1!

Photo by Christopher Chan http://www.flickr.com/photos/chanc/2758901945/ !

LWB242 Constitutional LawLecture 1: Introduction - Constitutions and Institutions of Government!

Outline

Introduction to the Unit!

Constitutions in Australia - Commonwealth and State!

UK and US influences!

Constitutionalism !

2!

Introduction to the Unit

Why study Constitutional Law?!

Where does LWB242 sit in the LLB degree?!

What will you learn in LWB242?!

How will you learn in LWB242!

How will we assess your learning in LWB242?!

Closing the loop: How have we responded to your feedback?!

Why study Constitutional Law?

The Constitution lies at the heart of Australias legal and political systems:!

Laws passed by Commonwealth or State Parliaments may depend on the Constitution for their validity.!

Constitutional law controls what politicians and public servants can and cannot do.!

Constitutional issues do arise in practice. !

Just look in the paper !

3!

Where does LWB242 sit in the LLB degree?

How does this unit differ from first year units?! Assume you have reached level 1 in your skills and knowledge development.! Assume you have retained knowledge from foundation units particularly Legal

Foundations A & B.! Assume you know how to: !

find, read, synthesis, and apply relevant principles from case law;! find up-to-date Acts and any relevant amending Bill;! find an article on Lexisnexis or Lawbook;! properly reference and footnote using the Faculty Citation Guide.!

Independent learning resources available in legal databases or on web are not linked on the Blackboard site.!

Reflection on 1st year and plan for improvement.!

What will you learn in LWB242?

Content:!

Principles of interpretation of the Commonwealth Constitution;!

Nature and extent of selected heads of Commonwealth legislative power;!

Distribution of financial powers between Commonwealth and States;!

Aspects of Commonwealth executive and judicial power;!

State legislative power; and!

Express and implied federal limits on Commonwealth and State powers.!

4!

What will you learn in LWB242?

Skills:!

Problem solving and reasoning;!

Legal research;!

Oral and written communication;!

Time management;!

Responsibility for independent learning; and!

Reflective practice.!

What will you learn in LWB242?

Your understanding of the unit content and development of these skills will assist you to acquire the following law graduate capabilities:!

Discipline Knowledge;!

Problem Solving, Reasoning and Research;!

Effective Communication;!

Life Long Learning;!

Work Independently and Collaboratively; and!

Characteristics of Self-Reliance and Leadership.!

5!

How will you learn in LWB242?

Lectures:!

13 weeks of topics;!

usually 2 hour lectures made available as podcasts;!

however some weeks will delivered online only. !

Case readings:!

There are four designated case readings throughout the semester.!

Tutorials (beginning in week 2).!

External Students:!

Tutorial tapes and External Attendance School.!

Blackboard!

How will we assess your learning?

Tutorial performance (internal students) (10%):!

Stay in the same tutorial for the whole semester; !

Assessed on your preparation and participation;!

CRA will be discussed in your week 2 tutorial.!

External exercise (external students) (10%):!

1000 words;!

Assessed on your problem solving skills, writing skills and legal analysis;!

Due in week 5 (topic to be released in week 2).!

6!

How will we assess your learning?

Research paper (40%):!

The research assignment (2500 words) and research methodology (two pages) will require you to undertake a real world research project on a prescribed topic;!

The topic will be chosen to allow you to critically analyse an area of constitutional law of current significance, including one or more significant constitutional law decisions;!

You will be assessed on your skills of researching and evaluating various legal sources, extracting and analysing constitutional law principles, constructing arguments using law and policy and legal writing in a real world context. !

Due in week 9.!

How will we assess your learning?

Final examination (50%):!

2 hours duration with 30 minutes perusal time;!

Open book!

All topics are potentially examinable. !

7!

Closing the loop: how have we responded to your feedback? Lectures:!

Trialled the use podcasts instead of before reverting back to lectures.!

