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Complete Notes for Introduction to Public Law
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Complete Notes for Introduction to Public Law

LLW1000 - Introduction to Public Law

121 Pages Victoria University Complete Study Notes Year Uploaded: 2018

Complete note for Introduction to Public subject. Contents is 9 pages long. WEEK 1 THE SCOPE OF PUBLIC LAW 9 Forms of Public Law 9 SOURCES OF PUBLIC LAW CONSTITUTION -> LEGISLATION->COMMON LAW 9 MAIN CATEGORIES OF LAW 9 THE COMMONWEALTH CONSTITUTION 9 STATE CONSTITUTION ACT 9 ACT OF PARLIAMENT 9 DELEGATED (위임입법) OR SUBORDINATE LEGISLATION 9 AUSTRALIA COMMON LAW 9 CONSTITUTIONAL PRACTICE RELATED WITH EXECUTIVE (PRIMINISTER , CABINET) 9 INTERNATIONAL LAW 10 MATERIAL LAW 10 Constitutions and Constitutionalism 10 SEPARATION OF POWERS: 10 Parliament = Legislative power = make a law s .51 10 Courts = judicial power 11 Executive = executive power 11 Federalism (연방주의 제도) 11 WHAT DOES FEDERALISM MEAN? 11 Sovereignty (통치권) and Independence important for becoming republic. 11 The Australian advantage 12 Checks and Balances 12 Policy 12 What is Public Law? 12 WEEK 2 INDIGENOUS AUSTRALIANS AND PUBLIC LAW -HISTORICAL BACKGROUND, FEDERALISM & INDIGENOUS AUSTRALIANS 13 Why look at history? 13 Brief history of Australia’s Constitution 13 Federation 13 Indigenous Australians 14 INDIGENOUS PEOPLE & THE INAUSPICIOUS BEGINNINGS 14 ASSERTION OF BRITISH SOVEREIGNTY 14 Terra Nullius 15 COOPER V STUART (1889) 14 APP CAS 286, 291 15 TERRA NULLIUS AS AN INTERNATIONAL LAW CONCEPT 16 MABO 16 Is Australia independent? 16 • State Constitutional Instruments 18 Federalism 18 BENEFITS OF FEDERAL SYSTEM 18 DISADVANTAGES OF FEDERAL SYSTEM: 19 WHAT IS AUSTRALIAN FEDERALISM? 19 Senate 19 unitary system 19 Post-Federation Developments 19 Book summary 19 Sovereignty by settlement 19 International law on the Acquisition of colonies in the 19th century. 20 Land rights 20 LAND RIGHTS PRE-MABO 20 THE PUSH FOR LEGAL RECOGNITION OF NATIVE TITLE 20 POST MOBO DEVELOPMENTS 20 Native Title 20 WEEK 3 RULE OF LAW 21 Importance of the rule of law 21 Applies to all branches of government 21 Rule by law vs Rule by Men (ancient debate) 21 ANCIENT GREEKS 21 ENGLAND 21 English history 22 Bill of Right in Australia 22 BILL OF RIGHTS INTRODUCED THE FOLLOWING KEY IDEAS THAT ARE STILL PART OF OUR PUBLIC LAW 22 NO SUSPENSION OR DISPENSINGWITH THE LAWS BY THE EXECUTIVE 22 NO SUSPENSION WITH LAW BY THE EXECUTIVE 22 NO DISPENSING WITH THE LAWS BY EXECUTIVE 23 MODERN USE IN AUSTRALIA 23 MODERN AUSTRALIAN JUDICIAL DISCUSSION 23 Famous Australian Cases 23 COMMUNIST PARTY CASE 23 AUSTRALIAN COMMUNIST PARTY V COMMONWEALTH (1951) 24 A V HAYDEN (NO. 2) (1984) 156 CLR 532 24 RUDDOCK V VADARLIS 25 WALKER V STATE OF NEW SOUTH WALES(1994) 1882 CLR 45 25 Dicey and the rule of law 25 Formal & substantive versions 26 Limits of the rule of law 27 Discretionary자유재량 Powers 27 Parliamentary Sovereignty 27 WHAT IS PARLIAMENTARY SOVEREIGNTY? 27 Modern Australian Examples on the Rule of Law 28 THOMAS V MOWBRAY (2007) 28 International Dimension 28 Summary of Week 3 29 What is the Rule of Law? 29 WEEK 4 SEPARATION OF POWERS 30 What is separation of powers? 30 Constitutional basis in Australia 30 Constitution 30 “Chapter III courts” 30 a) Federal Courts 30 FEDERAL COURTS 31 FEDERAL COURTS: APPOINTMENT AND TENURE 31 b) State Courts 31 c) Territory Courts 31 32 Precedent(선례) 32 PRINCIPLE 1: THE JUDICIAL POWER OF THE COMMONWEALTH MAY ONLY BE EXERCISED BY CH III COURTS PAGE87~94 32 PRINCIPLE 2: CH III COURTS MAY ONLY EXERCISE FEDERAL JUDICIAL POWER 32 EXCEPTIONS 33 Boilermaker’s Case 33 Applies to Commonwealth particularly 33 Applies to Courts particularly 33 Responsible government 33 US system 33 Judicial Power 34 Judicial independence 34 Case on Separation of Powers 34 BRANDY V HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION 34 State laws and state courts 34 Case on Separation of Powers (State Level) 35 THIS BECAME KNOWN AS THE ‘KABLE’ DOCTRINE 35 KABLE V DPP (1996) HCA 35 What about State Supreme Courts? The “Kable doctrine” 35 Summary of Week 4 36 WEEK 5 LEGISLATIVE POWER 37 Importance of elections 37 Representative government 37 Democratic & non-democratic systems 38 Key features of elections 38 What is parliament? What does it do? 38 DIFFERENCES BETWEEN HOUSES 39 DIFFERENT ELECTORAL SYSTEMS: 39 What does parliament do? 39 Who can stand for parliament? 39 Eligibility 39 Disqualification 39 SUE V HILL (1999) 40 Electoral boundaries 40 MCGINTY V WESTERN AUSTRALIA (1996) 40 Influence of political parties 40 Who can vote? 41 ROACH V ELECTORAL COMMISSIONER (2007) 41 Compulsory voting 41 Court of Disputed Returns 41 WEST AUSTRALIA 2013 41 Electoral Commission 41 Voting 42 Compulsory voting 42 Express right to vote 42 implied right to vote 42 Eligibility for Election 43 Restrictions on eligibility 43 Book summary 43 The development of elected legislature 43 Parliament structure 43 Duration 43 The case for four-year maximum terms 44 Who can be elected for parliament =who can be member of parliament 44 ELIGIBILITY CRITERIA 44 DISQUALIFICATION 44 Sykes v Cleary 45 Background facts 45 Legal issues 45 Judgement 45 Electoral redistribution 재배포 46 Election system 46 Election 46 THE ADMINISTRATION OF ELECTIONS 46 THE RIGHT TO VOTE 46 DISQUALIFICATION 46 POWER TO REFUSE TO INCLUDE IN THE ROLL INAPPROPRIATE NAMES 46 COMMONWEALTH ELECTORAL ACT 1918 - SECT 101 47 COMPULSORY ENROLMENT AND TRANSFER 47 CALLING ELECTION 47 NOMINATION PROCESS 47 VOTING 47 GROUNDS OF APPLICATION FOR POSTAL OR PRE-POLL VOTE 47 OFFENCES 48 WEEK 6 – PARLIAMENT 49 What is parliament? 49 Relationship between Parliament and Executive 49 Parliamentary Supremacy 49 Parliamentary Privileges 50 The meaning of parliamentary privilege 50 CONTROL OVER MEMBER 50 CONTROL OVER STRANGERS OR VISITORS 50 PARLIAMENTARY IMMUNITIES AND POWERS PART OF ORDINARY LAW 50 IMMUNITIES OF THE HOUSES 50 IMMUNITY FROM ARREST AND ATTENDANCE BEFORE COURTS 51 MINOR IMMUNITIES 51 POWERS OF THE HOUSES 51 POWER TO CONDUCT INQUIRIES 51 RIGHTS OF WITNESSES 52 Executive privilege 52 POWER TO SUMMON AND PUNISH FOR CONTEMPT OF PARLIAMENT. 52 POWER TO PUNISH CONTEMPT 52 MATTERS CONSTITUTING CONTEMPT 52 MATTERS CONSTITUTING CONTEMPT 52 PROTECTION OF ACCUSED PERSONS 53 CITIZENS’ RIGHT OF REPLY 53 SCOPE OF THE PRIVILEGE: THE PRECINCTS 53 Freedom of Speech 53 Other Immunities 53 COMMITTEES 53 ROYAL COMMISSIONS 54 Contempt모욕 of parliament 54 MEMBERS OF THE PUBLIC 54 EXPELLING[방출]하다 AN MP 54 SUSPENDING 보류하다AN MP 54 PENALTIES 54 PROCEDURE 55 WHEN WILL COURTS INTERVENE 조정(調停)하다? 55 STATUTORY INTERPRETATION 55 THE HEFFERNAN MATTER 55 Conventions 55 RESERVE보류 POWERS(GOVERNOR GENERAL 의 파워) 55 1975 DISMISSAL 56 Summary of Week 6 56 WEEK 7 – LEGISLATIVE POWER 57 Constitutionalism 57 Types of legislative powers 57 Exclusive Powers 57 COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 90 57 EXCLUSIVE POWER OVER CUSTOMS, EXCISE, AND BOUNTIES 57 Concurrent 공존하는 Powers 57 COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 51 57 LEGISLATIVE POWERS OF THE PARLIAMENT [SEE NOTES 10 AND 11] 57 Residual 나머지의 Powers 58 COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 107 58 SAVING OF POWER OF STATE PARLIAMENTS 58 Interpretation of legislative powers 59 ENGINEER’S CASE (1920) 59 State legislative power 59 Limitations on State Constitutions 60 Limits originating from the Commonwealth Constitution 60 Limits resulting from the phrase ‘Peace, Welfare and Good Government’ 60 Limits based on abrogation of ‘rights deeply rooted’ 60 Entrenched확고한 provisions 61 Conflict between Cth and State laws 61 CTH V ACT (2013) 62 Summary of Week 7 62 The Pow ers of Australia’s Pa rlia ment 62 Commonwealth legislative power 62 The Powers of the Commonwealth Parliament 63 WHAT ARE OUR (EXPRESS) RIGHTS? 63 Parliamentary Sovereignty and Plenary Legislative Powers 64 The Powers of Australia’s State Parliaments 64 The legislative powers of the state 65 Limits of the Powers of State Parliament 65 Limitation 1. the commonwealth constitution 65 LIMITS ORIGINATING FROM THE COMMONWEALTH CONSTITUTION 65 EXPRESS LIMITATIONS 65 Limitation 2. Manner and Form 65 DOUBLE ENTRENCHMENT 66 Limitation 3. Territoriality 66 Limits based on abrogation of ‘rights deeply rooted’ 67 Union Steamship Co v King (1988) 67 Durham Holdings Pty Ltd v NSW (2001) 67 Kable v DPP (NSW) (1996) 68 Laws with Extra-Territorial Application 68 The Power to change State Constitutions 68 Debate: 68 WEEK 8 – EXECUTIVE POWER 70 What is the ‘executive’? 70 Executive power 70 Sources of executive power 71 CONSTITUTION 71 STATUTORY POWER 71 PREROGATIVE POWER 72 Conventions 72 Case studies 72 RUDDOCK V VADARLIS (2001) - THE ‘TAMPA’ CASE 72 WILLIAMS V CTH (NO. 1) 73 A V HAYDEN 73 Summary 73 The parts of the executive 73 THE CROWN 73 THE GOVERNOR AS THE CROWN REPRESENTATIVE 74 THE DEPUTY 대리역 GOVERNOR 74 THE ADMINISTRATOR TO THE GOVERNMENT IN THE STATES 74 THE TERM ‘EXECUTIVE’ 74 THE EXECUTIVE COUNCIL 74 THE CABINET AND THE PREMIER 74 THE MINISTERS 74 THE PUBLIC SERVICE 74 The powers of the executive 74 GENERAL FUNCTIONS OF THE GOVERNOR 74 THE ROYAL PREROGATIVE 75 DISPLACEMENT OR OUSTER OF THE ROYAL PREROGATIVE 75 Conventions of the constitution 76 The conventions: the governor Acts on the advice of the ministry 76 The exception: reserve powers and constitutional crises 76 THE RESERVE POWER 76 DISMISSAL 76 DISSOLUTION 76 No power to Tax without legislative assent 76 AUTHORIZATION TO SPEND PUBLIC MONIES 76 What is the Executive? Elements and Functions 76 THE CROWN 77 GOVERNORS AND THE GOVERNOR GENERAL 77 PRIME MINISTER, PREMIERS, CABINET AND MINISTERS 77 THE PUBLIC SERVICE; DEPARTMENTS AND OFFICERS 77 STATUTORY AUTHORITIES AND STATUTORY CORPORATIONS 78 POLICE AND ARMED FORCES 78 What does the Executive do? 78 • 3.3 From where does the executive gain power to do it? (Cth only) 78 STATUTES (PARLIAMENTARY AUTHORITY) 78 THE CONSTITUTION (S 61) – THE GOVERNOR-GENERAL AND CABINET 78 PREROGATIVE POWERS 79 COMMON LAW POWERS 79 Nationhood powers 80 How does parliament control and oversee the elements of executive? 80 ENACTS THE LEGISLATION THAT EMPOWERS AND REGULATES THE EXECUTIVE 80 SCRUTINY AND DISALLOWANCE OF DELEGATED LEGISLATION 80 PARLIAMENTARY COMMITTEES TAKE EVIDENCE FROM PUBLIC OFFICIALS (E.G. ESTIMATES, SCRUTINY) 80 QUESTION TIME IN PARLIAMENT 80 ESTABLISHMENT OF INDEPENDENT SCRUTINY AGENCIES UNDER STATUTE (E.G. AUDITOR-GENERAL, OMBUDSMAN, INSPECTOR GENERAL OF INTELLIGENCE SERVICES, ETC.) 80 Executive Accountability 81 a) especially the Freedom of Information Acts 81 WEEK 9 – JUDICIAL POWER 82 Nature of judicial power 82 Who can exercise judicial power? 82 Judicial power defined 82 Constitutional role of courts 82 Courts enforce 적용하다 the rule of law 82 Accountability of judges 82 Judicial independence 82 EVIDENCE 83 Appointment & removal 83 Removal 84 RETIREMENT 84 SUSPENSION 정지 84 DISMISSAL 84 ABOLITION 폐지 OF OFFICE 85 Bias 85 JUDICIAL BIAS 85 Judicial review 85 Background 86 Role of courts 86 Legality 법적 의무/merits 86 Role of High Court 86 Judicial activism 87 JUDICIAL SELF – RESTRAINT 87 Separation of powers 88 Second aspect 88 Statue Court 88 Recap 89 Summary of Week 9 89 Book summary 89 Origins 89 Statue 89 Salaries and conditions 90 Immunity 면제되기 90 4.1 What/who is the judiciary and where do its powers come from? 90 “Chapter III courts” 90 Federal Courts 90 State Courts 91 CONSTITUTION S 73 92 Territory Courts 92 CONSTITUTION S 122 92 4.2 The Separation of the Judicial Power: the Boilermakers Principles 92 Principle 1: The judicial power of the Commonwealth may only be exercised by Ch III courts 92 NSW v Commonwealth (1915) (the ‘Wheat Case’): 92 Principle 2: Ch III courts may only exercise federal judicial power 93 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) (‘Boilermakers’ Case’) 93 Exceptions 93 What about State Supreme Courts? The “Kable doctrine” 93 4.3 What is ‘judicial p ow er’? 94 Defining judicial power 94 Indicia/characteristics of judicial power 94 Inherently judicial powers 95 THOMAS V MOWBRAY (2007) 99 4.4 The procedural requirements for exercising judicial power 99 WEEK 10 PUBLIC INTERNATIONAL LAW 101 What is public international law? 101 IS PIL REALLY ‘LAW’? 101 Sources of PIL 101 TREATIES 101 SOVEREIGNTY 101 CUSTOMARY LAW 102 Monism and dualism 102 MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS V TEOH (1995) 183 CLR 273: 102 Entering and implementing a treaty 102 ENTERING A TREATY 102 IMPLEMENTING 이행[실행]하다A TREATY 103 KOOWARTA V BJELKE-PETERSON (1982) 103 TASMANIAN DAMS CASE (1986) 103 ‘Unincorporated’ treaties 104 Interpreting legislation 104 Developing common law 104 MABO V QUEENSLAND (NO2) (1992) HCA 23 - (‘MABO CASE’) 104 DIETRICH V R (1992) 104 CASE STUDY IN INTERNATIONAL LAW 104 Summary of Week 10 104 Book summary 105 Australia’s international position 105 Forms of International Law 105 CUSTOMARY INTERNATIONAL LAW 105 TREATIES AND OTHER INTERNATIONAL INSTRUMENTS 105 SOME AREA OF INTERNATIONAL LAW THAT ARE NOT PART OF AUSTRALIAN LAW 106 LEGITIMATE EXPECTATION 106 MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS V TEOH (1995) 183 CLR 273: 106 Facts and background[edit] 107 Decision[edit] 107 Legitimate expectation 107 Common law rights of children 107 Repercussions 107 RE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS; EX PARTE LAM[21] 108 The use of Treaties to develop the common-law of Australia 108 The Use of Treaties to interpret Domestic Legislation 108 Australian Law on Diplomatic Immunity 109 ORIGIN 109 THE STATUES 109 Diplomatic Immunity 109 PERSONS COVERED 109 ACTIVITIES COVERED 109 PREMISES COVERED 109 WHEN IMMUNITY STARTS AND FINISHES 110 WAIVER 110 PERSONA NON GRATA 110 CONSULAR IMMUNITY 110 Sovereign Immunity 110 WEEK 11 – HUMAN RIGHTS 111 KEY HUMAN RIGHTS DOCUMENTS 111 MANY RIGHTS ARE NOT PROTECTED BY AUSTRALIAN LAW 111 TWO APPROACHES TO HUMAN RIGHTS 111 COMPARE AUSTRALIA’S SITUATION TO THAT IN EVERY OTHER WESTERN COUNTRY/DEVELOPED DEMOCRACY: 112 WHY THE ‘RELUCTANCE REGARDING RIGHTS’? 112 EXPRESS RIGHTS 112 AL-KATEB DECISION ILLUSTRATES: 114 ARGUMENTS FOR A CHARTER OF RIGHTS 115 ARGUMENTS AGAINST A CHARTER OF RIGHTS 115 MASON CJ & DEANE J, MIEA V TEOH (1995) 115 TASMANIAN DAM CASE (1983) 116 KOOWARTA V BJELKE-PETERSEN (1982) 116 BASED ON THE HUMAN RIGHTS ACT 1998 (UK) 117 THIS MODEL SPECIFICALLY PRESERVES PARLIAMENTARY SUPREMACY 117 INDIGENOUS AUSTRALIAN 118 ASIAN AND OTHERS 118 WOMEN 119 VICTORIA 2006 120 LIMITED RIGHTS IN THE CONSTITUTION 120 THE PASSAGE OF SPECIFIC ACTS ON SPECIFIC PROBLEMS 120 CONTINUED RELIANCE의지 신뢰 ON COMMON LAW PRINCIPLES 121 ARGUMENTS FOR BILL OF RIGHTS P 304 121 ARGUMENT AGAINST A BILL OF RIGHTS 121 WEEK 1 THE SCOPE OF PUBLIC LAW FORMS OF PUBLIC LAW • Divided into constitutional law and administrative law. • Divided into commonwealth constitutional law and state constitutional law • This unit will mainly involve the study of the Constitution • The Constitution is not a complete statement of how Australia is governed • Does not refer to many central features of Australian government eg. PM, Cabinet, political parties • The Constitution was drafted at the end of the 20th century • Was drafted for a particular purpose (Federation) & in particular context (20th century values) • Affects how it is interpreted  not like ordinary legislation SOURCES OF PUBLIC LAW (위에서부터 중요함) CONSTITUTION -> LEGISLATION->COMMON LAW 1. Constitution 2. Legislation (laws made by parliament) 3. Common law (laws made by judges) MAIN CATEGORIES OF LAW 1. Public law- constitutional law, administrative law : Relationship b/n state & individuals 2. Private law - contract, torts : Relationship b/n individuals THE COMMONWEALTH CONSTITUTION • Section 9 in constitution of commonwealth of Australia Act 1900(UK) • The highest form of law in Australia • Three major branches of commonwealth system 1. Executive power –Executive 2. Legislative power - Parliament 3. Judicial power - Court STATE CONSTITUTION ACT • Each of the states and Territories has its own constitution Act • 1850s : NSW, VIC, Tasmania, SA • 1867: Queensland • 1889: WA • “Flexible” • They can only be changed by a special procedure, usually either by a special majority in the parliament or by a referendum of the people ACT OF PARLIAMENT • There are also special Acts concerned to protect public authorities such as anti-corruption legislation, legislation on the powers and privileges of parliament.  Eg: Ombudsman, office of parliamentary counsel DELEGATED (위임입법) OR SUBORDINATE LEGISLATION • Made by Governor-general or Governor on advice, or by a minister • Parliament cannot make all of the legislation necessary • Most Acts of Parliament confer a power to make delegated or subordinate legislation. • Exception: rules of the superior court AUSTRALIA COMMON LAW • Equality • High court has power to declare(선언) the common law for country and to change the existing common law CONSTITUTIONAL PRACTICE RELATED WITH EXECUTIVE (PRIMINISTER , CABINET) • Conventions of the constitution. • Public law involves consideration of unwritten principles (conventions) • These principles are essential to the effective functioning of government • Not law in the sense of enforceable in a court • “Caretaker Convention “  government will make only routine decisions and not introduce new policies  Why? Existing government should not be blinding on new government. • Conventions apply particularly to the Executive (topics 6 & 8) INTERNATIONAL LAW • It is not automatically part of domestic law • If there is a conflict between Australian law public law and international law, domestic law prevails. MATERIAL LAW • S 114 of the commonwealth constitution: the state may not raise or maintain a naval or military force ‘without the consent of the parliament of the commonwealth” • S119 of the commonwealth constitution: shall protect every state against invasion and on the application of the executive government of the state, against domestic violence CONSTITUTIONS AND CONSTITUTIONALISM • Constitutions have been classified as either written or unwritten • Constitution is “dynamic” - interpretation can change over time. Because it 1. Difficult to change: can be changed only by a special procedure. (44 attempted, 8 successes in 1977) 2. Drafted in general language 3. Not ordinary legislation- special status • Virtually all countries have a constitution: 1. Sometimes called a “founding” document 2. Often result of revolution eg. USA & France 3. Symbolically important: statement of values & aspirations 4. “Unwritten” constitutions eg. United Kingdom: Consists of many documents : whole collections 5. Written constitution eg. Australia (one single document), United States: Consists of one main document 6. Main function of a constitution is to set out the powers of government ( government 가 잘못을 했을떄 어떤 정부가 잘못을 했는지 알아야한다.) 7. Constitutionalism: define & limit powers of government 8. Some essential constitutional principles are not expressly stated in the Constitution Eg. Separation of powers, rule of law 9. These principles were inherited from the UK, USA system. • Australia’s system of government can be described in many different ways:  “democracy” - leaders are elected, citizens have certain rights  “constitutional monarchy”(군주 국왕): head of executive : Queen is head of state, but powers limited by a constitution  “representative government” - governed by elected representatives, who are accountable for their decisions • Australia is described as a “liberal democracy “it upholds liberal values:  Individual freedom  Equality (formal, at least)  Respect for the individual • Three main branches of government: =>related with separation power. (role, power)->we cannot trust it completely, so reviewing. Keep each other’s 1. Parliament - legislative power 2. Courts -judicial power 3. Executive - executive power SEPARATION OF POWERS: 1. Parliament makes the laws 2. Executive carries out the laws 3. Courts interpret the laws PARLIAMENT = LEGISLATIVE POWER = MAKE A LAW S .51 • Parliament may make laws within certain limits  Must comply with the Constitution Eg. Heads of power, other limitations = Only legislate for the territory concerned = VIC made, use VIC • Laws must be passed by both houses, & receive Royal Assentv->어느 한쪽으로는 안됨. • Parliament is “supreme” in the Australian constitutional system COURTS = JUDICIAL POWER • “commonwealth constitution”이 “state constitution” 보다 우선에 있다. • Courts/judges cannot “: make” law • Can only interpret laws (including Constitution) => role of high court • Power of “judicial review” = examine validity of legislation, and declare invalid if unconstitutional , constitution 이 새로 필요한가 아닌가를 • Inherited from the USA • Gives judges great power EXECUTIVE = EXECUTIVE POWER • Historically the monarch (King or Queen) had unlimited powers->there were no separation powers. • Currently in Aust the Queen is part of one branch of government (Executive) head of Executive. • Powers of the monarch are limited = mainly formal/ceremonial • Aust is a “constitutional monarchy” • The queen is Australia’s “Head of state” • Should Australia become a republic? • Our own head of state (elected or appointed) • The Executive consists of many people and institutions (topic 6 & 8) 1. Governor-General is Queen’s representative 2. Prime Minister 3. Ministers 4. Cabinet 5. Departments/public service FEDERALISM (연방주의 제도) 1. Australia has a federal system of government 2. Inherited(물려받다) from the USA 3. Federation was the main reason for drafting the Constitution • Federalism was summarized in 1897 as embracing(포용하다) three central principles:  The supremacy of the Federal or Commonwealth constitution  The distribution, by the constitution, of the powers conferred by the constitution between :a) the different branches of government and b) the federal and state levels of government.  The existence of a supreme judicial power, conferred on the High court to interpret the constitution and to resolve matter in dispute between the different parts of the federal system.  Matter is which State or Federal of law applies to the problem. • Australia operates on a system of co-operative federalism. Eg: commonwealth criminal act ->state criminal court. Financial. • State law is inconsistent with the commonwealth law, the state shall be, to the extent of the inconsistency, invalid. WHAT DOES FEDERALISM MEAN? • 2 layers of government • Division of powers between the layers • Possibility for dispute & overlap • High Court decides these disputes SOVEREIGNTY (통치권) AND INDEPENDENCE IMPORTANT FOR BECOMING REPUBLIC. • Most nations celebrate an “independence day” • Australia has a degree of independence • Eg. Parliament & courts • “statute of Westminister” 1931 which freed the commonwealth from a number of legislative restriction • Executive independent before 1942 • But retains British monarch as the highest public office question about executive! We are independent completely? -> no because monarch in executive. THE AUSTRALIAN ADVANTAGE • Attitude towards power • A long period of constitution making • The growth of political stability • Political moderation and flexibility • A basic awareness of and acceptance of the constitutional order by the general populace(대중) CHECKS AND BALANCES • Australian public law is based on a system of ‘checks & balances  Power is divided among several persons & institutions  To prevent arbitrary decision-making, overreach of powers, absolutism  Each branch of government is a “check” on the others (3개의 파워를 ) POLICY • Public law is of course influenced by political developments • Most obvious developments in western countries:  Power of cabinet (main decision-making body)  Power of political parties (to enforce adherence to party policy eg. In voting) • Australia has a relatively stable political history • No revolutions, civil wars, assassinations, coup d'tat, etc • Few political events of note  1975 Dismissal of Prime Minister Gough Whitlam • Australians are seen as apathetic regarding politics • Reluctant to support major change (44개중 성공확률낮다)  Eg. Constitutional amendment “ bills of right” 호주는 포함하지 않는다 • High levels of confusion regarding Australia’s current system • All attempts at reform inevitably become politicised • Easy for politicians & others to misinform/scare public regarding change • Australians seem to be very compliant with government policy WHAT IS PUBLIC LAW? • The system of rules that provide for living in that state and the power conferred by people on the sovereign • Administrative Law: Ministers and the Governor General (the executive) who administers and applies the law (e.g. the cabinet or regulations made by the minister of health • Human Rights: Constrains government power, government power is limited to act upon the Australian Constitution and the human rights of the public (Constitutionalism and Principle of Federalism and Liberalism). Defines how we as a public all relate to the power of the state. • Constitutional Law: i.e. Australian Constitution • Statutory Construction: must be consistent with the Australian Constitution as that sets out the framework with how our law should be formed and interpreted from • Public law exists as just one of many influences on a person’s choice of conduct (i.e. other systems of obligations include those derived from a range of social spaces = the home, the workplace and place of worship) • Public law have direct and powerful influences over us • They regulate individual conduct (e.g. freedom of movement and speech) • Determine fundamental rights (e.g. right to own property) • Require fulfillment of certain responsibilities (e.g. participation in military service in defense of the state) • Punish individuals who offend the laws of the state • Despite the predominance of nation-states, the legitimacy and efficacy of their public law is open to constant challenge • Above: the pressure of globalization and public international law influences the laws of the states (i.e. European Union) • Below: Influences of local community pressures the public law of the state (i.e.  Indigenous people claiming freedom from the state public law and asserting their right to their own Indigenous systems of government and law)   WEEK 2 INDIGENOUS AUSTRALIANS AND PUBLIC LAW -HISTORICAL BACKGROUND, FEDERALISM & INDIGENOUS AUSTRALIANS WHY LOOK AT HISTORY? Australian Constitution is based on other constitutions – particularly the UK and the US • Many similar features eg. Separation of powers, rule of law, etc. These principles have a long history • Existed before Australian Constitution was drafted To understand the Constitution you need to know the circumstances and purposes for which it was drafted. By looking at key historical events we will see how principles such as separation of powers developed over time BRIEF HISTORY OF AUSTRALIA’S CONSTITUTION • NSW was originally a British colony • It was claimed by the British as a penal colony • In 1788 Governor Arthur Phillip arrived in Sydney with the First Fleet • The colony of NSW ‘received’ all applicable law in force in England in 1788 • The same was to occur in all of the Australian colonies upon their formation • The doctrine of ‘Terra Nullius’ • English law applied to the Australian colonies • UK Parliament did not need to refer to Australia expressly – UK laws applied automatically • Initially each colony was ruled by a Governor, on instructions from the UK • Gradually each colony developed its own parliament and the principle of ‘responsible government’ took hold • This meant that the Governor could generally exercise powers only on the advice of elected ministers • Beginnings of ‘self-government • In 1850 UK Parliament passed law authorising each colony to enact its own constitution • In 1865 UK Parliament passed the Colonial Laws Validity Act • Laws enacted by the colonies were void if repugnant to the provisions of UK legislation extending to that colony • UK laws that deliberately extended to the colonies were declared ‘paramount’ to colonial laws • A colony could amend or repeal UK laws received by the colonies • Monarch (King or Queen) could disallow a colonial law, even after the relevant Governor had given assent • Outside of the above limits, the colonial parliaments had total competence to pass whatever law they wished FEDERATION ‘Federate’ means to join together without giving up separate existence Why did the 6 colonies decide to federate? Primarily because of issues of commerce and defence • Colonies wanted to trade more effectively • Defence: Expansion of French and German into the South Pacific provoked fears of invasion • Constitution was drafted at a series of ‘conventions’ (meetings) attended by colonial delegates • Commonwealth of Australia Constitution Act 1900 was passed by the UK Parliament • Constitution is s 9 of that Act • The Constitution Act came into force on 1 January 1901, when the Commonwealth of Australia was officially ‘born’ • Commonwealth Constitution was not the result of a civil war or revolution • Compare to US or French Constitution • Pragmatic rather than inspiring document • Did not seek immediate independence from colonial master (UK) • Commonwealth Constitution sought to unite the colonies for certain purposes – trade and defense • Drafters not particularly concerned with individual rights and freedoms • No bill of rights • Compare to US Constitution • Drafters were white Anglo-Saxon men • Women were not entitled to vote in most colonies at Federation • Indigenous people were not recognised in the Constitution, nor was their input sought INDIGENOUS AUSTRALIANS • The Constitution does not acknowledge that Indigenous Australians are the prior custodians of this land • Constitution when drafted referred to Indigenous people in two contexts – both negatively • s 127 - Aboriginals not to be included in counting the population of each state • typified the drafters’ belief that Indigenous peoples were an irrelevant and dying race • s 51(xxvi) – the race power – explicitly removed Indigenous Australians from the scope of the Cth’s power over race • Issue of sovereignty • Indigenous people of Australia never ceded sovereignty to the British • At the time of colonisation (and indeed since Federation) no treaties were made between the Indigenous people and the English • Compare to NZ and other countries INDIGENOUS PEOPLE & THE INAUSPICIOUS BEGINNINGS • Australia had thousands of government before the European settlement (Aboriginal law). • Constitutional law must be recognised as NOT the first law in Australia. • Originally established as a fledging penal colony used as accommodation for prisoners of the English justice system, New South Wales (as it was called at the time) consisted of an autocratic ruling system, akin to military dictatorship • The Governor was vested complete power from the King, called Royal Commissions. He exercised executive, quasi-legislative and judicial power ASSERTION OF BRITISH SOVEREIGNTY • Australia was first considered ‘Terra Nullius’ (land belonging to no one) by British’s Captain James Cook’s voyage, the first European claim onto Australian territory.  ‘Terra Nu llius’ : land belonging to no one • Captain Cook claimed that he saw no fixed habitation but rather people fishing and hunting with not ‘one Inch of Cultivated Land in the Whole Country’. Cook claimed the indigenous people as ‘Wild Beasts’ and therefore did not officially recognise them as inhabitants.  Saw Australia as having no law, no government and no living style • By claiming the land as Terra Nullius, [British Law would be applied and the Crown would have absolute ownership of all the land (Settlement)] without the need of a [takeover by war where local law would still apply until amended (Conquering/ Cessation)].  Cook’s mission: 'with the Consent of the Natives to take possession of Convenient Situations in the Country in the Name of the King of Great Britain' TERRA NULLIUS • Terra nullius is a mode of territorial acquisition • Occupation could occur only in relation to territory which was, at the time occupation commenced, terra nullius • Logically, you have to find unoccupied land empty of people. This is hard to do, as even in ancient times most places in the world had been occupied by peoples • Prior to the 19th century – occupation was by ‘civilised’ people, at least from the Western- European point of view • On the basis of the assumption of ‘terra nullius’ and the ‘discovery’ of ‘uninhabited lands’, English law washed across the continent and indigenous law or sovereign rights were ignored  1837 A Select Committee on Aborigines reported to the House of Commons that: the state of Aborigines was ‘barbarous’ and ‘so entirely destitute … or the rudest forms of civil polity, that their claims, whether as sovereigns or proprietors of the soil, have been utterly disregarded’  1889 Cooper v Stuart (1889) Privy Council said that NSW was, upon settlement, a territory ‘practically unoccupied, without settled inhabitants or settled law’ COOPER V STUART (1889) 14 APP CAS 286, 291 Fact • Governor made a land grant in 1823 whilst saying he could reacquire it at a later date for the purposes of the public. • The Plaintiff [Cooper], the successor in title to the original grantee, argued that this clause is invalid, as it goes against the law against perpetuities. • The law against perpetuities basically means that once you give away property, you relinquish all control and you cannot stop the next person from controlling that property. • The Defendant [Stuart] argued that the law against perpetuities was not part of the NSW law back then. Decision • The court iterates that NSW was a settled colony. • Therefore, the law of England is immediately in place. • However, it is only in force in so far as it is applicable to the circumstance of an infant colony. • Some principles are not received by the colony when it is at its infant stages, because they do not yet suit it. As the colony grows and prospers, those principles of English law which were unsuitable before, would gradually be introduced. • Ina new colony, a government needs to give away land grants. But it also needs to reserve space for public use. In its infant stages, it is impossible to tell which spaces will be needed for public use. • Therefore, the law against perpetuities was unsuitable to the colony in its infancy, and was not in effect in 1823. • Appeal dismissed, the Plaintiff loses. • During the 20th century greater recognition of the sophistication of indigenous legal systems means that the presence of indigenous people will displace notions of terra nullius • 1975 Rejection of the legitimacy of the theory of terra nullius. Advisory Opinion on Western Sahara (1975) (ICJ)  1992 Mabo (No2) HCA rejected the fiction that the territory was unoccupied, thus recognising that the Indigenous people of Australia had a pre-existing legal system, and consequently had certain rights under that system which remained in force until the new sovereign power modified those rights  This formed the basis for Australia’s common law to recognise a form of Indigenous property law known as ‘native title’  In displacing the terra nullius doctrine, the court left open the issue of whether the colony was settled or conquered TERRA NULLIUS AS AN INTERNATIONAL LAW CONCEPT • in international law, terra nullius is best translated as territory belonging to no state or witch was not the subject of a claim by sovereign state • territory can be uninhabited but not terra nullius => island around Australia where no one lives so they are uninhabited but this islands are not terra nullius because they are subject to Australia sovereignty. • In international law that territory not under sovereignty of a recognized state might be acquired as terra nullius even if inhabited by ‘primitive (원시의) tribes or nomad (유목사회의) groups not organized as a state. =>현재는 아니다. => any territory that is inhabited can no longer be regarded as terra nullius • Main issue now is Indigenous recognition • Formal recognition of Australia’s Indigenous peoples in the Constitution • Seems fair to acknowledge Indigenous Australians in the nation’s constitutional document • This would require a successful referendum to amend the Constitution • The idea of ‘Terra Nullius’ was challenged by the Indigenous Australians as seen in the landmark decision of Mabo v Queensland (No 2) where the High Court accepted that Australia was not in fact ‘Terra Nullius’ in original sense since it was inhabited. As a result, recognisable Indigenous legal system, at least in relation to land ownership, would still exist  From this judgement, since the sovereignty and reception of the British Law rested on settlement, which in turn rested on the fiction of ‘Terra Nullius’, the UK sovereignty that formed the Australian Constitution could NOT be legally recognised anymore.  However, the leading judgement of Brennan J in Mabo, navigated around this issue, classifying the assertion of UK sovereignty as a political act with it being unquestionable in the courts.  Sir Anthony Mason said that “ terra nullius played a small part in the decision and described the view that because the term “terra nullius” had not been referred to in 1788 by the British that the High Court had somehow made a mistake, as a ‘quibbling(핑계대는) point’ MABO Mabo and Others v Queensland (No2) (1992) 175 CLR 1 Fact • The Plaintiff [Mabo, representing the Merriam people] had occupied certain islands in Queensland long before colonial occupation. The present inhabitants were direct descendants of those people described in colonial reports. • The islands were annexed to the Crown in 1879. • After being challenged by the Plaintiff in the past, the Queensland government enacted the Queensland Coast Islands Declaratory Act 1985 (Qld). This declared that upon annexation of the islands in 1879, everything became vested solely in the state of Queensland. • The Plaintiff opposed this, seeking a declaration that this legislation was invalid as it was contrary to the Racial Discrimination Act 1975 (Cth). • In Mabo (No 1), the court held that the new legislation was indeed contrary to the Racial Discrimination Act. This case concerned the question of ownership and title, in particular, whether the common law doctrine of tenure could coexist with native title. Decision • The common law of Australia recognises a form of native title. This title reflects the rights of the indigenous inhabitants in accordance with their laws and customs. • Native title exists where: The indigenous can prove a continuous connection (from before the time of colonisation) to the land through traditional customs; and • This title hasn’t been extinguished or modified subsequently (ie, the Crown hasn't 'granted' it to someone). • Only the indigenous can have native title, and once it is lost (eg, by purchase, voluntarily, by losing connection with the land, if it was extinguished by the Crown), it is lost forever. • Native title may be protected by legal and equitable remedies, provided it is not repugnant to ‘natural justice, equity and good conscience’. • Possession under native title may be enforced by representatives of the indigenous clan or group. Brennan J:  ‘If the international law notion that inhabited land may be classified as terra nullius no longer commands general support, the doctrines of the common law which depend on the notion….can hardly be retained. If it were permissible in past centuries to keep the common law in step with international law, it is imperative in today’s world that the common law should neither be nor be seen to be frozen in an age of racial discrimination’.  The expectation of the international community accord in this respect with the contemporary views of the Australian people….The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially where international law declares the existence of universal human rights. A common law consideration founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration.’ IS AUSTRALIA INDEPENDENT? Is Australia an ‘independent’ nation? • Many nations celebrate their independence day- important part of national identity and source of pride • ‘Independence’ here means independent from the UK • At Federation the colonies became states • Both the Cth and each state and territory still subject to the UK Colonial Laws Validity Act  UK Parliament could override any Cth or State  Expressly or by implication  Before or after the Cth or State legislation was passed • Executive independence – the one remaining thread  The Constitution states that ‘executive power is vested in the Queen’, and is exercised by Governor-General as the Queen’s representative (s 61)  Australia is a monarchy • Statute of Westminster 1931  Enabled the Cth to pass laws overriding UK laws  This did not apply to the States • Australia Act 1986  Enabled the States to pass laws overriding UK laws • Both the Cth and the States now have legislative autonomy (see Clark para 1.30) • Some say that the passage of the Australia Act marked Australia’s ‘constitutional independence’ from the UK • But what about judicial and executive independence? • Judicial independence (from the UK courts) • At Federation:  Australian courts were bound by UK precedents  Right of appeal (from state courts, and the High Court) to Privy Council in London • Appeals to the Privy Council from Australian courts were removed gradually • Appeals from the High Court and other federal courts were removed in the 1970s • Appeals from state courts were removed in 1986 by the Australia Act • The High Court is now Australia’s highest court in all matters • The High Court building is in Canberra, near Parliament House • Executive independence – the one remaining thread • The Constitution states that ‘executive power is vested in the Queen’, and is exercised by Governor-General as the Queen’s representative (s 61) • Australia is a monarchy • To become a republic, all references to the Queen would need to be removed • Australia would have it’s own head of state – either elected or appointed • This would require a constitutional amendment The Commonwealth of Australia Constitution Act 1900 (Imp), which contained the Australian Constitution in cl 9, was passed on 5 July 1900, was given royal Assent on 9 July 1900 and came into force on 1 January 1901. • There was law to prevent UK amending the Australian Constitution under s. 128 in British law and in our Constitution. • The Australian Constitution can be seen as a novel remodelling and combination of both the UK Westminster and the institutions of US Washington DC Systems.  The drafters retained the parliamentary democracy including Representative and Responsible Government; but also sought to adopt new concepts including Federalism and Separation of Power from the US Constitution. • As oppose to the US Constitution and UK, federation was a compact of the core relationship between the States and the Commonwealth. Rather than defining individual rights against the state in express terms, the Constitution allowed the colonies to win their struggles to receive institutions of representative and responsible government prior to federation (the best protection against the state). Despite Federation in 1901, Australia’s power were still limited to the UK. Hence for the forming of the Statue of Westminster 1931 (UK) which indicated that the UK considered colonies independent, ‘autonomous communities within the British Empire’.  UK Parliament could no longer pass legislation for the Commonwealth without the request and consent of the Commonwealth Parliament. Additionally the doctrine of repugnancy no longer limited the Commonwealth Parliament and neither the limit on territoriality. • s 2(1) – Colonial Laws Validity Act doesn’t apply to laws of the Cth • s 2(2) – abolished repugnancy rule • s 3 – Cth Parliament has full extra-territorial power • s 4 – UK Parliament no longer has power to extend laws to Cth except at Cth’s request  results in s 128 and s 4 conflicting (where in s 128, all laws were decided with the Cth)  s 8 – nothing in Statute of Westminster authorises Cth to override Cth Constitution. (i.e. s 128 is the only method of amendment) • In 1986, the States achieved the same level of independence as the Commonwealth with the passage of the Australia Acts.  Called Australia Acts (not Act) because there was one for British Parliament and one for the Commonwealth (Australia Act 1986 (Cth)) just to make sure • The Acts terminated whatever remaining UK Parliament’s power over the States, Territories and the Commonwealth  So that even with the request and consent of the local Parliaments the UK Parliament could not pass laws with respect to Australia • Removed the requirement for UK Parliamentary approval for State legislation • Reinforced that the Queen and her representatives must act on the advice of the local government (State or Commonwealth) and not the UK Government. • The Commonwealth cannot exercise power onto the different states as it is outside of their jurisdictions, however only if the states ask the Commonwealth to exercise more will they do so. • Even though Britain allowed the Commonwealth their Parliament and jurisdictions, it does not mean that they could over rule their Parliament.  Hence multiple Acts of Australia were made to ensure the legality and validity of the laws/ jurisdictions that they could manage. • s 1 – ended power of UK Parlt to legislate for states • s 2(1) – states have authority to make laws with extra-territorial application • s 2(2) – affirmed plenary power of states • s 3(1) – Colonial Law Validity Act no longer applies to states • s 3(2) – state parliaments can repeal UK law • s 11 – abolished privy council appeals • s 15 – provides that Aust Act and Statute of Westminster cannot be amended other than via s 128, or via consent of all states. • Federal Constitutional Instruments • State Constitutional Instruments • Commonwealth of Australia Constitution Act: had the effect of turning the colonies into states • Constitution Act: gave the states the ability to create their own institutions • Australia Acts: ultimately gave sovereign power to the states to make power FEDERALISM • Australia has a federal system of government  Two layers of government, two sets of courts, etc • Existing colonies became states, retained their constitutions and powers • New national government created • Intended to regulate certain matters • Federalism simply means a division of power between different levels of government • Each level of government is meant to regulate different matters • Federalism is manifested in the list of powers given to Cth Parliament by the Constitution (mainly s 51) • Constitution lists the powers of Parliament • Some powers are exclusive to Cth Parliament, some are shared with the states • The Constitution provides that where there is inconsistency between state and federal laws, federal law prevails and the state law is invalid (s 109) • This establishes the supremacy of federal laws, in cases of conflict BENEFITS OF FEDERAL SYSTEM • Division of powers/checks & balances • Competition between states • Diversity of laws • Local solutions • Suited to a large country with a diverse population DISADVANTAGES OF FEDERAL SYSTEM: • Lack of accountability • Inefficiency and cost • Constant elections • Confusion Federalism is manifested in the list of powers given to Cth Parliament by the Constitution (s51) • Constitution lists the powers of Parliament • Some powers are exclusive to Cth Parliament, some are shared with the states • The Constitution provides that where there is inconsistency between state and federal laws, federal law prevails and the state law is invalid (s 109) • 4. This establishes the supremacy of federal laws, in cases of conflict WHAT IS AUSTRALIAN FEDERALISM? • Where Australian government power is shared between a central government (Commonwealth) and sub-national governments (State) • Allows for the dispersal of power as well as greater local participation and ownership over government policies within a single nation-state • Main purpose of the Australian Constitution: define and limit the powers of the Commonwealth and its relationship with the States  Legal limits form the basis of the doctrine of constitutionalism. Constitutionalism is a political doctrine which holds that the power of government can and should be delimited by the law.  Liberalism: a political theory based on ideas of freedom and equality. Underpins Australia’s system of democratic government by giving power to the citizens. ‘Role of law is to provide protection form the potential abuse of arbitrary and unlimited power. Role of the state is to protect individual freedom as it is the ultimate human value.’ – Thomas Hobbes SENATE • Another manifestation of federalism is in the structure of Cth Parliament • Senate is known as the ‘state’s house’ – represents the state’s interests • Each state is represented equally in the Senate UNITARY SYSTEM • Federal system often compared to unitary system • Only one level of government, with unlimited powers • Such as the UK • Australia’s federal system based on the US model POST-FEDERATION DEVELOPMENTS • Drafters of the Constitution intended Cth government to have limited power & states to remain powerful • Several developments have resulted in the Cth becoming more powerful than perhaps intended • One development is that the High Court has interpreted the powers of Cth Parliament broadly • This has greatly expanded the powers of Cth Parl • Second the High Court has interpreted the ‘inconsistency’ provision (s 109) broadly – State laws more likely to be declared invalid  Not merely direct inconsistency, but if the Cth law intends to ‘cover the field’ in relation to a particular topic • Third development is in relation to finances  States have very few ways of generating revenue  States generally rely on financial grants from the Cth  Cth may place conditions on grants to states (s 96)  States are financially dependent on the Cth Book summary SOVEREIGNTY(통치권, 자주권) BY SETTLEMENT • Australia = settled colony = uninhabited or desert territories, no population “Thus” feel free to introduce English law including English land law. • “it is fundamental to our legal system that the Australian colonies became British possessions by settlement and not by conquest” • “ BUT “ – before 1788, Europeans saw indigenous Australians and their existence but “sparsely (드문 드문)” • So British did not recognize Aboriginal law including land rights. INTERNATIONAL LAW ON THE ACQUISITION(습득) OF COLONIES IN THE 19TH CENTURY. • Finding a country uninhabited and without an owner, it may lawfully take possession of it, and after it has given sufficient signs of its intention in this respect, it may not be deprived(빼앗기다) of it by another nation • terra nullius: 무주지(無主地). Nobody's territory. LAND RIGHTS LAND RIGHTS PRE-MABO • Arrorney –General VS Brown (1847) -60 acers of land in NSW leased by the crown and want to develop for public way (found coal) => rejected argument that sovereignty and dominium (right of property) were separate and that crown was not in possession(소유) of the land. • No rights to land were granted to Aboriginal Australia before the Mabo case in 1992. • All land vested(소유가 확정된) originally in the crown and that any title or interest in land or the use of land derived (유래된) from the Crown-> deprives(권리를 빼앗다) the natives of their former means of sipport and comfort. THE PUSH FOR LEGAL RECOGNITION OF NATIVE TITLE • Gove case – fist attempt to establish a general right to native title (1971) • In 1971, the Gove Land Rights Case was the first court action brought by Aboriginal Australians to argue that they should be accepted in Australian law as the rightful owners of their traditional country. • However, Justice Blackburn of the Northern Territory Supreme Court, felt bound by earlier precedents and rejected the claim. • Coe v Commonwealth (1978)– The appellant, Paul Coe, was unsuccessful in his appeal for leave to amend a statement of claim in proceedings seeking declarations and orders on behalf of the aboriginal community that Australia had not been validly occupied under the doctrine of terra nullius. POST MOBO DEVELOPMENTS • Native Title Act 1993 – upheld by high court as a valid exercise of the legislative powers NATIVE TITLE  Native title = a right or interest over land/waters that may be owned, according to traditional laws and customs, by Aboriginal peoples and Torres Strait Islanders  Australia considered settled rather than conquered  Only legally settled rather than conquered  Only legally-recognised scheme of land ownership was recognised by the common law  Reflects origins in Feudalism (hierarchal system with Crown at head) • Mabo v Queensland: Native Title Act 1993 (Cth)  High Court landmark decision in 1992  Battle to have traditional land ownership recognised  High Court didn’t question that Australia was a settled colony, it recognised that in reality, Australia was NOT terra Nullius  High Court decided it was appropriate to change the common law rule to recognise the Crown’s radical title co-existed with a beneficial native title (radical = ultimate ownership rights of Crown) WEEK 3 RULE OF LAW IMPORTANCE OF THE RULE OF LAW • The rule of law is a fundamental principle of Australian public law • It is said to be a defining feature of democratic systems of government & constitutionalism • Opposed to authoritarian government or arbitrary rule • The principle has a long history  We will look mainly at how it has evolved in the UK constitutional system, and more recently in Australia • Embodies끊임없는 the idea of government (and every person exercising ‘public power’) being subject to certain rules  Certain things a government or public official or proposed law cannot do, or cannot do without complying with지키다 certain procedures or safeguards • Opposed to the idea of arbitrary rule전제정치 or unlimited power Rule of law is a measure of: • Government/political system • Particular laws • Action of a particular ‘public official’ APPLIES TO ALL BRANCHES OF GOVERNMENT • Rule of law applies particularly to executive power • Historically the monarch had unlimited power  ‘divinely’훌륭히 appointed to(~에 임명하다) role  Ruled by ‘divine’ 신의 right  Appointed & dismissed(파면된) ministers (advisors)  Monarch could ‘do no wrong’- no one could question or challenge the monarch’s actions  ‘prerogative 특권’ powers – unwritten powers monarch has by virtue 선행 of being the monarch • Over history, executive power has been limited (especially by & in relation to parliament & courts) • Gradual 점진적인 acceptance that:  Parliament may limit or abolish prerogative powers (by passing legislation)  Courts may review & overturn (most) executive decisions • Monarch is bound by the law • Concept also applies to judges & courts (their powers are limited)  Limits on judicial discretion • Also applies to parliament  Parliament is supreme, but certain laws it cannot pass RULE BY LAW VS RULE BY MEN (ANCIENT DEBATE) ANCIENT GREEKS • What would be the best form of government? -> rule of men like king or rule by law (second best option) • Rule by law was ma more realistic option to rule a complex community • “it is proper that law, properly enacted should themselves define the issue of all cases as far as possible, and leave as little as possible to discretion(자유재량에 의한) of the judge • Difference between system where the ruler ruled without any laws at all and one in which officials and rulers were obliged to apply and interpret and generally respect a system of laws. • Law should be the master of the government to restrain potential despots( 폭군) • Law as a constraint on judges who were to be left very little discretion in making their decisions. ENGLAND • Law book appeared in England by Bracton in 13th century • The king must not be under man but under God and under the Law • King was subject to the law and the argument that no king should rule without laws ->monarch was subject to the law • King had legal obligations to his subjects ENGLISH HISTORY • The concept of the rule of law developed as part of English history • Particularly the conflicts between various parliaments and monarchs over power and money • Bill of Rights 1688 (UK) is an important statement of certain aspects of the rule of law • BoR provides that the Executive cannot suspend(중단하다) laws made by parliament • This is an aspect of parliamentary supremacy(패권)  Parliament makes laws, the executive does not • BoR also provides that the Executive cannot ‘dispense’ with laws  Only parliament can grant exemptions from laws to certain people or groups- not the executive • Executive of course has discretion 자유 재량권 in administering the laws  Eg. Prosecutors 검찰관 power to decide who to prosecute 기소 under criminal laws, what charges to lay, • This is a large part of administrative law  Determining whether a discretion has been properly exercised • Prohibiting the executive dispensing 제공하다 with laws is to prevent favouritism 편파 (or discrimination) by the executive in administering the laws  Executive cannot excuse 용서하다. 양해를 구하다 itself from compliance with the law (without authorisation by parliament)  Executive cannot excuse certain people or bodies from compliance with the law BILL OF RIGHT IN AUSTRALIA • Note: the Bill of Rights 1688 (UK) is part of the Australian common law & is enforceable in Australian courts • It is part of the (limited) rights provided by the common law • 권리장전은 명예혁명의 결과 이루어진 인권선언이다. 제임스 2세의 전제정치와 가톨릭 신앙에 반대하여 일어난 명예혁명은 1688년 12월 23일 국왕이 프랑스로 도망하고, 그 이듬해 2월 13일 국민협의회가 윌리엄 3세를 국왕으로 추대함으로써 무혈혁명으로 끝났다. 이때 의회는 새 왕을 추대하면서 왕관과 함께 권리선언(權利宣言)을 제출하여 그 승인을 받았고, 이 선언을 토대로 89년 12월 16일 ‘신민(臣民)의 권리와 자유를 선언하고 왕위계승을 정하는 법률’이라는 이름의 의회제정법이 공포되었는데, 이것이 곧 권리장전이다. • 주요내용은 제임스 2세의 불법행위를 12개조로 열거하였고 의회의 동의 없이 왕권에 의하여 이루어진 법률이나 그 집행 및 과세의 위법, 의회의 동의 없이 평화시에 상비군의 징집 및 유지의 금지, 국민의 자유로운 청원권의 보장, 의원선거의 자유 보장, 의회에서의 언론 자유의 보장, 지나친 보석금이나 벌금 및 형벌(刑罰)의 금지 등이었다. • 〈권리 장전〉은 국왕과 의회가 주권을 둘러싸고 거의 100여 년에 가까운 시간 동안 대립해 온 역사에 일획을 그은 사건이었다. 또한 입헌 군주제를 확립함으로써 영국의 절대 왕정을 종식시켰다는 점에서 영국 헌정사상 커다란 의미를 지닐 뿐만 아니라, 〈미국 독립 선언〉과 〈프랑스 인권 선언〉에도 큰 영향을 끼쳤다. BILL OF RIGHTS INTRODUCED THE FOLLOWING KEY IDEAS THAT ARE STILL PART OF OUR PUBLIC LAW • The king could not suspend (유예) the law or dispense(면제) with law • Taxes could only be imposed (시행하다) with the consent (합의) of parliament normally expressed in primary legislation. • The people have a right to petition(탄원) for the redress(보상) of grievances(고통) • Standing armies were restricted • Elections to parliament were to be free • Members of parliament were assured the right to freedom of speech • Excessive bail(보석금) and cruel and unusual punishment were outlawed (금하다) • Juries were not to be manipulated (조작하다) • Parliaments ought to be held frequently NO SUSPENSION(정지) OR DISPENSING(제공) WITH THE LAWS BY THE EXECUTIVE (BILL OF RIGHTS 이후에 시행된 두가지 이론) NO SUSPENSION WITH LAW BY THE EXECUTIVE • Though the legislature has passes a law and intended it to come into operation, the executive had decided, without legislative approval, in effect to ignore the law • Court agreed with Plaintiff Fitzgerald that announcement did amount to a suspension 정지 of the laws and was, therefore illegal. • R v Stead [1994] case regarding no suspension with law and “ Bill of right “ NO DISPENSING WITH THE LAWS BY EXECUTIVE • R v Catages case MODERN USE IN AUSTRALIA • Generally, it means that everyone is bound by the laws  From the ‘lowest’ to the ‘highest’ member of society  Even the highest ranking official  Even the government itself • Public bodies and officials must observe the law when exercising their powers ensuring • This is an aspect of constitutionalism입헌주의- those exercising ‘public power’ are accountable for their decisions • These decisions may be reviewed and set aside if made without complying with지키다 the law • Rule of law is sometimes called the ‘rule of lawyers’ • It assumes that it is the proper role of judges to determine whether ‘the law’ has been complied with by other branches of government • Note that the law of judicial review (by which the validity of government decisions is measured) is made by judges (common law) • This gives judges great power • This has raised heated debates regarding the respective roles of judges & government:  Judges say they are ensuring보장하다 ‘accountability’ of government (parliament & executive)  Government says courts are overpowerful, intruding on ‘political matters’ MODERN AUSTRALIAN JUDICIAL DISCUSSION • The duty of the executive branch of government is are under a duty to obey the law of the land • Everyone is bound by the law, especially officials, is of the essence of constitutional rule • The rule of law forms an assumption underlying(근본적인) the legal order has been articulated(분명히 표현하다) by the judges in the highest courts in this country. • Australian Communist party v commonwealth referring to the incidental(부수적인) power under the commonwealth constitution • “moreover, it is a government under the constitution and that is an instrument framed in accordance with many traditional conceptions, to some of which is gives effect, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption • Section 5 of the Constitution of the commonwealth of Australia Act 1900 (Cth) FAMOUS AUSTRALIAN CASES Three cases involving the rule of law: 1. Communist party case 2. A v Hayden (No. 2) – whether public official has acted within or without their legal power and authority 3. Ruddock v Vadarlis (Tampa case) COMMUNIST PARTY CASE • Australian Communist Party v Commonwealth (1951) • In December 1949 PM Robert Menzies lead a coalition government 연립정부 to election victory on a promise to ban the communist party • Communist Party Dissolution Act 1950 (Cth) declared the CP to be a threat to security & authorised the G-G to ‘declare’ people associated with the party • With modern eyes this raises many human rights issues  Freedom of association, freedom of speech • But Australia has no charter of rights upholding  Not decided on human rights grounds  These considerations seemed to influence court’s opinion in any case • High Court held that the Act was invalid • Act was not supported by any power of Cth Parliament listed in the Constitution • Statements about the CP in the Act were not facts on which power could be based  Saying the CP was a threat to national defence did not make it a threat  Court determines whether this was the case • Parliament could not confer(상의하다) on the Executive power to determine guilt • This was an early case regarding separation of powers – although this language was not used • Court was defining those powers which only courts could exercise (determining guilt & punishment) • Communist Party공산주의 case is one of the most important decisions of the High Court • Has particular relevance to recent anti-terrorism legislation eg. Issuing of ‘control orders’ • Important case in terms of the courts upholding옹호하다 the rule of law in the face of attempts by government to disband해체하다 unpopular political groups AUSTRALIAN COMMUNIST PARTY V COMMONWEALTH (1951) Fact • In December 1949 PM Robert Menzies lead a coalition government to election victory on a promise to ban the communist party • Communist Party Dissolution Act 1950 (Cth) declared the CP to be a threat to security & authorised the G-G to ‘declare’ people associated with the party • With modern eyes this raises many human rights issues, Freedom of association, freedom of speech • But Australia has no charter of rights, not decided on human rights grounds • These considerations seemed to influence court’s opinion in any case Decision • High Court held that the Act was invalid 효력이 없다 • Act was not supported by any power of Cth Parliament listed in the Constitution • Statements about the CP in the Act were not facts on which power could be based • Saying the CP was a threat to national defence did not make it a threat • Court determines whether this was the case • Parliament could not confer on the Executive power to determine guilt • This was an early case regarding separation of powers – although this language was not used • Court was defining those powers which only courts could exercise (determining guilt & punishment)  Communist Party case is one of the most important decisions of the High Court  Has particular relevance to recent anti-terrorism legislation eg. Issuing of ‘control orders’  Important case in terms of the courts upholding the rule of law in the face of attempts by government to disband unpopular political groups A V HAYDEN (NO. 2) (1984) 156 CLR 532 • Brennan J referred to the no-dispensing of the laws principle in this judgement in this case • Arose out 일어나다of a training exercise by members of Australian Security Intelligence Service (ASIS) at the Sheraton Hotel in Melbourne in November 1983 • Whether the participants were obliged to give their names to the Victorian police who arrested them and who investigated various incidents associated with the exercise • Whether their contractual obligation to maintain confidentiality (비밀엄수) could override 기각하다 other considerations such as the public interest in the proper investigation of crime • ASIS members conducted a mock 가짜 hostage인질 rescue, damaging property and committing several criminal acts • Victoria Police charged the ASIS members, who refused to give their names • ASIS claimed that the Commonwealth was legally bound not to disclose 폭로하다 their names to Victoria Police • High Court held that all public officials – including security officers- are subject to the ordinary criminal law  Every person (including every official) must obey the law • Murphy J commented that exceptions to this principle lead in some countries to death squads암살단 • Contract between the company and the state government of Victoria was beyond the power of the executive because, amongst other thing, it amounted to a dispensing of state law. • The executive cannot dispense with the law unless the executive has been given statutory authorisation to do so. • Issue  The court affirmed(단언하다) that no one in Australia, including a member of a security organisation, it empowered to break the law nor is there a defence that the offender was following superior(우세한) orders  The principle that the governor – general, the federal executive council and every officer of the commonwealth are bound to observe the laws of the land • Crown could no dispense with the laws as such a power no longer exists, having been abolished by the Bill of Right 1688 • No agency of the executive government is beyond the rule of law and ASIS must obey the law RUDDOCK V VADARLIS • ‘Tampa’ case – named after a Norwegian ship which rescued 433 people from sea near Christmas Island • Cth government officers boarded탑승하다 the ship and directed it away from Australia • Series of court cases to determine the validity 유효함of the actions of the Cth officers • No clear legislative authority for the actions • Did the executive power authorise the actions?  Particularly prerogative 특혜 power • Full Federal Court ultimately held that the actions were authorised by the executive power of the Cth • Court accepted that if the actions were not authorised they would be unlawful and legal remedies would be available • To hold the executive accountable for the lawfulness of its action. Ruddock v Vadarlis (Tampa case) Fact • ‘Tampa’ case – named after a Norwegian ship which rescued 433 people from sea near Christmas Island • Cth government officers boarded the ship and directed it away from Australia • Series of court cases to determine the validity of the actions of the Cth officers • No clear legislative authority for the actions • Did the executive power authorise the actions? • Particularly prerogative power Decision • Full Federal Court ultimately held that the actions were authorised by the executive power of the Cth • Court accepted that if the actions were not authorised they would be unlawful and legal remedies would be available WALKER V STATE OF NEW SOUTH WALES(1994) 1882 CLR 45 • Mr walker, an aboriginal was charged with six offences under the Crimes Act 1900 • On the analogy (유사) of the nation of native title to land set out in the MBO CASE, a body of Aboriginal criminal law that predated (~보다 앞서다) white settlement so he was not bound by the Crimes Act 1900 and therefore could not be charged with offences under that Act • Rejected the contention that there existed a body of aboriginal criminal law • The rule extends not only to all persons ordinarily resident within the country, but also to foreigners temporarily visiting • Just as all persons in the country enjoy the benefits of domestic laws from which they are no expressly excluded so they must accept the burdens those laws impose. DICEY AND THE RULE OF LAW • Famous English constitutional lawyer • Dicey saw the rule of law as a unique feature of the English constitution • He articulated 분명히 하다 several aspects of the rule of law: • First, need for specific rules (esp. in criminal law) – no punishment (eg. Deprivation of liberty) based on ‘wide discretionary자유제량에의한 powers’ • Dicey was highlighting the dangers of unlimited executive power • This was a big issue in English history • English constitutional history has been about limiting the powers of the monarch/executive  Limiting the ability of monarch to interfere간섭 with individual liberties (liberty & property) • Second, every person (including public officials) is subject to the ‘ordinary’ laws in the ‘ordinary’ courts • Dicey distrusted 불신하다 specialised tribunals재판소 with power to review particular types of decisions eg. Administrative decisions  not ‘ordinary’ courts, applying to every person • Dicey compared the English courts to the continental유럽대륙 (French) systems of administrative law • From a modern perspective, it is difficult to understand his concerns • Dicey would not approve of the Victorian Civil & Administrative Tribunal • Third, Dicey believed that individual rights (liberty, association, etc) should be protected by the common law- not by legislation or constitutions • Dicey suggests that this is the best method for protecting rights  Perhaps based on the observation that statutory bills of rights can easily be suspended중단되거나 or repealed 폐지하다( a number of rights were also secured by statute and not merely by the decisions of the courts. )  Not as ‘secure’ as common law rights (Principle of the supremacy of parliament means that Acts of Parliament my override or abridge the common law) • Dicey had great faith(믿음) in judges to protect individual rights • This is common in common law jurisdictions (Australia & the UK)  Many Australians share this belief  Bills of rights are unnecessary or even dangerous • we will look at whether this faith in judges is well placed • Dicey’s broader point is that the ‘unwritten’ English constitution is preferable 더 선호된다 to a written document • More ‘organic’ as it evolved out of individual court decisions, not grand웅장한 statements drafted by political elites 1. A man can only be punished if it was proved in court that he breached a law.  This means that the Sovereign cannot punish people arbitrarily(독단적으로). 2. No man is above the law, and everyone is equal before the law.  This means that the law applies to everyone in the exact same way regardless of social, economic or political status. 3. The Constitution (the law) is the result of previous judicial decisions determining the rights of private persons.  This means the constitution is not the source of the law, but the consequence of inherent rights. We don’t derive our rights from the Constitution; the Constitution is the result of our rights. A.V. Dicey’s Rule of law Dicey saw the rule of law as a unique feature of the English constitution  First, need for specific rules (esp. in criminal law) – no punishment (eg. Deprivation of liberty) based on ‘wide discretionary powers’ Dicey was highlighting the dangers of unlimited executive power  Second, every person (including public officials) is subject to the ‘ordinary’ laws in the ‘ordinary’ courts  Third, Dicey believed that individual rights (liberty, association, etc) should be protected by the common law- not by legislation or constitutions - Perhaps based on the observation that statutory bills of rights can easily be suspended or repealed  Dicey had great faith in judges to protect individual rights  Bills of rights are unnecessary or even dangerous FORMAL & SUBSTANTIVE VERSIONS • Formal or ‘thin’ versions of the rule of law have been distinguished from substantive 실질적인 or ‘thick’ versions  Formal versions are concerned purely with the form of the law/s  Substantive versions are concerned with the content or operation of the law/s • Formal compliance with the rule of law requires that laws are:  clearly expressed (not ambiguous)  prospective 가능성 (not retrospective회고, 소급)  ‘general’ (not discriminatory)  Publicly available  applied consistently and fairly(coherent (일관성이 있다) with one another)  stable to allow people to be guided by their knowledge of the contents of the rules  have authority to make, administer, and apply the rules in an official capacity  not in any other way impossible to comply with • Benefits of this conception of the rule of law is that it is relatively 비교적 easy to agree on the formal requirements for laws & whether they have been met • However great injustices can be carried out by legal systems based purely on formal compliance 법의 준수 with the rule of law • Substantive 실질적인 compliance with the rule of law relates 관련시키다to the content/substance of the laws • The issue is whether laws need to protect or respect certain fundamental values (in their making or in their operation) • For example – must all laws respect human rights or ‘democratic values’ (however they are defined)? • We will return to this topic , when we look at human rights • Substantive versions of the rule of law could also require a legal system to have certain features:  Independent judiciary  Free & fair elections  Degree of free speech and association(협회,연관, 연상) LIMITS OF THE RULE OF LAW • The rule of law is fundamental, but there are other important constitutional principles • Eg. Separation of powers, parliamentary sovereignty, etc • Rule of law does not mean that all laws apply to all people  Eg. Some laws apply only to particular professions • Principle seeks to prevent blatant 노골적인 & unjustified discrimination  Eg. Particular laws applying only to certain persons or groups, arbitrary distinctions DISCRETIONARY자유재량 POWERS • Dicey highlighted the dangers of ‘wide discretionary (executive) powers’ • However discretionary powers are increasingly common in the modern administrative state • Many decisions made by government bureaucrats 정부관료 according to vague희미한 criteria • Administrative law regulates 규제하다 the exercise of discretionary powers to a certain extent • Discretionary decisions are not always oppressive 억압적 or authoritarian권위주의적인 • Allows government decision makers to consider the personal circumstances of people affected by a decision • As opposed to applying stock standard rules to every person PARLIAMENTARY SOVEREIGNTY • Parliamentary sovereignty is another fundamental principle of Australian public law • Under this principle parliament can ‘make and unmake any law’  Parliament is the supreme최고의 law maker  Because it is elected, it has greater authority than other branches of government • However, the rule of law assigns 배정하다 a powerful role to judges and courts  Judges enforce 집행하다 the rule of law (particularly in relation to the executive- eg. In A v Hayden) • Which branch is supreme- parliament, or the courts? • How do we reconcile 조화 the wide powers given to the Governor-General with the rule of law?  Power to appoint & dismiss ministers  Power to assent to legislation  Power to dissolve parliament • These powers are regulated by conventions  But conventions are not legally enforceable • Is this inconsistent with the rule of law?  Recall Dicey’s concern with ‘wide discretionary powers’ • Should conventions be ‘codified’?  Written down & enforceable • Consider the counter-arguments  This may rigidify 엄격하게 conventions which need to be flexible  Political rules, not legal rules  Would increase power of judges, who would be called on to interpret conventions & decide disputes WHAT IS PARLIAMENTARY SOVEREIGNTY? • Supreme power or authority that Parliament holds over the other 2 powers of government: • Executive and Judicial  That is because Parliament tells the executive what to do and gives them administrative power while giving judicial power to the judiciary • Parliament can do whatever it likes, make any law they want, as long as they are elected into power. Parliament is sovereign. (UK) • Australia is different in that it divides the legislative power between the state and the Commonwealth. We have a written constitution that codifies that Parliament has to act within these limits and therefore has to share the power along with the other states.  This signifies the importance of the Australian Constitution in enforcing Parliament Sovereignty, if the law-making is contentious논쟁을 초래할 in terms of the boundary of Parliament’s power, then the law can be struck down 폐지하다 if found inconsistent 내용이 다른 or invalid to the constitution. • Sovereignty = both legal and political concepts  Legal Concept: sovereignty is concerned with the authority of the institutions of the state to make laws (ability to enforce the law – courts)  Political Concept: sovereignty concerns the capacity to generate and exercise political power (rights and responsibilities of Government) • Internal Sovereignty: Power/ authority that Parliament holds within the states and country. The sovereign is the person or body who has the power to rule. This power is shared between the Commonwealth and the States in Australia. • External Sovereignty: the independent power and authority of individual nation-states within international law. • Popular Sovereignty: Changing the Constitution of Australia through a referendum (popular vote with the power vested and given to the people) MODERN AUSTRALIAN EXAMPLES ON THE RULE OF LAW • The rule of law has been referred to in many recent High Court cases • Plaintiff S157/2002 (2003) involved a challenge to a decision to refuse a protection visa to an asylum망명 seeker • Migration Act provided that these decisions could not be challenged in court  ‘privative’ clause • This presented a clear conflict between court’s duty to obey valid legislation (parliamentary sovereignty), & to ensure access to courts to challenge government decisions • Court held that the privative clause did not apply- court could review the validity of the initial decision • Court based its decision on s 75(v) of the Constitution  Court may hear claim against Commonwealth officers  Parliament cannot exclude this jurisdiction • Court also referred to the rule of the law & the role of courts in ensuring that the executive does not exceed the powers given to it THOMAS V MOWBRAY (2007) • High Court case on the constitutional validity타당성 of ‘control orders’ 통제명령– new anti-terrorism measures which restricted movement & association연관, 연계 of person • Plaintiff was Jack Thomas- convicted of terrorism charges but over-turned on appeal – evidence inadmissible채택할수 없는 증거 • High Court held that legislation was not unconstitutional헌법에 위배되는 • Issuing a control order was a proper exercise of judicial power  Not punishment for future crime  Deprivation of liberty for public safety • Justice Kirby dissented반대하다 – referred to Communist Party case • http://www.artfilms-digital.com/Detail.aspx?ItemID=4192&SubItemID=5869&Category=83 • Is the Communist Party case still relevant? • What is the role of the High Court in relation to Parliament? Thomas v Mowbray (2007) Fact • High Court case on the constitutional validity of ‘control orders’ – new anti-terrorism measures which restricted movement & association of person • Plaintiff was Jack Thomas- convicted of terrorism charges but over-turned on appeal – evidence inadmissible Decision • High Court held that legislation was not unconstitutional • Issuing a control order was a proper exercise of judicial power  Not punishment for future crime  Deprivation of liberty for public safety • Justice Kirby dissented – referred to Communist Party case INTERNATIONAL DIMENSION 21st century in the UN • Principle of governance in which all persons, institutions제도 and entities독립체, public and private, including the State itself, are accountable to laws that are publically promulgated 널리 알리다, equally enforced 강요된 and independently adjudicated 판경을 내리다 and which are consistent with 와 일치하는 international human rights norms and standard SUMMARY OF WEEK 3 • Rule of law is a fundamental principle of public law • Provides that governments & public officials are subject to the law  Provides a basic measure of accountability • Not provided for expressly in the Constitution • Close connection to human rights considerations & administrative law WHAT IS THE RULE OF LAW? • Requires supremacy 우위 of law • Law is the law, no one is above the law and everyone that it applies to has to follow it • ‘The law binds묶다 the state’ (i.e. Government must at all times exercise power within legal limits) – if not Government can be corrupt 부패한and manipulate 조종하다the public • Aims to prevent arbitrary제멋대로인 government action and to guarantee equality before the law and ensure accountability to the law • Affords protection of ‘fundamental human rights’ where everyone can have equal access to • Is an assumption of the Australian Constitution (to constrain the government and its powers) • Requires that the Judiciary review the actions of the other two branches of government (Executive and Legislature) to make sure they are operating within their legal limits • Distinguished from Rule by Law: Government uses the law as a tool for its own purposes without any accountability or adherence to limits on the law  ‘Give the devil the benefit of the law’: No one is above the law. No one is excluded from the law. Everyone is equal, substance of the law is best left to the elected government and not set out in the constitution.  ROL is assumed to underpin our system (in the Australian Constitution) (i.e. Courts can’t act as an advisor to the government because we don’ have a Bill of Rights as well) Plaintiff S157/2002 v Commonwealth (2003)  Australian Communist Party v The Commonwealth (1951): ‘…in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption (of the Constitution).’ ‘it is a government under the Constitution’ • If a Law is written, the law cannot be struck down. However, we can interpret it in a way that is consistent with the rule of law (as the RoL is a fundamental human right of the Australian Constitution entrenched for law making) WEEK 4 SEPARATION OF POWERS WHAT IS SEPARATION OF POWERS? • Based on the idea of government consisting of three branches:  Parliament  Executive  Judiciary • Each branch has a particular role and purpose • Assumes that it is desirable to ‘separate’ these powers, & that concentration of public power in a few hands is undesirable ‘it is necessary for the protection of the individual liberty자유 of the citizen that these three functions should be to some extent dispersed 분산된 rather than concentrated in one set of hands’ • Assumes that governments & public officials will try to expand their powers & achieve absolute power • ‘Separating’ these powers seeks to ensure that no branch becomes too powerful • Like the rule of law, seeks to avoid arbitrary exercise of power CONSTITUTIONAL BASIS IN AUSTRALIA • There are two main constitutional bases for the doctrine:  Constitution  High Court precedent CONSTITUTION • Separation of powers is implied 함축된 from the structure of the Constitution • Particularly from the three ‘chapters’ in the Constitution  Chapter I – Parliament  Chapter II – Executive  Chapter III - Judicature • Section 1 vests legislative power in Parliament • Section 61 vests executive power in the Queen/Governor-General • Section 71 vest judicial power in the High Court and other federal courts • This structure is copied from the American Constitution • Separation of powers is part of the American constitutional system • USA has strict separation of powers  The executive is institutionally separate from parliament (Congress) “CHAPTER III COURTS” • A Chapter III court:  is a federal court created by or under Chapter III of the Constitution  complies따르다 with the requirements of Chapter III (e.g. as to tenure 재임기간: s 72) • Chapter III courts include:  the High Court (Jurisdictions: s 73, s 75, s 76)  “such other federal courts as the Parliament creates” (e.g. the Federal Court of Australia) (Federal Jurisdictions – s 71)  provided always that those courts comply with s 72 etc. o Appointment and Remuneration보수 of Federal Judges A) FEDERAL COURTS • High Court of Australia  Created and vested with jurisdiction by: Constitution ch III • Federal Court of Australia  Federal Court of Australia Act 1976 (Cth) s 5 • Federal Circuit Court  Federal Circuit Court of Australia Act 1999 (Cth) ss 3, 4, 8 • Family Court of Australia  Family Law Act 1975 (Cth) s 21 FEDERAL COURTS  The judicial power of the Commonwealth shall be vested소유가 확정된 in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes. (Constitution, s 71) FEDERAL COURTS: APPOINTMENT AND TENURE  Constitution, s 72  The justices of the High Court and of the other courts created by the Parliament: (i) shall be appointed by the Governor-General in Council; (ii) shall not be removed except by the Governor-General in Council, on address from both Houses of Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity 무능력; (iii) shall receive such remuneration보수 as the Parliament may fix; but the remuneration shall not be diminished 감소된 during their continuance in office.  The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained획득하다 that age.  Subject to this section, the maximum age for Justices of any court created by the Parliament is seventy years.  Judges / Federal Court not constitutionally entrenched견고한. Legislation can override it.  USA v Aus Judge: In USA, judges tend to be appointed on if they share the same views as their appointers whereas in Australia then the judges are appointed based on merit. GG/ Parliament appoints the judges. B) STATE COURTS • Established prior to federation (therefore doesn’t owe its existence to the Constitution like Federal Courts) • Each state has its own hierarchy of courts • Constitution s 71  The judicial power of the Commonwealth shall be vested... in such other courts as it [Parliament] invests with federal jurisdiction • Constitution s 77  With respect to any of the matters mentioned in the last two sections the Parliament may make laws… (iii) Investing any court of a State with federal jurisdiction. o State Courts exist and vest some measure of federal power • Constitution s 73  The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgements, decrees, orders, and sentences— (ii) Of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council C) TERRITORY COURTS • Constitution s 122  The Parliament may make laws for the government of any territory surrendered굴복하다 by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit  Commonwealth parliament may make laws for any territories (including new ones) – hence under this provision, both ACT and NT were made laws by the federal.  Even though ACT owns its existence to the federal structure, once it is given power, that power is recognised within its own restriction (ACT law rather than Cth)  Don’t have to comply with 준수하다 the s 72, they’re not federal courts but are territory courts PRECEDENT(선례)  Other source of the doctrine is precedent  The High Court has held that separation of powers exists and is legally enforceable in the court  Each branch of government must comply with it  It is one ground for ‘judicial review’ – challenging a law or decision in court  Court may declare a law or decision invalid if it does not comply PRINCIPLE 1: THE JUDICIAL POWER OF THE COMMONWEALTH MAY ONLY BE EXERCISED BY CH III COURTS 책 PAGE87~94 • NSW v Commonwealth (1915) (the ‘Wheat Case’):  the provisions of sec. 71 are complete and exclusive, and there cannot be a third class of Courts which are neither federal Courts nor State Courts invested with federal jurisdiction  Why couldn’t the Inter State Commission be invested with federal judicial powers?  Interstate주와 주사이의 Commission who’s role was to determine trade issues. Set up under legislation. Declare legislation void etc. (powers typically exercised by courts) o S 71 is expressed in a way that is express and conclusive 결정적인 (thus federal judicial power cannot be invested in Inner State Commission) PRINCIPLE 2: CH III COURTS MAY ONLY EXERCISE FEDERAL JUDICIAL POWER • R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) (‘Boilermakers’ Case’) 책 pate94-96  What powers did the Conciliation and Arbitration Act purport to confer상의하다 on the Court of Conciliation and Arbitration? o Arbitration중재 Act: looks at agreements with industrial relations and industrial disputes between employee and employer. Employee awards, regulations with employee awards (Executive Power). o Also enforces its own decisions and could apply penalties to those in breach (Judiciary Power)  On what basis did the Boilermakers’ Society challenge the validity of the Act? 책 page 98 o Boilermakers Society didn’t like a decision of the body made by the arbitration court. Argued that it was a mix between executive and judiciary power which was in breach of separation of powers (permissible 허용되는 of the criteria of s 72 therefore shouldn’t be able to administer other different powers – i.e. executive power)  The majority of the High Court held that Ch III courts are prevented from exercising non-judicial functions, unless those functions are supplementary 추가의 or related to judicial functions. What was the basis of their reasoning? o Majority maintains a separation of power in government – only judicial power that is related to federal courts can be strictly conferred to the federal courts (separates judicial power from the other branches) – independence conferred in s 72 o Court based it on the language/ structure of the constitution  Our constitution is structured based on the different powers in the different chapters, additionally with chap 3 the judicial power it confers with which body can exercise but does not include this body  Courts can only exercise their own judicial power and cannot exercise other powers with exception EXCEPTIONS i) Houses of Parliament may punish for contempt of Parliament  Powers of parliament can exercise on their own conditions and punish on contempt 법원 모독 (which is judicial power) ii) Military tribunals may enforce military discipline  If military personnel don’t comply with chap 3 judicial power (i.e. federal crimes), then they cannot hear it as an ordinary criminal law/ offence. They will then see it as a military offence. If it is a normal crime, they must hear it in a federal court rather than military tribunal. iii) The persona designata exception:  Judges can exercise non-judicial functions in the normal capacity unless it interferes 간섭하다 with their ability to act as a judge (e.g. if they are appointed to a different jurisdiction – you can appoint a judge to a royal commissioner but not to a minister).  It cannot interfere with the public’s confidence in the judge’s independence and position/ function. BOILERMAKER’S CASE Boilermaker’s case –Eg. SoP Fact • Decision • High Court held that the Commonwealth Court of Conciliation and Arbitration could not make new industrial awards and also have power to enforce those awards • This would combine executive power and judicial power in the one body • Inconsistent 모순되는 with separation of powers – laws were invalid  Early famous case is the ‘Boilermaker's case’  High Court decision of 1956 Two principles emerged from the Boilermaker’s case: 1. Only certain bodies can exercise federal judicial power 2. These courts can only exercise judicial power APPLIES TO COMMONWEALTH PARTICULARLY  Note that separation of powers applies particularly at Federal/Commonwealth level  It is an implication 결과 arising 생기는 from the Commonwealth Constitution  State and Territory constitutions are drafted differently  Separation of powers does exist at State and Territory level- but in a modified form APPLIES TO COURTS PARTICULARLY  Separation of powers in Australia mainly concerns the relationship between the courts and the other two branches  In Australia the executive and parliament are merged  This is part of the ‘Westminster’ system which Australia inherited상속된 from the United Kingdom  Also known as ‘responsible government’ RESPONSIBLE GOVERNMENT  ‘Responsible government’ has a particular meaning in public law  Concerns the relationship between parliament and the executive (see Clark para 1.21)  Ministers of government must be members of parliament (s 64 Commonwealth Constitution)  Political executive must be members of parliament  Parliament and the executive are merged – separation of powers does not prevent a person from being an MP and a member of government  However, ministers have certain powers and obligations as ministers, and as members of parliament  Responsible government seeks to hold executive government to account through parliament  This is based on a number of conventions (listed in Clark on pp. 11-12)  Eg. Government, and ministers, must retain the support of the lower house, in order to stay in government US SYSTEM  The relationship between parliament (Congress) and the executive is different in the US  US has a presidential system, in which executive power vests in the President  Strict separation of powers – executive is institutionally separate from parliament  Key differences with US system:  Ministers (advisors to the President) do not need to be members of Congress  President is elected separately to Congress  President does not need to have the support of Congress (can only be removed by impeachment process) JUDICIAL POWER  Separation of powers is mainly about the separation of judicial power  Only certain bodies can exercise ‘judicial power’  These bodies can only exercise ‘judicial power’  So- what is ‘judicial power’?  The Constitution does not define judicial power  The High Court has attempted to define the concept (see Clark pp.83-87)  These definitions are all quite vague희미하다 and unhelpful  Few clear principles – only a court can determine if a person is guilty of a criminal charge  Why do courts need to be separate from the other branches of government? – Courts play an important role in maintaining the ‘rule of law’ Ie. ensuring that the other branches comply with their obligations and do not exceed their powers JUDICIAL INDEPENDENCE  Separation of powers is closely related to the principle of judicial independence  We will examine this principle in detail in seminar 9 – judicial power  Part of court’s role is to hold other branches of government to account  Citizens may use the courts to challenge the decisions of government and the laws of parliament  To be effective, courts must be independent of the other branches of government  In seminar 9 we will examine the mechanisms by which the court’s independence is maintained  These include the processes by which judges are appointed and removed  For example it might be more efficient to combine various functions in one person or body  This might also promote greater accountability of decision-makers  Division of power means division of responsibility  This is a problem with federalism as well  Commonwealth and the States often ‘pass the buck’  Although separation of powers appears to be an absolute principle, courts often appear to be involved in a balancing exercise  Balancing the need to protect the integrity and independence of the courts, and other values, such as the needs of efficient government CASE ON SEPARATION OF POWERS  Brandy v Human Rights and Equal Opportunity Commission (1995) High Court decision BRANDY V HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION Fact • Legislation gave Commission power to make orders in relation to discrimination matters, having same effect as court orders Decision • HC declared the legislation invalid • HC held that the Commission was exercising executive power  Commission could not also exercise judicial power – power to enforce an order  Legislation conferring judicial power on Commission was invalid  Commission’s role is now restricted to conciliation of disputes (no power to make binding orders)  Legislation gave Commission power to make orders in relation to discrimination matters, having same effect as court orders  HC declared the legislation invalid  HC held that the Commission was exercising executive power  Commission could not also exercise judicial power – power to enforce an order  Legislation conferring judicial power on Commission was invalid  Commission’s role is now restricted to conciliation 달램 위로 of disputes (no power to make binding orders)  On a practical level, this means that if conciliation fails, a person to has to commence separate proceedings in a Federal Court  This involves much more expensive and delay for persons seeking to make a complaint STATE LAWS AND STATE COURTS  Separation of powers applies particularly at Federal level  It is an implication arising from the Commonwealth Constitution  However it does have a modified application to State courts  This is because State and Territory courts exercise Federal judicial power  They are given power to hear cases under Commonwealth laws  State and Territory courts are therefore bound by certain Commonwealth constitutional doctrines  This can limit the powers that State parliaments can validly confer on State courts (particularly Supreme Courts)  High Court has declared certain State laws to be invalid under this principle – See Clark paras 4.31 – 4.44 CASE ON SEPARATION OF POWERS (STATE LEVEL)  Famous case is Kable (1996 High Court decision)  Community Protection Act 1994 (NSW) authorised the Supreme Court to order the detention of one person (Kable) if he was determined ‘reasonably likely’ to commit a serious act of violence  Kable challenged the CPA on separation of powers grounds  HC held that the CPA breached the separation of powers principle – it was invalid  Court’s reasons were unclear  Court stated that the CPA conferred powers on the Supreme Court that were ‘incompatible’ 양립 할 수 없는 with the independence required of a court exercising Federal judicial power THIS BECAME KNOWN AS THE ‘KABLE’ DOCTRINE  It has been raised in several subsequent차후의 challenges to State laws, but has not been successful  Less strict separation of powers at State and Territory level KABLE V DPP (1996) HCA Fact • Community Protection Act 1994 (NSW) authorised the Supreme Court to order the detention of one person (Kable) if he was determined ‘reasonably likely’ to commit a serious act of violence • Kable challenged the CPA on separation of powers grounds Decision • HC held that the CPA breached the separation of powers principle – it was invalid • Court’s reasons were unclear • Court stated that the CPA conferred powers on the Supreme Court that were ‘incompatible’ with the independence required of a court exercising Federal judicial power WHAT ABOUT STATE SUPREME COURTS? THE “KABLE DOCTRINE”  State supreme courts existed before the Constitution did.  And “while there is a strong textual원문의 and structural basis for the separation of powers in the Commonwealth Constitution, the same is not true of the State constitutions”: Blackshield & Williams Australian Constitutional Law & Theory (2014) BUT • State supreme courts can and do exercise federal judicial power. (s 71) • And State courts form part of the system of courts established by the Constitution. (s 73)  Therefore, in Kable v Director of Public Prosecutions (NSW) (1996), the High Court held that while the separation of powers does not apply at the state level as strictly as at the federal level, State supreme courts: • Cannot exercise powers that would diminish줄이다 their integrity진실설 (fair, independent and arbitrary); and • Cannot be deprived허용하지 않다of their essential and defining characteristics.  Kable: where legislation only applied to this one man who was convicted of manslaughter고의가 아닌 살인 to his wife to keep him in prison (as he was about to be let out) • Court held that these were incompatible양립할수 없다 with the state courts and its state judicial power (punish someone only for a criminal offence that they have committed). • This case would involve detention based on a suspicion혐의 that a person may commit a serious offence therefore is incompatible with the independence and arbitrary임의적인 nature of a judicial function. • If this legislation went though, this would not be fair and just and which is asking the court to act in a way that is not judicial (which is the only main function that a state court must act with). • Interferes with the integrity진실성 and impartiality공정정대 of the NSW Supreme Court and of the confidence of the public that will have on the Court as well as its future function and role as a judiciary court. SUMMARY OF WEEK 4  Separation of powers is based on government consisting of three branches or ‘powers’  In Australia separation of powers is particularly concerned with the independence of the courts  Executive and parliament are merged in Australia – ‘responsible government’  Separation of powers has a limited application to the States and Territories – ‘Kable’ principle WEEK 5 LEGISLATIVE POWER IMPORTANCE OF ELECTIONS • Elections are a key part of democratic government & citizenship • Principle of choice  People choose their government, and authorise representatives to act on their behalf  Elected leaders: o Represent the State, or country (executive) o Make laws on behalf of citizens (parliament) • This is known as representative government  People authorise government to make decisions on their behalf  As opposed to direct government (ancient Greece)  Although voters occasionally have direct say on particular issues eg. Referendum (but Parliament selects the proposal that goes to referendum) • In a democracy political power resides 거주하다 in the people as a whole (not the government)  ‘Popular sovereignty’  http://www.unistudyguides.com/wiki/Federation_to_Popular_Sovereignty  Giving power to the people  It is through Australia’s participation in electing representatives and through their role in amending the Australian Constitution who have the ultimate power in the our legal system.  