Public Law Notes

Public Law - Contents 2. CONSTITUTIONALISM AND JUDICIAL REVIEW 2.1 Introduction 2.2 Constitutional Validity 2.3 Judicial Review 2.4 Separation of Powers 3. EVOLUTION OF THE WESTMINSTER SYSTEM – POWER STRUGGLE BETWEEN INSTITUTIONS 3.1 Magna Carter 3.2 Parliament and Glorious Revolution 3.3 Star Chamber 3.4 Limited Government 4. DICEY, PARLIAMENT SOVEREIGNTY AND THE RULE OF LAW 4.1 Parliamentary Sovereignty 4.2 Rule of Law 4.3 Reconciling Parliamentary Sovereignty and the Rule of Law 5. FEDERATION AND POPULAR SOVEREIGNTY 5.1 Path to Federation 5.2 Human Rights and Australian Constitution 5.3 Path to Real Independence 5.4 Popular Sovereignty 5.5 The Australian Federal System 6. INDIGENOUS PEOPLE AND THE QUESTION OF SOVEREIGNTY 6.1 Introduction 6.2 Native Title 6.3 Indigenous Sovereignty & Self Determination 6.4 Treaties 7. STATE CONSTITUTION 7.1 Introduction 7.2 Peace, Welfare and Good Governance 7.3 Deep Common Law Rights 7.4 Amending State Constitution 7.5 Manner and Form Requirement 8. VOTING AND ELECTION TO FEDERAL PARLIAMENT 8.1 Rights to vote 8.2 Eligibility for Election 9. THE EXECUTIVE 9.1 Introduction 9.2 Source & Scope of Executive Power 9.3 Responsible Government and the Control of the Executive 9.4 Constitutional Conventions 10. SEPARATION OF JUDICIAL POWER 10.1 Separation of Federal Judicial Power 10.2 Defining Judicial Power 10.3 Exceptions to the Boilermakers’ Case – Persona Designata Rule 11. HUMAN RIGHTS AND BILL OF RIGHTS 11.1 What are Human Rights 11.2 Bill of Rights

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2. CONSTITUTIONALISM & JUDICIAL REVIEW 2.1 Introduction What is a constitution?  Definition: Constitutional law describes the body of rules according to which a state is constituted or governed, the way in which the organs of government are structured and defined, and the way in which those organs relate to one another and to citizens. It is important to have: 1 Description of where power is distributed 2 Supporting the exercise of power by clarifying source of existence 3 Taking perspectives of individuals rather institutions; i.e. how power is limited. Constitution Classifications  Types of constitutions , according to Dicey a constitution can either be  Written or unwritten: A written constitution is a document which founds a political community and defines its chief political institutions, confers powers and circumscribes permissible limits. Whereas UK never adopted a single document so it referred to as a written constitution/  Rigid or flexible : A flexible constitution is one under which every law of every description can legally be changed with ease by one and the same body. Whereas a rigid constitution is one under which certain laws generally known as constitutional or fundamental laws cannot be changed like ordinary laws; specific procedures are followed. Australia’s Constitution  Commonwealth of Australia was formed on 1st January 1901 by the Commonwealth of Australia Constitution Act (Imp)  Our system is a hybrid model between:  United Kingdom – representation and responsible government  United State – Federation, separation of powers & judicial review  We have both a written and non written part  Commonwealth constitution (rigid – changeable by referendum) and state constitution (flexible) which are supplemented : common law principles, Statute of Westminster, Australia act 7 unwritten conventions. What is the source of authority in the Australian Constitution?  1901 – Grundnorm was British Parliaments’ ability to alter the Australian constitution  1986 – Australia Act means Britain cannot alter Australia’s laws  2004 – High Court recognises popular sovereignty as a source of the constitution and all the laws in society.

2.2 Constitutional Validity (p40)  

Legal Positivism: a theory that maintains that the validity of any legal rule depends solely on whether an authority issuing the rule had the legal power to do so. Implication: where does the highest norm derive from?

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From where does the constitution derive its validity? H Kelsan p411

Kelsen’s Theory Hierarchical structure of the legal order:  The relationship between the norm that regulates the creation of another norm and the norm created in conformity with the former can be presented as a relationship of super and subordination. The basic norm is therefore the highest reason for validity of norms, one created in conformity with another thus a legal order in its hierarchical structure.  The entire legal order is a pyramid of norms derived from norm-creating powers conferred by the constitution, which itself derived validity from any earlier constitutional arrangements pursuant to which it was adopted. Reason for validity of a legal order:  Validity of existing constitution is justified by the fact that it was created according to rules of an earlier constitution by amendment. For validity of the first constitution, the assumption that it is a binding norm must be presupposed if we want to interpret the creation of subsequent norms to be valid. Basic norm as transcendental logical presupposition:  Ultimately there is a grudnorm/basic norm which is the assumption that the legal order must be obeyed. It is the starting point of the positive law creation ( dynamic derivation). Criticisms  Kelsan seeks to construct a systematic framework for pure theory of law characterised by hierarchy and unity but in reality it is not so structured – too formalistic and artificial  One needs to make a moral judgment to believe the constitution is the Grundnorm (i.e the one you should obey). There are still cultural and other influences that are simply masked y Kelsan’s analysis that we simply obey it because it is an assumption.  Theory is too inert and has no consideration of the cultural framework which contributes to the validity of the legal system.  By linking legal validity with power and power alone, it removes laws from value judgments about the goodness and badness of the subjective content of law. Thus even tyrannical laws can have legal validity.

Foucalt

Foucault’s Theory  Discourse can only ever be inconsistent ruptured & that only out of such discourse can ideas originate. Power comes from all sorts of discourses e.g. Cultural, political, economic.  Our culture is a law bound culture, it is inherent in us to obey the law, our actions reinforce the validity of the law. Cultural assumptions and the way society has shaped us leads to an unconscious conformity to the legal system. Criticism  Lacks structure, in reality there is a need for some sort of structure for why we obey the law.

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Pure Legal Theory

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2.3 Judicial Review (p3)  

Judicial review is the power of a body (usually a court) to construe legislation to ensure compliance with constitutional limits. Australian constitution assumes that were a statute is enacted by any Australian parliament that exceeds the powers recognised by constitution any court (but in practice, the High court) has the power to declare the act invalid.

Is judicial review democratic? Against  Judiciary is unelected, and therefore they should not be permitted to strike down law made by elected representatives of the people, and so infringe on parliamentary sovereignty.  Judges are appointed by political parties, political bias of judges not democratic.  Democratic election is a form of review, judicial review is redundant.  Imbalance of power between courts/parliaments.  If courts look after repugnant legislations then which body looks after the court? “Who watches the watchmen?”

For  Popular sovereignty: constitution upholds the will and the demands of people and in order to preserve it Judges should be conferred the power to strike down unconstitutional laws  Judges are appointed by elected representatives of the people (parliament)  Can protect minorities from unfair majority  Judicial review is appropriately limited by the constitution; courts can only adjudicate matters in dispute that come before them, public would “recognise abuse of power, courts would lose its legitimacy, respect and cease to be effective”. (Lucas p6) 2

Can judiciary determine validity of legislation? MARBURY V MADISON (p4) Facts:  Outgoing president and Secretary of state introduced legislation doubling the size of the judiciary and nominating many new judges who has sympathetic views.  Commission was provided to all judges except 4 including Marbury before the presidency term ended. These 4 judges demanded new president Jefferson to give them commission but was refused.  They applied to Supreme Court for a writ of Mandamus to compel Jefferson to give them commission. Marshall CJ was the chief justice of Supreme (originally the Secretary of State) dismissed the case. Marshall CJ held:  Held that if the 4 judges were validly appointed then Judiciary Act 1789 granted Supreme Court power to issue order but it would be unconstitutional. This was because Supreme court could only grant appellant jurisdiction and not original jurisdiction as required to issue the writ of mandamus.  For limitations of a constitution to be meaningful it must not be easily changed by an Act of Parliament. Also if law of Parliament is inconsistent with Constitution then courts can either 1 Let law prevail and disregard constitution OR (if this is true the written constitution is meaningless) 2 Constitution prevail and disregard law  This was an important case as it entrenched idea of judicial review and has yet to be overturned. Therefore if a piece of legislation is repugnant or unconstitutional courts can declare it invalid.

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The Principles of Politics

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BROWN V BOARD OF EDUCATION (p7) Held:  Held that segregation of children in public schools on the basis of race was unconstitutional. Troops were sent to ensure desegregation as put into place. COOPER V AARON (p7) Facts:  State of Arkansas amended the state constitution to provide that the desegregation that had taken place were unconstitutional and the legislature was to oppose the desegregation that the US supreme court had ordered.  Little Rock School sought an order from the court to allow them to stop further desegregation because of riots and protests. Held:  Held that it was “settle doctrine” that the constitution was “supreme law of the land.” It is the court’s role and duty to say what the law is and so no state governor has power to nullify an order by the court; if he did then the constitution would be reduced to “solemn mockery” and a series of “impotent phrases”. Can judiciary determine validity of constitution? (FM Brookfield p46)3  Coup d’Etat refers to the overthrowing of legal order such as that started by a military. The key question is can a court determine whether a new regime has become lawful? Older View – constitution binds courts  The older constitutional view is that court created under pre-revolutionary constitution has no jurisdiction to recognise a revolutionary regime as lawful but bound to constitution that created it.  Judges cannot inquire into the validity of the constitution under which they hold office  New courts is non-valid as long as old court is permitted to function or until judges resign.  In Kelsen’s terms. The basic norm may be destroyed by a revolution. So courts of that order cannot adjudicate upon the revolutionary change.  Existing courts cannot determine whether or not revolution of new order has replaced the existing regime. If revolutionaries want full recognition they must complete usurpation by appointing a new judiciary bound by their oath of office to uphold the new order. Newer View – supra-constitutional jurisdiction4  Courts including those created by a written constitution are authorised and required to decide when and if a revolutionary regime has become lawful. Courts have a supra-constitutional jurisdiction, exercisable in extreme revolutionary circumstances.  What is the basis for supra-constitutional jurisdiction ? According to Privy council, Courts must accept the role of deciding whether the revolution has succeeded, is based on ‘some principle of law independent of any particular system which authorises a judge simply by virtue of his office and irrespective of the source of...jurisdiction to recognise the revolutionary regime.’

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Waitanagi & indigenous Rights: Revolution, Law and Legitimation, Support from the majority judgment of the Privy Council in MADZIMBAMUTO V LARDNER-BURKE

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What principle(s) must the court apply in exercising the supra-jurisdiction? MADZIMBAMUTO V LARDNER-BURKE (1969) Lord Reid p48

1. When there are 2 regime of constitution existing, we cannot have 2 lawful governments. Test for whether the new government is lawful: 2. The test becomes one of the efficacy of the change i.e. test of effective control. This means the former govt cannot be striving for power because then it would be impossible to say the new govt is in control because the new govt is opposing the old lawful one.

MOKOTSO V HM KING MOSHOESHO (1989), Cullinan CJ p49

Requirement 3. Provided a more elaborate test where a court may hold revolutionary regime lawful and its act to have been legitimate where court is satisfied that: 1. The government is firmly established, there is no government opposition to, 2. The government’s administration is effective in that the majority of the people are behaving in conformity therewith.  Facts - Prasad was a farmer who had been forced off his land after the coup. He sought a declaration from High Court of Fiji that the 1997 Constitution remained in force and that the elected government had not been properly dismissed. He won; interim government appealed to Court of appeal but was dismissed.

REPUBLIC OF FIJI V PRASAD (2001) p49

Changed the efficacy test 1 Burden of establishing whether the efficacy test has been met rests on the new, usurping govt 2 Proof must be high civil standard 3 The overthrow must be successful; established administratively & no rival government.5 4 Proof people conform with new rules and it must stem from popular acceptance and support rather than fear and coercion. 5 Length of time of usurping govt in control is relevant 6 Election will be strong evidence of efficacy which is to be asses at the time of the hearing (not the time of takeover).

2.4 Separation of Powers What is the Separation of Powers? 4. Divides power into 3 arms (Phillips & Jackson p9)6 1. The legislative function is the making of new laws and alteration or repeal of existing laws. 2. The executive/administrative function is the general and detailed carrying on of government according to law i.e. implementation of government. 3. The judicial function consists of the interpretation of law and application by rule or discretion to facts of case. 5. Argues that liberty is best protected by separating all three arms of government because, (Baron de Montesquieu p9)7

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Rival government exists if old govt is willing to resume power if the constitution re-instated. No need for arms. Constitutional and Administrative Law, 7 The Spirit of the Laws, 6

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When legislative and executive powers are united there can be no liberty, tyrannical laws are created and executed When judicial is united with legislative and executive, subjects exposed to arbitrary control, for the judges will be the legislators and might behave with violence and oppression.

Can we really separate powers?  It is impossible to adopt a complete separation of powers but checks and balances in power has developed between three arms. (Gerald Carney p10)8  Argues that in a sense administration subverts the tripartite system : (Julius Stone p11)9  This raises the question of is administration properly party of executive or legislative function? Or is it a 4th arm of government? This is because there is a growth in independent commissions, given tasks and specific powers to act like a court e.g. tribunals.

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Separation of Powers in the Westminster System, Social Dimension of Law and Justice

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3. EVOLUTION OF THE WESTMINISTER SYSTEM - POWER STRUGGLE BETWEEN INSTUTITONS 3.1 Magna Carter (p54) What is the Magna Carter (p54) 

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The Magna Carter 1215 played a symbolic role in enshrining equality and justice by limiting the arbitrary exercise of monarchical power when it was first ratified by King John and then reaffirmed by the monarchs who succeeded him. 3 important reflective principles 1 Every free person has an inherent individual right to his life, liberty, property and citizenship 2 His individual rights must always yield to necessities of the general welfare at the will of the state 3 The law of the land is only mode by which state can so declare its will The group that drew it up was not solely composed of the nobility and the clergy, but also included the merchants, townsmen, inhabitants of the forests and freemen generally. (G. Walker p54)10 Magna carter is of symbolic interest as it does the subservience of the king to ideas of law, and also setting up rudimentary enforcement machinery against the king. (J Alder p55)11  Rule of Law – individual rights represented and subjects monarch to the law.

3.2 Parliament (p59) & Glorious Revolution (p72)12 Historical Outline  Anglo-Saxon – In the early 13th century Kings of England ruled by “divine rights,” Anglo-Saxon kings were assisted by Witenagemot. These were the wisest men who gave advice and counsel and met 2-3 times a year with the king. The witan disappeared with the Anglo-Saxon Kings.  William I and his successors held Great Councils instead which constituted of nobles and others who held their lands directly from the king.  Edward I in 1295 set up a Model Parliament which included barons ( nobility) , knights, burgesses, clergy. These people were summoned to some parliaments only, especially when the king needed extra funding for wars or crusades.  Lords/nobles would meet separately to the commoners  Give/take relationship started to develop between King and Commons. When king wanted to raise tax, Commons would bargain some benefits for the people which was brought to king’s attention through petitions as Bills. These bills were often tampered with bu Lord or Kings without notice of Commons.

