PLSI Master DOC Notes PDF

lOMoARcPSD|41423739 PLSI Master DOC Notes Public Law and Statutory Interpretation (Monash University) Scan to open on Studocu Studocu is not sponsored or endorsed by any college or university Downloaded by Yazeed Evans (yeva0002@stude...

lOMoARcPSD|41423739 PLSI Master DOC Notes Public Law and Statutory Interpretation (Monash University) Scan to open on Studocu Studocu is not sponsored or endorsed by any college or university Downloaded by Yazeed Evans ([email protected])  lOMoARcPSD|41423739 Rosie Osborn 18 July 2023 LAW1112; Public Law and Statutory Interpretation Semester 2 Notes WEEK 1 Introduction and foundational concepts Reading: textbook, Chapter 1 Prescribed materials: videos 1-3, Editorial ‘Rule of law crucial but not beyond challenge,’ Duncan Ivison, ‘Why should we obey the law?’ Martin Luther King, ‘Letter from a Birmingham Jail’ 1.1 What is public law?  Public law can be described as the body of legal principles that apply to public power; public law principles limit the scope of public power, which is fundamental to the way Australia’s legal/ political system operates  Public law is the law that governs the powers of the three recognisable branches of Australian governments: parliaments, the executive, and the courts  The term "public law" is used to refer to a broad concept that encompasses all laws, institutions, structures, systems, principles, and procedures that regulate interactions between the State's various constituent elements (governments and their various arms) and its citizens.  Key values and underpinning perspectives:  Equality  equality before the law; no person is above the law, and everybody is bound by the same expectation, rules and regulations  Freedom  to make meaningful choices (so long as they are not harmful), autonomy  Community  philosophical basis in which the connection between the individual and the community is emphasised  "Public law" is frequently used to contrast with the term "private law."  Individuals' legal relationships are governed by private law, which is frequently referred to as "transactional" in scope  Public law can also be thought of as 'government law,’ and is often referred to as an ‘umbrella’ concept  What are the purposes underpinning public law?  Narrow: to constrain the exercise of public power (by government)  Broad: rules and principles that enable people to live together harmoniously; safely; with confidence that their rights and labors will be respected 1.2 Public law and other legal disciplines  Public law encompasses a variety of other areas of law, including:  Administrative law  Human rights law  Constitutional law  Statutory interpretation 1.2.2 Public law vs Private law:  Public law is the foundation of all law, as the government cannot legislate where it does not have the authority to do so, and determining whether such power exists is a matter of public law  includes areas such as Government law, constitutional law and administration law  Private law is a branch of law that deals with the relations between individuals and institutions, rather than relations between these and the state  includes areas such as torts law, contract law and property law  The traditional dichotomy of public law   Public law regulates interactions between individuals and governments (vertical); between governments and governments, and between the constituent arms of government  Private law regulates interactions between individuals (horizontal)  Though, in reality, the traditional dichotomy has become blurred  prisons, offshore detention and other privatisation of public powers Downloaded by Yazeed Evans ([email protected])  lOMoARcPSD|41423739 Rosie Osborn 18 July 2023 1.3 The Rule of Law  The Rule of Law is a foundational or fundamental concept that underpins public law  there is extensive debate about the requirements or indicia of the rule of law  Central to the understanding of public law  The rule of law essentially confers and limits government power  in a system that encompasses the rule of law, individuals can’t do what they want when they want, but rather they can only do what they are legally authorised to do A Man for All Seasons (Video):  No matter a person’s social status, moral views or other external (personal) characteristics, the law is absolute, and everyone is held to the same rules and regulations  Man’s laws are the law of the land, and everybody should be willing and able to abide by them for the good government of the country, and to promote social cohesion The Rule of Law (Video): 1.3.1 What is the rule of law?  The rule of law is seen as a concept that, broadly, operates to limit a state’s exercise of arbitrary power’  Paul Burgess... literature  The rule of law requires more than mere legal authorisation  however, what the ‘more’ constitutes is highly contested  An ideal that distinguishes a healthy, functioning legal system from a despotic, tyrannical regime or anarchy  A system whereby government power is conferred and limited by law; people cannot do whatever they want, they can only do what they are legally authorised to do  Nobody is above the law, and everybody – no matter social standing or official role in society – is bound by the same laws  the law rules, not the people 1.3.2 Thin/ formal and thick/ substantive  Different theories of the rule of law can be broadly characterised as either thin (formal) or thick (substantive)  Where theorists depart from aligned ideas of the rule of law is when fundamental rights are considered  Thin/ formal/ procedural  focuses on the procedures through which the law is made, carried out and enforced  Completely detached form and separate enquiry from whether the system conforms with or upholds a certain suite of human rights or morals  Not interested in questions of justice or fairness; what matters is the processes that are put in place  Thick/ substantive  broader focus on the quality of the law and legal system itself; concerned with the fairness/ justice that comprise the Australian legal system (Raz explains):  “The rule of law is just one of the virtues which a legal system may possess, and by which it is to be judged. It is not to be confused with democracy, justice, equality before the law... human rights of any kind or respect for persons... A non-democratic legal system based on the denial of human rights, extensive poverty, racial segregation, sexual inequalities and religious persecution may in principle conform to the requirements of the rule of law...”  Brings into its processes/ aligns with fundamental basic rights (morality and justice)  The way to oppose the arbitrary conception of power is to...?  Scholars on the rule of law: Joseph Raz Joseph Razz defined the rule of law as having two aspects: - First: people should be ruled by the law and obey it - Second: the law should be such that people will be able to be guided by the law. - Discusses how if the law is to be obeyed, it must be capable of guiding its subjects - Razz also focuses on the clarity, predictability, accessibility and prospectivity of the law Downloaded by Yazeed Evans ([email protected])  lOMoARcPSD|41423739 Rosie Osborn 18 July 2023 - Prospectivity: laws only have legal affect after the point in time in which they are made  the rule of law should be prospective in nature Lord Tom - Bingham breaks the rule of law down into a list of more Bingham specific requirements: 1. The law must be accessible and so far as possible, Regarded as one of intelligible, clear, and predictable the best in his field 2. Questions of legal rights and liability should in his generation, ordinarily be resolved by application of the law and played a pioneering not the exercise of discretion role in the formation 3. The laws of the land should apply equally to all, save of the United to the extent that objective differences justify Kingdom Supreme differentiation Court (according to 4. Ministers and public officers at all levels must Baroness Hale of exercise the powers conferred on them in good faith, Richmond) fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably 5. The law must afford adequate protection of fundamental human rights 6. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties are themselves able to resolve 7. Adjudicative procedures provided by the state should be fair (that is a fair trial); and 8. Compliance by the state with its obligations in international law as well as in national law To quote: - “A state which savagely represses or persecutes sections of its people cannot, in my view, be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside is the subject of detailed laws duly enacted and scrupulously observed.” Ronald Dworkin Dworkin believes that the rule of law contains fundamental civil and political rights and duties that pre-exist the written law - When courts interpret the written law and find gaps or ambiguity in it, they should interpret the law in light of these underlying rights and duties in order to fill the gaps - Thus, Dworkin assumes that judges have the capacity and authority not only to interpret the written law, but also to fill the gaps within it Albert Van Dicey Albert Van Dicey coined the phrase ‘rule of law’ - Two features which characterise the political institutions of England: parliamentary supremacy (sovereignty) which has been passed down to Parliament from the Royals, and the supremacy of the law - Supremacy of law encompasses:  No man is punishable except for a distinct breach of law  Every man is subject to ordinary laws and the rule of law  The constitution is pervaded by the rule of law, with the general principles of the constitution resulting from judicial Downloaded by