Trialled GoSoapBox to respond to feedback about boring lectures.!

Exploring ways of moving lectures online this semester.!

Case readings:!

Previously 13 case readings (one per week). Feedback about workload resulted in only four case readings. !

Tutorials:!

Tutorial presentations scrapped in favour of longer 90 minute tutorials.!

Tutorials now run from weeks 2 to 13.!

Closing the loop: how have we responded to your feedback?

Content:!

Reduced topics to make workload more manageable.!

Textbook:!

Previous textbook (Blackshield & Williams) perceived as too difficult.!

John Pyke has now written a book for this unit.!

Assessment:!

Setting topics plucked from the newspapers.!

Greater emphasis on problem style questions in tutorials.!

8!

Introduction to Constitutions - Commonwealth and State What is a constitution?!

Rule of Law!

Motives for federation!

Basic elements of the Constitution and Australian Federalism!

UK and US influence!

Structure of the Constitution!

Division of legislative power!

Constitutionality of Commonwealth Statutes!

Constitutionality of State Statutes!

What is a constitution?

A description of the way something is made up, or constituted (from Latin things that stand together).!

Legal bodies, from small associations to large nations, have a constitution the basic rules that set up a body, define who is in charge, give powers to the leaders and maybe limit their powers as well.!

When we talk of a constitutional government, we assume that its powers are limited by a constitution.!

Even though England had no written constitution after 1688, it was regarded in Europe as the model for a constitutional government because the powers of the King and Ministers were limited by law.!

9!

Rule of Law

The classic definition of the rule of law is provided by A.V. Dicey a British lawyer and scholar who in 1885 wrote the classic work, Introduction to the Study of the Law and the Constitution. In this work, Dicey described the rule of law as having three aspects:!

1. the absolute supremacy of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of a wide discretionary authority on the part of the government;!

2. equality before the law;!

3. the laws of the Constitutionare not the source, by the consequences of the rights of individuals, as defined and enforced by the courts.!

Diceys first aspect: The supremacy of law

The rule of law is in a sense the antithesis of arbitrary rule. !

Implicit in this conception is that the law should be consistent, predictable as opposed to law made at the behest of a ruler or governing institution. !

Professor T.R.S. Allan, an academic at the University of Cambridge, describes the first aspect of Diceys formulation as follows:!

At its core is the conviction that law provides the most secure means of protecting each citizen from the arbitrary will of every other. By being constrained to govern by means of general laws, the rules of society cannot single out particular citizens for special treatment. The law is to constitute a bulwark between governors and governed, shielding the individual form hostile discrimination on the part of those with political power. (see T. S. Allan, Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism (1985) 44 Cambridge Law Journal 111, 112-113.)!

10!

Diceys second aspect: Equality before law

The rule of law requires those who govern parliamentarians, judges, Ministers and so on to be subject to the law, and to be held to account if they exceed or usurp their powers.!

Contrast with George Orwells, Animal Farm: All animals are equal, but some are more equal than others.!

Diceys third aspect: The Constitution reflects the rule of law

This reflects the idea of a written constitution as a product of popular will. !

In other words, the will of the people is reflected in the drafting of the Constitution, and the people have the power to change it.!

As Dixon J said in Australian Communist Party v Commonwealth at 193: !

The Constitution is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect as, for example, in separating the judicial power from other functions of government, others of which are simply assumed....Among these I think that it may fairly be said that the rule of law forms an assumption.!

11!

Rule of law in practice

In reality the idea of the rule of law is a complex mix of fundamental ethical and political principles. These are necessarily influenced by changing values, and in turn they influence those who exercise authority in our society, most notably the judges. (see K Mason, The Rule of Law, in P Finn (ed), Essays on Law and Government, Volume One: Principles and Values, Lawbook, 1995, 114.) !

Ask yourself: how well does Australias constitutional system of government embody the rule of law?!

Is there a tension between parliamentary sovereignty and the rule of law?!