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The Rule of Law: Foundation of Constitutional Democracy Constitutional and Administrative Law British Constitution Made Simple, CF Padfield (p59) Constitutional and Administrative Law in NZ, PA Joseph (p72) Bill of Rights 1688 (p73)

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King Henry VII (1413-1422), the practice became to send Bills to King in form a statute which would either be assented or dissented to which prevents the tampering. Bicameralism was introduced in 14th century – the lower house of commons and the upper house of nobles and churchmen. Tudor Period (1485-1603) - 16th-17th century which saw a great constitutional struggle between the Monarch and the Parliament.  Henry VIII ended Catholicism and established the Church of England so that he could divorce Catherine of Aragon ( Arthur’s window, i.e his brother) . He however had direct clashes with the parliament.  Elizabeth I , the daughter of Henry VIII ruled through the Parliament for her own purpose whilst avoiding head-on conflicts with Parliament. Stuart Monarch (1603-1714)  Charles I (1625-49) tried to force Parliament to give him royal prerogatives including: right to issue proclamations, tax, grant immunity to anyone he wished and to suspend the operations of laws.  1641 He assented various acts which gave parliament protection from arbitrary dissolution by king.  English civil war (1641-51) ending with Charles execution and his son Charles II exiled.  Interregnum (1651-1660) – English monarch replaced with commonwealth of England which was then replaced by Protectorate under Olive Cromwell  Restoration of Monarch (1660) – Charles II was invited back by Parliament but had to adhere to certain conditions. Stared the precedent that British monarchs needed consent of parliament to govern  Glorious Revolution (1688) –parliament overthrew the king, – James II (1685-8) tried to rule by divine rights and alienated even supported of the crown which of course led to him being overthrown. – William II (1689-1702) invited to rule along with Mary but only if they agreed to pass Bill of Rights. Bill of rights 1689 was ratified.  Act of Settlement (1701) – confirmed the bill of rights and restriction who could become King i.e. succession issues. King could no longer pardon people from offences nor could he fire judges if they were properly behaved. Royal officials and nobles were excluded from membership of the House of Commons.

What is the Parliamentary Importance of the Tudor Period? (F. Marcham p60,p74)13  The Tudor period was significant to the development of Parliament. There were 2 streams of law; 1 made by Parliament (private bills dealing with individuals or specialist groups) 2 made by the King (public legislation)  Procedure for making laws 1 King produced bill to House of lords or Commons (either) 2 Bill read 3 times, if accepted it is passed to next House (Lords or Commons) 3 Bill is read another 3 times and if accepted it is passed to King for approval 4 King has the power to veto the bill .  Other functions of parliament  Recognised titles  Legalised taxes 13

A Constitutional History of modern England,

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Possessed Judicial power in particular the House of Lords; this meant that they could hear cases against peers charged with treason or felony hear impeachments; declares Acts of Attainder and hear appeals from the court on factual errors Through Elizabeth’s reign, Parliament had attained freedom of speech which meant commons could not be punished for attacking the Crown; however some topics were still off limits. (e.g. religion and succession).

Is the Bill of Rights still relevant Today?  Bill of Rights 1688 established Parliamentary supremacy, leaving only a small range of royal prerogatives to the King. (p73)  Still law of NSW to the extent that is has not been affected by any State or Imperial enactment (s6 Imperial Acts application Act 1969 (NSW).)  Bill of rights invoked in Commissioner of Stamps V Telegraph Investments (1995) to exclude tax obligations which were imposed by executive discretion rather than statutory criteria. Power Struggle Between the Court and Crown (G. Smith p65)14  James I wanted to rule by divine rights so people had privileges rather than rights but parliament did not accept this approach. Many academics are also against the idea of divine rights and have frequently referred to Edward Coke’s arguments.  Coke and his supporters ...insisted that the common law controlled the province of the royal prerogative power. They asserted that the rights of both king and Parliament were derived from and defined by precedent.  To him the peculiar wisdom of the common law determined the goods and liberties of the people. The wisdom of the king, asserted coke could not do that. The king, coke held, was legally limited by the common law. The law was greater than the Crown. Prohibition del Roy (p66)  King in his own person cannot adjudicate any case ...ought to be adjudicated in some Court of justice according to the law and customs of England.  His majesty was not learned in the laws of his realm of England....his subjects are not be decided by natural reason by artificial reason and judgment of law, which requires long study and experience. Power struggle between court and parliament BONHAM’S CASE (p67)15  Suggestions in Bonham’s Case that a statute was perceived as contrary to common right and reasons might judicially be held invalid was deeply influential in later development of American constitutional law but was largely abandoned in England. Started doctrine of judicial review. (G. Smith p68,70)16  

FACTS - Boham had a medical degree. There was a statutory-granted Royal College of Physician who said they could govern all medical practitioners. Boham had no license from this college; they would not give him one but he continued to practice so college imprisoned him. HELD –  Court held College had no right to punish Boham. This is because one body cannot be the maker of

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A Constitutional and Legal History of England, Coke was severely criticised after the publishment of Bonham’s case which cost him his job. 16 A Constitutional and Legal History of England, 15

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law and then proceed to judge at the same time. Coke says that “common law will control Acts of Parliament and sometimes adjudge them to be utterly void; for when a acct of Parliament is against common right and reason or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void.” ROWLES V MASON – coke held that common law “corrects allows and disallows both statute law and custom...if there be repugnancy in a statute or unreasonableness in custom.”

3.3 Star Chamber (p63) What is the Star Chamber? ( F. Marchman p63)17 The Star Chamber was an invention during the Tudor period (e.g. Henry VII) which later became a symbol of oppression and tyranny. It was set up for the purpose of remedying a defect in the judicial system at the time and was meant to act as a judicial tribunal. How does the star Chamber work ( F. Marchman p63)18  Remedy a defect in the working of the established judicial system. They set forth to suppress certain offences (e.g. riots and obstruction to the operation of courts and justice)  The court has complete freedom as to the procedure it followed; the evidence it considered and the punishment it meted out.  Abolished in 1640 Reality of the Star Chamber ( F. Marchman p63)19  Repressive system, operated in secrecy and clearly lacked transparency – There was no confrontation between accused and accuse. The examination of witness took place in secret and the only occasion when the case emerged into public view was when the court met in the Star Chamber to announce a decision to the accused. It acted tyrannically and became an institution of propaganda and oppression rather than justice.  Political influence in decision making – senior politicians were principal features of the judiciary which breached separation of powers  Emerged as an agency of propaganda (punishment was harsh and individualised) – The court made public spectacle of a man’s conviction and punishment to drive home the gravity of certain illegal acts.| Enabling Privy Council to make plain its intention to enforce government policies.  The star chamber was tyrannical because it tended to become a court of politician enforcing a policy not a court of judges administering the la. (JR Tanner p64)20

3.4 Limited Government (p74) Judicial Review Limiting Government? ENTICK V CARRINGTON (p74) FACTS  Secretary of state issued warrant o search Entick’s house upon allegation of him writing seditious materials. Entick sued for trespass but was challenged on the ground that the warrant was legal.  The problem was, did SOS (i.e. government) have right to issue the warrant? 17

Constitutional History of Modern England Constitutional History of Modern England 19 Constitutional History of Modern England 20 Tudor Constitutional Documents with an Historical Commentary 18

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HELD (Lord Camden)  If it is law it will be found in our books. If it is not found then it is not law. Therefore, warrant to seize and carry away the party and papers in the case of sedition is illegal and void.  Emphasised the importance of private property rights. Unless statute or common law clearly takes away private property for the good of community (e.g. tax), no person can intrude upon other’s private property.  HELD that there was no right in law for King’s messenger to trespass onto one’s land and seize documents unless their power was derived from the law.

Judicial Review for Liberty? SOMMERSETT’S CASE (p76)  FACTS - Sommersett was held in irons on board a ship by its captain, issued a writ of habeas corpus (orders to release a person that is wrongfully imprisoned). The captain asserted that he has the right to recapture the runaway slave. 

HELD (Lord Mansfield ) - To prove a power dominance over a slave you had to show there was some positive written law to support it. There was no written law and the nature of slavery was not a popular political and moral argument; therefore it is unlawful. 

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Was another symbolic case demonstrating that importance of individual liberty where it was held no law in England allows for slaves and so no slaves were allowed.

4. DICEY, PARLIAMENT SOVEREIGNTY AND THE RULE OF LAW 4.1 Parliamentary Sovereignty (p83) What is parliamentary sovereignty? 

According to Dicey (p83)21 o “parliament has the right to make and unmake any laws”  No one including the courts has the right to override legislation made by parliament (but it can be struck down by judicial review if it is inconsistent with the constitution).  Everyone including the court must obey the laws of Parliament o The role of “the people” is limited to voting at elections so there is no legal or effective means of challenging the government (e.g When Howard had majority in both upper and lower houses he pushed through with work choices 05-06. Despite its lack of popularity people had no effective legal means to challenge it before election).  Electors are the political sovereigns  Parliament is the legal sovereign (powers of law making unrestricted by legal limits). o Judges develop a body of common law  not inconsistent with parliamentary sovereignty  parliament can override common law with statute o Limitation of Parliamentary Sovereignty  If a law is entirely absurd such an act of genocide or murdering all blue eyed babies then significant number of electors will simply disregard and disobey the law. In such instances the political system will be under turmoil and will collapse.  Social influences on the character of Parliament such as morality, societal beliefs and environmental & political circumstances.

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According to Jennings (p86)22  Is the British Parliament truly sovereign? o There are many things Parliament cannot do in practice. E.g.  Abolish trade unions  Retrospective criminal laws  Extend its own life  Different laws for different people  Seize property  Introduce communism  Interfere with contracts o If there is a distinction between legal sovereignty and political sovereignty, is the former sovereignty at all?  It would mean that the sovereignty parliament has is not supreme power like the scope of power of historic English kings before they were constrained by parliament and the Magna Carter.  Descriptive relationship between the parliament and courts? o If Dicey is correct is saying that Parliament cannot bind future Parliament THEN

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Introduction to the study of the law of the constitution The Law and the Constitution

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The concept of parliamentary sovereignty is rather contradicting because if parliament is sovereign then it should have powers to change the nature of its own sovereignty. BUT arguably can future parliaments undo the change because they too are sovereigns? We are essentially engulfed in a circular argument.

What are the problems with Dicey’s view of parliamentary sovereignty? Dicey’s view contains some fatal flaws that render it an inadequate analysis of parliamentary sovereignty  

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Inadequate weight placed on old common law principles (e.g. retrospective criminal laws) Lack of authority to support his views o Nothing to bind future parliament o No applicable statutes o Heavily criticised by Blackstone Explain what parliamentary sovereignty means but fails to explain why they should be sovereigns.

Goldsworthy defends parliamentary sovereignty as a doctrine (p86)23 The doctrine is not a dogma it is merely the way the political institution operates that leads to dogma. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Someone has to be sovereign (practical necessity) We used to accept that King has sovereign power Parliament used to have judicial power  could make, interpret and apply laws Parliament with limited power may not be able to deal with emergencies e.g. war As contemporary circumstances change new parliament needs flexibility to create laws to adapt to those changes By voting all subjects are deemed to consent to whatever Parliament does (really?) The collective wisdom of the whole community, reflected in and expressed by Parliament is better than a single ruler that often leads to tyranny. The King, Lords and Common places checks and balances on each other Judges cannot be trusted with judicial review powers Chances of tyranny or abuse by Parliament are not large enough to limit Parliament’s powers and accept all the negatives that come with such limitations. (benefit > costs)

Shaping Parliamentary Sovereignty preserver democracy? (Allan – p88)24 

Doctrine of Parliamentary sovereignty itself may protect people against certain laws by Parliament e.g o Laws depriving substantial portions of the electorate from the vote because they tend to prefer a different political party o Laws abolishing democracy o “a statute which threatened fundamentally the central tenets of our democracy could derive no authority from the doctrine of sovereignty, properly understood”

4.2 The Rule of Law (p90) What is the Rule of Law?

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The Sovereignty of Parliament: History and Philosophy Law, Liberty and Justice: The Legal Foundation of British Constitutionalism

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According to Dicey (p90)25 – the rule of law is the idea that no one can defy the law. It forms a fundamental principle of the constitution and has 3 meanings 1. “the supremacy of law or predominance of the regular law over the influence of arbitrary power”  not punished unjustly 2. “equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. It excludes the idea of exemption of anyone from the duty of obedience to the law”  uniformly applied 3. “A formula for expressing that the law of the constitution is a consequence of the rights if individuals.”  faith in the capacity for rights of individuals to be secured through the common law and Parliament. Rights protection is inherent in the system though not codified.

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According to Jennings (p91)26 o The rule of law has something to do with the “content” of the law as well and may not be universal because  it is based on liberal-democratic decisions (communism)  can conflict ideologies that a powerful state leads to happiness  can conflict with ideologies that there should be no universal principle underlying the state  different cultural religious, historical ethos in different countries? o Phrases by Dicey like “Englishmen are ruled by the law, and the law alone – powers of crown derived from law” are to a certain extent, pure ideological rhetoric and lacks pragmatism because  State’s powers are derived from the law but parliament makes those law, so what parliament grant excessive or arbitrary power because they are political sovereign?  Despot (ruler) rules under the law he/she makes  Some substantive limitation is required as a part of the constitutional principle such as a separation of powers doctrine. o Rule of law is tied to the notion of equality and liberty but is very imprecise in its scope  What equality does it refer to? – E.g. political, economic? – Special classes of law? – No discretion in individual cases  What does liberty mean? – Political freedom? – Market forces? – Individualism?  a social theory advocating the liberty, rights, or independent action of the individual o Rule of law is not a complete guarantee of freedom just because we’ve elected our rulers o The ruler of law is more complicated than Dicey’s 3 points. It also involves some considerable limitations on powers of every political authority so that all government power (except legislative) shall be distributed and determined by reasonably precise laws.

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Introduction to the study of the law of the constitution The Law and the Constitution

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In recent times the rule of law has been subjected to strong criticism, that its formation and neutrality is simply masking the economic and political underpinnings of the law. Criticism of the Rule of Law 

According to Stone (p93)27 o Argues that the rule of law may be understood as an ethical and not just a legal doctrine o The heart of the rule of law that those in power recognises their power is only tolerated because of shared socio ethical convictions ( a point that Dicey’s doctrine fails to consider0 o Substantive content of the law is also important and the existence of a responsible legislature o The rule of law doesn’t demand uniform rule of all matters for every person in society as suggested by Dicey. Instead there are varying situations. Merely conformity to the law is not sufficient, instead we need conformity to the ideal “rule of law”. o The rule of law cannot be reduced to 3 formal propositions suggested by Dicey.

Reports by International Commission of Jurist 1959 (p94)28 

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Defines rule of law as: the principles, institution and procedures (may often differ but broadly similar), experiences and tradition of lawyers in different countries that operate to protect individuals from arbitrary governments. Rule of law is “convenient term to summarise a combination of ideals and practical legal experience”. It is based on 2 ideals o That power of the State must be derived and exercised lawfully AND o That the law is based “on respect for the supreme values of human personality” The rule of law implies that without regard to the content of the law, all power of the state derived from and should be exercised in accordance with the law. However the law itself is based on respect for the supreme value of human personality.

Is the rule of law applied in Australia?   

