every little detail, they usually include a section authorising the Governor-in-Council to make regulations. - While this would be breach of a strict version of separation of powers, as we have already seen, Australia does not have the strict version. - Cases in 19th century confirmed colonial parliaments could delegate legislative power. - See R v Burah (1878), Hodge v R (1883) and Powell v Apollo Candle Co (1885) - Confirmed for Cth in Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan.

14 - Confirmed for Queensland in Cobb & Co Ltd v Kropp [1967] 1 AC 141 and Dean v Attorney-General (Qld) [1971] St R Qd The extent of subordinate legislation at both the Commonwealth and State levels is extensive. - At the Commonwealth level, the Legislative Instrument Act 2003 provides a regime for the making and recording of legislative instruments. - The role of special purpose Parliamentary Committees within all Australian Parliaments charged with the review and scrutiny of subordinate legislation is a critical element in the effective application of the notion of responsible government. - Parliaments, and generally both the Upper and Lower Houses, have the power to disallow subordinate legislation. - This power provides the Parliament with the ability to oversight the exercise of Executive power granted by the Parliament to the Executive through specific legislative provisions allowing the making of regulations. - Court has permitted extensive scope for the power to make subordinate legislation to be vested in the Executive through Parl. authority: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan - Over time mechanisms have emerged to review and check executive power, such as administrative law remedies, Ombudsmen, Human Rights Commission. - Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan - The Transport Workers Act , empowered the Governor-General to make regulations with respect to the employment of transport workers. Various regulations had been made under the Act. The Act was challenged on the grounds that it infringed the separation of powers. - Held, the Act did not infringe the separation of powers and was therefore valid. - Dixon J held that a statute which conferred upon the executive a power to legislate on some matter contained within one of the heads of legislative power conferred upon the Federal Parliament, was to be characterised as a law with respect to that subject matter. Distribution of legislative, executive & judicial powers didn t prevent the Parliament from enacting such law. - Are there any limits on the power of the Parliament to delegate? - Dixon J at 101 noted that an invalid delegation might occur where there was There may be such a width or such an uncertainty of the subject matter to be handed over that the enactment attempting it is not a law with respect to any particular head or heads of legislative power. - Evatt J at 121 stated that the Parliament of the Commonwealth is not competent to abdicate its powers of legislation. Podcast Four - Executive Power, the law and the Judiciary Executive power, the law and the judiciary - By s 61 the executive power of the Commonwealth was vested in the Crown. It extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth. It enables the Crown to undertake all executive action which is appropriate to the position of the Commonwealth under the Constitution and to the spheres of responsibility vested in it by the Constitution. It includes the prerogative powers of the Crown, that is, the powers accorded to the Crown by the common law. ( Barton v Commonwealth per Mason J at 498-9)

15 Rule of law - As we saw last week, the powers of the executive government, originally derived from the prerogative of the monarch, became limited by law in England even before the colonisation of Australia. - The doctrine of Entick v Carrington, that the executive has no powers that the law has not given it and that its powers can be controlled by the courts, was inherited in Australia. - That is to say: - All Executive power must find a source of justification in law. - In absence of statutory authorisation, Executive cannot dispense its officials from obeying the law. - Courts will provide remedies when the Executive exercises power outside that authorised by law. - Australian Communist Party v Commonwealth per Dixon J at 193: - The Constitution is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect as, for example, in separating the judicial power from other functions of government, others of which are simply assumed...among these I think that it may fairly be said that the rule of law forms an assumption. - A v Hayden - An ASIS (the Australian overseas spy agency) training operation went wrong and offences against the criminal law of Victoria were alleged. In argument before the Court, it was suggested that the Executive could, without statutory basis, authorise otherwise criminal activity. - Held, the Executive could not authorise criminal activity. Gibbs C J at 540 stated: - It is fundamental to our legal system that the Executive has no power to authorise a breach of the law and that it is no excuse of an offender to say that he acted under the orders of a superior officer. Prerogative power - The executive inherited the prerogative powers of the UK executive. See Barton v Commonwealth. - The prerogative powers flow from the development of the common law and reflected the rights and powers of firstly the sovereign and then the Executive government. - At the time of Federation, these powers concerned the basic things independent nations have control over like international relations, defence and the power to declare war, and the enforcement of public and criminal law. - Prerogative power today relates to: - international affairs - for example, the conduct of foreign affairs generally, including entry into and execution of treaty obligations, and diplomatic matters ( Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 193, 215, 237); - defence - for example, the power to declare war or peace ( Farey v Burvett (1916) 21 CLR 433, 452 per Isaacs J); and - legal matters - for example, at common law, the executive enjoyed power to conduct inquries (see Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, 378 per O Connor J and Wilson v Minister for Aboriginal and Torres Strait Island Affairs (1996) 189 CLR 1, 31-4 per Kirby J). - The prerogative power is limited and cannot be expanded. - As the prerogative powers emanated from the common law, they can be removed or diminished by legislation. - See Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR Prerogative powers are split between the Commonwealth and States. - See AG for NSW v Butterworth and Co Australia Ltd - In addition to the prerogative power, the Commonwealth executive may have an additional direct source of power derived from s 61 of the Constitution itself. - Re Residential Tenancies Tribunal of NSW; Ex parte Defence Housing Authority (1997) 190 CLR 410, 457 per McHugh J:

