Public Law Laws 107. Chapter 1. The Scope of Public Law

Transcription

1 Public Law Laws 107 Chapter 1 The Scope of Public Law Public law includes the two large and conventional categories of constitutional law and administrative law. Constitutional law = Federal or Commonwealth constitutional law Public law extends upon this, and includes State and Territory constitutional law. Also includes local government law and parts of criminal law especially offences against the Sate and the administration of justice, public international law including human rights, and also torts that specifically relate to the holding of public office (e.g. misfeasance in public office see Henderson v McCafferty) Meanings of four commonly referred to terms: CONSTITUTION From Latin term constituere: to constitute A document which has a special legal status, which sets out the framework of the principle institutions of state and which declares the rules by which those institutions are to operate. In the contemporary sense it refers to a specific document (the Constitution) and this constitutes the major branches of government: the executive, the legislature and the judiciary. Constitutional law not simply confined within the four corners of a Constitution statute. Includes constitutional practice this can at some times fill in the detail, and other times contradict the law. Practice refers to behaviour and attitudes and these do not necessarily conform to the law, but may explain its operation. GOVERNMENT Most commonly (and narrowly) refers to the political executive Prime Minister or Premier, and ministers who make up Cabinet. In a wider sense (though not often in Aust.), term refers to all branches of government, meaning the judiciary and legislature as well as executive. In a way it can then be said that the judiciary is part of the governmental machinery of the country, even though it doesn t act for the executive, but operates independently of it. THE STATE Refers to the whole political organisation of the body politic including local and statutory bodies

2 Term has narrowed and is now used in the Australian federal system to refer to the six States of the Commonwealth. In a lecture on Magna Carta, it was said: Which commonalty, being a body politic, may be very fitly compared unto the natural body of a man, that is to say, the king unto the head, the law unto the heart, and the people unto all the rest of the parts of the body. SOVEREIGNTY Originally meant supreme legal power of King, meaning the King and the realm was not subject to any higher legal authority. As far as Australian public law is concerned, the British acquired sovereignty over Australia by an Act of State. In relation to Aboriginal matters, the Aboriginals were denied sovereignty of their land as the British had taken over. The denial of native title was reversed in the decision in Mabo No 2, meaning denial of Aboriginal sovereignty no longer entails denial of native title. The two are now separated into different tracts of law: sovereignty to public law, and native title to real property law. General notion of sovereignty is that of supreme legal authority and usually means in relation to a country that it is not subject to the laws of any other country, e.g. Randwick Corporation v Rutledge (1959) 102 CLR 54 at 71. Australia is thus fully sovereign, as acknowledged by both Australian and British judges. Although the contrary has been speculated, the present position is that the States are not sovereign and are subject to the Commonwealth Constitution. Sources of Public Law Two most important sources of law are the enactments (Acts of Parliament and subordinate legislation) and the judicial cases on the subject. THE COMMONWEALTH CONSTITUTION The Constitution of the Commonwealth of Australia Act 1900 (UK) is the highest form of law in Australia. It is the statute that constituted the Australian federation by bringing into existence both the States and the federal or Commonwealth tier of government. The Act constitutes the three major powers of the Commonwealth system: executive, legislative and judiciary powers. Deals with relations between States and Territories on one hand and the Commonwealth on the other.

3 THE STATE AND TERRITORY CONSTITUTIONS Each of the States and Territories has its own written Constitution Act. Prior to their enactment, the constitutional law of the colonies was a mixture of United Kingdom legislation and prerogative legislative instruments, such as the Letters Patent issued in England. 1 Each Constitution Act does not exhaust the scope of State constitutional law since many other enactments of a constitutional nature exist There are also special Acts dealing with the legislature in all cases and institutions concerned to protect public authorities such as anti-corruption legislation. State Constitutions have largely consisted of ordinary statutes capable of being changed by an ordinary majority in the parliament and were thus thought of as flexible. Parts of the State Constitution Acts are entrenched, meaning that they can only be changed by a procedure usually either by a special majority in the parliament, or by a referendum of the people. Position of Territories a little different. Only three of them have elected legislatures all others are either uninhabited, sparsely inhabited (Christmas Island) or have semitemporary populations (Australia Antarctic Territory). NT, ACT and Norfolk Island are Acts of the Commonwealth Parliament and are hybrid in that while they share many of the features of the State Constitution Acts, they also have features found in the Commonwealth Constitution, but not found in the State Constitution legislation. DELEGATED OR SUBORDINATE LEGISLATION Parliaments cannot make all of the legislation necessary. Most Acts of Parliament confer a power to make delegated or subordinate legislation. These powers are normally exercised by the Governor of a State or the Governor-General or by a minister. Much detail of public law is to be found in delegated legislation, although most of it isn t normally considered constitutional. Subordinate legislation generally includes regulations, rules of court, and the by-laws of local governments or universities.!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1!Letters!patent!are!a!type!of!legal!instrument!in!the!form!of!a!published!written!order!issued!by!a!monarch!or! president,!generally!granting!an!office,!right,!monopoly,!title!or!status!to!a!person!or!corporation.!!they!can!be! used!for!the!granting!of!city!status!or!a!coat!of!arms.!they!are!an!opened!letter!(patent!=!open/visible)!so! anyone!can!read!them,!as!opposed!to!their!opposite,!letters!close,!which!are!private!and!personal!letters.! Letters!patent!are!a!form!of!open!proclamation,!and!can!exercise!extraAparliamentary!power!by!a!monarch!or! president.!no!explicit!government!approval!is!required!when!a!monarch!delivers!letters!patent.!!