HC has acknowledge that the rule of law is implicit but undefined part of the Australian constitutional system However it is a vague concept, its relevance is limited depending on how you view the concept (i.e. which version of the rule of law should you apply) Although the rule of law is a fundamental norm in the modern Australia society in some areas (e.g. Anti terrorism laws where much power is given to executive without checks on their power) it may be undermined.

4.3 Reconciling Parliamentary Sovereignty and the Rule of Law Here the main question is whether the parliament is the sovereign as they make the laws or is the law the sovereign that is parliament’s power is also effectively derived from the law itself. Dicey ‘s reconciliation (p95)29  Are they mutually exclusive? Meaning that they are independent of each other? OR do they coexist in harmony? 27

Social Dimension of and Law and Justice The Rule of Law in a Free Society 29 Introduction to the study of law of the constitution 28

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“sovereignty of Parliament favours the supremacy of the law of the land”  although they may appear to oppose each other as a form of check and balances but law of the land is the true sovereign. Parliament can only exercise its power through statutes which must be created following the proper process (which require deliberation) and then interpreted by the courts. o Entrenches the power of the courts o Statutes become subject of judicial interpretation o English parliaments has never except during revolutions exercised direct executive power to appoint executive governments. Dicey’s reconciliation of the 2 has been largely unconvincing because rule of law prevents arbitrary government actions but if parliament is sovereign it should have plenary powers to legislate and not be bound by the rule of law. Clear contradiction in definition. o

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Jenning’s view on Dicey’s reconciliation (p96)30  Public authorities have wide discretionary powers even in the time of Dicey. o Take property without compensation during war or for purpose of reservoirs o Compelled to leave work in order to serve jury or military o Liberty restrained in times of war o Jailed indefinitely for contempt of court  Laws are often passed quickly without deliberation (careful consideration) o When a bill is passed is will become the subject of judicial interpretation unless government provides otherwise. If govt dislike the interpretation given they can simply reverse the interpretation by inserting a new section or make alterations to clarify the legislation. Dicey’s reasons why we don’t need a Bill of Right (p97)31 Bill of Rights is not necessary  Charters of rights give rights but often don’t specify a remedy for breach of mechanism for enforcement 

Rights given in legislative form are always accompanied by a means of enforcement within the legislation itself so to have a bill of rights would be repetitive and inefficient.

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Because Charters of rights are considered extraneous to the ordinary body of law – they can be susceptible to being suspended in times of emergency. Where rights are inherent to the system they are less susceptible to this.  Then what is the point of them?

Other reasons purported by John Howard (1996) that he calls great pillars of Australia democracy 1. Inherited anti-authoritarianism and individualism 2. Parliamentary system  bicameralism keeps check and balances 3. Independent judiciary  judicial review 4. Independent free media and free press  can instigate public pressure Rule of Law and Civil Liberties (Barendt p98)32 30

The law and the constitution Introduction to the study of law of the constitution 32 Dicey and Civil Liberties 31

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Does the rule of law provide an adequate framework for protecting civil liberties? o Do we need positive rights of assembly, rights to form political parties, rights against excessive police action? o Has Dicey exaggerate the extent to which courts are willing to use common law principles to restrain draconian legislation? o Common law has clear deficiencies  Malone (1979) – phone tapping by post office not unlawful because there was no law forbidding it  Common law is slow to develop along the lines of human rights.

Has Dicey’s view against Bill of Rights prevailed in UK? (p100)  No it has not prevailed o Human Rights Act 1988 (UK)  statutory bill of rights – incorporated the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 into UK law o If statute is inconsistent with it only judicial remedy is a “declaration of incompatibility”  May trigger statutory amendments or  Amendments by executive order in extreme cases. Other ways to reconcile Rule of Law with Parliamentary Sovereignty  Presumption (to be known as an aspect of the principle of legality) – Statutes are not intended to alter the common law is frequently applied in Australia 

POTTER v MINAHAM (1908) – p100

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WATERSIDE WORKERS (1924) – p101

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FACTS - Word immigrant in Immigration restriction Act 1901 interpreted as excluding Australian born people returning from overseas thus preventing appellant was treated an immigrant. HELD - Court rejected that and held that it is unlikely that legislature would overthrow fundamental principles, infringe rights of common law without expressing clear intention to do so. HELD - To overcome the presumption something equivocal must be found either in the context or the circumstances (Issacs J)

Principle of legality – is the legal ideal that requires all law to be clear, ascertainable and nonretrospective. It requires decision makers to resolve disputes by applying legal rules that have been declared beforehand, and not to alter the legal situation retrospectively by discretionary departures from established law. It is closely related to legal formalism and the rule of law and can be traced from the writings of Dicey.

R v HOME SECRETARTY (1998) – p102 – Lord Steyn

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FACTS - Statutory language wide and unambiguous but Court held that the Home secretary acted unlawfully in fixing a minimum non-release period for a prisoner conviction of murder. HELD - Courts don’t legislate in vacuum – statutes can be detailed but much goes unsaid because legislators assume that statute will be interpreted by court within the context of the great body of law and legal principles that already exist. o Principles that even widely drafted discretionary powers must be exercise reasonably o “these presumptions of general application not supplement statute but operate at a higher level as expression of fundamental principles governing both civil liberties and the relations between parliament, executive and the court. They operate as constitutional principles which are not easily displaced

o

by statutory text”. “unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law”.

Lord Steyn found a broader principle that postulates that European liberal democracy is founded upon principles and tradition of the common law COCO v THE QUEEN (1994) – p101 – Brennan, Mason, Gaudron & McHugh JJ

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FACT – Coco’s conviction for attempted bribery of federal police quashed by High Court. Evidence obtained through secret listening device installed in Coco’s factory by disguised police o Invasion of Privacy Act (QLD) authorised installation o AFP Act (CTH) negated need for authorisation HELD – neither of above could authorise unlawful entry by means which the device had been installed because there is a presumption that legislation had not intend so as to protect fundamental rights of individuals unless there is a clear implication that authority’s entry was intended. o Invasion of Privacy Act (QLD) authorised installation  perhaps construed as allowed to install but entry is a separate issue.

5. FEDERATION AND POPULAR SOVEREIGNTY 5.1 Path to Federation

(p122)

The lead up to Federation in Australia was a process that had taken over 60 years of effort and fluctuating public interest. The idea first appeared in 1890s and was heavily promoted by Sir Henry Parkes, the Father of Federation. It was not until the 2 conventions that the constitution was approved by the people via a referendum in 1898 and 1900 respectively. The draft approved draft was sent to and enacted by the British Parliament as the Commonwealth of Australia Constitution Act 1900 (IMP) which came into effect 1 st January 1901. Reasons for/against Federation in 1980s ( Parkinson p122) Reasons for Federation  Economic benefits: Remove tariff barriers between states of the federation but the new issue was how trade policy should affect imports 

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Reasons against Federation  Different Trade Policy: Victoria has protectionist policy whereas NSW supported free trade. 

National Defence: fear of a common enemy from the expansion of German interest and activities of the French.

Size: Small colonies may lose their identities and be dominated by larger colonies such as NSW

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Economic Cost: There was a chance that NSW had to subsidies Tasmania and South Australia

Nationalism: the proportion of Australian born was increasing

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US: Negative sentiment/experience in the USA – civil war.

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Others: disputes over land policy and electoral reforms.

Once the colonies agreed on Federation, problem arose as to how to structure the federation within the Westminster system of government ( Parkinson p123)   

Since Britain did not have a Federal System Australia looked to other examples such as America, Canada and Switzerland. Canadian model though to have a too powerful central government The American model was deemed favourable because o it protected the States’ rights. Some powers were left in Federal’s hands but most powers were within State jurisdiction. This was essentially the separation of powers. o Also provided that the “senate should consist of equal number of members from each state while the House of representative should reflect the national distribution of population” o Created a federal judiciary to decide whether the govt had exceeded its ambit of power o Supremacy of federal laws over state laws in the event of inconsistency s109 o Entrenchment s128.

Others debated the Issues during the path to federation

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Whether appeals from HC should go to Privy Council ( decided that HC should be the final court of appeal for constitutional matters unless the public interest of another part of her Majesty’s dominions were involved). Custom duties (decided that ¾ would be paid to state for the first 10 years of federation) Deadlock provision (agreed that following double dissolution of both Houses, only an overall majority in a joint sitting of the Houses was required to resolve the deadlock)

The Act was finally passed in 1900  

Assent by Queen was required because only an Act of the Imperial Parliament could provide legal basis for the federation of colonies Although Aus largely adopted the US model it did not include a Bill of Rights

5.2. Human Rights and the Australian Constitution The constitution framers did not include an express Bill of Rights largely because they were heavily influenced by writings of Dicey who was sceptical of the necessity to expressly guarantee rights in written constitutions. According to Dicey – Common law and political process will adequately protect civil liberties because the rule of law has already been integrated into the system. Also parliamentary sovereignty meant that they had the power to make and unmake laws and no other body besides parliament can override legislations drafted by parliament. Our constitution had elements of Dicey’s Idea of parliamentary sovereignty but was subjected to judicial review where the C could invalidate legislations if inconsistent with the constitution. (Williams p126)33 Arguments against express human rights  Rule of law will provide adequate protection. The need to preserve human rights is blatantly obvious and by expressing it in a written constitution would simply impair the image of Australia . 

S80 (trial by jury), s116 (free religion), ss117 (antidiscrimination) already protected people’s rights.

Arguments for express human rights  There are many instances in history where rulers have set asides principles of justice, hence an express right provides outright protection 

Parliament could act tyrannical which may in some instances arise from a dictatorship as in the case of Hitler during WW2.

For other arguments refer to Bill of Rights Section

5.3 Path to Real Independence Many believed that independence was achieved with the enactment of the Australian Constitution but in hindsight, it was that clear that with the Colonial Validity Act operating (if law of colony was different ten English law overrides it) Australia was not free from any imperial legislation from British parliament. Limitations to law making after 1901 (p127) 33

Human Rights under the Australia Constitution

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Doctrine of Repugnancy - if an inconsistency exists between colony and imperial law, imperial law prevails Doctrine of extraterritoriality – ability to make laws affecting outside their territory (enforcement of law as another issue). o According to Issac J (skin wools case) the new cmwth and its states were limited by the Doctrine of Extraterritoriality. There were 2 version 1. Moderate version – an exercise of colonial legislative power was invalid unless its operation had sufficient connection with the geographical area of the legislating colony. 2. Extreme version – a colony’s laws could have no operation outside its territorial borders at all.

The above were considered in the following cases COMMONWEALT v LIMERICK STEAMSHIP (1924) - p128

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 UNION STEAMSHIP CO OF NZ v COMMONWEALTH (1925) – p128 COMMONWEALTH v KREGLINGER (SKIN WOOL CASE) (1926) – p128

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FACTS – s39(2) Judiciary Act 1903 (cth) invested State Supreme Court with federal jurisdiction in all matters listed in ss75 and 76 of the constitution – on condition there be no appeal to Privy Council from State Supreme Court in respect to those matters BUT inconsistent with Judicial Committee Act 1844 (imp) which permitted such appeals. HELD – s39(2) valid not repugnant because the Cmwth of Constitution Act (IMP) was later in time - implied repeal of Australia Crts Act 1828 Provisions in Navigation Act 1912 (cth) invalid due to repugnancy with Merchant Shipping Act 1984 (imp) Clearly contradicts the previous case (isn’t there an implied repeal?) Issac J attempts to explain the disparity between the 2 cases above. Australian constitution (imp) superior to Judiciary Act 1903 (Cth) (later act). HELD – 1 Under Judicial Committee Act appeals to Privy council depended on Order of Council which is an Imperial function performed by imperial ministers. Imperial ministers were responsible to imperial parliament not Australia. 2 Because it needed immediate operation of responsible administration a different emphasis was placed on Cmwth of Aus Constitution Act unlike the position with the merchant shipping act 1894 (imp)federal matters were left to us.

Elimination of the limitations on colonies’ law making powers after 1901 (Sawer p130)34 

34

Statute of Westminster 1931 (imp) o Freed the Dominions including the Cmth from Imperial restrictions by excluding the operation fof the Colonial Validity Act. o Removed limitations via  S3 – removed any restriction upon the Cmwt’s legislative powers arsign under the extraterritoriality doctrine  S2 – removed repugnancy doctrine o S4 - However the British parliament could still legislate for Australia but only with the “request and consent” of Cmwth Parliament o Marked an important step in Australia legal independence

The Australian Constitution

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However there were still limitations despite the Statute of Westminster o The statute did not automatically apply to Australia, instead it was left for them to “adopt” under s10 of the Act. (Later Australia did adopt it in the Statute of Westminster Act 1942 (cth) which backdated the adoption to 3 September 1939). o The statute did not extend the liberating effect of the Act to the provinces as well as the Dominion. Instead s9 preserved the existing legal position of states.  colonial validity act still applied

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The Australian Act 1986 (cth) (p141) o Brought about the complete independence of Australia and the end to applications of imperial laws in the Australian states and expressly – S1 – ended power of the British Parliament to legislate for cth or state – S2 – removed doctrine of extraterritoriality for states – S3 – removed doctrine of repugnancy for states

SUE v HILL (1999) – p141 – Gleeson CJ, Gummow & Hayne JJ

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ATTORNEY GENEARL (WA) v MARQUET (2003) –p144 – Kirby Dissent

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Declared that UK was a foreign power. Decided that Australia becoming an independent nation was an evolutionary process and reinforced by the Australia Act. S1 Australia act – does not attempt to “exclude as a matter of law of the UK” instead it denies their efficacy as part of Australian Law by “terminating any appeals to Privy Council”. The constitution had not changed but its operation has (“the constitution speaks to the present and its interpretation takes account of and moves with these developments”.) FACT - Claimed the Australia Act was unconstitutional. He argued that s6 purported to impose new restraints on legislative power of state parliaments. There was a change of the constitution via a “back door” method and claimed the act was not really the “will of the people” HELD – held that the Australia Act was unconstitutional on the ground that s6 purported to impose new restraints on legislative of state powers, impliedly amended ss106-107 of cmwth constitution by introducing into state constitutions new elements.

5.4 Popular Sovereignty (p145) Much controversy surrounds whether the Australia Govt is a form of popular sovereignty. Unlike other countries (e.g. india and USA) Australia’s constitution derives its validity from an exercise of British sovereignty and now directly from the people. Why is the Australian constitution binding? (Lindell p146)35 Why is it binding in 1900  The constitution was part of an act passed by the British Imperial Parliament 

35

Its legal status was derived from the fact that it was contained in an enactment of the British Imperial parliament since British statutes were the original source of law in Australia.

Why is Australia’s constitution binding?

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Why is it binding in 1986  changes since the enactment of the constitution (e.g. Statutes of Westminster, Australia act) affect the explanation as to what made the constitution legally binding. 

the answer could be found in the words of the preamble of the constitution (i.e. agreement of

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the people to federate” supported by the role given to them to alter the constitution gave support for the proposition that the constitution was a “people’s document”. Their acquiescence in its continued operation as fundamental law was what gave the constitution its legal force after 1986 till now.

its political legitimacy – derived from words in the preamble referring to the people of Australian colonies as having agreed to unite in a “federal commonwealth” (was approved by 60% of the eligible voters) 

Besides that nothing has changed from the position that the cth and states cant legislate inconsistently with it o Development of aus’s independence has been in the eyes of international community o Inability of British Parliament to legislate for Aus in any other respect and our ability to repeal imperial enactment.