Popular vote with the power and sovereignty vested into the people to make the decisions and laws • Authority to govern comes from the people  Not from ‘divine right’-왕권신수설  Not from property or status • All governments (and systems of government) are an artificial creation인공창작물 • They were created by people at particular points in time to serve particular purposes • American Declaration of Independence: ‘…Governments are instituted among men, deriving끌어내다 their just powers from the consent of the governed…’ • Citizenship  Voting is an aspect of citizenship  The Constitution does not refer to citizenship at all o It refers to ‘subject[s] of the Queen’  This was a deliberate고의의 choice o At time of Federation each colony had different rules regarding who could vote o Colonies did not want Commonwealth laws to change this  More broadly, regarding the absence of ‘citizenship’ in the Constitution o Constitution was not intended to confer상의하다 rights on people o Certain groups were not intended to have equal rights eg. Indigenous people & migrant workers o Left to parliament to determine who has rights REPRESENTATIVE GOVERNMENT • The Constitution requires that Member of Parliament are ‘directly chosen by the people of the Commonwealth’  House of Representatives (s 24)  Senate (s 7) • High Court has stated that this establishes a system of ‘representative government’ in Australia • High Court has determined that this has important implications for government & citizens • Importantly it gives rise to certain implied rights in the Constitution • Because these are constitutional rights, they will invalidate inconsistent모순의 laws • These decisions commenced in 1992 (Mason High Court) • Implied right to freedom of political communication • Based on ss 7 & 24 of Constitution, & inference that certain degree of free speech was ‘inherent’ in representative government • These decisions were criticised as illegitimate불법의/activist  High Court was said to have exceeded넘다 its proper role, assumed power to itself, ignored separation of powers • Who made these criticisms? • High Court responded that it was merely drawing implications from the Constitution • These decisions explain the later High Court decisions regarding voting rights & electoral boundaries DEMOCRATIC & NON-DEMOCRATIC SYSTEMS • Contrast representative government to other systems of government • Eg. where members of government- and political leaders- are appointed by the ruling party • There are no elections of members of government, or of political leaders • Although in Australia not all members of ‘government’ are elected  Queen (head of state) was born into role  Governor-General is appointed • Prime Minister/Premier is chosen by his/her party, not directly by the people • Ministers are chosen by the PM/Premier • Candidates are chosen by the party • Parliament is one of the most powerful branches of government  Power to make laws applying to everyone • Fair that those bound by the law (people/citizens) are entitled to choose their law-makers & leaders  & also dismiss them in regular elections KEY FEATURES OF ELECTIONS • Over time several principles have emerged regarding elections:  Universal adult suffrage 투표권 (everyone entitled to vote)  Regular elections  Secret ballot  Payment of members of parliament • Universal adult suffrage  This is no small thing!  Historically the right to vote has been restricted to: o Those owning property o Men o Those of a certain status eg. Race (exclusion of Indigenous people), economic class, education, etc.  ‘Universal adult suffrage’ existed in Australia in 1904  Did not exist in United Kingdom until 1928  Section 41 of the Constitution provides that any person entitled to vote in each colony at Federation is also entitled to vote in Federal elections  Indigenous people were not entitled to vote in Federal elections until 1967  They were entitled to(~할권리) vote in certain States • Regular elections  Elections ensure accountability & choice  Elections need to be regular, not one-off단한번의  Seems to point towards fixed-term elections o Fixed-terms periods of parliament are used in Victoria (four years) o Not used a Federal level (government determines timing of election) • Secret ballot & non-interference  Secret ballot seeks to reduce influence of others on voting choice o So it is a free & independent choice  Criminal offence to interfere with or obstruct person from casting a vote  Voters cannot be threatened or offered inducements to vote in particular way  Electoral promises eg. To build a new school do not constitute improper inducements  Sometime this is a fine line o Distinction between personal/direct inducement & indirect benefits • Payment of MPs  Payment of members of parliament o Allows all people to stand for parliament (regardless of financial means, property, etc.) o Criticisms of MP’s salary & entitlements o Are MPs paid too much? WHAT IS PARLIAMENT? WHAT DOES IT DO? a. The law-making/ legislative body of Government b. Commonwealth and all state Parliaments except for QLD are bicameral (upper and lower house) i. Upper House: [Senate (Cth) and Legislative Council (Vic)] = ‘house of review’ ii. Only NT, ACT and QLD are unicameral. c. Each Parliament is supreme: no earlier parliament can bind a future parliament and no future parliament binds an earlier one d. It has the power to make and unmake laws, having the power to undo previous laws e. Each new parliament is supreme afresh: we can vote them out, makes law that is binding and feels the gap that Common Law does not fulfil f. Parliament makes legislation authoritative! g. Of the 3 arms of government, parliament is considered the most democratically responsive • Parliament consists of:  Two houses of parliament; &  Queen (or Queen’s representative)  See s 1 of the Constitution • To become law, a bill must be:  Passed by both houses; &  Receive Royal assent DIFFERENCES BETWEEN HOUSES  Two houses of parliament have different purposes: o Lower house – house of government o Upper house – house of review (& Senate is also the ‘states’ house’)  Different terms: o Senators have 6 year terms, members of House of Representatives have 3 year terms DIFFERENT ELECTORAL SYSTEMS:  House of Representatives: o One ‘winner’ per electorate o Preferential voting system  Voter marks on paper ‘1’ for first preference, etc  Winner is candidate who is ‘first past the post’ (more than 50% of votes)  Favours major parties  Importance of preferences (alliances동맹 between parties)  Senate: o Multiple ‘winners’ per electorate (State is electorate) o Proportional voting system o Favours independent parties – proportion of votes obtained corresponds부합 to proportion of seats won WHAT DOES PARLIAMENT DO? • Put simply – it makes laws  regulates society by making legislation • But parliament does not only make laws  Has other important functions • And not only parliament makes law  Many persons & bodies make delegated legislation eg. Courts WHO CAN STAND FOR PARLIAMENT? • This comes down to two questions:  Is the person eligible to stand for election?  Is the person disqualified? ELIGIBILITY • Different requirements in each State & Territory • To be eligible a person must generally:  Be qualified to vote (be 18 years of age)  May have to live within the jurisdiction for a certain time (generally NOT required) DISQUALIFICATION • Section 44 of the Constitution sets out the disqualifying factors for Parliament:  Person is bankrupt or insolvent;  Foreign citizens (must renounce포기하다 this before standing)  Certain criminal convictions (eg. Treason) • Disqualifications continued (s 44):  Employed by the government (State or Commonwealth public servants)- except for Ministers of government  Person has a commercial interest in a business dealing with the government • High Court accepted that the United Kingdom was not a ‘foreign power’ at the time the Constitution was enacted • But subsequent그다음의 developments had resulted in Australia’s virtual independence from the United Kingdom • Demonstrates that interpretation of the Constitution is evolving & dynamic SUE V HILL (1999)  High Court looked at the meaning of ‘foreign power’ in s 44 of the Constitution  Hill was a British citizen elected to the Senate on One Nation Party ticket  High Court determined that Hill was disqualified from standing for election under s 44  High Court accepted that the United Kingdom was not a ‘foreign power’ at the time the Constitution was enacted  But subsequent developments had resulted in Australia’s virtual independence from the United Kingdom  Demonstrates that interpretation of the Constitution is evolving & dynamic ELECTORAL BOUNDARIES • Principle of equality of voting power – ‘one vote, one value’ • What if some electorates have more voters than others? • Voters in more populous electorates have less voting power • Is this prohibited by the Constitution? • Often this is unintentional eg. Resulting from population growth & movement eg. urbanisation • Some times intentional의도적인 – government will rig electorates to stay in power • Electoral boundaries are frequently moved • Electoral Act refers to a range of relevant factors:  Communities of interest  Means of travel & communication, etc • Does the Constitution require roughly equal sized electorates?  US Constitution requires ‘one vote one value’  The Australian Constitution requires that Senators and members of House of Representatives are ‘directly chosen by the people’ (ss 7 & 24) • In Western Australia some electorates had almost 4 times the number of voters as others MCGINTY V WESTERN AUSTRALIA (1996)  High Court rejected an argument that the Constitution requires same number of voters in each electorate/votes of equal value  Same result as McKinlay decision (1975)  Implied rights cases in 1992 & 1993 seemed to strengthen argument for voting equality • High Court was unwilling to extend the implications of representative government to require equality of voting power • High Court conscious of criticisms made of its recent decisions on implied rights • New Chief Justice (Brennan) • Court conscious of not exceeding its proper (judicial) role • Court stated that it was bound by precedent사례 (McKinlay) • Different result could be achieved by:  Parliament amending legislation  Constitutional amendment • Remember that Senate electorates are based on State borders • Each State has the same number of Senators regardless of population  Principle of ‘equal representation’- no State more powerful than any other • Based on Senate being the ‘States’ House’ (representing the interests of States, not individuals) • Principle of ‘one vote one value’ only applies to representation in the Lower House  Based on representation of individuals • Does not apply to Upper House representation  Based on representation of interests eg. States INFLUENCE OF POLITICAL PARTIES • Influence of political parties in elections is huge-  Party decides who will stand for election  Many people vote for a party, rather than a particular candidate  Dominance of the two major parties at State & Federal level  Recent emergence of independent members & ‘special interest’ parties • Political parties also determine voting in parliament • For example, majority of Australians seem to support same sex marriage • But government refuses to allow a ‘conscience vote’ • Is government an obstruction방해,차단 to democracy? WHO CAN VOTE? • Different requirements in each State & Territory • To be eligible a person must generally be:  18 years of age;  An Australian citizen  Resident in the electorate for a certain period prior to registration • Disqualifications include:  Persons of unsound mind  Those convicted of certain offences ROACH V ELECTORAL COMMISSIONER (2007)  Cth legislation amended in 2006 to exclude all prisoners serving sentence of imprisonment from voting  High Court held that legislation was invalid  Decision based on the principle of representative government in ss 7 & 24  Right to vote is an important political right o Aspect of citizenship  Parliament could not remove right to vote except for valid reason & only proportionately • Blanket전면 ban on all prisoners voting was not proportionate비례하는 • Blanket전면 ban금지 had a disproportionate impact on certain groups eg. Indigenous people (higher incarceration투옥 rates) • Incarceration was often for relatively minor infringements eg. Failure to pay fines • Parliament was essential punishing people for being poor • Previous disqualification (3 years) was valid & proportionate  Related to seriousness of the offence  Temporary disqualification from participating in the electoral process • Very important decision regarding rights of citizens  Parliament cannot arbitrarily deprive person of the right to vote COMPULSORY VOTING • Australia is unique in having compulsory voting • Main argument- it forces people to be politically involved citizens • Similar to performing jury duty • Seems to go against the principle of free choice • In many countries a very small number of people actually enrol to vote • Some say that this promotes extremism극단주의 • Eg. Extreme right-wing & nationalist parties • Increasing number of ‘informal’ votes in Australian elections… COURT OF DISPUTED RETURNS • Election results can be challenged in Courts of Disputed Returns  State Supreme Court, or High Court  Legislation sets out the grounds for challenging an election result  Usually quite limited – bribery, corruption or unlawful action  Power to declare election void, order another vote to take place WEST AUSTRALIA 2013  General Federal election September 2013  Result of WA election of Senators was very close  On a recount around 1300 ballot papers were found to be missing  Australian Electoral Commission petitioned진정서를내다 the High Court to decide the matter  High Court (sitting as the Court of Disputed returns) declared the result of the WA Senate election void o Margin between the winners was exceeded초과하다 by the number of missing papers o People who cast votes which disappeared were effectively prevented from voting o Fresh election held in April 2014 ELECTORAL COMMISSION  Independent statutory bodies responsible for conducting elections  Important that Commission is independent - & is seen to be independent- of government  In many countries, elections are rigged, voters are threatened, opposition members and leaders determine the outcome  Claim the legitimacy of being ‘elected’ without the election being free and fair VOTING The idea of voting originates from s 7 and s 24 of the Constitution, which indicate that members of the Commonwealth Parliament (Senate and HoR respectively) must be 'directly chosen by the people'. This has been implemented the Commonwealth Electoral Act 1918(Cth). Compulsory voting  s 245(1) entails that voting to the federal parliament is compulsory (since 1924).  s 240 – Specifies the preferential voting system (where electors number all the boxes consecutively).  Judd v McKeon[2] - High Court makes a concession towards a socialist – doesn’t have to vote because all candidates support capitalism.  Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth[3] - s 116 (protects freedom of religion) protects the rights of atheists as well – in the same way, is s 245 flawed? (because it forces people to vote).  s 245 doesn’t force a person to vote. Voter doesn’t need to actually mark the ballot paper, simply put it in the deposit box.  Langer v Commonwealth - the courts decided that neither compulsory voting nor the voting systems set by the Electoral Commission are constitutionally flawed.  Langer argued that s 240, which specifies the numbered boxes voting process, is inconsistent with s 24 of the Constitution, because it entails that the people aren’t choosing freely (they have to give indirect votes by ticking all the boxes - curtailing political freedom).  Rejected by the court, Parliament is allowed to do whatever method as long as it allows a free choice. EXPRESS RIGHT TO VOTE The right to vote is expressly provided in s 93 of the Commonwealth Electoral Act 1919 (Cth).  Eligible for voting:  Australian citizens over 18.  Ineligible for voting:  Prisoners serving a 3 year sentence or more  A person of an unsound mind  A person convicted of treason. There is no constitutional provision which expressly gives the people the right to vote. The express right to vote is statutory. s 41 of the Constitution appears to guarantee an express right to vote (for anyone who can vote in state level). However, it does not.  It has been held that this section was a transitional provision which only applied to those who acquired the right to vote before the passing of the Commonwealth Franchise Act 1902 (Cth).  Only inserted to protect voting rights of women in SA in 1901 This issue was debated in King v Jones , which mainly discussed whether the word ‘adult’ s 41 was open to a shift in meaning:  After the voting age was lowered to 18 in state level, an 18 year old tried to use s 41 to ensure she could vote for Federal.  Rejected, s 41 was not meant to be open to a shift in meaning. It protected the rights of adults as they were described in 1901 (21 yrs of age). The transitional effect of s 41 and was more properly discussed in R v Pearson; Ex parte Sipka:  If s 41 wasn’t transitional, than State Parliaments would have the power to give voting rights to people the Commonwealth specifically excluded.  The Commonwealth must have the power to set a uniform franchise, over the State Parliaments  Obviously, s 41 was transitional and only intended to ensure those who already have the right to vote in 1901 will not lose it upon enactment of the statutory franchise.  From then and on, the practical effect of s 41 was spent and the eligibility for voting was to be determined by statutory franchise.  s 41 does not give an express right to vote IMPLIED RIGHT TO VOTE It can be argued that s 7 and s 24 confer an implied right to vote. This was confirmed in McGinty v Western Australia[6] and again inRoach v Electoral Commissioner:  Amendment made (s 93(8AA)) in 2006 to disqualify all prisoners from voting (rather than just those with 3 yr sentence).  Amendment was against the implied right to vote in s 7 and s 24.  Amendment (a blanket ban) also against the system of democracy that the Constitution perpetuates:  Parliament has authority to set a criterion by which people don’t vote – but disqualifications have to have a substantial reason.  However, there was not enough of a criterion here – it was a blanket ban, the method became arbitrary. The issue of implied right to vote came up again in Rowe v Electoral Commissioner:  Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) removed the grace period between the date of the issue of the writs and the closure of the rolls.  Rowe sought to strike down the 2006 amendments as invalid.  Amendments were held to exceed the limits implied by s 7 and s 24.  Too much of a qualification on electors.  Inconsistent with the system of representative government prescribed by the constitution.  Using Ex rel McKinlay v The Commonwealth[7]: “ss 7 and 24, because of changed historical circumstances including legislative history, have come to be a constitutional protection of the right to vote.”  A constraint on voting needs to be somehow justified on the basis of its helping democracy. No such justification here. ELIGIBILITY FOR ELECTION Eligibility is determined by Commonwealth legislation: the Commonwealth Electoral Act 1919 (Cth) . s 163(1) specifies candidates must be:  Over 18  Australian citizens  An elector(/qualified to become an elector) that is entitled to vote for HoR Restrictions on eligibility There are restrictions imposed by the Constitution:  s 43 - a member of one house cannot be elected to the other house.  s 44: 1. A person under acknowledgement of allegiance to a foreign power 2. A person attainted for treason, or has been convicted for a sentence of a year and over 3. A person who is bankrupt 4. A public servant 5. A person with a monetary interest in any agreement with the Commonwealth. These restrictions first had relevance in Re Webster .  Webster was deemed to still be eligible, as disqualification relied on exchanges over “a substantial period of time” and must have been one where the Crown could “conceivably influence the contractor in relation to parliamentary affairs by the very existence of the agreement” or by “something done or refrained from being done in relation to the contract or to its subject matter”.  Barwick CJ basically demonstrated the anachronistic and vague nature of s 44, and applied a narrow definition of it.  Immediately after the verdict, there was a discussion about the ambiguous nature of s 44 and how it should be amended. However, no amendments have been made. It also came up again in Re Wood[10] .  Senator Wood was a British citizen, and so his election was challenged.  However, the High Court held that although he had not been validly elected, “the election was not void as the problem could be solved by a further distribution of preferences[11]”.  Didn’t attract s 44 because he wasn’t an Australian citizen. In this case, the issue of s 44 was avoided. It was dealt with in Sykes v Cleary:  Cleary was a school teacher and therefore a public servant / ’officer under the crown’.  Elected to parliament, however he was still officially a teacher through the entire election process.  Disqualified since it is contrary to s 44 (4) and the separation of powers. Finally, it came up again in Sue v Hill.  UK retains no residual influence upon legislative, executive or judicial processes in Australia – it is considered a ‘foreign power’ in the context of s 44. Book summary THE DEVELOPMENT OF ELECTED LEGISLATURE • Yarran v Blurton(1992) • 1850s has been of stability in both structure of the Australian parliament and electoral processes . • Bicameral legislatures • Secret ballot • Direct election of representative by secret ballot has remained at the core of electoral procedure PARLIAMENT STRUCTURE cUpper house-- Senate The Senate is one of the two houses of the Australian Federal Parliament. It consists of 76 senators, twelve from each of the six states and two from each of the mainland territories. It shares the power to make laws with the other House of the Parliament, the House of Representatives. • Lower house -House of Representatives The House of Representatives is one of the two Houses of Parliament and is sometimes called ‘the People’s House’ or the ‘house of government’. The party, or parties, that hold a majority of seats in the House form government. There are currently 150 Members of the House of Representatives who each represent an electorate. DURATION • Four years term for house of representative • Eight years for senate • Major Issues A bipartisan issue of some longevity in Australia has been the suggestion that the House of Representatives maximum term of three years ought to be increased by one year, and recent calls for such a change suggest that the question is worthy of investigation. Australia is very unusual in having a three-year term. According to a study published by the Inter-Parliamentary Union in 1993, the overwhelming number of national lower houses have terms of four or five years. Relatively few (13 out of 148) have a three-year term. Because the current House of Representatives term is for maximum terms only, and because of the convention that Prime Ministers can call elections virtually whenever they choose, the 38 completed parliaments have had terms of greatly varying length. Since 1901, the average term of all parliaments has been 30.3 months, though if the six double dissolution elections are not counted, this figure climbs to 32.1 months. There has been a marked reduction in term length during the past 25 years, with the average for all elections during this time being only 27.5 months. THE CASE FOR FOUR-YEAR MAXIMUM TERMS Modern critics focus on at least seven benefits they claim will flow from an extension of House of Representatives terms to four years: • a long-standing claim holds that longer terms would encourage governments to introduce policies that were long-term rather than merely politically expedient • it is claimed that longer terms would enhance business confidence • over time, a great deal of money would be saved by having fewer national elections • it is often said that Australians dislike the frequency with which they are required to vote • a change to four-year terms would bring the House of Representatives term into line with most State and Territory lower house terms • the current system is said to do little for the representative function that is so important a part of the MP's duties, and • longer periods between elections would raise the standard of political debat WHO CAN BE ELECTED FOR PARLIAMENT =WHO CAN BE MEMBER OF PARLIAMENT ELIGIBILITY CRITERIA To stand for either House, a person must be: • at least 18 years old; and • an Australian citizen; and • an elector entitled to vote or a person qualified to become an elector. In 1901, the requirements for qualification were different but the Constitution gave the Parliament power to change these requirements and it has done so on several occasions (see sections 16 and 34 of the Constitution and section 163 of the CEA). A person who is a member of the House of Representatives or a state or territory legislature must resign before being eligible to stand for the Senate (see section 43 of the Constitution and section 164 of the CEA). A person may not make multiple nominations (section 165 of the CEA). Section 44 of the Constitution provides further limitations on eligibility. A person cannot be chosen as a senator if he or she: • is a citizen or subject of a foreign power; or • is attainted of treason; or • has been convicted and is under sentence, or subject to be sentenced, for an offence under Commonwealth or state law punishable by a prison sentence of 12 months or more; or • is an undischarged bankrupt; or • holds an office of profit under the Crown; or • has a pecuniary interest in any agreement with the Commonwealth Public Service (except as a member of an incorporated company of more than 25 people). Furthermore, a person convicted of certain bribery or undue influence offences is disqualified from being chosen as a senator for 2 years after the conviction (see section 386 of the CEA). DISQUALIFICATION (자격박탈) There are three methods of challenging the qualifications of a senator. Under each method, challenges are determined by the High Court, sitting as the Court of Disputed Returns under the second and third methods. Any person may bring an action under section 46 of the Constitution against a senator alleged to be disqualified. Secondly, the Senate may at any time by resolution refer a question relating to the qualifications of a senator to the Court under section 376 of the CEA. The motion is categorised as Business of the Senate and therefore has priority over other types of business at most times (see Brief Guide No. 4—Categories of Business). The Court may declare that a senator is not qualified, or that a candidate was ineligible, and may declare that a vacancy exists. The third method is under sections 353 to 357 of the CEA, which provide that the Australian Electoral Commission, or any candidate or person qualified to vote, may petition the Court within 40 days after the return of the writ (or, in the case of a casual vacancy, the notification of the choice or appointment) to examine the validity of the election, including the qualifications of candidates. The Court may examine the petition or refer it to a lower court. Possible outcomes include declarations that: • a person returned as elected was not duly elected; • a candidate not previously returned as elected is now duly elected; or • the election is void.  Financial standing- 44(iii): is an undischarged bankrupt or insolvent Paragraph 44(iii) refers to a person who has been declared bankrupt or insolvent and who has not been discharged from that condition (Nile v Wood (1988) 167 CLR 133). A senator or member who becomes bankrupt or insolvent while serving is disqualified under paragraph 45(ii).  Foreign allegiances - 44(i): owes allegiance to a foreign power etc. Paragraph 44(i) applies to a person who has formally or informally acknowledged allegiance, obedience or adherence to a foreign power and who has not withdrawn or revoked that allegiance (Nile v Wood (1988) 167 CLR 133). For the purposes of paragraph 44(i) of the Constitution, “foreign power” includes the United Kingdom (Sue v Hill (1999) 199 CLR 462). To qualify for election, it is not enough for a person to have become an Australian citizen unless that person has also taken reasonable steps to renounce foreign nationality (Sue v Hill (1999) 176 CLR 77). What amounts to reasonable steps will depend on the circumstances of the particular case (Sykes v Cleary (No. 2) (1992) 176 CLR 77).  Criminal conduct - 44(ii): has been convicted and is under sentence etc. For paragraph 44(ii) to apply, a person must have been convicted and either serving a sentence or subject to be sentenced in relation to an offence punishable by imprisonment for one year or longer (Nile v Wood (1988) 167 CLR 133). A person is subject to be sentenced if he or she is awaiting sentencing but also if he or she has been given a suspended sentence, subject to certain conditions being met  Conflicts of interest - 44(iv): holds any office of profit under the Crown Paragraph 44(iv) refers “at least” to a person who is permanently employed by government, including at the State level. Taking leave without pay does not alter the character of that employment (Sykes v Cleary (1992) 176 CLR 77).  Government employment In a 1975 case, the High Court found that a senator who was a shareholder in a company that had an agreement with the Commonwealth Public Service was not disqualified. The Court held that an agreement needed to cover a substantial period of time and be one under which the Crown could conceivably influence the contractor in relation to parliamentary affairs (Re Webster (1975) 132 CLR 270) (see paragraph 44(v)) While sections 44 and 45 refer specifically to candidates and members or senators, there are no safe grounds for concluding that they do not also apply to senators-elect (that is, senators who have been elected but whose terms have not begun). For further information, see Chapter 6 of Odgers’ Australian Senate Practice, 13th edition. Commercial dealing with the government SYKES V CLEARY Citation: (1992) 176 CLR 77 • This information can be found in the Textbook: Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (5th ed, Federation Press, 2010), pp. 404-8 Background facts  Cleary was a school teacher, but has been on leave without pay for about 2 years  Got elected while he was still officially a teacher and thus an ‘officer’ under the Teaching Service Act. Legal issues  Eligibility for the Federal Parliament - Restrictions.  Violation of s 44(4)  Separation of Powers: A member of the executive cannot be a member of the legislature. Judgement  Cleary was disqualified because he was still an ‘officer’ the day he lodged his nomination and the day he got elected. This is exactly contrary to s 44 (4).  Just because he was on leave without pay, doesn’t mean you’re no longer an ‘officer’.  Doesn’t matter that he’s under a State parliament and not Commonwealth.  In addition, this goes against the separation of powers, and would impair his ability to perform both roles:  Performance as public servant conflicts with the duties of the House of Reps.  Risk that an ‘officer’ would favour political opinions of the minister of his department rather than provide free and independent judgment  Membership of the House would detract from the performance of the relevant public service duty  Another issue: the eligibility of the other two candidates.  Both candidates had citizenships of another nation still  Neither candidates took the steps needed to divest themselves from foreign identities. Remained “entitled to the rights and privileges of a subject or citizen of a foreign power”.  Kardamitsis - did not discharge his Greek nationality, by the law of Greece (so he was still a Greek national under Greek law).  Delacrataz - didn’t demand to be released from Swiss citizenship, although he did meet the requirements to enable the granting of the demand.  Their prolonged stay in Australia did not outweigh the problems caused by their lack of reasonable action in discharging their foreign citizenship.  “what amounts to reasonable steps to denounce foreign nationality” depends on “the situation of the individual, the requirements of the foreign law and the extent of connexion between the individual and the foreign state.[1]” ELECTORAL REDISTRIBUTION 재배포 • In Australia, a redistribution is the process of redrawing the boundaries of electoral divisions of the House of Representatives, a process that in the United States is called redistricting. The Australian Electoral Commission oversees the process of redistribution, taking into account many factors,[1] including the one vote, one value principle. • In the House of Representatives each State and Territory is divided into electoral divisions. Section 24 of the Constitution of Australia specifies that the number of divisions in each State is calculated by reference to their population, with a minimum of five divisions guaranteed for each original State. To ensure that there are as much as practicable an equal number of electors in each division within a State or Territory, or equal representation, the boundaries of these divisions must be redrawn or redistributed periodically. A redistribution (or redrawing) of the geographic boundaries of divisions takes place about once every seven years. • When it is required?  a change in the number of parliamentary representatives to which a State or Territory is entitled, due to a change in population, subject to the minimum number of divisions in original States.  the number of electors in more than one third of the divisions in a State or one of the divisions in the ACT or Northern Territory deviates from the average divisional enrolment by over 10% for a period of more than two months.  seven years has elapsed since the previous redistribution. ELECTION SYSTEM • Elections in Australia use a full-preferential system in one vote, one value single-member seats for the 150-member House of Representatives (lower house) and in time for this election changed from full-preferential group voting tickets to an optional-preferential single transferable vote system of proportional representation in the 76-member Senate (upper house). Voting is compulsory, by Westminster convention, but subject to constitutional constraints. The decision as to the type of election and its date is for the Prime Minister, who advises the Governor-General to set the process in motion by dissolving the lower or both houses and issuing writs for election. ELECTION THE ADMINISTRATION OF ELECTIONS  The powers and responsibilities are vested in the Electoral Commissioner without creating a commission  It is not established by statue nor enjoy statutory protection  The Electoral Commissioner cannot be a member of a registered political party or have been a member of a political party in the five years prior to appointment THE RIGHT TO VOTE  The criteria for enrolment include age, citizenship and residence  18 years old  Residence –Tanti v Davies (1996) – real place of living is more synonymous with ‘actual place of living’ than it is with ‘place of residence’ = person on military duty overseas in place like Rwanda , person held in custody DISQUALIFICATION o Mental incapacity or ‘unsound’ mind o More than five years(vic) three year (Tasmania) 12 months (NSW) in prison s93 o NAME s 93A commonwealth electoral Act 1918 (8) A person who: (a) by reason of being of unsound mind, is incapable of understanding the nature and significance of enrolment and voting; or (b) has been convicted of treason or treachery and has not been pardoned; is not entitled to have his or her name placed or retained on any Roll or to vote at any Senate election or House of Representatives election. (8AA) A person who is serving a sentence of imprisonment of 3 years or longer is not entitled to vote at any Senate election or House of Representatives election. Note: For the definition of sentence of imprisonment , see subsection 4(1A). (8A) In subsection (1), relevant citizenship law means the Australian Citizenship Act 1948 as amended and in force immediately before the day fixed by Proclamation for the purposes of subsection 2(2) of the Australian Citizenship Amendment Act 1984 and the regulations in force immediately before that day under the Australian Citizenship Act 1948 as so amended and in force. (10) The reference in subsection (8) to treason or treachery includes a reference to treason or treachery committed in relation to the Crown in right of a State or the Northern Territory or in relation to the government of a State or the Northern Territory. POWER TO REFUSE TO INCLUDE IN THE ROLL INAPPROPRIATE NAMES (1) This section applies to the inclusion of a person's name in a Roll under a provision of this Part. (2) The Electoral Commissioner may refuse to include a person's name in a Roll if the Electoral Commissioner considers that the name: (a) is fictitious, frivolous, offensive or obscene; or (b) is not the name by which the person is usually known; or (c) is not written in the alphabet used for the English language. (3) The Electoral Commissioner may refuse to include a person's name in a Roll if including the name in the Roll would be contrary to the public interest. (4) If the Electoral Commissioner decides under this section to refuse to include a person's name in a Roll, the Electoral Commissioner must notify the person in writing of that decision.  Compulsory enrolment and voting o Each person is given the opportunity to lodge an excuse for not voting or paying a penalty o However, political objections to compulsory voting are not COMMONWEALTH ELECTORAL ACT 1918 - SECT 101 COMPULSORY ENROLMENT AND TRANSFER (1) Every person who is entitled to be enrolled for any Subdivision, otherwise than by virtue of section 94, 94A, 95, 96 or 100, whether by way of enrolment or transfer of enrolment, and whose name is not on the Roll, shall forthwith fill in and sign a claim and send or deliver the claim to the Electoral Commissioner. (4) Every person who is entitled to have his or her name placed on the Roll for any Subdivision whether by way of enrolment or transfer of enrolment, and whose name is not on the Roll upon the expiration of 21 days from the date upon which the person became so entitled, or at any subsequent date while the person continues to be so entitled, commits an offence unless he or she proves that the non-enrolment is not in consequence of his or her failure to send or deliver to the Electoral Commissioner, a claim, duly filled in and signed in accordance with the directions printed thereon. Note: A defendant bears a legal burden in relation to the defence in subsection (4) (see section 13.4 of the Criminal Code ). (5) If a person enrolled for a Subdivision (including a person whose address, in accordance with a request made under section 104, is not entered on a Roll): (a) has changed his or her place of living from one address in that Subdivision to another address in the same Subdivision; and (b) has lived at the new address for a period of one month; the person must, within 21 days after the end of the period referred to in paragraph (b), give written notice of the new address to the Electoral Commissioner. (6) A person who fails to comply with subsection (1), (4) or (5) commits an offence punishable on conviction by a fine not exceeding 1 penalty unit. (6AA) An offence against subsection (6) relating to a failure to comply with subsection (1) or (5) is an offence of strict liability. Note: For strict liability , see section 6.1 of the Criminal Code . (6AB) An offence against subsection (6) relating to a failure to comply with subsection (4) is an offence of absolute liability. Note: For absolute liability , see section 6.2 of the Criminal Code . (6A) Subsection (6) does not apply to a person who fails to comply with subsection (5) if the person has not reached the age of 18 years. Note: A defendant bears an evidential burden in relation to the defence in subsection (6A) (see subsection 13.3(3) of the Criminal Code ). (7) Where a person sends or delivers a claim for enrolment, or for transfer of enrolment, to the Electoral Commissioner, proceedings shall not be instituted against that person for any offence against subsection (1) or (4) committed before the claim was so sent or delivered. (8) If the Electoral Commissioner enters a person's name or address in a Roll under section 103A or 103B, proceedings must not be instituted against the person for an offence against subsection (1), (4), (5) or (6) of this section constituted by an omission occurring before that entry. CALLING ELECTION NOMINATION PROCESS  Candidates for either house must formally nominate with the Electoral Commission. The signature of the Registered Officer of a party registered under the Electoral Act is required for a party-endorsed candidate. A registered party must have at least 500 members. Fifty signatures of eligible voters are required for an independent candidate. A deposit of $1000 is required for a candidate for the House of Representatives, and $2000 for a candidate for the Senate; this deposit is refunded if the candidate gains 4% of the first preference votes. To receive public funding, a party or candidate must receive at least 4% of the vote.[46] VOTING  before poling day s 182 and sch 2 of commonwealth electoral act GROUNDS OF APPLICATION FOR POSTAL OR PRE-POLL VOTE Sections 183 and 200A 1. Throughout the hours of polling on polling day, the person will be absent from the State or Territory for which the person is enrolled. 2. The person will not, at any time during the hours of polling on polling day, be within 8 kilometres by the nearest practicable route of any polling booth in the State or Territory for which the person is enrolled. 3. Throughout the hours of polling on polling day, the person will be travelling under conditions that will prevent the person attending a polling booth in the State or Territory for which the person is enrolled. 3A. Throughout the hours of polling on polling day, the person will be absent from the Division for which the person is enrolled. 4. The person will be unable to attend a polling booth on polling day because of: (a) serious illness; (b) infirmity; or (c) approaching childbirth. (In the case of a person who will be a patient at a hospital on polling day, this paragraph applies regardless of the operation of sections 224 and 227.) 5. On polling day, the person will be unable to attend a polling booth because the person will be at a place (other than a hospital) caring for a person who is seriously ill or infirm or who is expected shortly to give birth. 6. Throughout the hours of polling on polling day, the person will be a patient at a hospital and unable to vote at the hospital. 7A. The person will be unable to attend a polling booth on polling day because of a reasonable fear for, or a reasonable apprehension about, his or her personal wellbeing or safety. 8. Because of the person's religious beliefs or membership of a religious order, the person: (a) is precluded from attending a polling booth; or (b) for the greater part of the hours of polling on polling day, is precluded from attending a polling booth. 9. On polling day, the person will be serving a sentence of imprisonment or otherwise under detention. 10. The person's address has been excluded from the Roll under section 104. 11. Throughout the hours of polling on polling day, the person will be engaged in his or her employment or occupation and: (a) if the person is an employee, the person is not entitled to leave of absence under section 345; and (b) in any other case, the absence of the person for the purpose of attending at a polling booth to vote would be likely to cause loss to the person in his or her occupation.  poling day OFFENCES  protecting the voting process  ensuring a ‘free’ choice The major offences in force for the purposes of federal elections are contained in the Commonwealth Electoral Act 1918 ("the Act"), and from 24 May 2001, in the general offence provisions of the Criminal Code. The Criminal Code is a Schedule to the Criminal Code Act 1995. A few of the more important electoral offences and the penalties that apply are listed below, but this list is not by any means exhaustive. There are more than 60 electoral offences, and these may change over time as Parliament amends the relevant Act. For a full account of all electoral offences, the latest reprint of the Act and the Criminal Code, must be consulted, with the benefit of legal counsel where necessary. Enrolment on the Commonwealth electoral roll has been compulsory since 1912. Eligible citizens include all Australians citizens who are 18 years of age or over. There are some exceptions, for example in relation to some prisoners, and people of unsound mind (section 93(8) and 96A). Anyone who fails to enrol may be punished on conviction by a fine of up to 1 penalty unit (section 101(6)). Fraudulent enrolment or voting offences under the Act include the following: • forging any enrolment or electoral papers, maximum penalty: 10 years imprisonment (Division 144 of the Criminal Code); • unlawfully signing any enrolment or electoral papers, maximum penalty: $1 000 (section 336); • unlawfully witnessing any enrolment or electoral papers: maximum penalty: Imprisonment for 12 months (section 337); • making any false or misleading statement in any enrolment or electoral papers, maximum penalty: 12 months imprisonment (Division 136 & 137 of the Criminal Code) Voting at federal elections has been compulsory since 1924 for all citizens on the Commonwealth electoral roll. Anyone who is unable to provide a valid and sufficient reason to the Divisional Returning Officer for failure to vote at a federal election and who does not wish to have the matter dealt with by a Magistrates Court may pay a penalty of $20 (section 245). If an elector who has failed to vote refuses to pay the $20 penalty, then the matter may be referred to a Magistrates Court, where a fine of up to 1 penalty unit plus costs may be ordered on conviction. Anyone who chooses not to pay the court-ordered fine will be dealt with by the Court accordingly, and this may involve community service orders, seizure of goods, or other court imposed sanctions. The penalty in such circumstances will be a decision for the local Magistrates Court and not the Australian Electoral Commission. Fraudulent voting offences under the Act include the following: • impersonating anyone for the purposes of obtaining a ballot paper and voting, maximum penalty: imprisonment for 6 months (section 339(1)(a) and (b)). • voting more than once at the same election, penalty: 10 penalty units (i.e. $1 700) (section 339(1A), (1B) and (1C)). • intentionally voting more than once in the same election: 60 penalty units (i.e. $10 200) or imprisonment for 12 months, or both (section 339(1C)). Nomination offences include making a false or misleading statement on the nomination form, maximum penalty: 12 months imprisonment (Division 137 of the Criminal Code). Electoral advertising offences include the following: • Printing, publishing or distributing electoral advertising, such as car stickers, pamphlets, handbills and posters, that do not show the name and address (not a post office box) of the person authorising the advertisement, and the name and place of business of the printer, penalty: up to $1 000 for a person, or $5 000 for a body corporate (section 328). This offence applies at all times and is directed at preventing irresponsible and possibly defamatory election comment by anonymous sources. • Printing, publishing or distributing electoral advertising that is likely to mislead or deceive an elector in relation to the casting of a vote, penalty: up to $1 000 or 6 months imprisonment or both for a person, or $5 000 for a body corporate (section 329). This offence applies only during the election period and does not refer to the truth or otherwise of the content of the advertisement, but to the manner of marking ballot papers. Scrutineers and electoral officials are not permitted to wear or display in a polling booth on polling day any badge or emblem of a candidate or political party: penalty $1 000 (section 341). Canvassing on polling day is prohibited within 6 metres of the entrance to a polling booth: maximum penalty $500 (section 340). Misconduct in a polling booth is prohibited, and this may include disobeying a lawful direction given by the officer in charge, or entering or remaining in the polling booth without permission: maximum penalty $500 (section 348). Bribery is prohibited, and this includes asking for or receiving any property or benefit in order to influence or affect the vote of another person: penalty $5 000 or imprisonment for 2 years, or both (section 326). Electoral bribery must be of a serious nature calculated to influence the vote of a particular person in a particular way, and does not include the general provision of food and drink at "sausage sizzles", or benefit concerts and the like during election campaigns. Note: One penalty unit is currently equal to a fine of $180 (section 4AA of the Crimes Act 1914).  Importance of elections in a democratic system of government  Key features of elections  Constitutional implications regarding ‘representative government’  Role of courts in determining who can vote, who can stand for parliament & electoral boundaries WEEK 6 – PARLIAMENT WHAT IS PARLIAMENT?  