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LAWS1205: Australian Public Law
Core Principles Constitutionalism – Theory that gov can and should be legally limited in its powers – authority and legitimacy depend on observing these limitations Liberalism -‐ Individualism (contrasted with socialism) emphasis on individual rights v state, equality Rule of Law – inherent in our C, ‘Rule of law not rule of persons’ (Communist Party case)
• Dicey’s principles o Supremacy of regular law as opposed to the influence of arbitrary power o Equality before the ordinary law of the land
Popular Sovereignty -‐ all public power resides in & derives from will and consent of people Parliamentary Sovereignty – right to make any law, no person/body can override Parliament – Dicey Separation of Powers -‐ Provided for by structuring of C, separation of judicial power paramount Federalism:
• Limited legislative power of Cth – s51 • Residual legislative power of states – s107 • Inconsistency of state law with valid Cth law resolved in favour of Cth – s109 • States can’t legislate when excl vested in Cth, explicitly (ss21, 90...) & implicitly
(ss12, 119) • States cannot legislate on matters withdrawn from states – eg s114 (military),
s115 (coinage) • States can legislate on matters concurrently vested with Cth subject to
paramount power Power -‐Officials & institutions of state may not exercise public power unless authorised by valid law Conventions -‐ Not enforceable? A ‘guide’ for constitutional actors – Minister for A,H,E v Peko-‐Wallsend, But codification possible Constitutional Change State C: Provisions re constitution, power and procedure (of parl) only changed by means provided by manner and form provisions in these Cs (per CLVA s5, AAs6). Other changes as per normal. s128 – C Amendment process
WA v Cth Issue: whether Cth had legislative power to provide for the rep of the territories in the senate
• Text ambiguous/contradictory – which section if dominant (s7 or s122)/Underlying purpose?
• What is more important – federalism or rep democracy?
State Power State legislative powers:
• Union Steamship o With regard to s5 of state constitution-‐ ‘The Legislature shall, subject
to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever’
HCA reluctant to deal with this issue That is, the words “for the peace, order and good government are
not words of limitation They did not confer on courts of a colony, just as they do not confer on the courts of a state, jurisdiction to strike down legislation on the ground that, in the opinion of the court, the legislation does not promote or secure the peace, order and good the colony.’
o i.e. states have plenary power, which is not subject to judicial review
• State prerogative power
o Can only be exercised in accordance with state government’s area of
constitutional responsibility: (Davis)
Right to pardon (exists at both levels of government) Right to mine metals within their territory
Limits of State Legislative power:
• Cth Constitution o S109 state laws will yield to commonwealth in case in of
inconsistency o Express
S92 state laws shouldn't interfere with freedom of interstate S51 cth sole legislative powers
MANNER AND FORM PROVISIONS State constitutions are enactments of state parliaments, and thus amendable as per normal (McCawley v R) bar where supra-‐state constitutional provisions (CLVA, AA, C etc) limits that power. State Parl can’t abolish entrenched legislation except by proscribed manner and form – CLVA s5/AA s6 How to analyse manner and form problems
• When there is a potential manner and form issue under s 5 of the CLVA (or now under s 6 Australia Act) you will have two acts:
o the first act which sets up the additional legislative procedure, (the ‘manner and form’ requirement) which needs to be adhered to; and
o a later act which is seeking to make some other change to the law.
• You then need to ask two questions (Trethowan test)
o First ‘whether the law that is later in time is a law “respecting the Constitution Powers and Procedures of such Legislature”’
o Test applies not to entrenching provision or entrenched provision, but to law which purports to amend or repeal the entrenched provision (South-‐Eastern Drainage Board)
What laws deal with Commonwealth Powers and
Procedures?
Legislation regarding constitution would deal with nature and composition
Legislation regarding procedure would deal with its own legislative authority
Legislation regarding powers would deal with own legislative authority
• parliaments cannot restrict substantive power of future parliaments but may impose procedural restrictions on certain legislation, which means a future
parliament would have to use a more complicated legislation
• ‘If, and only if’, the answer to this question is yes:
o THEN YOU ASK IF the EARLIER law set down any ‘manner and form’
requirement which dictates how the later law is to be passed. What is a valid manner and form provision?