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In short the constitution enjoyed its character as higher law because of the “will and authority of the people”

Is the Australian constitution a “people’s document”? OR problems with the theory? William (p147)36  Only 52% of eligible voters turned up to vote for or against constitution 

Williams believed the constitution cannot be considered a “people’s document” because most women and many aboriginal people were excluded from voting

Irving (p149)37  Irving argued against Williams that despite the low number of votes actually cast during the vote for Federation it can still be regarded as “popular process”. Just because many people did not vote doesn’t mean we can assume they disapprove of the constitution and so it would be wrong to conclude it was not a popular process. 

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Williams also had difficulty with Lindell’s “acquiescence” (agreement) argument because Australians do not go about deciding whether to continue acquiescence to existing constitutional structure. Instead statistics show the majority of people are largely ignorant of the constitution.

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“The people” is less about statistics and more about mechanism of voting, Once a public participatory process began (e.g. people were ware or hard a reasonable opportunity to become aware of the existence of the constitution) then even if some people did not bother to find out about the rules there is still implied consent to those rules. Therefore it was the level of scrutiny and public debate that made it popular process.

5.5 The Australian Federal System Federalism is a method of dividing power between the central and regional governments so that each are within their own sphere, coordinated and independent. (Bryce/Wheare’s view)

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The High Court of the People The people and their conventions

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Advantages 1. Robust constitution that anchors pluralist democracy – gets the advantages of localised govt and adv of centralised govt (Galligan & Walsh p207)38  Despite many similarities in policies there are also significant differences that reflect independent cultures of the States.  Process allows better policy options that are tailored to suit individual states. 2. Federalism can help secure democracy and human rights (Galligan & Walsh)39  Enhances democratic participation from double democracy because they can participate more directly so it prevents central govt from becoming too oppressive  Dual citizenship offers a freedom of movement between states. 3. Division of power prevents government becoming too oppressive . (Gillespie p209)40  Prevent govt from infringing on liberty of individuals. States are generally better than Federal to protect rights  The longer decision making process prevents hasty government decisions.  Helps enshrine “due process” by limiting arbitrary govt action 4. Federalism is not an old fashioned and impractical system of govt. Its flexibility allows for local needs to be satisfied and respond to international pressures of globalisation. It is especially useful in a country that is geographically large where citizens live in very different circumstances, like in Australia. (Twomey) 5. “Federalism removes the need for a Bill of Rights because it is a bill of rights in itself” (Galligan, Knopff & Uhr p209)

38

Australian Federation Yes or No? Ibid 40 New Federation 39

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Disadvantages 1. Federalism presents financial tensions between the state and Federal Govt (e.g. especially produce negative outlines in health sector) 2. The argument of the benefit of Federalism allowing dissatisfied citizens to leave their state is only a luxury for those wealth enough to leave. An effective system should benefit all. 3. Removing federalism doesn’t not mean removing checks and balance 4. The argument that state government protects individual rights better than Federal govt is confusing state rights with individual rights (e.g. work choice rights, IR laws are state govt right not individual rights). It is hard to detect times where the Federal system has protected individual rights in Australia 5. Efficiency is created by the Federal system with its overlapping ad bureaucracy leading to a wastage of resources. 6. Larger states may often end up carrying to burden of little states 7. Questions whether the federal system really provides check on power. Even if it can be said the state governments through their distribution of power scrutinises the federal legislation, it is really the senate that is doing this. However the problem is senators do not have direct tie to any government below the cmwth(unless they are senator and mayor of the region). Also the operation of the senate s dominated by party politics

6. INDIGENOUS PEOPLE AND THE QUESTION OF SOVEREIGNTY 6.1 Introduction (p152) The idea of Aboriginal sovereignty gave rise to 2 competing ideas of sovereignty. To recognise both the sovereignty of the Crown and the Aborigines meant trying to find the right balance between the two with considerations of the practical implications that settlement had. The English had a very different view of the land to Aborigines  English view – of radical title is the notion that land is not capable of beign owned by someone, instead the King is declared the owner of all land who then allocated land to noblemen who then passed or onto others. Crown was ultimate owner. View was also very individualistic.  Aborigines’ view – of land was very communal Aboriginal Voting Rights (p153) 1

Prior to 1901

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2. Post 1901

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Aborigines other than freeholders were excluded from franchise (voting) - proviso s6 of Elections Act 1885 (QLD) Disqualification in WA to aborigines – proviso of s12 Constitutional amendment Act 1893 (WA) Other states had no such disqualification so s41 kicked in Did not ensure AP had right to vote (refer to below) Women vote – only in WA and SA Commonwealth Franchise Act 1902 (CTH) – extended franchise to women but rejected proposal for AP to vote arguing that they lacked the intelligence, interest or capacity to vote. 1962 amendment to Commonwealth Electoral Act 1918 (cth) – universal franchise including AP 1967 Referendum – remove discriminatory references & allow Commonwealth to take over responsibility of Indigenous welfare. i. 90% YES  changed s51(xxvi) , removeds 127 to include AP in the census 1983 - compulsory for all

3. Readings of s41

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S41 Constitution – “No adult person entitled at vote at State level can be prevented from voting at federal election by Commonwealth Law” But this did not ensure Aborigines to vote at federal elections. This section given a narrow transitional interpretation: i. If you had the vote at state level before 1902 then s41 allowed federal vote ii. If you were an aboriginal person turned 21 in 1904 and qualified for state franchise; omitted from federal vote iii. As people already 21 aged 21 in 1902 aged and died the benefit of s41 for AP would disappear.

Legislature and AP

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Only in 1973 with the Whitlam Gvt and Justice Woodward that a report on Aboriginal land right was established. Although his terms were limited to the NT it was thought it would be implemented nationally The aboriginal Land Rights Commission: Second Report included o Promotion of social harmony and stability of Aborigines with the wider Australian community, provisions for basic compensation to the Aboriginal people

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From 1974 onwards recommendations of the Woodward report was the basis for Whitlam Govt’s legislative programs which were continued by Fraser

6.2 Native Titles (p154) Sources of law that we need to consider when we are examining the Native Title include 1. Common Law 2. Statute (Racial Discrimination Act) 3. International Law 4. Traditional Law and customs Common Law as argued by Blackburn J (p154)  

Conquered or ceded ( force or submission) because existing indigenous laws survived but could be distinguished by the British sovereign Settlement then English law fills the land because the land was terra nullius.

Did Mabo Recognise the Sovereignty of Indigenous People? MABO v QLD 1992 - p156 Fact – Eddie Mabo on bealf of Meriam people, assert their traditional Meriam Title of Murray Islands was unimpaired by QLDs annexation at 1979 and later developments. Was Australia terra nullius in 1788? p155  Blackstone’s notion of “deserted and uncultivated “ was rejected as its against modern factual evidence.  Australia was considered Terra nullius not because there was no one on the land but because they were “low in scale of social organisation” they could not be considered civilised. Whether the Crown’s acquisition of land resulted in full beneficial ownership?  Majority - the full ownership does not apply immediately upon acquisition as it is not longer terra nullius/legal vacuum. Cmwth recognised native title after acquisition as burden on radical title, it exists till expressly extinguished.  Dawson (dissenting) – native title extinguished upon settlement  GOVE LAND RIGHTS CASE –Blackburn J challenged the idea asserting that aboriginal system had never been uncivilised but was one adapted to the country, very much a system of law and order. However he felt bound to accept the settled assumption because it was an assumption of law.  Policy consideration – didn’t expressly reject “settlement” as it is fundamental to property law in Australia and it cannot be challenged in HCA as itself exists upon common-law system which relied on concept of settlement. Brennan’s Judgement  After examining advisory opinion on Western Sahara (international court of justice) – Previously we were able to deny people their land rights on basis that they were barbarians and so there was no other proprietor of Australian Land. However this is clearly not in line with current practise and incorrect, especially considering international law. Therefore the law had developed and shouldn’t be “frozen in an age of racial discrimination”  Rejected Attorney Gen o If land was occ eral v Brown (that full legal and beneficial ownership was gained upon acquisition of sovereignty).(p157)upied by indigenous people whose rights are recognised by common law, the radical title acquired by the British upon acquisition of sovereignty cannot by itself be seen as conferring absolute beneficial title to land. 27 | P a g e

o

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Radical title by crown could extinguish native title but upon settlement Crown did not have absolute beneficial title (meaning if the Crown did not extinguish the title, native title exists). On acquisition of sovereignty the Crown also acquired radical title over that part of the land. However the native title survived despite the Crown’s acquisition of sovereignty and radical title unless express extinguishment is declared. (p158) o When the crown has validly alienated the land by granting an interest in it, native title is deemed extinguished (e.g. parcels of waste land set aside for roads). However native title continues to apply for waste lands which the Crown has not set aside or which its use is consistent with continuing concurrent enjoyment (e..g land set aside as national park). Rejected Grove Land Rights Case (p159) (where relationship between clan and their land is not recognised under common). Native title is recognised with methods in the traditional law, it doesn’t need to comply to proprietary characteristics of European law. o Therefore where a clan/group continued to acknowledge the law & observe customs based on the tradition of that clean and their connection with he land was substantially maintained and the traditional community still exists, then they can claim native title. Customs need not be the same, they can evolve. o Native title cease to exists when currently no traditional link to the land can be established “tide of history”.

Restriction and remedies for wrongful extinguishment (Dean,Gaudron & Toohey)  Held that if wrongful extinguishment does occur it may attract liability in damages s51(xxxi) – acquisition f property must be on just terms  BUT by 4:3 decided not to pay compensation in this case Importance of the Decision  It was the case that acknowledged before 1788 (before settlement) the Indigenous people had sovereignty over the land. It did not assume that Australia was terra nullius.  However CA called it native title to avoid suggestions of indigenous sovereignty and only recognised customary laws and entitlement of Indigenous people if they were consistent with existing constitutional norms. Also native title only exist where not extinguished (it can extinguished by any legislative or executive action of cwth or state govt).  Brennan consciously used the terminology change of sovereignty and this trend was followed by Gleeson, Gummow and Hayne n Yorta Yorta. There is no shared sovereignty with Crown (e.g. Coe(no2) & Walker)

Is there a Statutory Construction to Recognise Native Titles? YORTA YORTA (2002) – p170 – High Court Facts  In 1988 the claim of the Yorta Yorta people to continuing native title was rejected by the Federal Court (Olney J acting as single judge) in 1988. Olney J basis for his decisions was because he believed the “ancestors through whom the claimants claim title had ceased to occupy their traditional lands in accordance with their traditional laws and customs.  In 2001 the yorta yorta people appealed to Full federal court and their case was dismissed 2:1 (black CJ dissenting)  Appeal to HC Full Federal Court  Refer to other notes High Court Held (Gleeson, Gummow and Hayne JJ)  The traditional laws and customs observed find their source in traditional law and customs not the common law. Native title’s origin is from traditional law and custom and not the Native Title Act. 

Sovereignty of Indigenous people must have been before 1788, in 1788 that sovereignty was extinguished

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and so any rights that want to be recognised must exist before 1788 before indigenous sovereignty was extinguished. (i.e. sovereignty of the Indigenous people did not survive instead their rights and interests in relation to land or water survived). 

When the crown acquired sovereignty, the law making system previously could not have validly created new rights, duties or interests. Therefore those rights or interest must have existed before the crown’s acquisition.

Why there is a need to show society and native title cant be claimed as individuals –  customs do not exist in vacuum it must be derived from somewhere. If a tribal society or community ceases to acknowledge and practice their customs and traditions then those laws and customs do not have continued validity and existence. – Issue: why there cannot be a pause in these laws & customs  If laws and customs have a period of interruption then they are no longer the same traditional laws and customs. This is because the content will undergo changes, adapting to the new society. Thus customs of the newer society are no longer equivalent to the previous customs of the older society. Issue: the extent of evolution of laws and customs  No single explanation  Need to focus on whether law and custom can still be seen as the traditional law and customs.

6.3 Indigenous Sovereignty & Self Determination (p178) The position of Indigenous sovereignty after MABO COE (1979) – Gibbs J

COE v COMMONWEALTH (No.2) (1993) – Mason J

WALKER v NSW (1994) Mason J

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 

Rejected the claim to aboriginal sovereignty “we cannot compare with the US, our history of relationship between the white settlers and the Aboriginal are different, we cannot treat the Aboriginal people like the US does as a distinct political society separated from others”  Aborigines in Australia are subject to the laws of Commonwealth and State just as everyone else. They do not have their own legislative, executive and judicial organs by which sovereignty can be exercise, even if they d, those would have no power unless conferred by the laws of the Commonwealth and the State. Even the idea of Aborigines exercising sovereignty in a limited way is impossible  Mabo (no.2) does not support the notion that sovereignty adverse to the Crown resides in the Aboriginal people or that there is a limited kind of sovereignty in the Aboriginal people to entitle them to self govern.  Mabo is authority for the proposition that the Crown’s acquisition of sovereignty over Australia cannot be challenged in a municipal court of this country, it’s a matter of law of nations. FACTS – Walker was charged with a criminal offense against the laws of NSW. He claimed this offense occurred at Nimbin a place said to be within the area of the Bandjalung nation of Aboriginal people. Walker argued 1. The common law was only valid in its application to the Aboriginal people to the extent to which it is accepted and that the statute lack the power to legislate in a way that affects the Aboriginal people without the request and consent of the Aboriginal people. 2. Mabo No.2 decided that customary law of the Meriam people relating to land tenure continues to exists so customary aboriginal criminal law

should also still exist and be recognised by common law. HELD  Rejects 1st argument. The legislature of NSW has the power to make laws for the “peace welfare and good governance” of NSW in all cases whatsoever. There is nothing in recent cases to suggest that Parliament lacks the legislative competence to regulate rights of Aboriginal people.  Rejects 2nd argument. There is a basic principle that all people should stand equal before the law. If we have different criminal sanctions applying to different people with the same conduct it would offend this basic principle. Even if it can be assumed that customary law of Aboriginal people survived British settlement. (i.e. like native title) it would have been extinguished by passing of criminal statutes.

UN Declaration on the Rights of Indigenous People (refer to page 183) What is self determination and sovereignty?  



There is much confusion by majority of the Australian population on what Aborigines seek when they speak of self determination. Many erroneously think of this as being secession and separate statehood Aborigines’ meaning of self determination and sovereignty o (Council for Aboriginal Reconciliation – Recognising Aboriginal and Torres Strait Islander Rights p 191)41  “the right of all people to freely determine their political status and to pursue their own economic, social and cultural development”.  Ability to negotiate a relationship with the Australian Government which may lead to outcomes that have potential to enhance their sense of national unity.  The right to exercise a sphere of authority and responsibility and the communities’ exercise of that right o Aboriginal meaning of sovereignty (Behrendt p196)42  Human right, basic needs, recognition of past injustice  Not the me as what t is meant under international law. It includes aspirations such as: greater community autonomy, rights not to be discriminate against, rights to enjoy language, culture and heritage etc. Possible ways to achieve self determination (recommendations by Council for Aboriginal Reconciliation –p192)43 o Government at all levels acknowledge Indigenous people’s right to self determination as the basis for policy on Indigenous affairs o Government at all levels enter into negotiation with Indigenous people in order to realise their self determination goals o Cmwth govt, ATSIC and Reconciliation Australia work together to promote discussion and education on the meaning of self determination in the context of indigenous people.