Chapter 1 of the Constitution concerns the Parliament  At Commonwealth level, Parliament consists of:  House of Representatives (lower house)  Senate (upper house)  Queen  State and Territory parliaments have a similar structure:  Bi-cameral parliament (two houses)  Monarch  The Constitution vests(에 귀속되다) legislative power in parliament (s 1)  The power to make laws  This is parliament’s main role, however:  Other bodies may make laws  Parliament has other functions (primarily, holding the executive government to account)  Role of governor-general:  Assent 동의하다 to legislation  ‘dissolve 무효화하다’ parliament (usually prior to an election)  By convention 관례 G-G’s powers exercised only on advice of the PM/Cabinet  Constitution lists all the legislative powers of Federal Parliament  All the topics on which it can legislate  This is an aspect of constitutionalism 입헌주의  Powers of Parliament are listed, so as to limit those powers  This is also an aspect of Australia’s federal system:  Federal Parliament has the powers listed  States and Territories have all the remaining powers (residual 나머지의) RELATIONSHIP BETWEEN PARLIAMENT AND EXECUTIVE  There are three types of powers: 1. Concurrent 공존하는  Shared by the Cth and the States  Listed in s 51 2. Exclusive  Only exercised by the Cth  Listed in s 52 3. Residual  Remain with the States  Not listed in the Constitution  Generally, both houses have the same powers regarding passing of laws  Bills must be passed by a simple majority of both houses  Exception is that ‘money bills’ cannot originate 생기다 in the Senate, and the Senate cannot amend such bills (s 53) How is disagreement between the houses resolved?  The Constitution provides a complex procedure for resolving ‘deadlocks교착 상태’ (s 57)  May result in a ‘double dissolution’ (dissolving both houses and a general election) PARLIAMENTARY SUPREMACY  The principle that parliament is the sovereign law maker  In the UK context Dicey argued that parliament is ‘sovereign’ – it can ‘make and unmake any law’  Does this apply in the Australian context?  The Constitution limits the topics on which Cth Parliament can make laws  The Constitution also restricts State parliaments in certain ways  Arguable that parliamentary supremacy최고위 does not apply without limitation in Australia  But Parliament does have powers that the other branches of government do not have  In relation to concurrent/shared powers, State laws may be invalid if they are ‘inconsistent’ with Federal laws (s 109)  This limits the effective law-making powers of State parliaments  Depends on how the High Court interprets ‘inconsistency 불일치’ PARLIAMENTARY PRIVILEGES  Members of parliament, and those involved in parliamentary proceedings, have certain legal immunities특권  They are not subject to the usual civil and criminal processes  These consist of a number of separate immunities  Purpose is not to grant favourable treatment to MPs for their own sake이익.목적  Purpose is to enable MPs (and others) to fulfill their role in the parliamentary process without interference방해.  Historically intended to prevent the monarch from interfering with MPs and parliamentary processes  The Constitution provides (s 49) that:  Parliament may provide for the privileges of Federal Parliament;  Until that time, Parliament has the privileges of the UK House of Commons  All jurisdictions have an explicit legislative power to pass legislation defining the privileges of the legislature  Federal Parliament on its establishment inherited all the privileges of the UK Parliament  Now regulated by the Parliamentary Privileges Act 1987 (Cth) *Book THE MEANING OF PARLIAMENTARY PRIVILEGE The term ‘parliamentary privilege’ refers to two significant aspects of the law relating to Parliament: the privileges or immunities of the houses of the Parliament, and the powers of the houses to protect the integrity of their processes, particularly the power to punish contempts. These immunities and powers are very extensive, but they carry with them great responsibilities. They are deeply ingrained in the history of free institutions, which could not have survived without them. Parliamentary privilege exists for the purpose of enabling the houses of the Parliament to carry out effectively their functions. The primary functions of the houses are to inquire, to debate and to legislate, and parliamentary privilege assists and protects these functions. The term ‘privilege’, in relation to parliamentary privilege, refers to an immunity from the ordinary law, which is recognised by the law as a right of the houses and their members. Privilege in this restricted and special sense is often confused with privilege in the colloquial sense of a special benefit or special arrangement. The word ‘immunity’ is best used in relation to privilege in the sense of immunity under the law. The principal immunity is the freedom of parliamentary debates and proceedings from question and impeachment in the courts, the most significant effect of which is that members of Parliament cannot be sued or prosecuted for anything they say in debate in the houses. The principal powers are the power to compel the attendance of witnesses, the giving of evidence and the production of documents, and to adjudge and punish contempts of the house. CONTROL OVER MEMBER  one of the oldest power enjoyed by parliaments is that it may decide who may be member of the parliament.  Generally true but rarely used.  Retain a power to expel a member and declare their seat vacate  Parliamentary Privileges Act 1987(Cth) s 8 - A House does not have power to expel a member from membership of a House.  Power to suspend a member for various kinds of misconduct including allegation of bribery and corruption  Power to declare vacant a seat of a member who, without permission, is absent from the parliament for a period of time. Thus in 2010, a member of the SA legislative council charged with possessing child pornography was obliged to attend the House periodically to avoid his seat being declared vacant for non-attendance. CONTROL OVER STRANGERS OR VISITORS  Power to exercise to prevent obstruction disorderly conduct and even assault.  In 2003, a member of Victorian parliament who brought her new born to her seat in the House to breastfeed was asked to remove the child as it was a ‘stranger’ who was not authorized to be on the floor of the House. ->the speaker gave a ruling giving permission for members to breastfeed their children in the House if the member was also required if be present in the House. PARLIAMENTARY IMMUNITIES AND POWERS PART OF ORDINARY LAW Parliamentary immunities and powers are part of ordinary law. The only way in which the houses can alter their immunities and powers is by passing legislation, as authorised by the Constitution. The courts uphold parliamentary immunities by preventing any violation of those immunities in the course of proceedings before the courts, and they uphold parliamentary powers, especially the power to punish contempts, in any test of the legality of the exercise of those powers. IMMUNITIES OF THE HOUSES  The immunity or right to free speech was first asserted in England in 1512  The immunity was put on a statutory basis in the Bill of Rights 1688 (Eng) in Art 9 – that the freedom of speech and debates or proceedings in parliament ought not be impeached or questioned in any court or place out of parliament  Parliamentary Privileges Act 1987 16(1) 16. (1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.  The other side of the immunity is that it might also give members a license to say anything about anyone they like, however, false and damaging. There are, however, internal limitations on the use of parliamentary speech, for in the standing orders of several legislatures there are restrictions on what may be said about others and if a person is named in parliament, some legislatures allow a right of reply to the person name.  The immunity applies first to ‘proceeding’ in parliament. Apart from statute, these proceedings include matters connected with or ancillary to the formal transaction of parliamentary business.  Second, the privilege of freedom of speech in parliament may not be ‘questioned’ in any court or place out of parliament.  There are other statutory provisions governing a legal proceeding, it is permissible to prove a proceeding in parliament for the purpose of deter mining weather a publication by parliament is lawful  Since the original intent of the immunity was to prevent a person or member of parliament from facing civil or criminal proceeding for what they said or wrote during proceedings in parliament, it has been argued that this dose not mean that the privilege can be used as a sword to prevent a fair trial of a civil matter.  Members could defame person in parliament under absolute immunity and then use the immunity to prevent a defense being raised to an action by the member, for defamation  This is power that may be abused if, under the cloak of privilege, a member names a person or, worse, attaches their reputation and even accused them of wrongdoing. The principal parliamentary immunity is the immunity from civil or criminal action, and examination in legal proceedings, of members of the houses and of witnesses and others taking part in proceedings in Parliament. This immunity is known as the right of freedom of speech in Parliament, because it has the effect of ensuring that members, witnesses and others cannot be sued or prosecuted for anything they say or do in the course of parliamentary proceedings. This freedom of speech has always been regarded as essential to allow the houses to debate and inquire into matters without fear of interference. Freedom of speech was codified in the Parliamentary Privileges Act 1987 (hereafter the 1987 Act). The Act declares the scope of freedom of speech in parliamentary proceedings. ‘Proceedings’ are defined in subsection 16(2) of the Act as: ... all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes: (a) the giving of evidence before a House or a committee, and evidence so given; (b) the presentation or submission of a document to a House or a committee; (c) the preparation of a document for purposes of or incidental to the transacting of any such business; and (d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published. The meaning of ‘impeached or questioned’ is also defined. It is not lawful in any court or tribunal to question the truth, motive, good faith, or intention of any person by reference to parliamentary proceedings, or to draw any inferences or conclusions from those proceedings. This does not prevent the use of proceedings of Parliament in court to establish a material fact, for example, to prove that a person was at a particular place at a particular time, to test the fairness and accuracy of a press report of parliamentary proceedings, or to prosecute certain offences against Parliament. IMMUNITY FROM ARREST AND ATTENDANCE BEFORE COURTS  Origin the immunities of parliament were designed to prevent executive interference with members going about their parliamentary business, the House of Commons asserted an immunity from arrest for members. It was limited to a period of 40 days before and 40 days after the parliamentary session and seems to have been limited to civil causes.  Modern statutes have asserted such an immunity but now limit the period to the days on which the House or committee of which the member is a member meets, or within five days before or after such meeting: Parliamentary Privileges Act 1987(Cth) s 14  It is not law that by virtue of membership in parliament, members may be exempted from compliance with the law.  There is also an immunity from being summoned to give evidence in a legal case and in practice, member of parliament cannot be called to serve on Juries MINOR IMMUNITIES Members of the houses possess some minor legal immunities, principally exemptions from compulsory attendance before a court or tribunal when the Parliament is sitting. POWERS OF THE HOUSES There are two significant powers of the houses: the power to conduct inquiries and the power to punish contempts. POWER TO CONDUCT INQUIRIES Each house has the power to require the attendance of persons and the production of documents and to take evidence under oath. This power supports one of the major functions of the houses: that of inquiring into matters of concern as a necessary preliminary to debating those matters and legislating in respect of them. The power is dependent upon the power to punish contempt, by which the houses may enforce the attendance of witnesses, the answering of questions and the production of documents. The power to conduct inquiries is usually not exercised by the houses themselves, but is delegated to committees by giving those committees the powers to require the attendance of witnesses and the production of documents. Proceedings in parliamentary committees are proceedings in Parliament, and the immunity from impeachment or question in the courts attaches to words uttered in committee proceedings by members and witnesses and to the production of documents to committees, as declared by the 1987 Act. Although the question has not been adjudicated, there is probably an implicit limitation on the power of the houses to summon as witnesses members of the other house or of the house of a state or territory legislature. RIGHTS OF WITNESSES Subject to what is said above about members of other houses, there is no limitation on the power of the houses to compel the attendance of witnesses, the giving of evidence and the production of documents. This gave rise to concern in the past about the treatment of witnesses. It was contended that witnesses could be seriously disadvantaged when compelled to appear and give evidence before parliamentary committees in so far as there was no requirement on committees to grant rights to witnesses, particularly the right to consult or be represented by counsel, and the right to refrain from answering questions where their answers might incriminate them. The Senate has adopted a range of practices designed to safeguard the rights of witnesses and of people who may be accused of wrongdoing in the course of committee proceedings. These practices were codified by the Privilege Resolutions, passed by the Senate on 25 February 1988. The first of these resolutions provides a code of procedures for Senate committees to follow for the protection of witnesses. The resolution confers a number of rights on witnesses, particularly the right to object to questions put in a committee hearing and to have such objections duly considered. Persons referred to adversely in evidence are entitled to respond, and all witnesses must be protected against any interference on account of their evidence. Witnesses may make application to be accompanied by and to seek advice from counsel before answering questions. Witnesses are to be supplied with copies of the procedures, and may appeal to the Senate if a committee fails to observe the procedures. Witnesses to parliamentary committees are protected by the powers of the houses to punish contempts and by certain provisions of the 1987 Act. It is an offence punishable by fine or imprisonment to interfere with a parliamentary witness. Specifically witnesses may not be improperly influenced by fraud, intimidation, force or threat nor may they be offered any inducement or bribe in relation to their evidence. No penalty or injury may be inflicted on a witness on account of their evidence. EXECUTIVE PRIVILEGE Another use of the word ‘privilege’, which is indirectly related to parliamentary immunities and powers, is in the expression ‘Crown privilege’, more recently called ‘executive privilege’. This term refers to a claim of the executive government, the ministry, to be immune from being required to present certain documents or information to the courts or to the houses of Parliament. The courts have determined the law of executive privilege in respect of the courts, but only the houses of Parliament can determine whether they admit the existence of such a privilege in relation to documents or information required by the houses, or whether they will insist upon the production of documents and information which they require. The Senate has not conceded the existence of any conclusive executive privilege in relation to its proceedings. POWER TO SUMMON AND PUNISH FOR CONTEMPT OF PARLIAMENT.  Retain the power to summon and fine a member if the public in contempt of parliament POWER TO PUNISH CONTEMPT Each house of the Parliament possesses the power to declare an act to be a contempt and to punish such an act, even when there is no precedent for such an act being so judged and punished. This power to deal with contempt is the exact equivalent of the power of the courts to punish contempt of court. The punishments for contempt which either house may apply are set by the 1987 Act as fines of $5,000 for individuals and $25,000 for corporations, and up to six months imprisonment for individuals. The rationale of the power to punish contempt of the houses is that the houses should be able to protect themselves from acts which directly or indirectly impede them in the performance of their functions. SECTION 4 OF THE 1987 ACT DEFINES CONTEMPT AS: Conduct (including the use of words)...[which] amounts, or is intended or likely to amount, to an improper 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. Enactment of this provision means that it is no longer open to a house, as it was under the previous law, to treat any act as a contempt. The provision restricts the category of acts which may be treated as contempt, and is subject to judicial interpretation. A person punished for a contempt of Parliament could bring an action in the courts to attempt to establish that the conduct for which the person was punished did not fall within the statutory definition. This could lead to a court overturning the punishment imposed by a house for contempt of Parliament. MATTERS CONSTITUTING CONTEMPT One of the 1988 Privilege Resolutions of the Senate sets out, for the guidance of the public, acts which may be treated by the Senate as contempt. This is not intended to be an exhaustive or all-inclusive list of contempt and does not derogate from the Senate’s power to determine that particular acts constitute contempt. Some examples of acts which could be considered contempt are: interference with the authority of the Senate or a committee; interference with a senator performing his duty as a senator; disturbance of the Senate; false report of proceedings; interference with a witness; and obstruction of a Senate inquiry. MATTERS CONSTITUTING CONTEMPT One of the 1988 Privilege Resolutions of the Senate sets out, for the guidance of the public, acts which may be treated by the Senate as contempt. This is not intended to be an exhaustive or all-inclusive list of contempt and does not derogate from the Senate’s power to determine that particular acts constitute contempt. Some examples of acts which could be considered contempt are: interference with the authority of the Senate or a committee; interference with a senator performing his duty as a senator; disturbance of the Senate; false report of proceedings; interference with a witness; and obstruction of a Senate inquiry. PROTECTION OF ACCUSED PERSONS One of the 1988 Senate Privilege Resolutions confers special rights on persons accused of contempt of the Senate. Cases of alleged contempt are heard by the Committee of Privileges, and all persons appearing before the committee have the right to be informed of any specific allegations against them, to respond to such allegations, to be represented by counsel, to call witnesses, to cross-examine other witnesses, and to make final submissions to the committee. These rights are more extensive than those of a person involved in criminal trials before the courts. The Senate has found persons and organizations guilty of contempt in very few cases, mostly involving serious interference with witnesses (e.g., threatening witnesses in relation to their evidence). In no case has the Senate imposed any penalty, but has accepted apologies and remedial action, and has preferred to adopt the course of educating people involved with Senate inquiries in their responsibilities. In this respect the Senate has been much more lenient with contempt of the Senate than are the courts with contempt of court. CITIZENS’ RIGHT OF REPLY Senators are enjoined by a Senate resolution to exercise their freedom of speech responsibly. There is always, however, the possibility that members may unfairly defame individuals who have no legal redress and who, if they are not themselves members, have no forum for making a widely publicized rebuttal. One of the 1988 Senate Privilege Resolutions provides an opportunity for a person who has been adversely referred to in the Senate to have a response incorporated in the parliamentary record (Senate Hansard). A person aggrieved by a reference to the person in the Senate may make a submission to the President of the Senate requesting that a response be published. The submission is examined by the Committee of Privileges, and provided the suggested response is not in any way offensive and meets certain other criteria, it may be incorporated in the Hansard. SCOPE OF THE PRIVILEGE: THE PRECINCTS  Originally, the privilege and immunities of parliament were limited to the precincts of parliament. Means the chamber and the building in witch parliament is located but not the grounds of parliament though the matter does also depend upon the scope of the relevant standing order, if they defined the precincts. FREEDOM OF SPEECH  One of the important privileges is ‘freedom of speech’ in Parliament  Nothing said in parliament can be the subject of court proceedings  Nothing said in parliament can be the subject of court proceedings  Not just defence to defamation명예훼손, but all legal actions eg. Vilification비방, breach of confidence, etc  Purpose of freedom of speech is to allow full and frank discussion and debate on important issues  Without fear of being sued or of prosecution기소  Applies to proceedings of parliament and of committees  Applies to member of public who are involved in committee proceedings  Dates back to the UK Bill of Rights 1689 (Art 9)  Purpose was to prevent monarch from stifling debate in parliament  Aspect of separation of powers  Proceedings in parliament cannot be challenged by proceedings in court  Courts must not intrude on the proceedings of Parliament  What if an MP lies in parliament, or defames some one?  This can have political consequences  May be forced to resign  Might be voted out at next election  Person defamed in parliament has no right to sue  They have a right of reply in parliament OTHER IMMUNITIES  Member of parliament cannot be:  Arrested during parliamentary proceedings  Required to give evidence or serve on a jury during such proceedings  Intended to prevent interference with proceedings of parliament  Does not mean that MPs cannot be arrested, tried and convicted for acts done in parliament COMMITTEES  Parliament has many committees whose function is to inquire into certain matters and report to parliament  May be  standing (permanent) committee;  Temporary or special purpose committee.  These committees have power to summon 소환하다people to attend hearings and to give evidence and/or produce certain documents  Committees have different purposes & powers  Committees often able to hold government (and MPs) to account  Contempt모욕 for person to refuse to attend, answer questions or provide specified documents  Similar to powers of a court ROYAL COMMISSIONS  What is a royal commission?  It is a formal public inquiry into a particular issue  Established by government – reports to government  Usually headed by a judge  Quasi-judicial powers eg. To summons호출 witnesses, subpoena소환장 documents  Terms of reference – issues to be investigated  Often investigate matters of great importance and controversy  Often seen as ‘political’  Usually make recommendations to government  Eg. Legislative or policy change  Government may or may not implement recommendations  Commissions primarily exercise executive power  Not a court – although commissioner has similar powers  Similar principles apply eg. Bias, natural justice  Independent of government – may investigate public officials  Has the prestige of a court CONTEMPT모욕 OF PARLIAMENT  Parliament has power to punish for contempt  Punishment may be:  Imprisonment  Fine  reprimand or warning  What is contempt of parliament?  There are various types of contempt:  Refusing to attend, give evidence, etc (disobedience)  ‘impairing 해치다 the functions of parliament’ (can take many forms)  Attempting to influence an MP (threats or bribes)  Interrupting방해하다 or disrupting proceedings of parliament MEMBERS OF THE PUBLIC  A member of the public who calls out from the public gallery of parliament during proceedings can be removed  Possibly further penalties may also apply EXPELLING[방출]하다 AN MP  Traditionally Parliament had power to expel a member of parliament (permanent removal)  This power was rarely used in recent times  It has been abolished by the Parliamentary Privileges Act 1987 (s 8) SUSPENDING 보류하다AN MP  Parliament has power to suspend an MP, for example for misconduct (temporary removal)  This happened recently in relation to Victorian MP Geoff Shaw, for misuse오용 of parliamentary privileges  Shaw was ordered not to attend for a certain time, and to repay amounts he owed PENALTIES  Penalties for contempt now modified by the Parliamentary Privileges Act 1987 (Cth):  Imprisonment (6 months maximum)  Fine ($5K person, $25K corporation)  reprimand or warning (most common penalty currently) PROCEDURE  Procedure where contempt alleged:  Usually person will be summoned to appear before the privileges committee of parliament  They will be presented with allegations진술 and evidence  They are able to present any arguments and evidence on their behalf  Committee decides what penalty (if any) to apply WHEN WILL COURTS INTERVENE 조정(調停)하다?  Parliament deals with cases of contempt as internal matters  Courts reluctant to review matters of contempt of parliament  Based on separation of powers considerations  However, courts may determine:  Whether parliament has power to punish for contempt in the circumstances; &  Whether proper process was followed. STATUTORY INTERPRETATION  Courts often look at records of parliamentary proceedings  To determine parliament’s purpose – to assist in interpreting legislation  This is not inconsistent 모순되는 with parliamentary privilege THE HEFFERNAN MATTER  A case study in freedom of speech in Parliament  On 12 March 2002 Senator Bill Heffernan used parliamentary privilege to allege (확실한 증거 없이) …을 주장하다 that High Court Justice Michael Kirby had used government cars for private purposes  He also alleged that Kirby exhibited 과시하다 bias in a case involving a paedophile소아성애자 priest  Heffernan’s allegations were false  Justice Kirby could not sue for defamation명예 훼손 – parliamentary privilege  Kirby publicly refuted반박하다 the allegations증거없는 주장  Incident regarded by many as an abuse of parliamentary privilege  Also a breach of Senate standing orders  Statements were damaging for Kirby personally  Heffernan later withdrew the statements, and was forced to resign CONVENTIONS  Conventions are unwritten rules (not in the Constitution, legislation or common law)  They are not enforceable in the courts but may have political consequences  Conventions are based on customs or practices consistently followed over an extended period of time  Most conventions relate to role and powers of the monarch and the executive branch  They particularly regulate the relationship between parliament and the executive  One of the most important conventions is that the Governor-General can only exercise powers on the advice of ministers  This is an aspect of ‘responsible government’ (see Clark paragraph 1.21)  Means that G-G cannot exercise powers independently, but only on advice of elected representatives  The Constitution seems to give extensive powers to the G-G Eg. To appoint ministers, to assent to legislation, to call sittings of parliament and to dissolve parliament/call an election  Eg. To appoint ministers, to assent to legislation, to call sittings of parliament and to dissolve parliament/call an election  According to convention these power is only exercise on the advice of ministers RESERVE보류 POWERS(GOVERNOR GENERAL 의 파워)  This convention is subject to(~의 지배를 받다) a small number of exceptions  ‘Reserve powers’ – powers that G-G can exercise without, or contrary to, ministerial advice  G-G can only exercise these powers in exceptional circumstances eg. If government is acting unlawfully  G-G has power to appoint and to dismiss a PM  G-G cannot appoint a PM based on advice, as there are no ministers at that time to advise  G-G must exercise this power according to conventions and also his/her good judgement  If G-G intends to exercise a reserve power, there is an obligation to advise/warn the ministers of this  This is itself a convention  Purpose is to enable to the minister to rectify the situation  Reserve powers should only be used as a last resort 1975 DISMISSAL  On 11 November 1975 the G-G William Kerr dismissed the PM Gough Whitlam  G-G appointed Opposition Leader Malcom Fraser as caretaker leader on condition that he announce a general election  Fraser won the ensuing election  Whitlam had majority in lower house  Government did not have majority in Senate (as is often the case)  Senate refused to pass ‘supply’ bills  G-G stated that ‘a government without supply cannot govern’ – Ie. If government could not ensure passage of supply bills, it must resign or could be dismissed  Previously it was understood that government only needed to have support of the lower house to remain in government  Core meaning of ‘responsible government’ (see Clark paragraph 1.21)  Government did not need to have support of the Senate to remain in government  Senate clearly has the power to refuse to pass supply bills (s 53)  Here the Opposition was blocking supply in order to force the government to an election  The Constitution provides a procedure for resolving disputes between the houses  If Senate rejects a bill twice, both houses may be dissolved (s 57)  Government decides whether to use this procedure  Whitlam did not want to dissolve both houses – He knew he would probably lose an election  Criticisms of G-G’s actions in 1975:  Fairly clearly that G-G did have power to dismiss the PM/exercise reserve power  Main criticism of G-G was not he did not warn PM of his intention to act SUMMARY OF WEEK 6  Role of parliament and parliamentary privileges  Nature of parliamentary supremacy  Relationship between parliament and the executive  Contempt of parliament  Conventions WEEK 7 – LEGISLATIVE POWER CONSTITUTIONALISM  An act of parliament must ‘constitutional’ to be valid  There must be power to pass it  Must not transgress 벗어나다 any constitutional prohibitions eg. Separation of powers, freedom of religion  Must be passed in accordance일치 with certain procedures (if applicable) eg. Manner and form  If there is a dispute over the validity 타당성 of a law, this may be resolved by a court  Laws are valid unless determined by a court to be invalid  Someone needs to bring a case before a court  We will focus on Cth legislative power  First principle – every Cth Act must relate to a ‘head of power’ (topic) listed in the Constitution TYPES OF LEGISLATIVE POWERS Three different types of legislative power: 1. Exclusive 2. Concurrent/shared 공존하는 3. Residual 나머지의 EXCLUSIVE POWERS  Topics on which only the Cth Parliament may pass laws  Only a small number of these  Set out in ss 52, 90, 114 & 115  Significance 중요성- any legislation passed by a State or Territory parliament on these topics is invalid  For example s 90 provides that Cth Parliament has exclusive power over ‘duties of custom and excise’  If a State or Territory law seeks to impose an ‘excise duty’ (a form of tax on goods), then it is invalid  This was one of main purposes for Federation – to remove tariffs and other barriers to trade between the States COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 90 EXCLUSIVE POWER OVER CUSTOMS, EXCISE, AND BOUNTIES On the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and of excise, and to grant bounties on the production or export of goods, shall become exclusive. On the imposition of uniform duties of customs all laws of the several States imposing duties of customs or of excise, or offering bounties on the production or export of goods, shall cease to have effect, but any grant of or agreement for any such bounty lawfully made by or under the authority of the Government of any State shall be taken to be good if made before the thirtieth day of June, one thousand eight hundred and ninety-eight, and not otherwise. CONCURRENT 공존하는 POWERS  Topics on which Cth Parliament and the States and Territories have power to make laws  Most legislative powers listed in the Constitution are shared powers  Set out in s 51 of the Constitution  Significance – Cth Parliament can only pass laws on the listed topics – otherwise the laws are invalid  This is an aspect of constitutionalism  Powers of parliament are listed in the Constitution, so as to define and limit those powers  Section 51 lists 39 topics – ‘heads of power’  Most of the well know topics are shared:  Trade and commerce  Corporations  External affairs  Taxation COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 51 LEGISLATIVE POWERS OF THE PARLIAMENT [SEE NOTES 10 AND 11] The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (i) trade and commerce with other countries, and among the States; (ii) taxation; but so as not to discriminate between States or parts of States; (iii) bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth; (iv) borrowing money on the public credit of the Commonwealth; (v) postal, telegraphic, telephonic, and other like services; (vi) the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth; (vii) lighthouses, lightships, beacons and buoys; (viii) astronomical and meteorological observations; (ix) quarantine; (x) fisheries in Australian waters beyond territorial limits; (xi) census and statistics; (xii) currency, coinage, and legal tender; (xiii) banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money; (xiv) insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned; (xv) weights and measures; (xvi) bills of exchange and promissory notes; (xvii) bankruptcy and insolvency; (xviii) copyrights, patents of inventions and designs, and trade marks; (xix) naturalization and aliens; (xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth; (xxi) marriage; (xxii) divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants; (xxiii) invalid and old-age pensions; (xxiiiA) the provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances; (xxiv) the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States; (xxv) the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States; (xxvi) the people of any race , other than the aboriginal race in any State, for whom it is deemed necessary to make special laws; (xxvii) immigration and emigration; (xxviii) the influx of criminals; (xxix) external affairs; (xxx) the relations of the Commonwealth with the islands of the Pacific; (xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws; (xxxii) the control of railways with respect to transport for the naval and military purposes of the Commonwealth; (xxxiii) the acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State; (xxxiv) railway construction and extension in any State with the consent of that State; (xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State; (xxxvi) matters in respect of which this Constitution makes provision until the Parliament otherwise provides; (xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law; (xxxviii) the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia; (xxxix) matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth. RESIDUAL 나머지의 POWERS  Any powers not expressly 명백히 given to Cth Parliament or taken from the States and Territories by the Constitution remain with the States and Territories  See s 107 of the Constitution COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 107 SAVING OF POWER OF STATE PARLIAMENTS Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.  These are known as ‘residual’ powers  Powers that colonies originally had, and which were not taken from them  Constitution does not list the residual powers  Topics on which Constitution is silent is extensive  Eg. Criminal law, housing, health, education, transport, commerce, etc  Assumed by the ‘Founding Fathers’ that the States and Territories would remain powerful and would retain extensive law-making power INTERPRETATION OF LEGISLATIVE POWERS  High Court has a major role in this area:  Interpreting the words of the Constitution  Determining disputes over the meaning of particular words and sections  Determining whether laws passed by Cth and State and Territory parliaments are valid  In the early years of the High Court (1901-1920) the Court was protective of the States in relation to the Cth Parliament  Doctrine of ‘reserved powers’  Existing powers of the colonies at time of Federation were kept in mind when interpreting Cth powers  Tended to result in Cth powers being defined in narrow way, so as to not intrude 방해하다 on State powers ENGINEER’S CASE (1920)  High Court rejected the ‘reserve powers’ doctrine  Cth powers to be given their ‘ordinary meaning’ (not limited by any assumptions regarding federalism)  Broad interpretation of Cth powers has resulted in increasing the powers of Cth Parliament in relation to the States and Territories The reserved powers doctrine was a principle used in the interpretation of the Constitution of Australia. It adopted a restrictive approach to the interpretation of the specific powers of the Federal Parliament in order to preserve the residual powers of the States. The doctrine was abandoned by the High Court in 1920 in the Engineers' Case.  High Court has developed certain principles of interpretation:  Cth laws do not have to be exclusively 전적으로 on a listed head of power to be valid  Sufficient 충분한 that a listed head of power is one topic to which the law relates  Cth laws must be ‘sufficiently connected to’ the listed head of power  The head of power need not be the main purpose for the law  Cth Parliament has power over taxation  Cth may make laws imposing a tax on businesses that pollute the environment  This would (probably) be a valid law under the taxation power  Courts simply determine whether a law relates to one or more listed heads of power  Rather than focusing on the objective of the law being challenged  Courts do not determine whether a law is a ‘good’ policy (Clark para 5.2)  Simply determine whether or not it is constitutional  This is a core principle of separation of powers  Need to distinguish the various functions of government  Government determines policy  Parliament makes laws  Courts interpret laws (& can invalidate laws)  Another way of understanding why courts don’t get involved in policy:  Policy is the area of the elected branches of government  Law is the area of the courts STATE LEGISLATIVE POWER  Cth Parliament can pass laws only with respect to specific listed topics  Are State and Territory parliaments similarly constrained?  What is the scope of State legislative power? The ‘Races’ Power. Section 51 of the Constitution provides that the Commonwealth Parliament has power ‘to make laws for the peace order and good government of the Commonwealth with respect to’ an enumerated list of topics. For present purposes, the most important source of power is the ‘races’ power (s 51(26)), although the recommendations for the recognition of traditional Aboriginal marriage may also rely on s 51(21), the marriage power. It is also necessary to consider the scope of any other relevant powers, the express or implied prohibitions on Commonwealth power, including the scope of any implication protecting the structure of State courts or authorities, and the express guarantee of freedom of religion (s 116).  What are the limits on State legislative power? Limitations on State Constitutions Over the years, there have been three main issues which were declared to impose limitations on State Parliaments. Limits originating from the Commonwealth Constitution The Commonwealth Constitution includes multiple limitations to State Parliaments. These limitations can be categorised into three types: Areas of power exclusively vested in the Commonwealth “Areas of power exclusively vested in the Commonwealth Parliament are necessarily excised from the power of the States[3]”.  s 90 – the Commonwealth alone has the power to levy duties of customs or excise.  s 51 – some of the powers assigned by s 51 (vi – naval and military defence, xii - currency, coinage and legal tender) are made exclusive to the Commonwealth Parliament by provisions in chapter V. Express Limitations “Some provisions of the Constitution expressly limit the State Legislative power[4]”.  s 114 – States cannot impose taxes on properties which belong to the Commonwealth  s 117 – States cannot discriminate against residents of other states.  s 92 – Interstate trade and commerce must be absolutely free.  s 112 gives States the power to enact laws for the "inspection" of s 92, but any such laws that arise out of this qualification are subject to Commonwealth annulment. Implied Limitations “State legislative powers may be subject to limitations implied in the [Commonwealth] Constitution[5]”  s 106 - States constitutions are ultimately subject to the Commonwealth Constitution. Where the Constitution outlines a limitation on the power of the Commonwealth, this limitation will flow on through s 106 to limit State legislative power. However, this is only if it is deemed necessary to ensure the effectiveness of the limitation at the Commonwealth level. Limits resulting from the phrase ‘Peace, Welfare and Good Government’ s 5 of the Constitution Act 1902 (NSW) declares that “The Legislature shall…have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever”. This general phrase is used in all State constitutions, with the slight variation of “peace order and good government” in some. A debate has emerged whether that phrase implies that State legislation is subject to judicial review according to those words.  In other words, can judges strike down laws which are not for the ‘peace, welfare and good government’ of New South Wales as unconstitutional? If so, the words constitute a limitation on State legislative power. This question was discussed in Building Construction Employees and Builder’s Labourers Federation of NSW v Minister for Industrial Relations (BLF case) where it was decided that:  The inclusion of the phrase in question indeed granted the Courts power to strike down laws not for the ‘peace, welfare and good governance’ as unconstitutional.  Therefore, the BLF case established that the wording of s 5 constituted a limitation on State legislative power. However, this view was ultimately rejected by the High Court in Union Steamship Co of Australia Pty Ltd v King which ruled as follows:  Since the words ‘peace, welfare and good government’ and ‘peace, order and good government’ are interchangeable, they should be viewed as having “no special semantic significance, but is simply a conventional formula used by the Imperial Parliament when it wished to confer plenary power[6]”. Thus, the phrase does not pose a limitation to the power of the State Parliaments. Limits based on abrogation of ‘rights deeply rooted’ [7]Some of the judgement in Union Steamship hints at the possibility that the State Parliaments are limited from abrogating rights which are ‘deeply rooted’ in either the democratic system and the Common Law. This subject was later discussed in Durham Holdings Pty Ltd v New South Wales. Whilst the case was dismissed, it did establish that:  The State Parliaments are limited from abrogating rights which are deemed to be ‘deeply rooted’ in the democratic system or the Common Law.  However, the Plaintiff failed because the right for fair compensation did not constitute a ‘deeply rooted’ right. Thus, the inability to abrogate rights which are ‘deeply rooted’ is a limitation on State legislative power.   J. Goldsworthy: The Sovereignty of Parliament In this paper[8], Goldworthy argues against the idea that courts should protect these deeply rooted rights.  People cannot rely on courts to use morality in order to defend their rights, because there is nothing which indicates that the Judiciary has a greater moral conscience than the Parliament.  If anything, greater faith should be entrusted to the Parliament, since they are, after all, elected and thus represent the will of the people.  If the ultimate authority rested with the courts, the same predicament would ensue: court decisions which are considered unjust (and, since judges are also morally fallible, this will obviously happen sometimes) would still have to be accepted.  Someone must have an ultimate authority, and it is favourable to the people that the Parliament will have this authority than the Judiciary. Editor’s thoughts: Since Parliaments are always looking for re-election, they are therefore inclined to please the people rather than distemper them in any way. The members of the judicature are appointed regardless of the opinion of the masses, and sometimes cannot be removed from office. Therefore, it would be preferable to the people to place the ultimate authority with the Parliament, which, by virtue of self interest, would be more hesitant to abrogate the people’s rights in any way.  In contrast to Cth Parliament, State parliaments have ‘plenary 충분한’ legislative power  Unlimited legislative power, apart from the limitations contained in the Cth Constitution and State constitutions  States not limited to a list of topics on which they can legislate  Each State and Territory has a constitution  Victoria has the Constitution Act 1975 (Vic) – This Act provides that Victorian Parliament has power to make laws ‘in and for Victoria in all cases whatsoever’  Other State constitutions use similar wording표현법  Make laws for the ‘peace, welfare and good government’ of the State  One limit on State legislative power is in relation to geography  State parliaments may pass laws regulating통제하다 persons or things in that State, or in other States  Australia Act 1987 confirms that States may pass laws with ‘extra-territorial operation’  To be valid such laws must have some connection to the State passing the laws  State laws having no connection to any person, thing or action in the relevant State will be invalid ENTRENCHED확고한 PROVISIONS  One aspect of parliament sovereignty is that parliament can change and repeal laws  Parliament is not bound by적용되지 않는다 legislation passed by a previous parliament  Each parliament is sovereign  This ensures that laws can be updated, bad laws repealed  Society is not stuck with outdated시대에 뒤떨어진 or ineffective laws  However, constitutions seek to provide some stability and continuity  They are often difficult to change  Can only be changed by following a particular procedure  The Commonwealth Constitution is entirely entrenched  No part of it can be changed, except through the process set out in s 128  Referendum  Double majority  State constitutions are different in relation to entrenchment 침해  Also called ‘manner and form’ provisions  Victorian constitution sets up a complex system of procedural 절차상의 hurdles 장애 to change  Victorian constitution sets out three different procedures, depending on the type of change proposed:  Referendum  Special majority (3/5 of the members of each house)  Absolute majority of each house  See s 18.  What is required depends on the type of change sought  Eg. Changing the number of members in either house of parliament requires a successful referendum  Victoria has entrenched more of its constitution than any other State or Territory  Does this compromise상호간의 타협 the sovereignty of Victorian parliament?  Does this unduly과도히 restrict change? CONFLICT BETWEEN CTH AND STATE LAWS • Most of the powers listed in the Constitution are shared powers • Much scope for overlap or conflict between State and Cth laws • The Constitution provides a mechanism for resolving such disputes • In cases of ‘inconsistency’ Cth law prevails and State law is invalid (s 109) • Known as the ‘supremacy’ provision • What is meant by ‘inconsistent’? • Role of the High Court to interpret this term and to resolve disputes over its application • Broad approach – many State laws would be invalidated, expand Cth power • Narrow approach – few State laws invalidated, States continue to regulate many areas • High Court has adopted various tests to determine ‘inconsistency’ • ‘Direct inconsistency’ – impossible to obey both laws simultaneously동시에 • ‘Cover the field’ – when a Cth law intends to regulate a topic exclusively CTH V ACT (2013) • Marriage Act (Cth) provided for marriage between a man a woman • ACT passed laws in 2013 allowing for same sex marriage (between two people of the same sex) • Cth challenged the ACT laws in the High Court • High Court held that the ACT laws were invalid • The ACT laws were ‘inconsistent’ with the Cth Marriage Act • The Marriage Act sought to exclusively regulate the topic of marriage • High Court determined that the ‘marriage’ power included power to pass laws allowing for same sex marriage  Cth Parliament could pass such laws • Consider whether it was impossible to comply with both sets of laws  Did the laws apply to the same, or different groups of people? • Marriage power is a shared power  Did the High Court convert it to an exclusive Cth power? SUMMARY OF WEEK 7 • Types of legislative powers • Interpretation of legislative powers • State legislative power • Entrenched provisions & parliamentary sovereignty • Conflict between Cth and State laws The Pow ers of Australia’s Pa rlia ment COMMONWEALTH LEGISLATIVE POWER - S 51 : provides the heads of commonwealth legislative power - ‘the interstate각주 연합의 trade and commerce power’: s51(i) trade and commerce with other countries, and among the States: - ‘the corporations단체 power’: s51(xx) "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth" - ‘the external affairs power’: s51(xxix) external Affairs: - 'Taxation power': s51(ii) "taxation; but so as not to discriminate between States or parts of States": (Combined with s96 –see ‘tied grants’ below). • Exclusive독점적인 powers  May only be exercised by Parliament of the commonwealth includes :  External affairs o Immigration and emigration s 51(xxix)(xxvii)  Currency, coinage and legal tender s 51 (xii)  Naval and military defense of commonwealth s 51(vi) • Concurrent 공존하는 power  Both commonwealth and the states o Make laws with respect to banks (s 51(xiii)) and insurance(s 51(xiv))  Law of commonwealth will prevail(이기다) that the state law, to extent of the inconsistency, is void s 109 • The commonwealth constitution denies(부정하다) to the states certain legislative power  Not make law that interfere with interest trade (s 92)  Not make law that without the consent of commonwealth to raise or maintain naval or military forces or to imposes a tax on commonwealth property (s 114)  Not make law to make states coin money (s 115)  Make law on customs, excise or bounties (s 90)  Impose any disability or discrimination (s 117) • The commonwealth constitution denies to the commonwealth certain power  Not make any law for establishing any religion, for prohibiting any religion, (s 116)  Not make law for regulation of trade, commerce or revenue to one state or others (s 99)  Not make law for trade or commerce abridge the right of state or residents (s 100) • Movement of the federal boundary  S 51 allows for the movement of the federal boundary  S 51(xxxvii) – reference power – state may refer to commonwealth a new head of legislative power not possessed by commonwealth –  state may expand the legislative power of the commonwealth  allow state to refer a matter to the commonwealth and thereby, empower or broaden the commonwealth parliament’s legislative power under s 51  Section 51 of the Constitution of Australia grants legislative powers to the Australian (Commonwealth) Parliament only when subject to the constitution. When the six Australian colonies joined together in Federation in 1901, they became the original States and ceded some of their powers to the new Commonwealth Parliament. There are 39 subsections to section 51, each of which describes a "head of power" under which the Parliament has the power to make laws.  The Commonwealth legislative power is limited to that granted in the Constitution. Powers not included in section 51 are considered "residual powers", and remain the domain of the states, unless there is another grant of constitutional power (e.g. Section 52 and Section 90 prescribe additional powers). Matters covered in section 51 may be legislated on by the states, but the legislation will be ineffective if inconsistent with or in a field 'covered by' Commonwealth legislation (by virtue of s109 inconsistency provision). • Non-section 51 legislative power  S 5 representatives in the first parliament  S 84 transfer of officers to the commonwealth at federation  S 17 dealing with custom duties for Western Australia  S 49. Permit parliament to make laws on matters of parliamentary privilege  S 51, s 52 gives to the commonwealth exclusive power to legislate for the seat of government and all places acquired by the commonwealth for public purpose  S 112. Allows the commonwealth to make laws for territories THE POWERS OF THE COMMONWEALTH PARLIAMENT • Granted by Constitution • S 1: “The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called The Parliament , or The Parliament of the Commonwealth.” • S 51: “The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:…” • S 52: “The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to:…” • The power of Commonwealth is limited here because the states did not want the Commonwealth to have it all. • ‘p ea ce, o rd er a n d g o od go vern men t’ : not words of limitation but give very broad legislative powers (seen in the Australian Act – Union Steamship) WHAT ARE OUR (EXPRESS) RIGHTS? • S 51(xxxi): Commonwealth can only compulsorily acquire property on ‘just terms’. We have the right to compensation when our property is taken. • S 80: Protects a limited right to trial by jury. Crimes are usually state law but those that are federal are the more serious ones and must have juries. • S 116: The equal protection of all religions to the Aus citizens (Freedom of Religion) • S 117: Freedom from discrimination on the basis of State residence • S 75(v): Australians can challenge Parliament decisions in which the government cannot expressly discriminate them for doing so • Implied Rights: • SS 7: voting rights are entrenched for the citizens under the Australian Constitution to allow representative government. This would apply to ex-cons. • SS 24: Free political communication – the communication of government to the public. • Burton v Hogan (1952) • Dixon J: ‘the justice and wisdom of [a law of the Commonwealth] are matters entirely for the Legislature and not for the Judiciary.’ • South Australia v Commonwealth (1942) • Latham CJ: ‘It is not for this or any court to prescribe policy or to seek to give effect to any views or opinions upon policy. We have nothing to do with the wisdom or expediency of legislation. Such questions are for Parliaments and the people… The remedy for alleged abuse of power or for the use of power to promote what are thought to be improper objects is to be found in the political arena and not in the Courts.’ • Leask v Commonwealth (1996) • McHugh J: ‘If there is a sufficient connection between a subject of federal power and the subject matter of a federal law, it matters not that the federal law is harsh, oppressive or inappropriate or that it is disproportionate to obtain the legislative purpose.’ PARLIAMENTARY SOVEREIGNTY AND PLENARY LEGISLATIVE POWERS • Parliament became the most sovereign of the 3 branches of government which overrides the monarch What does the doctrine of parliamentary sovereignty say about the interaction between common law and legislation? • Legislation overrides the CL, being one of the aspects that give power to Parliament (via the law-making body for legislations rather than CL which is judicial). To override CL, parliament have to be very clear in their legislation. Ho w is Pa rliamen t ‘ su p reme’ o ver th e execu tive? Is th e p o sition th e sa me in th e UK a nd Au stra lia? • Executive only gets their power from enabling acts that are made BY parliament. Parliament is sovereign because it is the only one that can change the law. Executive administers and applies law (made by Parliament). • The Cabinet have to be collectively responsible to Parliament for government policies and decisions. Ministers individually accountable to Parliament for administration of their department through public service, answering questions and providing information when asked by Parliament. • Responsible Government and Parliament Sovereignty the same in Aus and UK however in UK, they are unwritten conventions (since UK has no written constitution) Ho w is Pa rliamen t ‘ su p reme’ o ver th e ju d icia ry? Is th e p o sition th e sa me in th e UK a n d Au stra lia? • Parliament can overturn and amend legislation if they don’t like how the courts have interpreted a certain way (considering it is within the limits of the constitution). In theory in the UK, Parliament can abolish the jurisdictions of the courts (Parliament is theoretically supreme over courts in UK). In Aus however, due to the restrictions of The Constitution, Aus Parliament are unable to ‘theoretically’ do that. • Courts limited to interpreting the law of Parliament, making decisions based on existing laws (made by Parliament) • However, inherent judicial power has given courts the judicial function to interpret the constitutional limits of Parliament’s power (a judicial function/ power that Parliament cannot remove) What is plenary power? • (Very) wide, general power to make laws by Parliament. General powers mean it can pass whatever law, and legislate any kinds of law that they think are good law for the “peace, order and good government” of the country. • No restrictions in what law they can make. Australia has never been as sovereign as the UK Parliament is because of the restriction of powers that were granted to the states from the Constitution. THE POWERS OF AUSTRALIA’S STATE PARLIAMENTS • As has been noted, the choice by the Australian founders of a federal system of government involved the limitation of the law-making powers of the national legislature to matters prescribed by the Constitution. The subjects on which the Commonwealth Parliament may legislate are listed in section 51 of the Constitution, and other sections also empower the Parliament to make laws on particular matters. Some matters are exclusively within the legislative power of the Commonwealth, that is, the states may not make laws in respect of those matters. Examples are customs and excise duties and bounties (s. 90) and the issuing of money (s. 115). Most subjects on which the Commonwealth Parliament can legislate are concurrent with state powers, that is, the states can also legislate in relation to them; this includes most of the subjects listed in section 51. When a law of the Commonwealth in relation to any of these subjects is inconsistent with a law of the state, the Commonwealth law prevails (s. 109). The Commonwealth is positively forbidden to legislate in relation to some matters, such as any establishment of religion (s. 116). Some subjects are not prescribed by the Constitution as subjects on which the Commonwealth can legislate, and those subjects, such as education, are left to the states. The Commonwealth Parliament may, however, legislate indirectly in relation to such subjects, for example, through its power to grant financial assistance to the states (s. 96). • The Constitution confers the legislative power of the Commonwealth on the two Houses of the Parliament and the executive government acting together. The effect of this is that each of the two Houses must agree to a proposed law (a bill) before it can become a law. • The only distinction between the powers of the Houses in relation to proposed laws is contained in section 53 of the Constitution, and relates to the initiation and amendment of proposed financial legislation. Briefly, the Senate cannot originate a taxing bill or an appropriation bill; amend a taxing bill or a bill appropriating money for the ordinary annual services of the government; or amend any bill so as to increase any proposed charge or burden on the people. The Senate may, however, at any stage return to the House of Representatives any of the bills which it cannot amend, with a request for amendment, proposed by any senator, and can insist on its requests. The rationale of these provisions is related to the system of cabinet government; they confer on the executive government in the House of Representatives the initiative in respect of financial proposals. • Whether or not the Senate has the power to amend a proposed law does not affect the basic feature of the legislative procedures of the Commonwealth Parliament, namely that a bill can become law only if supported by both Houses, and neither House can be compelled to pass a bill. • The exercise by the Senate of its legislative powers is covered by Chapters 12 and 13 on Legislation and Financial Legislation. • Constitution Act 1975 (Vic) s 16: “The Parliament shall have power to make laws in and for Victoria in all cases whatsoever” • Constitution Act 1902 (NSW) s 5: “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..” • Commonwealth Constitution s 106: Colonial constitutions and laws retained as the colonies were converted into states • Commonwealth Constitution s 107: Constitution and laws saved the power of the State Parliaments • Australia Act 1986 (Cth and UK) s 2(2): “The legislative powers of the Parliament of each state include all legislative powers that the Parliament of the United kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State” • Australia Act: removed the British control over the Aust states • State Legislative Power (Summary) • State legislatures have plenary legislative power (Union Steamship) • Some Constitutional limits (e.g. cannot abolish themselves) • But State legislatures can override even the most fundamental of common law principles, provided that they are sufficiently clear in doing so (Kable (per Dawson J); Durham Holdings). THE LEGISLATIVE POWERS OF THE STATE • Source of state legislative power page 110 - 112 • Scope of the legislative power: peace, order and good government  Constitution, Section 51 provided that the legislatures of SA, VIC, Tasmania and WA might make laws for peace, welfare and good government  Sue v hill (1999() case : s 1 of Australia ACT 1986, provided that no Act of the British Parliament passed after the commencement of this Act shall extend to the commonwealth, a state or a Territory as part of the law of the commonwealth, of the State or of the Territory s 5 of the Constitution Act 1902 (NSW) declares that “The Legislature shall…have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever”. This general phrase is used in all State constitutions, with the slight variation of “peace order and good government” in some. A debate has emerged whether that phrase implies that State legislation is subject to judicial review according to those words.  In other words, can judges strike down laws which are not for the ‘peace, welfare and good government’ of New South Wales as unconstitutional? If so, the words constitute a limitation on State legislative power. This question was discussed in Building Construction Employees and Builder’s Labourers Federation of NSW v Minister for Industrial Relations (BLF case) where it was decided that:  The inclusion of the phrase in question indeed granted the Courts power to strike down laws not for the ‘peace, welfare and good governance’ as unconstitutional.  Therefore, the BLF case established that the wording of s 5 constituted a limitation on State legislative power. However, this view was ultimately rejected by the High Court in Union Steamship Co of Australia Pty Ltd v King which ruled as follows:  Since the words ‘peace, welfare and good government’ and ‘peace, order and good government’ are interchangeable, they should be viewed as having “no special semantic significance, but is simply a conventional formula used by the Imperial Parliament when it wished to confer plenary power[6]”. Thus, the phrase does not pose a limitation to the power of the State Parliaments. LIMITS OF THE POWERS OF STATE PARLIAMENT LIMITATION 1. THE COMMONWEALTH CONSTITUTION  Section 109, provided for conflict between State statues and commonwealth statute.  Commonwealth is higher than state LIMITS ORIGINATING FROM THE COMMONWEALTH CONSTITUTION The Commonwealth Constitution includes multiple limitations to State Parliaments. These limitations can be categorised into three types: Areas of power exclusively vested in the Commonwealth “Areas of power exclusively vested in the Commonwealth Parliament are necessarily excised from the power of the States[3]”.  s 90 – the Commonwealth alone has the power to levy duties of customs or excise.  s 51 – some of the powers assigned by s 51 (vi – naval and military defence, xii - currency, coinage and legal tender) are made exclusive to the Commonwealth Parliament by provisions in chapter V. EXPRESS LIMITATIONS “Some provisions of the Constitution expressly limit the State Legislative power[4]”.  s 114 – States cannot impose taxes on properties which belong to the Commonwealth  s 117 – States cannot discriminate against residents of other states.  s 92 – Interstate trade and commerce must be absolutely free.  s 112 gives States the power to enact laws for the "inspection" of s 92, but any such laws that arise out of this qualification are subject to Commonwealth annulment. Implied Limitations “State legislative powers may be subject to limitations implied in the [Commonwealth] Constitution[5]”  s 106 - States constitutions are ultimately subject to the Commonwealth Constitution. Where the Constitution outlines a limitation on the power of the Commonwealth, this limitation will flow on through s 106 to limit State legislative power. However, this is only if it is deemed necessary to ensure the effectiveness of the limitation at the Commonwealth level. LIMITATION 2. MANNER AND FORM  Meaning the combination of two terms with a single meaning.  Special procedures that must followed to amend certain parts of a state constitution in order for the change to be legally valid  The power to make laws included a power to unmake them – the state constitutions do not contain fundamental provisions or are not in themselves a in fundamental or unalterable law  Manner and form requirements “restrict the legislative powers of the Parliament by requiring that laws on certain topics may only be enacted by a special more difficult procedure[12]”. They originate from s 5 of the Colonial Laws Validity Act 1865 (Imp), and were later re-enacted in s 6 of the Australia Act 1986 (Cth).  Manner and form requirements pose a challenge to Dicey’s notion of Parliamentary Sovereignty since they could limit the power of future Parliaments. DOUBLE ENTRENCHMENT After the abolition of the Legislative Council in Queensland, NSW tried to do the same. This attempt failed, and in 1929 the government sought to safeguard against future attempts by amending the Constitution Act 1902 (NSW).  s 7A – Legislative Assembly cannot be abolished/lose its power unless by referendum.  sub section (6) –s 7A itself cannot be changed/repealed unless by referendum  This is an example of double entrenchment, a double protection on the law, and it entails that special manner and form provisions apply to any legislation attempting to repeal or amend the section or abolish the Legislative Council and this legislation itself. A future government attempted to both abolish the Legislative Council and repeal this section, without using a referendum. Two members of the Legislative Council procured an injunction from the Supreme Court to stop both those bills. This was the case of Trethowan v Peden:  s 7A thus incorporated a “manner and form” requirement imposed by the law within the meaning of the proviso to s 5 of the Colonial Laws Validity Act.  Note: Sub-s (6) creates double entrenchment because it subjects itself to manner and form requirements.  If Sub-s (6) didn’t include subject itself to manner and form requirements, it could be have been repealed by an ordinary act of Parliament, and then the whole of s 7A could also have been repealed by an ordinary act of Parliament.  If s 7A was repealed, the Upper House could be abolished by any normal act of Parliament. The government then appealed to the High Court, which affirmed the Supreme Court’s injunction. This case was Attorney-General v Trethowan:  s 5 of the Colonial Laws Validity Act 1865 (Imp) indeed empowers State Parliaments to entrench future Parliaments through manner and form requirements.  This should not be seen as ‘restricting’ Parliaments, as technically if it was something that the majority population really wanted, then the law would still be passed (after the referendum).  Rather, it is a method of avoiding rash decisions and implementing careful consideration for the passing of certain laws. LIMITATION 3. TERRITORIALITY  Weather State legislation has an extraterritorial effect or not  The Territories Power (s 122). Under s 122 the commonwealth has a general power to legislate for federal Territories. This power is plenary and is not limited to the subject matters set out in s 51 of the Constitution. Thus the Commonwealth can make laws for the Territories which would normally be within the power of State legislatures.[1946] It can also, as it has done for example in the Northern Territory and on Norfolk Island, create a local legislature with its own legislative powers, although without limiting the Commonwealth’s overriding authority. But while the Commonwealth’s powers to legislate for a Territory are not limited by subject matter they are limited by certain other provisions in the Constitution.[1947] It is likely that s 116, preventing the Commonwealth from establishing a religion or prohibiting the free exercise of a religion, would apply with respect to a Territory.[1948] But it has been held that the Commonwealth may acquire property in a territory without providing ‘just terms’ (s 51(31)) as it would be required to do if it acquired property in a State.[1949] Clearly the Commonwealth’s powers to pass laws under s 122 are very broad. From a constitutional point of view the proposals contained in this Report could be enacted for the Northern Territory in reliance on that power alone.[1950]  The plenary power can even have an effect outside Queensland if there is a sufficient connection with Queensland. Under the Australia Act 1986 (Cwlth and UK), section 2(1), 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 extraterritorial operation.  An important example of general provisions that have extraterritorial effect concerns the criminal law.  Sections 12(2) to (4), 13, and 14 of the Criminal Code apply Queensland criminal law to acts or omissions, and persons, outside Queensland if the preconditions expressed in the section that connect the acts or omissions, and persons, to Queensland are met.  Also, the application of criminal law offshore from Queensland is dealt with by a cooperative scheme of legislation that relies on the extraterritorial power. Under this scheme, Australian jurisdictions have combined their extraterritorial powers to enact laws in the same terms applying the substantive criminal law of each State offshore from each State. The application of the laws of criminal investigation, procedure and evidence is also dealt with by the scheme. Provision is also made for an intergovernmental agreement dividing responsibility for administering and enforcing the law relating to maritime offences. See the Crimes at Sea Act 2000 (Cwlth), the Crimes at Sea Act 2001 (Qld) and corresponding legislation in other Australian jurisdictions.  For additional power to apply State law offshore, see the material about the offshore settlement under Chapter 1.4.3.  Exception: o Diplomats(외교관) o Visiting forces  Criminal law o Do not apply outside the territorial boundaries of the state o All crime is territorial o If a man shoot another where the shooter is in VIC and the victim is legally in NSW , crime is taken to have taken place in NSW , not VIC :Ward v R (1980)  Territorial waters o State parliament cannot legislate for the territorial waters of an adjacent(인접한) state. o If the two should conflict, there is no equivalent provision to deal with conflicting state legislation o Section 2(1) of the Australia Act 1986 ‘the legislative powers of the parliament of each state include full power to make laws for the peace, order and good government of the state that have exterritorial operation’ LIMITS BASED ON ABROGATION OF ‘RIGHTS DEEPLY ROOTED’ [7]Some of the judgement in Union Steamship hints at the possibility that the State Parliaments are limited from abrogating rights which are ‘deeply rooted’ in either the democratic system and the Common Law. This subject was later discussed in Durham Holdings Pty Ltd v New South Wales. Whilst the case was dismissed, it did establish that:  The State Parliaments are limited from abrogating rights which are deemed to be ‘deeply rooted’ in the democratic system or the Common Law.  However, the Plaintiff failed because the right for fair compensation did not constitute a ‘deeply rooted’ right. Thus, the inability to abrogate rights which are ‘deeply rooted’ is a limitation on State legislative power.   J. Goldsworthy: The Sovereignty of Parliament In this paper[8], Goldworthy argues against the idea that courts should protect these deeply rooted rights.  People cannot rely on courts to use morality in order to defend their rights, because there is nothing which indicates that the Judiciary has a greater moral conscience than the Parliament.  If anything, greater faith should be entrusted to the Parliament, since they are, after all, elected and thus represent the will of the people.  If the ultimate authority rested with the courts, the same predicament would ensue: court decisions which are considered unjust (and, since judges are also morally fallible, this will obviously happen sometimes) would still have to be accepted.  Someone must have an ultimate authority, and it is favourable to the people that the Parliament will have this authority than the Judiciary. Editor’s thoughts: Since Parliaments are always looking for re-election, they are therefore inclined to please the people rather than distemper them in any way. The members of the judicature are appointed regardless of the opinion of the masses, and sometimes cannot be removed from office. Therefore, it would be preferable to the people to place the ultimate authority with the Parliament, which, by virtue of self interest, would be more hesitant to abrogate the people’s rights in any way. UNION STEAMSHIP CO V KING (1988) • Facts and Issue: State and Commonwealth legislation on compensation. Guy on a NSW ship got injured, wanted compensation from employer. • Held: State Legislation (which prevailed over Cth Parliament) gave compensation to P. In this case, state parliament and Cth parliament powers do not conflict thereby both able to co-exist. If state laws and Cth laws conflict, Cth laws prevail. However state legislations/ parliament have less limits/ restrictions compared to Cth parliaments (which have power contained in the Constitution). • Legislations that must be adopted/ created in accordance with the words ‘peace, order and good government’ have not/ does not place any limits on State legislative power (not limiting the making of plenary power) • High Court stated that the words ‘peace, order and good government’ in the Commonwealth Constitution are a conventional formula used by the UK Parliament when conferring plenary power (e.g. Discussing what law can be/ should be made) • It however said that the possibility there may be some limitation on State legislative power rooted in the CL or in the democratic system of government DURHAM HOLDINGS PTY LTD V NSW (2001) • Kirby J: “In Australia, a State is not free-standing. Not is it merely an historical colony given a different name. It is a State of the Commonwealth. It derives its constitutional status as such from the federal Constitution. It may be inferred, from that Constitution, that a State is a polity of a particular character. Thus s 107 of the Constitution provides, and requires, that each State should have a parliament. Such parliaments must be of a kind appropriate to a state of the Commonwealth and to a legislature that can fulfil functions envisaged for it by the Constitution.” - s 106 and 107, Australian Constitution • Justice Kirby federated the colonies into states of Commonwealth. Derived from the constitution that the colonies were now called states but still given the same power as before. • One limitation from the plenary powers of the state: they cannot abolish themselves (if they ever want to become a unicameral government) • State legislatures are empowered to limit CL rights, provided that legislation is sufficiently clear. o It is a fundamental human right to compensate Durham for having their property taken away from them in which state parliament do not have the sufficiently clear regulation/ legislation to impinge on this fundamental CL right. • 2 arguments made by Durham Holdings: o Parliament does not have the fundamental right to take away our property (to impinge on the CL rights) AND/ OR; o Parliament does have the fundamental right to impinge on the CL rights however the Act is ambiguous and therefore should be construed in a way that is similar to the previous law in the CL (hence which Parliament should not take away the right to compensate Ps) • NSW won which means neither of Durham arguments were valid. Provided that the state legislation and Acts are written and stated clearly (holding that it was), it can override the fundamental rights that are stated in the CL. KABLE V DPP (NSW) (1996) • Dawson J: “no non-territorial restraints upon parliamentary supremacy arise from the nature of a power to make laws for peace, order (or welfare), and good government or from the notion that there are fundamental rights which must prevail against the will of the legislature…a court, once it has ascertained the true scope and effect of an Act of Parliament, should give unquestioned effect to it accordingly”. o ‘no non-territorial restraints’: there could be restraints relating to territories or land on State Parliament powers • Orders to keep Kable in prison for 6 months extra after his imprisonment release date which courts must be satisfied is the only necessary method to ‘protect the safety of the community’. • The order was considered ‘invalid’ because it was recognised as outside the scope of NSW powers to make those laws (thus NSW failed) o Kable used Durham Holdings arguments in that this alleged order (that is to be applied only on Kable alone) infringes on the fundamental CL rights (e.g. false imprisonment, liberty, incarceration for not committing an unlawful offence etc.) thus is beyond the jurisdictions of State Parliament o NSW can make laws impinging on his liberty only if the legislation is sufficiently clear (Durham Holdings Pty Ltd v NSW) LAWS WITH EXTRA-TERRITORIAL APPLICATION • Territoriality is no longer a limitation on the Commonwealth or State Legislatures • States can legislate outside/ beyond of their state jurisdiction/ order as long as there is some sort of connection with their own state. • High Court held that ‘even a remote and general connection… will suffice’ • E.g. The practical co-operation with other countries or states in prosecuting a citizen of its own state who have committed a criminal offence outside THE POWER TO CHANGE STATE CONSTITUTIONS • Each new parliament is supreme (Parliament Sovereignty). This mean there is a limited extent to which it can bind its successors. • Consider a provision in an Act which said: “this Act can never be repealed”. • This would impinge on the supremacy of future parliaments. • But, it is accepted that State parliaments can enact provisions which ‘entrench’ their constitutions. • Section 6 of the Australia Acts provides: any law ‘respecting the constitution, powers or procedure of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament’ • More difficult provisions that make it hard to amend past provisions can be implemented as long as it does not infringe on the sovereignty of future parliament. • e.g. if any state wants to separate from the Federation, then there requires a referendum of the federation to vote on this because under the Australian Constitution, all states are bound to the Federation • S 18 of the Constitution Act 1975 (Vic) sets out manner and form requirements for its amendment DEBATE: • Should legislative power be subject to constitutional limitations in order to protect human rights? • Which branch is best suited to determining where the balance between rights and public interests lies? (e.g. think terrorism legislation – public interest in safety vs. rights to fair trial, liberty, speech, association etc.) • Parliaments are well place: we elected these people and trust them to make the best decision for us, judicial if given the power can be very power hungry • Parliament are not well placed: usually the vote of the majority are not in place to make the best decision for the whole community and minority, judges are more aligned to the public interest and the rights of the public than Parliament is • YES • NO • Unchecked majoritarian democracy often fails to protect rights and interests of vulnerable minorities. • Democratic process is flawed. • Parliament democratically elected – best forum for debate and resolution of ideas. • Is a preference for judicial supremacy elitist? • Rights are well understood and recognised in other jurisdictions via their Bill of Rights (e.g. Canada, USA, UK) • Rights are abstract ideals, not rule-like. • The common law in Australia has failed on a number of occasions. • The common law provides sufficient protection. WEEK 8 – EXECUTIVE POWER WHAT IS THE ‘EXECUTIVE’? • The executive branch of government consists of many people and institutions • Harder to define than parliament and the judiciary • The head of the executive (at Cth and at State level) is the Queen • The Queen is Australia’s ‘head of state’  Australia is a monarchy • Queen is represented at Cth and at State level  ‘Crown in right of the Cth’ and the ‘Crown in right of Victoria’ etc. • Traditionally the monarch was the executive  All acts of government were done in the name of, and under the authority of, the monarch  This still exists to a certain extent  Eg. Criminal prosecutions are conducted in the name of the Queen  R v Smith • Growth of constitutionalism has resulted in the reduction of the role and powers of the monarch  This coincided with the expansion of the powers of parliament (elected branch)  Move from monarchy to democracy • Cth Executive power is vested 확립되다 in the Queen, and is exercised by the Governor-General as the Queen’s representative (s 61) • The Queen no longer has any active role in Australia’s system of government • All her functions are carried out by the G-G, on the advice of ministers • ‘Executive’ generally means ‘the government’, including:  Prime Minister/Premier and Cabinet  Ministers  Government departments  Public servants eg. Police, Centrelink officers, DHS, etc • Members of the executive are:  Born and/or marry into the role (monarch)  Appointed (Governor-General)  Secure the role by selection and/or promotion, etc (public servants) • There is overlap between members of the executive and members of parliament:  Monarch is head of the executive and also part of parliament (s 1)  Members of government (ministers) must also be members of parliament  ‘responsible government’/Westminster system • Constitution does not mention several key aspects of executive government  Prime Minister – leader of government/party with the majority in the lower house  Cabinet – senior ministers. Main decision-making body in Australia’s political system • Constitution refers to: • ‘Federal Executive Council’ (ss 62 - 64)  Consists of all ministers of government  Function is to ‘advise’ the G-G  Referred to in the Constitution • Ministers  Referred to in the Constitution (s 64)  Constitution assumes all ministers are equal (no Prime Minister) Executive power EXECUTIVE POWER • Executive power is the power to carry out (‘execute’) the laws and the functions of government • Or, more simply, to govern  Think of the CEO of a business corporation • Of the three branches of government, executive power is the most difficult to define • Constitution does not seek to define executive power exhaustively완전한  provides that Cth Executive power ‘extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth’ (s 61) • Role of defining executive power is left to the High Court • Precise boundaries of Executive power has never been fully or clearly stated  Probably never will be clearly define • We will examine some key court decision on executive power • Courts usually look at particular aspects of Executive power, in deciding whether a particular act of the executive branch is ‘within power’ or not • Rule of law and separation of powers do apply to executive power  Ultimately the High Court decides whether particular acts are unconstitutional • More difficult to determine these issues in relation to executive power  Due to uncertainty over the scope of the power • Why are courts reluctant to define executive power?  Courts sensitive to the need to respect separation of powers in relation to the executive o Allow the government to govern  Degree of flexibility in relation to executive power is desirable  Government may need to act quickly/in secret some times eg. To ensure national defence • Modern executive power is a development of the historical powers of the monarch • Monarch exercised all powers  Decided individual court cases (judicial power)  Making laws (legislative power)  No separation of powers • Monarch always had certain ‘prerogatives’  Powers inherent to government  Eg. Declaring war, conducting relations with other countries, etc  Historically, these powers could not be challenged or reviewed by any other person or body  Came to be seen as arbitrary rule, form or tyranny  Too much discretionary power, too little accountability • Gradually these powers were taken from the monarch and conferred on courts and parliament  Courts could decide whether or not a particular prerogative power existed  Only courts (not the monarch) could decide the outcome of particular court cases  Monarch could not make law without specific authority from parliament • Bill of Rights 1689 (UK) marked an important point in this process  King could not arrest or detain a person without parliamentary authority  King could not dispense with laws made by parliament, or suspend such laws • Current limits on prerogative powers:  Courts can determine whether prerogative has been validly exercised  Parliament may limit or abrogate particular prerogative powers SOURCES OF EXECUTIVE POWER • Currently there are three sources of executive power: 1. Constitution 2. Statute /legislation 3. Prerogative/common law CONSTITUTION • Certain powers conferred by the Constitution itself:  the power to appoint judges (s 72)  Prorogue (discontinue without dissolving) the Parliament (s 5)  dissolve the House of Representatives (s 5)  give assent to proposed laws (s 58)  exercise the command of the naval and military forces of the Commonwealth (s 68)  Appoint and dismiss ministers (s 64) • Previously these were prerogative powers • Now defined by the terms used in the Constitution  Ie. Cannot be exercised except as provided for in these provisions STATUTORY POWER • Statutes may confer power on members of the executive  Eg. Legislation establishes the Australian Taxation Office and authorises the Commissioner of Tax to collect tax • Administrative law is largely about whether statutory powers have been exercised properly  Judicial review – by courts  Merits review – by tribunal PREROGATIVE POWER • Powers inherent in the monarch/government  Eg. To declare war, to conduct relations with other countries • These powers were originally created by custom and practice ie. Accepted power of the monarch • Prerogative powers are now regarded as part of the common law  Subject to modification or removal by legislation • ‘Prerogative powers’ now means executive powers apart from those found in the Constitution and in legislation • Certain prerogative powers still exist:  Granting honours  Pardon/remission of sentence  Declare war and conclude peace  Entering treaties • Courts can review the exercise of prerogative power  To determine the scope of the relevant power, and whether a particular action is within the scope of that power • Courts will not review certain high-level executive decisions eg. Cabinet  Regarded as ‘political’ decisions, not subject to review by the courts CONVENTIONS • Governor-General has extensive powers under the Constitution • These powers must be exercised according to conventions • Most important convention – G-G acts only on the advice of ministers • Exception is the G-G’s ‘reserve powers’  May be exercised without, or contrary to, advice  However G-G must warn/counsel ministers before exercising such powers  G-G can also seek advice prior to exercising reserve powers eg. From Solicitor- General • Governor-General’s reserve powers include:  Dismiss Prime Minister if party loses support of the lower house (motion of no confidence)  To dissolve, or refuse to dissolve, parliament when requested by Prime Minister CASE STUDIES 1. Tampa case (Ruddock v Vadarlis (2001)) 2. Williams v Cth (No. 1) 3. A v Hayden (1984) RUDDOCK V VADARLIS (2001) - THE ‘TAMPA’ CASE  The ‘Tampa’ case  A group of asylum seekers were rescued by the Norwegian ship Tampa and brought into Australian waters.  The Australian Government sought to remove them from the Australian jurisdiction otherwise than in accordance with the Migration Act  The Victorian Council for Civil Liberties (now Liberty Victoria), and solicitor Eric Vadarlis, sought a writ of habeas corpus (an order for the asylum seekers to be released)  Issue:  Was there still a prerogative to remove aliens from the jurisdiction notwithstanding the Migration Act?  Vadarlis argued that the asylum seekers should be taken to the mainland and be allowed to apply for visas.  Also argued that they were being detained unlawfully, and that they should be released  At first instance North J found that it was unlikely that there existed a prerogative power to expel which could be exercised to detain the asylum seekers, and that even if it once did, then it had been replaced by the statutory scheme in the Migration Act, which now identified and regulated all the powers of the executive government to deal with non-citizens.  North J granted a writ of habeas corpus, which he preferred to describe more simply as "an order for release."  The Government had no statutory authority to detain the asylum seekers, and since there was no prerogative power to detain them, they were being held unlawfully and had to be released.  On appeal to the Full Court, French & Beaumont JJ held:  there is a prerogative power to prevent the entry of non-citizens into Australia.  They said that: o "The power to determine who may come into Australia is so central to its [Australia's] sovereignty that it is not to be supposed that the Government of the nation would lack the power conferred upon it directly by the Constitution, the ability to prevent people not part of the Australia community [sic], from entering."  Decided that, although statutes are capable of replacing prerogative powers, the Migration Act had not replaced the prerogative power in this case. WILLIAMS V CTH (NO. 1) • The Cth had made an agreement with the Scripture Union of Queensland (SUQ) to provide chaplains in State schools in return for payment. • The payment was from appropriated money but there was no statutory authorisation. • Ron Williams, a parent of children at a State school, challenged its constitutional validity on several grounds. • Two issues were raised by Williams:  Was this spending within the executive power of the Cth?  Was it contrary to s116? • High Court held by a majority that the agreement was not contrary to s116, but that the Cth did not have the power to enter into he agreement.  “The funding of the NSCP is not provided under any statute of the Parliament . There is no law enacted, for example, in reliance upon the power conferred by s 51(xxiiiA) of the Constitution to make laws with respect to "the provision of ... benefits to students". Nor is the funding provided by the Commonwealth under s 96 of the Constitution as the "grant [of] financial assistance to any State on such terms and conditions as the Parliament thinks fit".  Rather, for its power to spend so as to fund the NSCP, the Commonwealth relies upon "the executive power of the Commonwealth” • High Court held that the executive could spend money without legislative authorisation, but only if:  The matter was inherently a national matter, such as an emergency or natural disaster  There were not competing State interests • These conditions were not satisfied here • The spending was unconstitutional A V HAYDEN • We examined this case in topic 3 (rule of law) • In 1983 Federal Australian Security Intelligence Service officers conducted a training exercise at the Sheraton Hotel in Melbourne • Vic Police sought to prosecute the ASIS member for possible criminal offences • HC held that ASIS members were not immune from prosecution for breaches of the criminal law • In his judgment, Murphy J stated: • “The Executive power of the Commonwealth must be exercised in accordance with the Constitution and the laws of the Commonwealth.” • He went on to state: • “The Governor-General, the Federal Executive Council and every officer of the Commonwealth are bound to observe the laws of the land.” • This is an important statement of the rule of law, and the limits on executive power • This case also illustrate the modern relationship between the courts and the executive • It also illustrates the importance of holding the executive to account: Murphy J noted that • “in other countries, [executive excesses] lead to death squads.” SUMMARY • What is the ‘executive’? • Nature and scope of executive power • Sources of executive power • Role of conventions • Case studies in executive power THE PARTS OF THE EXECUTIVE THE CROWN • The crown is used as a synonym for the monarch but in practice the term is also used to stand for the executive • Often used in public law • Crown Proceedings Act 1958(Vic) : the Crown does not seem to be defined at all. The Crown exists in Right of the commonwealth, reflecting the political units that emerged at Federation • The formal title of Queen of Australia given by the Royal Style and Title Act 1973(Cth) • Monarch in law never die -> Necessary : it was once the case that when the monarch died all appointments by the monarch of judges, for instance, were determined, that is, terminated. All military commissions determined when the monarch died leaving the army leaderless until their commission were renewed by new King or Queen -> legislation to permits an extension of the commission of appointment for up to 18 months following the death of monarch : Constitution Act(Vic) ss 9-11 THE GOVERNOR AS THE CROWN REPRESENTATIVE • The queen is represented in the commonwealth and the States and some Territories by a Governor General (commonwealth Constitution s 2) and by Governor (Australia Act 1986(Cth) s7) • Queen formally appointed but in practice, this is always on the advice of the Prime Minister or Premier • Australia citizen • For five years in the first instance • May be dismissed by the Queen on the advice of the premier THE DEPUTY 대리역 GOVERNOR • Known as the Lieutenant –Governor • Role o Stand in for the Governor whenever the Governor is outside the state or Territory o Eg : short like air travel o Eg: Victoria where there was almost a three years gap between the departure of Lord Somers and the arrival of Lord Huntingford in May 1934 because the Victorian Government wanted an Australian appointee and the British refused this • Advantage o Fact that a judicial Deputy Governor would be aware of the constitutional and legal aspects of their office. • Disadvantage o There was a question of whether the holding of the two offices simultaneously would create and incompatibility with each other. • The Deputy has the same powers and responsibilities by law as the governor as several jurisdictions have provided by legislation: Constitution (Governor’s Power) Act 1992 (Vic) s 3 added s 12 A to the Victorian Constitution • In practice, governor- general resigned or be dismissed, he or she would be immediately replaced by senior state governor THE ADMINISTRATOR TO THE GOVERNMENT IN THE STATES • When the governor dies and there is no Deputy or where the Deputy is out of the State or otherwise unavailable • Appointment of the administrator -> interpretation Act 1984( Vic) meaning of governor means the person for the time being administering the government of Victoria Act • Normally, the chief Justice for the time being and the Officer administering the government has all of the powers of the governor including the power to assent to Bills. THE TERM ‘EXECUTIVE’ • Constitution Act 1975 (Vic) ss 87A-88C THE EXECUTIVE COUNCIL • It is the body which gives the force of law to, and thus makes effective, decisions of the executive government, ie the Cabinet and individuals ministers. Which executive poer is bested by the constitutional system although the mode of carrying into effect of the decisions in differs according to the circumstance • Exists to advice the governor and one major manifestation of the convention that the governor act on the advice of his or her constitutional advisor • Normally, it is not a deliberative body and the governor does not reject formal advice given by the council THE CABINET AND THE PREMIER • Cabinet decides a matter affecting an individual such as to recommend against a parole board decision. • The constitutional functions of the cabinet are to advice not to act. • It determines what policy ought to be pursed and advices as to the action to be taken or orders to be given but no power of determination THE MINISTERS • Attorney-General who is always a member of parliament but who has and exercise prerogatives in relation to the criminal justice process. THE PUBLIC SERVICE • The primary function of the public service is to formulate and to execute government policy THE POWERS OF THE EXECUTIVE GENERAL FUNCTIONS OF THE GOVERNOR • Has all of the power and functions of a State excepts the power to appoint and remove a State Governor 1. To assent to Bills passed by the parliament o Essential to the making of valid laws is to assent to Bills passed by the Legislature. o If the governor should refuse to give his or her assent to a bills, an extremely rare event, then the Bill cannot become law o Never occurred in modern time in Australia 2. To summon 소환, prorogue 연기 and dissolve parliament o Constitution Act 1975 (Vic) ss 8(1),(2) , 20 o The difference between proroguing and dissolving parliament is that when parliament is prorogued it is temporarily in abeyance(정지), bills pending before the parliament lapse, and the parliament meets again only when a proclamation is issued u the Governor to summon the House once more. But when parliament is dissolved it cannot meet again unless there is an election for a new parliament 3. To remove or suspend from office persons appointed under the authority of the Crown o Constitution(Cth) s 64 o Constitution Act 1975 (Vic) ss 50, 88 o Dismiss public officers who traditionally held office at pleasure 4. To exercise the prerogative특권 of mercy o Both the Federal and State THE ROYAL PREROGATIVE • All power reposed in the sovereign or monarch • In Australia, the royal prerogative is limited by the Constitution. Although in the United Kingdom the monarch's prerogative includes command of the armed forces, in Australia Section 68 of the Constitution vests this power in the Governor-General. [3] Other sections give other powers (e.g. appointment of ministers,[4] prorogation of Parliament[5] etc. directly to the Governor-General. • The remnants of the royal prerogative, such as the royal prerogative of mercy, are vested in the monarch, but exercisable by the Governor-General 1. Scope o There is no capacity in any Australian Governor or Governor-General to create new prerogatives. o The Attorney –general has by common law a prerogative power, for example, to enter a nolle prosequi in criminal proceedings by which charges already laid by be withdrawn 2. Extent o Relate to national affairs such as the conduct of foreign relations(for example, entering into treaties and sending and receiving ambassadors) o In the case of the state Governors, prerogative of mercy or the power to grant either a pardon or remission of sentence still exists. 