INTRODUCTION TO THE AUSTRALIAN CONSTITUTIONAL SYSTEM Cnstitutins and cnstitutinalism Cnstitutinalism is a plitical dctrine which hlds that the State shuld be regulated by a cnstitutin and that the authrity r legitimacy f the exercise f its pwer ver its citizens and thers is cnditinal upn such regulatin. Cnstitutinalism is a nrmative - and, therefre, cntestable - psitin which may be adpted in relatin t the nature and peratin f a particular State r f States generally. It usually invlves a cmmitment t the legal r at least mral supremacy r paramuntcy f a cnstitutin r the values encded in it. (Sartri 1962) Uses garantisme t label what he cnceives f the distinguishing feature f cnstitutin(alism): fundamental law r set f principles, and crrelative institutinal arrangement, which restrict arbitrary pwer and ensure a limited gvernment Requirement f institutinal devices t secure its bservance Difference between garantiste sense f cnstitutin and brader plan f gvernment meaning Cmmentary: fundamental dctrines, such as federalism, respnsible gvernment, separatin f pwers and judicial review, are all explained by cnventin thery as having a garantiste functin. Yet in any functining plitical system ne needs t be aware that sme f its institutinal safeguards may be merely nmical and sme may be merely a façade (perhaps resp gv?) Australian cnstitutinal law is bth written and unwritten. Rigid, written cnstitutin is supplemented by Stat Westminster, Australia Act and by the cmmn law and unwritten cnventins. Each f the states has written, but largely flexible cnstitutin als supplemented by the cmmn law and unwritten cnventins. Judicial review In Marbury v Madisn, US SC successfully advance idea that judicial pwer f review, as a means f ensuring legislature perating within cnstitutinal limits, was entailed in the cnstitutinal scheme. f the very essence f judicial duty fundamental and paramunt law f the natin and cnsequently an act f the legislature, repugnant t the cnstitutin, is vid Australia s cnstitutinal histries Objects f federatin Ensure that the influence and autnmy f the existing clnies was nt lst. Therefre, create a federal system in which the states were t have substantial autnmy and plitical pwer. Create a new single natinal parliament capable f dealing effectively with defence and reginal affairs. 1
Create a natinal ecnmic unin t cunteract the difficulties f clnial tariff barriers and multiple ecnmic legal regimes. Give the central gvernment pwer ver thse aspects f trade and the ecnmy which will facilitate this unin. Ensure that the new natinal system f gvernment was a British style f gvernment perating accrding t the principles f representative and respnsible gvernment etc. In sum - natinalism, federalism, ecnmic ratinalisatin, representative and respnsible gvernment. Federal, State and Territry Cnstitutinal structures (a) The federal cnstitutinal framewrk Federalism OED Definitin A system f gvernment in which several states frm a unity but remain independent in certain internal affairs. Aspects f federalism in Australia Tw levels f Gvt/law - Cth and State Limited legislative pwer f the Cth (eg s.51) Residual legislative pwer f the States (s.107) Incnsistency f State law with valid Cth law reslved in favur f Cth (s.109) Intergvernmental immunities express and implied Creatin f a cmmn market and fiscal unin (Ch. IV) Creatin f Cth institutins t safeguard federalism and the federal balance High Curt (Ch.III) Senate (Ch.I, Pt.II) Inter-State Cmmissin (s.101) Cnstitutinal entrenchment f the federal system (s.128) Liberal Argument fr Federalism Multiple distributin f pwer decreases the chances r effects f abuse f pwer because: The chances f multiple lci f pwer abusing pwer are less than chances f a single lci f pwer abusing it; The presence f ther lci f pwer acts as deterrent n abuse by any single lcus; If ne lcus amngst many abuses pwer this has less effect n the citizenry than if the sle lcus abuses it. Dicey 1885 Intr t the study f the law f the Cnst Arises frm a prevalent sentiment f tw feelings which are tw a certain extent incnsistent the desire fr natinal unity and the determinatin t maintain the independence f each man s separate State. Federalism aims t give effect tw bth these sentiments are fare is pssible. Federal gvernment means weak gvernment (Dicey 1885)! Distributin f all the pwers f the state amng c-rdinate authrities necessarily leads t the result that n ne authrity can wield as much pwer as the svereign in a unitarian 2