Yazeed Evans ([email protected])  lOMoARcPSD|41423739 Rosie Osborn 18 July 2023 decisions - Three fundamental principles that underpin the rule of law... Fuller Beings his explanation of the rule of law with an allegorical story about King Rex, a hapless ruler who repeatedly tries but fails to make law - Fuller’s conception of the rule of law seems ‘formal’  does not seem to involve ideas of substantive justice or fairness - Although, important that government acts in accordance with publicly accessible rules laid down in advance, as it SHOWS RESPECT for the people who are subject to the law - Should be a relationship of ‘reciprocity’ between lawmakers and the public  government acts with restraint in accordance with the properly made laws laid down in advance; the public acts with restraint in return by abiding by those riles - When government flouts the requirements of the rule of law, this healthy relationship inevitably breaks down Allan TRS Allan argues that: - “The idea of the rule of law... is best understand... as compliance with those conditions under which each person’s freedom (liberty) is secured, consistently with the enjoyment of a similar freedom for everyone...” - Insists that the “rule of law is more than a regularity or predictability: it imposes a requirement of justification, connecting restrictions on liberty to a public or common good.” - The rule of law restricts ‘the violation of citizens’ basic rights” - “Not merely an ideal or aspiration external to the law – a yardstick by which the law can be measured for its compliance with an important political value...” - A law that fails to comply with his conception of the rule of law is not merely a bad law, but not a law at all  The point each author seems to be making above is that the rule of law is not merely a legal concept, but a social or cultural one  depends in large part upon people’s attitudes and beliefs  Lisa Burton Crawford concludes:  “The law can only truly rule when people (both government actors and ordinary people) believe that it ought to. The ways in which law is made, executed and enforced might encourage or discourage that belief, but so might nay other number of factors that are beyond the law’s control. In the end, no law can guarantee its own rule...” 1.3.6 Communist Party Case (Purpose/ Value of the Rule of Law)  The rule of law originated from the famous case The Australian Communist Party v Commonwealth  case concerned legislation enacted by the Federal parliament that sought to outlaw the communist party  Communist Party Dissolution Act 1950 (Cth)  Enacted in the midst of the cold war, at a time of national hysteria about the threat of communism (The Red Scare)  Act empowered GG to make a declaration with respect to any person who, the GG believed, supported the communist ideology  a ‘declared’ person was subject to various restrictions: could not hold public office  Communist party challenged the legislation, and won  was found to be invalid on the basis that it was unconstitutional (in that the federal parliament did not have an enumerated power to make such a law) Downloaded by Yazeed Evans ([email protected])  lOMoARcPSD|41423739 Rosie Osborn 18 July 2023  The Constitution places legal limits on the powers of the government, and those limits can be enforced by the courts  Demonstrates a basic – yet fundamental – principle of Australian public law: the Parliament must comply with the law of the constitution  Reflects a thin conception of the rule of law, though an alignment with the rule of law regardless  despite popular support and the legislation being seen as crucial to national security, the High Court was bound to declare it invalid/ ultra vires  nobody above the law  A law is not necessarily invalid because it is disproportionate, unreasonable or unjust  the Act was ultimately found invalid because it failed to comply with a specific limitation on legislative power imposed by the Australian constitution (it was not an exclusive power)  Government is subjected to the law, but it is not legally required to do everything in which people consider to be essential to the rule of law  the rule of law thus stands as a political ideal  Comments from Dixon J: “The constitution is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simple assumed. Among these I think that it may fairly be said that the rule of law forms an assumption.”  The Australian Constitution is thus framed upon the assumption of the rule of law existing [per Gleeson CJ in In Plaintiff S157/ 2002 v Commonwealth (2003)]  “As an idea about government, the essence of the rule of law is that all authority is subject to, and constrained by, law. The opposing idea is of a state of affairs in which the will of an individual, or a group, (such as a party), is the governing force in a society. The contrasting concepts are legitimacy and arbitrariness. The word ‘legitimacy’ implies an external legal rule or principle by reference to which authority is constituted, identified, and controlled.” 1.4 Constitutionalism  The principle of constitutionalism requires that Government power be limited  limits on government power operate as constitutional limits  Australia has both a legal and political constitutional model  a hybrid of the US model (from which Australia has adopted federalism) and the UK model (our legal/ political Westminster system)  Constitutionalism is a political doctrine  holds that the law of the constitution is supreme law, in both a legal and political sense  Some legal systems have written constitutions  Some legal systems have ridged constitutional models  The Australian constitution is a ridged constitution, as it cannot be changed without satisfying the double majority requirement in a referendum (difficult to do)  Political constitutionalism  puts political limits on government power; it is unwritten and not enforceable in a court of law  E.g. GG (Governor General) acts on the advice of the Government  Legal constitutionalism  puts limits on government power; however, it is written and subject to judicial review  E.g. the Communist Party case  The Commonwealth Constitution  The Australian Constitution is a set of rules that establishes the nature, functions and limits of government, and determines the powers and duties of the government  Many countries have created a constitution, which often guarantee certain rights to the people of those countries  Australia has a formal written constitution  known as the Commonwealth of Australia Constitution Act 1900 (UK) and came into effect 1 January 1901  Some of the main features of the Australian Constitution are as follows:  It establishes the Commonwealth Parliament (Federal) and outlines its structure, including how its two houses (the House of Representatives and the Senate) are to be composed Downloaded by Yazeed Evans ([email protected])  lOMoARcPSD|41423739 Rosie Osborn 18 July 2023  Establishes the High Court of Australia and gives it powers to interpret the Constitution  Sets out matters relating to the states  expressly provides that state laws will continue in force in the state which made them unless they are altered or repealed  Facilitates the division of law-making powers by setting out what law- making powers are held by the Commonwealth Parliament, and which are held by the states, or both  Provides a mechanism by which the wording of the Australian Constitution can be changed  by means of a referendum  Many other countries’ constitutions include a bill of rights, but Australia’s does not  although, it does protect a number of rights, such as the right to a trial by jury in limited circumstances  The Australian Constitution also provides a series of protections (checks) to ensure that all areas of government can operate in a manner that is consistent with key principles that underpin democracy  It is because of the Australian Constitution that the central systems and foundations of the political and legal systems in the country – such as the Commonwealth Parliament, and the referendum process – exist 1.5 Case study: should we obey bad laws?  Notes taken from The Age article   Without laws, there would be anarchy and rampant injustice; most people are keen to obey democratically created laws that do not transgress morality and common sense  Although, “history is replete with examples of good coming from unjust laws being broken, and of evil coming from unjust laws being observed.”  Martin Luther King: “An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law.”  Notes from ‘The Conversation’ article   To have a political obligation is to have a moral duty to obey the laws and support the institutions of one’s political community  Makes mention of Socrates; suggests that to disobey the law would be to mistreat or disrespect his fellow citizens  Discusses whether or not the laws we are subjected to are indeed constitutive of a reasonably just, mutually beneficially, collaborative society  if we don’t see the community as bound by laws that enable us to cooperate together in a mutually beneficial way, then it is not clear that a genuine political community had been established in the first place  Argument of civil disobedience  eloquently argued in Martin Luther King’s ‘Letter from a Birmingham Jail’  Must be willing to suffer the consequences of disobeying the law in the hope of transforming the views of fellow citizens  Need to take the public good into consideration, and not simply one’s own particular interests  Martin Luther King’s martyrization elucidates the dilemma of how free societies deal with deep disagreement, including about the nature of injustice  Notes from ‘Letter from a Birmingham Jail’  Downloaded by Yazeed Evans ([email protected])  lOMoARcPSD|41423739 Rosie Osborn 18 July 2023  Key quote(s)   “YOU express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, it is rather strange and paradoxical to find us consciously breaking laws. One may ask ‘How can you advocate breaking some laws and disobeying others?’ The answer is found in the fact that there are two types of laws: there are just laws, and here are unjust laws. I would agree with St. Augustine that ‘An unjust law is no law at all.’” WEEK 2 Democracy, relationships and structures 2.1 Democracy  Democracy at a basic level means ‘ruled by the people’  a democracy is a system of government elected by the whole population or all the eligible members of a state (who then become ‘representatives of the people’)  Australia is a democracy, as those in power (the legislators/ government) are elected by the people, and are susceptible to public scrutiny and outvoting  Winston Churchill has said:  “Many forms of government have been tried and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of government except for all those other forms that have been tried from time to time.”  Australia exists as a representative democracy, rather than one that is direct  Direct democracy  people vote to make their own laws; individuals have a direct say on the creation of legislation  Representative democracy  people vote for a small group of parliamentarians, who make laws on the behalf of the people (people choose who should govern on their behalf via elections)  There are numerous benefits in maintaining a democratic political system, as well as instrumental justifications for democracy, for example:  It allows individuals to have a say toward how they are governed  It produces positive outcomes for the majority of the people; if under a dictatorship, people’s quality of life and sense of autonomy would be severely restricted  It encourages civic participation, and can lead to relationships amongst and empathy within citizens  Representative nature of parliament encourages members of parliament to listen to the views of the community and make laws in accordance with these views  Parliament makes laws ‘in futuro’  means that the Parliament will make laws to apply to future events. This aims to protect society by developing a code of conduct within the community to promote social cohesion  When people see the need for a change in the law, they may undertake a range of activities, such as forming a petition, organizing a demonstration or using social media  INSTRUMENTAL JUSTIFICATIONS  focuses on the outcomes that are derived from democracy; it is justified as it produced relatively good laws and policies  Ability to enhance responsiveness (parliamentarians must be responsible to the needs and desires of the people, or they will risk being outvoted; forces decision makers to take into account the rights and interests of a wider range of its subjects)  Notion that ‘diversity-trumps-ability’ (democracy brings in a more diverse range of ideas and perspectives, and in doing so, promotes a more effective governmental/ legal system)  engages a plurality of ideas  Character-based (voter apathy, voter disillusionment may lead to greater incentive to vote/ outvote insufficient governments) (promotes greater morality) Downloaded by Yazeed Evans ([email protected])  lOMoARcPSD|41423739 Rosie Osborn 18 July 2023  INHERENT JUSTIFICATIONS  system that is designed to promote and achieve equality, takes into consideration the ethical and moral social justifications for democracy (values inherent to method)  Liberty  However, there are also pitfalls to a democratic system, for example:  In large and complex societies, it can be difficult to achieve a happy-medium or a solution that satisfies everybody  In an attempt to be re-elected, members of parliament may introduce and support laws that are popular with voter rather than passing more controversial laws that may be necessary  Implementing regimes or other things that are voted on by the majority can, in turn, alienate the minority groups within society  The ‘tyranny of majority’ is an inherent weakness to majority rule, in which the majority of an electorate pursues exclusively its own objectives at the expense of those in minority factions  can result in oppression of minorities  Perpetually marginalised groups: those who have been systemically and historically denied (First Nations Australians) The role of parliamentarians in democracy:  The House of Representatives (the lower house) is sometimes referred to as ‘the people’s house’  reflects the majority opinion of the people at an election, because it determines which party or coalition should from government (house of government)  Represents 151 electorates, geographical divisions for voting  All members who are elected are contracted for a period of 3 years, unless government calls early  Voters elect the representative of their electorate who assume the seat in parliament  The house of representatives represents the people, their role is to introduce and pass proposed bills and form the Australian government  Senate holds 76 seats in the upper house, each of 6 states holds 12 each and territories hold 2 each  Senators elected for 6-year period, and territory senators contracted for just 3 years  Often referred to as the house of review  Represents interests of the states and territories, introduces and reviews bills passed by the House of Representatives  Parliamentarians – both federal/ state or territory – must   Vote in accordance with their electors’ preferences; and  Vote in a way that uses their own judgement; and  Vote in a way that reflects the ‘party lines’  With representative government, there is a link between the people, the parliament and the government ensures members of parliament are responsive to the needs of the people and make laws that reflect the views and values of the community  Representatives also allow members of society – particularly those who might represent a minority group who feels they have been ignored – to have a sense that they can influence individual members of parliament  Individuals and pressure groups can organize petitions and demonstrations in an attempt to pressure members of parliament and governments to introduce law reforms for their personal benefit  If these methods gain strong community support/ media attention, governments will be more likely to respond through fear of losing popularity with voters Types of Government in Australia:  There are typically three modes of governance which allow the legislature to provide, distribute, regulate, and constitute  these are:  Hierarchical governance  Governance by markets  Governance through networks Downloaded by Yazeed Evans ([email protected])  lOMoARcPSD|41423739 Rosie Osborn 18 July 2023  Governments provide, (re)distribute, regulate and constitute  the law facilitates and controls the functioning of the three arms of government by:  Constructing and empowering the institutions and actors which undertake government activities  Creating and shaping the tools employed by the government to carry out their duties  Creating the infrastructure and rules for enforcement and dispute resolution  Creating the mechanisms through which institutions and actors undertaking government activities are held accountable The role of the Constitution in democracy:  Section 1 of the Australian Constitution sets out the structure of the Australian government:  “The legislative power of the commonwealth shall be vested in the Commonwealth which shall be vested in the Queen, the Senate and a House of Representatives  The constitution establishes Australia as a Parliamentary democracy, a federal system with a Commonwealth and state government(s), and it also insists that the government must have three arms (executive, legislature and judiciary) 2.2 Federalism  Federalism is a system of government in which sovereign legislative power is shared between two or more territorially defined levels of government   A central, national government; and  A number of regional (state and/or local) governments and where the distribution of power is affected by –  A written constitution; and  Policed by an independent arbiter  Pivotal reasons for federation in Australia (1901)  Free Trade, Defence, Growing sense of patriotism (and also, to control migration)  The two levels of functioning government (state and federal) are independent, but interconnected  section 51 of Constitution hold commonwealth heads of power (concurrent with state), and section 109 of Constitution seeks to resolve inconsistencies with state and federal law; in the event of inconsistency between a state and a federal law, the federal law will remain and the state law will be made invalid to the extent of the inconsistency Advantages of federalism Disadvantages of federalism - Creates, empowers, respects and - May lead to Australia being ‘over- protects separate national and sub- governed’ national governments - Encompasses an outdated division of - ‘laboratories of democracy’ roles and responsibilities between - Provides a stable foundation by which state and federal governments a democracy can be spread across a - No clear distinction between various large territory and population roles and responsibilities (the - Divides and disburses power across a constitution allows both the state and number of governments federal governments to legislate on - Protects liberty and restrains the over certain topics) concentration of power (Justice Kirby) - Ineffectual cooperation between the - Strengthens governments’ state and federal governments  responsiveness to local interests sometimes a