PUBLIC LAW NOTES

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PUBLIC LAW NOTES

Semester 1 2018

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Table of Contents ...1

Week 1A: Foundations ...6

AUSTRALIA: A CONSTITUTIONAL HYBRID ... 6

POLITICAL AND LEGAL CONSTITUTIONALISM ... 6

SEPARATION OF POWERS ... 7

RULE OF LAW ... 7

DISCUSSION ... 9

Week 2A: ORIGINS AND INFLUENCES ...10

INTRODUCTION ... 10

WESTMINISTER GOVERNMENT ... 10

Responsible and Representative Government ... 10

Martin Loughlin, Foundations of Public Law ... 10

PARLIAMENTARY SOVEREIGNTY ... 11

Parliamentary Electors... 11

The Courts of Law ... 11

Limitations ... 11

CONSTITUTIONAL CONVENTIONS ... 12

AV Dicey, Introduction to the Study of the Law and the Constitution... 12

NW Barber; The Constitutional State ... 12

Week 2B: U.S Constitution and Federalism ...13

THE US CONSTITUTION ... 13

Separation of Powers ... 13

Judicial Review ... 13

FEDERALISM ... 14

Australian Federalism ... 14

Week 3A: Indigenous Sovereignty and Crown Sovereignty ...16

INDIGENOUS SOVEREIGNTY ... 16

The United States ... 16

The Australian Situation... 17

SELF DETERMINATION ... 18

UN Declaration on the Rights of Indigenous Peoples 2007 ... 18

TREATIES ... 18

Week 3B: Indigenous People, Voting and the Constitution ...20

INDIGENOUS PEOPLES AND THE CONSTITUTION ... 20

Drafting the constitution ... 20

Voting ... 20

RACES POWER ... 21

Report of the Expert Panel, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution ... 21

Week 4A: The Path to Federation, The Acquisition of Legal Independence and Popular

Sovereignty ...22

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THE PATH TO FEDERATION ... 22

The Colonial Legislatures ... 22

Federation ... 22

The Colonial Legacy ... 23

LEGAL INDEPENDENCE ... 24

1931 - The Statute of Westminster ... 24

1986 - The Australia Act ... 24

Popular Sovereignty ... 24

Week 4B – Statutory Interpretation ...25

STATUTORY INTERPRETATION AND CONSTITUTIONAL LAW ... 25

Introduction ... 25

Modern Approach ... 25

Principle of Legality ... 27

Momcilovic v The Queen (2011) 245 CLR 1 ... 27

Potter v Minahan (1908) ... 28

Coco v The Queen (1994) ... 28

Evans v NSW (2008) FCA ... 28

Scott Stephenson, From Dialogue to Disagreement in Comparative Rights Constitutionalism (Federation Press, 2016) ... 28

Constitutional Setting ... 29

Separation of Power ... 29

Judicial Review ... 29

Rights Protection ... 29

Murray Gleeson, ‘The Meaning of Legislation: Context, Purpose and Respect for Fundamental Rights’, (2009) PLR 26 ... 29

Robert French, ‘The Courts and the Parliament’, (2013) ALJ 820... 29

Zheng v Cai (2009) 239 CLR 446 ... 30

RETROSPECTIVITY ... 30

ACTS INTERPRETATION ACT 1901 (CTH) ... 31

s15A Construction of Acts subject to the Constitution ... 31

s15AA Interpretation best achieving Act’s purpose or object ... 31

s15AB Use of extrinsic material in the interpretation of an Act ... 31

INTERPRETATION ACT 1987 (NSW) ... 33

s33 Regard to be had to purposes or objects of Acts and statutory rules ... 33

s34 Use of extrinsic material in the interpretation of Acts and statutory rules ... 33

Week 6A: The Legislature...35

POWERS AND FUNCTIONS: REPRESENTATION, LEGISLATION, ACCOUNTABILITY ... 35

Division of Power... 35

Parliamentary Privilege ... 35

Eligibility for Election ... 36

Re Webster (1975) 132 CLR 270 ... 36

Re Wood (1988) 167 CLR 145 ... 36

Sykes v Cleary (1992) 176 CLR 77 ... 36

Week 6B: Voting and Elections ...38

VOTING... 38

Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116 ... 38

Langer v Commonwealth (1996) 186 CLR 302 R... 38

EXPRESS RIGHT TO VOTE ... 39

King v Jones (1972) 129 CLR 221 ... 39

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R v Pearson; Ex parte Sipka (1983) 152 CLR 254 ... 39