cnstitutin.! Checks and balances leads, n the face f it, t a certain waste f energy.! Federatin will therefre always be disadvantaged in a cntest with unitarian states with equal resurces. Federalism tends t prduce cnservatism (Dicey 1885)! Essential t federalism that the Cnstitutin cnstitutes the supreme law f the land.! A federal cnstitutin is capable f change, but is apt t be unchangeable.! Difficulty f altering the cnstitutin prduces cnservative sentiment, and natinal cnservatism dubles the difficulty f altering the cnstitutin. Federalism means legalism (Dicey 1885)! Due t predminance f judiciary in the cnstitutin.! Bench can and must determine limits t authrity bth f the gvernment and f the legislatin, decisin is withut appeal.! Curts are nt nly the guardian but als at a given mment the master f the cnstitutin. Mre lcalised and enhanced demcratic participatin (Galligan & Walsh 1992)! Critics wh reject federalism usually d s nly because they prefer mre direct and unrestrained demcracy at the natinal level, and have little respect fr the mre lcalised demcracy that State gvernments prvide! enhancement f demcratic participatin thrugh dual citizenships and multiple gvernments in a cmpund republic is undubtedly federalism s mst psitive quality and largely explains its strength and resilience in Australia. Greater plitical creativity (Gillespie 1994)! necessity f balancing interests, need fr cmbing pinins, results in wealth f plitical thught that n state with nly a unitary authrity can attain.! have mre remedies and plitical resurces t draw upn.! creativity and diversity that can result frm having multiplicity f centres f gvernment! sme f the recent majr intergvernmental cnflicts have directly resulted frm federal interventin t secure the rights f minrity grups, requiring limitatins n the pwers f state gvernments Evlutin f Australian federalism! Evlutin f Australian federalism has generally been centripetal. Primary catalysts fr change have been High Curt s interpretatin f Cnstitutin and plitical pressures fr Cth t meet natinal needs, particularly during times f war. Respnsible Gvernment Central features Executive arm f Gvt is chsen by, accuntable t and wes its cntinued existence/pwer t the legislature. Executive nt elected by the peple directly (unlike USA). Subsidiary features Ppular parliamentary chamber determines the executive. Ministers are MP s Ministers are accuntable t parliament individually as Ministers and cllectively as Cabinet. Minister wh misleads parliament shuld resign/be dismissed by 3
cnventin. PM is head f party cntrlling majrity in lwer huse. Frmal head f State (ie R/GG) exercises pwer n Ministerial advice. Public service is plitically neutral. Limited express cnstitutinal framewrk f respnsible gvt in Cth Cnst Federal Executive Cuncil (s.62) Ministers t be MP's (s.64) Bills apprpriating $ must be recmmended t Parliament by the GG n behalf f the Gvt (s.56) strengthens cntrl by Gvt ver the expenditure f $ by ensuring that n actin shall be taken t pass a $ Bill in either Huse unless Gvt has apprved the purpse f the expenditure. Laws apprpriating revenue r impsing tax must riginate in the Huse f Reps (s.53) assumes Gvt (wh decides upn receipt and spending f $) has supprt f the lwer huse. Traditinal ministerial pwer frmally invested in the GG (s.61) - implies that GG acts n Ministerial advice Many features f Cth respnsible gv nt actually mentined in Cnst. N full descriptin f the make-up f the Executive N mentin f PM r Cabinet Huse f Reps nt given frmal rle in frming Executive, r expressing cnfidence in Ministers N express limits n GG pwers Representative Gvernment Express cnstitutinal prvisin fr representative gvernment: Senate - s. 7 Huse f Reps - s.24 Electral rights - s.41 Increasing emphasis n this dimensin f the Australian cnstitutinal system. the legislative, executive r judicial pwer f gvernment...are ultimately derived frm the peple themselves (Natinwide News v Wills (Deane & They JJ)) the present legitimacy f the Cth Cnstitutin lies exclusively in the riginal adptin (by referenda) and subsequent maintenance (by acquiescence) f its prvisins by the peple (Thephanus v Herald & Weekly Times (Deane J)) (b) The State cnstitutinal framewrk Originally UK legislatin, then clnial legislatin then State legislatin. State cnstitutins preserved by s.106 f Cth cnstitutin. State Cnstitutins vary in cntent but share basic themes and structures. Scpe f State Legislative Pwers Histry s 5 CLVA full Pwer t make Laws respecting the Cnstitutin, Pwers, and Prcedure f such Legislature; 4