16 - Under our Constitution, the executive power of the Commonwealth conferred by s 61 involves much more than the common law prerogatives of the Crown. - Ruddock v Vadarlis (the Tampa case) - Ruddock v Vadarlis (the Tampa case) - The Tampa was a Norwegian vessel which had picked up 433 asylum seekers after their boat had sunk. The Captain of the Tampa wanted to unload the asylum seekers in Australia. The Howard government ordered the Navy to intercept the Tampa and the asylum seekers became part of the so-called Pacific Solution and were placed in various small Pacific nations such as Nauru and Papua New Guinea. - Mr Vadarlis, a civil liberties lawyer, sought orders in the nature of habeas corpus in the Federal Court. At first instance, Mr Vadarlis was successful. Immigration Minister Ruddock appealed the decision to the full Court. - Held, the Pacific Solution was within the executive power of the Commonwealth. - French J, Beaumont J concurring, upheld the appeal. In doing so, their Honours argued that the continuance of a prerogative power was not the critical issue but rather the proper understanding of s 61 of the Constitution: - The executive power of the Commonwealth under s.61 cannot be treated as a species of the royal prerogative While the executive power may derives some of its content by reference to the royal prerogative, it is a power conferred as part of a negotiated federal compact expressed in a written Constitution distributing powers between the three arms of government reflected in Chapters I, II and III of the Constitution and, as to legislative powers, between t he polities that comprise the federation. The power is subject, not only to the limitations as to subject matter that flow directly from the Constitution but also to the laws of the Commonwealth made under it. There is no place then for any doctrine that a law made on a particular subject matter is presumed to displace or regulate the operation of the executive power in respect of that subject matter. The operation of the law upon the power is a matter of construction. - Held, the detailed legislative scheme contained in the Migration Act 1958 on how asylum claims were to be processed did not displace the power of the Executive to act to implement the Pacific Solution. - However, this approach (and the Tampa case itself) have been criticised (see of the textbook). - Moreover, it seems to be inconsistent, in spirit at least, with the High Court s later ruling in the Malaysian Solution case ( Plaintiff M70/2011 v Minister for Immigration & Citizenship ). Recent case - CPCF v Minister for Immigration and Border Protection - The plaintiff and 156 other passengers were on board an Indian flagged vessel which left India and was intercepted by an Australian border protection vessel in the Indian Ocean within Australia's contiguous zone. The plaintiff was a Sri Lankan national of Tamil ethnicity, who claimed to be a refugee on the basis of having a well-founded fear of persecution in Sri Lanka. He did not have a visa entitling him to enter Australia. The Indian vessel and its passengers were detained by officers of the Commonwealth. After the Indian vessel became unseaworthy, the passengers were transferred to the Australian vessel. The Australian vessel sailed to India pursuant to a decision made by the National Security Committee of Cabinet, which included the Minister for Immigration and Border Protection. At this time, there was no agreement with India under which the plaintiff would be permitted to disembark there. After reaching the vicinity of India, the passengers were detained for a further period until the Minister decided that it was not practicable to discharge the plaintiff and his companions in India within a reasonable time and instructed the vessel to sail to