clash in areas of - Provides citizens with diversity and concurrent powers (section 109) choice - Duplication, overlap and inconsistent - Facilitates efficient government regulation  occurs when multiple states impose laws and regulations surrounding the same topic  Different types of governments/ governmental systems include:  Absolute Monarchy  Saudi Arabia  Constitutional Monarchy  Australia/ UK  Republic  China or Ireland Downloaded by Yazeed Evans ([email protected])  lOMoARcPSD|41423739 Rosie Osborn 18 July 2023  Theocracy  Vatican City  Dictatorship  North Korea  Communism/ communist state/ kleptocracy  Russia Australia vs the US:  Inherited federalism from the US, but decided against the implementation of a written ‘Bill of Rights’  Instead, adopted the Westminster political system and remained as a constitutional monarchy Division of constitutional law-making powers:  To allow for federation, the colonies had to give up some of their powers to the new Commonwealth Parliament kept some powers, shared some powers and gave up some powers completely  Law-making powers are powers or authority given to parliament to make laws in certain areas  exercisable by parliament (supreme law-making body in Australia)  When the Commonwealth Parliament was established, it was necessary for the Australian Constitution to specify which powers were to be given to that parliament, and which powers were to be left with the states  Though, state governments can be altered through parliament passing new legislation or amending existing legislation, as the power is not constitutionally enshrined  The Australian Constitution divides law-making powers into:  Residual powers  law-making powers that were left with the states at the time of Federation (Commonwealth Parliament has no authority to make laws in these areas)  Exclusive powers  law-making powers that are held only by the Commonwealth Parliament, and only the parliament can create laws in these areas  Concurrent powers  law-making powers that are shared by the Commonwealth and state parliament  Residual powers:  Those powers left with the states at the time of Federation and not listed in the Australian Constitution  Specific sections of the Constitution protect the continuing powers of the states to create law in areas that were not given to the Commonwealth  include sections:  106 Saving of Constitutions  107 Saving of Power of State Parliaments  108 Saving of State laws  ‘Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament the Commonwealth, shall, subject to this Constitution, continue in force in the State…’  Areas of law-making such as criminal law, medical procedures such as in-vitro fertilization, road laws, education and public transport are not mentioned in the constitution  therefore remain as areas of residual power  In these particular areas of law, the state’s laws may differ  each state has its own courts, its own laws which establish crimes and sanctions, and its own police force  Exclusive powers:  Most of the law-making powers of the Commonwealth Parliament are set out in section 51 of the Australian Constitution and are referred to as ‘heads of power’  The key powers of the Commonwealth are either exclusive powers or concurrent powers  An exclusive power is one which can only be exercised by the Commonwealth Parliament  this means that only the Commonwealth Parliament can make laws in these areas, for example:  Defence  the Australian Defence Force, including army, navy and air force  Currency  printing and coining money  Customs and border protection  immigration, controls on imports and exports, and border security) Downloaded by Yazeed Evans ([email protected])  lOMoARcPSD|41423739 Rosie Osborn 18 July 2023  Some powers that are held by the Commonwealth are made exclusive by other sections of the Constitution  Other powers held by the Commonwealth are exclusive by their nature  Section 51(xix) gives power to the Commonwealth to make laws relating to naturalization  Sections 111 and 122 give exclusive power to the Commonwealth with respect to Commonwealth territories (Northern Territory and the Australian Capital Territory)  ENUMERATED POWERS powers granted to the federal government which are specifically listed in the Australian Constitution  Concurrent powers:  Concurrent powers are law-making powers that both the Commonwealth and the state parliaments share  many of the powers given to the Commonwealth Parliament in the Australian Constitution are concurrent powers  Examples of concurrent powers include:  Trade both can make law with regard to trade  Taxation  the power to make laws about taxation is given to the Cth Parliament, but state parliaments can also make laws about taxes  Marriage and divorce  both have power to make laws on marriage and divorce  Postal, telegraphic, telephonic and similar services  communication services may be legislated upon by both the Commonwealth and state parliaments  ENUMERATED POWERS  Comparison of law-making powers: 2.3 The Separation of Powers  The Australian Constitution establishes three separate types of powers in the parliamentary system  at the federal level, it requires all three powers to operate independently of each other Downloaded by Yazeed Evans ([email protected])  lOMoARcPSD|41423739 Rosie Osborn 18 July 2023  The purpose of the separation of powers is to ensure that no one body has absolute power or control over the functions of the political and legal systems  one of the core principles of the rule of law  Montesquieu  ‘it is necessary from the very nature of things that power should be a check to power...’  James Madison, The Federalist, No. 47, 303   “The accumulation of all power, legislative, executive and judiciary in the same hands, whether of one, or few, or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.”  “Unless these departments be so far connected and blended, so as to give each a constitutional control over the others, the degree of separation which the maxim requires as essential to a free government, can never in practice, be dully maintained.”  Contemporary theories of the separation of powers have been put forward notably by Eric Barendt, in Separation of powers and constitutional government, P.L. 1995, Win, 599-619, 606:  “[T]he separation of powers is not in essence concerned with the allocation of functions as such. Its primary purpose... is the prevention of the arbitrary government, or tyranny, which may arise from the concentration of power. The allocation of functions between three, or perhaps more, branches of government is only a means to achieve that end. It does not matter, therefore whether powers are always allocated precisely to the most appropriate institution...”  The three powers are:  Executive power  Legislative power  Judicial power  Executive power: power to administer the laws and manage the business of government  At a Commonwealth level, this power is vested in the Governor-General under Chapter II of the AC  Specifically, section 61 of the AC states that the executive power of the Commonwealth is vested in the Queen, and exercisable by the Governor-General  In practice, the executive power is carried out by the prime minister, senior ministers and government departments (the executive authority sits within the legislative body)  Legislative power: power to make laws.  This power resides with the Parliament under Chapter I of the Australian Constitution  Specifically, Section 1 of the Australian Constitution states that the legislative power of the Commonwealth shall be vested in the federal parliament  In Australia, the legislative power and the executive power are combined in practice, the power to administer the law and carry out the business of government is placed in the hands of the Cabinet rather than the executive  The Cabinet consists of the Prime Minister, and senior ministers, whose main role is to decide on general government policy and formulate proposed laws to be introduced to parliament  The executive power and the legislative power are also closely linked laws passed by the parliament must receive royal assent from the Queen’s representative to become a law  Also many Acts of Parliament that give the Executive Council (body that the Governor-General comprises) the right to make regulation, but parliament retains the right to disallow or reject these regulations  Judicial power: the power given to courts and tribunals to enforce the law and settle disputes  At a federal level, it is provided for under Chapter III of the Australian Constitution, and is vested in the High Court and other federal courts  Section 71, in particular, states that the judicial power of the Commonwealth shall be vested in the courts Downloaded by Yazeed Evans ([email protected])  lOMoARcPSD|41423739 Rosie Osborn 18 July 2023  The legislative power and the judicial power must be kept separate  only a court or tribunal has the power to decide if a law (made by parliament) has been contravened  Role of the High Court to decide on disputes involving the Constitution  though, as a secondary role, courts have the power to make law (case law/ common law)  Although the state and federal parliaments appoint judges, the courts are independent of political influence  safeguards citizens against misuse of political power or corruption in the resolution of disputes  The impartiality of judges is protected by the fact that federal judges are appointed until the age of 70 and cannot be removed unless there is proven bad conduct and parliament approves their removal  Ministers/ members of parliament who unfairly criticize judges’ decisions maybe found in contempt of court  cannot be removed unless both