prvided that such Laws shall have been passed in such Manner and Frm as may frm Time t Time be required by any Act f Parliament cnfirmed clnial plenary legislative pwers including the pwer t amend the cnstitutin, pwers and prcedures f clnial Parliaments. Upn Federatin, sme State pwers transferred t r shared with Cth, thers retained by the State. Legislature shall, subject t the prvisins f the Cmmnwealth f Australia Cnstitutin Act, have pwer t make laws fr the peace, welfare, and gd gvernment f New Suth Wales in all cases whatsever (s 5 Cnstitutin Act 1902 (NSW)) Nw Australia Act cnfirmed State plenary legislative pwers and remved UK pwers in regard t State law. legislative pwers f the Parliament f each State include full pwer t make laws fr the peace, rder and gd gvernment f that State that have extra-territrial peratin (s 2(1) Australia Act 1986) peace, rder and gd gvernment are nt wrds f limitatin t be adjudicated upn by Curts (Unin Steamship) within the limits f the grant, a pwer is as ample and plenary as the pwer pssessed by the Imperial Parliament itself. n jurisdictin t strike dwn legislatin n the grund that, in the pinin f a curt, the legislatin des nt prmte r secure the peace, rder and gd gvernment f the clny. cannt invalidate laws because they d nt secure the welfare and the public interest whether legislative pwer is subject t restraints by rights deeply rted in ur demcratic system f gvernment and the cmmn law is anther questin Pwer f state legislature t amend Cnstitutin Limits n State Legislative Pwer Cth Cnstitutin Express limitatins eg s90 (custms), 92 (free trade), 109 (incnsistency) Implied limitatins eg freedm f plitical cmmunicatin State Cnstitutins Entrenching (manner and frm) prvisins such as NSW s7a (McCawley) Territrial limits - nexus test (Pearce v Flrenca) Cmmn law limits Abdicatin principle (Taylr v AG Qld) (c) The Territry cnstitutinal framewrk Cth Cnstitutin s 111: The Parliament f a State may surrender any part f the State t the Cmmnwealth; and upn such surrender, and the acceptance theref by the Cmmnwealth, such part f the State shall becme subject t the exclusive jurisdictin f the Cmmnwealth. N Cth cnstitutinal guarantee f Parliamentary representatin in the Cth Parliament. s 122: The Parliament may make laws fr the gvernment f any territry surrendered by any State t and accepted by the Cmmnwealth, r f any territry placed by the Queen under the authrity f and accepted by the Cmmnwealth, r therwise acquired by the Cmmnwealth, and may allw the representatin f such territry in either Huse f the Parliament t the extent and n the terms which it thinks fit. ACT (Self-Gvernment) 1988 Act 5
General legislative POGG pwer (s 22); Subject t sme exclusins (including euthanasia) (s 23); Incnsistency with Cth laws (s 28); Either Huse f Cth Parl may disallw applicatin f ACT law t that Huse, its members r Parl precincts (s 29); Disallwance by GG (s 35) (d) Criteria fr invalidatin f legislatin The different cnstitutinal psitin f the Cmmnwealth, the States, and the Territries is reflected in the different criteria by which the laws f each plity can be declared invalid: Cmmnwealth: A Cth law can be invalidated n the fllwing principles: There is n Cth head f pwer: ie, the tpic is nt specified (eg. s 51 Cnst) as a tpic n which the Cth can legislate. The Cth law infringes an express cnstitutinal limitatin (eg, s 116), r an implied cnstitutinal limitatin (eg freedm f plitical cmmunicatin; an implicatin frm Ch III). State: A State law can be invalidated n the fllwing principles: The State law deals with a tpic cmmitted exclusively t the Cth (eg, s 52 Cnst). The State law is incnsistent with a valid Cth law (s 109). The State law infringes an express/implied cnstitutinal limitatin in the Cth Cnstitutin (eg s 92). The State law infringes an entrenched limitatin in the State cnstitutin (eg Cnstitutin Act 1902 (NSW) s 7A). The State law breaches a cmmn law limitatin n