4 IMPERIAL LAW IN AUSTRALIA (a) The common law Two categories determined the status of English law in the colonies. Firstly there were colonies either conquered, ceded or both, e.g. Canada. In these situations there was already a legal system in place and the incoming power could choose whether to retain, replace or simply modify the existing laws. Second category was colonies held to be settled, e.g. Australia, even if there were local inhabitants. This did not mean that English common law was available. For example, habeas corpus 2 was part of the English common law, but wasn t actually available in Australia until the Supreme Courts opened. The common law of England has slowly evolved into the common law of Australia and become distinctively its own, as recognised in s 80 of the Judiciary Act 1903 (Cth). (b) Imperial (or British) statute law The meaning of statute is of individual enactments of the legislature passed each session. All States and Territories have a system for the reception and continued acceptance of some English or British statutes. This reception is accomplished in two ways. First: several jurisdictions have local Imperial Acts Legislation and these very helpfully list in a schedule to the Act all of the English and United Kingdom Acts that continue to apply in the jurisdiction. This makes it easy to establish which UK Acts (and subsequently which parts of these Acts) continue to apply. Second: in the case of the remaining jurisdictions there is no imperial Acts legislation but each State operates a reception date system. Local Acts specify a date on which UK Acts in existence at that time were received into the jurisdiction. This approach creates several problems must establish whether UK Act was in existence at time of date of reception, must establish what parts of it were in force in UK at the time (as parts may have been repealed by Parliament before reception date), and unless the local legislature has acted to repeal or exlude further parts of the UK Act in existence at the reception date, the Act will be deemed to be part of the legislation of the State or Territory. AUSTRALIAN COMMON LAW Common law law largely created by the judges through legal cases Principles of equity also brought to Australia. The principles of equity crystallised into branches of substantive law and include matters of interest to a public lawyer as the remedy of the injunction which may, in Australia be applied to public officers. Over time the principles of common law and equity are modified either by statutes in Australia or by the decisions of the Australian courts.!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 2!The!writ!to!secure!an!inquiry!in!a!Supreme!Court!for!those!who!claim!to!have!been!unlawfully!detained.!

5 There is only one body of common law in Australia! for the whole country Common law develops through cases and the High Court of Australia has the power to both declare the common law for the country and to change the existing common law. The most notable cases where this has been the case where this power has been exercised is in R v L where a husband could not be convicted of raping his wife was declared no longer part of common law, and in the Mabo case, where the High Court overruled previous common law that there was no such thing as native title. The capacity of the High Court to enunciate the common law is limited. The courts are guided by a skeleton of principle which is said to give the law its shape and internal consistency. One major constraint on judicial law-making is that the courts of the Commonwealth are only permitted to decide matters brought to them by parties fiat justitia, ruat caelum = let justice be done, though the heavens fall The Royal Prerogative The residue of original royal authority apart from statute and is now part of Australian common law. Primary prerogatives are to wage war, make peace, conclude treaties and the prerogative of mercy. The conventions of the Constitution Many practices followed in the constitutional system are not written down and don t exist in the form of legal rules enforceable in a court of law. Sometimes called the conventions of the Constitution. Exist to allow the constitutional system to adjust to unforeseen circumstances. Conventions include notion of collective Cabinet responsibility, caretaker conventions that operate when an election is called, etc. INTERNATIONAL LAW International law not automatically part of our domestic, or, as it is called in international law, our municipal law. From the point of view of Australian public law if there is a conflict between international law and domestic law, domestic law prevails.

6 Martial Law o Not a form of law, but rather the law of the general o Concept refers to the displacement of the civil legal order by the military and has not been used in Australia since the 1840s. o Under s 114 of the Commonwealth Constitution the States may not raise or maintain a naval or military force without the consent of the Parliament of the Commonwealth and in practice the colonies, when they become States, handed over their military and naval forces to the Commonwealth in Key Public Law Concepts PARLIAMENTARY SUPREMACY Term refers to the notion that parliament may make or repeal any statute it chooses. THE RULE OF LAW Refers to the general notion of constitutional government. More narrowly, refers to the idea that all persons in Australia, be they citizens, visitors, residents or officials, are under a duty to obey the law of the land. FEDERALISM Australia acquired a federal legal system and a federal system of government with the coming into force of the Commonwealth of Australia Constitution in Federal system not only created another layer of government (the Commonwealth), it also brought into being the States and Territories as legal entities, and provided for a division of labour between them and the Commonwealth. One part of federal system marked more by co-operation than by conflict. RESPONSIBLE GOVERNMENT Concept not stated or expressly referred to, but is part of the constitutional law in every jurisdiction. Refers to both an event and a concept. As an event, it refers to the introduction of a fully elected legislature. Conceptually, responsible government refers to a particular relationship between the legislature and the executive and involves the following elements: o The sovereign, or in Australia, the Governor/Governor-General must choose as ministers persons who enjoy the confidence of the Lower House of Parliament. o Ministers must themselves be members of parliament o Governor/Governor-General acts on the advice of the ministers