houses vote to remove after misconduct is proven  Judges’ salaries can also not be reduced by ministers (means they will not be unfairly treated even if their decisions are in contravention of governmental policy Purpose(s) of the separation of powers doctrine:  The principle of separation of powers prevents power from being concentrated in one set of hands, and thus helps to protect individual rights by providing checks and balances on the power of the government  The government and the parliament must work together to pass laws, and the independence of the judiciary must be preserved  a person who feels a parliament has passed a law that breaches the constitution or basic human rights can take the matter to court  The power to judge criminal guilt, and to punish those who have broken the law, resides with the judiciary  it would be a conflict of interest if the parliament – which makes the laws – were also given the power to prosecute and adjudicate on issues relating to those same laws  Also, to maintain the independence of the judiciary, judges cannot take a seat in parliament (where laws are made) Strengths and weaknesses of the separation of powers:  Strengths in the separation of powers acting as a check on parliament in law making:  The separation of powers allows for the executive to be scrutinized by the legislature  provides checks and balances as the legislature can refuse to pass legislation it considers inappropriate  The judiciary is independent of the parliament and government  vital, as it allows judges to interpret and apply the law without political pressure  At times, the upper house is controlled by the opposition, or is composed of minority parties and independent senators  provides for greater scrutiny of the exercise of legislative power  The principle of separation of powers is entrenched in the Australian Constitution  to abolish the principle would require a referendum – a difficult outcome to achieve  Weaknesses in the separation of powers acting as a check on parliament in law making:  The legislative power and the executive power are combined  can decrease the ability of the separation of powers principle to act as a check, because – in practice – the power to administer law is carried out by the Cabinet (part of parliament)  Judges are appointed by the executive  may be perceived as the executive influencing the composition of the benches of superior courts  Where the government controls the Senate, there is far less scrutiny applied to proposed laws and therefore the exercise of legislative power  If the opposition controls the Senate, it can obstruct bills for political gain rather than providing authentic scrutiny  The Australian Constitution only provides for separation of powers at a federal level, not state 2.4 Responsible Government Downloaded by Yazeed Evans ([email protected])  lOMoARcPSD|41423739 Rosie Osborn 18 July 2023  Responsible government refers to the relationship that the ministers of government have with the parliament  used to describe the political system where the executive government, the cabinet and ministry, is drawn from, and accountable to, the legislative branch  Executive branch is enormous  encompasses very major roles from the cabinet and GG, to law enforcement and public servants  Many principles of responsible government are constitutional conventions – that is, they are political expectations or norms but not legally enforceable  Responsible government entails the Government being responsible to the people  they are elected to represent the interests of Australian citizens and are chosen to govern on their behalf  The parliament uses ‘question time’ when sitting as well as committees to scrutinise the activities of the executive  A ‘no confidence’ motion in the government passed in the Lower House means a loss of that majority and by convention must lead to the government resigning  The parliament’s ultimate ‘’weapon’ is its power over the supply of money to the executive, which is needed for the government to continue to function  Why might it be desirable for executive Ministers to be members of parliament?   This money can be withheld, and if the Prime Minister cannot guarantee supply (funds) for his government, they must resign  Ministerial responsibility is an imperative ideal within the principle of responsible government  refers to the fact that ministers are individually responsible to parliament for the activities of their administrative departments  Public servants are responsible to their minister who is responsible to parliament  If a serious misdeed within a government department occurs, or parliament is misled, the responsible minister may be required to resign from their position Dismissal of Gough Whitlam – controversy  Discussion around three different constitutional conventions that were allegedly/ seemingly broken; elucidates the importance – yet problems associated with – constitutional conventions (limits, knowable/ clarity etc)  they include:  (1) Some people argue that there is a constitutional convention that the Senate will not block the supply (of funds), and the Senate breached this convention by refusing to pass the budget  (2) Although, others insist that there is a constitutional convention that the Governor General should act on the advice of the Prime Minister, and that the Governor General had breached this convention as he did not discuss his concerns with Whitlam – instead, he simply dismissed him  (3) Ultimately, the people claim that the Whitlam government breached the constitutional convention that it would resign if it could not guarantee supply of money  Dismissal of Whitlam divided Australia and Australian citizens in a multitude of ways  Importance of conventions in Australia’s legal order, yet also some of the limitations associated with such conventions  Whitlam  Prime Minister 1972-1975, leader of ALP  Reformist government, though not un-problematic (a lot of initiatives introduced)  Whitlam had majority in HoR but not in Senate, spent a lot of money on various reforms  Leader of opposition announced they would block money bills; if the PM cannot guarantee the flow of money then there is constitutional convention they must resign  Whitlam government could not pass the budget, and could therefore not govern/ run the country  Sir John Kerr  Governor General  Aware of impasse (crisis) government had arrived at, exercised his power under section 64 of the constitution to dismiss Whitlam  Kerr legally authorised to dismiss Whitlam, but Whitlam undermined (Kerr had exercised his power without consultation/ discussion with the PM)  Fraser  leader of the opposition Downloaded by Yazeed Evans ([email protected])  lOMoARcPSD|41423739 Rosie Osborn 18 July 2023  Refused to pass the Whitlam government’s budget in the Senate (held the majority)  Double dissolution... 2.5 Australia’s relationship with the world  The executive (federal) government had the power to engage in international treaties and declarations with other nations  The executive can make these arrangements, but this does not instantly filter into Australian domestic law  Federal parliament must implement the arrangement (a treaty/ declaration etc) in order for it to be received in domestic Australian law  International Customary Law  rules developed over many years by which nations feel themselves to be bound (not all agreed upon, but known to be important); similar to constitutional conventions  International law  typically made by international action, rather than the act of individual governments; sources of international law include:  International agreements  agreements negotiated and ultimately entered into by two or more nations (treaties, conventions, covenants and so forth)  The decisions, declarations and instruments made by international legal bodies, many of which were first established by international agreement  most important of these is the United Nations  International customary law  rules that have developed over time, by which most nations consider themselves bound  Under section 51(xxix) of the Australian Constitution, the Commonwealth Parliament has the power to create laws in relation to ‘external affairs’  has been relied on by the Cth Parliament to pass legislation that reflect international agreements that Australia has entered into  High Court has decided that the external affairs power includes authority to legislate to give effect to international agreements such as a treaty  gives ability to make laws in areas of law-making power that are neither exclusive nor concurrent areas of power  The Commonwealth can potentially legislate on a residual power if the treaty topic covers that area  as a result of section 109, the laws of the state would become invalid to the extent of inconsistency  International treaties and declarations:  Australia is an active member of the international community  government enters into agreement with other nations in key areas such as trade, environmental protection and human rights  Two types of agreements are treaties and declarations  International treaties:  International treaties are a binding agreement between countries and are governed by international law  can be bilateral (between two countries only) or multilateral (between three or more countries)  A multilateral treaty is generally developed through international organizations such as the United Nations  Treaties confer jurisdiction on Federal Parliament through the external affairs power  s 51(29)  Australia operates as a dualist system  E.g. of treaty is the Convention Concerning the Protection of the World Cultural and Natural Heritage, adopted by the General Conference