parliamentary supremacy (eg, n the territrial cmpetence f State legislatures) (an issue we cnsider later in this curse). Territry: A law f the ACT Legislative Assembly can be invalidated n the fllwing bases: The ACT law is incnsistent with the Cth Cnstitutin r a Cth law (including the Self Gvt Act and Cth laws which target ACT pwers r laws retrspectively). The ACT law is disallwed by the Cmmnwealth. Cnstitutinal Cncepts and Dctrines Cnstitutinal cncepts and dctrines may influence the thught and actin f thse wh exercise pwer within the system f state. Ecnmic liberalism s.92 cases (Bank Natinalisatin case, Miller v TCN, Cle v Whitfield) Representative demcracy Plitical Cmmunicatin cases (ACTV, Natinwide) Federalism - Territrial Senatrs cases (WA v Cth) Rule f Law natinal security cases (AG v Hayden), asylum seeker cases (Plaintiff S157/2002 v Cth) Separatin f pwers prtective detentin cases (Kable), asylum seeker cases (Lim, Plaintiff S157/2002, Al Khateb). (a) Liberalism and Australian public law Meaning Emphasis n individual rights against state and thers rather than duties t state and thers 6
Lckean ntin f laissez-faire and mistrust f rganised pwer State exercises pwer ver individual by cnsent - the state as scial cntract Principle f equality all individuals f equal value treat like cases alike frmal v substantive equality Theries f Hbbes and Lcke, hwever effective they may have been as strategies, were distinctively respnsive t that time and place. Ecnmic liberalism - the minimal state, the free market and (later) the rise f minimal welfarism Manifestatins in Australian cnstitutinal system Judicial interpretatin f cnstitutinal rules in a manner which favurs civil and plitical rights and liberal trade and cmmerce practices. Free trade cases Cth v Bank f NSW; Cle v Whitfield Civil rights cases Natinwide News; ACTV; S157 Miller v TCN:! Sectin 92 was, plainly enugh, intended t serve the essential functin f reinfrcing the ecnmic and scial unity f an emerging natin has been cnverted int a frm f cnstitutinal guarantee f the ecnmics f laissez-faire and the plitics f small gvernment. (b) Rule f law A rule f law nt a rule f persns - respnse t arbitrary, unequal and irratinal exercise f state pwer. (Cmmunist Party Case) Gleesn CJ: Cnstitutin framed upn the assumptin f the rule f law, and judicial review is merely the enfrcement f the rule f law ver executive actin (Plaintiff S157/2002) A v Hayden fundamental that the executive has n pwer t authrize a breach f the law and that it is n excuse fr an ffender t say that he acted under the rders f a superir fficer. Gibbs CJ every fficer f the Cmmnwealth [is] bund t bserve the laws f the land Murphy J N agency f the Executive Gvernment is beynd the rule f law Brennan J Dicey 1885 abslute supremacy f regular law as ppsed t the influence f arbitrary pwer equality befre the law, excludes the idea f any exemptin f fficials r thers frm the duty f bedience t the law which gverns ther citizens WI Jennings 1959 amng equals the law shuld be equal and shuld be equally administered like shuld be treated alike In rder t realise the rule f law, laws must be (Ln L. Fuller): 7
General and nt ad hc (Plyukhvich; Leeth); Public/published; Prspective, nt retrspective (Plyukhvich); Clear; Nn-cntradictry (Leeth); Capable f being cmplied with; Enduring ver time withut undue changes; Applied in practice in the administratin f sciety. Slide Ntes: Increased cntent t the rule f law dctrine leads t increased cnstitutinal pwer fr the judiciary vis a vis the ther branches f state? Because the rule f law is a ntin which may infrm the interpretatin and applicatin f the rules by the curts. This has cnsequences fr the ther branches f State and fr the citizenry. Nte an ften implicit security (law and rder) dimensin f rule f law discurse namely, that it is better that there be law (any law) and a state apparatus t enfrce the law rather than lawlessness and disrder. HANEEF (c) Cnstitutinalism See abve (d) Ppular svereignty The dctrine that all public/state pwer ultimately resides in and derives frm the will/cnsent f the peple. Will f the peple as the fundatin f all law and f the legitimacy and authrity f the exercise f state pwer (svereignty). Histrical shift in the lcus f Australian legal svereignty: UK Crwn/Parliament t Australian peple. Frmally, Cnstitutin derives