Importance of the requirement that manner and form
(procedural requirement) actually relate to ‘the legislative process’. (Commonwealth Aluminum Corporation)
all the conditions which are essential to the
enactment of a valid law [by the Parliament] (Dixon J in Trethowan)
must be proportionate regarding issue it is designed
to entrench (Trethowan, Westlakes)
Manner and form provisions must not
Be an attempt to deprive parliament of powers (King CJ obiter in Westlakes)
• Special majority provisions may do this (but not necessarily always)-‐ King CJ in Westlakes
Cannot be overly onerous
• Requiring consent on non-‐parliamentary bodies – Comalco; Westlakes
• Unanimous votes – Westlakes • Preventing the bill from passing completely
(rather than subject to manner and form provision) -‐ Comalco
• Non-‐core constitutional provisions – Westlakes
• Regulating other elements of the state (eg. Executive) – Comalco; Westlakes
requiring a future enactment to be expressed in a particular way (SE Drainage Board)
Be a provision which has the effect of significantly
transferring legislative power to another body (abdication)
• ‘(King CJ obiter in Westlakes) i.e. cant have
concurrence of people outside parliament
‘do more than prescribe the mode in which laws respecting these matters must be made… [This is the
extent of the] ‘rigidity…[that] can be given by the legislature to the constitution’ (Dixon J in Trethowan)
Cases:
A-‐G NSW v Trethowan (1931) Facts:
§ Legislation attempts to abolish legislative council in NSW Decision:
• Provided double entrenchement test: • A special manner and form provision will bind future parliaments if:
o The later bill/ act relates to the constitution, powers and procedures of legislature o The earlier entrenching provision imposes a valid manner and form provision for
passing legislation of the kind of the later act
Attorney-‐General (WA) v Marquet (2003)
Facts: • Attempted to re-‐draw electoral boundaries for seats in WA parliament
Decision:
• A bill to repeal a law can be considered a bill to ‘amend’ a law • At least to some extent the "constitution" of the Parliament extends to features
which go to give it, and its Houses, a representative character o But note-‐ not everything related to election of parliament will be able to be
entrenched using manner and form provision validly enacted under s6
Limitation: Delegation and Abdication Delegated legislation, or subordinate legislation as it is sometimes called, is legislation made by authority of an Act of Parliament.
• Or ‘a legislative rule made by an executive agency pursuant to an authority delegated by the legislature’ – Creyke, McMillan and Reynolds o Are meant to supplement primary rules of an act by allowing exec to make
statutory rules, by-‐laws etc (i.e. minister) Delegation (Allowed-‐ Giris) Delegation of some power to a subordinate body with limits – Cth and state have power to delegate (Dignan)
Limitations-‐ most delegated legislation must be tabled in each house of legislature to enable scrutiny and potential disallowance (Capital Duplicators v ACT) Abdication (not allowed-‐ Giris) Parliament transfers power to or creates what is effectively a new legislature with co-‐equal or otherwise significant power to legislate (Giris PL v FCT). Parliament cannot "create and endow with its own capacity a new legislative power not created by the Act to which it [Parl] owes its own existence" (Giris) Note: some special majority provisions could be seen as parliament ‘handing over’ legislative power by either making it too difficult or handing the power to another entity-‐ e.g. special majority provisions (King CJ obiter in Westlakes)
Dignan’s Case Facts: • Questioned power of cth parliament to make laws allowing GG to make regulations • Argument based around separation of powers
Decision: • This sort of delegation is allowed (and separation of powers in australia is not
complete) • Dixon J à it’s ok, historically in English law was used for improved efficacy, statute as
‘source of obligation and expression of continuing will of legislature o Limits on power that can be delegated à if exceedingly broad then maybe not
§ ‘There may be such a width or such an uncertainty of the subject matter to be handed over that the enactment attempting it is not a law with respect to any particular head or heads of legislative power.’
Limitation: Extra-‐territoriality? • States can pass legislation which does beyond territorial boundaries-‐ Australia Act
1986 (Cth) s2(1) o ‘It is hereby declared and enacted that the legislative powers of the
Parliament of each State include full power to make laws for the peace, order
and good government of that State that have extra-‐territorial operation.’
