Alex Castles, The Reception and Status of English law in Australia (1963) pg

Transcription

1 4A The Path t Federatin, The Acquisitin f Legal Independence and Ppular Svereignty The Clnial Laws Validity Act 1865 (Imp) pg The Clnial Legislatures The bicameral legislatures (tw huses) were subrdinate à they had nly achieved legal and institutinal presence frm an Act f the British Parliament. Hwever, by 1850s à clnies gained real pwers f lcal self-gvernment Since legislatin was derived frm British parliament, then it was believed that clnial legislatin shuld have the same mnicmpetence R v Burah (1878) 3 App Cas 889 An Indian statute was passed in 1869 which authrised the Lieutenant-Gvernment t remve hill areas frm the jurisdictin f the curts, thus wuld subject the Bengal tribes t martial law (military authrities) In 1878, Burah was cnvicted f murder Burah appealed t the Calcutta High Curt à Curt held that it had jurisdictin Crwn then appealed t the Privy Cuncil Questins f Legal significance: 1. Had the act f 1869 taken away the right t appeal t the High Curt (since it remved jurisdictin frm the curts)? [Their Lrdships] held that it had 2. Can the Indian legislatin validly d this? It was held that there was NO incnsistency with the Indian High Curts Act 1861 (Imp) 3. Did the pwer given t the Lieutenant-Gvernr invlve a delegatin f legislatin pwer, vilating the maxim delegatus nn ptest delegare (a delegate may nt itself delegate)? It was held that there was NO delegatin f pwer This was because the Indian Legislature was NOT a delegate f the Imperial Parliament Summary f Result: Whilst Indian legislature is limited by the Act f Imperial Parliament, when acting within thse limits, it has plenary pwers f the same nature as Parliament itself. This was still a reminder that a clnial legislature was still a subrdinate institutin Clnial and prvincial legislatures were NOT delegates f the Imperial Parliament Hwever, within the pwers cnferred, they had the SAME authrity as the Imperial Parliament The delegatus nn ptest delegare culd nt therefre nt apply as they were in n sense delegates Hwever, the legislatures themselves culd cnfer legislative pwers n ther authrities, withut requiring authrisatin frm Imperial Parliament. Alex Castles, The Receptin and Status f English law in Australia (1963) pg The attainment f respnsible parliament (exec. Respnsible t parliament) resulted in the questin f whether new legislatures by lcal clnies culd enact laws cntrary t the statutes f the Imperial parliament

2 In SA, Benjamin Bthby (judge f the Supreme Curt) Held that enactments f lcal legislature were repugnant (incnsistent) t the laws f England Bthby denied pwer t lcal legislature, even in extreme cases when there were nly minr technical difficulties Reinterred idea that SA laws were incnsistent with imperial parliament (making it difficult fr clnial legislature t pass new laws) Finally, the Clnial Laws Validity Act 1865 clarified this cntrversial situatin An act t remve dubts as t the validity f clnial laws It cnfirmed the scpe f the legislative pwers f the clnies in relatin t England The act als restricted the pwers f the STATE legislatures thrugh the principle f repugnancy (dctrine f incnsistency) The UK Parliament had the pwer t pass acts f paramunt frce Intrduced dctrine f extraterritriality jurisdictinal limits n pwer Sectins 2 and 3 à Cnfirmed that: Clnial legislatures had mre extensive pwer t repeal received English statutes and Cmmn Law (in cmparisn t Bthby s interpretatin earlier) Clnial legislatures were still bund by British statutes which applied t them by paramunt frce Paramunt frce à laws made applicable t such Clny r wrds r necessary intendment The Australian Cnstitutin is made applicable by paramunt frce Phillips v Eyre (1870) LR 6 QB 1 Repugnancy can nly arise as a grund fr invalidating a clnial statute This meant that statutes which existed since settlement (cmmn law cnstitutinal principles) culd be freely amended r repealed by State Parliaments Tw prvisins: Lcal legislatin culd NOT exceed pwers vested in a State legislatin under its Cnstitutin Lcal laws were vid (nt legally binding) if they were repugnant (incnsistent) with English Statutes applied t a state by paramunt frce Federatin pg Gerge Williams, Human Rights under the Australian Cnstitutin (2013) pg Williams emphasises the reasns fr the refusal f a Bill f Rights (which wuld have becme clause 110): Clause 110 à defeated by 23 vtes t 19 Theretical Reasning: AV DICEY argues that within a system f respnsible gvt., civil liberties can be prtected thrugh cmmn law and plitical prcesses, withut incrpratin f guarantees f rights in a written cnstitutin à links t his definitin f the rule f law Links t Dicey s view f parliamentary svereignty à plenary (unlimited) pwer given t Cmmnwealth in specific areas (s 51 and s 52) Links t US ntin f judicial review à High Curt can declare invalid legislatin incnsistent with the Cnstitutin Inclusin f the Bill f Rights wuld reflect prly upn Australia It is assumed that these rights are evident since English traditins have shwn parliament acting as hnurable men Including a bill f rights wuld be saying that murder is illegal Sir Edward Braddn: Wuld d mre harm than gd Interfere with rights f several states t life, liberty r prperty except with due prcess f law