validity frm exercise f British svereignty In 1900, legal status derived frm being enactment f British Imperial Parliament (Lindell: 1986)! Plitical legitimacy based n preamble wrds referring t peple f Australian clnies, but is nt regally relevant Pst-1986 the legislative, executive r judicial pwer f gvernment...are ultimately derived frm the peple themselves (Natinwide News v. Wills) Australia Acts 1986 "marked the end f the legal svereignty f the Imperial Parliament and recgnised that ultimate svereignty resided in the Australian peple (ACTV Masn CJ) present legitimacy f the Cth Cnstitutin lies exclusively in the riginal adptin (by referenda) and subsequent maintenance (by acquiescence) f its prvisins by the peple (Thephanus v Herald) since the passing f the Australia Acts in 1986, ntwithstanding sme cnsiderable theretical difficulties, the plitical and legal svereignty f Australia nw resides in the peple f Australia (McGinty v WA) Critique f cncept f ppular svereignty 8
Limited ppular participatin/cnsent (Williams 2005) While Cnstitutin was supprted by a majrity f the peple wh actually vted, many didn t and large sectins f the cmmunity did nt have the franchise.! Thus Cnstitutin cannt be said t be the peple s dcument because f referenda supprt at turn f last century Hw can Federatin be cnsidered ppular if a ttal numerical majrity did nt yes (Irving 1997)! Hwever, there can scarcely have been a significant histrical change. In which an verwhelming, even literal majrity f peple participated psitively. Many, if nt mst, Australia gvernments are elected as the prduct f tiny majrities, and in sme cases, f statistical minrities.! Mechanism mre imprtant than literal cunt, as ppular is a shifting cncept. Many are unaware f Cnstitutin s terms, s cannt say Cnstitutin maintained by peple s acquiescence. Ignrance can t prvide a fundatin fr Cnstitutin s ppular legitimacy! Hwever, acquiescence can have meaning frm cntract ticket cases (like Parker v Suth Eastern Railway) which suggest that s lng as peple are aware/had reasnable pprtunity t becme aware, f existence f rules, then if d nt bther t find ut what they are, taken t have given implied cnsent. Cultural/plitical pluralism and 'the peple??? The High Curt and the peple??? (e) Parliamentary supremacy Parliamentary svereignty means (Brit) Parliament, has under the cnstitutin, the right t make r unmake any law whatsever, and n persn r bdy has the right t verride r set aside the legislatin f Parliament. (Dicey 1884) Argued that principle is actually ne f parliamentary supremacy, nt svereignty (Walker 1985) Dctrine f parliamentary svereignty perates mre rbustly at the State level than the Cth level. N federalism cncerns within State cnstitutins Limited separatin f pwers at State level. States histrically cntinuus with British cnstitutinal mdel. Histrical reasns fr it (Gldswrthy 1999) Lgical and practical necessity t have a single, ultimate law-making pwer in the kingdm Every generatin must be equally free t make and change its law Judges culd nt be trusted with authrity t nullify Parliament s judgments. All subjects were represented in Parliament, s its decisins reflected the cllective wisdm f the entire cmmunity, which, even if nt infallible, still superir t any ther agency in the state. Prvides fr the exercise f electrate s plitical will thugh the medium f its parliamentary representatives.. Cnstraints n Parliamentary pwer Mral and plitical External limit t svereign s pwer cnsists in the pssibility/certainty that subjects, r a large 9
number f them, will disbey r resist the law (Dicey 1885) Parliament will never pass laws which any substantial sectin f the ppulatin vilently dislikes (Jennings 1959) Internal limit arses frm nature f the svereign pwer itself (Dicey 1885) Mulded by its circumstances, the mral feelings f the time and sciety t which it belngs! Legislature is prduct f certain scial cnditins, and determined by whatever determines the sciety. Inherent legal cnstraints Limits f legislative supremacy are t be fund in that deeper cnstitutinal mrality frm which the rule f law derives its strength and virtue (Allan 1993) Legal authrity f statute ultimately depends n its cmpatibility with the central cre f the mrality cnstituting rule f law Enactment whse effect wuld destry any recgnisable frm f demcracy, culd nt