public laws 2140 - notes

8/3/2019 Public Laws 2140 - Notes

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Week 1 The Constitution

- Section 128 requires an absolute majority in Parliament (Proposal passed by lower andupper houses), and a majority of people in a majority of states (Double majority)

- Section 72 requires that High Courtjudges retire at the age of 70- Section 59 gives the Crown the right to disallow a law within one year of the Governor

Generals assent- The term of the House of Representatives is three years (s 28). A member of Senate may

sit for a maximum of six years (s 7). A double dissolution may see an end to a term- Rights in the Constitution include:

o Section 41 Right to Vote (Transitional Provision) If you have the right to vote at

state level, then you also have the Commonwealth franchiseo Section 51 (xxxiv) The acquisition of property on just terms from any State or

person for any purpose in respect of which Parliament has power to make lawso Section 80 Individuals have the right to Trial by Jury on indictment of any

offence against any law of the Commonwealth. However, Commonwealth candefine which crimes are indictable

o Section 116 The Commonwealth shall not legislate in respect ofreligiono Section 117 The States shall not discriminate on the basis of states

- Section 51 states the concurrent powers of the States and the Commonwealth. Section52 states the exclusive powers of the Commonwealth

- Section 53 states that budget bills cannot originate or be amended in the Senate. It mayonly reject or recommend amendments

- Section 57outlines the process for a disagreement between the Houses. If the Senaterejects a proposal, the House of Representatives can pass the proposal through againsubject to any desired amendments. If the Senate rejects the proposal again, the GovernorGeneral draw on reserve powers and call a double dissolution and election. If theproposal is still rejected by the Senate, the Governor General may convene a joint sitting

of both Houses, with a simply majority vote to decide- Section 64 allows for a minister to hold office for three months without being a member

of Parliament- Section 96allows the Commonwealth to grant financial assistance to any State on such

terms and conditions as Parliament sees fit- Section 121 states that the Parliament may admit to the Commonwealth or establish new

States

Week 2 Constitutionalism and the Fiji Crisis

Constitutional law describes the body of rules according to which a state is constituted or

governed. There are written (e.g. Australia) and unwritten (e.g. UK) constitutions.

According toDicey:o A flexible constitution is one under which every law of every description can

legally be changed with the same ease and in the same manner by one and thesame body

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o A rigid constitution is one under which certain laws generally known as

constitutional or fundamental laws cannot be changed in the same manner asordinary laws. These constitutions require special procedures for change to occur

Australia combines a mixture of both written and unwritten constitutional rules, andthe States have adopted written constitutions which are flexible

Australia has adopted a Washminster system A fusion of both the US (Separation of

powers) and UK (Responsible government) systems

Separation of Powers

Baron de Montesquieu (18th century): Those invested with power have the capacity toabuse it. Hence each society should have three bodies of power: The executive toadminister the laws, the parliament to create the laws, and the courts to review the acts ofthe other two bodies.

Realistically no society can have a complete separation of powers.

Australia adopts a somewhat fused executive and legislature, with reliance upon theBritish doctrine of responsible government.

Judicial Review

The Constitution provides that any use of power brought before the courts and deemedinconsistent with the limitations, both explicit and implicit, within the Constitution, may bedeclared by the courts as unconstitutional and therefore invalid.

Marbury v Madison 5 US (1 Cranch) 137 (1803)

The Republican president, Thomas Jefferson, refused to commission four new federaljudges appointed by the preceding Federalist president, John Adams. One of these judgeswas Marbury.

The Supreme Court, with the judgment handed down by Marshall CJ, held thatjudicial review was an axiom of the constitutional scheme, and as such, charged with theduty of determining whether or not a piece of legislation is repugnant to the Constitution.If it is, then the Act is void.

JR Lucas, The Principles of Politics. (Clarendon Press, 1966)

The Constitution and the decisions of the Supreme Court have imbued the Supreme Court withsubstantial power over the legislature, bringing to mind the question quis custodiet ipsoscustodies, or who will watch the watchmen?

The limitations of the Supreme Courts power include the fact that it may only interpretcontentious issues, i.e. those brought before the court, as well as the fact that if the SupremeCourt was to abuse its position, it would lose the respect that is fundamental to its effectiveness.

Legal Positivism and the Grundnorm An expansion ofHan Kelsens Stufentheorie



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Legal positivism was a dominant legal theory during the 19 th century and influenced thedevelopment of Australian constitutional law. It essentially asserts that a law is valid if posited inthe proper manner by a recognised authority. Implicit in this the question whether the bodymaking the law has the legal power to do so.

Hans Kelson,Pure Theory of Law (University of California Press, 1967; translated by M Knight

fromReine Rechtslehre (Franz Deuticke, 2nd ed 1960))

Legal power must be conferred from a body higher in the legal hierarchy (Hans KelsensStufentheorie, or steps and stairs theory), and at the top of the hierarchy is the Constitution. Forthis source, power was conferred by earlier constitutional arrangements, yet should one go far back enough, the power was ultimately conferred by the Grundnorm, or basic norm,embodying the axiomatic assumption that that body had the force of law.

Michel Foucault, Politics and the Study of Discourse (1978) 4Ideology and Conscious 7

Where Kelsen seeks to construct a systematic framework for a pure (ahistorical and apolitical)

theory of law that is characterised by hierarchy and unity, Foucaults approach is characterizedby flux, inconsistency, discontinuity and change. Foucault insists that discourse can only ever beinconsistent and ruptured, and that only out of such a discourse can ideas originate.

Coup dEtat

FM Brookfield, Waitangi & Indigenous Rights: Revolution, Law and Legitimation (AucklandUniversity Press, 1999)

Two views may be adopted by the court when faced with a question of supra-constitutionality:- Older constitutionalist view that the court does not have the jurisdiction to rule on the

legitimacy of a new government. It is bound by the previous constitution.- Newer view that all courts are authorised, if not required to decide upon the lawfulness of

the new government. Such courts are said to assume supra-constitutional jurisdiction.This is arguably an extension of Kelsens concept of the grundnorm, as judges are giventhis right by virtue of their office, or rather the faith of a society upon their office.

Cases on Coup dEtat

- Madzimbamuto v Lardner-Burke [1969] 1 AC 645 Majority of the High Court ofSouthern Rhodesia held that only the 1961 Constitution, and the laws flowing from it,had any legal validity. Lord Reid accepted that the test is one of effectivecontrol, and

that it is not made out when a former government is still striving for power- Mokotso v HM King Moshoeshoe II [1989] LRC (Const) 24 Cullinan CJ of the High

Court of Lesotho stated that A court may hold a revolutionary government to be lawful,and its acts to have been legitimated ab initio, where it is satisfied that (a) the governmentis firmly established, there being no other government in opposition thereto; and (b) thegovernments administration is effective in that the majority of the people are behaving,by and large, in conformity therewith

- Mitchell v Director of Public Prosecutions [1986] LRC (Const) 35 Haynes P stated thattwo further elements existed: (c) such conformity and obedience [must be] due to popular



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acceptance and support and not mere tacit submission to coercion or fear of force; and(d) it must not appear that the regime was oppressive and undemocratic

- Republic of Fiji v Prasad[2001] 2 LRC 743Facts: Prasad, an Indo-Fijian farmer, had been displaced when he and his family wereforced off their land after a coup. Prasad sought a declaration that the 1997 Constitutionremained in force and that the elected government of Fiji had not been lawfully

dismissed.Law: From the four elements, the first three elements were accepted and the element ofan oppressive and undemocratic government was not, with the rationale that theadherence to international human rights treaties is not relevant in determining thelawfulness of a government. Furthermore, it was added that conformity and obediencefollowed from popular acceptance.Qualifying Factors: Elections, length of time in which the de facto government has beenin control, general popular acquiescence

Coup dEtat Tests Summarised

1. The first test, as stated by the High Court of Southern Rhodesia in Madzimbamuto vLardner-Burke is one of effective control. Furthermore, it was held that if a formergovernment is still striving for power, then there can be no such effective control.

2. Cullinan CJ of the High Court of Lesotho held in Mokotso v HM King Moshoeshoeformalised the test of effective control somewhat by specifying two qualifyingrequirements:

a. A firmly established government with no opposition governmentb. Majority of the people behaving in conformity

3. In Mitchell v Director of Public Prosecutions, Haynes P had specified two furtherelements:

c. Conformity and obedience must be due to popular acceptance and support, not a

tacit submission to coercion or fear of forced. The regime must not be oppressive and undemocratic

4. The court held in 2001 in Republic of Fiji v Prasad that adherence to internationalhuman rights treaties is not relevant in determining the lawfulness of a government,therefore the fourth element, that of an oppressive and undemocratic regime, was struckdown. Furthermore, popular acceptance already intimate conformity and obedience.Qualifying factors for these tests include the presence of elections, the length of time inwhich the de facto government has been in control, and general popular acquiescence.

