PUBLIC LAW - Week 1

Introduction and Constitution Exercise

The Constitution

At the republic referendum on 6 November 1999, what vote of the people was required for the “Yes” case to succeed?

Section 128
Absolute majority of Parliament (eg proposal passed by lower and upper houses)
National majority (eg 50% of the Population)
Majority of the States (eg 4 of the 7 states)
“Double Majority”

At what age must High Court judges retire?

Section 72
70 years old.

What body enacted the Australian Constitution? When did the Constitution commence operation?

The British Parliament enacted the Australian Constitution
It is an Act of the Imperial Parliament
The Constitution commenced operation on 1 January 1901

Who is granted the power to ‘disallow any law’ passed by the federal Parliament?

Section 59
The Queen - within 1 yr of the Governor General’s assent

What is the term of the House of Representatives? What is the term of the Senate?

House of Reps: 1 term (maximum of 3 years)
Senate: 2 terms (maximum of 6 years)
Except in the case of a Double Dissolution Re-election where a senator may sit only 1 or 2 terms depending on the amount of votes he/she receives

Is there a Bill of Rights in the Australian Constitution? List the human rights that are protected by the Constitution?

There is no Bill of Rights in the Australian Constitution
The Human Rights that are expressly protected by the Constitution are:
Section 41: Right of Electors of States – If you have the right to vote at state level, then you also have the Commonwealth franchise (transitional provision)
Section 51 (xxxi): The acquisition of property on just terms from any State or person for any purpose in respect of which Parliament has power to make laws (The Castle)
Section 80: Trial by Jury – the trial on indictment of any offence against any law of the Commonwealth shall be by jury…
Section 116: Commonwealth not to legislate in respect of religion – (Freedom of Religion)
Section 117: Rights of Residents in States – States cannot discriminate against people of other states.

Sections 51 and 52 confer legislative power upon the Parliament. Is there any practical difference between the two provisions?

Section 51: Concurrent Powers (States have jurisdiction with the commonwealth)
Section 52: Exclusive Powers to the Commonwealth (States cannot legislate in these areas)

Does the Senate have power to reject a budget bill that has been passed by the lower house?

Section 53: Powers of the Houses in Respect to Legislation
Budget Bills cannot originate from or be amended in the Senate. The Senate can, however, reject a budget bill and recommend amendments to the House of Reps.

Does the Constitution specify any procedure for resolving conflicts between the House of Representatives and the Senate? (deadlock situation)

Section 57: Disagreement between the Houses
If the Senate rejects a proposal, the House of Reps can amend it, or just leave it the same
If the Senate rejects the proposal again, the Governor General may dissolve both houses and call an election (a double dissolution election)
If, after the double dissolution election, the proposal is still rejected by the Senate, a joint sitting is held with members of both houses, convened by the Governor General

Does a federal Minister have to be a member of the federal Parliament?

Section 64: Ministers of State
Ministers to sit in Parliament – longest time a minister can hold office without sitting in Parliament is three months

Could a State Parliament protect its legal profession by preventing barristers from another State from practicing?

Section 117: Rights of Residents in States
This would prevent the State Parliament from preventing barristers from another State from practicing

Under which provision could the federal Parliament give money directly to a State Government? Can it impose conditions?

Section 96: Financial Assistance to States
… The Parliament may grant financial assistance to any State on such terms and conditions as the Parliament sees fit.

Can there be more than six States? If so, could the Northern Territory be converted into a State? What about New Zealand?

Section 121: New States may be admitted or established
The Parliament may admit to the Commonwealth or establish new States…

Who is Australia’s Head of State?

The Governor General and/or the Queen

PUBLIC LAW - Week 2

Required Reading: 6-21 (sections 2-5)

Constitutionalism and the Fiji Crisis

2. Constitutionalism and Constitutional Law p. 6

Constitutional law describes the body of rules according to which:
a state is constituted or governed
the way in which the organs of government are structured and defined
the way in which those organs relate to one another and to citizens.
NOTE: this definition does not exclude the point made by Sartori that one purpose of the rules is to protect the citizens against the excessive use of government power

O Hood Phillips and P Jackson, O Hood Phillips’ Constitutional and Administrative Law

(Sweet and Maxwell, 7th ed 1987)

Written and Unwritten Constitutions: Constitution is “written” if it has been enacted
Unwritten e.g.: UK, NZ, Israel
Written e.g.: US (war of independence), France (revolution), Switzerland (federation of units) and Australia (emergence of a new independent nation)
Written constitutions should only have what is practical, it would be unpractical to have ALL constitutional laws written.
Flexible and Rigid Constitutions
Flexible: “one under which every law of every description can legally be changed with the same ease and in the same manner by one and the same body” (Dicey)
Rigid: “one under which certain laws generally known as constitutional or fundamental laws cannot be changed in the same manner as ordinary laws” (dicey)
Rigid constitutions special procedures (e.g. referendum, quorum etc)
Australian law is both written and unwritten  documents The Constitution, The Statute of Westminster 1931 (UK) and Australia Act 1986 (Cth)  supplemented by common law and unwritten conventions.
States have written, but largely flexible, constitutions  also supplemented by common law and unwritten conventions
Public Law is derived from the battles between Parliament, Executive and Judiciary
Australian system has been called “Wash/Minster” = a hybrid of US and UK