Pearce v Florenca Facts: • Man had caught rock lobsters off coast of WA • Cth normally can only make laws about sea • S24 (the offence he supposedly comittied) would only affect him is state law
was valid still in cth water Decision: • Gibbs CJ test to determine validity:
o 1. Law valid if connected, not too remotely with state which enacted it o AND o 2. If there is any real connection (remote or general) between the subject
matter of the legislation and the state • Note: most generous interpretation, confirmed in Movil Oil v Victoria
LEGISLATURE:Commonwealth
Head of Power:
• Australia Act s2 o ‘It is hereby declared and enacted that the legislative powers of the
Parliament of each State include full power to make laws for the peace, order and good government of that State that have extra-‐territorial operation.’
• S51 commonwealth constitution-‐ cth legislature has sole powers to legislate regarding
o Trade and commerce (i) o Taxation (ii) o Debt (iv) o Post, telegraph and telephone (v) o Naval and military defence and control to maintain laws (vi) o Currency (xii) o Naturalization and aliens (xix) o Immigration (xxvii) o External affairs(xxix) o Incidental powers (xxxix)
Legislature can access nationhood power through here National health schemes, education etc ‘peculiarly adapted’-‐ AAP
Elections: Powers: Commonwealth parliament gets power to make laws re: number of representatives and divisions from s24 and s29 of constitution ‘until parliament decides otherwise’
• ‘until parliament decides otherwise’ power from s51 (xxxvi) Candidates for election:
• S16 – Qualifications of senator same as house of representatives/ o S34 – Qualifications of house of reps until Parl provides otherwise
• S163 Commonwealth Electoral Act 1918 (Cth): 18 y/o, Aust citizen, qualified to be elector for HR
• S43 – eligible only for 1 house (can’t be senator & MP at same time) • S44 – incapacity for election to Parl: allegiance to foreign power, treason,
convicted of offence (1 year or more sentence), bankrupt, holds office of profit under crown, certain pecuniary interests
o Pecuniary interests (v) Re Webster Webster elected, managing director of timber company, but
had contract to sell timber to cth departments Barwick CJ allowed but construed s44 (v) carefully-‐ to
disallow ‘must be one under which the Crown could conceivably influence the contractor in relation to parliamentary affairs
Level of influence required must be ‘conceivable’ but not certain
Sykes v Cleary Facts:
• Sykes was school teacher, but had been on pay without leave • Got elected while still officially teacher and thus ‘officer’ under teaching, service act • Two other competitors were dual-‐nationals
Decision:
• All candidates were disqualified • Public servants would be contrary to s44 (iv) à risk public servants would share views of
department and not be independent • Doesn't matter that he was on leave • Applies to state public servants as well as cth • Foreign nationals must take ‘all reasonable steps’ to renounce foreign nationality
Right to vote?
• S41 appears to make right to vote but right not absolute and reasonable interference may be tolerated
o ‘No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth’ only for existing right
• Seems to be an express provision
o King v Jones (1972) Was a transitional statute, only intended to hold on until cth passed the relevant statute
Rule meant in 1972 same as in 1901 have to be 21 years or older
If you say s41 still has force then state parliaments can set crazy laws e.g. 12 year olds allowed to vote in NSW election, ergo could vote in Cth
• Commonwealth Electoral Act also limits who can vote and who cant
o Under 18 o Prisoners serving more than 3 years
Roach • Legislation put in place that all prisoners couldn't
vote • Decided inconsistent with representative democracy
o Although exceptions may be justified ‘an arbitrary exception would be
inconsistent’ (Gleeson J) o Test: is disqualification for a substantial
reason
IMPORTANT TEST: Rowe v Electoral Commissioner Facts:
• Electoral roll closure/ allowance for new voter registration and grace period reduced to three days
• Rowe put enrolment 4 days after writ Decision:
• French CJ test-‐ denying enrolment and right to vote of ppl otherwise qualified only ok if: o Serves constitutional mandate of republic democracy o Its adverse effect on exercise of entitlement to vote is not disproportionate to mandate
o Unsound mind o Convicted of treason and treachery
Implied guarantee of vote equality?