Week 3 The Westminster System

Constitutional law serves to provide a stable and secure basis for the exercise of governmentalpower while also limiting this power.

English Constitutional History

TheMagna Carta is important in its role of developing the values which later evolved into whatis known as the rule of law. This Great Charter provided the basis for the idea that everyone issubject to the law by preventing the arbitrary exercise of power.



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The Westminster System Parliament

King made all important decisions with the advice of an assembly of the wisest men in thekingdom, known as the Witenagemot in England between the 7th century and 11th century.Together, the King and the Witan were the executive, the legislature, and the judiciary. After thedeparture of the Anglo-Saxon Kings, William I and his successors instead held Great Councils.

During the thirteenth century, these councils became known as Parliaments. Particularlyprominent within these councils were the three estates of the Realm: The Lords Spiritual, theLords Temporal and the Commons.

In 1265, Simon De Montfort summoned representatives of the commons, including Knightsfrom the counties and two elected burgesses from the independent towns or boroughs with RoyalCharters. In 1295, the Model Parliament of Edward I was summoned, including barons,knights, burgesses, senior clergy and lower clergy. The principle followed was that whattouches all should be approved by all.

The 16th and 17th century saw a constitutional struggle between the Monarchy and Parliament,

as the Tudors and Stuarts sought to rule absolutely through an exercise of their royal prerogative.James II (1685-8) defied Parliament through a claim to his divine right, leading to the GloriousRevolution occurred, where Parliament openly resisted the King, who then fled. William III andMary were then invited to accede and pass the Bill of Rights in 1689, ensuring parliamentarysupremacy.

FG Marcham, A Constitutional History of Modern England, 1485 to the Present (Harper &Brothers, 1960)

The Star Chamber was established during the Tudor period. Its purpose was to remedy thedefects of the established judicial system insofar as prosecuting those who did not get punished

under the normal courts, but were believed to be deserving of punishment.

The court had powers to gather evidence, examine the parties and hand out punishments withouta confrontation between the accused and accuser, or even public examinations or writtenstatements. Only sentencing was public.

Goldwin Smith,A Constitutional and Legal History of England(Dorset Press, 1990)

James I believed in the divine right of kings; the doctrine that stated that a king was appointed byGod and answerable only to him. The King was above Parliament and the courts, whose powerswere theirs only by the grace of the King rather than by any right.

Sir Edward Coke, Chief Justice of the Court of Common Pleas, later Chief Justice of the Court ofKings Bench (1613), and later still a member of Parliament (1621), strongly opposed thisdoctrine, stating that the rights of all were defined by precedent, not by the King.

Prohibitions del Roy (1607) 12 Co Rep 63; 77 ER 1342

Coke CJ stated that although the King had great natural reasoning, he could not dictate law as hestated because he lacked the artificial reasoning of lawyers.



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Bonhams Case

In Bonhams Case, Coke drew particular criticism when he effectively struck down statute,asserting the right of judges to adjust such act to be void if it be repugnant to the commonlaw. Cokes indifference to royal prerogative saw him in trouble, as he convinced eleven judges

to ignore a summons on behalf of the Crown from Sir Francis Bacon, then Attorney-General, onthe basis that his summons was illegal as all judges were bound by their oaths to delay no case.Although the eleven judges sided with James I over his claim to right to delay the case to reviewit, Coke refused to accede, and upon the request of the King, proceedings were began againstCoke for failure to pay an installment of debt owed to Sir Christopher Hatton. Coke wasremoved from all office, and upon further refusal to edit his manuscript such that opinionscritical of the royal prerogative would be taken out, was removed from all offices under theCrown in 1616. However, Coke was later elected to Parliament.

The Glorious Revolution

ThePetition of Right 1628 to which Charles I yielded to the demand of parliamentary control oftaxation was also drafted by Coke. The Interregnum that followed and the subsequent executionof Charles I in 1649 failed to produce a stable parliamentary alternative to monarchical rule, andin 1660, monarchy was restored by Charles II. In 1688, James II cast the Great Seal of the Realminto Thames and fled the country, at which point the Convention Parliament met and announcedthat the king had abdicated by his neglect of the people. The crown was given to William andMary of Orange, ho accepted the declaration and enacted theBill of Rights 1688.

The Act of Settlement

TheAct of Settlement1701 provided that the Kings pardon under the Great Seal would not be a

bar to an impeachment by Parliament, that judges were to hold office during good behaviourinstead of at the kings pleasure, that they were to be removed or have their salary altered uponaddress by both houses of Parliament and charges of misconduct proved in Parliament, that theCrown be a member of the Church of England, that England was not obligated to protect theforeign interests of a foreign king, that the king may leave England without parliamentarypermission, and that any person that is employed under the king or receives a pension from theking be allowed to sit in the House of Commons.

Bill of Rights 1688 (I Will & Mary, Sess 2 c 2)

The rule of law was firmly installed and it was made clear that the King is subject to the

decisions of Parliament.

Both the Magna Carta and the Bill of Rights have continuing legal relevance in Australiathrough the reception of English law. Section 6 of theImperial Acts Application Act 1969 (NSW)declares that theBill of Rights and Magna Carta remain in force in NSW to the extent that theyare not affected by other State or Imperial enactments in force in NSW.

Limited Government



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The government is limited by its purpose, leading to the sanctity of property from thegovernment.

Entick v Carrington (1765) 19 St Tr 1030

Two Kings messengers broke into Enticks house and stole papers alleged to be seditious

writings. Entick sued for trespass, and Carrington argued that the warrant was legal as thepower to issue such warrants was a valid power. Lord Camden CJ stated that If it is law, it willbe found in out books. If it is not to be found there, it is not law.

State powers cannot be implied, they must be written in law. This reinforces the idea of limitingthe powers of a government under the rule of law.

Sommersetts Case (1772) 20 St Tr 1

A writ of habeas corpus was addressed to the captain of a ship where James Somersett, a Negroslave, as held in irons. The return to the writ asserted that Somersett was a runaway slave who

had been recaptured by his master, Charles Steuart, and was held in irons at Steuarts request.

The court held that no one can be held without lawful reason to be held. The state must either tryyou or release you.

AV Dicey,Introduction to the Study of the Law of the Constitution (Macmillan, 1st ed 1885, 10thed 1959)

The principle of Parliamentary sovereignty means neither more nor less than this, namely, thatParliament thus defined has, under the English constitution, the right to make or unmake any lawwhatever, and, further, 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.

Two limits exist on parliamentary power:

External limit: That at any time the populace may disobey or resist the laws put forwardby Parliament

Internal limit: The limitations placed by the moral feelings of the time and the society towhich he belongs

Although a written constitution and judicial review detract from parliamentary sovereignty, itmust be asked how often the courts review statute. Only rarely will the courts interfere.

Rule of Law

According to Dicey, the rule of law can be regarded from three different points of view.1. Firstly, it refers to the absolute supremacy or predominance of regular law asopposed to the influence of arbitrary power, that a man can be punished for a breach ofthe law, but for nothing else2. Secondly, that before the law, everyone is equal3. Lastly, that the law of the constitution is not the source but the consequence ofthe rights of individuals, as defined and enforced by the courts



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According to WI Jennings:- The rule of lawrequires that the powers of the Crown and of its servants shall be

derived from and limited by either legislation enacted by Parliament orjudicialdecisions taken by independent courts.

- Contains the notion ofequality, yet equality before the law does not imply that propertyshould be distributed equally, nor that the same laws should apply to all persons in the

same state; nor imply political equality (e.g. children dont vote). What equality beforethe law means is that it assumes that among equals the laws should be equal and shouldbe equally administered, that like should be treated alike

According to Julius Stone:- Doctrine of the rule of law lies in the recognition by those in power that their power is

wielded and tolerated only subject to the restraints of shared socio-ethical convictions- It is artificial and confusing to juxtapose the rule of law and the sanctity of human rights

as if they were competing ideals- Substantive law must respond to needs of social and economic development- The rule of law in any case, does notdemand a uniform rule on all matters for every

person in society, regardless of the merits of varying situations

According to the International Commission of Jurists:- The rule of law can be characterised as the principles, institutions and procedures, not

always identical, but broadly similar, which the experience and traditions of lawyers indifferent countries of the world, often having themselves varying political structures andeconomic backgrounds, have shown to be important to protect the individual fromarbitrary government and enable him to enjoy the dignity of men

High Court judges have accepted the rule of law as an implicit but not defined part ofAustralias constitution (Separation of powers is a traditional conception of the Constitution,

Communist Party Case; Largely unexplored concept,Hindmarsh Island Bridge Case).