of UNESCO in 1972  terms have been influential in shaping policy on the environment since the 1980s  There needs to be international cooperation in areas such as trade, human rights and the environment; one country acting alone can achieve little in these areas without assistance  The power to enter into treaties in considered an executive power under section 61 of the Australian Constitution  responsibility of the executive (government) rather than the parliament (legislature)  Although, the Commonwealth Parliament plays a role before a treaty is ratified  All treaties must be tabled in both houses of the Cth Parliament at least 15 sitting days prior to the Commonwealth Government agreeing to ratify the treaty Downloaded by Yazeed Evans ([email protected])  lOMoARcPSD|41423739 Rosie Osborn 18 July 2023  Ratification makes the treaty binding under international law  executive has the right to remove itself from obligations under a treaty if it considered the terms no longer serve Australia’s interests  An international treaty is not Australian law  can only apply in Australia if the parliament passes a statute that includes the provisions set out in the treaty  International declarations:  In contrast to a treaty, an international declaration is a non-binding agreement between countries which sets out certain ‘aspirations’ or ‘intentions’ of the parties to the agreement  Declarations can be influential in the development of government policy, as they can ultimately lead to a treaty being made, such as the case of the Convention on the Rights of the Child (1989)  E.g. of a declaration if the Declaration on the Rights of Disabled Persons (1975), some of the key features of which are reflected in the Disability Discrimination Act 1992 (Cth) International agreements and interpretation of external fairs power:  The Commonwealth has signed a number of treaties and declarations, which gives it a range of topics that can be the subject of the Commonwealth legislation  In a series of cases, the High Court has interpreted the term ‘external affairs’ as giving power to the Commonwealth Parliament to pass legislation to give effect to obligations or rights under international law WEEK 3 Origins and Evolution of Australian Public Law; Constitutional recognition of Indigenous Australians 3.1 Australia’s first public law  Many legal instruments underpin the contemporary institutions of public law; though, it is vital to understand the historical developments and how Australia’s first public law has been shaped into the legal system in which we live today  As per Gordon J of the High Court (2020), Australian public law and its institutional structures were built upon a pre-existing system of indigenous nations, societies and laws:  “Federation created the Commonwealth of Australia, a polity that ‘sprang from the brain of its begetters armed and of full stature.” But that polity was asserted and established territorially – on the same territory, with the same people, that existed prior to the formation of the Commonwealth. It was not formed out of nothing. And it did not wipe the slate clean of tens of thousands of years of history.” Love v Commonwealth; Thoms v Commonwealth HCA 3 at (Gordon J)  “The fundamental premise from which the decision in Mabo v Queensland (No 2) proceeds – the deeper truth – is that the indigenous peoples of Australia are the first peoples of this country, and the connection between the indigenous peoples of Australia and the land and waters that now make up the territory of Australia was not served or extinguished by European ‘settlement.’” Ibid. (Gordon J)  “The metaphysical ties between that child and the Australian polity, by birth on Australian land and parentage, are such that the child is a non-alien, whether or not that are a statutory citizen...” Love v Commonwealth; Thoms v Commonwealth HCA 3 (Edelman J)  George Pascoe on the Ngarra law of Arnhem land, which goes back ‘thousands’ of years:  “The Ngarra law has functions for thousands of years and has dealt with individual crisis, sorcery, community ills and inter-clan Aboriginal warfare. Ngarra law is still being used in many parts of Arnhem Land. The legal system is expressed through arts, such as painting, song and dance, and through natural habitats, such as rock, earth and water formations and the plants and animals living in them. There are many areas of Ngarra law, such as law on land and sea, law on marriage and law of ceremony.” Downloaded by Yazeed Evans ([email protected])  lOMoARcPSD|41423739 Rosie Osborn 18 July 2023  Indigenous customary law developed form accepted moral norms within indigenous societies  regulated human behaviour, mandated specific sanctions for non- compliance, and connected people with the land and with each other through a system of relationships  Indigenous customary law not uniform across Australia – systems differ greatly between language groups, clans and regions  In contrast to the aforementioned sources and expressions of indigenous public law, Anglo-Australian constitutional history begins with the acquisition of territory by GB in 1788  when the British settled in 1788, British law was received (applied) by the colony of NSW  Other colonies were formed, and they too received British law  British law was applied to the colonies on the legal basis of ‘Terra Nullius’ From Terra Nullius to recognition:  A Latin term meaning ‘belonging to no one,’ and was used as a legal and moral justification for the acquisition of land by British occupation without treaty or payment for such land (Governor Phillip declared British law to be the law of the land on the assumed moral and legal basis that Australia was uninhabited before British settlement)  “[A] colony which consisted of a tract of territory, practically unoccupied, without settled inhabitants or settled law.” Lord Watson, Cooper v Stuart (1889) 14 App. Cas. 286 at 291  Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1 described the doctrine of Terra Nullius   “...the theory which underpins the application of British law to the Colony of NSW is that British settlers brought with them the land of England and that, as the indigenous inhabitants were regarded as barbarous or unsettled and without a settled law, the law of England including the common law became the law of the Colony (so far as it was locally applicable) as though NSW were ‘an uninhabited country... discovered and planted by British subjects.’ The common law thus became the common law of all subjects within the Colony who were equally entitled to the law’s protection as subjects of the Crown. As the subjects of a conquered territory and of a ceded territory became British subjects, a fortiori the subjects of a settled territory must have acquired that status.”  Brennan J also explained the systemic oppression and omission of indigenous people as  “a discriminatory denigration of indigenous inhabitants, their social organisation and customs.”  The HC decision in Mabo No 2 was integral to the Australian political and legal systems, as the legal fiction of an uninhabited territory was rejected (see Mabo 10 marker)  In 1992 High Court recognised pre-existing indigenous law, called ‘native title,’ but it did NOT question the validity of the reception of English law into Australia  However , while the decision in Mabo No 2 did reject the British version of the doctrine of terra nullius, it did not call into question the validity of settlement and the reception of British law into Australia Indigenous sovereignty:  The partial recognition of Indigenous law in Mabo No 2 perhaps catalysed the reassessment of indigenous sovereignty  authority to govern oneself  Although, Mason CJ (sitting alone) dismissed any possibility of such arguments in two cases: Coe v Commonwealth (No 2) and Walker v New South Wales  indigenous Australians have argued that they belonged to sovereign indigenous nations  In Coe v Commonwealth (No 2) the plaintiff sought to argue, on behalf of the Wiradjuri people, that the Wiradjuri were a sovereign nation of people. And alternatively that they were a domestic dependent nation entitled to self- government and full rights to their traditional lands  Mason CJ rejected these arguments, stating indigenous people could only enjoy the rights recognised by the Anglo-Australian law, and that the acquisition of sovereignty by the British could not be challenged in Australian courts Downloaded by Yazeed Evans ([email protected])  lOMoARcPSD|41423739 Rosie Osborn 18 July 2023  In Walker v New South Wales, Mr Walker argued that indigenous Australians are not bound by British law at all, on the basis that they never formally consented to it  Mason CJ again was not persuaded by and rejected the sovereignty argument  “In so far as it is based on the proposition that the legislatures lacked power to legislate over Aboriginal peoples, the statement of claim discloses no reasonable cause of action.”  