Intrductin Cnstitutinal rts: Australian cnstitutin is hybrid f ideas f mdels. Primarily taken frm US stressed need t prtect peple against pwer f gvernment by distributing and dismembering pwer in ways t ensure that there is n single cnslidated chain f cmmand Federalism Separatin f pwers Judicial review Prvides checks and balances n ther arms f gvernment UK Westminster system: Representative gvernment Respnsible gvernment Parliamentary svereignty Cnstitutin Meaning: Dicey = all rules which directly r indirectly affect distributin r exercise f svereign pwer f the state Jennings = dcument setting ut rules gverning cmpsitin, pwers and peratin f the main institutins f gvernment and general principles applicable t their relatins t citizens Surce f legitimacy in Australia: Legal svereignty = British parliament wh enacted Australian Cnstitutin Ppular svereignty = Australian peple as electrs Thephanus: the present legitimacy f the cnstitutin lies exclusively in the riginal adptin and subsequent maintenance (by acquiescence) f its prvisins by the peple Nte distinctin between flexible and rigid cnstitutins: Flexible = every law f every descriptin can be legally changed with same ease and in same manner by ne and same bdy Parliamentary svereignty idea? (my idea) Rigid = certain laws (fundamental/cnstitutinal law cannt be change din same manner as rdinary laws Cth has rigid but states have part-flexible cnstitutin Judicial review (JR) Pwer f JR is a crucial means f ensuring that, where parliaments are invested with pwer, they perate within cnstitutinal limits Marbury v Madisn: pwer f JR t limit legislative pwer t extent whereby nt incnsistent with cnstitutinal limits JR als ensures that ther rgans f gvernment (executive) cannt disregard principles cnstitutin has set ut JR accepted as aximatic in Australian Cmmunist Party v Cth Separatin f pwers/cnflict with respnsible gvernment Plitical liberty fund nly where there is n abuse f pwer. T prevent abuse f pwer it is necessary frm very nature f things that pwer shuld be check t pwer. When legislative/executive pwers are united in the same persn, there can be n liberty (Barn de Mntesquieu, The Spirit f Laws) Page 1 f 89
Limitatin #1 n SOP in Australia = respnsible gvernment Limitatin #2 = parliament can delegate legislative pwer t the executive Limitatin #3 = executive plays substantial rle in dispute reslutin Internal review? Argument fr respnsible gvernment Owen Hd Phillips and Paul Jacksn, Cnstitutinal and Administrative Law: A cmplete separatin f pwers, in sense f distributin f the three functins f gvernment amng three independent sets f rgans with n verlapping r crdinatin wuld bring gvernment t a standstill Administrative functin has develped within space left under mdern exigencies by three traditinally separated pwers. Thugh in a sense administratin subverts this tripartite system, t des s nly be becming distinct kind f pwer necessary t kept that system ging (Julius Stne, Scial Dimensins f Law and Justice) Institutinal branch? see investigative tribunals Cnsider merits review/judicial review distinctin here and imprtance f cnfining JR t issues relating t judicial functins Parliamentary svereignty Dicey: Parliament has the right t make r unmake any law f whatever character N persn r bdy is recgnised as having right t verride r set aside legislatin f parliament Parliament cannt bund its future actin i.e. parliament has abslute pwer Criticisms: Jennings: Strng criticism many things which a parliament cannt d E.g. n parliament wuld dare t disfranchise Rman Cathlics r prhibit existence f trade unins in thse times Allen: Limited parliamentary svereignty integrating it with ideas f representative demcracy An enactment which threatened essential elements f any plausible cnceptin f demcratic gvernment wuld lie beynd bundaries Statute which threatened fundamentally the central tenets f ur demcracy culd derive n authrity frm the dctrine f svereignty Limits f legal supremacy are t be discvered in deeper cnstitutinal mrality frm which rule f law derives its strength and value Ideas f parliamentary svereignty must thus be understd in cntext f rigid limits and bundaries impsed by the federal cnstitutin, and t sme extent by the state cnstitutins Subject t fllwing qualificatins in Australia Cnstitutin Judicial review Page 2 f 89