Development of the rule of law:

Bill of Rights 1688 entrenched the rule of law at common law.

Act of Settlement 1701 dictated that judges were independent of the Crown

Entick v Carrington (1765) held that State powers cannot be implied, but rather must bewritten in law

Sommersetts Case (1772) stated that no one could be imprisoned without reason. Onemust be tried or released.

Week 4 Federation to Popular Sovereignty

The Constitution completed its passage through that Parliament on 5 July 1900, wasassented to by the Queen on 9 July 1900, and came into force on 1 January 1901.

Patrick Parkinson, Tradition and Change in Australian Law (LBC Information Services, 2nd ed2001)



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By 1855, bicameral legislature and responsible government had already begun to emergein a number of colonies

Impetus for federation came from Britains Colonial Secretary, Earl Grey, who tried tointroduce a Bill which later became theAustralian Constitutions Act 1850

Inter-colonial co-operation was desirable, if not necessary in the presence of customstariffs at colony borders (Although free trade was desirable by NSW, it was spurned by

Victoria who wished to protect its local industries, and affected the revenue of allcolonies)

Smaller colonies had the potential to lose their identity in the larger mass, and largercolonies had the possibility of a requirement to subsidise the struggling economies ofTasmania and South Australia hanging over them

Fear ofcommon enemies was one cause of co-operation

Henry Parkes, the Premier of New South Wales at the time, was a highly influentialproponent of federation, and was instrumental in encouraging discussion in the 1890s. Heorganised a conference in Melbourne in 1890, which led to the National AustralasianConvention which met in Sydney in 1891.

The Canadian Constitution was examined as well, as well as the AmericanConstitution, which provided an example of the protection of States rights, as well asthe idea that the Senate should consist of an equal number of members from each Statewhile the House of Representatives should reflect the national distribution of population.

It was early perceived that a suitable constitution for Australia would marry the Americanconcept of a Senate representing each State equally with the Westminster system ofgovernment by which the government of the day, with its ministers drawn from the ranksof the Parliament, would be required to maintain the confidence of the popularly electedlower House.

Upon a vote for a draft Constitution, NSW failed to meet its quorum of voters stated byits enabling legislation, resulting in another round of negotiations between premiers.

Most importantly, a proviso was added which enabled Parliament to grant financialassistance to any State on such terms and conditions as it saw fit.

Upon an Address requesting the Queen to enact the Bill in Westminster Parliament so asto provide a legal basis for federation (An order of paramount force was required so asto sanction this exercise and make it applicable to colonies such as WA), the imperialgovernment insisted that on constitutional matters, the High Court should have the rightto determine if the matter was should be heard in the Privy Council.

George Williams, Human Rights Under the Australian Constitution (Oxford University Press,1999)

Dicey argued that civil liberties can be adequately protected through the common lawand political processes without the incorporation of guarantees of rights in a writtenconstitution.

Dicey has stated that a Bill of Rights is unnecessary as the current channels areappropriate, with other theorists saying that the inclusion of a Bill of Rights reflectspoorly upon the our civilization. John Gordon of South Australia followed the line ofargument that such equality was so implicit that if we were to include such a Bill ofRights, might you not as well say the states should not legalize murder.



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Constitutional Commission,Final Report of the Constitutional Commission

Features of the Constitution include:o Establishment of a central, Federal Government and State Governments, each

with its own governmental institutionso A distribution of authority between Federal and State Governments

o A judicial authority appointed by the Federal Government to provide judicialreview of powers

o The supremacy of federal laws over State laws in cases of inconsistency

o The entrenchment of these features in a rigid framework that is difficult to alter

Aspects of the Constitution reflect its federal nature, such as its push for fairtreatment between States and representation in the Senate

Brian Galligan and Cliff Walsh, Australian Federalism Yes or No?

For the most part, the Australian founders focused more on the practical issue of

getting the support of all the colonies rather than a detailed exposition of federalism andits advantages. However, this is not to say the Constitution is thus void of suchconsideration.

James Gillespie, New Federalisms

It is argued that the division of powers acts as a guarantee that the state will not become too large or oppressive. Rival levels of government, each with their owndemocratic franchise, set a major barrier to the concentration of political power in toofew hands

Federalism also provides a check on unconstitutional exercises of power outside the

right of a government to legislate The slowness of legal decision-making processes places an emphasis on the conceptof due process, limiting arbitrary action by the state

Proponents of Federalism such as Galligan, Knopff and Uhr argue that a federalconstitution is itself a bill of rights as it guarantees due process in government

Commonwealth v Kreglinger & Fernau Ltd (Skin Wool Case) (1926) 37 CLR 393

Doctrine ofExtraterritoriality still applies

Broad interpretation: An exercise of colonial legislative power is invalid unless itsoperation has sufficient connection with the geographical area of the legislating

colony Narrow Interpretation: A colonys laws can never have any operation outsideits territorial borders

Statute of Westminster 1931 (Imp)

This Act (s 2) freed the Dominions, including the Commonwealth, from Imperial restrictions byexcluding the operation of the Colonial Laws Validity Actand thereby the repugnancy doctrineand the doctrine of extraterritoriality.



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Unders 4, the British Parliament could still legislate for Australia, but only with the request andconsent of the Commonwealth Parliament.

The Australia Act

TheAustralia Act 1986(Cth) was assented to on 4 December 1985 and came into operation on 3March 1986 when it was proclaimed by Elizabeth II in Canberra. This Act bought an end to thecontinued application and paramountcy of Imperial laws in the Australian States. The Actalso removed the ability of British Parliament to legislate for Australia (s 1), removed thedoctrine of extraterritoriality (s 2) and removed the doctrine of repugnancy (s 3) insofar as eachapplied to the States.

Sue v Hill(1999) 199 CLR 462

Heather Hill stood for the Senate in Queensland in the 1998 federal election, but was disqualifiedbecause she had not renounced her UK citizenship. Hill resisted the argument that the UK is a

foreign power on the basis that so long as the UK retained any residual influence uponlegislative, executive, or judicial processes in Australia, they cannot be foreign to Australia.Gleeson CJ, Gummow and Hayne JJ responded by showing that since the Australia Act, the UKretains no such influence, on either an executive, legislative (s 1 ofAustralia Act), or judiciallevel (Termination of appeals to Privy Council).

Popular Sovereignty

Sir Owen Dixon, The Law and the Constitution (1935) 51 Law Quarterly Review 590

It [The Constitution] is not a supreme law purporting to obtain its force from the direct

expression of a peoples inherent authority to constitute a government. It is a statute of theBritish Parliament enacted in the exercise of its legal sovereignty over the law everywhere in theKings Dominions.

As the Australia Acthas diminished, if not extinguished the continuing legal relevance of theImperial legislation, the opening recital Whereas the people has assumed a deepersignificance. It may also supply a persuasive explanation of why the Constitution is binding

Geoffrey Lindell, Why is Australias Constitution Binding? The Reasons in 1900 and Now,and the Effect of Independent (1986) 16Federal Law Review 29

The legal status of the Constitution was derived from the fact it was contained in an enactment ofthe British Parliament. The political legitimacy or authority was based on the words contained inthe preamble which refer to the people of the Australian colonies having agreed to unite in aFederal Commonwealth.

Since the 1900s, several important changes have occurred: The development of Australiasindependence in the eyes of the international community; the inability of the British Parliamentto legislate for Australia; and the ability of both Commonwealth and State Parliaments to alter orrepeal British statutes of any kind other than the Constitution and Australia Acts. the



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Constitution now enjoys its character as a higher law because of the will and authority of thepeople.

Even before the Australia Act, Murphy J stated in Bistricic v Rokov that the Constitution wasbinding because of its continuing acceptance by the Australian people.