US / UK

Federalism

Responsible Government

Separation of Powers

Members of Executive are from the Legislature (cabinet members must be Members of Parliament)

Bicameralism (two houses)

Bicameralism

Power of Judicial Review at constitutional level

Constitutional Monarchy

Representative Government

PROCEDURE OF JUDICIAL REVIEW

Bill is formed in the Legislative Assembly  Court “declaration of incompatibility” (the only remedy, no damages can be taken)  Attorney General has 6 months to respond to the declaration  AG gives recommendation  Legislative Assembly amends or repeals bill according to the recommendation given by the AG

3. Judicial Review p. 7

The provision of the Constitution that the Courts have the power to declare an act of parliament to be unconstitutional and therefore invalid.
It must be noted that for the act of parliament contended to be unconstitutional by the judiciary, it needs to be presented to the judiciary first  makes it hard as litigation is expensive

Is Judicial Review consistent with a democratic system of government?

Gives judges power to strike down laws passed through parliament
The Judiciary are not popularly elected, whereas the parliament are  Judiciary are usually rich, old, white men  However, Governments appoint Judges
Keeps the people in power (the parliament) in “check”  weaker people will get access to Rule of Law against Rule of Power
Another advantage, Judiciaries are independent (no political allegiances)
Minorities, whose views would have been overruled by the stronger majority views, can receive democracy

Marbury v Madison

5 US (1 Cranch) 137 (1803)

The US case where the power of judicial review was “axiomatically entailed in the constitutional scheme”
Republican president, Thomas Jefferson, refused to commission four new federal judges appointed by the preceding Federalist president, John Adams (one of which was Marbury  Madison was Jefferson’s Secretary of State)
Marshall CJ (John Adam’s former secretary of state) ruled that the appointees were entitled to their commissions, and hence to a writ of mandamus; but that the Supreme Court could not grant such a writ because of the Judiciary Act of 1789, empowering it to do so, was unconstitutional.
Supreme Court ruled that it didn’t have power to exercise writ of mandamus  however, ruled that they could interpret statutes as unconstitutional

Isn’t that just about the superiority of the constitution and how it overrides any repugnant legislation?

Technically, the judiciary is sovereignbecause governmental power comes from the constitution but their sovereignty is limited to those cases which come before it, so the exercise of their power is restricted only to matters which are raised. Ex post facto

JR Lucas, The Principles of Politics

(Clarendon Press, 1966)

The US Constitution… includes enough statements of general principle to communicate to any reader the spirit of the Constitution, while ensuring, by means of judicial review, that the other organs of government cannot disregard the general principles it has set out.
If a new situation arises and application not clear  authoritative interpretation
However, raises question: if Supreme Court is the sole authoritative interpreter of the Const. it is guardian of the Constitution; quis custodiet ipsos custodies?
As far as lawyers are concerned, Constitution = what Supreme Court says it is, and as a result:
SC interpretation is not originalist  generous/unrestricted view of interpretative powers
Decisions of SC are effective
However, SC can only adjudicate disputed matters and if they abuse their power, they will lose respect from parliament  cease to be effective

Legal Foundations and Discourse p. 11

Constitution establishes the institutions that serve as authoritative sources of law, and endow them with legislative power  there can be explicit and implicit limits on powers given
Theories of Legal Positivism came to dominate legal theory during the 19th century and have greatly influenced the development of Australian Constitutional Law.
Positivism: various schools of legal theory which subject laws to structural analysis.
Validity of any legal rule depends solely on questions about power: i.e., on whether the authority issuing the rule had the legal power to do so.
Since the grant of legal power must itself be conferred by a legal rule, the object is to show that the legal order is a self-contained universe of discourse, within which any legal question can be given a purely legal answer.

