1B. Constitution and the ROL

Transcription

1 Public Law Notes 1

2 1B. Constitution and the ROL Constitutionalism - French CJ o Written and unwritten - Tomkins o Checks and balances o Creates institutions of states and heads of states o Relations between political institutions and institutions and people o Political and legal constitutionalism Political Those that exercise power are held to constitutional account through political means such as parliament. Robust political processes are assumed Concern: treatment of minorities by political majorities. Legal Principal means by which government is held to account Independence of judges. Concerns: Expense in suing, access to courts is limited Link to separation of powers Separation of Powers - The doctrine of the Separation of Powers purports to prevent the exercise of arbitrary or tyrannical power. It does so by dividing powers between various independent institutions. In other words, rather than one person holding all the power (like in a dictatorship), power is spread between separate people. The power of the state is usually separated into three different arms: - Imagine if the Police Commissioners (members of the executive) were also judges (members of the judiciary). This would mean they could arrest anyone and then convict them automatically, thus exercising arbitrary power. By keeping the 2

3 executive and the judiciary separate, we limit the possibility of arbitrary use of power - Montesquieu o If the legislative and executive powers are infused in the same institution, there can be no liberty. The same applies when the judiciary is not separated from the legislative and executive If no separation between judiciary and legislature - citizens would be subject to arbitrary control If no separation between judiciary and executive judges would have too much power - - Carney o The strict doctrine is only a theory gives way to the realities of government where some overlap is inevitable o Whilst this overlap exists, a system of checks and balances has developed o The naming of the three first chapters of the Australian Constitution (The Parliament, The Executive Government, The Judicature) implies this separation of powers. - The overlap mentioned is the fact that in the Westminster system, ministers (executive) are required to sit in Parliament (legislative). This is to adhere with the concept of Responsible Government. This is also present in the Australian system, as according to s 64 of the Constitution. - Preventing the exercise of arbitrary power. - Powers divided between independent institutions o Legislative Lawmaking power to pass laws Parliament o Executive Power to enforce or carry out laws set by parliament. Government and public servants employed by the government. o Judicial 3

4 - Power to judge and interpret according to the law made Courts - Courts must be independent of legislature and government - Courts exercising judicial review and interpreting statute must be independent of state and federal governments. o Boilmakers Case - Separated into: - Montesquieu o Legislative o Executive o Courts - Constitution o First 3 chapters separated into Judicature S 1 The Executive Govt. S 61 Courts S 71 o Saunders & Roy ROL requires legislation to be clear, certain and prospective - Judicial Review o Power of judiciary to interpret law (in a constitutional context) o If Commonwealth exceeds its power the courts can deem the statute or law invalid Rule of Law - Considered 4 th branch - Tamnaha no other idea has achieved such global endorsement o Serves as a check against abuse of power o 3 Mechanisms 1. Representative democracy 2. Vertical; and horizontal separation of powers 3. Judicial review of legislation - Provides o Order, certainty, predictability, accountable government, fairness, justice, liberty, freedom, economic development 4

5 - Protection of individual rights - Formal or substantive o Formal processes not content o Substantive content just or moral - Dicey o 3 Limbs on ROL Supremacy of regular law opposed to arbitrary power Equal subjection officials not exempt Law of constitution based off the rights of individuals enforced by the courts Link to rights protection Inherent to the operation of the system Courts statutory interpretation Falls to judiciary to interpret laws made by parliament o Parliamentary sovereignty Right to make or unmake any law Link to Parliamentary sovereignty o Judicial law Subordinate to parliamentary sovereignty Political v Legal Constitutionalism in more detail Dicey s (Political) Constitutionalism - Dicey o 3 Limbs on ROL Supremacy of regular law opposed to arbitrary power Equal subjection officials not exempt Law of constitution based off the rights of individuals enforced by the courts Link to rights protection Inherent to the operation of the system Courts statutory interpretation Falls to judiciary to interpret laws made by parliament o Parliamentary sovereignty Right to make or unmake any law Link to Parliamentary sovereignty o Judicial law 5

6 Subordinate to parliamentary sovereignty - Goldsworthy o Dicey too formalistic Ignores the constitutions concern with limitations on power Not concerned with equality or liberty o Parliament highest court in land o Best safeguard is separation of powers - Jennings o According to Dicey parliament should have unlimited power allowing reversal of decisions Doctrine of laissez-faire - Twomey o Hunting Act limiting legislative power Political Constitutionalism - Eisgruber o Limits grounded in political morality - French o Freedoms rather than rights o Legal constitutionalism depends on justiciable constitutional limits o There is a growing importance of political constitutionalism within Aus. as cooperative federalism is driven by political imperatives Political Constitutionalism (judicial review) - Stubbs o Dual justification for judicial review 1. Supremacy of constitution 2. Primacy of judiciary - Mason o Constitution based on 2 concepts 1. Supremacy of parliament 2. Supremacy of law o Constitution brought about by an act of Imperial Parliament 6