George Williams, The High Court and the People In Hugh Selby (ed), Tomorrows Law(Federation Press, 1995), 271

Problems with Justice Deanes assertion in Theophanous v Herald & Weekly Times Ltd(1994) 182 CLR 104 that the present legitimacy of the Constitution lies exclusively in theoriginal adoption (by referenda) and subsequent maintenance (by acquiescence) of itsprovision by the people:

o Approval by referenda Only 52% of persons eligible to vote at the referenda

did so, with only narrow support in NSW (56%/52% 1899/1898) and Queensland(55% in 1899). On top of this, the Aboriginal people were not granted voting rightsuntil 1965, and women were only able to vote in SA and WA. Not one of the drafting

delegates was female, or of Aboriginal backgroundo Approval by acquiescence Australians do not go about deciding whether to

continue to acquiesce to the existing constitutional structure. That they are reluctantto amend the Constitution does not mean that they continue to support it. Indeed, howcan the populace acquiesce to something they are largely ignorant of? (Civics ExpertGroup report on citizenship in 1994)

Helen Irving, The People and their Conventions In Cooper, M and Williams, G (eds), Power,Parliament and the People (Federation Press, 1997), 113

Despite the low number of votes actually cast for the new constitution, Federation can still be

regarded as a popular process. We dont know the reasons why people did not vote. It may bedue to rejection, alienation from the processes, complaisance, or even approval and acceptance.

Week 5 Indigenous Peoples and the Question of Sovereignty

Orthodox sources of law include statute, common law, international law, and traditionallaw or custom.

USA, Canada and NZ have recognised indigenous peoples as domestic dependantnations.

Mabo (No 2) and the Wik Case took care to avoid undermining the skeleton of theConstitution, recognising the customary laws and entitlements of indigenous peoples only

to the extent that the norms of the constitutionally established nation allowed suchrecognition.

Common law recognition of native title is not equal to indigenous sovereignty.

Voting Rights and the Constitution

Prior to Federation, Indigenous Australians could vote except in Queensland (s6 ofElections Act1885) and Western Australia (s12 of the Constitution Amendment Act 1893).



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Section 4 of the Commonwealth Franchise Act1902 (Cth) specifically denied the voting rights ofaboriginal native[s] of Australiaunless so entitled unders 41 of the Constitution. However, s41 had been read down to a transitional provision, and as such, did little by way of granting anyrights.

Further, in 1912 Sir Robert Garran amended the Electoral Handbooksuch that Aborigines whocouldhave voted unders 41 that were not on the roll were denied the right to vote.

It was not until 1962 that the Commonwealth Electoral Act1918 (Cth) was amended to extenduniversal adult suffrage to Aboriginal people. However, it was not until 1983 that Indigenous people gained equality of voting rights as the Commonwealth Parliamentary Committeerecommended that compulsory enrolment should apply to all Australians. Aboriginal nativeswere no longer referred to in Commonwealth electoral legislation.

Mabo v Queensland (No 2) (1992) 175 CLR 1

Brennan J: Terra Nullius is a legal fiction which has no place in the contemporary law of this

country

While it has been accepted that Australia was not settled, the rules applicable to aconquered land have been adopted

Impact of international law The common law does not necessarily conform withinternational law, but international law is a legitimate and important influence on thedevelopment of the common law, especially when international law declares theexistence of universal human rights

Sovereignty does not grant full beneficial ownership of land The radical titlewhich is acquired with the acquisition of sovereignty cannot itself be taken to

confer an absolute beneficial title to the occupied land Native title can be extinguished through positive acts Native title could be

extinguished without compensation by clear and unambiguous legislative action

Native title may be awarded Maintenance of the connexion with the land,observance of customs based on traditions of that clanthe traditional communitytitle of that clan can be said to remain in existence. Must remain as an identifiablecommunityHowever, when the tide of history has washed away any realacknowledgment of traditional law and any real observance of traditional customs,the foundation of native title has disappeared

Minority held that:

Deane and Gaudron JJ: Compensation must be achievable for Aborigines for priordispossession (s51(xxxi) of the Constitution)

Toohey J: Fiduciary duty is owed by the government to Indigenous people

Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606

Olney J: [B]efore the end of the 19 th century the ancestors through whom the claimants claimtitle had ceased to occupy their traditional lands in accordance with their traditional laws andcustoms. The tide of history has indeed washed away any real acknowledgement of their



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traditional laws and any real observance of their traditional customs.

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422

Appeal to the High Court dismissed 5:2.

The only native title rights which the new sovereign order recognised were those thatexisted at the time of change in sovereignty. Whilst these rights survived, any newarising rights or interests would find their roots in the legal order of the new sovereignpower.

It must be shown that the society, under whose laws and customs the native title rightsare said to be possessed, has continued to exist throughout the period

The findings we have identified are...that the forebears of the claimants have ceased tooccupy their lands in accordance with traditional laws and customs, and that there was noevidence that they continued to acknowledge and observe those laws and customs. Uponthese findings, the claimants must fail.

Sovereignty and Self-Determination

Coe v Commonwealth (No 2) (1993) 118 ALR 193

Mason CJ sitting alone. Wiradjuri claimed that Aboriginal sovereignty existed and in act ofsettling, the Commonwealth had committed genocide.

Mason CJ rejected such an argument because they were inconsistent with the precedent set byMabo (No 2) regarding sovereignty. Sovereignty cannot be challenged in a municipal court.

Walker v NSW(1994) 182 CLR 45

Mason CJ sitting alone. Bandjalung people claimed NSW criminal law did not apply to thembecause NSW had not received consent from the people to try Walker; seeking recognition ofIndigenous customary law.

Even if it be assumed that the customary criminal law of Aboriginal people survived Britishsettlement, it was extinguished by the passage ofcriminal statutes of general application

Erica-lrene Daes, Some Considerations on the Right of Indigenous Peoples to Self-Determination (1993) 3 Transitional Law and contemporary Problems 1

The Declaration of the Granting of Independence to Colonial Countries and Peoples (Containedin an adopted General Assembly resolution) expressly provides that all peoples have the right toself-determination; by virtue of that right they freely determine their political status and freelypursue their economic, social and cultural development.

External self-determination the act by which a people determines its future internationalstatus and liberates itself from alien rule may be distinguished from internal self-determination, which includes the selection of both the desired system of government and thesubstantive nature (democratic, socialist, or other) of the regime selected.



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Larissa Behrendt, Achieving Social Justice: Indigenous Rights and Australias Future(Federation Press, 2003)

Sovereignty does not necessarily mean the creation of a new nation. It can refer torepresentative government, recognition of cultural distinctiveness and freedom of the individual.

Council for Aboriginal Reconciliation,Recognising Aboriginal and Torres Strait Islander Rights(AGPS, 2000)

In international law, self-determination is the right of all peoples to freely determine theirpolitical status and to pursue their own economic, social and cultural development

Notes:

The large grey area left in discussing self-determination and sovereignty leaves muchroom to maneuver, and many avenues to explore

There is nothing automatic in the creation of a separate nation state. It is highly

circumstantial. Sovereignty is a starting point, not an end point. Although anextreme case will allow for the separation of a nation case, this argument must betempered by pragmatism. Still, there is much leeway to have a coexisting degree ofsovereignty within the current legal framework. If changes are made, enshrinedconstitutional changes are more desirable

Week 6 Voting and Election to the Federal Parliament

Sections 7 and 24 of the Constitution require that the members of the Senate and theHouse of Representatives be directly chosen by the people.

It was held by the court inR v Pearson; Ex parte Sipka (1983) 152 CLR 254 that s 41

does not confer an express right to vote. However, ss 7 & 24 can be argued to grantan implied right to vote, as held inRoach v Electoral Commission [2007] HCA 43.

Commonwealth Electoral Act 1918 (Cth) sets out the criteria for voting and elections.

Compulsory to vote since 1924 (s 245(1) Commonwealth Electoral Act 1918). Failureto vote if eligible without sufficient reason results in a fine of $20, or fine of $50 ifdealt with by a court.

Commonwealth Electoral Act 1918 (Cth)

One can vote if:

Section 93(1): Can vote if over 18 and an Australian citizen or on the electoral roll ora non-citizen who would have been a British subject prior to 26/01/1984

Circumstances where one is prohibited from voting:

Section 93(7): Those who are holders of a temporary visa or an unlawful non-citizenunder the Migration Act 1958

Section 93(8)(a): Of unsound mind

Section 93(8)(b): Serving a sentence of 3 years or longer

Section 93(8)(c): Convicted of treason or treachery and has not been pardoned

Sections 94 and 94A: Living overseas with no intention of returning for 6 years



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Langer v Commonwealth (1996) 186 CLR 302

Section 240 of the Commonwealth Electoral Actrequires sequential numbering of candidates ona ballot sheet. Section 329A stipulates that it is an offence to encourage persons to fill in ballotsother than in accordance with s 240.

Langer argued s 329A was invalid as it was unconstitutional given that it infringed the impliedconstitutional freedom of political communication. Furthermore, Langer argued that s 240 as it isinconsistent with s 24 of the Constitution insofar that representatives be directly chosen by thepeople, as the people, if choosing freely, must be free not to choose by not numbering everysquare.