3. Review by the court o The house rejected the old idea that merely because something was a matter of the royal prerogative it must be beyond the reach of judicial review o The Lords preferred in its stead to consider whether particular prerogatives were reviewable, arguing that many of them were DISPLACEMENT OR OUSTER OF THE ROYAL PREROGATIVE • Whether the prerogative may be abolished by statute • whether, if the statue displacing the prerogative is then replaced, the prerogative revives • whether the prerogative may crease to exist by either non-use or simply inappropriate for modern time 1. Abolition o Have abolished the dispensing power o Power was a power in kings to exempt persons or classes of persons for obedience to a particular statute 2. Displacement o It is established law that the prerogative as part of the common law may be altered or changed by parliament through legislation o Where legislation is passed that covers the same area as the prerogative, the executive must rely upon that legislation for the Act is deemed to have displaced the prerogative while the Act remains in place 3. Loss by desuetude o Desuetude means a long period of non-use o It is not clear how long a period of non-use would be required to establish desuetude and in each case would involve a very long study of the historical record o Since the prerogative is part of the common law there is no general doctrine in English law of desuetude o If for some remarkable reasons replaced by legislation, and this is unlikely but not legally impossible event, it might be a major limitation on executive power to say that the prerogative did not then revive to fill the gap 4. Retention of the prerogative 5. Appointing ministers and members of the executive council o One of the most important practical functions of Governor o Constitution s 64 o Choices actually made on the advice of the Premier 6. Issuing writs for state or Territory elections o The law confers upon the Governor of the State the power under the various State Election of Senator Acts of formally issuing writs to call elections for the senate 7. Issuing writs for the election of senators from the State or Territory o Important role assigned to the state governor by the commonwealth constitution o S 21 of constitution, senate vacancies are to be notified by the president of the senate to the state governor 8. Exercising statutory powers conferred upon the Governor or the Governor in council 9. Making regulation and issuing proclamations 10. The conduct of ceremonial functions o Anzac Day and the receiving and entertaining of visitors 11. Review by the court o Judicial review of his or her decision are beyond the reach of review by the Administrative Decision Asct 1977(Cth) because that Act excludes the decisions of the governor –general from review within the meaning of that Act CONVENTIONS OF THE CONSTITUTION • They are rule but not of a legal nature and therefore, cannot be enforced as if they were legal rules through there may be political sanctions for their breach • The function of the conventions is to smooth the actual operation of the branches of government and they ensure that the law of the constitution works in accordance with the prevailing constitutional theory of the day • Example o If the opposition obtains a majority at the polls the government must resign forthwith o The prime minister should have the support of the legislature, especially the Lower House o Ministers must have individually and collectively the confidence of the House o The governor general could refuse consent to a Bill but by convention they cannot refuse assent because, for example, they do not agree with the policy of bill • Convention are based upon custom and precedent o The evidence of the precedents o Whether the actor treated the rule as binding in practice o The reason for the rule THE CONVENTIONS: THE GOVERNOR ACTS ON THE ADVICE OF THE MINISTRY • The requirement that the Governor acts on the advice of this or her ministers is stated in such terms in statutes (interpretation of Legislation Act 1984 (Vic) s 38 • This convention may be implied form the fact that when the governor acts in Council he or she is acting with and on the advice of their constitutional advisors • Also to be gathered from constitutional practice and is evidenced by various Cabinet handbooks and has been noticed in the courts, in parliament and acknowledged by holders of the Governor’s office THE EXCEPTION: RESERVE POWERS AND CONSTITUTIONAL CRISES THE RESERVE POWER o The first general principle is that the Governor would receive and is necessary seek the advice of the Premier of the day o Is to consult outside legal advisors including legal academics in other states if necessary o In a parliamentary or semi-presidential system of government, a reserve power is a power that may be exercised by the head of state without the approval of another branch of the government. Unlike in a presidential system of government, the head of state is generally constrained by the cabinet or the legislature in a parliamentary system, and most reserve powers are usable only in certain exceptional circumstances. In some countries, reserve powers go by another name; for instance, the reserve powers of the President of Ireland are called discretionary powers DISMISSAL o Dismissal of a Premier or a Prime Minister is rare and a major constitutional event o Gough Whitlam who was dismissed by Sir John Kerr on 11 November 1975 DISSOLUTION o Most frequent occasions on which a governor has been obliged to exercise their reserve power either to grant a dissolution or to refuse it when asked for it by the Premier o Normally these decisions occur towards the end of the parliamentary term and normally these requestes are granted o Constitution Act 1975 (Vic) ss 8, 66 o Dissolution may be sought or granted in the circumstance. Page 213 NO POWER TO TAX WITHOUT LEGISLATIVE ASSENT • Eventually established by the Bill of Right 1688 (Eng) • Section 4 of bill provides that levying of money for or to the use of the Crown, by pretense of prerogative, without grant of parliament, for longer time or in other manner than the same is or shall be granted, is illegal • By virtue of the provisions of the Constitution Act , no part of the public revenue can legally be appropriated to or used for any purpose to which it has not been appropriated by parliament AUTHORIZATION TO SPEND PUBLIC MONIES • Section 61 of the constitution confers the executive power of the Commonwealth on the Queen and is exercisable ‘by the Governor General as the Queen’s representative’ but says little about its content, though it ‘extends to the execution and maintenance of this constitution and of the laws of the commonwealth’ • S 61 does not extend to making contracts and spending money to a matter within a head of commonwealth legislative power unless there is statutory authority to do so • S 83 of the constitution, which provides ‘ no money shall be drawn from the Treasure of the Commonwealth except under appropriation made by law ‘ is no a grant of an independent head of expenditure and is not itself and exercise of executive or legislative power. WHAT IS THE EXECUTIVE? ELEMENTS AND FUNCTIONS Australian Constitution Section 61 • The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. Section 62 • There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure. • Executive are appointed people rather than elected (except for Ministers) • GG (and Governor) and Ministers forms part of Parliament and the Executive. THE CROWN • Refers to executive arm of government • ‘Crown in right of the Commonwealth’ = Commonwealth Executive • ‘Crown in right of the States’ = State Executives GOVERNORS AND THE GOVERNOR GENERAL • At its core, the Executive includes the Queen herself, and her servants and agents • Her representative in Australia federal level is the Governor-General • State level = Governor • In NT = Administrator • In practice, the GG has little autonomous power – role is ‘to question, warn and advise’ the government only • Beyond this the GG is to exercise the powers in the Constitution on the advice of the Cth Ministers (i.e. act on advice of ‘executiv e co uncil’ or Cabinet) • Section 62: There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure. • Some exceptions, Executive may exercise Reserve Power: • Powers that are necessary to protect the constitutional practices or in emergency which aren’t listed on the Constitution (ensure proper operation of the system of responsible govt) • If the GG feel that is necessary to make a decision in order to continue the function of the govt or constitution then he/ she will do so (e.g. sacking of Whitlam). • Includes appoint/ dismiss a PM, refuse to dissolve the Parliament, force dissolution, ensure the govt is acting legally • Broad and Discretionary Powers: increase in times of crisis where the community expects that the Executive is able to respond to protect that community (esp in times of natural disaster or security threats) • This existence of wide discretion and power however creates the possibility of abuse and arbitrary exercise of power. • In Aus, exercise of executive power in times of emergency is justiciable and must occur within the law (A v Hayden) • No agency of the Executive Government is beyond the rule of law. PRIME MINISTER, PREMIERS, CABINET AND MINISTERS • Ministers are at the very core of the Executive • One of the conventions of responsible government require is that the Queen and her representatives act on the advice of senior government Ministers (i.e. the Cabinet) • These include the Prime Minster at federal level or the Premier at state level • Rather than defined as the Cabinet, the Constitution refers it to the ‘Exec utiv e Co uncil’ : an out- dated body made up by of the Ministers and presided by the Queen’s representative • The Cabinet is usually made up only of the senior Ministers where important government policy decisions are made. • The embedding of the Executive in the Parliament is a defining feature of the Westminster System • However this means that actions of the executive government are done with the confidence of Parliament (since the executive govt is constituted of members from the majority in lower house, and since the members of the ruling party as a whole support the policy decisions of the PM and Cabinet, those decisions effectively have the endorsement of the popularly elected House of Parliaments.) • This embedding of the Executive in the Parliament has contributed to the executive dominance of Parliament, with only govt members having an effective voice in the lower house.  It is not a requirement for Parliamentary approval to declare war or send troops into battle as the Cabinet has that power to do so. • Enters into treaties; declares war; ‘big picture’ policy  Cabinet are ‘collectively responsible’ • Requires Ministers to accept responsibility to Parliament collectively for the decisions of the Cabinet • The fact that Cabinet can have as much discussion, disagreements and arguments when within the meeting room, however when coming out, they will all have to collectively be responsible. (Not a law but just a mere convention) • This is so that the GG does not have to pick sides as to who to follow. Being untied to support each other. • However there has been leaks in the past that show the disagreements between the party such as Malcolm Turnbull who quite often breaks solidarity to voice his opinions. THE PUBLIC SERVICE; DEPARTMENTS AND OFFICERS • Executive can include myriad officers and bodies that assist the Executive to fulfil its duties, but that fall outside the formal department system. • E.g. Department of Immigration (including the Secretary, Deputy Secretaries and Officers): looks after the application of visas from overseas, policies regarding immigration or passports • Department of Foreign Affairs • Department of Environment • As the work is too heavy for just the PM, that is why the work is delegated for the ministers and the executive council (cabinet) STATUTORY AUTHORITIES AND STATUTORY CORPORATIONS • Statutory Office Holders: under statute, looks at complaints regarding the inconsistency with human rights etc. • Agencies that are established by statue to assist the Executive in performing its functions are part of the Executive • E.g. Australian Securities and Investment Commissions (ASIC) aids in the government regulation of corporation and the administration of the Corporations Act 2001 (Cth) • Human Rights Commissioner • Ombudsman and the Auditor-General and administration tribunals – form part of the Executive but notionally operate independently because their role is to review the actions of the Executive. • Centrelink and its Social Security office supplying funds to the disadvantaged  Statutory Agencies • Migration Agents • Registration Authorities • Australian Border Force POLICE AND ARMED FORCES • Enforces fines or penalties for breaking the rules (e.g. speeding fines) WHAT DOES THE EXECUTIVE DO? a) Regulates many activities (e.g. commerce, education, medical treatment) • i. Makes law in the form of regulations and subordinate legislation • Executive overlaps the Legislature and Judiciary branches of government: generating policy that becomes legislation, making delegated legislation, interpreting and administering the laws as they apply to individuals and even exercising powers outside statue. • ii. Enforces law and regulation (e.g. police, safety, ACCC, ASIC) b) Provides services and benefits c) Conducts foreign affairs and national defence • 3.3 FROM WHERE DOES THE EXECUTIVE GAIN POWER TO DO IT? (CTH ONLY) STATUTES (PARLIAMENTARY AUTHORITY) • Two kinds of main powers that are exercised in statutory power • Legislative Power – power to be made or making firm on law to be simply apply or make further law o Ministers have used these delegated legislation to set out these guidelines as to what constitutes as a crime for offensive film o E.g. Exercising his powers under s 12 of the Classification (Publications, Films and Computer Games) Act 1995 (Cth), the Minister has made the Guidelines for the Classification of Films 2012 o Govt pays benefits to individuals such as security payments under statue o ATO processes tax returns under the taxation legislation • Administrative Power - law that applied to individual set of facts (discretionary power that the executive power enables executive to access – similar to what judges do) o E.g. The Classification Board exercises power under s 9 of the Act, and applies the guidelines to a film (“Offensive Movie”). The Board decides that, applying the guidelines, Offensive Movie should be refused classification. o e.g. a set of criteria that Centrelink needs to prove that you fulfil before giving you the benefit of youth allowance o Considered s 501 of the Migration Act  Can cancel visa, choose to refuse to – on the grounds that you are not of good character (which is definition in s ss6)  There are limits on what you can do e.g. (cii) the person’s past and present general conduct • Often Executive is delegated legislative power under statue – thus no strict separation of powers between the Executive and Parliament. • Delegated or subordinate legislation = regulations, rules, ordinances, Orders-in-Council and by- laws • Must adhere to constitutional limits THE CONSTITUTION (S 61) – THE GOVERNOR-GENERAL AND CABINET • The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. • Depth and Breadth of Executive Power • Depth: types of activities that the Executive may undertake (e.g. spending, contracting or more coercive activities such as detention and penalising individuals) o The main controversy of coercive action is the power to detain individuals. Restrictions on the depth of executive power such as this one are related to the proper separation of the powers of the three arms of govt and maintaining the responsibility of the Executive to the Parl for the exercise of particular powers. • Breadth: describe the subject matter over which executive activities may be carried out (question on breadth is essentially a fed one: concerned with which subject areas fall to the Cth Executive and which is the State Executives • Some powers set out in the Constitution: • Prorogue, dissolve and summon Parliament (s 5) • Issue writs for general election (s 32), and vacancies (s 33) • Recommend money votes (s56) • Convene joint sittings (s 57) • Assent to bills (s 58) • Appoint and remove ministers (s 64) • Command defence forces (s 68) • Appoint and remove judges (s 72) • GG also has some reserve powers: Powers necessary to protect the constitutional practices or in emergency which aren’t listed on the Constitution (ensure proper operation of the system of responsible govt) PREROGATIVE POWERS • Unwritten powers, immunities and privileges under the CL • Powers that are shared with ordinary citizens (e.g. power to own land or enter into a contract) as the CL capacities of the Crown • In Federal Commissioner Taxation v Official Liquidator, Evatt J set out some categories of prerogative powers: i) Royal or executive prerogatives, including the power to declare and wage war or make peace, enter into treaties, grant pardons and establish Royal Commissions of Inquiry (General power of the Queen/ King). ii) preferences or immunities, including immunity from prosecution, the presumption against the application of legislation, and the right to have preference as a creditor; and iii) proprietary prerogatives, including the right to precious metals, royal fish and treasure (Crown Resources). • The depth of the prerogatives is limited • While the prerogatives can be used to some extent engage in coercive activities (e.g. prosecuting a war), they cannot be used to create offences, impose taxes or dispense with statues • Due to its non-statutory nature o Thus cannot impinge on the fundamental common law rights of citizens (e.g. right to property), except with the express authorisation of statue • Prerogatives cannot be created – remains the ancient powers of the monarch o However the Prerogative Power can evolve o Parliament can make legislation that eliminate controlled prerogative powers and it ceases to exist at least while the legislation is active • Prerogative power may be controlled by Parliament – ie overridden by statute. • High Court on Prerogatives • all prerogative powers of Crown possessed by British monarch at time of making of Constitution, as capable of appn in Australia, conveyed to GG by s61 and exercisable by him/her as if s/he were a constitutional monarch: Isaacs J in Farey v Burvett (1916) • 1974 Barton v The Commonwealth: Cth's exec power permitted Govt to request Brazil to detain and extradite Bartons to Australia. • ‘we are satisfied that unless statute, either expressly or by necessary implication, has deprived the executive of part of its inherent power, it may make such requests as it considers proper for the assistance of other states in bringing fugitive offenders to justice.’ • Prerogatives may lapse due to disuse (Ruddock v Vadarlis (‘Tampa Case’)) COMMON LAW POWERS • The Crown has the same capacities as an individual or corporation. • E.g. enter into contracts, own property etc. • Hence is different: • Prerogative Power: Gives Crown the power to establish land rights (powers necessary to run a country) • CL Powers: Where Crown acts as an individual or corporation (e.g. buying/ building Eastlink – same as an individual purchasing a house) • Can the power to contract be used to bypass Parliamentary control over the executive and/or the federal distribution of powers? E.g. directly funding school chaplains. • Williams v Commonwealth (‘School Chaplains Case’) (No 1) (2012) • Executive spending must be supported by legislation. • Williams v Commonwealth (No 2) [2014] (High Court Case) • School Chaplains Program was not supported by a head of legislative power under the Constitution. • Generally unwritten laws Nationhood powers • “The Commonwealth enjoys, apart from its specific and enumerated powers, certain implied powers which stem from its existence and its character as a polity … So far it has not been suggested that the implied powers extend beyond the area of internal security and protection of the State against disaffection and subversion. But in my opinion there is to be deduced from the existence and character of the Commonwealth as a national government and from the presence of ss. 51 (xxxix.) and 61 a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation … (Victoria v Commonwealth (1975) (Mason J)) • There are some additional powers that our commonwealth parliament might have but weren’t powers of the crown at 1901 but still needs in virtue of being a sovereign entity. • Necessary to govern and function a national • Recognized that our Crown has these powers and are quite limited • Can be overwritten by legislation HOW DOES PARLIAMENT CONTROL AND OVERSEE THE ELEMENTS OF EXECUTIVE? ENACTS THE LEGISLATION THAT EMPOWERS AND REGULATES THE EXECUTIVE SCRUTINY AND DISALLOWANCE OF DELEGATED LEGISLATION PARLIAMENTARY COMMITTEES TAKE EVIDENCE FROM PUBLIC OFFICIALS (E.G. ESTIMATES, SCRUTINY) QUESTION TIME IN PARLIAMENT • Executive held to be accountable by Parliament: • Through question time, senate committees • If they refuse to answer question, through responsible government they are held accountable and should be fired. However, forcing ministers to resign has not happened in a while. • Senate Committees • Committees of the senate between 6-8-10 appointed to examine different policy areas • Generally there is one for each area • Senate estimates – 3 times a year parliament asks them about the budget, force them to answer questions, inquiries into legislation (can report to parliament) • Investigate policy areas • Contentious bills get sent to senate committee • Can travel around the country and talk to anyone they want ESTABLISHMENT OF INDEPENDENT SCRUTINY AGENCIES UNDER STATUTE (E.G. AUDITOR-GENERAL, OMBUDSMAN, INSPECTOR GENERAL OF INTELLIGENCE SERVICES, ETC.) • Executive Agencies and Offices designed to hold Executive branch to account • Australian Human Rights Commission o Investigate whether Australia is complying with international law. Executive tells the statutory body to make sure that they are complying o They set up a body to literally tell government that they are doing the wrong thing. Why? Want parliament to comply with Human Rights • Anti Corruption Body that look into whether or not authorities are taking bribes, being corrupt o Check up on other executive bodies • Ombudsmen • All of these are executive to check up on the other branches • Often called the fourth integrity • Royal Commissions • Est by Governor General (on advice of cabinet) • Usually Commissioner is a former judge, or someone else senior to give appearance of independence. o Common to set it up with a retired judicial to make it independent from the executive o Confidence in judges and putting them in charge of this body will give up confidence in the process o How well has this worked? • Why set up Royal commission for political reasons? o Political relations between groups e.g. Union and Labour – Union Royal Commission • Howard government created an royal commission to investigate itself o Why? If they don’t think they did something wrong, they might want info out o Can be used to control the power of the commission o They are given terms of reference, told what to investigate • Criticism is that they are not truly independent as they are a part of the Executive body itself. EXECUTIVE ACCOUNTABILITY a) especially the Freedom of Information Acts • The Executive’s significant powers are ‘checked’ by various accountability mechanisms: • Courts – review lawfulness of executive action (see topic 4) • Parliament – through responsible government • Executive accountability agencies/mechanisms • How does transparency aid accountability? • People can see what the government is doing and can decided whether or not to utilize these accountability mechanism • To find out if government neglects and issue, they have access to the documents used to make decision. Without them, there is nothing • What are some of the ways in which government transparency is promoted in Australia? • Freedom of Information o 3 (1) – express intent is to be able to hold parliament to account o What documents need to be private? S 11(B) Foreign affairs, defence, relationship between commonwealth and state (need to be legitimate reasons), law enforcement (not in public interest – may disclose the way police investigate the thus criminal can evade) WEEK 9 – JUDICIAL POWER NATURE OF JUDICIAL POWER • Judges play a key role in Australia’s constitutional system • They exercise considerable power  Power to review & override the decisions of the other two branches of government  ‘judicial review’ • Judges have said that only they can exercise ‘judicial power’  No other branch of government or official can  If they do, it is ‘unconstitutional’  Key aspect of separation of powers WHO CAN EXERCISE JUDICIAL POWER? • First – the Constitution (s 71) • Federal judicial power can be exercised by:  The High Court  Federal courts  State & Territory courts vested with Federal jurisdiction by Parliament • These courts are known as ‘Chapter III’ courts  The only courts that can exercise Federal judicial power • When exercising Federal jurisdiction, State & Territory courts must comply with Federal law (including the Constitution) JUDICIAL POWER DEFINED • Judicial power is essentially:  Power to decide disputes between parties  To interpret the law  Make findings of fact  To make a binding determination CONSTITUTIONAL ROLE OF COURTS • Power to resolve constitutional disputes  Interpret the Constitution  Decide disputes between different branches of the government, and between different levels of the Federation COURTS ENFORCE 적용하다 THE RULE OF LAW • Ensure that members of government and public officials comply with their legal obligations/do not exceed their powers • Individuals can bring a claim against the government if the rules have been broken • Courts have a dual role:  Holding government to account  Protecting the rights of individuals ACCOUNTABILITY OF JUDGES • How are judges held accountable?  Open courts  Media reporting  Reasons for decision  Appeal process/court hierarchy JUDICIAL INDEPENDENCE • What is judicial independence?  Judges must be free from interference by the other branches of government  Must make decisions based on the evidence and the relevant legal principles  Executive cannot influence decision eg. By removing a judge • Why is independence important?  Right to a fair trial/impartial court (judge decided cases without “fear or favour”)  Public confidence in courts  Central to rule of law/constitutionalism/democracy  Protect liberty of individual • Judges are independent of both and executive and legislature in the making of judicial decisions and in the carrying of their judicial functions: not influence the discharge of judicial function except by constitution means • Judgement of King CJ (SA)  The independence of the judiciary lies at the heart of the rule of law and hence of the administration of justice itself.  Judge in carrying out his judicial duties in making judicial decisions is subject to no other authority than law  Judiciary should be free from the control of executive government or any department of branch  General consideration render( 만들다) subjection to government control incompatible with( 와 맞지않는) necessary degree of judicial independence and public confidence in. eg: level of penalties for social issue.  Basic considerations which make a judiciary which is independent of the executive government an indispensable(없어서는 안되는) institution in a free and lawful society EVIDENCE • Interdependence from the other branches of government and freedom from unconstitutional interference with judicial functions are seen as essential to the impartial administration of justice • The best securities to the right and liberties of citizen • A key idea at the heart of rule of law • independence of judiciary is dependent upon the maintenance of system in which the removal of judicial officer from office ‘is an absolutely extraordinary occurrence’ • to be a key element in the maintenance of public confidence in the system of justice APPOINTMENT & REMOVAL  How are Federal judges appointed?  Formally appointed by the Governor-General (s 72)  On advice of government (essentially a Cabinet decision)  G-G must consult with State Attorney-Generals (High Court Act)  Appointees are usually senior barristers, or State judges  Essentially Federal judges are appointed by the Executive, with little transparency 투명  Independent of government?  One alternative is a judicial appointment committee  Used in the UK, Canada and South Africa  Commission is independent of government  Usually has power to nominate only  In the USA, president nominates candidates, Congress confirms nomination  Judicial training?  No formal training required  Judicial College of Victoria  Judges are sometimes said to be ‘out of touch’ with contemporary 현대의 social values  Federal judges must retire at age 70  ‘Statutory senility 노쇠’  Previously judges had life tenure • Judges are appointed by the executive (actually governor) • Governor general of the commonwealth in the case of justices of the high court and other federal courts created by the commonwealth parliament  Commonwealth constitution s 72(i) on the advice of the executive council  Constitution Act 1975(Vic) s 75 B(2) • Judge hold their commissions during their good behaviour  Constitution Act (Vic) 1975 s77(1) • In order to be eligible to be appointed, they must have been a barrister or solicitor of the local supreme court for a minimum period which varies between five years to 10 years  Constitution Act (Vic) 1975 s75B(1) – 8years  Supreme court Act 1933 (Cth) s 4 (2)(a)(ii)  High court of Australia Act 1979 (Cth) s 7 (b) REMOVAL  Federal judges can be removed only by the process set out in the Constitution (s 72)  One ground – proved misbehaviour or incapacity  Motion passed by both house of parliament  Judge has a right to be heard  Judges salary cannot be reduced during their term of office (s 72)  Judges cannot be sued for acts done in their judicial capacity (absolute privilege) RETIREMENT • Originally judge held office for life • But now, must retire upon reaching the mandatory retirement age • 70 years of old  Constitution Act 1975(Vic) s77(3), (4)(b)-(c)  Unless judge of purpose of s 77(3A) where it is 72 years s 77(4)(d))  Commonwealth constitution s 72- constitution amendment 1977 • If a judge should sit beyond the mandatory retiring age? Whether his or her decision were legally valid  Parliament to intervene in order to clarify that the decisions in question are legally valid notwithstanding that the judge heard and decided matters after the retirement date  Applied ‘de facto officer doctrine’ is treated as legal officer in which case their decisions will be upheld up to the point where their right to hold office is challenged. SUSPENSION 정지 • Onslow was appointed chief justice on 23 December 1882 but illness delayed him from taking his seat until July 1883. His relations with Governor Broome seem to have begun amicably; Broome, applying for leave in 1884, thought that he would 'do well to administer', adding 'he is a thorough gentleman and a nice fellow' though 'his temper and judgment are perhaps not quite perfect'. But in Broome's absence Onslow, yielding to pressure from A. P. Hensman, showed him and John Forrest a letter addressed to Broome by Lee Steere complaining of their conduct. Onslow seems to have sensed the unfairness of Broome's action in disclosing the letter to all other members of the Executive Council; moreover, the letter was thought to have been procured by Broome as a tactical move in the conflict between him and the Forrest group. But the letter was marked 'Confidential', and Broome was incensed by its disclosure, which he described as 'a hanging matter'. He determined that Onslow should not again administer the government and appointed Malcolm Fraser administrator during an absence in 1885; this was a particular affront to Onslow's pride. • Conflict arose next over Broome's requests for Onslow's advice as chief justice on appeals for remission of sentences handed down by the court. Onslow appears to have taken a narrow but proper view of a Colonial Office instruction on this subject and in some instances to have returned the papers with the governor's proposals without comment. But Broome appears to have wanted more, because he sought either guidance or to bend Onslow to his will. On the issue of practice the Colonial Office upheld Onslow. Unfortunately he had been indiscreet first in detaining some papers pending a reply from the Colonial Office despite Broome's request for their return, and then in ventilating the whole matter in letters to the press, which among other things disclosed the contents of a confidential Colonial Office dispatch. Broome used this as an excuse to interdict Onslow from the exercise of his office on 14 September 1887. The action provoked protest from the colony's anti-government forces, for whom Onslow provided a rallying point. At least twice the governor was burnt in effigy. The Colonial Office chided Onslow for disclosing confidential information but was unwilling to confirm the interdict and recommended removal of the suspension imposed by the Executive Council in December 1887. Amid great rejoicing Onslow returned to his seat on the bench in May 1888. DISMISSAL • General rule is that a supreme court judge cannot be, dismissed or a moved by the governor except:  Federal Court of Australia Act 1976(Cth) s6(1)(b)  Federal Magistrates Act 1999(Cth) s 9 • Specific grounds that have to be proved before a removal may take place  They are proved misbehavior or incapacity Commonwealth Constitution s 72(ii) • Three jurisdictions including the removal of judges  Court Legislation amendment (Judicial Complaint) Act 2012(Cth)  Judicial Commissions Act 1994 (ACT)  Judicial Officers Act 1986 (NSW) • No grounds are stated technically removed for any ground  Constitutions Act(Vic) s 77(1)  But in practice, misbehavior must be proved • A parliamentary commission(위원회) to report on allegation of judicial misbehaviour. Judicial Misbehaviour and Incapacity (Parliamentary Commissions)Act 2012 (Cth) • Private individual cannot move a court to compel the legislature to initiate the process of a motion for that would be an interference with the privileges of parliament • The subject of the inquiry had a legal right at common law if not by statute(Judicial Misbehaviour and Incapacity Act 2012 (Cth) s 20) to be heard in their own defence before they are removed • All jurisdictions, even hose where no grounds for removal are state in the relevant legislation, there are only two grounds, either or both of which must be proved.  Misbehavior: wired meaning. Not defined in Judicial office but include criminal or non-criminal conduct  Incapacity: Physical, mental incapacity. o Not faulty ground o Ex) he was persistently late or had delayed unacceptably on writing of judgement due to the depression. • Must be passed by both House in case of a bicameral legislature and must be forwarded to the Governor or Governor-General who then would formally revoke the commission of the judge concerned ABOLITION 폐지 OF OFFICE • The legislature may abolish a judicial office in the States and has done. • In NSW dispute: under the existing law in that state the holder of a judicial office that is abolished in entitled without loss of remuneration to an equivalent judicial office (constitution Act 1902(NSW) s 56, but NSW today, constitution act 1902 (NSW) Pt9 provides for the judiciary including removal from office (s 53) and the abolition of judicial office (s 56). BIAS  A judge must not hear a matter if they cannot bring an ‘impartial 편견이 없는 mind’ to the matter  Direct financial interest in outcome  Predetermination/perception of bias  Eg. Subject matter of case, or connection to a party  Exception – necessity (no other judge available)  Royal Commissioner Deyson Heydon and claims of apprehended bias  http://theconversation.com/explainer-dyson-heydon-and-claims-of-apprehended-bias-46202 JUDICIAL BIAS • Required their oath of office to be impartial or unbiased in a legal sense. It will be seen from these obligations that a judge must make his or her decisions according to the law and evidence in the aces before them and not in accordance with other matters extraneous to the hearing itself. • The rule against bias exists to protect the integrity of the judicial process and to preserve public faith in the processes of the court • The rule opposes two main forms of bias  First, biases by reason of a direct financial interest in the outcome of the case, no matter how small.  Second, bias by pre-determination where the judge has either a connection with one of the parties or with the subject matter of the case that my create in the minds of reasonable bystander the appearance of bias • Judges cannot be challenged for bias merely on account of their gender, religion. • Exceptions to the doctrine  Where the matters involve a rate or a tax in which they may themselves be interested as a taxpayer or ratepayer  If all possible judges were somehow biased in a legal sense the case may nevertheless process, otherwise the case could not be heard at all. JUDICIAL REVIEW • Judicial review is the power of courts to review decisions & actions of the other branches of government:  Legislature: acts of parliament (State & Cth)  Executive: administrative decisions & actions • Power to declare these actions & decisions invalid/unconstitutional • What is the source of this power?  ‘superior courts’ such as State Supreme courts, have ‘inherent’ power of review  High Court has no express power of judicial review  Has limited express power to issue certain ‘writs’ against Cth officials in s 75 of the Constitution  Power of judicial review is implied/assumed BACKGROUND  UK courts have no power of judicial review  Origin of notions of parliamentary supremacy 주권  No act of parliament can be declared unconstitutional by the courts  Remember that the UK has:  Unitary 통일된 system  No ‘written constitution’  Principle of judicial review developed in the USA  Supreme Court decision of Marbury v Madison (1803)  Marshall CJ: “Duty of the courts to say what the law is.”  Ie. Normal role of courts to interpret the law & to determine disputes between parties  Constitution is law – ‘higher law’ or supreme law  Constitution must be interpreted & enforced  By whom?  US Supreme Court assumed this role to itself  Court saw this as an aspect of the rule of law, and part of the system of check & balances ROLE OF COURTS • Limits on the power of courts:  Judges cannot initiate 시작하다 a case- they can only decide cases brought before the court  Courts cannot give ‘advisory 조언적인 opinions’ – they can only determine issues raised by an actual dispute • Judges cannot make (new) law  This is the role of parliament • Judges can only interpret the law  Although this can be creative at times • Judges cannot amend the Constitution  This the role of Parliament & the voters under the Constitution (s 128) LEGALITY 법적 의무/MERITS • Judges (say they) only determine the legality of the acts & decisions of government  They don’t determine the merits/wisdom 현명함/fairness  Parliament determines policy  Parliament reflects the ‘will of the people’ • This is an aspect of the separation of powers  Courts are not elected & not accountable (in the same way as parliament)  Courts not well placed to decide issues of policy ROLE OF HIGH COURT • Australian High Court is based on the model of the US Supreme Court  Even named ‘Supreme Court’ in the Constitution • Several similar features:  Consists of a bench of judges  Constitutional court & an appeals court • Benches of judges are common to national high courts • Like a sports team – combination of continuity & change, individualism and collectivist approach • High Court consists of seven judges (including the Chief Justice) • http://www.hcourt.gov.au/justices/about-the-justices • Bench of seven justices hears most constitutional cases • Majority verdict 평결 prevails 능가[압도]하다 • High Court’s jurisdiction is set out in Chapter III • It has original and appellate jurisdiction • High Court’s original jurisdiction is set out in s 75 – any matter  arising under any treaty  between States  Where a public law remedy is sought against an officer of the Commonwealth • This provision has entrenched a certain (limited) right to judicial review in the Constitution • Parliament often tries to prevent courts from reviewing certain decisions made by government  Particularly regarding refugee/migration issues  Parliament tries to make these decisions final/unreviewable • High Court has held that s 75(v) cannot be ousted 빼앗다 by an act of Parliament • Plaintiff s157/2002 v Commonwealth (2003, High Court) • Certain types of errors – jurisdictional errors – could always be reviewed by the High Court  Parliament cannot exclude review JUDICIAL ACTIVISM • Judicial activism is a pejorative 가치를 떨어뜨리는 term – has no agreed meaning • Suggests that a judge or court has exceeded it proper role & powers  not complied with the law, or ignored accepted limits on judicial power • Said to be a danger to the rule of law, & the legitimacy of the courts • Sometimes a criticism of a particular result, or a particular technique/approach • Allegation 주장 that a decision is not based on ‘law’, but on policy, or a judge’s values or judge’s values or opinion • Common description of the:  Mason court (89-95) - Mabo (92)  Brennan court (95-98) – Lange (97) • Opposite of judicial activism is judicial restraint  The only proper & legitimate way to decide cases  “strict legalism” – Owen Dixon • Dixon said that judges had to be uninfluenced by personal values, political beliefs or other ‘external factors’ • This is known as ‘formalism 형식주의’- judges do not mention any policy consideration  Only ‘law’ is considered relevant • Dixon advocated a literalist approach  Looking only at the words of the enactment  Not at the context or the policy • Modern approach is a purposive approach  What purpose is intended by Parliament  Adopting an interpretation that furthers that purpose • Judges are also limited by precedent  Previous decisions on the same issue must be followed  This is said to limit judge’s options (cannot make arbitrary decisions)  But precedents may be ambiguous, outdated or unfair  Doctrine of precedent is suited to sheep? (Murphy J) JUDICIAL SELF – RESTRAINT • Judges should lead relatively cloistered lives and in particular should refrain from becoming involved in ordinary political controversies. • Judges do speak about general legal issues including the status of their court, legal service generally and relations between judges and the attorney general. • No one suggested that judiciary should desist from discussing these matter  First is that there is a danger that the matter might develop into a legal controversy and come before their court. Risk that a strong view on the matter might create the impression that the judge has made up his or her mind in advance  Second reason for restrain is that statements on politically sensitive matters usually provoke a strong political reaction from pelicans, thereby drawing the judges into public controversy. • Judges’ decisions are often attached either by members if the public or by politicians. • A common practice consensus is that they should abstain 절제하다 from public comment generally and especially from intervening in public affairs unrelated to judicial matters SEPARATION OF POWERS • Separation of powers at Federal level has two aspects  Boilermaker’s case 5. Only courts can exercise ‘judicial power’  No other branch or public official can exercise this power 6. Judges/courts can only exercise judicial power  Cannot exercise any other powers • First aspect - Only courts can exercise judicial power • Any legislation which seeks to vest judicial power in a ‘non-court’ is invalid • Parliament cannot confer judicial power on executive bodies or public officials • This principle establishes some de facto protection of individual rights under Federal law • Courts protect individual rights by giving themselves exclusive power to decide certain matters • Protection depends on how courts define ‘judicial power’ • For example, is migration detention (by the executive) valid under separation of powers?  Person detained 구류[유치]하다 without court order  Looks like punishment for a crime- without any finding of guilt • High Court has held that ordering detention of persons arriving by boat does not involve the exercise of judicial power  This is administrative detention  Not punitive 처벌[형벌]을 위한 detention • This power can be exercised by the executive SECOND ASPECT  Second aspect – judges can only exercise judicial power  Judges cannot exercise executive power  Judges must be independent of the executive  However, judges commonly exercise many ‘non-judicial’ functions  Eg. Royal Commissions, issuing warrants 허가 authorising arrest, search & seizure, etc  Investigating certain issues and reporting to government  Separation of powers provides that judges can exercise certain non-judicial powers, provided:  They exercise the function in their personal capacity (not in their capacity as a judge); &  The function is not incompatible with their judicial role  Ie. It does not impair 을 나쁘게 하다 public confidence in the courts by the function being essentially a governmental one STATUE COURT • Separation of powers does not apply in the same way at State & Territory level • Separation of powers is based on the three chapters in the Constitution  This does not exist at State & Territory level • However, the High Court has said that Separation of powers exists in a modified form at State & Territory level • There are limits on the non-judicial functions which State & Territory Supreme courts can exercise • But not as strict as Separation of powers at Federal level • Why does Separation of powers exist at all at State & Territory level?  Nothing in State & Territory constitutions requiring this • Because State & Territory courts also exercise Federal judicial power  Integrated court system • Because Separation of powers applies to the exercise of Federal judicial power, it also applies to State & Territory courts  They are ‘repositories’ of Federal judicial power • This is known as the ‘Kable’ doctrine • Kable v DPP (1996, High Court) • NSW legislation – Community Protection Act 1994 • Purpose – to keep Kable detained after his prison sentence had been served • Not a criminal prosecution – simply determination whether Kable ‘likely’ to offend in the future • (Kable Doctrine – See Pg 16) • High Court determined that this Act was invalid • Exercising this function was incompatible with the exercise of Federal judicial power • Courts were simply being asked to rubberstamp the decision of the government to detain Kable • Impaired public confidence in the courts, as it appeared that court was not independent of government • Kable principle has been raised in many subsequent cases involving draconian State laws • Eg. Anti-bikie laws in South Australia • Reliance on Kable principle has generally been unsuccessful, except for rare occasions of clear over-reach by parliament RECAP • Federal judicial power can only be exercised by ‘Chapter III’ courts • Judicial power is the power to determine disputes & extends to review of government decisions • Judges can only interpret law – not make it • Judges must be independent of government • Judges are accountable through various means • Kable principle has been raised in many subsequent cases involving draconian State laws • Eg. Anti-bikie laws in South Australia • Reliance on Kable principle has generally been unsuccessful, except for rare occasions of clear over-reach by parliament • Federal judicial power can only be exercised by ‘Chapter III’ courts • Judicial power is the power to determine disputes & extends to review of government decisions • Judges can only interpret law – not make it • Judges must be independent of government • Judges are accountable through various means SUMMARY OF WEEK 9 • Federal judicial power can only be exercised by ‘Chapter III’ courts • Judicial power is the power to determine disputes & extends to review of government decisions • Judges can only interpret law – not make it • Judges must be independent of government • Judges are accountable through various means Book summary • Constitution mentioned about independence of Judiciary  Commonwealth constitution s 72(ii)  Constitution Act 1902(NSW) s 53  Constitution Act 1975 (Vic) Pt III. ORIGINS • Book page 224 – 230 • During the middle ages, under the Norman monarchy of the Kingdom of England, the king and his Curia Regis held judicial power. Judicial independence began to emerge during the early modern period; more courts were created and a judicial profession grew. By the fifteenth century, the king's role in this feature of government became small. Nevertheless, kings could still influence courts and dismiss judges. The Stuart dynasty used this power frequently in order to overpower the Parliament of England. After the Stuarts were removed in the Glorious Revolution of 1688, some advocated guarding against royal manipulation of the judiciary. King William III approved the Act of Settlement 1701, which established tenure for judges unless Parliament removed them. STATUE • Judicial officer is not an employee of the Crown nor is a judge a servant of the Crown • Judges occupy a statutory public office endowed with an independent discretion • They are paid and they are subject to carious terms and conditions of office, the law had generally sought to insulate these terms and conditions from executive interference and by constitutional practice from legislative interference also SALARIES AND CONDITIONS • Cannot be independence from other branch particularly for the money as parliament vote for that. So matter for the budgetary process in the hands of the executive in parliament • Salary of a Supreme Court judge may be increased during their tenure but not be reduced below that when they were first appointed - Constitution Act(Vic) 1975 ss77(2), 82 (6B) unless their consent. • Majority held that under the legislation such judges held their office during ability and good behavior and that the Act specified a minimum salary -> not the way to deal with misbehavior on the part of the judges – the only way is remove them • The protection of the state judiciary and their pensions means that the commonwealth cannot legislate in taxation matters in such a way that it impairs that state’ relationship with their judges IMMUNITY 면제되기 • Judges is not liable법적 의무가 있는 to be sued in respect of acts done in the performance of judicial duties in order to make their decisions in fearless fashion uninfluenced by concerns about reaction of the parties. • In 2002, Fingleton emailed a fellow Magistrate, Basil Gribbin, threatening to have him dismissed from the senior position of Co-ordinating Magistrate, whilst retaining his position as Magistrate, because he had supported a colleague in a workplace dispute against her.