• s24-‐ House of representatives shall be composed of members ‘directly chosen by the people’-‐ but no principle of voting equality implied in constitution (McGinty)
• Margin of 10% between electorates is not disproportionate enough to be unconstitutional. -‐ McKinlay
• McKinley no requirement for equal electorates ‘flowed down’ from commonwealth constitution to affect WA parliaments ability to make own electoral laws
o Brennan CJ ‘In my opinion, the Commonwealth Constitution contains no implication affecting disparities of voting power among the holders of the franchise for the election of members of a State Parliament’
AG-‐Cth; Ex rel McKinlay v Cth
Facts: • 1974 election argued invalid as one vote one value notion was not carried
through • disproportionally sized electorates-‐ inconsistent with s24 of Constitution • therefore any laws passed afterwards are invalid
Decision:
• s24 of constitution does not stipulate all electorates must be composed of equal number of voters
• Majority held no principle of ‘one vote, one value’ in Australian Constitutional system
o Murphy J in dissent thought ‘directly chosen by the people’ implied this, especially with the contextual influence of the US
• McTiernan and Jacobs JJ à ‘chosen by people’ depends on circumstances, and does not guarantee equal electorates but if were disproportionately uneven parliament could intervene
o Similarly Mason J à only intervene in cases of extreme disproportionality
• Stephen J-‐ court can’t pass merit on democratic electoral system so long as consistent with representative democracy as chosen mode of government conferred by s51 (xxxvi), legislation has more power
‘Level playing field’ among political parties?
Mullholland v Australian Electoral Commissioner Facts:
• DLP sought to challenge two parts of commonwealth legislation which sought to regulate registration of political parties
o Must be represented in fed. Parliament or 500 members o ‘no overlap’ rule-‐ cant belong to two parties
Decision:
• constitution does protect representative government, but also gives parliament a lot of freedom to determine the features of the system
o ‘[T]he overriding requirement that senators and members of the House of Representatives are to be ‘directly chosen by the people’…imposes a basic condition of the democratic process, but leaves substantial room for parliamentary choice, and for change from time to time’ (Gleeson CJ, 190-‐1; B&W 691
• but Gleeson CJ’s did warn that there might be some things that the Australian Electoral Commission might do which ‘could be antithetical to the idea of representative democracy and direct choice’
Extra-‐territoriality • Cth can make laws that ‘go beyond waters edge’
o Statute of Westminster 1931 s3
o Commonewealth Consitution s51 (xxix) can make laws re:
‘relations with other countries’ • R v Sharky-‐ criminalizing sedition through
commonwealth • Sea and Submerged Land Case – includes territorial sea • Thomas v Mowbray-‐ counter-‐terrorism laws
‘external affairs’:
Polykhovich v Cth Facts:
• War Crimes Act 1945 (Cth) provided any person who committed a war crime between 1939-‐ 1945 was guilty of an indictable offence
• Polykhuovich supposedly committed war crimes in Ukraine in 1942 /3 • Argued law beyond was scope of defence and ‘external powers’
Decision:
• 6-‐1 decided act was a valid exercise of the external affairs power • Mason CJ-‐ if parliament considered Australia had an interest or concern it was
not for the court to examine • Deane J -‐
o ‘any law that can properly be characterized as a law with respect to any thing or person occurring or situate outside Australia is a law with respect to “External affairs’
• Toohey J-‐ (most extreme view) the matter had to ‘touch and concern’ Australia but majority held no nexus test
• Brennan J-‐ must be nexus between Australia and ‘external affair’ involved à war crimes was not an external affair, the subsequent citizenship by an individual was not enough to transform the subject to an external affair
Parliamentary Powers, Privileges and Immunities
• Parliamentary Privileges are guaranteed under: o Constitution 1901 (Imp) s48
• ‘the powers, privileges and immunities of the senate and of the house of reps, and of the members and committees of each house shall be such as are declared by the parliament and until declared shall be those of the commons house of parliament of the UK, and of its members and committees at the establishment of the commonwealth’
• i.e. same as in UK o Constitution s50
each house can make rules • Parliamentary Privileges Act 1989 (cth)
o Convention E.g. NSW
What are some of the powers, privileges and immunities?