All six judges held that s 240 was valid.Majority of 5:1, Dawson J dissenting, held that s 329A was also valid.

Brennan CJ: The power to enact s 329A in order to protect what the Parliament intends to be

the primary method of choosing members of the House of RepresentativesFurthermore, s 24 of the Constitution does not limit the parliaments selection of the method ofvoting by which a voters choice is made known so long as the method allows a free choice.

Dawson J (dissenting):The choice must be genuine and informed. Section 329A suppresses theinformation about voting alternatives necessary to make an informed choice. Therefore, it is nota free choice.

After the 1996 Election, s 240 was amended to include the words consecutive numbers, withoutthe repetition of any number and s 329A was repealed in the Electoral and ReferendumAmendment Act1988 (Cth).

Right to Vote

King v Jones (1972) 128 CLR 221

Susan King argued that she was an adult person, relying on the Age of Majority (Reduction)Act 1970 (SA). As an adult person she argued that she was entitled by s 41 to exercise votingrights in federal elections equivalent to those she had acquired in SA

The court unanimously held that the constitutional use of the word adult in s 41 was held to befixed with the meaning it had in 1901.

Obiter: Section 41 only applied to people in 1901, thus King received her State franchise 70years too late to use s 41 in order to gain a Federal franchise

Stephen J viewed s 41 as an entitlement to the Federal franchise for those State-enfranchisedelectors who fall within its terms by means of a constitutional guarantee

Menzies J held more specifically that s 41 is not a provision to make temporary arrangements forthe period between the establishment of the Constitution and the making of Commonwealth



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laws. Rather, it applies to a person, who, in 1901, had or who, in the future, acquires particularvoting rights by the laws of a State.

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

Despite the ruling in King, the court held in favour of the transitional view. In a 6:1 majority,

Murphy J dissenting.

Brennan, Deane and Dawson JJ:

That definition of the constitutional franchise was to yield to a statutory franchisewhen the parliament, empowered by s 51(xxxvi), defined the qualification of electors ofmembers of the parliament.

Voting at elections of the Commonwealth Parliament cannot be prevented by anylaw of the Commonwealth but s 41 does not in terms confer a right to vote

After enactment ofCommonwealth Franchise Act1902 (Cth) no person could acquirethe right to vote at federal elections save in accordance with its terms. It follows that thepractical effect of s 41 is spent. The only application of s 41 was when it was first

enacted; it was an interim measure

Quick and Garran similarly suggested in 1901 that the section is merely a transitional provisiondesigned to preserve the voting rights of SA women.

Murphy J (dissent):

Section 41 is one of the few guarantees of the rights of persons in the Australianconstitution. It should be given the purposive interpretation which accords with its plainwords, with its context of other provisions of unlimited duration, and its contrast withtransitional provisions. Its words are not transitional. Guarantees of personal rightsshould not be read narrowly and the Constitutional is not to be mocked.

Eligibility for Election

Section 163 of the Commonwealth Electoral Act 1918 (Cth) specifies who is eligible to beelected to the federal parliament:

Section 163(1)o (a) 18 years or over

o (b) Australian citizen

o (c) is either:

(i) an elector entitled to vote at a House of Representatives election

(ii) a person qualified to become such an elector

Disqualifying factors (Constitution)

Section 43: A member of either house of the parliament shall beincapable of being chosen or of sitting as a member of the other house

Section 44: Any person who:o (i) Is under any acknowledgement of allegiance, obedience,

or adherence to a foreign power, or is a subject or a citizen or entitled to therights or privileges of a subject or citizen of a foreign power: or



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o (ii) Is attainted of treason, or has been convicted and is

under sentence, or subject to be sentenced, for any offence punishable under thelaw of the Commonwealth or of a State by imprisonment for one year or longer:oro (iii) Is an undischarged bankrupt or insolvent: or

o (iv) Holds any office of profit under the Crown, or any

pension payable during the pleasure of the Crown out of any of the revenues ofthe Commonwealth: or This subsection does not exclude Ministers of State, pensioners, persons in the

army or navy

o (v) Has any direct or indirect pecuniary interest in any

agreement with the Public Service of the Commonwealth otherwise than as amember and in common with the other members of an incorporated companyconsisting of more than twenty-five persons

Note: The exclusion of permanent officers of the executive government from the House wasrecognition of the incompatibility of a person at the one time holding such an office and being a

member of the house. There are three factors that give rise to that incompatibility:(1) performance by a public servant of his/her public service duties would impair his/her

capacity to attend to the duties of a member of the House(2) risk that a public servant would share the political opinions of the minister of his/her

department and would not being to bear as a member of the House a free and independentjudgment

(3) membership of the House would detract from the performance of the relevant publicservice duty

Re Webster(1975) 132 CLR 270

Websters family-owned company had, at various times in 1973 and 1974,submitted quotations and tenders, accepted offers and entered into contracts for thesupply of timber to Commonwealth departments.

Issue: Whethers44(v) of the Constitution precluded his lawful seat as a senatorgiven the existence of a direct or indirect pecuniary interest in any agreement with thePublic Service of the Commonwealth within the meaning of the Constitution.

Court: Section 44(v) has been replaced, its wording was obscure and anachronistic(out of date; belonging to another time period), and that its application should thereforebe narrowly confined

Since the contracts between Websters company and the Commonwealthwere not ongoing, there was no pecuniary interest on either side and therefore

Webster was not disqualified from his seat in the Senate.

This decision was controversial as Barwick CJ chose not to refer the case to a fullbench, as well as being a former Liberal party politician

As a direct result of this case, the Common Informer (ParliamentaryDisqualifications) Act 1975 (Cth) was enacted, replacing the 100/day penalty outlined ins 46 of Constitution with $200/day.

In re Wood(1988) 167 CLR 145



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Robert Wood was elected as a NSW senator

The High Court held that Wood had not been validly elected into the NSW Senateas he was a British citizen

Section 163(1)(b) Commonwealth Electoral Actrequired any person wishing to beelected must be an Australian Citizen

The issue ofs 44(i) of the Constitution must be left for another day

Sykes v Cleary (1992) 176 CLR 77

Cleary, an independent, was elected to the seat of Wills. The Liberal Partycandidate was Delacretaz and the Labor Party candidate was Kardamitsis

Cleary had been a secondary school teacher employed by the VictorianEducation Department under the Teaching Service Act1981 (Vic). He had been on leavewithout pay for almost two years but he did not resign from his position in theteaching services until after his nomination and after the election day. He resignedbefore the result of the election was announced

The High Court unanimously held that Cleary was the holder of an office ofprofit under the Crown within the meaning ofs 44(iv) and, by 6:1, Deane J dissenting,that he was incapable of being chosen or of sitting as a member of the House ofRepresentatives

The court held that the taking of leave without pay by a person who holds anoffice of profit under the Crown does not alter the character of the office which he/sheholds

The majority held that being chosen in s 44 refers to the entire process ofbeing chosen, of which nomination is an essential part. Thus Cleary could only haveavoided being caught bys 44(i) by resigning before lodging his nomination

The other candidates (Delacretaz and Kardamitsis) were also disqualified sincethey had not taken every possible step to divest themselves (A 5:2 majority, Deane andGaudron JJ dissenting, held that this must be done both within the Australian frameworkof law and within the framework of law within their home countries. Gaudron J statedonly the domestic framework of law was relevant) offoreign citizenship, they remainedentitled to the rights or privileges of a subject or a citizen of a foreign power within themeaning of s 44(i). They were therefore incapable of being chosen or of sitting asmembers of the House of Representatives

Sue v Hill(1999) 199 CLR 462

Ms Heather Hill of the One Nation Party was elected to the Queensland Senate. Shewas a British and Australian Citizen. After election, she went through the properprocedures (Payment or $135 and relinquishment of British passport) to further renounceher British Citizenship

Unders 44(i) of the Commonwealth Electoral Act1918 (Cth) it was determined thatthe UK constituted a foreign power and thus Hills election was invalid

Gleeson CJ, Gummow and Hayne JJ: The circumstances that the same monarch



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exercises regal functions under the constitutional arrangements in the United Kingdomand Australia does not deny the proposition that the United Kingdom is a foreign powerwithin the meaning ofs 44(i) of the Constitution.

Section 1 of theAustralia Act 1986(Cth), in terminating the power of the Parliamentof UK to legislate for Australia, meant that at least since 1986 with respect to theexercise of legislative power, the UK is to be classified as a foreign power.