17 the Australian Territory of the Cocos (Keeling) Islands. Upon their arrival, the plaintiff and the other passengers were taken into immigration detention. The plaintiff brought proceedings in the original jurisdiction of the High Court, alleging that his detention on the Australian vessel was unlawful and claiming damages for wrongful imprisonment. - Held, that the detention was lawful under s 72(4) of the Maritime Powers Act. The majority found it unnecessary to determine whether the detention could have been authorised by the nonstatutory executive power of the Commonwealth Administrative law - Historically Supreme Courts inherited supervisory jurisdiction over lower courts and executive officers, exercised by prerogative writs, from the UK. - The old restrictions on certiorari and prohibition have been gradually relaxed and now the supervisory writs, or modern statutory reminds based on them, are available not only against judicial officers but against executive officers from ministers down to the lowliest decision maker. - In the Commonwealth jurisdiction, their availability is expressly guaranteed by s 75(v) of the Constitution. - Parliaments sometimes give executive officers power, impose conditions, but then a privative clause says decision can t be reviewed in a court. However, these laws are obviously invalid in case of Commonwealth laws because of 75(v) of the Constitution. - This was extended to the States in Kirk v Industrial Relations Commission [2010] HCA 1, where the High Court held that the supervisory jurisdiction was an inherent part of the power of State Supreme Courts in 1901, and therefore can t be defeated by privative clauses in State laws either. - Therefore, since January 2010 we now know that the availability of administrative law remedies is guaranteed by the Constitution in both the Commonwealth and state spheres. Review - Executive actions must be founded upon a source of power the Executive is not above the law. - The main sources are: - powers given by statute; - prerogative powers; - possibly, in the case of the Commonwealth, broader powers derived directly from s 61 of the Constitution. - The executive governments cannot raise money by taxation, or spend it, without authorisation by an Act of Parliament. Tutorial Notes - Tutorial in wk 3 Question 1 (a) If a country or state/province has a system of responsible government, to who is the government responsible? - a system of responsible government means that the executive government is responsible to the parliament, and then in turn, the parliament is responsible to the people at elections. - Doctrine behind this is that the executive government is responsible to the legislature. - In practice, the ministers who head the executive government, may command the confidence of the majority of the lower house or resign. What are other terms used to explain this system? - Westminster system - Cabinet government

18 - Parliamentary doctrine? What label is used to describe the other main way of forming the executive government in democratic states? - Presidential government or sometimes the Washington system - President is elected separately to legislature & has executive power invested directly in their hands. - Quite a different form of executive government - Ministerial/collective responsible: collectively responsible for the decisions the executive government makes. Must publicly support the decision of the government. - Individual Responsibility - particular minister heads up a government department. Responsible for mistakes/decisions made from that government department or portfolio. Have not seen many ministers take individual responsibility, something that both sides of politics have been guilty of. May be because of the size and complexity of department in modern day times more than anything else. (b) To what extent are notions of responsible government referred to in the Commonwealth Constitution? - More an assumption that underpins constitutional framework. Won t see the words in our Constitution - See ss83 (parliamentary control of expenditure) - Requires an appropriation to be made by law. - Main enforcement mechanism in a world of responsible government - and 64 (Ministers of State must be members of Parliament). - Providing for the overlap between executive and legislature in the Westminster system. - Inherent in this is the idea of doctrine of responsible government (c) To what extent are notions of responsible government referred to in the State Constitution? [You will find that there are four Acts starting with the word Constitution in the State statute book. The one you need to check is the Constitution of Queensland 2001.] - See ss42 (Cabinet collectively responsible to the Parliament), 34 (Ministers hold office at the pleasure of the Governor) and 66 (need for appropriation before money can be spent) - More modern document. Provides a more accurate reflection in the way in which the government acts in the state of Queensland - S 42 - Most relevant section - S 34 - S 66 - Enforcement mechanism for doctrine of responsible government - The Queensland Constitution does directly mention the doctrine of responsible government, however this is only in the preamble - S 3K - the preamble is to have no legal effect. Question 2 What is the role of a Minister of the Crown in the system of representative and responsible government? What is the Cabinet? Is Cabinet mentioned in the State Constitution or the Commonwealth Constitution? - A government Minister heads up a government department, various programs and policies that are administered by that department - The Cabinet is a committee of the parliament, made up at a Federal level of the Senior Ministers, and at a state level of all the ministers Is Cabinet mentioned in the State Constitution or the Commonwealth Constitution? - Constitution of Queensland: