Public Law Exam Study Notes

Transcription

1 Public Law Exam Study Notes 1

2 Week One: 2

3 A Constitutional Hybrid: The Constitution is a hybrid of ideas: UK: Westminster System of responsible and representative government USA: concepts of federalism/ SOP/ Judicial Review Power embodied by a monarch is limited by the ideals and principles of constitutionalism Protection of people against the power of government Australian Constitution is both written and unwritten Significant Documents to the Australian Constitution Statute of Westminster 1931 (Imp) s 9 Commonwealth of Australia Constitution Act 1900 (Imp) Australia Act 1986 (Cth) Term Representative Government Responsible Government SOP Federalism Checks and Balances Written Constitution Unwritten Constitution Constitutional Conventions Defined Government by the people: through their elected representatives The Executive arm of government is responsible to Parliament for its actions Allocates Legislative, Executive and Judicial Functions to distinct institutions which are partially independent of one another Allocates Governmental powers (especially legislative powers) among different political and territorial units Ability of courts to exercise a power of judicial review for an action, conducted by the government, which is seen as being inconsistent with the Constitution Defines Chief political institutions; confers their power and circumscribes the permissible limits of those powers (USA) That the constitution, as a document, does not exist at all Developed as a matter of practical convenience or reflecting fundamental beliefs about how the government ought to be run (NORMATIVE) ++ Important in the absence of a written constitution 3

4 Flexible Constitution Rigid Constitution ++ Important with the socio/ cultural/ political understanding of what is behind the framing and construction of a constitution Law of every description can legally be changed with in the same manner as ordinary legislation [Australian States] The legislative body is required to follow a special and more difficult procedure/ mechanism for change may be assigned to another body altogether [Australian Constitution] Author Dicey Jennings Tomkins Sartori: Defining Constitutional Law All rules which directly or indirectly affect the distribution or the exercise of sovereign power in the state 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 Constitutions establish institutions and their inter-relationships, explain the place and the role of the people and express political values which a particular society lays claim Establishes a fundamental law or set of principles which restrict arbitrary power and ensure a limited government. NOTE ALSO: Concept of Nominal Constitution: principles of limited government, but fails to secure them 4

5 Rule of Law: Author TAMANAHA Formal Theories Substantive Theories DICEY TAMANAHA CONCEPTUALISATION OF RULE OF LAW Ubiquity and elusiveness of the concept Rational limits exist on its meaning: that the law is preeminent and can serve as a check against the abuse of power There is global endorsement, which means that it is an accepted measure worldwide of government legitimacy Derived out of recognised historical/ political context INCLUDES FORMAL AND SUBSTANTIVE Versions. Focus on Proper sources and form of legality Include requirements about the content of the law (comport with Justice or moral principle) Three concepts associated with ROL: 1. Law must not be wide, arbitrary or discretionary [A man must be punished for his breach of laws PROSCRIPTIVE law basis] 2. No man is above the law, all are subjected to the ordinary law of the land [There must be equality before the law] 3. General principles of the Constitution are a result of judicial decisions [Consequence of the rights of individuals] THIS IS A THIN LEGAL DOCTRINE AND IS BASED ON THE LAISSEZ FAIRE CONTEXT OUT OF WHICH IT WAS CREATED. THEREFORE: the constitution is the result of the ordinary law of the land Law beyond merely institutional settings; Cultural and Societal attitudes to constraints on power Development of Cultural and Societal attitudes towards the law, in turn forged the basis out of which the law can be made and applied The basic idea was that the common law, a body of private law, reflecting legal principles, established the fundamental legal framework Legal positivism: Law came to be seen as the product of sovereign legislative will Parliamentary Sovereignty: derived by delegation from the people: UNDOUBTEDLY LEGAL FACT Judicial review was repudiated: there was no justification for judges possessing the authority to override the will of the people expressed in legislation That the government operates within a limiting framework of law [Montesquieu] Even the unlimited law maker is hemmed in by a legal framework that cannot be violated or easily altered 5

6 The effectiveness of the restraints [legal, moral or constitutional] on power THICK and THIN Conceptualisations of the ROL JENNINGS STONE International Commission of Jurists LORD BINGHAM Sir Stephens The rule of law, in this liberal sense requires that: the powers of the Crown and of its servants shall be derived from and limited by either legislation enacted by Parliament, or judicial decisions taken by independent courts Requires a limitation of powers, which most states have sought to obtain by written constitutions, for such constitution is fundamental law which limits by express rules, the powers of the various governing bodies Equality before the law Prospectively of the ROL THICKER VERSION OF ROL: Includes Social Justice Looks to the socio-cultural construction that impacts on the ROL Argues that ROL does not produce equality for all and that factors contributing to different socioeconomic crimes should be considered, in a socially just way, with a consideration for tis background. ROL Subject also (Under Rigid Constitutions) to Constitutional limitations by the SOP/ BORA. 1. That all power in the state should be exercised in accordance with the law 2. Roll can be characterised a the principles; institutions and procedures which have been shown as being important to protect the individual from arbitrary government and to enable him to enjoy dignity of men [Liberty] 1. The law must be accessible, intelligible, clear and predictable 2. Questions of legal right and liability should ordinarily be resolved by application of the law and no the exercise of discretion 3. Laws of the and should apply equally to all 4. The law must afford adequate protection of fundamental HRs 5. Legal aid provided and trials conducted without prohibitive costs or delay 6. Public servants must exercise their power, within the limits of the power conferred to them and without exceeding these limits 7. Trials should be fair 8. Compliance by the state with its obligations in international law 1. The Initial presumption of innocence in criminal cases 2. That trials should be fair 6