41 42 43

Treaty Recognising Aboriginal and Torres Strait Islander Rigts

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What are the future challenges – not yet implemented?(Council for Aboriginal Reconciliation –p192193)44 1. Council of Australia Govt (COAG) to implement and monitor framework to overcome indigenous disadvantage through setting performance benchmark measurable , agreed with indigenous communities and are publicly reported. 2. All government to support the Australia Declaration Towards Reconciliation and the Roadmap for Reconciliation  legislation endorsing them. 3. Cmwth prepare legislation for referendum a. Recognise them as first people of Aus b. Remove s35 of const and new section making it unlawful to discriminate 4. Recognise that formal reconciliation movement have been successful and to continue by  refer to page 193 5. Govt and parliament recognise that land and water was settled without treaty so negotiation is needed to protected indigenous legal, social, economical and cultural position. 6. Formal treaty to be formed. Has the govt officially apologised? 



Howard government has never formally forwarded an apology because he believed it was a “black armband view of history  we have achieved much more as a nation than that we are ashamed of. Instead shortly before election in 2007 Howard announced that he would push for a referendum to officially recognised Aboriginal people in our constitution. (p193) On coming to office, Rudd made a National Apology to the Stolen Generation(p194)

6.4 Treaties US view of self determination and treaties The US has adopted a domestic dependent nation status which mean that  Relationship is of one sovereign government to another  US govt entered into treaties with tribal govts that exchanged tribal lands for federal protection and services.  The relationship is established in the US constitution (ArtI, s8) o “congress shall have the power to ... regulate Commerce with foreign Nations, and among the several States, and with American Indian Tribes” Initial US position towards indigenous people CHEROKEE NATION v  Supreme court decided that Indians were neither S citizens nor independent GEORGIA (1831) –p184 nations but a “domestic dependent nation” whose relationship with the US resembles a “ward to his guardian” o Constitution vest Congress with plenary power over Indian affairs o Indian tribes retain sovereign powers over their member and their territory subject to the plenary powers of Congress AND o US has a trust responsibility to Indian tribes which guides and limits the Federal Govt in its dealing with them WORCESTERR v GEORGIA  Principle that discoverer nation has the sole right of acquiring land and making (1832) - p184 settlement only applies over native as well if natives have agreed to it. It gives exclusive right to the discoverer without affecting and denying the rights of those who are already in possession. 44

Australia’s chellenge

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 

EX-PARTE CROW DOG (1883)

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NCCLANAHAN v ARIZONA TAX COMMISSION p187

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US v WHEELER (1978)

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MONTANA v US (1981)

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NEVANDA v HICKS (2001) DURO v REINA (1990)

   

The Crown has to acquire native land buy buying it Native laws and system of govt were recognised from beginning o Congress from beginning passed Acts to regulated trade with tribes and treaties to protect them. US laws have no application in tribal land. Criminal law did not extend to tribal Indians acting on their own land US courts have no jurisdiction, only tribal courts have jurisdiction. Apparently, it was unfair to hold indigenous accountable under a system they had a blurred conception of. Influence of above decisions declined over time Navago women did not have to pay taxes in income from reservation land because Tax laws were State laws inconsistent with Federal treaties. Double jeopardy does not apply if previous conviction was a tribal conviction because the rule does not apply to successive convictions by different sovereigns Tribes have limited civil jurisdiction over non-Indians where consensual business relationship needs to be regulated to protect integrity and benefits of tries Brendale (1989) limited this to apply only when impact on tribe was demonstrably serious and imperilled the tribe. No civil jurisdiction over non-Indians no matter who owned the land One tribe has no criminal jurisdiction over a person of another tribe Tribes only had degree of sovereignty necessary to control their internal affairs – not full as they once had Decision reverse by legislation.

Benefits & Disadvantages of Treaties Australia is the only Commonwealth that does not have a treaty with its indigenous people Advantage of Treaties  Despite limitations of treaties it can still have a subtle and profound symbolic impact.

Disadvantages of Treaties  The experience of the US, Canada and NZ with their treaties show in each case the Indigenous people suffer deep socio-economic problems and their rights and interests have often been not protected.



Could alter the language and attitude of negotiation in a positive way

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The US, Canada & NZ have each accommodated for the notion of shared sovereignty or government to government relationship without undermining their own structure. This should be a lesson for Australia.



Slow complicated and expensive



The treaties are only a means of managing conflict rather than removing disagreement altogether



It is an acknowledgement of the problems and encourages public debate and appreciation of traditional rights in broader community.



Treaties are based on the assumption that each side will honour their commitments under the treaty. However an issue arises as to who is going to enforce the treaty.



It plays a positive role in promoting economic development and tackling social problems in the Indigenous community.

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May not be honoured n practice – giving false impression that situation is better than it is.



Even if a treaty is signed many problems need to be resolved for an example: o Who will be in the negotiation?

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o o o o

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What is the process to be adopted? What legal effect will the treaty have? How will it be financed? Who will be the umpire?

7. STATE CONSTITUTION 7.1 Introduction 

In examining the state constitution we examine possible restrictions on state legislative power. We examine whether the following are restrictions on state legislative power. 1 The provision stating the legislature has power to make laws for the “peace welfare and good government of NSW in all cases”  s5 Constitutional Act 1902 (NSW) AND s5 Colonial Laws Validity Act (imp) AND s6 of Australia Act 2 Common law rights that go so deep (doctrine of fundamental rights) that even parliament cannot be accepted by the courts to have destroyed them (FRASER V STATE SERVICES COMMISSION) 3 Amending State Constitution 4 Manner and form requirements

7.2 Peace Welfare and Good Governance (p428) Does the words ‘Peace, welfare and good governance’ convey limited or limitless powers? Implies Limitations

Does Not Imply Limitations

BUILDINGG CONSTRUCTION EMPLOYEES & BUILDER’S LABOURERS FEDERATION OF NSW v MINISTER FOR INDUSTRIAL RELATIONS ((1986) BLF CASE (p429)



 

Courts have to power to construe whether a piece of legislation was really for the “peace welfare and good government”. These words do not confer plenary power and is not unlimited in scope, instead it is a binding limit. (Street CJ) If the legislation was not for the “peace, welfare and good government of that state” then the statue is regarded as unconstitutional. (Street CJ) Reference to these words conferring plenary power are to indicate that States are not mere delegates of the British Parliament and this can delegate their own power. (Street CJ)

UNION STEAMSHIP CO OF AUSTRALIA PTY LTD v KING (1988) (p432)





Law in this area was left unsettled until the HC concluded that those words did no confer jurisdiction on the courts to strike down legislation on the ground that in the court’s opinion the legislation does not promote or secure “peace welfare and good governance”. Therefore it has been conclusively decided that these words do not imply limitations on parliamentary sovereignty.

7.3 Deep Common Law Rights (p429)  

Although this argument was raised in BLF case the statue in question did not infringe this so called deep common law right, hence the issue wasn’t conclusively decided. However there is a lack of authority that demonstrates situations where deep common law rights has even held to invalidate a state. Street CJ was uncertain about this doctrine but not expressly reject it.

Authority to support rejection of ‘deep common law rights’ as limitations on state power BLF CASE– Kirby P (p431)

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

Agreed with Lord Reid in BRITISH RAILWAYS BOARD v PICKIN (1974) where he rejected the notion that any right run “so deep” that no legislature could invade it because such an idea is obsolete since the supremacy of Parliament was finally demonstrated by the Revolution of 1688. Also it has been an unbroken tradition that



HC - UNION STREAMSHIP CO OF AUSTRALIA v KING (1988) (p432)



HC – DURHAM HOLDINGS v NSW (2001) (p434)

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

parliament has always respected the democratic will of the people. Kirby warned the risk of such doctrine: if judges can apply this doctrine to overrule parliament it will be more dangerous than parliament legislation. Once we allow judges to do this there will be no limit on judicial power and no one really knows what “deep common law rights” are, it is an issue for the judges to decide. It is unfair for judges to substitute his opinion for that of elected representative especially since perceptions of “deep common law rights “ may vary in place and time (lack of legitimacy). Was enthusiastic about this doctrine. However they did not conclusively decide on the issue and left the issue open for debate. The argument that land owners in the case’s right to receive “just” or “properly adequate” compensation is such a “deeply rooted right” as to operate as a restraint upon legislative power was raised. This argument was rejected by the HC and refused special leave. Gaudron, Mchugh, Gummow & Hayne JJ: argued that fundamental rights principle if accepted would in effect modify the constitutional arrangements proposed by s106 of the constitution.

Therefore overall ‘deep common law rights’ cannot be held to be an approved limit on state legislative power DURHAM HOLDINGS v NSW (2001) p434

  

Kirby argued the state of the commonwealth so it derives its constitutional status from the Federal constitution S107 of the constitution shows the state parliament must be of a kind appropriate to a state of the commonwealth and to a legislature that can fulfil functions envisaged for it by the constitution. Ultimately a ‘a law of state’ made by parliament could only be ‘law’ of a kind envisaged by the constitution. Hence extreme laws (e.g. ones that go against ‘deep common law rights’) might fall outside that constitutional presupposition.

Commentator’s support on rejection of ‘deep rooted rights doctrine’ 



 

45

Goldsworhty (p435)45 rejects the argument that some laws would be unjust or undemocratic for such a doctrine to apply because courts do not possess the power to protect deeply rooted rights in a democratic system of government against abuse by parliament. ( e.g. killing blue eye babies or removing large population’s right to vote.) He pointed out that there is a fatal flaw in such an argument because it treats moral & legal authority and moral & legal obligation as equal. It is unreasonable to believe a morally fallible legislature could have unlimited moral authority to enact laws and that people would have a moral obligation to obey whatever laws it enacts no matter how undemocratic or unjust Therefore in reality parliament is unlikely to impose unpopular statues because they will be voted out. Although it’s necessary for some institution to have ultimate authority to decide any legal questions that may arise, it is better for that institution to be parliament rather than judges. The safeguards are illusory The sovereignty of Parliament: History and Philosophy

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because there are no real limits; to limit a body’s power it must be transferred to another body but that may no prevent abuse.

7.4 Amending State Constitution (p436)  

Each State Parliament has power to amend the constitution of its State, subject to ‘manner and form’ requirements. At Federation 1901 Australia Constitution Act ensured that in:  s106 that in each State the Constitution Act of the former colony would ‘continue as at the establishment of the Commonwealth’.  s107 ensured Its continuance was ‘subject to this Constitution’., and to alteration ‘in accordance with Constitution of State’.

What powers were removed from States upon Federation?     

Those exclusively vested in Commonwealth (e.g s90) & implied limitations constitution. S114 – raising military without Commonwealth consent; taxing commonwealth property S115 – coining money S117 – laws discriminating against residents of other states S92 – trade commerce and intercourse shall be free

Can state governments amend state constitution? TAYLOR v ATTORNEY-GENERAL OF QLD (1917)- HC p436

 



MCCLAWLEY v THE KING (1920) – Privy Council p439



Barton J: bill to abolish Legislative Council is at variance with constitution as it is not a bill passed under the constitution even if constitution contains power to amend the constitution through ordinary legislation. In this case however there was antecedent legislation (s5 Colonial Laws Validity Act) which authorised amendments in very wide terms and thus extended the ordinary constitutional power. However CLVA might not reach to altering the representative character of the legislature (i.e. to dictatorship) Issac J: Agreed with Barton J but with 2 exceptions. (1) any attempt to eliminate the crown and (2) the representative nature of legislature but you can change the structure (bicameralism  unicameralism) Lord Birkenhead: distinction between controlled and uncontrolled constitution. The latter can be modified entirely at any time with ordinary statute (don’t need to pass act to repeal). The former contains some mechanism which must be followed prior to change or some other restriction on change. (Australia is controlled constitution)

7.5 Manner and Form Requirement (p440) 

Manner and form requirements restrict legislative powers of Parliament by requiring that laws on certain topic may only be enacted by a special and more difficult procedure.



Source of the requirement: This restriction originated from the proviso to s5 of Colonial Laws Validity Act 1865 (IMP) which provided that ‘every representative legislature... full power to make laws respecting the Constitution, Powers and Procedures of such Legislature; ... such laws shall be passed in such a Manner & Form as may from time to time be required by any Act of Parliament” .

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 



The Australia Act 1986 (cth) has similar proviso enacted in s6 about ‘manner & form’ is what makes manner and forms binding rather than s6 of CLVA since commencement of the Act. “a law made after the commencement of this Act by the Parliament of a State respecting the constitution, powers or procedures of the Parliament of the State shall be of no force or effect unless it is made in such a manner and form as may from time to time be required by a law made by the Parliament, whether made before or after the commencement of this act”

Manner & Form may present double entrenchment (example): Following the abolishment of QLD upper house by QLD Labor Party, LP of NSW attempted to follow but after its initial failure the government created a double entrenchment.  S7A Constitutional Act 1902 (NSW) – states the legislative council or senate cannot be abolished without a referendum AND  S7A(6) stats that s7A cannot be amended or repealed without a referendum. Makes intention of parliament clear.

How does the ‘double entrenchment’ work? TRETHOWAN v PEDEN (1930) Supreme Court NSW (p441)

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ATTORNEY GENERAL (NSW) v TRETHOWAN (1931) HC (p441)

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

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If s7A didn’t have as7A(6) then it’s not double entrenched, instead the whole of s7A could be repealed. Once s7A is repealed the legislative council could be abolished by ordinary Act of Parliament. Alternatively, parliament does not even have to first repeal s7A to abolish the legislative council. Instead parliament cans simply legislate to abolish the legislative council so that the legislation is inconsistent with s7A, where it would impliedly repeal s7A. However due to s7A(6) we had a different result. The ss cannot be repealed by ordinary act of parliament but only in manner prescribed by s7(A) i.e. referendum. Therefore s7A incorporated a manner & form requirement imposed by a law within the meaning of the proviso of s5 Colonial Laws Validity Act 1865. When the TRETHOWAN V PEDAN case appealed to HC, HC affirmed SC’s reasoning by decision of 3:2. Dixon J explains why the manner & form requirement applies: Parliamentary sovereignty cannot be applied to the legislature of NSW because it is not sovereign. Instead its law derives from imperial parliament who confers power on the NSW legislature and determines the extent of those powers and conditions which govern their exercise. The limitations on the legislature of NSW derives directly or indirectly from the sovereign of the Imperial Parliament, due to their sovereignty to confer the legislature of NSW as much or as little rigidity of its constitution as might be proper. Rich J’s explanation: from MCCAWLEY’S CASE (1920) it was reaffirmed that NSW has the power to regulate its own constitution, such a power would naturally extend to enactment of safeguards to prevent hasty action or straining improvident.

8. VOTING & ELECTION TO FEDERAL PARLIAMENT 8.1 Rights to Vote (p367) Voting Rights in the Constitution (367) 



s7 and s 24 of the constitution – state members of the senate and the House of Representative must be “directly chosen by the people”, from this the Court inferred that Australia possesses a constitutionally protected freedom of political communication. It was decided in R v PEARSON (1983 –p373) that s41 of the constitution does not confer an express right to vote however due to s7 and s24 there is an implied right to vote.