There is an increasing recognition of the tension between the deference of the will of parliaments as expressed in legislation and maintenance of the rule of law. Parliaments are increasingly seen to be the de facto agents or facilitators of executive power, rather than bulwarks against it. (see Justice Toohey, A Government of Laws, and not of Men (1993) 4 Public Law Review 158, 163.)!

What is a constitution?

What can a constitution do?!

1. It could make the executive government subject to the rule of law, while allowing parliament to make any law it likes (eg. Britain);!

2. It could limit the powers of parliament as well, to protect civil rights (ie. a Bill of Rights);!

3. In a federal system, it can divide powers between a central government and State or provincial governments.!

US Constitution does 2 and 3; the Commonwealth Constitution does a bit of 2 but mainly 3.!

12!

Basic Elements of the Constitution and Australian Federalism

The two main motives driving the colonial politicians towards federation were: !

the desire for free trade between the colonies; and !

the perceived need for a common defence and external affairs policy. !

Basic Elements of the Constitution and Australian Federalism

With the Commonwealth of Australia Constitution Act 1900 (Imp) the former six Australian colonies were federated under the Commonwealth Constitution into one nation.!

The Constitution of the Commonwealth of Australia is technically s9 of the Commonwealth of Australia Constitution Act (Imp).!

Sections1-8 are generally referred to as the covering clauses to distinguish them from the sections of the Constitution itself. !

The Commonwealth Constitution established the institutions of a national government and outlined their powers.!

The colonies became States in the federation and retained their existing Constitutions and governmental arrangements, but these were modified by and subject to the Commonwealth Constitution (see ss106-108). !

That is, in addition to the Commonwealth Constitution, each State has their own constitution - a Constitution Act - that imposes basic limits on the State executive government (and few limits on the State Parliament).!

13!

UK and US influence

Read Pykes online chapter: Part A Addendum 1 : Sources of Constitutional Ideas. !

Much of our early political and legal history is English history. Therefore you need to know some English political history and a few of the classic English cases.!

However, our system is a blend of UK and US influence - the Washminster model.!

UK history

Limited monarchy, constitutionalism:!

Early English government had Parliament to recommend laws, Ministers to do detailed executive government, Courts to administer justice all done under more or less pressure from the King (occasionally Queen) who was still the real ruler.!

The divine right of Kings as articulated by James I:!

Kings are justly called Gods, for that they exercise a manner or resemblance of Divine Power on earth. God hath power to create or destroy, make or unmake at his pleasure, to give life or to send death, to judge or to be judged, nor accountable to none. And the like power have Kings. They make and unmake their subjects, they have the power of raising and casting down of life and of death, judges all over their subjects and in all causes and yet accountable to none but only God.!

However, Aristotle had written that it was better to be ruled by law than by a man, and the English put it into practice after the Glorious Revolution.!

The Bill of Rights 1688 made the Kings powers subject to Parliament and law see articles 4 and 9 especially. !

14!

UK history

Separation of powers?!

Montesquieu claimed that England observed a strict separation of powers between legislative, executive and judicial bodies.!

In fact this was incorrect - legislative and executive power must overlap in the system of responsible government (see Irving, 5 Things, and next weeks lecture)!

But what England did have was government subjected to the rule of law, a limit on prerogative powers, and independence of judiciary.!

UK history

Independence of the judiciary and the Rule of Law:!

In Prohibitions del Roy (1607) 12 Co Rep 64, Coke CJ held that the King cant decide cases himself.!

Act of Settlement 1701 provided that judges commissions continued quamdui se bene gesserint (on good behaviour). This gave judges independence from the executive government.!

In Entick v Carrington, the court declared seizure of property under general warrants illegal, and more generally that the executive could not do coercive things to subjects without a recognised source of power.!

15!

UK history

Limits on prerogative power:!

In early England, the Kings claimed to have a range of prerogative powers - ie. powers that nobody else has. !

