LAWS1141 Mid-Term Notes PDF
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These are mid-term notes for LAWS1141 Principles of Public Law. They cover topics such as constitutionalism, rule of law, and Australian federalism. The notes include definitions, classifications, and analyses of important concepts related to constitutional law.
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LAWS1141 PRINCIPLES OF PUBLIC LAW Mid-term Notes CONSTITUTIONALISM AND THE RULE OF LAW 3 Definitions...
LAWS1141 PRINCIPLES OF PUBLIC LAW Mid-term Notes CONSTITUTIONALISM AND THE RULE OF LAW 3 Definitions 3 Constitutionalism 3 Classifying Australian Constitutionalism 4 Political vs Legal Constitutionalism 4 The Purpose of Separation of Powers 5 Formal vs Substantive Conceptions of Rule of Law 7 Diceyan Notion of Rule of Law 8 Rule of Law in Britain 8 A CONSTITUTIONAL HYBRID - British 9 Definitions 9 British and American Elements in the Australian Constitution 9 Magna Carta 10 Representative and Responsible Government 11 Diceyan Theory: Parliamentary Sovereignty 12 Limits on Parliamentary Sovereignty 13 TRS Allan: ‘Deeper Constitutional Morality’ 14 Constitutional Conventions 14 A CONSTITUTIONAL HYBRID - American 17 Definitions 17 AU’s American Constitutional Inheritance 17 Gagler - Key Mechanisms adopted by framers of the US Constitution 18 Institutional realisation of Westminster vs American System 18 Core Features of Australian Federalism 20 Arguments for Federalism 21 Judicial Review - Definitions and Consequences 23 Justifications for the Courts Function to Review Constitutional Validity of Legislation - Marbury v Madison; The Federalist 25 Judisocracy? 26 FEDERATION AND AUSTRALIAN FEDERALISM 27 Definitions 27 Reasons for joining in Federation 27 Core features of Australian Federalism 28 Doctrines of repugnancy and extraterritoriality 29 Australia - a legally independent nation? - Australia Act 1986 29 Why is the Australian Constitution Binding? - Popular Sovereignty 31 INDIGENOUS SOVEREIGNTY VS CROWN SOVEREIGNTY 35 Definitions 35 Mabo No. 2 (1992) 35 Indigenous Sovereignty 36 HCA Views on Sovereignty (Post Mabo) 37 Yorta Yorta - HCA Approach to Indigenous Sovereignty 37 1 ritiques on HCA approach to native title C 9 3 Treaties 39 INDIGENOUS PEOPLE, VOTING AND THE CONSTITUTION 44 Definitions 44 The Constitution and Franchise pre-Mabo 44 Milestones in the Evolution of Voting Rights 45 Aus Const s 41 - providing ATSI people with achieving voting rights 46 Race power under the Constitution (s 51(xxvi)) 47 1967 Referendum - Constitutional Amendments 47 Progress towards reconciliation 49 Uluru Statement from the Heart recommendations to recognise ATSI peoples 50 The Voice - proposed s 129 50 LEGISLATURE 1 53 Definitions 53 History and Significance of Parliament 53 Distribution of legislative power between Commonwealth and the State 53 Legislation/Constitution sections relating to eligibility for election to Federal parliament 53 Eligibility and Requirements; Common Law and HCA view 54 Weaknesses of Legal Constitutionalism 57 Accountability in Parliament 57 2 CONSTITUTIONALISM AND THE RULE OF LAW Definitions ritten Constitution -A single solemn document which founds a political community, defines W its chief political institutions, confers their powers and circumscribes the permissible limits of those power E.g. US Constitution, written in 1787 nwritten Constitution -No single document; Important principles and laws are set out in U fundamental statutes and judicial decisions of common law E.g. Westminster - UK Constitution lexible Constitutions -A constitution where every law of every description can legally be F changed with the same ease and in the same manner by one and the same body igid Constitutions -Constitutional and fundamental laws cannot be changed in the same R manner as ordinary laws ig-C Constitutionalism-The constitution prevails, all other laws must be tested to be consistent with B the constitution; often written mall-c Constitutionalism -A set of unwritten practices and understandings which structure political S life;less ‘omnipotent’ and can be less strictly applied because inevitably definitions and understandings vary from person to person imited/Constitutionalist Government -Government is limited by law; constitution spells out the L powers of government Interventionist/Authoritarian Government -No limit by law; the government is the most omnipotent power Separation of Powers - Constitutionalism Purposes of Constitutions A constitution establishes institutions, their interrelationships, as well as explain the place and role of people to express their political values A constitution embodies constraints of government and arbitrary power creates an effective and competent set of state institutions to safeguard and protect community wellbeing ocial Contract Theory: Hobbes -Strong government is necessary to establish S safety and protection of citizens Hobbes insisted on a strong or almost dictatorial government Individuals agree to give up some of their freedoms in exchange for protection and security provided by the government Social Contract Theory: Locke- Government power should be limited to the 3 protection of life, liberty and property. Supported separation of powers and natural rights lassifying C Written The Australian Constitution, took effect in 1901 Australian Constitutionalism Rigid Changes to the constitution require a referendum(s 128) ○ Proposed law must be passed by an absolute majority of each House of Parliament ○ Passed through both Houses of Parliament ○ Submitted to the State and Territory for electors to vote R ole of judicial review - judges cannot determine/alter the meaning of the Constitution, but only interpret it. ig-C Constitutionalism- written constitution, referendums, federal laws invalid if not B in alignment with the constitution (as per judicial review) S 109 Inconsistency of Laws-When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. olitical vs Legal P On the spectrum, Australia = Political Constitutionalism Constitutionalism Two party system creates vibrant politics- three year term and functions of responsible government means the current