be cnsistently applied by the curts as law Outside f Eng, legislature s pwers are limited by the cnstitutin, which is the mst effective rule f law (Jennings 1959) In Eng, there is still a rule f law, but arguably, the alw is that the law may at any mment be changed.! If Parliament des nt like interpretatin given by the judges, it can always reverse the interpretatin. unlike Britain in the nineteenth century, the cnstitutinal nrms which apply in this cuntry are mre cmplex than an unadrned Diceyan precept f parliamentary svereignty It is the curts, rather than the legislature itself, which have the functin f finally deciding whether an Act is r is nt within pwer (A-G (WA) v Marquet) Critique f the dctrine f Parliamentary svereignty If Parliament can legislate anything it pleases, it cannt be bund by the rule f law, and thus can exercise its pwer arbitrarily Cgency f the dctrine depends n Parliament being representative; Cgency f the dctrine depends n Parliament being ratinal. (f) Separatin f pwers Central Dctrine In the exercise f pwer in a State, there are three main agencies f gvernment, each with a different and exclusive functin: Legislature makes laws, Executive administers thse laws, and Judiciary adjudicates any disputes cncerning the meaning r applicatin f thse laws. Subrdinate principles cncerning judiciary Separatin f the judiciary is ften regarded as the principal element f the separatin f pwers. Thus, many subrdinate principles t ensure that the separatin f the judiciary will be secure and effective security f tenure fr judicial members (s.72(iii)), impartiality in appintments 10
restrictin n remval frm ffice (s.72(ii)), islatin f judiciary frm public debate. Separatin f Pwers in Cth Cnstitutin In the Australian Cnstitutin the dctrine is prvided fr by: s. 1 ( legislative pwer f the Cth shall be vested in a Federal Parliament ), s. 61 ( executive pwer f the Cmmnwealth is vested in the Queen... ), and s. 71 ( judicial pwer f the Cmmnwealth shall be vested in a Federal Supreme Curt. ). Justificatin fr the dctrine f separatin f pwers every man invested with pwer is apt t abuse it (Mntesquieu) pwer shuld be a check t pwer (Mntesquieu) Three main justificatins are given: 1. Checks and balances: A separatin f agencies and functins establishes a system f checks and balances: Legislature cannt make wrds mean what it wants them t mean; has t rely upn the judiciary t interpret laws and decide whether they are valid; Judiciary cannt act f its wn mtin, r create new rules, and is dependent n legislative cntrl f finances Executive can be checked by the ther tw. Other checks and balances: bicameralism and federalism. 2. Preserving individual liberty: Distributin f pwer ver a number f agencies reduces chances f any ne f the agencies, r the State as a whle, acting arbitrarily/tyrannically 3. Prtectin f judicial independence: Separatin dctrine establishes the independence f the judiciary, essential t the prtectin f individual liberty. Separatin dctrine is the nly means fr Judiciary t prtect itself frm a Legislature r Executive whse legislative and executive acts it may be bliged t strike dwn. Fr many jurists, the independence f the judiciary is the mst imprtant element f the separatin dctrine (MacMillan) Critique f the separatin f pwers Instability Interference with executive gverning effectively Each arm f state needs sme pwers f ther arms t functin prperly: Executive needs legislative pwers re regulatins Executive tribunals need judicial pwers Parliament needs judicial pwers re cntempt etc Judiciary needs executive pwers re internal administratin Desn t wrk effectively in a system f respnsible gvernment But Judiciary can still be effectively separated frm ther tw limbs Fr sme citizens, separatin f pwers may be ineffective t cnstrain the pwer f 11