Case of Proclamations (1610) 12 Co Rep 74 held the King could not make law by proclamation, and more generally, The King has no prerogative but that which the law of the land allows him (and of course the courts decide what the law of the land says).!

As such executive powers (in England) come from two sources ancient prerogatives and express grants by statute.!

Attorney-General v De Keysers Royal Hotel!

Government tried to avoid conditions imposed on resumptions by statute by arguing that they were using the prerogative, not the Act. !

House of Lords held that where a prerogative power overlapped a statutory power, the prerogative was abridged by a statute, or subsumed into the similar statutory power.!

UK history

Limits on prerogative power:!

BBC v Johns [1965] Ch. 32 !

BBC (set up by charter, not by Act) claimed exemption from taxes as an emanation of the Crown, and also claimed immunity from judicial review. !

Held, subject to jurisdiction of the Courts: It is 350 years and a civil war too late for the Queens courts to broaden the prerogative.!

Laker Airways Ltd v Department of Trade [1977] 2 ALL ER 182. !

Held, having failed to enter by the front door [a statutory power], the Crown cannot enter by the back door [a revived prerogative]. !

16!

UK history

Judicial review of administrative action:!

Old prerogative writs (prohibition, certiorari, mandamus) had been available from early times, used by superior courts to supervise Justices of the Peace etc not used to correct actual decisions (which would be merits review) but to check that their decisions were truly within their jurisdiction and they had considered all relevant factors etc !

This principle gradually extended to all public servants, and eventually to Ministers in R v Minister of Agriculture and Fisheries ex p. Padfield [1968] AC 997, and is now the basis of administrative law.!

Note the use of term judicial review in this context - the judiciary will review legality of administrative action (but not merits of eventual decision), but in UK there is no judicial review of validity of laws because of the sovereignty of Parliament. !

UK history

Sovereignty of Parliament:!

Stuart Kings 1603-88 had claimed absolute power, and parliament led the fight against them, so parliament ended up with absolute power!

A.V. Dicey, Introduction to the Study of the Law and the Constitution, popularised notion of parliamentary sovereignty parliament can make and unmake any law it likes.!

This principle was confirmed in Pickin v British Railways Board [1974] AC 765.!

Pickin tried to challenge validity of an Act on ground that its passage had been induced by fraud. !

Held, once the Court is satisfied that an Act has been passed and received assent, it cant question its validity.!

17!

UK history

English system brought to the colonies:!

Notwithstanding the fact that there were indigenous people here before the arrival of First Fleet, English settlement did bring English law to Australia.!

Colonies all ended up with Constitution Acts (enacted by their own Parliaments under powers granted by Imperial Parliament) which established Westminster-ish constitutions. !

In the 1890s, colonists found life in separate colonies caused problems and sought to federate which brought in American ideas.!

US history

The American colonies rebelled in 1776 and called themselves States (meaning nations), and formed a confederation central government had no tax powers, and there was a need for unanimous decisions.!

The States realised the central government was too weak, so in 1787 the States sent delegates to Philadelphia to draft amendments to the Articles of Confederation.!

Instead they drafted a completely new Constitution with a stronger central government (still calling the units States, even they werent sovereign any more).!

The new Constitution tried to keep central power under control by:!

1. dividing central power between legislature, executive and judiciary (Arts 1,2,3); and!

2. dividing legislative power between the central government and States; !

3. (later) adding a Bill of Rights. !

18!

US history

Division of legislative power:!

a list of powers given to the Federal Congress (Art 1, s 8 - list of 18 powers);!

everything else left to the States (assumed at first, spelled out in 10th Amendment).!

Separation of powers in the federal government:!

Art 1, s 1 - legislative power is vested in the Congress;!

Art 2, s 1 - executive power is vested in the President;!

Art 3, s 1 - judicial power is vested in the Supreme Court.!

Compare ss 1, 61 and 71 of Commonwealth Constitution.!