Roach v Electoral Commission [2007] HCA 43

First time the court had been asked openly to rule on whether or not the Constitutiongave an express right to vote rather than merely providing dicta

There are parts of a right to vote that is entrenched in the Constitution, that Parliamentcannot remove

Background: Section 93 of the Commonwealth Electoral Act 1918 (Cth) states thatthose with a prison term of 3 years or more have no right to vote. Parliament passed apackage of electoral changes, such that no prisoners serving a sentence had a right tovote

Issue: Can Parliament issue such a blanket ban on the right to vote?

The High Court held that, at the very least, there was some kind of constitutionalrequirement that people be allowed to vote, subject to limitations

Sections 7 and 24 state that the government shall be directly chosen by the people ofthe Commonwealth. The Court discerned that the words directly chosen carry animplication that this is a system of representative government. These sections are aconstitutional protection of the right to vote. The Gleeson court demonstrates a greatreluctance to frame notions of the Constitution in terms of international rights, providinga conservative framing. The court was at pains to minimise controversies surrounding itby taking care to distinguish the system in Australia from the international framework

A blanket ban loses the rational connection, the proportionality of achieving universalsuffrage, and is repugnant to any notions of respectable limitations

Most of the people in the prison system are on remand. There must be a presumptionof innocence. If a blanket ban was applied, the law becomes arbitrary and loses itsconnection with the sense of community involvement. Many factors such as the locationof ones home impact adversely and would result in one being denied the right to vote if ablanket ban was laid down. The proportionality of ones wrong is thus violated

Week 7 State Constitutions

State Legislative Power

It is sometimes suggested that the formula peace, welfare [order] and good government [For NSW, Constitution Act 1902 (NSW)] might be judicially construed as a limitation onparliamentary sovereignty (BLF Case by Street CJ).

Building Construction Employees and Builders Labourers Federation of New South Wales v

Minister for Industrial Relations (BLF Case) (1986) 7 NSWLR 372



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A union that was in the process of being deregistered appealed to the Supreme Courtof NSW. Its case was dismissed by Lee J. Before the appeal could progress, the NSWParliament passed the Builders Labourers Federation (Special Provisions) Act 1986(NSW) to resolve any doubts on the appeal

Argument: The Act was invalid because s 5 of the NSW Constitution- was contrary tothe purpose ofpeace, welfare, and good government. This argument failed, as did a

separate argument that the Act was invalid because it breached a doctrine of separationof powers in theNSW Constitution. See Kirby P below

Street CJ: Accepting restrictions: It has plenary powers. But they are circumscribedor limited by the requirement of the peace, welfare, and good government of NewSouth Wales. The limit may well be wide and extensive. Ultimately, however, it is abinding limit. Laws inimical to, or which do not serve, the peace, welfare, and goodgovernment of our parliamentary democracy, perceived in the sense I have previouslyindicated, will be struck down by the courts as unconstitutional

Kirby P (dissenting): Rejecting restrictions: Those words have hitherto been seen asan ample grant of power in all cases whatsoever

Kirby P also rejects the notion of deep rights, arguing that despite lingering judicialtemptation, respect must be given to the desirable notion of elected democracy.

In regards to rights, Kirby P proclaims The chief protection lies in the democraticnature of our Parliamentary institutions.

Union Steamship Co of Australia Pty Ltd v King(1988) 166 CLR 1

The ship was registered in NSW. The respondent claimed damages from the owner ofthe ship depending on a particular piece of legislation. The company argued that this Actwas not for the peace, welfare and good government because of the insufficientterritorial connection

This argument was rejected by the court, overruling the decision in theBLF Case. The Court: The power to make laws for the peace, welfare, and goodgovernment of a territory is indistinguishable from the power to make laws for thepeace, order and good government of a territory. Such a power is a plenary powerand it was so recognized, even in an era when emphasis was given to the character ofcolonial legislatures as subordinate law-making bodies

Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399

The High Court still left a method on the table so that they may review constitutional change,thereby allowing them to step in for extreme cases.

Kirby J stood by his previous decision in BLF that the states had a plenary power withoutlimitations. However, his Honour acknowledged that extreme laws might fall outside theconstitutional presupposition, i.e. may not be a law of the kind envisaged by the Constitution.

Jeffrey Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Clarendon Press,1999)



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Argument: We cannot simply rely on courts to protect us through rights so deeply rooted in thedemocratic system from any abuse by Parliament. What is to say that judges are not as morallyinfallible as Parliamentarians? A certain measure of trust should be placed with Parliament lestthe power given to them be made redundant.

If judges rather than Parliament had this ultimate authority, we would be in the samepredicament. Their decisions would have to be accepted by people who rightfully or

wrongfully, believed them to be unjust. And because judges, like legislators, are morallyfallible, we would still face the danger of occasional, possibly egregious injustice

Manner and Form Requirements

Manner and form requirements are restrictive procedures for state constitutions. They restrictthe legislative powers of the Parliament by requiring that laws on certain topics may only beenacted by a special and more difficult procedure. In this way, it is possible for a Parliament torestrain the powers of its successors.

Theproviso to s 5 of the Colonial Laws Validity Act 1865 (Imp)(provided that such Laws shall

have been passed in such Manner and Form as may from Time to Time be required), as wellas the proviso re-enacted in s 6 of the Australia Act 1986 (Cth), provided a basis for the thisargument of binding successive Parliaments. Further, the Australia Act 1986 (Cth) states that ifthe requirements arent met then the legislation shall be of no force or effect.

Constitution Act 1902 (NSW)

Section 7A of the Constitution Act 1902 (NSW) was introduced as a means of forestalling anyfuture attempts made by a government to abolish the Legislative Council . Section 7A(1) issaid to entrench the status of the Legislative Council through the need for a referendum.Subsection 6entrencheds 7A(1) making it doubly entrenched.

Attorney-General (NSW) v Trethowan (1931) 44 CLR 395

High Court ruled 3:2, Duffy CJ and McTiernan J dissenting, that neither Bill couldbe presented for the Royal Assent without referendum

Dixon J: [Section 5 of the Colonial Laws Validity Act] both confers power anddescribes the conditions to be observed in its exercise. It authorizes a representativelegislature to make laws respecting its own constitution, its own powers and its ownprocedureThe power to make laws respecting its own procedure enables it to prescriberules which have the force of law for its own conduct. Laws which relate to its ownconstitution and procedures must govern the legislature in the exercise of its powers,

including the exercise of its power to repeal those very laws McTiernan J argued thats 7A could not operate to impose a referendum requirement.He insisted that the Parliament could not cut down its own powers in a way that wouldbind future Parliaments. It is in substance a law depriving the Legislature of power

Findings of the court: If a manner and form provision is not doubly entrenched, aParliament is free to legislate (explicitly or through implied rejection) first to remove theentrenchment and second to amend the protected provision



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Week 8 The Executive I

Prerogative Power

The powers of the executive are defined and restrained by s 61 of the Constitution. Certainpowers are now recognised by the common law, and to some degree, seen as incorporated into s

61.

Sir John Comyns,A Digest of the Laws of England(4th ed by Samuel Rose, A Strahan, 1800) vol6,sub voce Praerogative

Prerogative (in the 1800s) was divided up into four main fields:1. The Kings Prerogative2. Prerogative as to Foreign Nations3. Prerogatives in respect of the Kings own subjects, in Time of War4. Prerogatives, which regard Time of Peace

Because the prerogative powers depend on the common law, they are subject tomodification by statute. A statutory regime may regulate the exercise of a prerogative power,stripping it of discretionary elements and imposing criteria and procedures Alternatively, astatutory regime may extinguish the prerogative, so that what was formerly an inherent power ofgovernment now depends wholly on statutes.

An Australian Republic: The Options Republic Advisory Committee (AGPS, The Report of theRepublic Advisory Committee, 1993), vol 1

According to HV Evatt, the prerogatives of the Crown fall under three categories:

executive prerogatives under which the monarch had power to do various acts, e.g.

execute treaties, declare war, coin money immunities and preferences such as the priority of Crown debts over those owed to

other creditors, immunity from the ordinary process of the courts

property rights such as the entitlement to royal metals, royal fish, treasure trove, etc.