Implied Right to Vote ... 39

McGinty v Western Australia (1996) 186 CLR 140 ... 39

Roach v Electoral Commissioner (2007) 233 CLR 162 ... 40

Rowe v Electoral Commissioner (2010) 243 CLR 1 ... 40

Week 7A: State Constitutions and Legislative Power ...41

INTRODUCTION ... 41

LIMITATIONS ON STATES ... 41

STATE LEGISLATIVE POWER ... 42

CONSTITUTIONAL AMENDMENT ... 43

MANNER AND FORM ... 43

Week 7B: Federalism...44

INTERGOVERNMENTAL RELATIONS ... 44

Robert French ‘The Incredible Shrinking Federation: Voyage to a Singular State?’ ... 44

Tony Abbott, Battlelines (Melbourne University Press, 2009) ... 45

REFERRALS OF POWER ... 45

R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 ... 45

FEDERAL FINANCIAL RELATIONS ... 46

Russell Mathews, Revenue Sharing in Federal Systems ... 46

Week 9A: The Executive ...48

THE CROWN ... 48

THE GOVERNOR-GENERAL ... 48

George Winterton, ‘The Hollingworth Experiment’ (2003) 14 Public Law Review 139 ... 48

Role of the Governor-General ... 48

Republic Advisory Committee, An Australian Republic: The Options (Australian Government Publishing Service, 1993) vol 2... 49

EXECUTIVE POWER ... 50

Prerogative Power ... 50

Week 9B: Responsible Government ...53

RESPONSIBLE GOVERNMENT: LANGE V AUSTRALIAN BROADCASTING CORPORATION ... 53

RESPONSIBLE GOVERNMENT (EGAN CASES)... 54

Egan v Willis (1998) ... 54

Egan v Chadwick (1999) ... 56

CONTRACTING AND SPENDING ... 57

Williams v Commonwealth (School Chaplain’s Case) (2012) ... 57

Week 10A: Executive Accountability ...60

JUDICIAL REVIEW... 60

EXECUTIVE ACCOUNTABILITY ... 61

Merits Review ... 61

Internal Review ... 62

Administrative Tribunals ... 62

Ombudsman Schemes ... 63

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Public Service Commissioner ... 63

Week 10B: The High Court ...64

HANNAH V DALGARNO (1903) 1 CLR 1 ... 64

APPOINTMENT AND REMOVAL OF JUDGES ... 64

REMOVAL ... 65

Week 11A: Separation of Judicial Power ...67

FEDERAL JUDICIAL POWER ... 67

Wheat Case (What is Judicial Power? Difference from Executive) ... 67

Alexander’s Case (Difference between arbitral and judicial functions) ... 67

Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 ... 68

Boilermaker’s Case (Judicial and non-judicial powers in the Separation of Powers)... 68

Attorney-General (Cth) v The Queen [1957] AC 288 ... 69

STATE JUDICIAL POWER ... 70

Kable v DPP (NSW) (1996) 189 CLR 51 (Separation of Judicial Powers) ... 70

DEFINING JUDICIAL POWER ... 70

Huddary Parker elements ... 70

NSW v Kable (2013) 252 CLR 118 ... 71

Week 11B: Exceptions to Judicial Power ...72

EXCEPTIONS TO THE BOILMAKERS CASE... 72

MILITARY TRIBUNALS ... 72

DELEGATION OF JUDICIAL POWER... 74

Commonwealth v Hospital Contribution Fund of Australia (HCF Case) (1982) 150 CLR 49 (Ancillary Powers) ... 74

Harris v Caladine (1991) 172 CLR 84 (Ancillary Powers) ... 74

PERSONA DESIGNATA RULE... 74

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 ... 74

Hilton v Wells (1985) 157 CLR 57 ... 75

Grollo v Palmer (1995) 184 CLR 348 ... 76

THE DOCTRINE OF INCOMPATIBILITY ... 76

Week 12A: Human Rights and Rights of Out-of-State Residents ...78

HUMAN RIGHTS... 78

RIGHTS OF OUT-OF-STATE RESIDENTS ... 79

Davies and Jones v WA (1904) 2 CLR 29 (WA and QLD father’s will case) ... 79

Henry v Boehm (1973) 128 CLR 482 (VIC lawyer trying to get into SA law) ... 80

Street v Queensland Bar Association (1989) 168 CLR 461 (NSW lawyer to be a QLD lawyer)... 80

Goryl v Greyhound Australia Pty Ltd (1994) CLR 463 (QLD bus accident to NSW resident) ... 81

Sweedman v Transport Accident Commission (2006) 226 CLR 362 (NSW and VIC crash in NSW)... 82