Voting rights in the Commonwealth Electorate Act 1918 (commonwealth) (p367-368)   



Voting has been compulsory since 1924 under s245 (1) of the commonwealth Electoral Act (1918) – “shall be duty of elector to vote at each election” They can omit voting if a valid and sufficient reason is provided. “Valid and sufficient reason” – a socialist refusing to vote because all the parties are supporters of capitalism is an example of a valid and sufficient reason (JUDD v MCKEON (1926)) – p368 S245 does not force a person to make a choice but it requires attendance at polling booth and depositing a voting paper even if ballot is unmarked. (ADELAIDE COMPANY OF JEHOVAH’s WITNESSES INC v CMWTH) (1943) – p368 S93 – outlines class of people that are entitled to vote

Issue – Is compulsory voting permitted under the constitution? (p369) LANGER v COMMONWEALTH (1996) –p369 – High Court

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Facts  S240 Commonwealth Electorate Act says a person must vote for House of Representative placing 1,2,3,4.... Under s239A it was offence to “print, publish or distribute” things to encourage voters to fill in ballot paper other than in accordance with s240.  Langer urged people to vote 1,2,3,3 with major parties equal last.  When punished by s329A he argued that 2 sections were inconsistent withs24 of the constitution that the representatives are “directly chosen by the people” and the people if choosing freely must be free not to choose by not numbering every square. Brennan J Held (all 6 judges agreed)  legislative power over elections for the House of Representative if conferred by s31 and51(xxxvi) of constitution.: that parliament can prescribe the method of voting as long as it permits free choice among candidates for election.  Test – if yes then law is valid 1. Is the law reasonably capable of being regarded as appropriate to achieving a legislative purpose? 2. Is impairment of freedom merely incidental to legislative purpose?  S24 of constitution does not limit parliament’s selection of method of voting as long as it allows free choice. o S240 of CEA permits voters to make a discriminating choice among candidates so it would be directly chosen by people. Method of voting needs not be the best for each voter to express their political views.  S329 validity  since s240 is valid, a law which is appropriate and adapted to prevent subversion of that method is within the power of the parliament and so s329A is valid. o if s240 was not followed voters’ risk their votes not counting so s240 protects voting method.

EXRESS RIGHT TO VOTE - Is s41 of the constitution (guaranteeing a right to vote in federal election for anyone entitled to vote for lower house of state parliament) a transitional provision (p371) Arguments suggest that s41 (may be viewed as an express right to vote at state guarantees vote in federal elections) of constitution implies a transitional provision designed to protect voting rights in South Australia until women’s suffrage. Conforming to this view seems, it seems to indicate that when the Commonwealth Franchise Act 1902 (cth) was passed, s41 had no continuing operation for the people who were entitled to vote in the state elections after 1902. KINS v JONES (1972) – High Court – p372

R v PEARSON (1983) – High Court – p373

Facts  HC was asked to apply s41 to decide whether it was valid to lower voting age to 18yo. King argued she was an adult person by virtue and social and legal acceptance & an adult person was entitled by s41 to vote in federal elections equivalent to her ability to vote in state elections. HC needed to decide if the word adult in s41 was open to definition changes. Held  Stephen J – the phrase adult person is not any definition of legislative power or concept of freedom and so there is no reason why it should involve any obscurity in language. S41 ‘s function suggests t will be constant operation and not a transitional provision.  Barwick J – adult person in s41 is fixed to is definition in 1901 or else states could confer right to vote in federal election to a lot of people under21 by changing the legal voting age in State  this could not be intention of constitution framers. Fact  The Cth Act effectively prevented people who applied o be registered on the federal roll after 6 pm on the evening on which the writ for the election was issued from voting in that election – even though they had right to vote in the state election. Held (brennan, Deane, Dawson JJ – majority)  S41 of the constitution does not itself confer a right to vote, it simply prevents any laws of the Commonwealth from preventing the exercising of those rights. o BUT only until parliament made its own franchise law (seen as a transitional provisions which contradicts KING v JONES  Impractical implications – if we allows s41 to be used as a source to vote. a) Parliament cannot legislate uniform franchise laws as State can extend its franchise into Federal elections. Such powers are destroyed b) S128 – envisages that voting laws in cth elections would become uniform at some point and state voting laws will not affect this  BUT it will be disproportionate. Dissent (Murphy J)  S41 is a constitutional guarantee and not transitional provision. Outcome S41 ceased to grant voting rights, it is done by the Cmwth Electorate Act 1918.

IMPLIED RIGHT TO VOTE ROACH v ELECTORATE COMMSSION (2007) – High Court Australia – p376 Fact  Commonwealth Electorate Act 1918 s93(8)b has always held that prisoners serving a term of imprisonment of 3 years or longer are not entitled to vote in federal elections. 39 | P a g e

 

In 2006 CEA 1918 s93(8)b was amended to s93(8AA)such that no prisoner serving any period of full time imprisonment could vote in federal elections. Vickie Roach was an indigenous Australia serving a term of 6 years and challenged the validity of the amended Act in the HC.

Gleeson CJ Held  Combined effect of ss51(xxxvi), 8 and 30 allows Parliaments make laws providing for qualification of electors.  Universal suffrage allows for the possibility of exceptions Is there an implied right to vote in the constitution? - YES  Parliament cannot remove universal adult suffrage o S7 and s24  members of the Houses must be “directly chosen by the people”. o Although the above words do not mandate universal suffrage but has become a long established and undermining the mandate will not produce a true choice by the people.  Franchise is critical to a representative government, it is the core of participation in community life and of citizenship. Thereby, disenfranchisement of any group of adult citizen on a basis that does not constitute a substantial reason (e.g. Treason & citizenship)for exclusion from such participation would not be consistent with choice by the people. Was the right always there? NO  The content and phrases have changed over time e.g. women and indigenous people What justification is there for prisoners to be disqualified from voting?  Those that are imprisoned but awaiting trial cannot be disqualified  Cannot be for punishment because that is State power and not likely that federal can punish those already punished  i.e. stripping their voting rights  Deprivation of franchise is not designed to punish but is a form of symbolic separation of fundamental political right because of civic irresponsibility by serious offenders such as anti-social behaviour. o Serious criminal conduct justifies removal of voting rights (e.g. 3yrs or any less is also valid) o S44 disqualifies those imprisoned for 1yr or more but this does not necessarily indicate that serious crime is committed. Gummow, Kirby and Crennan JJ Held Are there limits on the laws governing exercise of franchise?  ss7 and s24 places limits o require direct choice by eligible voters AND o requirement that electorate system as a whole provide for ultimate control by periodic popular election. What is the justification for disqualification?  There must be “substantial” reason to disqualify. A reason is substantial if it is reasonably appropriate and adopted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government. o “reasonable appropriate” need not be essential o Generally what is arbitrary or disproportionate may not be reasonably appropriate and adapted for an end consistent with the constitutional restraints on legislative powers. Is the amendment valid? YES  Limits exercise of franchise but to protect integrity of the political system  Ends is compatible still with representative government  Short term custodial sentences can still be arbitrary. 40 | P a g e

Hayne J Held  Doubts that the expression “directly chosen by people” changes over time because 1. Difficulty to determine the standard of a particular time 2. Constitutional power is not constrain by what may be accepted from time to time. It is simply accepted. Important Questions Is there implied right to vote?  Gleeson says YES  Majority does not use the word rights but come to same conclusion Is it an absolute entitlement? NO  Ss8 and 30 in conjunction with s51(xxxvi) will have little purpose  there have always been exceptions  a line needs to be drawn when reviewing laws that affect voting rights How does Majority draw the line in ROACH on disqualification?  Substantial reason  “rational connection” between legitimate purpose for law and how far the law goes (GLEESON)  Proportionality/reasonably appropriate and adapted to pursuit of an end compatible with representative government (joint judgement). What is the rationale for denying prisoners the vote recognise by court?  Punishment but affirmation of the relationship between rights and obligations of citizenship (GLEESON) Where is the line drawn?  Total ban is not valid  3yrs is valid (change in to > 1year+ challenged by ROACH)  Less than 3 years is possible according to GLEESON  Reasons by GLESSON o Factors influencing availability of non-custodial sentence where short term imprisonment was the alternative were often arbitrary such as location of non custodial sentence served thus individuals opt for imprisonment. So imprisonment may not be connected to culpability. o Citizenship and humanity  Reason by Majority o Beyond what is reasonably appropriate and adapted.

8.2 Eligibility for Election (p402) Requirement for eligibility is set out below:

COMMONWEALTH ELECTORAL ACT 1918 Section 163 (1) A person who: (a) has reached the age of 18 years; (b) is an Australian citizen; and (c) is either: 41 | P a g e

(i) an elector entitled to vote at a House of Representatives election; or (ii) a person qualified to become such an elector; is qualified to be elected as a Senator or a member of the House of Representatives. There are 3 main disqualifications from election under s44 of the constitution 1. S44(i) – Foreign allegiance (Re WOODS & SUE v HILL) 2. S44(iv) – Officer of profit under the Crown (SKYKES v CLEARY) 3. S44(v) – Financial Interest (Re WEBSTER) 4. Others ( s44 of constitution)  S44(ii) – persons attainted of treasons for an offence punishable with imprisonment >1 years.  S44(iii) – person who is an undischarged or bankrupt

1. Foreign allegiance a) British citizen is included as foreign allegiance was a NSW senator and his victory at election was invalidated because he held British citizenship. Re WOODS 1988 –(p 404) – Wood

SUE v HILL 1989 (p410) – Heather Hill was a QLS senator as well as British citizen at same

time she was elected. She argued Britain was not a foreign power and so s44 did not disqualify her. Majority (Gleeson CJ, Gummow, Hayne JJ) held that she was invalidly elected because. i. Australia Act 1986 terminated legislative powers, appeals cannot be made to Privy Council. UK government actions no longer have consequence on Australia  classified as foreign power since 1986 ii. No need for court to decide the operation of s47 if raised because argument was based on an extremity.  Hill argued that if dispute about election arises and dispute is referred to court then the issue court decides is whether s44 disqualified certain members.  BUT what if HC is deciding that matter and parliament exercise s47? b) The provision was designed to ensure “members of parliament do not have split allegiance and were not subject o improper influence of foreign governments” (SKYES v CLEARY – Mason CJ, Toohey & McHugh JJ)

2. Officer of profit under the Crown (SKYKES v CLEARY – 1991 – p 405)

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c) Members must take reasonable steps to renounce their foreign nationality, what amounts to reasonable steps will depend on the circumstances of the individual, requirements of foreign law and the extent of connection between the person and the foreign state. (SKYES v CLEARY – Mason CJ, Toohey & McHugh JJ) Facts – Looks a s44(iv). Phil won election in 1992 but at time of election o he was employed by Victorian Education Department under State Act called Teaching Services Act 1981 (vic)and o had been on leave without pay for more than a year. Held  Officer of the Crown o The term ‘office’ coincides a position of defined authority in an organisation and signifies a subsisting permanent substantive position which exists independently of the person who fills in from

time to time. A secondary teacher employed by the Education Department in considered an officer or profit under the Crown. Although a teacher is not exactly a public servant whom the disqualification was primarily aimed, it is still a permanent public servant which gives risk to incompatibility mentioned above. o Even though Cleary was on leave without pay he was still considered an officer for profit under the Crown. It is only when he resigns that he is not.  Time of Resignation – ‘being chosen’ in s44 refers not to the declaration of the poll or election day but to the entire process of being chosen of which nominations is an essential part (e.g. Cleary resigned from teaching a few days before he won election was too late; he should have reigned before he lodged a nomination).  Aim of Disqualification – for a politically neutral public service and exclusion of permanent officers of the executive government from the House was recognition of the incompatibility of a person holding such an office and at the same time being a member of the House.  3 factors that give rise to this incompatibility i. Performance by a public servant of his public service duties would impair his capacity to attend to duties of a member of the House ii. Considerable risk that a public servant will share political opinion of the minister of his department, hence not forming a free and independent judgment iii. Membership of the house would detract from performance of relevant public service duties. Facts - Webster’s family owned a company which at various times between 1973 and 1974 had submitted quotations and tenders, accepted offers and entered into contracts for supply of timber to the Commonwealth. o

3. Financial Interest (Re WEBSTER – 1975 – p403)

Issue – Does Webster have any direct or indirect pecuniary interest in an agreement with Public Service of Cmwth. Held  S44(v) of the constitution disqualifies a person from election if they have “any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth  The disqualification provision only applies to executor contracts and not executed ones o The purpose of the disqualification provision only applies to executor contracts (i.e. contracts which at the relevant time remains to be done by contractor) o Therefore what is meant to be covered in s44(v) are “ contracts of a more permanent or continuing and lasting character, the holding and enjoyment of which might improperly influence the action of the legislation and the government”. o In the modern business and departmental conditions the possibility of influencing the Crown is not so apparent especially by contact of not continuing nature. o Since the wording of 44(v) is obscure, its application should be narrowly defined. Outcome – webster not within s44(v) because i. It consisted of a series of small, discrete contracts ii. The crown would be incapable of exerting any influence in parliamentary 43 | P a g e

affairs by anything it could do in relation to the agreement. Mere shareholding in a company does alone does not create a pecuniary interest in any agreement the company may have with Public Service. Disputing Validity of Election  HC decides with its role as the Court of Disputed Returns, hears petition disputing the validity of election results under ss192-193 of the Cmwth Electorate Act 1902 & later ss353-354 Cmwth Electorate Act 1918  Eligibility o a person for an election can only be raised by (SUE v HILL) o Referral by one of the House of Parliaments OR o Determining whether an election should be set aside if the elected person has committed an illegal practice by falsely declaring he was qualified to be elected o S47 of constitution (p1377)

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9. THE EXECUTIVE 9.1 Introduction The executive consists of 1 The Governor General (representing the Queen) 2 Ministers including the PM and the Cabinet (PM selects them and is the key decision making body). 3 Public servants employed by government departments There are four aspects we essentially examine: 1 2 3 4

Prerogative powers Responsible government Constitutional Conventions Governor General

Sources and Scope of Executive Powers

9.2 Source & Scope of executive power S61 of constitution vets executive power of Commonwealth in the queen i.e. exercisable by her representative GG which extends to the “execution and maintenance” of this constitution and of the laws of Commonwealth  

Problem - scope of power not defined Executive at Federal level  Queen, GG, PM and Cabinet, Full Ministry, Public services and Statutory authority.

There are three possible sources of Executive power 1 2 3

Common law prerogatives Statutes Powers derived from Australia’s status as sovereign nation

What are prerogative powers?  Dicey (p481) –“residue of discretionary arbitrary authority which at any given time is legally left in the hands of the crown  favoured by judiciary  Pollock- “ residue of the lings undefined powers after striking out those taken away by legislation”  Blackstone – disagrees with them and regards prerogatives as those powers unique to the crown. The Three Categories of the Prerogative Powers of the Crown ( Evatt, p483) 1 Executive powers  power to do various acts e.g. declare war, treaties, coin money, make peace, pardon offenders and confer honour 2 Immunities and preferences  immunity and preference priorities of Crown debt over those owed to other creditors and immunity from ordinary processes of the court i.e. prosecution. 3 Property rights  Entitlement to gold and other royal metals, royal fish and treasure Limits of Prerogative Powers (p484)  Prerogatives like common law are subjected to modification by statutes and this arises in 2 ways: 45 | P a g e

1 2

Modification or regulating such removing discretion and imposing strict procedures as to control exercise of prerogatives. Conceptual source remains Extinguish the prerogative such that its power is derived from statutes.