Attorney-General v De Keysers Royal Hotel Ltd[1920] AC 508

During World War I, the UK government requisitioned a hotel for use as theheadquarters of the Royal Flying Corps. Although explicitly made pursuant toregulations under the Defence of the Realm Consolidation Act1914 (UK), which provided for compensation, when the hotel owners claimed compensation, the

government asserted that it had acted in the exercise of a prerogative power to takeproperty without compensation

The House of Lords held that the legislative scheme governed the matter, so thatcompensation was payable

However, as to the relation between the legislative power and the prerogativepower, no two Lords took quite the same view

Ruddock v Vardalis (Tampa Case) (2001) 183 ALR 1



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North J of the Federal Court held on 11 September 2001 that the rescuees, as hecalled them, had been detained without lawful authority (Victorian Council for CivilLiberties Inc v Minister for Immigration and Multicultural Affairs (2001) 182 ALR 617)

He ordered that they be released onto the mainland of Australia after which theywould again have been detained, but this time with the opportunity to make a visa

application under the Migration Act1958 (Cth) The first step in his reasoning involved a finding that the handling of therescuees aboard the Tampa had amounted to detention, since the government hadshown itself committed to retaining control of the fate of the rescuees in all respects

The second step in reasoning involved a rejection of the governmentsargument that the expulsion of non-residents from Australian waters is a valid

exercise of prerogative powers. Two arguments made by North J were:o It was doubtful whether the supposed prerogative had ever existed

o Even if it had existed, whatever the scope of the prerogative in this respect, it had

now been wholly supplanted by the statutory scheme of the Migration Act1958 (Cth)On appeal to a full court, this decision was overturned by a 2:1 majority, Black CJ dissenting.

French J: The executive power can be abrogated, modified or regulated by laws of theCommonwealth. Its common law ancestry, the royal prerogative, was similarly subject toabrogation, modification or regulation by statute.

There is no place then for any doctrine that a law made on a particularsubject matter is presumed to displace or regulate the operation of the executive

power in respect of that subject matter. Appears to suggest a more explicit abrogationin order to take effect.

The power to determine who may come into Australia is so central to itssovereignty that it is not to be supposed that the government of the nation would lackunder the power to prevent people not part of the Australia community from entering.There is a clear prerogative power to regulate.

Migration Actdoes not impliedly abrogate the prerogative. The Migration Actconfers power to Commonwealth government and control entry, it does not take poweraway and abrogate the power to prevent entry

Black CJ (dissenting):

The power to expel people entering Australia illegally derives only from legislation, andnot from powers otherwise exercisable by the executive.

There is an argument that a long period of disuse extinguishes the prerogative,because it would be illusory to say that parliament has, in such circumstances, made achoice to leave the prerogative in the Crowns hands.

Review of the Migration Act shows that it provides for a very comprehensive

regime relating to the entry into, and presence in, Australia of aliens, and the departureor deportation from Australia of aliens (Long Title)

Effect of decision:

Foreclosed by theBorder Protection (Validation and Enforcement Powers) Act2001(Cth), an Act which retrospectively authorised the detention of the rescues.



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Geoffrey Lindell, Responsible Government In Finn, PD (ed),Essays on Law and Government:Principles and Values (Law Book Co, 1995) vol 1, 75

Professor Parkers definition of the English system of responsible government, or Westminstersyndrome, in Australia

1. Ministers have to be members of parliament s 64 of the Constitution2. Ministers require a majority in the popular house of Parliament to hold office3. The Houses of the parliament (presumably the popular Houses) can be dissolvedbefore the expiration of their maximum terms4. Public servants must have different tenures from their Ministers

Other hallmarks of a responsible government include:1. The conventions that bind the Governor-General to act on Ministerial advice2. Cabinet solidarity (it is rare to have a Cabinet consisting of members from bothsides of Parliament)3. Cabinet secrecy4. The notion of Ministers being individually responsible to the Parliament. This

concept operates, if at all, only in a truncated form5. Collective ministerial responsibility

Control of the Executive Responsible Government

Hugh Emy and Owen Hughes,Australian Politics: Realities in Conflict(Macmillan, 2nd ed 1991)

The major components of responsible government are:

Executive authority is vested in a ministry whose members in Australia must bemembers of Parliament, to whom they are individually and collectively responsible

Executive authority is bifurcated between the ministry and an appointed head of state,

the Governor-General, acting on advice tendered by the Prime Minister on behalf of theministry. Final political decisions lie with the Cabinet, chaired by the Prime Minister andwith deliberations conducted in secret

The Governor-General acts as the final component in the legislative process, andpossess reserve powers to ensure the government does not breach the terms of theConstitution or undermine the principles of legitimacy from which its authority to governderives

The executive may be dismissed by losing an election or by losing a vote ofconfidence in the lower House. Policies are open to debate and open to scrutiny fromboth Houses

Executive is supported and advised by a bureaucracy formed by members appointed

and promoted on the basis of merit by independent selection procedures, enjoyingsecurity of tenure and anonymity

Concept of a direct chain of accountability running from officials to a minister and soto Cabinet, to Parliament, and the Cabinet to the electorate

Issues with this in Australia:

Accountability Ministers do not necessarily possess control over their departmentsand public servants



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Control Can Parliament call ministers to account or scrutinise the executive, whenAustralias party system means that the federal Parliament is usually controlled by thesame party forming the executive

Senates power to block supply under s 53

Governor-Generals reserve powers and the extent of discretion

Ken Turner, Parliament In R Smith (ed),Politics in Australia (Allen and Unwin, 2nd ed 1993),78

By convention, the government will resign if it no longer has the confidence in the lowerHouse (Vote of no confidence)

Where a Parliament has an upper house in which the government does not have a majority,there is greater scrutiny of government action

Egan v Willis (1998) 195 CLR 424

Treasurer Michael Egan was called upon by the legislative council to tabledocuments, but refused to do so since the cabinet had earlier agreed that Ministers shoulddecline to comply with such orders

When Egan refused to table the documents, the Legislative Council charged himwith contempt and he was escorted out by the Usher of the Black Rod

Egan brought an action seeking declarations he was not in contempt and that hisremoval into the street was a trespass, since he had been removed beyond theparliamentary precincts.

The NSW Court of Appeal dismissed the claim that the resolutions were invalid,but held that a trespass had been committed.

Egan appealed to the High Court. The issue before the High Court was limited to

whether pars 2 and 3(a) of the resolution of 2 May 1996 were within the powers of theLegislative Council under the Constitution Act1902 (NSW)

The Court dismissed the appealGaudron, Gummow and Hayne JJ:

What is reasonably necessary at any time for the proper exercise of the functions ofthe Legislative Council is to be understood by reference to what, at the time in question,have come to be conventional practices established and maintained by the LegislativeCouncil

On no view of the authorities did the action taken in passing and implementingpars 2 and 3(a) of the resolution go beyond the boundary of what is permissible

McHugh J: The power to adjudge the appellant guilty of contempt of the Council and to suspend

him for failing to produce the papers inheres in the Council by reason of its being part of theParliament of NSW.

Law: Parliament has a capacity to call the Executive into account. One aspect ofresponsible government is that the Executive is answerable to demands for the demand ofdocuments by Parliament

Egan v Chadwick (1999) 46 NSWLR 563



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In resolutions of 24 and 26 November 1998, the Legislative Council againrequired Egan to table certain documents or deliver them to the Clerk. Again Eganrefused, this time claiming that the documents were protected by legal professionalprivilege or lacking this, public interest immunity

Again, he was found to be guilty of contempt and was escorted out by the Usherof the Black Rod

Egan brought an action on the basis that his removal from the House constitutedan assault, and argued that he could not be required to table documents protected bypublic interest immunity and legal professional privilege

Spigelmen CJ:

This court must decide what recognition should be given to a claim for publicinterest immunity in the context of determining the scope of a common law power to callfor documents that satisfy the test of reasonably necessary for the performance bythe Legislative Council of its constitutional functions. This requires a balancing ofconflicting public interests. The immunity is not absolute. (Priestley JA added that thereis no legal right to absolute secrecy is given to any group of men and women ingovernment. As a minimum, the courts can compel production of the documents)

The high constitutional functions of the Legislative Council encompass bothlegislating and the enforcement of the accountability of the Executive. Performance ofthese functions may require access to information the disclosure of which may harmpublic interest

When the issue of access to Cabinet documents has arisen in the context of claimsfor public interest immunity in the course of litigation, the courts have recognised thesignificance of Cabinet confidentiality as an application of the principle of collectiveresponsibility

However, a distinction has been made between documents which disclose theactual deliberations within Cabinet and those which are described as CabinetDocuments

Held by the court: The power should, at least, be restricted to documents which donot, directly or indirectly, reveal the deliberations of Cabinet. Any document that revealscabinet discussions are is sacrosanct

The claim to legal professional privilege must yield to the accountability principle

Week 9 The Executive II

Constitutional Conventions

A V Dicey, Introduction to the Study of Law of the Constitution (Macmillan, 1st ed 1885, 10th

ed 1999)

Laws are rules that are enforceable but the courts

Conventions are regulatory in nature, but not enforceable by the courts

Laws of the Constitution are rules that constitute constitutional law and areenforceable by the courts

Conventions of the Constitution are maxims or practices which, while regulating theordinary conduct of the Crown, Ministers and of other persons under the Constitution, arenot truly laws insofar as failing to be enforceable by the courts



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Re Resolution to Amend the Constitution [1981] 1 SCR 753; (1981) 125 DLR (3d) 1

The legal status of conventions was called into question before the Supreme Court ofCanada

In 1981, both Houses of the Canadian Parliament, against the wishes of several

Canadian provinces, adopted a resolution requesting British Parliament to pass legislationamending the Canadian Constitution

In a 6:3 majority, the Supreme Court held that a constitutional conventionexisted that stated that Parliament would not request amendments to the Canadian

Constitution affecting the powers, rights or privileges of the provinces without first

obtaining a substantial degree of provincial consent

In a 7:2 majority, the Court also held that the convention did not impose a legalrequirement

Colin Hughes, Conventions: Dicey Revisited in Patrick Weller and Dean Jaensch (eds),Responsible Government in Australia (Drummond Publishing, 1980)

Constitutional conventions provide the flesh which clothes the dry bones of the law;they make a legal constitution work; they keep it in touch with the growth of ideas.