US history

Judicial review in the US:!

Although US Constitution gives restricted list of powers to Congress, it doesnt say who polices this.!

Some thought Congress should police itself, but Hamilton argued in the Federalist Letters, No 78, that Supreme Court should have power to interpret Constitution and rule laws invalid.!

This was confirmed by Supreme Court in Marbury v Madison.!

Therefore, the US has judicial review of the validity of legislation (and so do we in Australia).!

19!

UK and US influence

Read Pykes online chapter: Part A Addendum 1 : Sources of Constitutional Ideas. !

The main outline of the Constitution followed the model of the Constitution of the United States of America. The two main features copied from the US Constitution were:!

1.a division of legislative powers between the Commonwealth and State Parliaments, on the principle that the Commonwealth has an enumerated list of legislative powers, and the States retain the residue (see ss51, 52, 107, 109);!

2.a structure for the Commonwealth government which reflects the doctrine of the separation of powers.!

UK and US influence

On the other hand, the founders consciously departed from the American model, and preserved elements of the English Constitution, in the following respects:!

1. the monarchical element was retained - ss1 and 61 ostensibly make the Queen herself a part of the system of government (but then s2 and further words in s61 make it clear that her powers are in fact to be delegated to a Governor-General);!

2. the doctrine of Cabinet government was expressly recognised by the requirement in the final paragraph of s64 (What does this mean for the separation of powers?);!

3.while the US Constitution includes a wide-ranging Bill of Rights, no such general limitation on legislative power was included in our Constitution. However, there are some few sections which amount to a mini-Bill of Rights - see ss80, 92, 116-117.!

20!

Structure of the Constitution

Division of legislative power

Source of Commonwealth legislative power:!

The Commonwealth Constitution established the Commonwealth Parliament and conferred legislative power upon it. !

The most important grants of legislative power are to be found in ss51 and 52. !

State legislative power:!

The colonial Parliaments already had general grants of power to make laws for the "peace, welfare" (in two cases, "order") "and good government" of each colony. !

The new Constitution kept the colonies in existence as States (covering clause6, and s106 as to their Constitutions), and provided, in s107, that the State Parliaments should continue to have all the powers which they had previously had except for those that were vested exclusively in the Commonwealth Parliament.!

21!

Constitutionality of Commonwealth Statutes

To test whether a Commonwealth law is valid, you first need to ascertain whether there is some provision in the Constitution specifically authorising the making of that kind of law.!

Commonwealth power is also subject to some prohibitions in the Constitution, of which the most important are ss80, 92, 99, 114 and 116, and the inbuilt limitations in paras51(ii), (xiii), (xiv) and (xxxi). There is also an implied prohibition of laws discriminating against the States. !

To check the validity of a Commonwealth statue, the rule is - first see if there is a head of power, then check whether a prohibition has been breached.!

Constitutionality of State Statutes

There is no need to look for a grant of power when considering State laws - State Parliaments have the power to make laws for the "peace, welfare and good government" of the State. !

So you do not need to check a State law to see if it is supported by a head of power, but you do need to check whether:!

1. it infringes one of the prohibitions in the Commonwealth Constitution which, although expressed generally, tend to apply particularly to the States - ie ss92 and 117;!

2. it infringes a prohibition applying specifically to the States (ss114 or 115), or relates to a topic which the Commonwealth Constitution reserves as exclusive to the Commonwealth, ie ss52 and 90;!

3. it breaches an implied prohibition such as free speech or the independence of the judiciary; !

4. it is contrary to some binding "manner and form" provisions regulating the relevant State's power to make certain laws;!

5. if it purports to apply outside the State, whether the subject matter has a sufficient connection with the State; and!

6. even if it is prima facie valid, whether it is inconsistent with a valid Commonwealth law (s 109).!

22!

Next week

Separation of Powers!

Executive power and the Parliament!

Executive power, the law, and the judiciary!