Can statutes override prerogatives? ATTORNEY GENERAL V DE Facts KEYSER’S HOTEL (1920) p484  Hotel was used as a govt HQ during WWII. Claims for compensation was denied b govt, govt asserted that they exercised royal prerogatives  take property. Issue  Do statutory provisions override prerogatives? YES Held  Sir John KC & Dunedin– if statutory provisions cover same grounds as prerogative then the 2 cannot co-exist and so no longer needed  Lord Atkinson – crowns powers are exercised in accordance to statute that confers it  Moulton – it is in intention of the nation that power of Crown should exercise powers in an equitable manner.  Sumner – nothing is gained by simply transferring prerogative to statute except it removes arbitrary exercise of royal power. Executive not under prerogative.  Parmoor - when power of Executive to interfere with property or liberty of subjects has been placed under Parliamentary control, and directly regulated by statute, Executive no longer derives its authority from the Royal Prerogative of Crown but from Parliament. Does prerogative extend to exclusion of aliens? RUDDOCK v VADARLIS (Tampa Facts Case) (2001)- Federal Court  People were rescued at sea in international waters by commercial vessel MV p489 Tampa. Urgent medical attention required so vessel requested assistance from Aus. When assistance was declined vessel was landed within Aus territory BUT (A legislative provision that covers precisely the same Howard Govt permitted asylum seekers to land. grounds as the prerogative Issue powers does not mean it  Can non-Australian residents be expelled from Australian waters based on becomes extinguished; this is prerogative powers? different to repealing legislations). Held  North J (trial judge)- was doubtful as to whether the prerogative existed, but if it did it would have been abrogated by statute (migration Act) .  French J (Federal) – executive powers and prerogative are different. It may derive some content from prerogatives but its powers mainly conferred as a part of federal agreement expressed in the constitution that distributes powers between the 3 arms of govt.  The migration Act did not expressly abrogate the prerogative although a statute usually can override the prerogative in this case it did not.  Although the executive power is limited to both the constitution & legislation, in the present case the government acted within its power because it was merely exercising its national sovereignty (power to determine who may come into Australia is so central to its sovereignty) that French J doubts that the government of Australia would lack this power conferred by the constitution. o The greater the significance of a executive power to national sovereignty the less likely that parliament intended to extinguish the power if words are unclear.  Black CJ (Federal – Dissent) – doubts whether executive power to exclude aliens in time of peace existed. Even if there was such power, the comprehensive Migration Act meant that the legislation covered the area and so there was no 46 | P a g e



need for the prerogative. o If statute covers the same fields then there is no room for prerogative. Difference – French J believed the prerogative came from the constitution while Black thought it came from common law hence the executive should work within the Migration act.

Should such prerogative rights be legislated? (Lindell – p493)  Prerogative power can be exercised without parliamentary approval subject only to the existence of any statutory provision which regulate the power  The advantage of including such rights in statutes includes: 1 Poses limits upon the actions by Executives 2 It is a representative decision 3 Increase credibility 4 So the government will go into war knowing what they are doing

9.3 Responsible Government & the Control of the Executive What is responsible government? (p521) 



Responsible government refers to a series of institutions and political relations between them which interlock to provide both a system of government and a distinct mode of organising and exercising political power at disposal of state. The queen (represented by GG) acts on the advice of the Ministers. The ministers who are members of the parliament (s64 constitution46) are accountable to parliament who is then accountable to the people.

Features of responsible government  Chain of accountability  The components of responsible government(Emy p522) 1 Executive Authority – the power of final political decision vested in the ministers, responsible to departments, parliament and electorate 2 Governor general – final component of the legislative power, residual and reserved powers – ensure government’s laws are constitutional. 3 Dismissal of Executive – by losing an election or by losing a vote of confidence on lower house 4 Executive – is supported and advised by a bureaucracy whose members are chosen independently on basis of merit, politically neutral, freedom from public praise/blame. 5 Direct chain of accountability  officialministers cabinetparliamentelectorate/people  Individual ministry responsibility – ministers are responsible to parliament for affairs of their own parliament  Collective ministerial responsibility – all ministers responsible to parliament & the electorate for overall conduct of govt policy irrespective of whether or no they sit in cabinet. (e.g. Costello had to defend nonratification of Kyoto protocol although his opinion differed to Howard). How is responsible government implanted? 1

Voting – selected by voters, govt has majority in House of Rep

46

S64 – no minister of state shall hold office for a longer period than three months unless he is or becomes a senator or a member of the house of rep.

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2

3

4

No confidence motion – a motion accepted as a want of confidence or censure motion takes precedence over all other business until disposed of. If govt no longer has confidence in lower house then it must resign. Question time – parliament has greatly apparent powers in checking public expenditure and supervising administration, by asking questions, demanding answers an d holding ministers accountable. However, government is so complex that backbenchers are often lost as to what questions to ask. Senate-committee system – when parliament has upper house where govt does not have majority, there is greater opportunity of scrutiny of govt actions. The committees have patiently stretched their room to manoeuvre and evolved operating procedures for improving cooperation with the administration.

Problems with the concept of responsible government (Hugh & Emy p522)  May have different meaning for different people  Obliged to answer for something?  In charge of something?  Accountable or liable for something? (implications or penalties for poor performance)  Question of ministerial responsibility? departmental errors a just explanation or strict accountability which may result in resignation.  The four main problem with responsible government in Australia 1 Problems with chain of accountability (esp relationship and extent of control over their ministers and their departments and public servants. What should ministers do when department makes a mistake?) 2 Problems with parliament control of ministers and the executive (can parliament really call ministers to account to scrutinise executives?)  see Egan v Willis & Egan v Chadwick 3 Problems created by senates power to block supply (s53 constitution) 4 Problems with extent if discretion invested in GG by the constitution appears he/she can intervene in case of dispute between the 2 houses over supply & even dismiss a government with a majority in the lower house if it cannot obtain supply (Whitlam) Illustrations of Limitations with responsible government EGAN v WILLIS (1998) – p524 (courts generally don’t want to get involved in policy issues as it is not in their jurisdiction to do so).

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Facts  Upper house of NSW parliament was controlled by minority parties who compelled Egan (treasurer) to produce certain documents. Egan refused and was suspended from Parliament for remainder of day. He refused to leave and was escorted out by Usher of the Black Rod. Egan brought an action saying that his suspension was invalid and that removal to street was trespass.  Egan appealed to HC which examined the order for Egan to produce documents were within powers of Legislative council under NSW constitution.  Prior to this the court had to decide whether the claim was justiciable at all; it was held that because it was relevant to the trespass claim, it was justiciable47Court got its foot in the door by making the case about general law (trespass)– this allowed it to deal with all issues  appeal dismissed. Issue  The court examined the question of responsible Govt and the powers of Legislative council (upper house) to bring members of the Cabinet to account. Held  Legislative council has such powers, privileges and immunities as are reasonably necessary for the exercise of its functions. What is reasonable necessary depended on issue in question. THUS Parliament can scrutinise the executive.

Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority

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EGAN v CHADWICK (1999) –p527

Facts  A few days later Egan was demanded to produce certain documents. He refuses saying that the documents were protected by legal professional privilege (LPP)or public interest immunity (PPI). The Legislative council claimed he was guilty of contempt and was again removed by Usher of the Black Rod. Issue  Does accountability (responsible government) overrule LPP and PII? Held  Spigelman CJ held that Cabinet Secrecy (PII) is necessary as an application of the principle of collective responsibility. This is even more important than accountability. But, the claim on LLP does need to yield accountability. In performing its accountability function the Legislative Council may require access to legal advice on the basis of which the Executive acted or purported to act. In many situations access to such advice will be relevant in order to make an informed assessment of the justification of the Executive’s decision.  Test of “reasonably necessary” was applied  Priestly JA (dissent) – this convention could lead to govt taking advantage. If court can have access then so should LC for the sake of carrying out its functions. Same trust should be shown to parliament and the Courts. Outcome  Produce LPP but not Cabinet documents (PII).

9.4 Constitutional Conventions (p105) What are constitutional conventions? (p105)  Habits, customs and traditions which have evolved over time to regulate the workings of the constitution. They can help adapt the sometimes cumbersome, anachronistic (out of fashion) text to contemporary society. They are not laws so can be legislated over and not enforceable but are generally followed.  According to dicey (p105) they are mass of customs, traditions, habits, practices and understanding which regulate conduct of sovereign power. They are not in strictness of law at all but is judicially noticed and may influence interpretation of statutes. (Not enforceable but there is an assumption that parliament will not breach conventions). Why do constitutional conventions exist and where do they come from? (p106)  The constitution was largely based on the Westminster System from which many of the conventions come from. The conventions were not included as the drafters were so imbued with a sense of the fundamental nature of these conventions that didn’t think it was necessary  Purpose of conventions is to ensure the legal framework of the constitution will be operated in accordance with the prevailing Constitutional values or principles of the period - led to enactment of the statute of Westminster Why are conventions obeyed?  for political interest it would be suspicious if a government came in and changed the conventions as this could be used to criticise the government  for political ethics: related to good governance.  Habit: it fits in our culture of law-abiding citizens  why change something that works for years  Dicey (p107) view – breach of conventions will bring offender into conflict with the courts and laws of the land (In Australia breach of convention is often a breach of law)

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

Jennings view disagreed with Dicey, his view was depends on the law always being enforced. But it is often difficult to enforce against govern and most convention related to govt action.

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10. Separation of Judicial Power 10.1 Separation of Federal Judicial Power (p594) Principle – the constitution specifies that judicial power of Commonwealth cannot be vested in any tribunal other than a Ch III court. R v KIRBY, Ex Parte Boilmakers’ Society of Australia (BOILMAKERS’ CASE) – p 599 Facts  The metal Trade Employers sought to enforce a non-strike clause in an award. The Arbitration court (also had non judicial power) made an order requiring the Union to comply with the award and a further order claiming the union of contempt of court for disobedience to an earlier order. The union sought to obtain an order nisi from the HC to claim the Arbitration court could not write such a prohibition. Issue  Can courts exercise both judicial and non judicial powers simultaneously? Held  Vesting of judicial powers in a body also exercising non judicial power is unconstitutional, because they can never be mixed up.  Arbitration court is designed as a arbitral tribunal (non judicial) and this we cannot combine it with functions strictly part of judicial powers. Rationale  The Doctrine of SOP 1 ChIII courts can only exercise judicial power 2 Judicial power can only be vested in CHIII courts.  Basis for SOP 1. Logical structure of constution CH1-3 2. Ch III takes great lengths to detail the body that exercise cth judicial power & extent of it. It is apparent that allowing foreign powers to be attached to such a court cannot be intended. 3. Ch III Courts are the ultimate umpires they have an important role in the federal system. Hence they should be isolated from the executive and legislative. 4. S51 (xxxix) – express mention of one excludes the other Outcome  Court was invalidly construction thus all judicial decisions were invalid  Court was split into 2  court of conciliation and arbitration commission.=  Arbitral decisions were fine because it was held to be a non judicial body  Legislation was later passed deeming judicial decisions of the new court.

Criticism of the Boilmakers Case & is it necessary? (p603) R v JOSKE (1974) – p603

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Held  Barwick CJ - conclusion from Boilmakers case was unnecessary for the effective working of the Australian constitution or for the maintenance of the separation of judicial power or for the protection of independence of courts exercising that power.  This exception has allow courts to be vested with wide-ranging powers. Powers such as reorganising unions and invalidating union rules were allowed to be exercised by a Chapter III court.  However it is very unlikely that boilmakers’case will be challenged because there is a different emphasis on the principle it showed (p606) o Boilermaker’s initial argument – was to keep judicial away from political power so to prevent political contamination of judicial to keep them independent

o

R v QUINN

Current argument – the rationale of the case can now be explained that the court is treated as the symbol of individual liberty implying their role in the constitution has more to do with protection of individual freedom rather than federal distribution of power. This rationale being wider is harder to overrule.

Held  Jacob J notes that the constitution protects our rights by ensuring that only a judiciary which is independent from parliament and the Executive can determine our rights.

10.2 Defining Judicial Power (p606) There is no exhaustive definition of judicial power as many of its functions overlap between administrative and judicial powers. Below are some indications of judicial power but they are not decisive but rather we have to weight the indicia found in the present against other indicia that are absent or against indicia of the contrary. (R v QUINN p608) Some indication by case law HUDDART, PACKER AND CO v MOOREHEAD – p606



R v DAVISON



R v TRADE Practices Tribunal (197) – p606





Griffith J held that judicial power is the “power which every sovereign authority must of necessity have to decide controversies between its subjects or between itself & its subjects whether the rights relate to life, liberty or property. Chameleon Doctrine: Some powers if invested in administrative body then it is an administrative power, if invested in federal court then it is a judicial power. Kitto J held that judicial power was a decision settling for the future, as between “defined” person or classes of person (i.e. someone in particular), questions to the existence of a right or obligation, so that exercise of power creates a “new” charter for reference, to which will be used for the “future” (i.e. binding obligation) Kitto J – fairness and detachment

What does Judicial Power consist of? (Blackshield – p608)48 Judicial power is controlled power based on existing law  base on authoritative legal material: rules, principles, conceptions, standard applied must be drawn from existing laws. However the legal material must leave the judges some room for independent interpretative judgement. BUT what exactly is the standard?    

Standards such as “equity and good cause” applied subjectively by judge BLF case was seen as judged by “what one may call an industrial discretion as than to provide legal standard governing a judicial decision”. Tasmanian breweries – “contrary to public interest” is not sufficiently justiciable standard as it is more do with “law making than to adjudication according to existing law”. Tightened legislation often leave judges no room for choice.

LIMITATION placed on judicial power  48

Cannot act upon unrelated facts, must act upon circumstance of case

The Law

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  

Cannot embark on action on its own initiative but must wait until claim brought to them to decide issue “controlled” attention to fact/law i.e. not what a judge thinks he should deliver but what the court should deliver (brennan J) limits on consideration a court is allowed to take int o account e.g. irrelevant matter with no rationale connection to policy legal material but merely of personal expression is not to be brought into the adjudication process. (TAGLA v MBC INTERNATIONAL)

Difference between Federal Jurisdiction and Federal Judicial Power The two are not the same but are different aspects of the same issue.  

federal judicial power concerns the manner in which legal disputes are heard and disposed of federal jurisdiction relates to the subject matters in respect of which authority to determine those disputes has been granted.