party must do good to maintain public confidence in time for reelection ○ Also Independence from the government of the day Functions of scrutiny: ○ Judicial review - HCA determines whether federal laws can be considered unconstitutional ○ Parliamentary debate of Bills - allows for identification of potential issues of proposed legislation ○ Bicameral structure (Senate vs House of Reps) - Bills passed by the House of Representatives must then be reviewed by the Senate(s 1 - structure of Parliament) Participatory politics -referendum; citizens of Australia have the power to elect people in Parliament Open and Transparent- broadcasting of debates and Question Time; public inquiries and hearings; independent watchdogs (Australian National Audit Office) olitical Constitutionalism -disputes about power and matters of policy should be resolved P by the political process (Parliament) Requirements for Success(Adam Tomkins: Public Law) S trong and vibrant politics Those performingfunctions of scrutinytake that function seriously - thorough and effective 4 H igh degree ofindependencefrom the government of the day Relies onopen, transparent, participatory, representative and deliberative politics- very difficult to implement in practice egal Constitutionalism- Policy and power disputes should be resolved by L courts/independent judges; more about individual right Requirements for Success: Seriousness and independence Appropriate resources and processes - suing is expensive and court resources are limited Difficult to ensure proper and lawful execution ○ However, equal - there is no inherent discrimination in favour of the majority; suing is expensive to all ○ Question - is this really true? Minority communities inherently bear a greater burden (fees etc.) ○ No wheel of rights in Australia, Absence of constitutional rights in Australia (equality rights etc.), Minority rights are not protected ○ Political constitutionalism establishes the ability of disadvantaged communities e.g. First Nations people → Courts are now more equipped to provide remedies to minorities due to political constitutionalism Judges not democratically elected, accountable or representative Common Law Views and Arguments rotection of powers by Courts is not necessary -Amalgamated Society of P Engineers v Adelaide Steamship Co Ltd The people of Australia are “united in a Federal Commonwealth” (s 3 Constitution - Proclamation of Commonwealth) →Australianstook power to control misuse of power by national Parliament ○ Popular sovereignty argument? If the representatives of Australia ever used national powers to injure Australians it would be within the power of the people themselves to resent it and reverse what may be done Drafters of the Constitution had faith in Parliament to uphold social values - Australian Capital Territory Pty Ltd v Commonwealth Drafters wary of integrating certain freedoms into the Constitution because they did not want to limit Parliament’s powers Courts are the ultimate decision-makers -Plaintiff S157/2022 v Commonwealth Jurisdictionsensure laws are valid, and that ministerial/official actions remain lawful Disputes over such matters require an authoritative decision-maker; here it is this Court he Purpose of T Separation of Powers in Australia Separation of Seen in the structure of chapters in the Australian Constitution Powers ○ The Parliament - ss 1 ○ The Executive - ss 61 5 ○ The Judicature - ss 71 C ombination of American system (separation of powers) and Westminster system (responsible government) ○ Separation of powers on a greater level (judiciary vs executive/legislature) BUT some integration of executive with legislature - Westminster Style Parliamentary Democracy ○ S 64 Aus Constitution- ‘no Minister of State shall hold office for a longer period than 3 months unless he is or becomes a senator or member of the House of Representatives’. The executive (Prime minister) must be drawn from the legislature (Parliament) Views on Separation of Powers hen the legislative and executive are united there cannot be no liberty(Baron W de Montesquieu, “The Spirit of the Laws” (1949)) “Political liberty is to be found… only when there is no abuse of power” the same senate that enacts tyrannical laws should not be able to execute them in a tyrannical manner Experience shows that every man invested with power is apt to abuse it ○ Legislative- enacting temporary or perpetual laws and amending/abrogating those which have been enacted ○ Executive- makes peace or war, sends or receives embassies, establishes the public scrutiny and provides against invasions ○ Judiciary- punishes criminals or determines disputes which arise between individuals ‘A complete separation of powers with no overlapping or coordination would bring government to a standstill’ (Owen Hood Phillips and Paul Jackson, “Constitutional and Administrative Law” (1987)) v Kirby: Ex parte Boilermakers’ Society of Australia (Boilermakers Case) R (1954) 94 CLR The institutions which exercise the judicial power of the Commonwealth must be kept strictly separate from other government institutions Australian Constitutional System strays from Westminster System ○ Australian CS → judiciary separate ○ Westminster → Executive party integrated into judiciary; accountability mechanisms ensure responsibility Gerard Carney ‘Separation of Powers in the Westminster System’ No current constitutional system adopts complete separation of powers 6 S oP is only a theory; in reality overlaps of government and inevitable Systems of checks and balance in place - alternate ways to ensure separation and accountability The United States Constitution The Westminster System - only incorporates partial separation of powers ormal vs F ule of Law -all persons and authorities within the state, whether public or private, should be R Substantive bound by and entitled to the benefit of laws; ‘governments of laws not of men’(Thomas Paine, Conceptions of ‘Common Sense’, 1776) Rule of Law hin/Formal Rule of Law -law is capable of guiding human conduct; the law must T comply with procedural standards i.e. the law should be prospective, clear and stable Joseph Raz- the rule of law involves no moral judgement upon the contents of laws. ○ ‘A good knife is… a shart knife.”Similarly,conformityto the RoL is aninherent value of laws… A knife is not a knife unless it has some ability to cut.The law must be capable of guiding behaviour.’ - Relies on: supremacy of law and equality before law hick/Substantive Rule of Law -prescribes moral restraints on power to safeguard T fundamental rights on individuals; requires to ensure that the legal system is morally legitimate Bingham- ‘A state whichsavagely represses or persecutessections of its 7 eoplecannot in my view be regarded as observing rule of law, even if the p transport of the persecuted minority to the concentration camp is the subject of detailed laws ruly enacted and scrupulously observed’ - Means rule of GOOD law → focus on protection of human rights and democratic governance iceyan Notion of D 1. Supremacy of regular law Rule of Law Regular law is absolutely supreme to the influence of arbitrary power 2. Equal subjection to the law ‘Equality before the law’ 3. Rights of individuals are secured through the common law and Parliament The law of the constitution is not the source of individual rights, but rather the consequence of individual rights, as defined and enforced by courts. ule of Law in R Britain 8 A CONSTITUTIONAL HYBRID - British Definitions M inisterial Responsibility -each minister is legallyresponsible for any action of the government (the Crown) that they were involved in; ministers who makes a decision/approves an action can be held legally responsible for that ollective Responsibility of Government to Parliament -the entire government (Cabinet) C is accountable to Parliament as a whole; Parliament can hold the entire Cabinet responsible for that government’s actions and policies Cabinet = Prime minister + ministers ritish and B Elements fromBritish Constitutionalism: American Responsible and Representative Government Elements in the Parliamentary Sovereignty Australian Constitutional monarchy framework Constitution Elements fromAmerican Constitutionalism Federalism Separation of Powers Judicial Review V Dicey, ‘Introduction to the Study of the Law of the Constitution’ A Parliamentary Sovereignty(as under the English constitution): The right to make or unmake any law No person or body is recognised as having a right to override or set aside the legislation of parliament No Parliament may be bound by a predecessor or successor; Parliament = supreme law-making body Legal Sovereignty -the power of law-makingunrestricted by any legal limit Parliament = Legal Sovereign Political sovereignty-the State’s will isultimately obeyed by citizens Electors = Political Sovereign xternal Limitations on Sovereign Power- exists inthe possibility or certainty that E his subjects, or a large number of them, will disobey or resist his laws Internal Limitations on Sovereign Power- arises from the nature of sovereign power itself; even a tyrant exercises his powerin accordance with his character(moulded by the circumstances under which he lives - moral feelings of time and the society to which he belongs) Deeper constitutional morality -ethical principleswhich underlie and guide the 9 function of the constitution. These principles go beyond the strict letter of the law and encompass ideas of justice and fairness. Magna Carta History Magna Carta (1215): Originated from adispute between King John and his baronsover unjust taxation. Established certain rights, includingjustice by peers and limitations on royal power. While King John later ignored it, key provisions like fair trial rights were confirmed by later kings. Purpose 1. Protects individual rights agna Carta s 29 -‘No free man shall be taken on, imprisoned or M disseised of his freehold, liberties or free customs or outlawed or exiled in any way ruined, nor will we go or send against him,except by the lawful judgement of his peers or by the law of the land.To no one we will sell, to no one will we deny or delay right or justice.’ 2. L imits the arbitrary exercise of power (symbolically; precursor for the Rule of Law) James Spigelman, ‘Magna Carta: The Rule of Law and Liberty’ Argues the Magna Carta at best supports the development of liberty → small and indirect role Themes underlying the Magna Carta (not directly established by the Magna Carta but were affirmed by its content): K ings have an official character and therefore their acts should be exercised in accordance with certain processes; the acts of Kings are not simply personal acts King has an obligation to confer with the political nation on important issues The charter restricts the Kings exercise of powers → restricted in accordance with traditional limits and conceptions of proprietary The King cannot act on mere whim- the King is subject to the law The King had acted contrary to established custom and contrary to the law The King must provide a judicial system for the administration of justice and all free men were entitled to due process of law Fundamental Principles 10 x parte Walsh and Johnson; Re Yates (1925)- application of principles to E constitutions 1. Every free person has an inherent individual right to his life, liberty, property and citizenship 2. His individual rights must always yield to the necessities of the general welfare at the will of the State 3. The law of the land is the only way the State can so declare its will epresentative R Historical Background and Responsible Post1688 English Revolution- relations between the parliament and executive Government stabilised ○ Monarch’s personal involvement declined ○ Rise of cabinet government -key moment for development of parliamentary sovereignty ○ Formalisation of political parties ○ Representative character of Parliament created through 19th century Reform Acts Martin Loughlin, ‘Foundations of Public Law’ (2010) Principles arising from 1688 Revolution (Identified by Locke) Government involved an exercise of trust Legislature exercised supreme power Executive had double trust - both to maintain society and respect the wishes of the legislature P ost Revolution context let to development of theAct of Settlement 1701 ○ Provided critical provisions defining