Marshall and Moodie: The crucial questions must always be whether or not aparticular class of action is likely to destroy respect for the established distribution ofauthority and whether or not it is likely to maintain respect for the constitutional systemby changing (or sustaining) the distribution of authority.

The Governor-General

Section 2 of the Constitution provides that the Governor-General is the Queens representative inthe Commonwealth and that he or she shall have and may exercise in the Commonwealthduring the Queens pleasure, but subject to this Constitution, such powers and functions of theQueens as Her Majesty may be pleased to assign to him.

Powers of the Governor-General include:

Section 5 Dissolve, prorogue and summon Parliament

Section 32 Issue writes for a general election of the House of Representatives

Section 57 Dissolve both Houses of Parliament

Section 58 Grant or withhold royal assent for Bills passed by the Parliament, and, ifhe or she wishes, return a Bill to the Parliament with proposed amendments

Section 61 Exercise the executive power of the Commonwealth Section 64 Appoint Ministers of State

Section 68 Act as Commander-in-Chief of the Commonwealth armed forces

Republic Advisory Committee,An Australian Republic: The Options (AGPS, The Report of theRepublic Advisory Committee, 1993), vol 2

The most important convention is that (subject to limited exceptions in relation to the reservepowers) the Governor-General acts only on the advice of responsible Ministers. If Ministers



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persist in their advice, the Governor-General is bound by convention to follow it. Thisconvention ensures that decisions of government are controlled by Ministers who are responsibleto the popularly elected lower House of Parliament

There are four powers generally accepted as reserve powers:

Appointing the Prime Minister

Dismissing the Prime Minister A recourse of a last resort, an ultimate weaponwhich is liable to destroy its user. There are two situations in which it seems to beaccepted that the Governor-General may dismiss a Prime Minister

o Where the Prime Minister has been defeated in the lower House on a vote which

is regarded as a vote of no confidence; ando Where the government is persisting in illegal or unconstitutional conduct

There has been considerable debate in Australia as to whether the Governor-General maydismiss a Prime Minister who is unable to secure the passage of supply bills through the upperHouse. This has been argued on the grounds of an expression of no confidence.

Refusing to dissolve Parliament

Forcing a dissolution of Parliament

Ian Harris (ed),House of Representatives Practice (AGP, 5th ed 2005)

11 November

During the lunch suspension, Mr. Whitlam went to Government House for aprearranged meeting with the Governor-General, Sir John Kerr

During the meeting, the Governor-General terminated Mr. Whitlams commission asPrime Minister

The Senate passes the main appropriation bills

2:34pm Mr. Fraser announced to the House that the Governor-General hadcommission him to form a Government. The Speaker is informed by letter

The House agrees to a motion to call the Honourable Member for Werriwa [Mr.Whitlam] to form a Government

3:15pm The Speaker suspends the sitting and seeks an appointment with theGovernor-General. An appointment for 4:45pm is scheduled

4:40pm Both Houses are dissolved

4:45pm Double dissolution proclamation read12 November

Mr. Scholes, as Speaker, writes to the Queen expressing his serious concern about theactions of Sir John Kerr

17 November The Queens Private Secretary, at the command of Her Majesty, replied that thematter is clearly placed within the jurisdiction of the Governor-General by theConstitution Act

Statement by the Governor-General, 11 November 1975 in JA Pettifer (ed), House ofRepresentatives Practice (AGPS, 1st ed 1981)and



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Sir Garfield Barwick, Letter of Advice to the GG in JA Pettifer (ed), House of RepresentativePractice (AGPS, 1st ed 1981)

The Governor-General released a statement, after obtaining advice from the Chief Justice ofAustralia, explaining his decision to dissolve Parliament. The letter from Sir Garfield Barwickessentially advised the Governor General, Sir John Kerr, that the Prime Minister could be

removed and the Leader of the Opposition called to form a caretaker government; one whichmakes no appointments or initiates any policies.

Additionally, it was held that the Senate has constitutional power to refuse to pass a money bill;it has power to refuse supply to the Government of the day. Furthermore, a Prime Minister whocannot ensure supply to the Crown, including funds for carrying on the ordinary services ofGovernment must either advise a general election or resign.

Week 10 The Separation of Judicial Power

Baron de Montesqueiu, The Spirit of the Laws (transl T Nugent, Hafner Press, 1949)

In every government there are three sorts of power: the legislative, the executive inrespect to things dependent on the law of nations, and the executive in regard to mattersthat depend on the civil law.

When the legislative and executive powers are united in the same person there canbe no liberty Again, there is no liberty when the judiciary power be not separated fromthe legislative and executive. Were it joined with the legislative, the life and liberty ofthe subject would be exposed to arbitrary control; for the judge would be then thelegislator. Were it joined with executive power, the judge might behave with violenceand oppression.

There would be an end of everything, were the same man or the same body, whether

of the nobles or of the people, to exercise those three powers.

Owen Hood Phillips and Paul Jackson, Constitutional and Administrative Law (Sweet andMaxwell, 7th ed 1987)

The legislative function The making of new law and the alteration or repeal ofexisting law. Without a legislative body of some sort a state could not provide law readilyenough to meet modern conditions.

The executive function The general and detailed carrying on of governmentaccording to law, including the framing of policy and the choice of the manner in whichthe law may be made to render that policy possible.

Thejudicial function Consists in the interpretation of the law and its application byrule or discretion to the facts of particular cases.

The categories are inclined to be blurred. For example, the Constitution requires theexecutive to be members of the legislative

Complete separation of powers would bring government to a standstill

What the doctrine must be taken to advocate is the prevention of tyranny by theconferment of too much power on any one person or body, and the check of one

power by another.



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Gerald Carney, Separation of Powers in the Westminster SystemLegislative Studies (Vol 8,No 2, Autumn 1994), 59

There seems to be no current constitutional system which adopts this completeseparation of powers

The strict doctrine is only a theory and it has to give way to the realities ofgovernment where some overlap is inevitable. But while permitting this overlap tooccur, a system of checks and balances has developed

The first three chapters of the Australian Constitution are headed respectively TheParliament, The Executive Government, and The Judicature. Implicit in thisstructure is a recognition of the separation of powers doctrine

The Separation of Federal Judicial Power

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

Dixon J suggested by way of obiter that by virtue of the separation of powers, Parliament wasrestrained both from reposing any power essentially judicial in any other organ or body,

and from reposing any other than that judicial power in such tribunals. This embodied twoprinciples:1. Judicial power could not be vested in any tribunal other than a Ch III court; and2. That a Ch III court could not be invested with anything other than judicial power (except for

those ancillary powers which were strictly incidental to its functioning as a court)The combined effect of these propositions was that judicial and non-judicial power could notbe mixed up in the same tribunal.

R v Kirby; Ex parte Boilermakers Society of Australia (Boilermakers Case) (1956) 94 CLR 254

Metal Trades Employers Association sought to enforce a no-strike clause in anaward

Arbitration Court had made an order requiring the union to comply with theaward (non-judicial power), and a further order fining the union for contempt of court byreason of disobedience to the earlier order (judicial power).

In the High Court, the union obtained an order nisi from McTiernan J callingupon the judges of the Arbitration Court to show cause why a writ of prohibition shouldnot issue on the ground that the vesting of judicial power in a body also exercisingnon-judicial power was unconstitutional.

Dixon CJ, McTiernan, Fullagar and Kitto JJ:

Commonwealth it must operate through or in conformity with Chap III. For thatreason it is beyond the competence of the Parliament to invest with any