The one is a necessary concomitant of the other, in that neither can operate in isolation. The degree to which that interrelationship imposes limits on the grant and exercise of federal jurisdiction is what concerns us in this section49 Federal Jurisdiction  S73 (appellate jurisdiction)  S75 &76 (original jurisdiction)  S51 (xxxix) matters incidental to any power vested in the Federal Court  Only exercised by ChIII courts

Federal Judicial Power  Judicial power ( indicia – none are decisive)  Resolves controversies btwn parties  Decides legal rights and obligations  Its binding and authoritative o Fairness and impartiality o Reasoned/principled  Decides existing rights b applying a legal standard – doesn’t create new rights  Characteristics of the body/Chameleon Doctrine o If powers invested in administrative body then it is a administrative power, if invested in federal court then it is a judicial power.  Some powers by their nature (e.g. criminal punishment)

10.3 Exceptions to the Boilermakers’ Case – Person Designata Rule Importance of the Persona Designata Rule The personal designata rule confers non-judicial functions to individuals with capacity who happen to be judges which clearly severs the relationship between the judge as an individual and his/her position uphold. (HILTON v WELLS) 

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Why? 1. Manoeuvre around the Boilermakers’ case

http://www.austlii.edu.au/au/other/alrc/publications/bp/1/federal.html

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2. Utilises the judge’s experience since if we are to assign this level of discretion it is better to leave it in the hands of judges because of their assumed impartiality. 3. Clothe executive action in judicial robes. cover up?

HILTON v WELLS (1985) – p623 Facts  Federal police alleged for bribery and corruption in an inquiry but evidence was obtained by telephone tapping.  Warrant to do so was issued by a judge un s20 Telecommunications (inception) Act 1979  Argued to be unconstitutional because it conferred non-judicial power on Federal Court. Reasoning  S20 refers to “a judge” which is a designated person so it is unlikely that parliament intended to refer to other cases to confer power on court.  Held (Gibbs CJ,Wilson & Dawson JJ)  if power by statute is conferred on the individual rather than the court i.e. the judge then exercise of such power will be deemed valid.  Nature of the power conferred is of importance. o If power is judicial, it is likely to be exercised by the judge by virtue of the character. o If power is administrative and not incidental of the exercise of judicial power, it is likely that it was intended to be exercised by the judge as a designated person.  Federal courts have original jurisdiction but s20 Telecommunication Act doesn’t express an intention to invest the court with jurisdiction. Hence judge making warrant is a designated person dependent on the act. Outcome  If the nature or extent of the function designated to judges conflict with their performance of judicial functions then principles of boilermakers case and the legislation will be invalid. However s20 does not do so and so is valid.

Principle – Incompatibility Doctrine A judge may not perform the role when the role was incompatible with him/her even as a persona designate. (GROLLO v PALMER).

GROLLO v PALMER (1995) – p626 Facts  Since 1987 amendments Telecommunication (inception ) Act 1979 made it clear that function was designated to judges as individuals the present case considered the compatibility of criminal investigation process with judicial office even for persona designata role. Issue  Whether the idea of persona designata should be abolished to maintain the integrity of Boilermakers’ case (i.e. judicial and administrative powers must be kept separate). Principles  Qualifications on persona designata rule 1. Non-judicial power can only be conferred on judge with judge’s consent 2. Non judicial function cannot be incompatible with judge’s exercise of judicial powers  Why might it be incompatible? 1. no time to act as a judge 2. compromises judge’s integrity in eyes of public 3. functions which compromise a judge’s ability to perform his or her judicial function(e.g. drafting 54 | P a g e

legislation he/she later interprets and applies) Held (Brennan CJ, Deane, Dawson & Toohey JJ)  Issuing warrants may impair judge’s ability to judge impartially in matters related to validity of the warrant o judge issued the warrant then he cannot sit for cases related to it.  Recognise potential problems the public may have with judges involved in interception warrants but no incompatibility conditions were held. o Judges are not disclosed to public so it doesn’t affect public confidence o they are appropriate because their professional experience allows them to portray impartiality and upheld integrity of the judiciary. Dissent (Mchugh J)  Issuing warrants for phone tapping was incompatible with judicial functions of the judge becaus 1. Reasonable people are not trained differentiate between judge as a member of the judiciary and as an individual.  In the event that parties come to judge that issued the warrant, they wouldn’t have known that the judge issued the warrant and thus deprived of the chance to even apply for a disqualification of bias. 2. Public confidence in independence and impartiality of the judiciary will be jeopardised 3. Issue of warrants are behind closed halls whereas “open justice” is the hallmark of justice. 4. Constitution requires exercise of judicial power separate from the exercise of executive powers. Hence the judges exercising judicial and non judicial power have the burden to prove that those functions are compatible.  Suggests a better approach may be to use tribunal members and retired judges who would equally be suited to the task.

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11 Human Rights and Bill of Rights 11.1 What are Human Rights (p1150) Problem with human rights – human rights may be viewed differently depending on social, economic, cultural and various factors. Context is important. It is difficult to create an exhaustive list of human rights, bearing in mind the various religious, cultural and political system because they will perceive some if not many difference in rights and freedoms of individuals. Elements of Human Rights (Henkins p1150)50 Human rights are  Rights of individuals in society are universal s it belongs to everyone and which everyone is entitled to regardless of age, sex, social class, national origin, ethnic or tribal affiliations. 

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Benefits deemed essential for individual well being, dignity and fulfilment, they are fundamental. An entitlement in a moral order under moral laws, to be translated into and confirmed as legal entitlement  remedy must be given for wrong. Claims upon society and not against society (i.e. not against the interest of society). Although there may be conflict between satisfying individual’s rights and society’s rights, this is only on the surface, in the longer, deeper view, society is better off if individual rights are respected.

Human Rights are not  Are not some abstract good or aspiration, it’s listed international instruments (e.g. the Universal Declaration of Human Rights) 

Need not be earned or deserved

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Do not differ with geography or history

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Cannot be transferred, forfeited or waived cannot be lost by failure to assert them

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Are not absolute and may be abridged in some circumstances. However when they are trumped on it cannot be done lightly, instead there must be strict limitations on where man rights may be trumped on. (e.g. terrorism laws). o Derogation only permitted in emergency that threatens the life of a nation but not as a response to fear.

Positive and Negative Human Rights (Henkin p1150)   

Immunities (negative) – limitations on what the government might do to the individual (civil & political rights) Resource claims (positive) – claims to what society is deemed required to do for the individual (economic, social cultural rights). Hekin see human rights are not merely entitlements in a moral under moral law, but also a demand that this moral entitlement be translated into and confirmed as a legal entitlement in the legal order.

Are Human rights universal? 

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Human rights transcends borders of geography and culture but is often depicted as a western concept that is to some extent objected by Asian countries, particularly China who believes the Universal Declaration of Human Rights do not conform to a communitarian society – i.e. the Confucian ideals of family and community and communism).

The Age of Rights

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If we accept that human rights arise from human dignity that is innate in us all then how can they be altered by political forces?

Source of Human Rights in Australia (p1153) 1. Constitution

2. Statutes

3. Magna Carter 4. Universal Declaration of Human Rights &International Law

5. Common Law

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Express Rights in the Constitution  It rarely gives any positive rights, instead it contains much immunity i.e. freedoms from. o s117 is an exception to this general rule; deals with discrimination against people from other states, conferring a unique kind of individual immunity. o S80 – trial by jury o S92 free trade o S116 freedom of religion o S41 – right to vote Implied Rights in the Constitution o E.g. ss7 and s24 of constitution gives rise to implied freedom of political communication but does not confer personal rights on individuals Remedy for breach of right sourced from the constitution  Remedy – declaration of invalidity of the laws which infringe on rights. o Cannot claim any positive rights unless claiming under s117 where you cannot declare invalidity but only that the provision is inapplicable to you.  Effect – cannot sue for damages for breach of constitutional rights since no tortious damage has been suffered. Therefore it is simply the act that is struck down. Australia has an ad hoc and incomplete system of integration of international human rights standards in some of its legislations  Human rights and equal opportunity commission act  Sex discrimination act  Trade practices act  Racial discrimination act  Human rights and Equal opportunity Commission Act formed a body of conciliating complaint by individuals, intervene n cases of significance and produce reports on rights. However they are not able to determine complains because they are not part of the judicial system. They are only able to inquire, report and intervene in court.  Anti discrimination laws (racial discrimination Act and Sex discrimination act) apply external affair powers to create legislation power not given to government under constitution. ACT Bill of Rights See page 55  The agreements are not self executing so an Act needs to be passed to make it enforceable at Australian courts although this has not occurred  Difficult to bring action based on these covenants o ICCPR obligates signatories to purport these rights o ICESCR about working towards rights  There is however a recourse with ICCPR because appeals can be made to UN Human Rights Committee and if a right has been breached, the respective nation will be informed in writing. No legal / physical action is taken but there is great public stigma and pressure to comply. Aimed at agreements on lowest denominators of human rights because the definition itself and what it encompasses is not agreed upon universal.  Rights to privacy, freedom of speech, will be found in past precedents that judges continuously develop Human rights come from judges themselves because they interpret legislation and

where ambiguity exists, international Human Rights law are examined. E.h. Mabo  non discrimination is a basic principle of international law and everyone is entitled to basic human rights.

11.2 Bill of Rights (p1356) In this section we are concerned with whether Australia should have a Bills of Rights or not. After WWII most democratic nations have endorsed a Bill of Rights besides Australia. Should we have a Bills of Rights? (p1364)51 Arguments for Bills of Rights  Can improvement human rights protection to some extent. Current rights in Australia are only protected in a very partial or piecemeal manner. o Protect rights attached to citizenship and non-citizens o Give legal rights to individuals who are otherwise powerless

Arguments Against Bill of Right  Despite possible improvement with a Bill of Rights the cost of the uncertain marginal improvement will cause fundamental change to the relationship between democracy and the judicial system. 

Alien out tradition of parliamentary sovereignty because parliaments can only legislate in such a way that does not infringe certain rights.

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Parliamentary supremacy can still be maintained in a minimalist bill of rights.

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Judges can protect human rights more effectively than elected representatives because they can make unpopular decisions without making compromise to public opinions.  prevents arbitrary govt decisions.

bill of rights increase the responsibility of the judiciary to protect human rights giving it the role that is normally assumed by parliament (i.e. parliament protect citizens because judiciary is not directly accountable to people for their decisions). This simply leads to unwanted criticism on judicial activism. Subsequently, executives will appoint judges based on political views rather than experience or skill which again undermines the quality and independence of judiciary and affect public confidence.

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Meet the obligations that Australia has voluntarily assumed to incorporate into our law such as the ICCPR.

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Bill of right has proved to have no effect in some countries such as China and USSR where there is no education as to what a Bill of Rights stands for. We should be educating people to respect rights not forcing them.

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Helps educate Australians about human rights and their system of government, promoting tolerance and understanding in the community and could contribute to stronger culture of respect for human rights.

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Courts are already protecting rights through interpreting the constitution and so it makes no practical difference whether or not there is a Bill of Rights.

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The political system itself is a form of protection because we have the power to vote in or out politicians or parties standing for office

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Defining rights may in a sense limit the rights available and certain rights may no longer be important in the future as social and moral changes eventuate.

What type of bill of rights should Australia have? (p1356) 51

Standing Committee on Law and Justice’s parliamentary report

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Even if one concludes that Australia should have a Bill of Rights further debate arises as to the various types of Bill of Rights Australia should adopt. The 2 main type are constitutionally entrenched & statutory form. Argument for entrenched Bill of Rights  Currently statutory approach is inadequate because statutes cannot override other statutes (except Commonwealth statutes over state statutes). On the other hand a Bill of Rights in the constitution will override all other statute & so would provide a better guarantee of rights 

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A bill of rights in the constitution is more democratic as it can only be changed by people’s referendum. It would be more of a people’s document and represent national consensus of rights. If the Bill of Rights is entrenched in the constitution the judiciary would be able to decide on breach of fundamental rights. The judiciary is a better body to do because they are not under political and public pressure.

Examples  US – significant constitutional entrenchment . Supreme court has the power to enforce human rights under the Bill of Rights and strike down inconsistent laws and government actions. 

Canada – Constitutionally entrenched but parliament can override the rights if it is unreasonable

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India and South Africa: no constitutionally entrenched in the US sense because parliament can change the rights.

Arguments for Bill of Rights in Statutory form  A Bill of Rights in the statutory form would mean parliament gets to decide on breach. Parliament is a better body to decide breach on human rights because they are accountable to the people and represent the people whereas the judiciary does not. Since the judiciary are not accountable to the people for their decisions they should not wield such great power. 

Constitutional reliance (from constitutionally entrenched Bill of Rights) on the judiciary could undermine parliamentary sovereignty

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A Bill of Rights could more easily evolve under statute from than under constitution. Statutes would be easier to challenge later if it’s viewed as inadequate as expectations and societal values change over time. If entrenched then a referendum is required. Examples  UK – enacted Human Rights Act 1988 (UK)  NZ – similar to UK Act  Australia Human Rights Act 2004 (ACT) o does not include economic, social and cultural rights due to difficulty in allocation of resources o s37 – when a bill is introduced into the ACT legislature the Attorney General must prepare a compatibility statement about whether it is consistent with the protected rights. o S38 – a parliament committee must then report on any human rights issues raised by the lawS28 – human rights may be subjected only to reasonable limits set by Territory laws that can be demonstrably justified in a fee and democratic society.

LOOK AT PAGE 15 OF THESE NOTES FOR DICEY’S ARGUMENTS AGAINST THE NEED FOR BILL OF RIGHTS Australia’s attempts at a Bill of Rights (1362) 1944 referendum

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At the 1942 constitutional convention it was proposed that the Commonwealth be given a series of enw powers including the power to make laws to guarantee freedom of speech and expression, religious freedom, freedom from war and freedom from fear. However these provisions were not included to the people in the 1944 referendum. Instead insertions of guarantees of free speech and

Human Rights 1973 (statutory attempt)

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Human Rights Bill 1985

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The constitutional Commission and 1988 referendum

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expression were included but the referendum was lost. The bill was proposed by Senator Murphy It was proposed that under s109 of the constitution that the rights in the bill would override inconsistent state legislation and the commonwealth legislation would be ineffective if it breached any rights listed in the bill unless the statute included an express exemption from its operation. The list of rights would be enforceable against government and private sectors. The bill was met with strong opposition Another statutory bill of rights by Senator Evans continued Murphy’s bill. It was weaker than the 1973 (only applied to government action) Received cabinet support but was not introduced into parliament. The Hawke government established a constitutional commission in 1985 to recommend a revision in Australia’s constitution, to ensure that democratic rights are guaranteed amongst other things. The Commission recommended that scope of express rights int he constitution to be expanded and foreshadowed the need for wide change. It also recommended a new chapter be placed into the constitution “chp IVA-Rights and Freedom” containing a wide range og fundamental rights heavily drawn from he Canadian Charter of Rights & Freedom It was defeated nationally and in every state.

Other Issues with a Bill of Rights 

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Should it be limited to protecting community against legislative and executive interference by the government with individual’s rights or should t reach not the community to protect individuals against other individuals like in anti-discrimination law. Should it be the basis for judicial remedies or should it only be used for educative or inspirational purposes? If it is used for judicial remedies what remedies should be awarded? Invalidity or incompatibility? What should be the role of other arm’s of government? Should Bill of Rights require introduction of new legislation e accompanied by executive statements about whether they are required to comply with the protected rights? What rights should be included in the Bill of Rights? Should guarantee by limited to those of civil and political or should it extend to economic, social and cultural rights?

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