government-parliament relations ○ Provided security of tenure to the judiciary; judges irremovable by parliamentary address 18th Century - Tension within parliament ○ Formation of distinct political parties - Tension between governing and opposing party - party must check party to keep the current government in check Emerged not as an expression fo democratic sentiment but as vehicles for management of Parliament King reduced to spectator During the drafting of the Australian Constitution ○ Representative parliament considered a sovereign power ○ Responsibility to parliament outlined according to law - applied to the executive (Prime ministers and Ministers) Australian Common Law Views on Responsible and Representative Gov Lange v Australian Broadcasting Company 11 “ The Constitution is for the advancement of representative government” - endorsed observations in Federal Commissioner of Taxation v Munro us Const sections providing fundamental features of representative A government: S 1 -Federal parliament separated into Senate and the House of Representatives S 7 -The Senate is comprised of senators elected by the people of each State; chosen senators shall be certified by the Governor-General, senators sit for a six-year term S 8- Electors only vote once when electing a senator; elections in each state S 13- Senators of the first class become vacant after 3 years; senators of the second class become vacant after 6 years S 24-members in the House of Representatives should be directly chosen by the people of the Commonwealth; number of HoR members should be twice the number of senators; number of members from each state should be proportionate to the numbers of their people S 28 -Every House of Representatives can only continue for three years S 30- Those who are eligible to vote for the State House of Parliament is also eligible to vote for the House of Representatives - Representative: allows people to vote on a federal level based on rules which are already in place - Responsible - Government must maintain support of the majority iceyan Theory: D inisterial Responsibility -each minister is legally responsible for any action of the M Parliamentary government (the Crown) that they were involved in; ministers who makes a Sovereignty decision/approves an action can be held legally responsible for that ollective Responsibility of Government to Parliament -the entire government C (Cabinet) is accountable to Parliament as a whole; Parliament can hold the entire Cabinet responsible for that government’s actions and policies Cabinet = Prime minister + ministers V Dicey, ‘Introduction to the Study of the Law of the Constitution’ A Parliamentary Sovereignty(as under the English constitution): The right to make or unmake any law No person or body is recognised as having a right to override or set aside the legislation of parliament No Parliament may be bound by a predecessor or successor; Parliament = supreme law-making body lectors sovereign?- Electors do not have a right to initiate, sanction, or E repeal legislation from Parliament, therefore not sovereign Judiciary sovereign? -Statute law (Parliament) still overrides common law 12 ( Courts); even though courts make decisions as to whether a law is in accordance with a legal principle and therefore make gradual formation of rules for application, Parliament has greater power. The only function of the courts is to determine whether the legislation falls within the limits of power ○ Technically Parliament can ‘override’ these, but out of constitutional conventionthey do not → therefore they are still sovereign icey’s Definitions of Legal and Political Sovereignty -“requirements” for D parliamentary sovereignty Legal Sovereignty -the power of law-making unrestricted by any legal limit Parliament = Legal Sovereign Political sovereignty-the State’s will is ultimately obeyed by citizens Electors = Political Sovereign imits on L ‘The power of the legislature is strictly limited from both within and from without; from Parliamentary within because the legislature is the produce of a certain social condition, and Sovereignty determined by whatever determines the society; and from without, because the power of imposing laws is dependent upon the instinct of subordination, which is itself limited’ (Leslie Stephen’s Science of Ethics) *Note: Australia’s Parliament is more restricted than the parliament of England - Big C (Aus) -Parliament’s sovereignty is limited by constitutional constraints - Small c (UK) -Unwritten constitution; not as limited by the constitution xternal Limitations on Sovereign Power- exists in the possibility or certainty that E his subjects, or a large number of them, will disobey or resist his laws Internal Limitations on Sovereign Power- arises from the nature of sovereign power itself; even a tyrant exercises his powerin accordance with his character(moulded by the circumstances under which he lives - moral feelings of time and the society to which he belongs) - Whether or not the holder of sovereign power decides to yield that power. *Ultimately it is questionable whether absolute sovereignty can exist in practicality eoffrey de Q Walker, ‘Dicey’s Dubious Dogma of Parliamentary Sovereignty’ G Reasons for adopting Parliamentary Sovereignty: 13 RS Allan: T RS Allan, ‘Law, Liberty, and Justice’-Trevor Allan reinterprets Diceyan theory to T ‘Deeper link parliamentary sovereignty to representative democracy; cannot be exercised Constitutional in an undemocratic manner Morality’ eeper constitutional morality -ethical principles which underlie and guide the D function of the constitution. These principles go beyond the strict letter of the law and encompass ideas of justice and fairness. arliamentary sovereignty depends on the power to create laws (supported by Dicey). P therefore, Governments are answerable to Courts, as they determine… Lawfulness/unlawfulness - If a Parliamentary law contradicts a fundamental democratic principle it may not be legitimate Fair/unfair treatment of citizens- the rule of law grants protections of individuals of society, free from arbitrary rule onstitutional C V Dicey, Introduction to the Study of the