7 3. That the courts should operate in public/ not behind closed doors 4. That judges should be independent of and uninfluenced by the Government 5. That courts should be accessible for those who seek legal remedy/ relief 6. The law of the land should be certain, general and equal in operation: CF: Jennings [Prospectivity and Specificity of crimes] and to Dicey in some degree [Tried only for what was breached] Concept: Principle of Legality: Is a Common law precept of Stat Interpretation which holds that, in the absence of clear language, Parliament is presumed not to intend the infringement of numerous Common Law rights and Freedoms Has been described as a principle aspect of the ROL 7

8 Separation of Powers: When the power of judicial review is relied on for the enforcement of limits on governmental and legislative powers, it follows that the courts exercising such power must be independent of the government and of the legislature NOTE: Boilermakers Case: Held that the institutions that exercise the judicial power of the CTH must be kept strictly separate from other governmental institutions Author PHILLIPS & JACKSON CARNEY INSITUTION POWER PERSONNEL CONTROL BURTON & WILLIAMS Perspective on SOP That each branch must be entirely separate and independent of the other, so as to prevent Tyranny No current Constitutional system adopts a complete SOP Important division when looking at the overlap of what are meant to be the SOP in the Australian system 4. Highlights both the creation of new bodies (Integrity Agencies) 5. And an increased understanding of existing bodies within the Australian Political landscape (EG: OMBUDSMEN and AUDITOR GENERAL as integrity agencies) 6. Branch ought to foster trust in government INTEGRITY = legality; fidelity to purpose; fidelity to public values and accountability 7. EG: MEDIA/ the general public 8. There is NO textual OR Structural basis for the integrity institutions in the Australian Constitution to match CH I, II, III in the arms of the government: that is not to say however that an integrity institutions branch could not be established. The Australian Constitution reflects the aspirational hope for the SOP in the Australian Body Politic: Depicts the influence of the American version of the SOP While capturing also the Westminster system and the Doctrine of Responsible Government 8

9 Case: Statement: White v Director of Military Prosecutions (2007) 231 CLR 570 The modern regulatory state has put the traditional SOPs under increasing strain BY PRODUCT: The integrity function now collectively constitutes a fourth branch of government 9

10 Week Two 10

11 Constitutional Inheritance Function of Constitutional Law: Stable and Secure basis for the exercise of government power Seek to Limit that power Institutions/ traditions/ practices of constitutional government in UK Australia s need for a federal and written constitution NOTE: Boilermakers case: Combination of the British system of Parliamentary Government containing an executive responsible to the legislature & American Federalism Common Law and the Principle of Legality: NOTE: The failure to comprehensively codify rights shows the type of Westminster Constitutionalism celebrated by AV Dicey In Australia, through Federalism, the Framers of the constitution embraced the AMERICAN institution of Judicial Review 9. To establish personal liberty by Constitutional restrictions 10. Upon the exercise of governmental power was not a guiding purpose in framing the Australian Instrument 11. Departs widely from the American Model [no comprehensive codification of Rights] ROACH v ELECTORAL COMMISSIONER (2007) 233 CLR 162 The Australian Constitution is not a product of legal and political culture of historical circumstance [CONSTITUTIONAL INHERITANCE] It was designed to give effect to an agreement for a federal union under the Crown Therefore: FEDERALISM as a limit of Parliamentary Sovereignty Diffusion geographically meant that there was a limitation on the Sovereignty of the Parliament and the legislatures of the States Limits on legislative action might be necessary for the purpose of distributing between the States and the central government the full content of legislative power Scarcity within the Australian Constitution of Formal guarantees of rights and freedoms/ of Constitutional Rights That is not to say that the constitution does not contain no guarantees or protections of individual rights, express or implied 11

12 The notion of the sovereignty of Parliament in the scheme of Government The notion of Parliamentary Sovereignty CF: JUDICIAL SUPREMACY: Dicey disliked the idea of the legal codification of rights which he regarded as inferior to a system of rights protection based on Parliamentary Government and the Common Law Therefore: Dicey held that the Parliament should be capable of providing rights protection to its citizens and preferred this over legally codified rights That is: that the Parliament should be able to provide these rights, as reflected by Responsible Government The constitution is the result of the ordinary law of the land Dicey s faith in the capacity for a system based around PSOV to deliver the ROL included: Dicey Formal process of Parliamentary Deliberative Law Making The role played by the common law courts in interpreting statutes (Judicial interpretation) That the executive have never exercised direct executive power or appointed the officials of the executive government Within the contemporary Australian setting: the contribution made by Statutory interpretation to rights protection in systems with a strong commitment to the principle of PSOV 12

13 Week Three 13

14 Races Power s 51 (xxvi) Was a legislative power to make laws with respect to: The people of nay race, other than the aboriginal race in any state, for whom it is deemed necessary to make special laws Constitutions around the world offer equal protection under the law or freedom from discrimination on grounds such as race By contrast: s 51(xxvi) is a power used to single out groups for particular treatment solely on the basis of their race There are a number of additional difficulties in interpreting and applying this section: meaning must be given to three textual elements of the power: special ; deemed necessary and people of any race No clear approach has emerged The amendment made in 1967 presents further particular difficulties - such as: it is no stipulated that the power can be used only for beneficial and not adverse discrimination, at least in relation to Australia s first peoples - WHAT ABOUT POSITIVE DISCRIMINATION 14