3 Real Reasning: Delegates wanted t retain the States pwer t discriminate n the basis f race The debate n clause 110 made it seem as if the framers were generally cncerned t fster human rights Instead, their intentin was t ensure that the Australian Cnstitutin did nt prevent the clnies frm cntinuing t enact racially discriminatry legislatin Premier f WA: there is a great feeling all ver Australia against the intrductin f clured persns Thse wh argued FOR a bill f rights O Cnnr: we d nt knw when sme wave f ppular feeling may lead Parliament t passing a law that wuld deprive citizens f life, liberty r prsperity withut due prcess f law The Clnial Legacy pg Overview The birth f the Cmmnwealth f Australia might be seen as a sign that Australia was becming independent frm Britain. Hwever, legally, Cmmnwealth created by the Imperial Parliament in England (s 9) Nt free frm legislatin passed with paramunt frce by the British Parliament à this links t the Clnial Laws Validity Act 1865 (Imp) Hwever, each grant under s 51 f the cnstitutin (Part V Pwers f the Parliament) might have been regarded as freeing the parliament frm the repugnancy dctrine Dctrine f repugnancy This dctrine is highlighted in s 2 f the Clnial Laws Validity Act 1865 (Imp) It meant that if Australian legislatin is incnsistent (repugnant) t that f the UK, it is invalid It was f the belief that this dctrine wuld n lnger apply after the passing f the Cnstitutin à the Cmmnwealth f Australia Cnstitutin Act impliedly repeals the Clnial Laws Validity Act 1865 when there is an incnsistency Hwever, High Curt decided that the dctrine cntinues t apply in the fllwing case in 1925: Unin Steamship C v New Zealand Ltd v Cmmnwealth (1925) 36 CLR 130 High Curt held that the repugnancy dctrine cntinued t apply t the Cmmnwealth Prvisins f the Navigatin Act 1912 (Cth) were invalid by reasn f repugnancy t the Merchant Shipping Act 1984 (Imp) Despite s 98 f the cnstitutin which reads, The pwer f the parliament t make laws with respect t trade and cmmerce extended t navigatin and shipping This was an dd decisin, since six mnths earlier, the Curt tk a different view in: Cmmnwealth v Limerick Steamship C Ltd (1924) 35 CLR 69 It was held that s 39 (2) f the f the Judiciary Act 1903 (Cth) was valid It was NOT repugnant t Judicial Cmmittee Act 1844 r the Australian Curts Act 1828 (Imp) This was because the Cmmnwealth f Australia Cnstitutin Act verrde the repugnancy dctrine f the Clnial Laws Validity Act Applied the law f assuming tw imperial enactments cnflict, the later must prevail.

4 This ruling meant that whenever there is an Imperial statute which gives rise t repugnancy, it will be impliedly repealed (t the extent f its incnsistency with the grants f pwer in the Cmmnwealth Cnstitutin). Effectively, this meant that the repugnancy dctrine had ceased t apply t Australia. T recncile the differences in the curt s decisin, it was explained in the fllwing case: Cmmnwealth v Kreglinger & Fernau Ltd (Skin Wl Case) (1926) 37 CLR 393 The different reasning used was explained by Isaacs J (1926) in this case: In regards t the Unin Steamship Case Regulatins dealt with in Merchant Shipping Act 1894 (Imp) applied t nn-australian ships Thus, substantive rights f OTHER parts f the Empire were invlved In regards t the Limerick Steamship Case The issue f s 39(2) is cncerned with purely AUSTRALIAN affairs. The Australia Act 1986 (Cth) pg Overview Australia Act 1986 (Cth) assented n 4 December 1985 Final step in severing legal (as ppsed t symblic) ties with the UK This act is regarded as explicit evidence f the independence f Australia with the UK à since it terminates any remaining residual links in the Cnstitutin between the UK and Australia states Prvisins: s 1 à ended the ability f British Parliament t legislate fr Australia s 2 à remved the dctrine f extraterritriality fr the State Parliaments s 3 à remved the dctrine f repugnancy fr the State Parliaments s 11 à remved the ability t appeal t the Privy Cuncil (STATE curts) Sue v Hill (1999) 199 CLR 462 Australia Act 1986 (Cth) means that the UK is a freign pwer Under s 44 (i) f the Cnstitutin à implicatins fr Heather Hill (std fr QLD Senate in the 1998 Federal electin) Hill disqualified because she had NOT renunced her UK Citizenship High Curt thus decided that the UK retains NO residual influence upn legislative, executive r judicial prcesses in Australia Legislative: s 1 f the Australia Act 1986 (Cth) severs legislative links between the UK and Australia. This sectin is well within the pwers f the Cmmnwealth Parliament, by virtue f s 51(xxxviii) f the Cnstitutin. Executive: UK has admitted that it wuld be against cnstitutinal practice fr British ministers t tender advice t the Crwn fr the appintment f Australian ministers (as was nce the custm) n executive influence. Executive UK decisins, such as entering military alliances and acceding t treaties have n legal cnsequence n us. Therefre, n executive influence. Judicial: s 11 terminated the pssibility f appealing t the Privy Cuncil.

5 OVERVIEW f the Acts 1901 Ability UK t legislate by paramunt Repugnancy Dctrine Extraterritriality dctrine 1901 (States) 1931 / 1942 (Cth) ü ü ü request cnsent (Cth) 1931 / (States) (Cth) (States) ü x x ü ü x ü x x ü ü x ü x x Ppular Svereignty (pg. 125) Definitin Ppular svereignty is the dctrine that svereign pwer is vested in the peple and that thse chsen t gvern, as trustees f such pwer, must exercise it incnfrmity with the general will. Als knwn as the svereignty f the peple's rule The authrity f a state and its gvernment is created and sustained by the cnsent f its peple, thrugh their elected representatives (Rule by the Peple), wh are the surce f all plitical pwer.