Rule f law (RL) Dicey N man is punishable except fr a distinct breach f the law. Precludes persns in authrity with wide, arbitrary r discretinary pwers Equality befre the law equal subjectin f all classes t rdinary law f the land administered by rdinary law curts Excludes idea f exemptin f fficials frm bedience t law Cnstitutin is the result f the rdinary law f the land Jennings Rule f law invlves ntin that all gvernment pwers, save thse f representative legislature, shall be distributed and determined by reasnably precise laws. Accrdingly a king r any ther persn acting n behalf f the state cannt exercise pwer unless he can pint t a specific rule f law which authrises his act (legality principle) Cnstitutin is a fundamental law which limits by express rules, the pwers f varius gverning bdies and thus substitutes in cnstitutinal gvernment fr abslutism Julius Stne: Rule f law may be understd as an ethical, rather than merely legal, dctrine Insfar as demcracy achieved, men appear t cnfrm t legal rules nt nly under cercin but with a sense f ethical bligatin, bth the elements f cercin and f ethical cnvictin being vital Thse wh exercise pwer in demcratic scieties als generally recgnise rules they apply and enfrce as ethical binding n themselves Sir Ninian Stephens: Cardinal principles f RL: Gvernment shuld be under law, that law shuld apply t and be bserved by gvernment and agencies as it applies t rdinary citizens Thse wh play part in administering law shuld be independent f and uninfluenced by gvernment in their respective rles Shuld be ready access t curts f law fr thse wh seek legal remedy and relief Law f land shuld be certain, general and equal in its peratin Cnsideratin: Exercise f natinhd pwer what authrity is it pinting t is it cntrary t rule f law? (Twmey idea) Parliamentary svereignty vs. the rule f law Dicey: Parliamentary svereignty and rule f law seem t stand in ppsitin t eachther s. Althugh this appearance is delusive svereignty f parliament favurs supremacy f the law, whilst the predminance f legality thrughut ur institutins, evkes the exercise, and thus increases the authrity f parliamentary authrity Dicey s recnciliatin f his tw primary principles (svereignty and RL) seen as unpersuasive. Idea f rule f law is t prevent arbitrary gvernment; but if parliament can legislate n anything it pleases, it cannt be bund by the rule f law, and thus can exercise its pwer arbitrarily Page 3 f 89
The judiciary s pwer f interpreting statutes is prbably the mst frequent and effective means by which parliamentary svereignty is recnciled with RL. This is aided by presumptins that statutes d nt intend t alter CL, and are nt intended t impair civil liberties r fundamental HR (Ptter v Minahan; Cc v The Queen) Representative gvernment Means gvernment thrugh the peple thrugh their elected representatives Arguments against Helen Irving: hw can federatin be cnsidered ppular, r the cnstitutin t have the apprval f peple if a ttal numerical majrity did nt vte yes? Argument that ntin f cnstitutin representing idelgy f demcracy nly demnstrated where very large minrities f ttal ppulatin participated Rebut: s lng as peple are aware r have reasnable pprtunity t becme aware f existence f predetermined rules that may affect their behaviur, then if such peple d nt bther t find ut what rules are they have be taken t have given their implied cnsent Cnsider ss 7 and 24 here directly chsen by the peple g t tpic III Respnsible gvernment Executive arm f gvernment is respnsible t parliament fr its actins Pwer f the Crwn is cntrlled by the Ministry; Ministry cntrlled by Parliament; Parliament is cntrlled by electrate Prcess: Balance f pwer f lwer huse f parliament determines leader f gvernment and cmpsitin f ministry Gvernrs/GG act n advice f parliamentary leader f plitical party which cntrls lwer huse Ministers administer Departments f State and must be members f Parliament (s64) Respnsible gvernment rests largely n cnventin Federalism Methd f dividing pwers s that