[3] Before sending the email, Fingleton obtained legal advice from her solicitor, David Searle. Fingleton viewed Gribbin's action as evidence he had no faith in her role as Chief Magistrate, perceiving his behaviour to be openly provocative and disloyal. Gribbin took legal action against her and this resulted in her being charged and imprisoned for retaliation against a witness, a criminal offence under the Queensland Crimes Act Fingleton appealed, and the Queensland Supreme Court appeal upheld her conviction but halved her jail sentence. • Fingleton, refusing to accept the decision of the Queensland judicial system, sought special leave to take her case to the High Court of Australia.[3] On 8 October, the day before the 2004 federal election, Justices McHugh and Gummow granted her special leave to appeal.[3] The decision to grant leave was made 73 minutes into the hearing • The following year, in 2005, the High Court unanimously allowed the appeal and quashed Fingleton's conviction. Their reasoning was that Fingleton in fact had immunity from criminal prosecution under the Queensland Magistrates Court Act for anything done in the course of her judicial or her administrative functions. Justice Kirby described what happened to Fingleton as "indelible "Justice McHugh wrote that:  It would be hard to imagine a stronger case of a miscarriage of justice in the particular circumstances of the case. There is not only a question of conviction and a jail sentence, but the applicant has lost one of the most important offices in the state of Queensland. • Professor Rosemary Hunter, a supporter of Diane Fingleton and former Dean of the Griffith law school, has argued that Fingleton's case has raised a range of issues around party politics, gender politics and office politics. 4.1 What/who is the judiciary and where do its powers come from? “CHAPTER III COURTS” • A Chapter III court: • is a federal court created by or under Chapter III of the Constitution? • complies with the requirements of Chapter III (e.g. as to tenure: s 72) • Chapter III courts include: • the High Court (Jurisdictions: s 73, s 75, s 76) • “such other federal courts as the Parliament creates” (e.g. the Federal Court of Australia) (Federal Jurisdictions – s 71) • provided always that those courts comply with s 72 etc. o Appointment and Remuneration of Federal Judges FEDERAL COURTS • High Court of Australia • Created and vested with jurisdiction by: Constitution ch III • Federal Court of Australia • Federal Court of Australia Act 1976 (Cth) s 5 • Federal Circuit Court • Federal Circuit Court of Australia Act 1999 (Cth) ss 3, 4, 8 • Family Court of Australia • Family Law Act 1975 (Cth) s 21 • Federal Courts • The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes. (Constitution, s 71) • Federal Courts: Appointment and Tenure • Constitution, s 72 • The justices of the High Court and of the other courts created by the Parliament: (iv) shall be appointed by the Governor-General in Council; (v) shall not be removed except by the Governor-General in Council, on address from both Houses of Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity; (vi) shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office. • The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age. • Subject to this section, the maximum age for Justices of any court created by the Parliament is seventy years. • Judges / Federal Court not constitutionally entrenched. Legislation can override it. • USA v Aus Judge: In USA, judges tend to be appointed on if they share the same views as their appointers whereas in Australia then the judges are appointed based on merit. GG/ Parliament appoints the judges. STATE COURTS • Established prior to federation (therefore doesn’t owe its existence to the Constitution like Federal Courts) • Each state has its own hierarchy of courts • Constitution s 71 • The judicial power of the Commonwealth shall be vested... in such other courts as it [Parliament] invests with federal jurisdiction • Constitution s 77 • With respect to any of the matters mentioned in the last two sections the Parliament may make laws… (iii) Investing any court of a State with federal jurisdiction. o State Courts exist and vest some measure of federal power CONSTITUTION S 73 • The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgements, decrees, orders, and sentences— (ii) Of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council TERRITORY COURTS CONSTITUTION S 122 • The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit • Commonwealth parliament may make laws for any territories (including new ones) – hence under this provision, both ACT and NT were made laws by the federal. • Even though ACT owns its existence to the federal structure, once it is given power, that power is recognised within its own restriction (ACT law rather than Cth) • Don’t have to comply with the s 72, they’re not federal courts but are territory courts 4.2 The Separation of the Judicial Power: the Boilermakers Principles PRINCIPLE 1: THE JUDICIAL POWER OF THE COMMONWEALTH MAY ONLY BE EXERCISED BY CH III COURTS NSW v Commonwealth (1915) (the ‘Wheat Case’): • the provisions of sec. 71 are complete and exclusive, and there cannot be a third class of Courts which are neither federal Courts nor State Courts invested with federal jurisdiction • Why couldn’t the Inter State Commission be invested with federal judicial powers? • Interstate Commission who’s role was to determine trade issues. Set up under legislation. Declare legislation void etc. (powers typically exercised by courts) o S 71 is expressed in a way that is express and conclusive (thus federal judicial power cannot be invested in Inner State Commission) PRINCIPLE 2: CH III COURTS MAY ONLY EXERCISE FEDERAL JUDICIAL POWER R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) (‘Boilermakers’ Case’) • What powers did the Conciliation and Arbitration Act purport to confer on the Court of Conciliation and Arbitration? o Arbitration Act: looks at agreements with industrial relations and industrial disputes between employee and employer. Employee awards, regulations with employee awards (Executive Power). o Also enforces its own decisions and could apply penalties to those in breach (Judiciary Power) • On what basis did the Boilermakers’ Society challenge the validity of the Act? o Boilermakers Society didn’t like a decision of the body made by the arbitration court. Argued that it was a mix between executive and judiciary power which was in breach of separation of powers (permissible of the criteria of s 72 therefore shouldn’t be able to administer other different powers – i.e. executive power) • The majority of the High Court held that Ch III courts are prevented from exercising non-judicial functions, unless those functions are supplementary or related to judicial functions. What was the basis of their reasoning? o Majority maintains a separation of power in government – only judicial power that is related to federal courts can be strictly conferred to the federal courts (separates judicial power from the other branches) – independence conferred in s 72 o Court based it on the language/ structure of the constitution  Our constitution is structured based on the different powers in the different chapters, additionally with chap 3 the judicial power it confers with which body can exercise but does not include this body  Courts can only exercise their own judicial power and cannot exercise other powers with exception EXCEPTIONS iv) Houses of Parliament may punish for contempt of Parliament • Powers of parliament can exercise on their own conditions and punish on contempt (which is judicial power) v) Military tribunals may enforce military discipline • If military personnel don’t comply with chap 3 judicial power (i.e. federal crimes), then they cannot hear it as an ordinary criminal law/ offence. They will then see it as a military offence. If it is a normal crime, they must hear it in a federal court rather than military tribunal. vi) The persona designata exception: • Judges can exercise non-judicial functions in the normal capacity unless it interferes with their ability to act as a judge (e.g. if they are appointed to a different jurisdictions – you can appoint a judge to a royal commissioner but not to a minister). • It cannot interfere with the public’s confidence in the judge’s independence and position/ function. WHAT ABOUT STATE SUPREME COURTS? THE “KABLE DOCTRINE” • State supreme courts existed before the Constitution did. • And “while there is a strong textual and structural basis for the separation of powers in the Commonwealth Constitution, the same is not true of the State constitutions”: Blackshield & Williams Australian Constitutional Law & Theory (2014) BUT • State supreme courts can and do exercise federal judicial power. (s 71) • And State courts form part of the system of courts established by the Constitution. (s 73) • Therefore, in Kable v Director of Public Prosecutions (NSW) (1996), the High Court held that while the separation of powers does not apply at the state level as strictly as at the federal level, State supreme courts: • Cannot exercise powers that would diminish their integrity (fair, independent and arbitrary); and • Cannot be deprived of their essential and defining characteristics. • Kable: where legislation only applied to this one man who was convicted of manslaughter to his wife to keep him in prison (as he was about to be let out) • Court held that these were incompatible with the state courts and its state judicial power (punish someone only for a criminal offence that they have committed). • This case would involve detention based on a suspicion that a person may commit a serious offence therefore is incompatible with the independence and arbitrary nature of a judicial function. • If this legislation went though, this would not be fair and just and which is asking the court to act in a way that is not judicial (which is the only main function that a state court must act with). • Interferes with the integrity and impartiality of the NSW Supreme Court and of the confidence of the public that will have on the Court as well as its future function and role as a judiciary court. 4.3 What is ‘judicial p ow er’? DEFINING JUDICIAL POWER • Huddart, Parker & Co Pty Ltd v Moorehead (1909) (Griffith CJ): • I am of the opinion that the words “judicial power” as used in s 71 of the Constitution mean the power which every sovereign must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has the power to give binding and authoritative decision (whether subject to appeal or not) is called upon to take action. • Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ): • The function of the federal judicial branch is the quelling of justiciable controversies, whether between citizens (individual or corporate), between citizens and executive government (in civil and criminal matters) and between the various polities in the federation. This is discharged by ascertainment of facts, application of legal criteria and the exercise, where appropriate, of judicial discretion. The result is promulgated in public and implemented by binding orders INDICIA/CHARACTERISTICS OF JUDICIAL POWER These definitions suggest that there are a number of indicia or characteristics of judicial power: i) There must be a ‘controversy’ between parties • Needs to be a action or an issue, causation of a problem • Needs to be parties (people asking from both sides that will be affected by the outcomes) • High Court cannot advise the parties on the issues (Australian federal courts cannot be asked to judiciary hypothetical cases because they are not controversy cases) • Nothing on chapter 3 to allow the parliaments and courts to hear cases where no parties are involved (not controversial case) • In Re Judiciary and Navigation Acts (1921). The Parliament cannot: • authorise this court to make a declaration of the law divorced from any attempt to administer that law…[W]e can find nothing in Chapter III of the Constitution to lend colour to the view that Parliament can confer power or jurisdiction upon the High Court to determine abstract questions of law without the right or duty of anybody or person being involved. ii) The exercise of judicial power resolves existing legal rights and duties • According to historic analysis, the essence of the distinction between legislative power and judicial power is that the legislature makes new law which becomes binding (sovereignty) on all persons over whom the legislature exercises legislative power: the judicature applies already existing law in the resolution of disputes between particular parties; and judges may not deviate from this duty. • R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) (Windeyer J). • However this distinction of power is not as practical as it may apply (e.g. new laws can be made in judicial/ courts through precedents and appeals and principle cases) iii) Historical considerations • The power to restrict or interfere with a person's liberty on the basis of what that person might do in the future, rather than on the basis of a judicial determination of what the person has done, …, is in truth a power that has been, and is, exercised by courts in a variety of circumstances. … • Two familiar examples of the judicial exercise of power to create new rights and obligations which may restrict a person's liberty are bail, and apprehended violence orders. • The restraints imposed on the plaintiff by the order made against him are similar to conditions commonly found in a bail order. • Apprehended violence orders have many of the characteristics of control orders, including the fact they may restrain conduct that is not in itself unlawful. For example, an apprehended violence order may forbid a person to approach another person, or to attend a certain place. As a matter of history, apprehended violence orders have their origin in the ancient power of justices and judges to bind persons over to keep the peace. • Thomas v Mowbray (2007) (Gleeson CJ) • Judges will look at power conferred previously by court. • Looking at new power exercise in that it must be consistent and aligned with previous power by previous courts and judges. iv) The court must be able to resolve the dispute (controversy) by applying legal standards • R v Spicer; Ex parte Australian Builders’ Labourers’ Federation (1957) • Conciliation and Arbitration Act (Cth) s 140: (b) The Court may, upon its own motion or upon application made under this section, disallow any rule of an organization which, in the opinion of the Court: … (c) is tyrannical or oppressive; • Dixon CJ found that these criteria are ‘vague and general and give much more the impression of an attempt to afford some guidance in the exercise of what one may call an industrial discretion than to provide a legal standard governing a judicial decision’. [9]. • Held Those words don’t involve the application of legal standards (as it is inconsistent with legal standards and reasoning’s but are more consistent with political and opinion based. More industrial standards rather than judicial and legal standards which should be applied. • S 140 was amended to empower the Industrial Court to prohibit rules that are ‘oppressive, unreasonable or unjust’. • Less emotive than ‘tyrannical or oppressive’ however still a subjective view • Shows some sort of definiteness v) Judicial power is the power to make binding, enforceable decisions • Brandy v Human Rights and Equal Opportunity Commission (1995) • made a finding under the race discrimination act that it can’t conduct the orders of the federal court. Thereby it registers itself with the federal court or judiciary so they can thereby have that enforceable and binding power. • HREOC is only an administering body therefore don’t meet the criteria of the court and thus do not have the binding enforceable power. • The effect of this scheme to register themselves with the federal court gives them the power to make binding and enforceable decisions. (as executive body does not have that power as judiciary – separation of power) • Cannot breach separation of power thus has to register themselves with the Fed Court (giving HREOC judicial power) (shows how strict the judicial power must be abided by) INHERENTLY JUDICIAL POWERS Certain powers are seen as inherently judicial in nature i) Deciding authoritatively and conclusively whether someone is guilty of a crime a. There are some functions which, by reason of their nature or because of historical considerations, have become established as incontrovertibly and exclusively judicial in their character. On – and the most important – of such functions is the adjudgment of guilt of a person accused of a criminal offence (608). b. …the Constitution’s intent and meaning were that judicial power would be exercised by those courts acting as courts with all that the notion essentially requires. Accordingly, the Parliament cannot, consistently with Ch III of the Constitution, usurp the judicial power of the Commonwealth by itself purporting to exercise judicial power in the form of legislation. Nor can it infringe the vesting of that judicial power in the judicature by requiring that it be exercised in a manner which is inconsistent with the essential requirements of a court or with the nature of judicial power. (607) - Polyukhovich v Commonwealth (1991) (Deane J) i. If there is criminal crime, only courts can decide whether if they have breach and then decide on the penalty ii. Argument (unsuccessful) that a statute attempted to (Bill of Attainder – declares someone guilty of a crime)  Only courts can decide this • Polyukhovich v Commonwealth (1991) (Deane J) • What did the 1988 amendments to the War Crimes Act 1945 (Cth) purport to do? a. Involved war crime in WWII, it was amended in 1988 which extended the operation and declare that crimes committed in WWII were war crimes. Note that at the time, certain crimes were not crimes in that country at the time. P was charged under this amendments (Ukrain) challenged the validity of this act and the amendments. • On what basis did Polyukhovich argue that these provisions were invalid? a. Argument was that – involves parliament judging his guilty and not the court (he didn’t succeed) b. Act of retrospective alone – when parliament enacted these it had in its sight people who committed this time (aiming for them) c. Not crimes at the time and not covered by Australia law at the time. d. Parliament knew that they committed it and made the decisions to extend to them to catch them e. Didn’t work because it didn’t apply to one person (unlike Kable)  There is nothing in the constitution that prohibits it being made  Its retrospective but doesn’t take power away from court to determine guilt • Why did Deane J find that the provisions involved legislative usurpation of judicial power? a. MINORITY! Dean dissented because parliament deliberately made the legislation at the people b. Thought that it breached the rule of law c. For courts to decide if you are guilty, it needs to be a crime when you committed it d. They would form a fundamental part of criminal law – prospective as opposed to retrospective • Note that Deane J was dissenting from the majority. Can you think of any arguments why the majority might have found that the legislation did not usurp judicial power? a. Exceptions? When can you lock people up? Remand – they are incidental to the exercise of the other power. They are no judgement of criminal guilty e.g. dentation of asylum seekers, incidental to the process not a penalty ii) Deciding authoritatively and conclusively whether a statute or executive decision is constitutionally valid • It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. (Marbury v Madison (1803)) • Sir Owen Dixon has said that it was ‘obvious’ that the framers of our Constitution intended to import this principle. • To interpret constitution and say if stuff done under it is constitutionally valid (saying if Cth/state legislation is valid) • Section 76 (Constitution) that give parliament power to confer on the court the jurisdiction over any matter. s 75 is what the power are. • Australian Communist Party v The Commonwealth (1951) • Communist Party Dissolution Act 1950 (Cth) purported to dissolve the Australian Communist Party, control its property and prohibit association with and membership of the Party. • What was the basis of the government’s argument that the Act was a valid law? o Scope of Parliament power allowed them to decide what ‘defence’ power was • Why did the court decide the Act was not valid? o Only courts get to say what the constitution means and what the defence means. o If parliament could define the words in the constitution and power within the constitution then it could refine the scope of the power and be above the law (rule of law broken) o It is the court that get to decide what these words are – parliament do not get to define what defence is or what is supported by defence (must be someone other than the parliament body that gets to define parliaments powers) o Court is the best to decide what these words mean – as they are separate from Parliament and the Executive • What did Fullagar J mean when he said ‘the stream cannot rise above its source’? o Parliament cannot simply define the scope of its own power o Cannot recite itself into power by defining the scope of its own authority o If they could, they would be above the law – if they could define words in the constitution then it would involve redefining scope of power o Since the constitution is the source of the federal power, it cannot rise above it iii) Interpreting legislation authoritatively and conclusively • Courts are the final arbiters of the law—Constitutional, common law and statute. • 1 determine what the powers parliament can make under the constitution and • 2: interpret the constitution. • Parliaments cannot interfere with the way courts perform this role. • This was one of the many issues considered in • Courts get to interpret legislative with authority and conclusively but not make legislation • Courts Expected to look at the legislation that is compatible with Charter of Human Rights (s 32). • Majority found that Milosevic should not go out of its way too much to look at it the human rights (not go through the legislative process). • Courts should just interpret the legislation as it is, not make new legislations and laws by going out of its way so much through a legislative process in order to make new laws. • Relevant provisions of the Charter of Human Rights and Responsibilities 2006 (Vic) provide: o Rights are subject only to such limits as can be demonstrably justified in a free and democratic society (s 7) o Legislation must be interpreted, so far as is possible, in a way that is compatible with rights (s 32) o If legislation cannot be interpreted consistently with rights, then the Supreme Court is empowered to make a declaration of inconsistent interpretation (s 36). • Why did Heydon J find that ss 7 and 32 were invalid? • Some judges also found that s 36 was invalid. Why? o s. 36 is asking law to argue with no effect (thereby is hypothetical risk) thereby federal court cant exercise or confer • How would the analysis have been different if the Charter was federal legislation? o Section 7, right in the charter are subject to whatever limits but when courts determine a case and a legislation breaches the rights, they cannot declare it invalid o It has two functions (1) interpret legislation in a way that is compatible to right (required under section 32) and if cannot do this then (2) empower to make a declaration of inconsistent compatibility (s 36) o Section 32 combined with s 7 – power to decide if legislation imposes a legislation a justifiable limit and then this power iv) Deciding authoritatively and conclusively whether an administrative decision maker has acted within the limits of his or her powers • Constitution, s 75(v) • In all matters in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth the High Court shall have original jurisdiction • s 75(v) has been held to entrench the jurisdiction of the High Court to review the lawfulness of actions of officers in the executive branch of government (as well as federal judges) • If courts are interpreting a certain Act, then all the power that is conferred by the Parliament/ Executive branch in making the Act rests on courts (the legal limits delegated by that law – e.g. define what the words mean) • Provides a check for arbitrary power. Also is a power that can’t be taken away from state courts • When power is conferred, courts decide if they have exceeded the legal limits • Attorney-General (NSW) v Quin (1990) • On the legitimacy of judicial review of administrative action: o The essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government • The role of the courts in judicial review: o The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of th e rep o sitory’ s p o wer . • The limits of the Court’s authority: o The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. o If judicial review were to trespass on the merits of the exercise of administrative power, it would put its own legitimacy at risk. o They cannot look at the merits o Cannot argue that decision is unjust, unfair or incompatible with human rights o Federal court can exercise administrative power unless it is incidental o All you can do is look at the power and that it is incorrectly used THOMAS V MOWBRAY (2007) • What were the facts of the case? Who was Thomas and what is the ‘matter’ that the HCA is being asked to resolve? o Jack Thomas was convicted under Australia’s new terrorism legislation (introduced after 9/11), but his conviction was overturned by the Vic Ct of Appeal on the basis that his confession was obtained under duress, and so was inadmissible. o Following this, the AFP applied to the Federal Magistrates Court issue an Interim Control Order against Thomas under Div 104 of the Criminal Code Act 1995 (Cth). The relevant provisions said that the Court could issue a control order if satisfied:  on the balance of probabilities  that the order will that the order will “substantially assist in preventing a terrorist attack” or  that the target of the control order has provided to or received training from an organisation designated as a terrorist organisation, and  that the requirements of the control order are “reasonably necessary” and proportionate to the "purpose of protecting the public from a terrorist act" (s 104.4). o The FMC issued an interim control order against Thomas, which restricted his movement and communication. • On what bases did Thomas argue that the control order provisions of the Criminal Code Act 1995 (Cth) were invalid? o Div 104 was unconstitutional as it conferred non-judicial power on federal judges:  Judges are asked to predict future conduct, not decide on someone’s existing legal rights/duties/obligations;  Control orders are criminal penalties. Penalties can only be issued after a court finds a person guilty of a criminal offence;  The criteria set out are too vague. They ask courts to make decisions about policy (whether a person represents an unacceptable risk to the Aust public);  The provisions require courts to act in a manner that is unfair so inconsistent with the exercise of judicial power (e.g. they can consider evidence which wouldn’t be admissible in a criminal trial – the forced confession). • What did the majority (Gleeson CJ, Gummow and Crennan J) think of these arguments? o Gleeson CJ:  Looked at similar powers courts have historically exercised (e.g. Bail, Apprehend Violence Orders)  Control orders not a penalty, because they don’t involve detention in custody  The criteria on which control orders are to be issued are not unknown to judges  Courts make decisions about community safety in other contexts – e.g. Bail. So the exercise of this kind of power is not new to judges.  Courts are still deciding in a manner that is judicial under the provisions – open court; cross examination; courts have discretion; burden on AFP etc. o Gummow and Crennan JJ  Judges are familiar with exercising this type of discretion. They aren’t being asked to assess the terrorist threat, but simply balance the executive’s assessment of the threat against other relevant factors. • What did Hayne J think of these arguments? o Courts’ job is to decide ‘matters’ – controversies about existing rights/obligations under law. It cannot make legislation or create new rights. o Courts must have legal standards to make these decisions. They can’t be asked to make arbitrary decisions. o The standards in Div 104 are too indeterminate to be capable of judicial application. Specifically, the assessment of what’s reasonably necessary to protect the public. This is a fundamentally legislative decision. 4.4 THE PROCEDURAL REQUIREMENTS FOR EXERCISING JUDICIAL POWER • Parliament can’t stop courts from acting in a way that is impartial and just (as this the courts’ main functions – an essential characteristics of a court) • Parliament can’t prevent courts to exercise its essential characteristics • Parliament are entitled to be heard fairly in a court (Dietrich v The Queen (1992)) WEEK 10 PUBLIC INTERNATIONAL LAW WHAT IS PUBLIC INTERNATIONAL LAW? • International law is increasingly important in many areas  Eg. ‘Free trade’ agreements between countries • Particularly important in public law (which regulates the state’s powers) • States frequently enter agreements to do or not do certain things eg. Climate change, human rights • Important note on language:  In the context of international law, ‘state’ means a country  Also, ‘convention’ is a type of treaty/international agreement • Public international law  Regulates relationship between states/countries (& also international organizations, such as the United Nations)  Sets out the powers and duties of states and international organizations • Domestic law  Regulates relationship between individuals, & between individuals and the state • International law  Regulates a country externally외부에 • Domestic law  Regulates a country internally내부에 있는 • PIL is different to domestic law in several important ways:  PIL is enforceable only in international forums eg. International Court of Justice  PIL is not enforceable in domestic courts o There are some exceptions • PIL is binding on states, but the consequences of breaching PIL are different to breaching domestic law  Enforcement action can usually only be taken by another state (not by an individual)  Legal action can only be taken through international forums (not through domestic courts) • Enforcement mechanisms for international law are usually quite weak, compared to domestic law • A country can breach it’s international obligations repeatedly, with few real consequences • Australia is a party to the Refugee Convention • The focus of PIL is on states  Sets out powers and duties of states  Generally, does not confer any rights or obligations directly on ‘non-state actors’ (individuals, companies, etc)  Generally, no ability for individuals to enforce PIL, even if a state has clearly breached its obligations IS PIL REALLY ‘LAW’? • Some people regard international law as ‘discretionary자유 재량의’  Not ‘law’ in the strict sense • Because it is not enforceable in the usual ways – through domestic courts • Politicians sometimes dismiss international law and international institutions SOURCES OF PIL Two main sources of PIL: 1. Treaties 2. Customary law TREATIES • Treaties are also called conventions, covenants, protocols, etc • They are simply formal agreements between states • Treaty may be bi-lateral (two parties) or multi-lateral (more than two parties) • Treaties may relate to many different topics eg. Trade, investment, etc • Treaty law is underpinned에 근거를 주다 by the principle of consent 승낙하다  States are bound by a treaty only if the state has agreed to be bound by it  Principle of state sovereignty – states may choose whether or not to enter a particular treaty SOVEREIGNTY • Sovereignty is a central concept in international law • Each state is free to act as it chooses to within its own broad CUSTOMARY LAW • Customary law is the unwritten form of PIL • Based on consistent state practice • All states are bound by customary law, even if they have not specifically agreed to comply • Customary law is proved by showing that states have  consistently followed a particular practice;  believing it to be legally required eg. Prohibition on slavery, genocide집단 학살, etc • Generally, treaties prevail over customary law • Certain principles of customary law cannot be contradicted단호히 부정하다 by the terms of a treaty • Inconsistent모순되는 terms in a treaty would be invalid and unenforceable • These are known as ‘peremptory 단호한 principles’ eg. Prohibition on slavery & torture고문 MONISM AND DUALISM • There are two basic approaches taken by different countries to the relationship between international law and domestic law  Monism 일원론: international law automatically becomes part of domestic law  Dualism 이원론: international law and domestic law are separate systems of law • Australia has a dualist approach to international law • When Australia enters a treaty, this creates obligations on an international level • However the treaty does not become part of domestic law until parliament enacts legislation giving effect to the treaty For example:  Australia is a party to the International Convention on the Elimination of All Forms of Racial Discrimination 1966  Cth Parliament enacted the Racial Discrimination Act 1975 (Cth) to give (partial) effect to the Convention  Australia’s dualist approach to international law is part of Australia’s common law system  The United Kingdom has a similar approach to international law  Many European countries have monist systems: international law automatically becomes enforceable in domestic courts  Australia’s dualist system is based on notions of:  Separation of powers:  Executive branch enters treaties,  Parliament implements treaties into domestic law  Parliamentary supremacy: parliament (not the executive) decides what the (domestic) law is MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS V TEOH (1995) 183 CLR 273:  ‘It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute.  This principle has its foundation in the proposition that in our constitutional system the making and ratification 승인 of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive. ENTERING AND IMPLEMENTING A TREATY • Constitution refers to ‘treaties’ in several provisions eg. s 75(1) original jurisdiction of the High Court – ‘all matters arising under any treaty’ • Constitution does not provide specifically for the process for entering a treaty or making a treaty part of domestic law • Constitution was drafted in a time when international law was not so significant • Australia did not have full independence at time of Federation • UK conducted international relations on behalf of Australia ENTERING A TREATY • It is assumed that the general ‘executive power’ in s 61 includes the power to enter a treaty • This is an aspect of international relations and is a power traditionally exercised by the monarch • Function now performed by the executive government (usually foreign affairs minister) • Process for entering a treaty:  Terms of the treaty are negotiated and agreed on  Representatives of each state signs the agreement  Treaty is formally ratified by the head of state • The country is then bound by the treaty under international law • Consequences under international law for breaching the treaty • Entering a treaty is an executive function • Source of this power is the prerogative특권 • Act of entering a treaty generally cannot be challenged in a court IMPLEMENTING 이행[실행]하다A TREATY • The Constitution does not set out the process for making a treaty part of Australian domestic law • This is the role of parliament  Legislative function (making the law) • In terms of the Constitution, implementing a treaty is an aspect of the ‘external affairs’ power in s 51(29) • This power is shared by the Commonwealth and the States and Territories • Validity of laws passed by parliament can be challenged through the courts • Scope of the external affairs power has been the subject of much debate and controversy • Scope of the external affairs power was determined by a series of High Court decision commencing in the 1980s  Koowarta v Bjelke-Peterson (1982)  Tasmanian Dams case (1986) KOOWARTA V BJELKE-PETERSON (1982) • Cth entered Convention for the Elimination of All Forms of Racial Discrimination (CERD) • Cth enacted Racial Discrimination Act 1975 (Cth), which gave partial effect to CERD • RDA prohibits discrimination based on race • RDA applies to individuals, governments and public officials • Koowarta was a member of the Wik peoples, traditional inhabitants of land in North Qld • Koowarta sought to purchase a large tract of land • Qld government blocked the purchase • Qld government had a policy of prohibiting land grants to Indigenous people • Koowarta brought an action for discrimination under the RDA to the Human Rights and Equal Opportunity Commission (HREOC) • Qld government argued that the RDA was invalid  Cth had no power under the Constitution to pass the RDA  Property law is traditionally a State power • Issue – was the RDA a valid Act of parliament? • High Court held that the RDA was valid • The RDA was supported by the external affairs power • Majority judges held that the fact that the Cth had entered the treaty was sufficient to make the RDA an ‘external affair’ • Minority judges said that the subject matter of the treaty must also be of ‘international concern’ • Minority judges said that ‘external affair’s had to be interpreted in the context of Australia’s federal system • Allowing Cth Parliament to pass laws based on any treaty it had entered- regardless of subject matter- would undermine the division of powers between the Cth and the States • This meant that ‘external affairs’ had to be limited in terms of subject matter TASMANIAN DAMS CASE (1986) • Cth entered the Convention for the Protection of World Cultural and Natural Heritage 1972 • Cth enacted the World Heritage Properties Conservation Act 1983 (Cth) • Tasmanian government sought to build a hydro-electric power plant in a remote region of Tasmanian • Involved the damming of the Franklin River, which was listed under the Convention • Cth Act prohibited the construction work from proceeding • Tasmanian government argued that the Cth Act was invalid  Cth had no legislative power over environment protection  Project would create jobs and economic prosperity for Tasmania • High Court held that the Cth Act was valid • Cth Act was validly passed under the external affairs power • Cth Parliament could legislate to implement any treaty it had entered • External affairs power not limited in terms of the subject matter내용 of the treaty, or any requirement that the topic be of ‘international concern’ • Broad interpretation of the external affairs power • Unlike other powers listed in s 51, external affairs not limited in terms of subject matter • External affairs power capable of virtually unlimited expansion • Not interpreted in light of any assumptions regarding the need to preserve a ‘federal balance’ ‘UNINCORPORATED’ TREATIES • Unincorporated treaties are treaties that have not been the subject of domestic legislation • Under a strict ‘dualist’ approach these treaties are not enforceable in domestic courts • They are part of international law, but not part of domestic law • Australian courts have however developed certain exceptions: • Unincorporated treaties may be used by court to:  Interpret legislation; &  Develop the common law INTERPRETING LEGISLATION  International law is used by court to interpret domestic legislation  This applies to legislation passed specifically to implement a particular treaty (such as the RDA), and other legislation  This principle applies only if the legislation is ambiguous  If the terms of the legislation are clear, courts must apply the legislation according to its terms  Courts must respect separation of powers  Parliament makes the law  Courts interpret and apply the law DEVELOPING COMMON LAW  Courts have referred to international law when interpreting the common law  Most famous Australian example is Mabo (1992)  High Court determined that the doctrine of terra nullius was not part of Australian common law  High Court referred to the prohibition on racial discrimination under international law MABO V QUEENSLAND (NO2) (1992) HCA 23 - (‘MABO CASE’)  Brennan J:  ‘If the international law notion that inhabited land may be classified as terra nullius no longer commands general support, the doctrines of the common law which depend on the notion….can hardly be retained. If it were permissible in past centuries to keep the common law in step with international law, it is imperative in today’s world that the common law should neither be nor be seen to be frozen in an age of racial discrimination’.  The expectation of the international community accord in this respect with the contemporary views of the Australian people….The common law does not necessarily conform순응하다 with international law, but international law is a legitimate이치에 맞는 and important influence on the development of the common law, especially where international law declares the existence of universal human rights. A common law consideration founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration.’  However not every principle of international law will become part of Australian common law  Depends on whether the principle is consistent with the basic structure of Australian common law DIETRICH V R (1992)  Dietrich argued that he had a common law right to be provided with legal representation when defending a serious criminal charge  This right is contained in the International Covenant on Civil and Political Rights, to which Australia is a party  High Court rejected this argument  The right to legal representation had not be implemented by parliament into domestic law  The right was not consistent모순이 없는 with the general structure and development of the common law of Australia  These exceptions are controversial  Some times said that courts are incorporating treaties by back door means  Ie. Courts are not respecting separation of powers  Courts state that these exceptions are necessary to hold (executive) government to account  Governments should comply with treaties they have entered CASE STUDY IN INTERNATIONAL LAW  Us Congress recently voted to allow US citizens to sue Saudi Arabia in relation to 9/11 attaccks  Note the different role(and perspectives) of the executive and parliament on the issue SUMMARY OF WEEK 10 • Distinction between international and domestic law • Types of international law • How treaties are entered and implemented • Scope of external affairs power • Unincorporated treaties BOOK SUMMARY AUSTRALIA’S INTERNATIONAL POSITION • Member of the United Nation • International court of Justice with Government of Japan : Whaling in the Antarctic: Japan has breached the International Convention for regulation of Whaling • Member of the international Criminal court • Two matter  The extent to which public international law is part of Australian public law  The law on diplomatic immunity, which is an area of international law but which has significant impact on domestic law • While international law may play a part in Australian domestic law, international law itself cannot ‘abrogate the force of clearly expressed and constitutionally valid statutes operative within Australia • Where conflict arise between international law and valid domestic law including constitution domestic law prevails  International body such as UN cannot provide a legal justification for criminal damage to property  Nor may a person refuse to pay tax because they think that government defense expenditures are in breach of international law • High court held that international law is a distinct field of law that it does not have jurisdiction to enforce international law FORMS OF INTERNATIONAL LAW CUSTOMARY INTERNATIONAL LAW • The oldest portion of international law, developed out of custom between European State • Superseded (대체하다) by treaties and conventions but still have place • Customary international law would be transformed form international law to domestic la as court held that to the court of Australia international law has no validity unless its principle are accepted and adopted in domestic law. However, with respect to customary law, incorporation • Customary international law was a part of Australia law unless it conflicts with a legislative provision or a common law rules to the contrary • Convention is not part of Australia domestic law mean so did not incorporate the crime of genocide into Australia Law. (there are no breach of Australia law as the crime of genocide did not exist in domestic law • But court prohibit the genocide as the permissible for the commonwealth parliament to legislate for the crime of genocide • Customary international law is part of domestic law. Eg Crimes Act 1958 s 70A. Piracy 해적 with violence • For the piracy, In Australia, it is rare but Australia agreed to take action as a member of the international community • Charter of the United Nations Act 1945(Cth) imposed various sanctions on Somalia TREATIES AND OTHER INTERNATIONAL INSTRUMENTS • Main form of international instrument • Other term: an agreement, convention, protocol, exchange of note , exchange of letter • Methods that Australia consents(동의) to be bound in international law by treaty  Signature confirmed by ratification or approval  An instrument of accession • Reservations indicated that certain parts of the treaty are not adopted by Australia • Protocol means a later amendment for supplemented. • S 61 constitution: legal authority to enter treaties which confers the executive power of commonwealth  Law, executive branch does not nee to the permission of Parliament to sign or ratify a treaty  But in practice, treaties are tabled in Parliament for at least 15 siting days before the government takes binding action • While the executive may exercise the prerogative in relation to foreign affairs to sign and ratify treaties, only the parliament can incorporate them into domestic law. Otherwise, executive could, by signature and ratification, create a new class of domestic legal rights and obligations and bypass parliament in doing so  Test for determining whether a treaty is party of domestic law  Issue : whether the Charter of the United Nations Act 1945 (Cth) that approved of the United Nations Charter thereby incorporated it into domestic law -> Term ‘approved’ in statute does not amount to incorporation  Issue: whether a resolution of the United Nations Security Council was part of Australian domestic law -> it was not  But where the statute say that the treaty is part of the law of the state or the commonwealth or has the force of law such as the consular Privileges and Immunities Act 1972 (Cth) s 5(2), this will be taken to amount to incorporation of the treaty into domestic law and will be enforceable in the court.  When confronted with a treaty the first step is to ascertain how much of the international instrument has been implemented by Australian law then, to construe the instrument itself. SOME AREA OF INTERNATIONAL LAW THAT ARE NOT PART OF AUSTRALIAN LAW • A number of human rights conventions, the main human rights instruments are not part of our domestic law • The Universal Declaration of Human Rights1948 was not a treaty at all, rather a resolution of the general assembly and thus was not intended but itself to be implemented by states • International Covenant on Civil and Political Right (1966) ICCPR  ICCPR has not been made part of Australia domestic law  Included in the schedule of the Human rights and Equal Opportunity Commission Act 1986 (Cth) but does not mean it is incorporated into the domestic law  The optional protocol to the ICCPR, which gives a right to Australia citizens to make complaints concerning breaches of the ICCPR to the United Nations, does not create domestic legal obligations and cannot be used to read down domestic legation  Commonwealth parliament has authored the Minister for Foreign Affairs in the Australia passport to refuse a passport to a person who would be likely to engage in conduct that might interfere with the rights and obligation of other persons as set out in the ICCPR whether in Australia or another county UNINCORPORATED TREATIES IN PUBLIC LAW LEGITIMATE EXPECTATION This factor warrants separate treatment for doctrinal and historical reasons. The role played by the concept of legitimate expectation, as noted by McHugh J in Haoucher, is to extend the range of protection given by the common law rules of natural justice. There are no fixed categories of legitimate expectation but some well-recognised classes include: a) An expectation either that an existing licence will be renewed or that advance warning will be given of the prospect of non-renewal. b) An expectation that an established liberty or interest will not be taken away or that a beneficial recommendation will not be overturned. c) An expectation arising from an established course of practice. d) An expectation that an opportunity will be given to demonstrate compliance with statutory criteria for a benefit or concession. A legitimate expectation should be distinguished from a mere hope. It must be ‘legitimate’, ‘reasonable’ or ‘well-founded’. As discussed inQuin,[17] a legitimate expectation only gives rise to a right to procedural fairness and not to substantive enforcement of the content of the expectation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. The following circumstances that have not given rise to a legitimate expectations also illustrate the limitations imposed on the concept: a) Recommendations in a report of an Ombudsman that would have no impact until accepted. b) The appointment of a person to conduct an investigation. c) The initiation of a statutory decision-making process that was not directed towards individuals or distinct bodies. d) Where a practice or assurance had been negated or terminated by the executive. MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS V TEOH (1995) 183 CLR 273: Fact • Ah Hin Teoh, a Malaysian citizen, came to Australia in May 1988 and was granted a temporary entry permit. In July 1988, Teoh married Jean Lim, an Australian citizen and the de facto spouse of Teoh's deceased brother. Mrs Teoh had four children, one from her first marriage and three from the de facto relationship. Subsequently, Mr and Mrs Teoh had three children together. In October 1988, Teoh was granted a further temporary entry permit that enabled him to remain in Australia until February 1989. Prior to the expiry of the permit, Teoh applied for a grant of resident status. In November 1990, whilst this application was being processed, Mr Teoh was convicted on charges of heroin importation and possession. • In January 1991, Teoh was notified pursuant to the Migration Act 1958 that his application for resident status had been refused on the ground that he could not meet the good character requirement as he had a criminal record. In February 1991, Teoh applied for a review of the decision, providing documentation that included a testimonial from Teoh's mother-in-law who stated that Teoh was the only person who could keep the family together. • The Immigration Review Panel rejected the review in July 1991, highlighting the seriousness of Teoh's criminal conviction. This decision was accepted by the Immigration Minister, and in February 1992 an order was made that Teoh be deported. Teoh sought a review of both the acceptance of the recommendation and the decision to deport. • In September 1993 in the Federal Court, French J dismissed the application, finding that the acceptance of the Panel's recommendation and the ordering of deportation had not been an improper exercise of power, a denial of natural justice, nor did it involve the consideration of irrelevant factors by the decision-makers. • On appeal, the full bench of the Federal Court (Black CJ, Lee and Carr JJ) found that the decision-maker's power had been improperly exercised because it had failed to make appropriate investigations into the hardship to Teoh's wife and her children were Teoh refused resident status. The full court ordered a stay of the deportation order until the decision had been reconsidered in light of the court's finding. The Immigration Minister appealed against the decision to the High Court of Australia. Decision • The majority (Mason CJ, Deane, Toohey and Gaudron JJ) agreed with the Federal Court decision that there had been a breach of natural justice, as the Immigration department had failed to invite Teoh to make a submission on whether a deportation order should be made, contrary to the Convention on the Rights of the Child, which provided that in any administrative decision concerning a child, the child's best interests must be a primary consideration.  ‘It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute.  This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive. Results of the case were fivefold 1. Mr Teoh’s matter was re-considered by the Immigration Department and he was then deported 2. It inspired an enormous literature especially for writers on international law who seemed to think that the case heralded a new era in Australia law whereby unincorporated treaties might be used in domestic law 3. The executive issued statements that ratification did not create a legitimate did not create a legitimate expectation that convention would be used in administrative decision making 4. South Australia did pass the Administrative Decision Act 1995 to this effect. Facts and background[edit] Ah Hin Teoh, a Malaysian citizen, came to Australia in May 1988 and was granted a temporary entry permit. In July 1988, Teoh married Jean Lim, an Australian citizen and the de facto spouse of Teoh's deceased brother. Mrs Teoh had four children, one from her first marriage and three from the de facto relationship. Subsequently, Mr and Mrs Teoh had three children together. In October 1988, Teoh was granted a further temporary entry permit that enabled him to remain in Australia until February 1989. Prior to the expiry of the permit, Teoh applied for a grant of resident status. In November 1990, whilst this application was being processed, Mr Teoh was convicted on charges of heroinimportation and possession. In January 1991, Teoh was notified pursuant to the Migration Act 1958 that his application for resident status had been refused on the ground that he could not meet the good character requirement as he had a criminal record. In February 1991, Teoh applied for a review of the decision, providing documentation that included a testimonial from Teoh's mother-in-law who stated that Teoh was the only person who could keep the family together. The Immigration Review Panel rejected the review in July 1991, highlighting the seriousness of Teoh's criminal conviction. This decision was accepted by the Immigration Minister, and in February 1992 an order was made that Teoh be deported. Teoh sought a review of both the acceptance of the recommendation and the decision to deport. In September 1993 in the Federal Court, French J dismissed the application, finding that the acceptance of the Panel's recommendation and the ordering of deportation had not been an improper exercise of power, a denial of natural justice, nor did it involve the consideration of irrelevant factors by the decision-makers. On appeal, the full bench of the Federal Court (Black CJ, Lee and Carr JJ) found that the decision-maker's power had been improperly exercised because it had failed to make appropriate investigations into the hardship to Teoh's wife and her children were Teoh refused resident status. The full court ordered a stay of the deportation order until the decision had been reconsidered in light of the court's finding. The Immigration Minister appealed against the decision to the High Court of Australia. Decision[edit] The majority (Mason CJ, Deane, Toohey and Gaudron JJ) agreed with the Federal Court decision that there had been a breach of natural justice, as the Immigration department had failed to invite Teoh to make a submission on whether a deportation order should be made, contrary to the Convention on the Rights of the Child, which provided that in any administrative decision concerning a child, the child's best interests must be a primary consideration. Legitimate expectation Mason CJ, Deane and Toohey JJ accepted as correct the finding of Carr and Lee JJ that the ratification of an international convention can be a basis for the existence of a legitimate expectation and that, in this instance, there had been a want of procedural fairness. McHugh J dissented on this point and Gaudron J did not rely upon it in her reasons. Common law rights of children Gaudron J, although in the majority, did not rely upon the Convention on the Rights of the Child to find in Teoh's favour. The fact that a child is an Australian citizen is enough to establish the principle that the best interests of children should be a primary consideration in the making of administrative decisions. Gaudron J held that whilst the decision-maker was not required to initiate inquiries, procedural fairness required them to inform Teoh that his children's best interests were not being taken into account as a primary consideration and offer him the opportunity to persuade them otherwise. Repercussions The Government acted in response to the outcome in Teoh's case by taking up the High Court's statement that a legitimate expectation would not arise where there is either an executive or statutory indication to the contrary. The Minister for Foreign Affairs, Mr Downer, and the then Attorney-General, Mr Williams, issued a joint statement stating that the act of entering into a treaty does not give rise to legitimate expectations in administrative law. The statement replaced a statement made by the then Minister for Foreign Affairs and the then Attorney-General in 1995. The statement foreshadowed the introduction of legislation to address the issue. Legislation was introduced in 1997 and again in 1999. It lapsed on both occasions when Parliament was dissolved for the holding of elections. Facts: A deportation order had been made against Mr Teoh on the basis of his conviction for possession of heroin in Australia. Mr Teoh had seven dependents in Australia, including natural and step-children. The High Court held by majority that there had been a breach of natural justice, as the department had failed to invite Mr Teoh to make a submission on whether a deportation order should be made, contrary to the International Covenant on the Rights of the Child, which provides that in any administrative decision concerning a child, the child’s best interests must be a primary consideration. Issue: Can an international treaty which Australia has signed give rise to a legitimate expectation? Held: A treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law but this does not mean that its ratification holds no significance for Australian law. • Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party. • Ratification of a treaty is a positive statement by the executive to the world and the Australian people that the executive and its agencies will act in accordance with the Convention. This positive statement is an adequate foundation for a legitimate expectation. McHugh J dissenting: • It is only too obvious that Mr Teoh was unaware of the existence of the Convention and therefore neither fairness nor good administration requires a decision-maker to inform a person that a rule will not be applied when the decision-maker has not lead that person to believe it would be applied. • A person cannot lose an expectation that they do not hold. • How, when or where undertakings in a Convention will be given force is a matter for the federal Parliament. This is a basic consequence of the fact that conventions do not have the force of law within Australia.  Teoh held that ratification by Australia of an international convention gives rise to a legitimate expectation for Australians that administrative discretionary decisions will be exercised in conformity with the terms of the convention. • A Joint Statement was issued under consecutive Labor and Coalition governments by the Attorney-General and the Minister for Foreign Affairs, stating that members of the public should not derive a legitimate expectation of treaty compliance from ratification by the executive. The statement was found to be ineffective because of its generality and the fact that it was not made at the time of ratification of a particular treaty. • Teoh has been applied in a number of cases, all of which dealt with the effect of the Convention on the Rights of the Child on immigration decision-making, and not with treaty compliance in other areas of administrative decision-making. RE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS; EX PARTE LAM[21] Facts: While Mr Lam was in prison, the Department of Immigration was considering whether he should be deported and wrote to him seeking the details of the carer of his children, so as to contact them in order to assess his relationship with the children. The department neither followed through to contact the carer, nor informed Mr Lam before making the deportation decision that no such contact had been made. The High Court held by majority that there had been no breach of natural justice. Issue: The requirement of unfairness. Held: “In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation.” • There was no attempt to show that Mr Lam held any subjective expectation which lead him to do or omit to do anything, likewise, there was no evidence that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment. No practical injustice was shown. • McHugh J’s dissenting judgement in Teoh was cited, where he questioned whether, given the development of the requirements of procedural fairness, the doctrine of legitimate expectations was left with any distinct role. The question becomes instead, what does fairness require in all the circumstances of the case? • The rules of procedural fairness require a decision-maker to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it (Kioa). The notion of legitimate expectation serves to focus attention on the requirement of natural justice. • Hayne J commented that “it would be better if [legitimate expectation] were only applied in cases in which there is an actual expectation, or at the very least a reasonable inference is available that had a party turned his or her mind consciously to the matter in circumstances only in which that person was likely to have done so, he or she would reasonably have believed and expected that certain procedures would be followed.” THE USE OF TREATIES TO DEVELOP THE COMMON-LAW OF AUSTRALIA • A treaty may influence legal development and even constitutional development, provided that it does not conflict with and is consistent with the constitution and Australian statue. Eg: assist in the resolution of an ambiguity in the meaning of Australia legislation • Might assist the development of Australia common law. Eg: Mabo v Queensland which High court used international law, amongst other things, to allow the law of property in Australia to recognize a new category of legal title • Common law requires treaties to be construed ‘unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation THE USE OF TREATIES TO INTERPRET DOMESTIC LEGISLATION • Several situations where treaties are used to be interpret domestic legislation • First, where the treaty language is adopted as the language of the statute, the treaty and related works, called, travaux preparatories( preparatory work), may be used to assist in the interpretation of legislation  There is an ambiguity in the statutory language  Where the matter cannot be resolved by resort to the language of the statue itself • The treaty may be used along with preparatory works, to interpret treaty language that is part of domestic law  The convention on treaties may be an aid to the interpretation of other international agreement  Treaties was used to interpret an income tax agreement with Switzerland  Interpretation of a convention should have processed using accepted international principle unconstrained by the technical rules of domestic law • Where a court or commission is explicitly directed to exercise its powers and functions with regard to the provision of a specific convention then that convention may be used for interpretative purpose  A number of state jurisdictions have passed child protection statutes that have explicitly referred to the child protection convention and have also provided in this legislation that ‘unless the contrary intention appears, expressions have the same meaning as they have in the Child Protection Convention’ AUSTRALIAN LAW ON DIPLOMATIC IMMUNITY ORIGIN • The peoples of all nations from ancient times have recognized the status of diplomatic agent • Based on the proposition that as the representative of a foreign prince the ambassador and their suit (that is family and assistant) • The extent of the immunity and the rationale for it was elaborated in case law before the emergence of international conventions on the subject. The immunity extended to the ambassador, his or her family staff. THE STATUES • Diplomatic and related immunity has been extended by commonwealth statute to the following classes of person • Members of recognized international organizations • Representatives from commonwealth countries • Member of an overseas mission by the oversea missions DIPLOMATIC IMMUNITY • a form of legal immunity that ensures diplomats are given safe passage and are considered not susceptible to lawsuit or prosecution under the host country's laws, although they can still be expelled. • ` Modern diplomatic immunity was codified as international law in the Vienna Convention on Diplomatic Relations (1961) which has been ratified by all but a handful of nations, though the concept and custom of such immunity have a much longer history dating back thousands of years. Many principles of diplomatic immunity are now considered to be customary law. • Diplomatic immunity as an institution developed to allow for the maintenance of government relations, including during periods of difficulties and armed conflict. When receiving diplomats, who formally represent the sovereign, the receiving head of state grants certain privileges and immunities to ensure they may effectively carry out their duties, on the understanding that these are provided on a reciprocal basis. • Originally, these privileges and immunities were granted on a bilateral, ad hoc basis, which led to misunderstandings and conflict, pressure on weaker states, and an inability for other states to judge which party was at fault. An international agreement known as the Vienna Conventions codified the rules and agreements, providing standards and privileges to all states. • Australian case on the point, on the issue was whether certain regulations made under the Diplomatic Privileges and Immunity Act 1967(Cth) to bar demonstrator from land near a mission were valid PERSONS COVERED • The convention covers persons sent by state who are also recognized by the receiving State as accredited representatives of the sending State • A government employee sent to negotiate commercial agreements, but who did not have contract with the government of receiving state, was not entitled to immunity • A person does not have diplomatic status unless they have been accepted or received as such by the receiving country • Although a foreign mission may assert diplomatic statue and thus claim immunity, that is not decisive, for the courts have regard to the certificate, if any, issued by the Minister of foreign Affairs in deciding diplomatic statue ACTIVITIES COVERED • The immunity from the legal processes of the receiving country covers such matters as exemption from local taxes • Certain classes of employment contract matters are not immune from action in Australia • Immunities include the inviolability of diplomatic missions, the private premises of diplomatic staff (Art 22,30) and the diplomatic bag(Art 27(3)) and official correspondence • Diplomats are also exempt from criminal legal proceeding (Art 31(1)) and most civil proceeding PREMISES COVERED • Under the convention diplomatic premises are covered such as the buildings and part of buildings, irrespective of ownership used for the purposes of the mission. • Includes the residence of the head of the mission • Australian authorities will not enter these premises because of the Convention, a principle that predated the convention itself WHEN IMMUNITY STARTS AND FINISHES • Immunity start when the head of the mission enters the territory of the receiving State (Art 39(1) and has presented his or her credentials or when he or she notifies his or her arrival(Art 13(1)) • Term of ‘leave’ was to be interpreted according to the principles governing treaties, not the cannons of common law and that the term ‘leave’ meant permanently WAIVER • The immunity from the jurisdiction of the courts of the receiving State may be waived • If the sending state seeks extradition in respect of a matter over which they could have claimed immunity, the commencement of these proceeding has been held to be waived for these purposes PERSONA NON GRATA • Either ignore the matter or declare the particular diplomats persona non grata (an unacceptable person) • To withdraw recognition of that person as diplomat and thus in effect order them out of the country CONSULAR IMMUNITY • Specific statute providing for immunity as happened in Australia with the Aliens Registration Act 1920 (Cth), which provided in s 13 that all consuls representing any foreign country, their staff and their wives were exempt from the provisions of the Act • Vienna convention on Consular Relations 1963 was given in s 5(1) the force of law in Australia but only with respect to most of the Articles of convention • The Act extended to consulates the immunities and protections created in relation to diplomatic persons, discussed above • The immunity created was no as extensive as that for diplomats because it only applied to the exercise of their consular functions, though these might be given a wide definition • There are a co-operative agreements between countries to provide greater coverage of consular facilities. Example is that Australia will provide consular facilities for member of mostly Caribbean Commonwealth counties within Australia SOVEREIGN IMMUNITY • Immunity also attaches to the public ships of friendly foreign powers under the customary law doctrine of sovereign immunity • Some disputes about the exact basis for immunity • Ship is a piece of floating territory belong to a piece of foreign sovereign but that view is now discredited • Foreign mission is a piece of foreign territory in Australia is no longer accepted as the law • The better view is that the rules of international law mean that the receiving state will abstain from asserting its jurisdiction over the territory or public ship concerned unless permission by the sending State. WEEK 11 – HUMAN RIGHTS WHAT ARE ‘HUMAN RIGHTS’? • Some use the language of ‘fundamental’ rights, or ‘civil’ rights • Are human rights simply those rights listed in treaties (such as the International Covenant on Civil and Political Rights)? • Human rights are said to have several key features:  Inherent to every person- ‘inalienable’ 빼앗을 수 없는.  Universal  Have priority over other interests eg. Financial  Especially important for vulnerable members of society eg. Minorities, refugees, children, etc.  Must be respected by governments  Subject to ‘reasonable limitations’ • Human rights are rights exercisable by individuals against the state (government)  Part of public law • Can involve negative obligations (eg. Not to torture) & positive obligations (eg. To provide housing, food, medicine, etc) KEY HUMAN RIGHTS DOCUMENTS  Universal Declaration of Human Rights 1948  International Covenant on Civil and Political Rights 1966  International Covenant on Economic, Social and Cultural Rights 1966 MANY RIGHTS ARE NOT PROTECTED BY AUSTRALIAN LAW  Australia’s ‘reluctance regarding rights’  Australia’s dualist 이원론 approach to international law TWO APPROACHES TO HUMAN RIGHTS  existing laws (positivist)  used to measure/critique existing laws & practices (normative) WHY PROTECT HUMAN RIGHTS? • Human rights are based on the ‘inherent dignity 존엄성’ and worth of every person  Preamble 법규, 조약 등의) 전문 to the Universal Declaration of Human Rights • These rights are ‘equal and inalienable’  Belong to every one  Cannot be taken or given away • UDHR also recognised the connection between respect for human rights and avoiding war between nations • Respect for rights is necessary to ‘promote the development of friendly relationship between nations’ AUSTRALIA’S ‘PATCH WORK QUILT’ • Australia’s protection of human rights has been described as a ‘patch work quilt’ • No national charter or ‘bill’ of rights (constitutional or statutory) • No comprehensive system for protecting or promoting human rights COMPARE AUSTRALIA’S SITUATION TO THAT IN EVERY OTHER WESTERN COUNTRY/DEVELOPED DEMOCRACY: • United States: Bill of Rights 1791 • United Kingdom: Human Rights Act 1998 • Canada: Charter of Rights and Freedoms 1982 • New Zealand: Bill of Rights 1990 • India: Constitution of India 1949 • South Africa: Constitution of South Africa 1996 WHY THE ‘RELUCTANCE REGARDING RIGHTS’? • Faith in parliament (representing the ‘will of the people’) • Faith in electoral processes/representative democracy (bad governments can be removed) • Faith in courts to uphold the ‘rule of law’ & protect individual rights • Faith in responsible government (parliament holding government to account) • Australia is regularly criticised by international bodies for not having a comprehensive national charter of rights • Australia’s ‘reluctance regarding rights’ has a long history • Human rights in Australia are conferred 수여하다 by a combination of the Constitution, legislation & the common law • Adequacy타당성 of this “system” in protecting rights is open to question  Particularly regarding vulnerable groups such as asylum seekers, Indigenous peoples, women & children  No comprehensive statement of human rights applying to all Australians  Rights are subject to the whims of parliament & the courts CONSTITUTIONAL RIGHTS • The Constitution contains a small number of rights-protecting provisions • Nothing like a comprehensive charter of rights • High Court has recently discovered certain ‘implied’ rights in the Constitution • Drafters of the Constitution were not in favour of equal rights • Purpose of drafting Constitution was to federate (for reasons of trade and defence) • Popular opinion of the time supported:  Restricting migration  Restricting rights of non-white people • Focus of drafters was on regulating the relationship between the Commonwealth & the States • Recognised that granting rights would interfere with current treatment of Indigenous peoples & immigrant workers • First Act of Parliament was the White Australia policy EXPRESS RIGHTS  Freedom of religion (s 116)  Just terms for acquisition of property (s 51(31))  Trial by jury (s 80)  Free trade between the States (s 92)  No discrimination by States based on State residence (s 117) • These rights have been consistently interpreted by the High Court in a narrow/literal/restrictive manner • For example the right to trial to jury depends on Parliament classifying the offence as ‘indictable’- not on its seriousness! FREEDOM OF RELIGION • The prohibition on restricting freedom of religion does not prevent Parliament from:  ignoring conscientious objections to military service (Krygger v Williams)  Confiscating the property of a church which was preaching peace during wartime (Jehovah’s Witness v Commonwealth) JUST TERMS • The right to just terms for acquisition of property has been interpreted slightly more broadly • However it applies only to acquisitions by the Commonwealth- not by the States • Nothing stopping the States from acquiring property on unjust terms- or no terms! IMPLIED 무언의RIGHTS • Since the 1990s the High Court has discovered several ‘implied’ rights in the Constitution • The best known of these rights is the implied freedom of political communication • This is similar to the right to ‘freedom of speech’ in the USA Bill of Rights- but more limited FREEDOM OF POLITICAL INFORMATION • Main features of the freedom  Applies to only a particular category of speech- ‘political communication’ (essentially discussion of government & politics)  Subject to laws which are ‘appropriate and adapted’ to a legitimate government interest (balancing exercise) FREEDOM OF POLITICAL COMMUNICATION • This right is controversial because it is not stated expressly in the Constitution • It is implied from the provisions requiring that members of both houses of Parliament be ‘directly elected’ by the people (ss 7 & 24) • These provisions require a system of representative and responsible government • Citizens must be able to comment on government, MPs & holders of public office • The other implied right recently discovered by the High Court is the right to vote • In Roach (2006) the High Court declared legislation disqualifying all person serving a term of imprisonment from voting to be invalid • This was an unjustified & unreasonable restriction on an important civil right  High Court adopted an approach which balanced Parliament’s ability to restrict the franchise with the constitutional requirements for MPs to be ‘directly elected’ by the people LEGISLATION • At Commonwealth level:  Racial Discrimination Act 1975  Sex Discrimination Act 1984  Age Discrimination Act 2004  Disability Discrimination Act 1992 • Each of these ‘discrimination acts’ is based on an international treaty to which Australia is a party • Right to equality is the only substantive 실체법의right which has been incorporated into domestic law Australian Human Rights Commission • None of these Acts implement the corresponding treaty in full • Each provide lower standard of protection than the international standard eg. Exemptions & exceptions • Interpreted narrowly by courts • Ordinary legislation- may be repealed by Parliament AUSTRALIAN HUMAN RIGHTS COMMISSION • AHRC (formerly the Human Rights & Equal Opportunity Commission (HREOC)) is the national human rights body • Established by the Australian Human Rights Commission Act 1986 • AHRC has following functions:  Monitoring of human rights compliance 협력;  Policy development;  Education;  Complaint handling • AHRC has power to receive complaints made by individuals concerning:  Alleged 진술된unlawful discrimination (under one of the discrimination Acts); &  Alleged violation 방해by Cth agency of certain treaties entered by Australia (including ICCPR) • AHRC may inquire into & attempt to conciliate such complaints • AHRC has no power to order the provision of a remedy to affected individuals • AHRC may report to parliament regarding an alleged human rights violation • Complaints which cannot be resolved by AHRC may be taken to the Federal Court • Court has power to make binding determinations COMMON LAW • Historically the common law has been an important source of rights  For example the tort of trespass폭력 행사 protects physical integrity, false imprisonment protects personal liberty • However common law can be modified by legislation • Common law provides principles of statutory interpretation (rules for interpreting legislation) • Principle of legality- legislation will not limit ‘fundamental rights’ unless parliament clearly intends this AL-KATEB V GODWIN • High Court of Australia, 2004 • Migration Act 1958 (Cth) requires detention of ‘unlawful non-citizens’ (boat arrivals) until certain requirements are satisfied • Majority of HC held the Act was valid • Words of the Act were clear that Parliament intended detention to continue until conditions were satisfied - AL-KATEB DECISION ILLUSTRATES: • Inadequacy 부적절of the principle of legality 법적 의무 in protecting human rights (Parliament can require indefinite 막연한detention, provided wording of legislation is clear) • Inadequacy of the protection of human rights in Australia generally (nothing in the Constitution, legislation or common law prohibiting indefinite detention) ARGUMENTS FOR & AGAINST A CHARTER OF RIGHTS ARGUMENTS FOR A CHARTER OF RIGHTS • Existing system is broken/inadequate • Need to protect minorities • Educative role • Consistency 조화with international law & other comparable countries ARGUMENTS AGAINST A CHARTER OF RIGHTS • Give too much power to courts/judges • Inconsistent with parliamentary sovereignty • Would create uncertainty (rights are vague) • Would create ‘flood of litigation’ • ‘lawyer’s picnic’ INTERNATIONAL LAW • Australia is a party to most international human rights treaties eg. International Covenant on Civil and Political Rights (1966) • These documents state the international standards for human rights protection (how a government should treat its citizens) • However treaties are agreements between countries • Treaties are enforceable through international mechanisms eg. Complaints to United Nations bodies • However a citizen cannot enforce a treaty directly in a domestic (Australian) court AUSTRALIA’S ‘DUALIST’ SYSTEM • Australia has a ‘dualist’ system of international law & domestic law  Only States are parties to international treaties- generally only States can enforce them  International treaties are enforceable only through international mechanisms- not through ordinary domestic courts • A treaty becomes part of domestic law only if/when parliament enacts legislation  eg. Racial Discrimination Act 1975 partly implemented Australia’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (a UN treaty) • Only then can citizens enforce their rights in domestic courts • Australia has implemented very few human rights treaties by domestic legislation • Dualism is a feature of common law countries (such as Australia and the United Kingdom) • It is an aspect of the separation of powers:  Entering treaties is an executive power (usually exercised by a member of government);  This binds the country, under international law  Making law (eg. Legislating to implement a treaty) is a legislative power (exercised by parliament)  This confers rights on individuals, under domestic law • “The provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute” MASON CJ & DEANE J, MIEA V TEOH (1995) • Federal Parliament has power to pass legislation giving effect to international law (including treaties entered by Australia) under the ‘external affairs’ power (s 51 xxix of the Constitution) TASMANIAN DAM CASE (1983) • The Tasmanian Dam case (1983) confirmed that Parliament may enact legislation giving effect to treaty obligations entered by Australia  Regardless of the subject matter • The legislation must be “reasonably appropriate & adapted” to the purpose of implementing the terms of the treaty • Thus Parliament has a wide power to pass legislation giving effect to Australia’s treaty obligations KOOWARTA V BJELKE-PETERSEN (1982) • Koowarta v Bjelke-Petersen (1982) involved a constitutional challenge to the validity of the Racial Discrimination Act 1975 • Queensland government had a policy of denying land grants to Indigenous groups • Qld govn asserted that this was matter of property law- the exclusive domain of State governments • HC upheld validity of RDA under external affairs power • Qld govn was bound to comply with the Act ROLE OF COURTS & PARLIAMENT • Historically courts have played an important role in protecting rights • Originally this was through developing causes of action eg. Trespass, false imprisonment, etc • More recently courts have developed principles of statutory interpretation which limited parliament’s intrusion on ‘fundamental rights’ • The rights-protecting role of courts is supported by constitutional principles:  Separation of judicial power (only courts can exercise certain powers)  Independence of the judiciary (government cannot influence judge’s decisions) • Many rights cases in Australia are decided according to the proper scope of judicial power  Can the Executive detain refugees indefinitely, or restrict the movement of terrorist suspects? • These principles support the notion of judges/courts protecting individual liberties  standing between the government & the individual (particularly the vulnerable)  upholding the rule of law  Preventing government exceeding its powers • A main argument against greater human rights protection is that this would give ‘too much power to judges’ • Judges are compared (unfavourably) to members of parliament:  Judges are not elected (not accountable?)  Judges are often seen as elitist (representing the interests of narrow, privileged class) • This is known as the ‘counter-majoritarian’ role of judges • Should judges have power over-ride/invalidate decisions of elected members of parliament?  Issue not unique to human rights • Perhaps the most difficult issue is what we mean & intend by ‘democracy’:  Does it mean protection of the disadvantaged, vulnerable & marginalised?  Or does it simply mean majority rule? STATE & TERRITORY HUMAN RIGHTS LEGISLATION • Australian States & Territories have legislative power to enact human rights legislation • The Australian Capital Territory enacted the Human Rights Act in 2004 • Victoria enacted the Charter of Human Rights & Responsibilities Act in 2006 • Victoria & ACT Acts adopt a “dialogue” model for protecting & promoting human rights • This involves a dialogue between the three branches of government (parliament, executive & judiciary) regarding rights BASED ON THE HUMAN RIGHTS ACT 1998 (UK) • Intended to preserve the supremacy of parliament as the ultimate arbiter of competing interests (including balancing rights with other interests) • Deliberate rejection of the USA model under which courts have power to invalidate legislation based on human rights incompatibility • The Victorian Charter (like the ACT Act) includes only civil & political rights (based on rights in the ICCPR) • The Victorian Charter imposes obligations on all three branches of government:  Executive (public officials & public authorities) must act consistently with human rights & give proper consideration to human rights in making decisions;  Parliament must consider whether proposed laws are consistent with human rights;  Courts must interpret all legislation consistently with human rights, & may declare that specific legislation cannot be interpreted consistently with human rights THIS MODEL SPECIFICALLY PRESERVES PARLIAMENTARY SUPREMACY • Parliament may specifically override human rights • Courts may declare legislation to be incompatible with human rights  However this has no effect on the force or validity of the legislation, or any decision made under it  very different to USA model of judicial review • Parliament ultimately determines whether to amend such legislation or not • This model allows courts to grant specific remedies to individuals where a “public authority” (government department) has not complied with its obligations • These are public law remedies only (eg. setting aside a decision) & do not include an award of damages • The Charter requires all legislation to be interpreted consistently with human rights “so far as this is possible to do so consistently with their purpose” (s 32) • This is similar to the existing (common law) principle referred to above • This one of the main “remedies” provided by the Charter  Essentially a “reading down” requirement  Legislation must be interpreted in a rights-compatible way • The Charter is ordinary legislation- not entrenched • May be repealed by an ordinary majority of parliament • Charter was reviewed in 2015, after operating successfully for 8 years NATIONAL HUMAN RIGHTS CONSULTATION • In 2008 the Federal Government announced a National Human Rights Consultation • Purpose was to collect information & report to government on whether human rights needed better protection at Federal level • Committee received over 35,000 written submissions • 87% of submissions favoured a national charter of rights • The consultation committee recommended a national charter of human rights • This was rejected by the government as being ‘divisive’ 구별하는 • The committee also recommended increased parliamentary scrutiny of proposed legislation • This recommendation was adopted by government • Since 2011 all proposed Federal legislation must be assessed for its compliance with Australia’s human rights obligations • This includes all the obligations in the human rights treaties entered by Australia • Statement of compatibility must be provided for each bill • This does not prevent Cth Parliament legislating inconsistently with international human rights • Imposes a procedural, not substantive, hurdle BOOK SUMMARY • Australia has ratified (재가하다) all of the major international human rights treaties but has not fully incorporated their provisions into domestic law • Nevertheless, Australia does have a range of mechanism to protect human rights including the public law doctrine of rule of law and responsible government considered. • Whether Australia ought to have Bill of Right. -> no national bill of rights but Victoria and ACT now have statutory Bill of Right. • Pro and cons of bill of right in Australia • Two main concerned  Long history of legal discrimination against women, indigenous people and non-white minorities, such as Asian, -> any discussion of human rights in Australia must begin from the premise that diversity is not merely desirable.  Political since there is a strong emphasis on parliamentary power in Australia and this creates the problem of persuading parliament, if not give up some of this power, then to at least subject it to judicial scrutiny(법적조사) • Indigenous people and refugees RIGHT LANGUAGE • Numerous attempts have been made to argue that various international conventions and declarations on rights are part of Australian law, but many of these claims have failed because court found that the instrument in question was not part of or incorporated into Australian domestic law • S 92 of the commonwealth constitution, all trade between the states shall be ‘absolutely free;’ – freedoms are limited by the laws themselves and therefore, they are not absolute in the sense of being unlimited. • Racial and Religious Tolerance Act 2001 (Vic) s 1(a) and (b)- free exercise of religion has continued into recent times with the passage of some state legislation to preserve religious tolerance and prevent religious vilification INDIGENOUS AUSTRALIAN • Invalid and Old –Age Pensions Act 1908(Cth) was passed s 21(1)(b) excluded ‘Asiatics (except those born in Australia)’, or Aboriginal natives of Australia from the Act • Adult Aboriginals were only permitted to vote in federal elections in 1962, they were not included in the national census until the early 1970s and of course, claims to land based on native title were routinely denied a legal existence until 1992. • 1960, children could taken from their family – stolen generation • Sexual relation outside of marriage between aboriginals and non-aboriginals were banned • Couples how were married were not permitted to live together if the Aboriginal partner was obliged to live on a reserve ASIAN AND OTHERS • Slavery was never part of Australian law until 1830s • In the late 1850, reinforced in the 1860s to restrict the arrival of Chinese gold miners heading for the gold fields of Ballarat and Bendigo(Chinese Immigrants Statue 1864(Vic)) • White Australia policy during the 1880s and 1890s • 1902, commonwealth parliament passed the immigration restriction act(Immigration Restriction Act 1901 (Cth) s 3(a)) • This act permitted an immigration officer to require any arrival to take a dictation test of word in any European Languages. Initially intended to keep out non-whites, especially Asians WOMEN • Excluded women from public life and the professions until statutory changes were made late in the 19th and early in the 20th centuries • Women was the demand for the franchise선거권. • Slow in coming despite repeated attempts by female candidates in parliament • No permit women to enter the professions, especially he legal profession • Court refused to allow a woman to be admitted to the profession leaving the matter to the legislature THE BILL OF RIGHTS DEBATE IN AUSTRALIA • Bill of rights would undermine약하게 하다 the authority of parliament because a court might decide on Bill of Rights grounds that a particular piece of legislation was invalid because it conflicted with a constitutional Bill Of Rights • Bill would interfere with the democratic process, in that the will of the people, as expressed through their representatives in parliament, would be frustrated by judicial review of legislation. TYPES OF BILLS OF RIGHTS • First: ordinary statutes and that are not entrenched or given a special constitutional character. Such a bulls do not normally override all other legislation nor may they be used to invalidate other legislation on the grounds that it is in conflict with the bill of right. It follows that exceptions to the Bill of Rights Act may be created by the parliament. Bill require that all legislation be read subject to the Bill and in the event of an inconsistency between the Bill and other legislation the Bill is to prevail. • Second: constitution itself like US. It forms part of the highest law in the land and as such all other legislation being inferior to it must conform to the Bill as it must to the rest of the constitution. Rights in the Bill beyond the reach of legislative majorities who are powerless to alter the bill of rights. It can only do so by following the amendment process laid down in the constitution itself. To give to the judicial power to invalidate legislation on the grounds that it contravenes the bill of Right. THE COMMONWEALTH • Both federal and state, concerning a bill or declaration of rights has always failed politically in Australia. The result is that Australia is now almost the only developed country without either a constitutionally entrenched Bill of Rights or a national statutory Bill of Right • The absence of a due process clause in the commonwealth constitution does not mean that there is no legal rights to due process or fair trial. • The term refers to the rights to be accorded the process available at the time the matter is heard • High court proposed a set of rights in 1942 to protect the four freedoms mentioned by Churchill and Roosevelt • It was proposed to put rights protection freedom of speech and expression religious freedoms, freedom from want and freedom from fear into the constitution. • While in principle the parliament could override any of the rights in the Act, the committee recommended that seven tights be non-derogable: that is, that they should not be departed from by a subsequent parliament. These included the right of life and the prohibition of the death penalty, torture, slavery, medical experimentation, retrospective criminal laws and imprisonment for a civil liability; freedom of religion and the right to fair trial • The human rights act would required the courts to interpret federal legislation in a way that is compatible ith human rights and consistent with parliament’s purpose expressed in the Act. high court would be empowered to make a declaration of incompatibility against any commonwealth legislation THE STATES VICTORIA 2006 • First passed a statutory Bill of Rights and passage of the Charter of Human rights and responsibilities Act • Act extends to person only not in corporation s s(1) • Reasonable limits as can be demonstrably justified in a free democratic society s 7(2) • Right to liberty and security of the person and various rights before the courts. • There is now a prohibition on retrospective criminal law (제한된 소급적용) • S 31, parliament of Victoria may override the charter by an express override declaration • S 32 to interpret all statutory provisions ‘in a way that is compatible with human rights’ and the courts may consider international law and judgement of foreign and international courts in interpreting the Act • Also recommended including of more ICCPR rights but not rights from other treaties • S 32(1) of the charter act, provides that all statutory provisions must be interpreted in a way that is compatible with human rights • S 7 (2) provides that a human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society • Court considered whether the power of the supreme court to make a declaration of inconsistent interpretation in s 36 of the Charter Act was invalid as being incompatible with the institutional integrity of the supreme court • S 36 was valid as directing a legislature to a disconformity between a state law and human right in the Charter Act but it remained parliament’s responsibility to determine which laws it enacted. THE POLITICAL FORTUNES OF THE BILL OF RIGHTS • If the government of the day opposes the bill of Rights and the government is in command of majority in the lower house, the Bill will fail. Means the Bill needs the support of the government of the day to have any chance of success • Even government support does not guarantee success. If the bill does not secure the support of the opposition or of the upper house, then the bill will be defeated. • Bill of rights effectively requires that the parliament gives up some of its power over legislation and faces the prospect of the courts either invalidating administrative acts or other legislation that conflicts with the bill. THE AUSTRALIAN SOLUTION LIMITED RIGHTS IN THE CONSTITUTION • Make provision for the qualifications of electors s 8 • Guarantees that senators and members of the house of representative will be directly chosen by the people ss7 and 24 • Requires that property taken by the commonwealth is on condition of compensation on just terms s51 • Guarantees trial by jury for those indicted under commonwealth law s 80 • Guarantees free trade and intercourse between the state s 92 • Prevents the commonwealth from enacting a law to establish a religion or to prohibit the free exercise of religion s 116 • Prohibits individuals states from discriminating against interstate residents s 117 • Free political communication THE PASSAGE OF SPECIFIC ACTS ON SPECIFIC PROBLEMS • No Australian jurisdiction has succeeded in creating a constitutional Bill of Rights, the strategy in all jurisdiction has been to pass specific Act of Parliament addressing particular human rights concerns • The strategy of passing ordinary enactments to protect specific areas of rights is, of course, in theory vulnerable to later repeal by the legislature since such rights are not legally entrenched and, therefore, in principle could be repealed by an ordinary majority • The only state constitution to make explicit provision for any sort if freedom • Since 1820, the Australian approach to domestic human rights protection has entailed the passage of detailed statutes to deal with specific problems as they arise . same sex marriage CONTINUED RELIANCE의지 신뢰 ON COMMON LAW PRINCIPLES • Many principles of common law protecting recognized rights remain more or less intact and in some cases these have been extended or reinforced by statues. • Application of international human rights norms not incorporated into domestic legislation  A key case was decided in the High Court of Australia in 2011, considering the ‘Malaysian solution’ for offshore processing of asylum seeker  There were enduring legal frameworks including its constitution and statute laws that would incorporate international legal obligations THE PROS AND CONS OF THE BILL OF RIGHT ARGUMENTS FOR BILL OF RIGHTS P 304 • Defects(결함) of democracy • Judicial action and legislative inaction – court is better to deal with • Minority protection • Educative value • Bring Australia in line with international trends ARGUMENT AGAINST A BILL OF RIGHTS • It is not part of the parliamentary tradition • It would politicizes the courts • It would limit rights • It would undermine parliamentary sovereignty • It will increase litigation • It could intrude into private organizations


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