Law of the Constitution A Conventions Constitutional conventions -a set of rules separate from the law of the constitution which is comprised of habits, understandings or practices which regulate the conduct of members in power but cannot be enforced by courts; i.e. maxims or principles by which the ordinary conduct of persons under the constitution are regulated Importance of Constitutional Conventions: 1. Inevitable and essential, especially when unwritten constitutions are in place E.g. UK - unwritten maxims of constitutional morality/political morality which underpins the actions which can be taken by Parliament Positive morality -rules of political practice which areconsidered binding by whom they concern(O Hood Phillips) Operates when: - People act in conformity with the rule - The rule explains the conduct of those whom they concern - A portion of the political community accepts the rule as a 14 alid standard for conduct v - Not all social rules are constitutional conventions - Constitutional convention = constitutional in nature Critiques: - Conventions should provide reasons for the actions which fall under them, not vice versa Critical morality - ‘conventions are the rules that political actorsought to feel obligated by, if they have considered the precedents and reasons correctly’ (Geoffrey Marshal) - Although some conventions may seen pointless, the justification for abiding by a convention is the benefit/value gained by following through with the rule Constitutional conventions - Australian Context Powers and structure of Government ○ Constitutional Law -The Prime Minister/ the powers and responsibilities of a PM is are not mentioned in the constitution Constitutional Convention -the leader of the majority party in the House of Representatives becomes the Prime Minister and leads the Cabinet. Powers of the Governor General Constitutional law ○ S 64 -the GG can appoint Ministers CC -this power is exercised with approval of the PM ○ S 61 -the executive power of the Commonwealth can be exercised by the GG as the Queen’s representative CC -GG rarely exercises formal powers unless in exceptional circumstances; powers mainly exercised by PM ○ S 68 -the GG is commander in chief of the Commonwealth’s military forces CC -In practice, decisions are made by the PM Constitutional Conventions -uphold the principle of parliamentary democracy. In practice GG does not intervene and instead powers are exercised by PM because the PM is elected by the will of citizens iews on Constitutional Conventions V Re Resolution to Amend the Constitution’ Some conventions may be more important than laws - the importance of a convention depends on the value or principle they are meant to safeguard Constitutional Conventions cannot be enforced by courts because courts are bound to enforce legal rules Nicholas Aroney, ‘Law and Convention’ Different theories of convention shape our conclusions as to the nature of law 15 and conventions BUT they are not determinative ○ Lawyers- interested in the distinction of law and convention because it speaks to the very nature of law ○ Positivist views- define law by reference to a formal sign or rule of recognition ○ Historical views- define law by reference to evolved social practices and expectations ○ Normative views- define law by reference to its underlying moral principles and values 16 A CONSTITUTIONAL HYBRID - American Definitions 1 . Representative government - involves the delegation of the government to a small number of citizens elected by the rest . Separation of powers -Divides institutions of government into three branches- executive, 2 judiciary and legislature Justification - ‘Ambition must be made tocounteract ambition’ and so to supply by ‘opposite and rival interests, the defect of better motives’. Horizontal SoP -Breaking up power across the three arms of government - See below Vertical SoP -Achieved through federal structure; separation of State and Federal Government . Judicial Review- when the federal judiciary has power todeclare voidany act of the 3 legislature or executive in contravention of the Constitution; the judiciary is not explicitly stating as being so, but rather is interpreted as being theinterpreter of any legislature in contravention of the Constitution A ustralia follows‘parliamentary separation of powers’- therefore haspartial separation of powers ederalism- a mode of political organisation that unites separate states or other polities F within an overarching political system in a way that allows each to maintain its own integrity. (Britannica) 1. H igh degree of autonomy for governmental institutions of the Commonwealth and the State 2. Division of power between the Commonwealth and the State a. The constitution distributes legislative/law-making power between State parliament and Federal parliament 3. Judicial “umpire” - role of courts in judicial review U’s American A Constitutional Embraced Rejected Inheritance apital C Constitution C ill of rights B Federalism President elected by electoral 17 eparation of Powers S ollege/removed by impeachment c Strong upper House (Senate) Presidential veto Judicial Review Executive sits outside congress - ‘Trinity’ of the US Constitution: - Constitutional supremacy, separation of power/federalism and judicial review are all interlinked Stephen Gageler, ‘Foundations of Australian Federalism’ What are the Key Principles of the US Constitution? Conceived out of fear of: ○ Despotism of an elite ruling which is unresponsive to the needs of the people ○ Majoritarian tyranny and factionalism ○ ‘Unsteadiness and injustice’ created alarm for public rights(The Federalist (No 10) - James Madison) ○ Intention of framers was to establish institutions which would ensure the government promotes general welfare agler - Key G rifecta of the US Constitution T Mechanisms 1. Representative government - involves the delegation of the government to a small adopted by number of citizens elected by the rest framers of the US Constitution . Separation of powers -Divides institutions of government into three branches- 2 executive, judiciary and legislature Justification - ‘Ambition must be made tocounteract ambition’ and so to supply by ‘opposite and rival interests, the defect of better motives’. orizontal SoP -Breaking up power across the three arms of H government - See below Vertical SoP -Achieved through federal structure; separation of State and Federal Government . Judicial Review- when the federal judiciary has power todeclare voidany act of the 3 legislature or executive in contravention of the Constitution; the judiciary is not explicitly stating as being so, but rather is interpreted as being theinterpreter of any legislature in contravention of the Constitution Institutional Presidential vs Parliamentary System of Separation of Powers realisation of Westminster vs Parliamentary Separation of Powers -Aus and Westminster American Executive and Legislature System ○ Closely linked; the executive (PM and Cabinet) is drawn from the legislative branch (Parliament) 18 Legislature = the Senate and House of Representatives ○ P M must maintain support of the majority in Parliament to stay in power ○ Parliament can dismiss the PM through a vote of no confidence ○ The executive body is appointed by the legislature - Judiciary ○ Remains a separate; ensures independent review of executive and judiciary branches Presidential Separation of Powers -American - Has more prominent checks and balances: each arm has distinct powers to check the other branches - No one branch is sovereign Executive- President ○ NOT a member of Congress P nominates people outside of Congress to the head of executive ○ Elected independently of Congress ○ Means the executive cannot control the legislature (theoretically) ○ Hasvetopower over the legislature Legislature ○ Congress ○ Acts as a watch-dog to ensure the President does not misuse power ○ Congress cannot remove the president unless there is evidence of actual wrongdoing (impeachment) Judiciary ○ Supreme Court Separation of Powers - Australian Context A ustralia follows‘parliamentary separation of powers’- therefore haspartial separation of powers ○ Following UK origins -fusion of power: the legislature and executive have the upper hand while the judiciary is separate ○ Overlap between the executive and legislature Parliament is a part of the House of Representatives Cabinet Ministers are a part of the Senate Parliament has the highest authority(legislature) - the executive is responsible to Parliament; Courts are separate Clear separation of judicial power- Courts’ powers to determine whether parliamentary laws/actions of the PM are constitutional → creates a check on the executive and judiciary Differences from Westminster System: ○ Aus Written Constitution explicitly divides powers between Federal Government and State Government 19 N ○ o mention of judicial separation ○ DOES mention overlap between functions of the executive and judiciary ○ Australian judiciary Can declare the actions of of the Executive unlawful Can declare legislation unconstitutional Differences from American System ○ Separation of powers are not as strict - PM and Cabinet are members of the legislature → both accountable to the legislative branch ○ SIMILARLY to presidential system, judiciary is strongly independent Executive (Governor General) can dissolve Parliament ore Features C ederalism-a mode of political organisation that unites separate states or other polities F of Australian within an overarching political system in a way that allows each to maintain its own Federalism integrity. (Britannica) - NB: the UK does not have a federalist system because power was delegated from a central government to lower levels of government → top-down delegation; UK Parliament remains superior - NB: Federalism can only be established under a Capital C Constitution 1. H igh degree ofautonomyforgovernmental institutionsof theCommonwealth and theState 2. Division of powerbetween the Commonwealth and the State The constitution distributes legislative/law-making power between State parliament and Federal parliament 3. Judicial “umpire”- role of courts in judicial review ederalism in Australia F Australia became a federation on Jan 1st 190. Rigid constitutional framework - Capital C Central Federal government alongside State governments Distribution of power - Federal power = executive; State power = residual Federal laws supreme over state laws when there is inconsistent 20 Sections of the Constitution which reflect Australia’s federal nature- Ensuring unity and equal treatment of States by Federal Government S 51(ii) Restrictions on taxation power so asnot to discriminate between States r parts of States o 51(iii)/s S equirement of bounties and customs duties, respectively, to beuniform R 88 throughout the Commonwealth S 99 the Commonwealthshall not, by any law or regulation of trade, commerce, or revenue give preference to one Stateor any part thereof over another State or any part thereof. S 7 Each State has equal representation in the Senate nsuring equal treatment by States to other States and to Federal E Parliament S 117 State cannot discriminate against non-alien residents of another State S 118 equires full faith and credit be given throughout the Commonwealth R to the laws, the public Acts and the records and judicial proceedings of every State S 92 Free trade, commerce and intercourse among the States S 102 rotects the entry of people from different States; Cannot place P interstate railway rates which are undue, unreasonable or unjust to any State Division of Power in the Australian Constitution - Aus Constitution sets out the structure of power and the superiority of power S 52 - Exclusive powers of the Parliament S 51 - Concurrent powers S 107 - Reserved Powers rguments for A Double Democracy -Citizens are able to vote on a State level and a Federal level Federalism FOR AGAINST 21 Enhances democratic participation or direct and F Citizens get a more direct say in decisions which unrestrained affect them by being able to vote onbotha Federal democracy and State level The other Encourages active participation to influence topics side’s position such as education, health and transport → an is based on a individual's vote matters on a national level very narrow Ensures a tailored response to democracy - diverse notion of liberty needs and preferences between states can be met - freedom = the absence of Australian Federalism is resilient external Division of power (by double democracy) makes constraints on structures more stable; reduces centralisation of an actor power Alternate view: More responsive government - State governments government are able to express diverse views to appeal to the intervention specific needs of their citizens may be a Political pluralism - ensures diversity in political source of views and opinions; ensures healthy political freedom competition Centralised government may be ederalism prevents any one power from becoming too F more efficient overpowering The necessity Not just Federal government; some powers are also of balancing distributed to State governments interests, the - However, to what extent is this true? State need for powers are lessening - saving power of combining State Parliaments (see under Federalism options, results topic) in a wealth of Ensures checks and balance political thought - Again, to what extent is this true? Power of such as no the judiciary depends on the Executive state where the enacting real authority is single can No need for a Bill of Rights* attain (British Federalism promotes equal treatment of people political between states - fundamental idea is that if people theorist are unhappy with the ideologies/protections of one Harold Laski) State they are free to move to another(Brian Those against Galligan and Chill Walsh ‘ Australian Federalism federalism Yes or No?’) prefer more - ‘if another state allows the liberty you value, direct and you can move there, and the choice of what unrestrained freedom you value is yours and yours alone, democracy on not dependent on those who made the a national level Constitution - federalism is the constitutional as opposed to 22 uarantee most protective of the individual’s g localised State freedom to make his own choices(Robert democracy Bork, The Tempting of America: The Major events of Political Seduction of the Law intergovernmental (Macmillian, 1990) conflicts have arisen - Note: does equal treatment by race is NOT due to federal protected under the Constitution → to what intervention to extent is this valid? secure the rights of “Prevents overreach” - different States can have minority groups different discrimination laws/laws for the protection of rights depending on the will of people in that state - Again, is this a good thing? E.g. States opposed clause 110 to keep exploiting/mistreating immigrants and ATSI people The Federalists views on Federalism: The Federalist commented the limits set by the new Constitution on powers of central government would provide major ‘check and balance’ Divided sovereignty between rival levels of government would be a major barrier to the concentration of political power in too few hands → ensures accountability udicial Review J J udicial review -in written and rigid constitutional systems (which impose limits on - Definitions legislative powers), courts determine whether those limits have been transgressed. → and (theoretically) the judiciary has sovereignty Consequences See further below ARGUMENTS FOR JUDICIAL REVIEW FOR AGAINST he judiciary has no capacity to T Judicial review is undemocratic danger political rights of the Vesting power in the judiciary, an Constitution unelected body, means outcomes can be against the will of the (T he Federalist) people - “The judiciary has neither force See Sykes v Cleary -the public nor will but merely judgement; and voted the candidate in, however a must ultimately depend on the aid very strict interpretation of s 44(vi) of the executive arm even for the meant the candidate was efficacy of its judgements” disqualified from running - Courts merely give judgement. 23 ourts have no scope to alter laws C according to subjective preference, it is only to consider the law presented and the law of the Constitution ourts play a crucial role as the C ndermining principles of U judiciary decides what the law is and Parliamentary Sovereignty how it is applied (Marbury v Madison) Benefits of Parliamentary sovereignty include centralised decision-making “It is emphatically the province and duty of SeeGeoffrey de Q Walker, the judicial department to say what the ‘Dicey’s Dubious Dogma of law is” Parliamentary Sovereignty’on p.g. 12 The judiciary plays an important role in upholding the supreme power of the Constitution. When there are conflicting laws it is the judiciary’s responsibility to determine which will govern the case. Sees the role of the judiciary in a more powerful light thanThe Federalist Separation of Powers Inconsistency in rulings Allows for an impartial assessment Courts may interpret laws of whether the government’s differently from how they are intended to be interpreted legislation is unconstitutional ○ This could also be a good Ensures no overreach in powers thing - forces the executive exercised by parliament to be more careful with ○ This was one of the how their legislation sets reasons for judicial review precedent in the American context - see next page pholds RoL/ Creates checks and U balance mechanisms No one is above the law - holds executive and legislative branches accountable Protection from Political Pressure Courts are considerably more withdrawn from the political nature of the exec/legislatives → allows for objective and impartial interpretation of legislation which 24 ay have impacts on minority m communities ustifications J arry Friedman ‘The Will of the People: How Public Opinion has Influenced the Supreme B for the Courts Court and Shaped the Meaning of Constitution’ Function to Unmistakably, framers of the American Constitution intended for courts to Review have the ability to review state laws to ensure their conformity with national Constitutional law Validity of A main reason for the movement from the Confederation to the American Legislation - Constitution was toprevent ‘encroachment’ of legislative powers Marbury v ○ No judicial review before US Constitution - under a Confederation, Madison; The Congress could not compel delinquent States to do what is right Federalist ○ James