Week 12B: Bills and Charters of Rights ...83

BILLS OF RIGHTS ... 83

US Model ... 83

Commonwealth Model ... 83

Australia ... 83

Week 13A: Constitutional Change ...86

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AMENDING THE CONSTITUTION ... 86 REFERENDUM RECORD ... 86 AUSTRALIAN REPUBLIC... 86

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Week 2A: ORIGINS AND INFLUENCES INTRODUCTION

- Constitutional law has a twofold function

1. Invoked by those who seek a stable and secure basis for the exercise of government power

2. Those that seek to limit that power

- Australia’s need for a federal and written constitution was heavily influenced by the innovation and experience of the United States of America

- The British Constitution was seen by many as ‘organic’ having been grown rather than constructed

o The American Constitution was seen as mechanical, helped by the cultural imagery of America being mechanised, fast, and artificial.

- Australia is an amalgamation of both approaches (Washminister model) combining the:

o British system of parliamentary government containing an executive responsible to the legislature

o American federalism WESTMINISTER GOVERNMENT

- Magna Carta (1215)

o Crown to observe and respect subjects’ rights and liberties as specified in the charters; catalogue of restrictions on the power of the King

- Bill of Rights (1689)

o (enacted later as the Parliament Recognition Act of 1689): set up few fundamental features of the contemporary constitution

- Act of Settlement (1701)

o Succession of the throne rules and secured the tenure of judges - Reform Acts (1832, 18678, 1883, 1884)

o extended the right to vote Responsible and Representative Government

- By the time the Australian Constitution was being drafted, British constitutional had reached the point at which a representative Parliament had emerged as the

Sovereign power; and the notion that the executive was to rule according to the law, responsible to the Parliament, was firmly entrenched.

Martin Loughlin, Foundations of Public Law

- Three main principles drove the 1689 Revolution:

1. Government involved an exercise in trust 2. Legislature exercised the supreme power

3. Executive had ‘a double trust put in him’ both to maintain the basic compact between society and state, and to respect the wishes of the legislature - These principles are most commonly expressed as that of representative and

responsible government

- Political Parties

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o Came into existence not as an expression of democratic sentiment but as, vehicles for management of Parliament

o Ministerial responsibility meant the legal responsibility of every minister for every act in the Crown in which he took part. But this legal liability was overladen with a constitutional requirement that, individually and

collectively, ministers answered to Parliament for all governmental decisions.

PARLIAMENTARY SOVEREIGNTY

- The practice of responsible government depended on parliamentary sovereignty as the keystone of British constitutional law

- Parliamentary sovereignty means that Parliament, under the English constitution, has the right to make or unmake any law; and that no person or body is recognised by the law of England as having a right to override or set aside the legislation of parliament.

o A law may, for our present purpose, be defined as 'any rule which will be enforced by the courts'

- It provides for the exercise of the political will of the electorate through the medium of its parliamentary representatives

Parliamentary Electors

- The sole legal rights of electors under the English constitution is to elect members of parliament

- Electors have no legal means of initiating, of sanctioning, or of repealing the legislation of Parliament

- Their opinion can be legally expressed through Parliament, and through parliament alone

The Courts of Law

- English Judges do not claim or exercise any power to repeal a Statute, Acts of Parliament may override and constantly do override the law of the judges.

- Judicial legislation is, in short, subordinate legislation, carried on with the assent and subject to the supervision of Parliament

Limitations

- Limitations on the Sovereign power of parliament is bounded or controlled by two limitations one of these is external the other is internal

1. The external limit to the real power of a sovereign consists in the possibility or certainty that his subjects, or a large number of them, will disobey or resist his laws.

2. The internal limitation is that the law making is moulded by the

circumstances under which the legislation is made, including the moral feelings of the time and the society which surrounds it

- TRS ALLAN Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism

o The limits of the practice of obedience therefore must be constituted by the

boundaries of morality

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o Morality might direct judicial resistance rather than obedience.

o The limits of legislative supremacy are to be discovered, then, in that deeper constitutional morality from which the rule of law derives its strength and virtue

o The common law is identified as the source of the Parliament’s power and, as such, is seen to constrain that power

CONSTITUTIONAL CONVENTIONS

AV Dicey, Introduction to the Study of the Law and the Constitution

- The one set of rules are the strictest sense ‘laws’ since they are rules which are enforced by the courts

- The other set of rules consist of conventions, understandings, habits, or practices which, though they may regulate the conduct of the several members of the sovereign power, are not in reality laws since they are not enforced by the courts

o These are called ‘conventions of the constitution’

NW Barber; The Constitutional State - A convention operates when

1. In general people act in conformity to the rule

2. The rule forms part of the casual explanation of their conduct

3. A portion of the political community accepts the rule as a valid standard for the conduct

4. A convention is a constitutional convention when it is constitutional in nature; not all social rules are constitutional conventions.