Although Indigenous people have never ceded their sovereignty, the position that Mason CJ has expressed remains unchanged  contentious within Australian public law  New perspectives and questions have been raised with regard to indigenous sovereignty, however, with the Love v Commonwealth; Thoms v Commonwealth case  read! 3.2 reception of British law  At the time of British settlement, the incorporation of British law in Australia was legal according to British and international law (though not indigenous law)  regardless, issues surrounding the legal validity of British law in Australia were assumed to be resolved by the passage of the Australia Courts Act 1828 (by Imperial Parliament)  Confirmed that British law had been received by the Australian colonies, and that it had occurred in NSW, Tas, Vic, and QLD in 1828  Reception date of British common law in other colonies was determined by other legislation: for WA, 1828; for SA, 1839 3.3 The evolution of the colonial governments  Colonies were initially ruled by their governor  an office holder appointed by the British government; all power was concentrated in this person, and there were no separate courts or colonial parliaments  Governor ruled on behalf of Britain, though due to distance and poor communication, Britain exerted very little influence over the administration of the colony  governor effectively acted as an autocratic leader  Over time, colonies become disillusioned and did not accept governor’s autocratic rule  powers were progressively reduced or delegated, and each of the colonies transitioned to a more representative system of government  Each colony eventually established its own Parliament, comprising of two houses, at least one of which was elected by the people of the colony  Conventions of the Westminster responsible government were also adopted in each colony, requiring Governors to exercise their powers on the advice of local Ministers who were members of, and held responsible to, the colonial legislature  Australian Constitution’s Act (No 2) 1850 (Imp) authorised the colonial Parliaments to draft constitutions for their respective colonies  The franchise (right to vote) was initially limited by qualifications such as race, sex and poverty  SA was first to introduced ‘universal’ suffrage for adult men in 1856 Powers of colonial parliaments  One constitutional systems were in place, Imperial Parliament viewed each colonial legislature to be largely self-governing  though, there were three significant limits on colonial legislative powers:  1) Unable to pass any law that was repugnant to certain laws of the Parliament in Westminster (British law was superior to Australian colonial law)  s 2 Colonial Laws validity Act 1865  2) Could not enact extraterritorial legislation (no colony could legislate with regard to an act or event outside its physical territory)  3) Reserve power of the British Monarch to disallow a colonial law, even after the relevant Governor of the colony had given assent  Other than those three limits, each colonial parliament had total competence to pass laws as they wished  Though the colonies have now become states, these principles still continue to shave Australian public law  state parliaments still enjoy very broad legislative powers and state constitutions place very few limitations on the laws that they can pass Colonial courts and the Privy Council Downloaded by Yazeed Evans ([email protected])  lOMoARcPSD|41423739 Rosie Osborn 18 July 2023  Colonies also later established their own courts, which were responsible for deciding legal disputes that arose within each colony  many cases were decided in accordance with the laws of Britain  Colonial courts were subordinate to a British court called the ‘Judicial Committee of the Privy Council’ (Privy Council)  heard appeals form courts in all British colonies and colonial courts were bound to abide by the decisions of the Privy Council  Eventually, the avenue of appeal to the Privy Council was abolished (many decades after federation) Important legislation/ steps to enacting constitution and legislative freedom:  Federation formed 1901:  Commonwealth, Parliament and Courts also acquired law making functions.  Statute of Westminster 1931 (UK):  Commonwealth parliament was granted full legislative independence from the UK.  Restrictions on Commonwealth Parliament removed.  Australia Act 1986:  Severed Australia’s legislative links with UK.  Removed limitations on powers of state Parliaments – arising originally in the colonial laws validity act.  Abolished Privy Council appeals.  Federation:  1901 proclamation of the Australian constitution.  General movement towards a need for a more centralised system of government.  Commonwealth of Australia Constitution Act 1900 – created by statute.  Central institutions of government, courts and administration concerned with national matters.  Regional institutions include states, shires, local councils responsible for local matters. Paul Keating’s Redfern Park Speech  In December 1992, Paul Keating in his famous Redfern Park speech said of Mabo [No 2]  “Mabo is an historic decision – we can make it an historic turning point, the basis of a new relationship between Indigenous and non-Aboriginal Australia’s.”  Substantive change/ recognition (an active approach to reconciliation)   Australia is a first-rate social democracy  land of a fair go and a better chance  Recognise the fact of how complex identity is  cannot be separated from Indigenous Australia  Failure to bring much more than demoralisation  plight of aboriginal Australians affects us all  The problem starts with us – the non-aboriginal Australians  “It was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We brought the diseases and the alcohol. We committed the murders. We took the children from their mothers. We practised discrimination and exclusion. It was our ignorance and our prejudice, and our failure to imagine that these things could be done to us.”  Recognition that we took the traditional lands and smashed the traditional way of life  Our ignorance and our prejudice  failed to make the most basic human response; how would I feel if this was done to me?  The past lives on in the prejudice of non-Indigenous Australians  Guilt does not produce the response we need; not a very constructive emotion  recognise what we have in common, we will see the practical things that must be done (implementation of councils) Bringing them home report 1997  The Report concluded that, in the period from 1910 to 1970 , between 10% and 30% of Indigenous children were forcibly removed from their families and communities  during that period, no Indigenous family remained unaffected  Report revealed the shattering effects of the forcible removal policies in terms of:  The broken ties to family, community and country Downloaded by Yazeed Evans ([email protected])  lOMoARcPSD|41423739 Rosie Osborn 18 July 2023  Diminished physical and mental health as a result of psychological, physical and sexual abuse  The loss of language, culture and connection to traditional land  The loss of parenting skills  Enormous, continued distress experienced by many of the victims  Inquiry made a comprehensive range of recommendations for compensation and other forms of reparations, including:  Government funding for the recording of testimonies of Indigenous people;  An acknowledgement and apology by Australian Parliamentarians, police forces and churches;  Commemoration via a national Sorry Day for stolen children and their families;  Public education about the history of forcible removal and its continuing effects of families, communities and the forthcoming generation;  Funding for family reunion workers to assist people to go home to country and to tell their communities about the removal and its effects;  Establishment of language, culture and history centres to teach separated children and their descendants their language and history;  Compensation for unjustified forcible removal;  Establishment of a National Compensation Fund  Led to the Stolen Generation Apology by Kevin Rudd (2008)  according to Damien Short, 3 types of responses to the apology by Indigenous groups  Some received it unreservedly  Other groups felt that it was a welcome but belated ‘first step’ and that compensation should be the next step  A third group felt that it was a hollow gesture without accompanying compensation  Other criticisms offered toward K Rudd’s speech included  the use of the word ‘blemish’ and the failure to use the word ‘genocide’  “It seems that non-indigenous support was a political pre-condition for making an official apology.” 3.5 Reforming the Constitution  The onerous double-majority requirement set out in s 128 of the Australian Constitution has meant that of the 44 attempts to reform the Constitution, only 8 have been successful  One contemporary reform that is being discussed is constitutional recognition of Indigenous Australians  range from the symbolic (e.g. preamble) to the substantive (e.g. a First Nations Voice to the Commonwealth Parliament) forms of reconciliation/ reform Section 128 (double majority):  The only way the words of the Australian Constitution can be changed is through a referendum process  set out in section 128 of the Australian Constitution  Acts as a restriction on the powers of parliament, because the Commonwealth Parliament cannot change the Constitution outside of the referendum process  Cannot make a change to the wording of the Constitution without referring it to the people, with the key component of the process involving the need to achieve a double majority  The procedure for changing the Australian Constitution, as set out in section 128, has three stages: the parliament, the people and the Governor-General   Referendum  the method used for changing the wording of the Australian Constitution. Requires a proposal to be approved by the Australian people in a public vote by a double majority.  The people:  The Constitution can only be changed after a successful referendum, which is a compulsory vote on a proposed change to the wording of the Australian Constitution  The referendum outlining the proposed change is put to the people not less than two months – and not more than six months – after is has been passed by both houses of the Commonwealth Downloaded by Yazeed Evans ([email protected])  lOMoARcPSD|41423739 Rosie Osborn 18 July 2023  Before the referendum is put to the people, the Australian Electoral Commission sends information to every household that explains the proposed change, and provides arguments for and against  Double majority provision:  In the referendum, voters are required to answer, ‘yes’ or ‘no’ to the question asked; for example, ‘Do you agree to alter the Constitution to inset a preamble?’ (Introductory part of a statute that outlines its purposes and aims)  For the referendum to be successful, each referendum question must satisfy the double majority provision  A majority of voters in the whole of Australia (including the territories) must vote ‘yes’  A majority of voters in a majority of states must vote ‘yes’ to the proposed change – the referendum must be approved by a majority of voter in 4/6 of states before it is accepted  If the proposed change receives a ‘yes’ vote from a majority of voters in a majority of the states as well as a majority of all electors in Australia, then it is presented to the Governor-General for royal assent  The referendum process has proven difficult to achieve – only eight of 44 referendums have been successful so far in the history of Australia  Double majority requirement operates to restrict the power of the Commonwealth Parliament in that the wording of the Constitution can be changed only with agreement of voters according to the requirement Changing the Australian Constitution:  Many of the changes that have been made to the constitution (only 8 out of 44 that have been proposed) have been relatively minor, such as:  1946 referendum that amended section 51 (now appears as section 51(xxiiA) to give the federal Parliament power to make laws with respect to ‘the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits...’  1977 referendum amended s 72 of the Constitution to require High Court judges to retire at the age of 70; before this, judges could sit on the bench for as long as they liked  Arguably, one of the most substantial constitutional amendments occurred in 1967  The 1967 referendum:  The Australian people have voted 8 times in favour of changing the Australian Constitution  most popular change supported focused on the rights of indigenous Australians in 1967  Until 1967 the Constitution specifically denied the commonwealth the power to legislate for Indigenous people in the states or to include them in national consensus  Constitution stated:  Two proposals were put to electors for a proposed change to the Constitution in 1967   A proposal under the Constitution Alteration (Parliament) Bill 1967 (Cth) to alter the Constitution so that the number of members in HoR could be increased without increasing the number of senators  A proposal under the Constitution Alteration (Aboriginals) Bill 1967 (Cth) to remove any ground for the belief that the Constitution discriminated against Downloaded by Yazeed Evans ([email protected])  lOMoARcPSD|41423739 Rosie Osborn 18 July 2023 people of the Aboriginal race, and, to make it possible for the Commonwealth to enact special laws foe these people  The two questions put to the people on the second proposal involved whether indigenous peoples should be included in the national census and whether the Commonwealth should be allowed to create laws regarding ‘People of the Aboriginal Race’  This referendum, if it passed, made the authority to legislate with regard to Australian indigenous people a concurrent power, whereas it had previously been a residual power  Referendum results:  The majority of Australia voted in favour of the referendum  across the nation, the change received a 90.77% ‘yes’ vote (highest ‘yes’ vote to date)  This vote was said to have reflected a general community view that it was time to make amends with the Aboriginal and Torres Strait Islander peoples, although the state with the largest indigenous population (WA) as a percentage of the population recorded the largest ‘no’ vote (19.05%)  The referendum to increase the number of representatives in the HoR, which ran at the same time, was unsuccessful  This referendum gave the Commonwealth Parliament the power to legislate for Indigenous people in the states and territories, and to include them in the national census  this amendment altered Section 51(xxxvi) of the Constitution and deleted Section 127  The amendment allowed the Commonwealth Parliament to move into an area that it was previously denied under the Constitution  an area of residual power became a concurrent power  The outcome of the 1967 referendum highlights the power of the people to decide whether key changes in the wording of the Constitution are to be made, especially those that relate to social and human rights issues  The 1967 referendum gave the Commonwealth the opportunity to become more involved in dealing with ATSI peoples and their needs  able to direct government spending toward indigenous affairs  The referendum gave the Whitlam Government and subsequent governments the authority to expand the Commonwealth’s role in Indigenous affairs and implement major reforms  led to passing of the Native Title Act 1993 (Cth), which allowed indigenous people to claim land rights  Also catalysed changes in the way indigenous people were treated, and the financial assistance they could receive from the Commonwealth The 1999 referendum:  The most recent referendum rejected by the Australian people was in 1999  whether Australia should become a republic  Rejecting a referendum protects the constitution and preserves it in its existing form  In early 1990 Prime Minister at the time Paul Keating expressed a desire for a republic in time for the Centenary of Federation (1 Jan 2000)  coalition parties led by John Howard then won the 1996 election and established a Constitutional Convention  The 1998 Constitutional Convention’s role was to debate the proposed change to the Constitution, which would remove the monarchy as Australia’s head of state  a proposal agreed upon by members of the Convention was put to the people on 6 November 1999  The proposal included two changes to the wording of the Constitution  first was for Australia to become a republic, and the second was to change the preamble to the Constitution  Two bills were passed by the Cth Parliament; the first bill being the Constitution Alteration (Establishment of Republic) Bill 1999 (Cth) which proposed the following changes to Australia’s political system:  Making a president as head of state instead of the Queen’s representative  Setting out a mechanism for selecting a president, including a committee to receive and consider nominations  Establishing the powers of the president  Establishing the term of office and power for removal of the president  Removing monarchical references from the Constitution Downloaded by Yazeed Evans ([email protected])  lOMoARcPSD|41423739 Rosie Osborn 18 July 2023  The second bill, being the Constitution Alteration (Preamble) Bill 1999 (Cth), was aimed at inserting a new preamble (introductory part of a statute that outlines its purpose and aims) into the Constitution Constitutional change and trends:  Given the relative lack of constitutional change that has occurred since its enactment, the late Professor Geoffrey Sawer described Australia as ‘constitutionally speaking, the frozen continent.’  Some argue that the Australian constitution works quite well, and significant change is not needed  Acts as a check on the law-making powers of the parliament  Framework for government provided by the constitution is relatively stable/ well- functioning  Has been little dramatic upheaval or crisis in Australia’s constitutional history  Though, many people argue there is a pressing need for constitutional change: the inclusion of greater limitations on government power, so as to better protect individual rights and freedoms, or at least some statement of national values, is perhaps the most potent.  Another area of constitutional reform that is a perennial debate in today’s society is recognition of Indigenous Australians within public law  it is often argued that the Constitution ought to be amended to include some explicit acknowledgment of Indigenous Australians’ place in the history and law of Australia  There seems to be a consensus that, until there is widespread support for constitutional recognition, no referendum should be presented to the general public  2017 a series of Indigenous Conventions were held around Australia to discuss what Indigenous peoples wanted in terms of constitutional reform, recognition or representation  May 2017 the final First Nations Constitutional Convention, held at Uluru, issued a ‘statement from the heart:’  Uluru statement from the Heart:  The Uluru Statement calls for a First Nations Voice to Parliament and a Makarrata Commission to supervise a process of agreement-making and truth-telling   These reforms are:  Voice  Treaty  Truth  The Uluru Statement from the Heart is a historic document that emerged from the First Nations National Constitutional Convention held in 2017 at Uluru, Australia. It represents the collective voice of Indigenous Australians and outlines their aspirations for constitutional recognition and self-determination. The core components of the Uluru Statement from the Heart are as follows:  Voice to Parliament: The central and most prominent aspect of the Uluru Statement is the call for a "First Nations Voice" enshrined in the Australian Constitution. This Voice would be a representative body that provides Indigenous Australians with a direct say in the decisions that affect their lives, laws, and policies that pertain to them. It aims to rectify historical injustices and ensure meaningful consultati