the state if all limbs f state share the same set f values/ends, which thse citizens find bjectinable r ppressive. Balance Cmplete separatin f pwers, in sense f disturbing functins amng 3 independent bdies with n verlapping r c-rdinatin, wuld (even if practically pssible) bring gvernment t a standstill (Phillips & Jacksn 1987) What dctrine advcates is preventin f tyranny but nt cnferring t much pwer n any ne persn/bdy, and checking ne pwer with anther (f) Prtectin f Human Rights in Australia US traditin Histrical rts US Funders sceptical f the just exercise f executive pwer and f legislature s capacity/ willingness t prtect their rights. Bill f Rights adpted as amendment t US cnstitutin within a decade f enactment; limits the exercise f public pwer (mainly legislative pwer), by invalidating any gvernmental actin which infringes nminated rights judicially enfrceable: fr the judiciary t rule whether legislative, executive r judicial actin infringes thse rights. linked t a pwerful cnstitutinal curt (Marbury v Madisn (1803)) UK traditin Histrical rts Faith in Parliament and their ther legal and plitical institutins prtecting their rights and interests. Thus, saw n need fr cnstitutinally entrenched written Bill f Rights t cnstrain Parliament and Executive. Individual rights prtected by: Parliament: assumes it will represent the peple, and wn't abuse the rights and interests f the peple. Respnsible gvernment: assumes Executive is respnsible t Parliament, and thus the peple. Cmprmised by party plitics elective dictatrship. Rule f law: State cannt act in a manner which is nt authrised by law; basis fr multiple civil and plitical rights. Cmmn law: Varius cmmn law rules and principles defend individual rights. Ppular svereignty: Ultimately, faith is placed in the pwer f the peple t rise up and reject any majr infringement f their rights; assumes n idelgical factrs & sufficient balance f pwer in favur f the peple ; als, difficulty fr minrities t be able t prtect their rights. Australian situatin Histrical rts Mix f US and UK features: Limited express cnstitutinal rights (s.92, s.116 etc.) Limited implied cnstitutinal rights (freedm f plitical cmmunicatin) General institutinal prtectins per UK mdel Dawsn J in ACTV Australian Cnstitutin des little t cnfer upn individuals by way f psitive rights 12
thse basic freedms which exist in a free and demcratic sciety Rights exist, nt because they are prvided fr, but in the absence f any curtailment f them Freedm f speech is a cncept which finds n expressin in ur Cnstitutin.! exists here because there is nthing t prevent its exercise and because gvernments recgnise that if they attempt t limit it must d s at their peril. Additinally, the curts recgnise the imprtance f the basic immunities and require the clearest expressin f intentin befre cnstruing legislatin in such a way as t interfere with them In Australia, the guarantee f fundamental freedms lies nt in any cnstitutinal mandate but in the capacity f a demcratic sciety t preserve fr itself its wn shared values. Gleesn CJ in S157/2002 v Cth [2003] Curts d nt impute an intentin t abrgate r curtail fundamental rights r freedms unless such an intentin is clearly manifested by unmistakable and unambiguus language. Need clear indicatin that legislature has directed its attentin t the rights r freedms in questin, and has cnsciusly decided upn abrgatin r curtailment. Fr Parliament squarely t cnfrnt such an issue may invlve a plitical cst, but in the absence f express language r necessary implicatin, even the mst general wrds are taken t be subject t the basic rights f the individual. The Rle f Cnventins Definitin f cnventins Dicey 1885: 2 types f cnstitutinal nrms: Justiciable and enfrceable legal rules; and Cnventins; Cnventins are understandings, habits r practices, which regulate the cnduct f fficials but are nt laws and are nt enfrceable by the curts; they are a kind f cnstitutinal mrality. Hughes 1980: Cnventins expand and render wrkable the letter f the law; they change reflecting new circumstances, and are ften uncertain in cntent. Functin f Cnventins establish a framewrk r parameters within which gvt is carried n r pwer is exercised; just like the written cnstitutinal rules express/describe the current distributin f pwer within the plitical system; link the plitical system/state with the current cnsensus amngst thse wh hld pwer (fficials/peple?) as t what can and can't be dne within the plitical prcess; main purpse f cnstitutinal cnventins is t ensure that the legal framewrk f the cnstitutin will be perated in accrdance with the prevailing cnstitutinal values r principles f the perid (Re Reslutin t Amend the Cnstittuin Can) allw the plitical prcess t change as this cnsensus n hw Australia shuld be gverned changes; allws sme degree f flexibility in the prcess f gvt; there will be certain limits where cnsensus may nt emerge and express pliticking and cnstitutinal change will be required. 13