Madison (a writer atThe Federalist) - favoured veto power by judiciary due to concerns over creating uniform national and State laws Critiques on James Madison’s position forjudicial veto(in addition to judicial review) ○ Judicial review already fulfils the role Counter: trust cannot be put in State tribunals - too much overlap with legislatures Madison believed “state courts might and ought to be left in all cases to decide [that the state lawsdoalign with federal laws] arbury v Madison (1803) - Constitutional law is superior to laws proposed by the M executive. It is supreme law that the people have an original right to establish principles which shall most conduce to their own happiness. “It is emphatically the province and duty of the judicial department to say what the law is” ○ It is the essence of judicial duty to determine which of the conflicting rules (between the Constitution and those implemented by the executive) must govern the case. Not allowing the judiciary to declare laws contrary to the Constitution void would undermine the entire foundation of the Capital C constitutionalism established by the US System ○ Constitution is the absolute sovereign power “The judicial power of the US is extended to all cases arising under the constitution” It is important to consider Constitutional law as separate/superior to laws enacted by the executive 25 ustralian Communist Party v Commonwealth (Communist Party Case)- A Parliament cannot override judicial review if a law is considered unconstitutional; Where a statute enacted by an Australian Parliament that exceeds the power conferred by the Constitution, or infringes some express or implied constitutional limit, any court (but usually HCA in practice) has the power to declare the enactment to be unconstitutionaland therefore invalid. lexander Hamilton;The Federalist (No 78)- ‘the judiciary will always be the least A dangerous to the political right of the Constitution becauseit has neither force nor will but merely judgement’. The judiciary always depends on the executive - has no actual power to implement Judisocracy? 26 FEDERATION AND AUSTRALIAN FEDERALISM Definitions opular Sovereignty -Where organs of governments are agents for the people; the people P are the source of power American approach - heavy on popular sovereignty; ‘tenth amendment’ - any powers which are not given to the federal government are left to the states/the people at large ○ “We the people” Australian approach - organs of government are simply institutions created by law; ○ Does not approach popular sovereignty in the same way -Australian Constitution reflects the coming together of colonies to create a federation (not the immediate unified concept of popular sovereignty adopted by the US) easons for R Confederation vs Federalism joining in Confederation - external relationship between the federal state and … Federation Independent states unite Loose and flexible connections between existing states There is no sovereign entity Federation Union of sovereign states INITIAL DOUBTS AND OBSTACLES Protectionism vs free trade policies on tariffs and customs duties VIC - Protectionist tariffs to protect local industries NSW - favoured free trade; customs duties were a significant portion of government revenue ¾ of customs dues were to be paid to the State governments → larger colonies scared that this would mean high tariffs to fund governments as the nation grows ifficulty persuading colonies - democratic representation tension and D uncertainty Smaller colonies scared that they would lose their identity among the larger colonies Larger colonies reluctant to subsidise and financially assist the smaller colonies Economically the colonies were not equal Middle ground - Senate created to give equal opportunity/representation while HoR has seat reflecting the natural distribution of population In american context federation led to civil war Resolving economic disagreement 27 C ommonwealth can redistribute resources - s 96, grant power; Commonwealth can grant financial/economic assistance to states in need Commonwealth is the overarching sovereignty to keep the federal structure healthy - demonstrates that Australia is a federation Erosion of federal principles overtime High Court decisions overtime have expanded the rights of Commonwealth at the expense of the rights of States -erosion of federal principles(autonomous States) E.g. s 90 REASONS FOR FEDERATION Fear of common enemies Increased nationalism among Australians Facilitating trade and commerce between colonies ○ Market freedom and economic growth ○ S 92- trade and commerce between States should be free → liberalisation among the colonies is articulated within the text itself ore features of C DISTRIBUTION OF POWERS BETWEEN THE COMMONWEALTH AND STATES Australian Federalism Inspiration from the American idea of a Senate Distribution of power between two Houses of Parliament - the Senate and House of Representatives ○ Senate - has equal number of members from each state ○ House of Representatives - reflects national distribution of population This idea was formulated by Alexander Hamilton; “copied’ from the US, did not have to work hard to resolve these issues Exclusive, concurrent and residual legislative power EXCLUSIVE POWERS- to the commonwealth ○ S 52 listsexclusive powers of the Parliament ○ S 90e.g. power overcustoms, excise and bountiesare in the hands of Parliament RESIDUAL POWERS- “unspecified fund” of legislative power left to the States ○ S 107- declares saving power of State Parliaments; every power which was exercised by States and has not been redistributed to the Commonwealth or withdrawn from the state will continue to fall under the power of the States C ONCURRENT POWERS- even in an area where the Commonwealth has a clear grant of law-making power, the State Parliaments will normally have power in that area too;coexistence of State and Commonwealth power 28 ○ S 51lists concurrent powers Comprises a mix of concurrent and de facto exclusive powers 109 - when there is inconsistent laws the Commonwealth prevails S Federal legislation prevails but only when there is inconsistency→ State legislation can