- The questions which account the reasons to account for a convention may be:

1. Provide an account of the emergence of the convention

§ e.g. why the monarch must sign the bills placed before her 2. An account of the current operation of the convention

3. Why the people should adhere to the convention

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Week 2B: U.S Constitution and Federalism THE US CONSTITUTION

- Was conceived in an atmosphere of fear: fear of despotism by a ruling elite unresponsive to the needs of the people and the fear of majoritarian tyranny and factionalism within popularly elected local assemblies.

- The framers of the US Constitution enshrined 3 basic mechanisms:

1. Representative government

§ By increasing the number of public citizens within the compass of a national republican government, the potential for factionalism would be reduced

2. Separation of governmental powers

§ Limit the abuse of power 3. Judicial Review

§ The judiciary was the least dangerous to the political rights of the Constitution having neither the FORCE nor the WILL by merely judgement

- Of the 3 features of the US Constitution, only 1 and 2 were discernible features of the Westminster constitution of the UK

Separation of Powers

- United States constitution affects the division of governmental power in both horizontal and vertical sense

o the horizontal division refers to the breaking up of power across the three Arms of government – the legislature, executive and Judiciary.

2. While the UK government is led by a Prime Minister who leads the party with majority support in the House of Commons, the US president is not a member of congress and is elected as the head of the executive independent of whichever party holds a majority in either chamber of Congress.

3. While the UK government must be Members of Parliament, the President nominates persons outside of Congress to serve in cabinet as Secretaries in charge of portfolios of government

4. The US has no overlap between the Courts and Congress Judicial Review

5. Emerged at the convention of Philadelphia as the solution to the problem of how to ensure that the wilful and often recalcitrant states complied with the law of the Union.

6. If the law is in opposition to the constitution, the court must decide that case conformable to the law, disregarding the constitution, or disregard the law to make sure it conforms to the constitution

7. However sometimes courts will not take into account historical contexts and as such might interpret the constitution differently or contradictorily in regards to its

meaning

8. Was decided in Marbury v Madison 5 US (1 Cransh) 137 (1803)

o If we have a written constitution, that says we have people who can make

laws, what is its purpose without putting some mechanism to check on it

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o The law repugnant to the constitution is void and the courts, as well as other departments, are bound to that instrument

o So if a law be in opposition to the constitution; if both the law and the

constitution apply to a particular case, so that the court must decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty 9. Alexander Hamilton:

o The judiciary, from the nature of its functions, will always be the least

dangerous to the political rights of the Constitution, because it will be least in capacity to annoy or injure them

§ The judiciary has no influence over the sword or the purse FEDERALISM

Australian Federalism

10. The federal features of Australian federalism is:

o (a) the establishment of a central (or Federal) Government and State Governments, each with its own governmental institutions;

o (b) a distribution of authority between the Federal and State Governments that confined the former to express enumerated subjects, while leaving the undefined residue to the States;

o (c) a judicial authority, appointed by the Federal Government, to determine whether either level of government had exceeded its legislative, executive or judicial powers;

o (d) the supremacy of federal laws over State laws in cases of inconsistency;

and

o (e) an entrenchment of these features by a rigid constitutional framework that is difficult to alter

11. Other features:

o Ensuring respect and fairness owed by a state to the government and people of other states

o Ensuring the commonwealth behaves fairly to each state as compared with other states

12. AV Dicey

o Federal state requires for its formation two conditions

1. A body of countries so closely connected by locality, by history, by race, or the like, as to be capable of bearing, in the eyes of their inhabitants, an impress of common nationality

2. The existence of a very peculiar state of sentiment among the inhabitants of the countries which is proposed to unite, “They must desire union, and must not desire unity”

o Characteristics common to all federal governments:

§ Federal government means weak government

• The distribution of powers leads to the result that no one

authority can wield the same amount of power as under a

Unitarian constitution

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o Federalism tends to produce conservatism

§ The difficulty of altering the constitution produces conservative sentiment, and national conservatism doubles the difficulty of altering the constitution

o Federalism means legalism – too much power to the judiciary

§ The predominance of the judiciary in the constitution – the prevalence of a spirit of legality among the people

13. Arguments for it:

o provides a robust constitutional system that anchors pluralist democracy, and enhances democratic participation through providing dual citizenship in a compound republic