• Immunity from arrest in civil causes o Parliamentary Privileges Act s14
• Freedom of speech in parliaments
o Bill of Rights 1688 s9 o Parliamentary Provisions Act s16
• Exemption from jury service
• Power of the houses to determine their own internal constitutions, regulate
internal affairs, control members, strangers/visitors and to control their own business (not do as king wishes)
• Power to conduct inquiries
o Critical to hold parliament accountable o Power to require attendance of persons o Power to require the production of documents
• Power to take evidence under oath
• Power to punish for contempt (Fitzpatrick and Browne)
• Contempt requires interference (Parliamentary Procedures Act s4-‐ interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member's duties as a member)
o No contempt for defamation (s6) o No power to expel member-‐ i.e. take away membership (s8) o No imprisonment greater than 6 months (s7 (1)), no fine greater than
$5000 for individual or $25000 for corporation ((5) (a) and (b)) o Any warrant must now give particulars of alleged offence, so any
allegation will be subject to judicial review, removing the obstacle encountered in Fitzpatrick v Browne–s9
o Egan v Willis TEST: LC has such power, privileges and immunities
as required for the proper exercise of it's functions Functions include law making, but also asking ministers
questions about their portfolios unconditional suspension may be more than ‘necessity’ requires
(Barton v Taylor) but can suspend for limited time as in Egan Can you use parliamentary proceedings as evidence?
• Parliamentary Privileges Act 1987 (Cth) s16 (1) Invokes Article 9 of UK Bill of Rights 1688: ‘That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.’
o so court and tribunal can’t tender evidence for the purpose of questioning truth, motive etc of parliamentary proceedings otherwise questioning or establishing credibility, motive etc of
any person drawing inferences from anything said
Can courts interfere with PPI?
• R v Richards; ex Fitzpatrick and Browne o Cases can only come before court to see if a privilege exists o House of commons has power to protect parliaments from courts
Dixon CJ has ‘the protection from the examination of the conclusion of the house expressed by the warrant’
‘the very plain words of s49 itself… are incapable of a restricted meaning’ COURT HAS NO ROLE IN INTERVENTION OF EXERCISE OF POWERS
• Egan v Willis o ‘Questions respecting the existence of the powers and privileges of a
legislative chamber may present justiciable issues when they are elements in a controversy arising in the courts under the general law.
So could intervene in Egan because of supposed trespass Do you have to give documents protected by legal professional privilege (LPP) or public interest immunity (PII) ?
• PII potential harm in public disclosure of ministerial documents o Egan v Chadwick Spigelman CJ PII not absolute, requires balancing of
conflicting public interests Test is whether it is reasonably necessary for functions of LC
to take cabinet documents • Internal deliberation documents were held not to be
reasonable necessary • House does have power to demand restricted
documents which do not directly or indirectly reveal Cabinet’s deliberations
• LPP would yield to accountability principle • Court decides whether PII applies
Deadlock provision
• Commonwealth Constitution s57 o If passage of bill is rejected twice GG can call double dissolution o Government may collect ‘triggers’ i.e. failed passage once so they
can call election when they want
Can have delay tactics but it only to a certain degree (Victoria v Cth) Is the operation of s57 justiciable?
• Cormack-‐ o McTiernan J
No -‐ whether the Senate ‘in truth rejected or failed to pass the Bill on 13th December 1973 is a political question. In my opinion it is not within the judicial power of the Commonwealth, vested by s 71 of the Constitution in the Court, to decide whether the recitals by the Governor-‐General in the proclamation dissolving both Houses were erroneous in fact or in law.’
o Majority-‐ yes
Cormack v Cope
Facts: • Double dissolution by GG on 11 april 1974 pursuant to s57 • Issue was s57 says ‘bill’ not ‘bills’
o Six bills used as triggers • Can HCA intervene in course of proceedings?
Decision;
• One bill was subject to failure to pass so was ok (Majority had no decision, but Barwick CJ said it was all gee)
• Barwick CJ-‐ HCA has a right and duty to ensure that the Cn’ally provided methods of law-‐making are observed
o Menzies, Stephen JJ, justiciable only where no jurisdiction for review after assent
International Finance v NSW Crime Commission [2009] HCA
• Facts: NSW Crime Commission could apply ex parte to the NSW Supreme Court for a restraining order over a person’s property if there was a suspicion the person was involved in a serious crime.
o The Court was required to make the order if the information presented by the Commission displayed reasonable grounds for the suspicion that the person was engaged in serious crime.
• Held: The order was invalid – o Not in accordance with curial function:
§ Person affected had no opportunity to challenge the order § The Court had to accept the information presented by the Commission –
it could not challenge it o Undermined court’s institution integrity: legislation conscripted the court to
achieve an outcome – court was not exercising an impartial role when exercising the outcome.
o The judges considered that the power was repugnant to the judicial process in a fundamental degree – Gummow J