Enfrceability f Cnventins 2 issues: Are Cnventins enfrceable and if s then hw? Are Cnventins laws? Dicey: Cnventins are judicially unenfrceable and are nt law. Re Reslutin t Amend the Cnstittuin (Can): Cnventins are nt based n judicial precedents but n precedents established by the institutins f gvernment themselves, and nr are they statutry cmmands. Jennings: Cnventins are nt enfrceable by curts and thus nt law but are enfrced by public utcry + plitical difficulties generally; functin like mral principles in ur sciety. Hughes 1980: Sme cnventins are such that they will never be neglected by anyne wh is nt prepared t be a revlutinist. Cabinet cnventins are nt justiciable and nt pen t judicial review (Pek-Wallsend) Althugh nt directly enfrceable, cnventins can be judicially nticed and may influence interpretatin f statutes, thrugh presumptin that parliament wuld nt intend a breach f cnventin (Cpyright Owners v EMI) Examples f Cnventins Aust/UK relatins befre legal independence UK Parl generally did nt legislate fr Australian affairs exc n request r with cnsent Respnsible gvernment GG acts n advice f Mins (subject t reserve pwers); Ministerial respnsibility; cabinet slidarity; existence and rle f Oppsitin Functining f Parliament Rights f ppsitin; Senate wn't blck supply (?); senate vacancies t be filled by member f same party (nw a rule) Caretaker gvernments Wn't make majr public service appintments r implement radical plicy shifts Independence f Judiciary Judiciary dn t cmment n plitical matters; pliticians dn t criticise judicial decisins; Cmmnwealth/State relatins Gverning cnduct f premiers' cnferences etc. Cdificatin f Cnventins Cdificatin f cnventins pssible. Eg SOW, Cnstitutin s.15, Parliamentary rules. Different mdes f cdificatin pssible. 14
Advantages/disadvantages f cdificatin. Flexibility v certainty. Cnventins in the 1975 cnstitutinal crisis Casual Senate vacancies: Sectin 15 prvided that if a Senatr lses his r her ffice mid-term, replacement selected by State Parlt. A cnventin existed that the replacement wuld cme frm the same plitical party. Brken twice prir t the dismissal, by nn-labr State Parlts: NSW and Qld gvernments. They denied there was a cnventin, and therwise argued that the circumstances were exceptinal enugh t warrant a breach. The Senate and Supply: nw generally accepted that under s 53 the Senate has the legal pwer t reject r defer the budgetary bills prpsed by the Gvt in the Huse f Reps (but n pwer t riginate r amend $ bills per s.53). A mre lively tpic f debate has been whether there is a cnventin that the Senate will nt reject budget bills. 1975 was the clsest the Senate has cme t that, when the Senate deferred passage f sme budget Bills. main line f criticism was that this was incnsistent with respnsible gvernment, which assumes that the frmatin f gvernments ccurs in the lwer huse. The main argument in reply is that the Cnstitutin cnfers the pwer n the Senate, and it shuld exercise its pwer t reject supply in exceptinal circumstances, t prtect federalism r as a demcratic safety net. 1988 prpsal t change cnstitutin t prevent Senate blcking supply was never put t the referendum f that year. Gvernr-General's appintment and dismissal f Ministers: necessary t begin by nting the pwers f the G-G. GG has pwers under 45 sectins, but the cnventin is that they are generally exercised n advice. Only dubt is in regard t the "reserve pwers", f which there are claimed t be fur, namely the pwer t: t appint a PM (s.64) t dismiss a PM (s.64) t refuse t disslve Parl (s.5) in very limited circs t frce a disslutin f Parl (s.5) Definitin f "reserve pwer": pwers which are said t be exercisable by the G-G withut r cntrary t Ministerial advice and which allw GG sme degree f discretin. Issue is under what circumstances are these pwers legitimately exercised.! Circumstances ften mentined are where a gvernment is prpsing majr and irreversible changes t the basic cnstitutinal fabric (eg, t the ecnmy r the electral system etc). Kerr justified his decisin n the basis f "the principle that a gvt which has been denied supply by the Parlt shuld resign r g t an electin", and made it clear that in a federal system that enables either the lwer r the upper Huse t refuse supply. 15