the general and reginal gvernments are each, within a sphere, crdinated and independent Guarantees that states will nt becme t large r ppressive (James Gillespie) Prvides majr check/balance sets majr barrier t cncentratin f plitical pwer between t few hands Divided sveriegty seen as imprtant measure fr prtectin f rights f minrities Aspects f cnstitutin reflecting its federal nature: Restrictin n taxatin pwer nt t discriminate between states (s51(ii)) Bunties and custms duties must be unifrm thrughut Cth (s51(iii) and s88) Cth cannt by law/regulatin f trade cmmerce r revenue, give preference t ne state r any party theref f anther state (s99) Preventin f states frm discriminating against residents f anther state (s117) Page 4 f 89
Page 5 f 89 Full faith required thrughut Cth t laws, public acts and recrds and judicial prceedings f every state (s118) Representatin f the Senate a states huse Idea that in HR, despite being a majrity rule, at least 5 members must cme frm each riginal state (s24)
Cnstitutin and their Amendment Structure STRUCTURE - Cmmnwealth cnstitutin is rigid therefre amendments nly thrugh: Re-interpretatin by the HC Referendum pursuant t s128 requiring a duble majrity Need apprval f bth huses r ne huse twice Duble majrity: Majrity f the peple Majrity f the States State Cnstitutins - State Cnstitutins retained pwers under s106 - State cnstitutins are flexible and therefre an rdinary act f Parliament may amend it: Taylr; McCawley Parliamentary svereignty = ne element f it prevents parliament binding future Parliament Entrenched prvisins effectively d this and therefre surce f pwer t entrench must cme frm a higher surce f pwer including s5 Clnial Laws Validity Act (pre March 1986) s6 Australia Act Ntwithstanding sectins 2 and 3(2) abve, a law made after the cmmencement f this Act by the Parliament f a State respecting the cnstitutin, pwers r prcedure f the Parliament f the State shall be f n frce r effect unless it is made in such manner and frm as may frm time t time be required by a law made by that Parliament, whether made befre r after the cmmencement f this Act. - Three elements t manner and frm prblem: Entrenched prvisins This will be sectin x f the hypthetical cnstitutin Entrenching prvisins This will be the sectin that impses the manner and frm requirements Amending law seeks t amend r repeal the entrenched law - Prcess fr prblem questin: Is the amending law in respect t the cnstitutin, pwers r prcedure f Parliament This questin is asked f the law later in time i.e. the new law: SE Drainage Bard Case law n cnstitutin, pwers and prcedure Respecting the cnstitutin: Enables legislature t deal with its wn nature and cmpsitin: Trethwan Nt limited t laws which ablish a huse r take away its representative character - extend t features which give it its representative character: Marquet Electral distributin laws wuld fall within this Page 6 f 89
Nte: nt every matter affecting the electin f members wuld fall within this aspect thugh: Marquet Respecting prcedure = enables legislature t prescribe rules which have frce f law fr its wn cnduct: Trethwan Outcme: If n Australia act des nt supprt the effectiveness f the manner and frm prvisins Examples: relating t judiciary r lcal gvernment If yes Australia act des supprt the effectiveness f the manner and frm prvisins G t 2 Des the amending law seek t amend r repeal an entrenched prvisins cntrary t the requirements f the entrenching prvisins The requirements are fund in the lder law: SE Drainage Bard Outcme: If n n issue If yes next questin Is entrenching prvisin dubly entrenched If n law in questin is valid as there is n need t adhere t the manner and frm requirements Reasn: able t pass legislatin t remving the entrenching prvisins If yes g t 4 Is the entrenching prvisins really a manner and frm requirement r is it an abdicatin f legislative pwer Manner: Frm: Case law: There must be a pint when a special majrity prvisin appears as an attempt t deprive Parliament f their pwers: West Lakes Extra-parliamentary requirements difficult t be classified as valid manner requirement: West Lakes: Referendum held t be apprpriate as it is btaining the direct apprval f the peple whm the legislature represents: West Lakes Requiring apprval frm individual r entity nt part d the legislative structure is nt valid: West Lakes Examples: referendum, special majrity r abslute majrity Examples f an abdicatin Prescribe cntent: SE Drainage Bard New Parliament must have the cntinuing freedm t judge what is desirable in respnse t plicy exigencies f its wn time: SE Drainage Bard Overall idea: cannt fetter future freedm f actin Page 7 f 89
Randm Pints relating t SOP - Cntract entered int by the executive cannt inhibit the pwer f Parliament t enact legislatin r the right f minister t prpse legislatin: West Lakes Minister cannt enter int a cntract n behalf f the state which fetters wn, successrs r ther members f Parliaments freedm - Relevance f Ansett Rights - Rights may be segmented int three majr areas: 1. Cnstitutinal entrenched rights Trial by Jury: s80 Weak right as: Parliament determines whether the issue is triable by indictment and the right t trial by jury exists when n indictment: Kingswell; Cheng Nte: there have been arguments suggesting it extend t serius ffences but never upheld: Lwenstein per Dixn and Evatt; Li per Murphy J; Kingswell per Deane J McHugh: Statutry interpretatin requires a narrw view and whilst this is unacceptable t civil libertarians this is was is mandated by the cnstitutin Only applies t Cth ffences mst ffences are State ffences Trial by jury requires unanimity therefre cannt accept majrity verdict: Cheatle Freedm f religin: s116 Fur majr guarantees: Cth shall nt makes any law Fr establishing any religin, Fr impsing any religius bservance Fr prhibiting the free exercise f religin N religius test shall be required as qualificatin fr any ffice r public trust under the Cth Nte: general cnsideratin = must be the purpse f the act that interferes with the freedm and nt a cnsequence f it: Krygger per Brennan J (2) Cth shall nt makes any law fr establishing any religin Key case = DOGS Case Narrw view f establishment requires statutry recgnitin f a religin as a natinal institutin Relatinship must be deeper than financial assistance (3) Cth shall nt makes any law fr prhibiting the free exercise f religin Page 8 f 89
General idea: Brad view f religin but narrw interpretatin f freedm: Krygger; Jehvah s Witness Case Wide view f religin: Includes bth tlerance f religin and the absence f religin Narrw view f freedm: The bligatin t bey laws is nt required as incnsistent with freedm Definitin f religin tw criteria: Church f New Faith per Masn and Brennan JJ Belief in a supernatural being, thing r principle Acceptance f canns f cnduct in rder t give effect t that belief Interstate resident rights: s117 General idea = prevents a State frm impsing a disability/discirminaitn n residents f anther state by reasn f their interstate residence Issue = express guarantee has been rendered illusry by judicial interpretatin Previus apprach: Extremely restrictive which required a cmparisn f the persn in questin t a persn residing in the state in questin: Behm Current apprach: Actual situatin must be cntrasted with a hypthetical ne which differs nly n the P in questin residing in the state in questin: Behm per Stephen; adpted in Street Issue = limiting principle may be fund in SOP, federalism r by way f analgy t US privileges and immunities clause General difference f s117 t ther tw rights This is a right t individual Effect = legislatin remains valid but individual is immune Other tw rights are legislative limitatins Effect = renders legislatin invalid 2. Implied cnstitutinal rights Respnsible and representative gvernment Separatin f Federal Judicial Pwer 3. Rights arising under the cmmn law mdel Dicey view: was that individual rights were adequately prtected by rdinary CL, and did nt need special prtectin thrugh judicially enfrceable Bill f Rights r any ther mechanism General idea = in the presence f ambiguity presumptins f legislature intent influences statutry interpretatin Specifically curts will nt impute an intentin t curtail r abrgate rights r freedms unless an intentin is clearly manifested by unmistakeable and unambiguus language: Cc Page 9 f 89