H Kelson, Pure Theory of Law

(University of California Press, 1967; translated by M Knight from Reine Rechtslehre (Franz Deuticke, 2nd ed 1960))

Stufentheorie (“steps and stairs theory”)

Grundnorm (“basic norm”)  the assumption that the Constitution (the source of all the authorities powers) is binding

Normative systems (morals or “natural law”): it could be seen that the content of each derivative law might be logically derived from the content of the immediate higher norm. However, Kelsen argued that positive law: the downwards derivation of legal validity flowed exclusively through successive normative acts of authorization or empowerment to engage in law-creation

The Reason for the Validity of the Legal Order

A general norm derives its power from the law; the law is valid because it was created by the legislature; the legislature is authorized by the constitution  “first constitution”
“If we ask for the reason of the validity of the historically first constitution, then the answer can only be (if we leave aside God or “nature”) that the validity of this constitution – the assumption that it is a binding norm – must be presupposed if we want to interpret (1) the acts performed according to it as the creation and application of valid general legal norms and (2) the acts performed in application of these general norms as the creation or application of valid individual legal norms”

The Basic Norm as Transcendental-logical Presupposition

The basic norm furnishes the reason for validity of the constitution and of the coercive order created in accordance with it  not a product of free invention
Only if this basic norm is presupposed… can the subjective meaning of a constitution-creating act and following acts be interpreted as their objective meaning, i.e., as objective legal norms?
It may be a just or unjust; it may or may not guarantee a relative condition of peace  the presupposition of the basic norm does not approve any value transcending positive law
Positivistic scientific view of the law regards constitution the highest authority  norm does not obey the commands of “creator” of constitution (eg god or nature)  “basic norm is the condition under which the subjective meaning of the constitution-creating act, and the subjective meaning of the acts performed in accordance with the constitution, are interpreted as their objective meaning, as valid norms, even if the meaning of these acts is so interpreted by the legal science itself”

The Hierarchical Structure of the Legal Order

Basic norm (grundnorm)constitutionlegislationregulationrules/ordinances
The relationship between the norm that regulates the creation of another norm and the norm created in conformity with the former can be metaphorically presented as a relationship of super- and subordination.
The legal order is not a system of coordinated norms of equal level, but a hierarchy of different levels of legal norms  these norms regress to the basic norm  basic norm is the highest reason for the validity of the norms, one created in conformity with another, thus forming a legal order in its hierarchical structure.

M Foucault, “Politics and the Study of Discourse”

(1978) 4 Ideology and Conscious 7

Pluralist attempting to individualise discourses
A sovereign, unique and constraining form is “foreign”
Studied different discourses  characterized, defined, established and described them  where necessary, Foucault allowed the systems to proliferate
Change has to be accepted willingly: (1) set aside “old forms” of thought (eg traditions, habits), (2) stubbornly stressing instead the lively intensity of difference.
Discourses change through time, half the old ones are no longer relevant, most of the new ones have been introduced by “a [new] all powerful subject” who manipulates them  very instable, inconsistent, discontinuing, flux and change.
Archaeology (study of cultural archives)
Very different to Kelsen  stable framework for pure theroy of law  hierarchy and unity ahistorical and apolitical
Ultimately, Kelson’s system is abstracted from the material world  “the purity of the pure theory of law is a defence for turmoil of politics”  Foucault insists that discourse can only ever be inconsistent and ruptured, and that only out of such a discourse can ideas originate.
For Kelson the law-creator is a “subject”, whose meaning is initially “subjective”  it becomes the legal norm when legal cognition endows it with objectivity (reference to basic norm)  implies a dichotomy between the objective product of law creation and the person by whom it is created.
For Foucault, there is no such dichotomy, as “there are not on the one hand inert discourses… and then, on the other hand, an all-powerful subject which manipulates them”
Despite Kelsen’s emphasis on the dynamics of law, his hierarchy of norms would seem to Foucault foreign and inert

Grundnorm and Coup d’Etat: The Fiji Crisis p. 15

A court formed before the coup and not overthrown by it may be faced with proceedings that raise the question whether the new regime ought to be given judicial recognition
Court ought to uphold the rule of law as embodied in the prior legal order
Court could be faced with fait accompli (accomplished fact) under which any order it makes in support of the displaced legal system would not only be futile but might prolong the distress and uncertainty of the nation’s people

FM Brookfield, Waitangi & Indigenous Rights: Revolution, Law and Legitimation

(Auckland University Press, 1999)

Two views a court can take when deciding if a new revolutionary regime has become lawful:

Older constitutionalist view that a court created under the pre-revolutionary constitution has no jurisdiction to recognise a revolutionary regime as lawful but is bound to the constitution which created it (even though it may give limited recognition to the regime’s day-to-day acts of government under the de facto doctrine)  same for new court under new constitution, cannot operate under old constitution
Newer view (favorably viewed by courts in a number of countries including the Privy Council in Madzimbamuto v Lardner-Burke)  courts, including those created by a written constitution, are authorised and required to decide when and if a revolutionary regime has become lawful.
Court assumes “supra-constitutional” jurisdiction to decide whether or not a revolutionary regime has become lawful, and has not regarded the issue as conclusively determined by the constitutional source of the court’s jurisdiction.
How is one to explain the basis for the supra-constitutional jurisdiction? Seemingly, the supra-constitutional jurisdiction which a court necessarily claims if, as the Privy Council says it ‘must’, it accepts the role of deciding whether the revolution has succeeded, is based “on some principle of law independent of any particular system [which] authorises a judge, simply by virtue of his office, and irrespective of the source of… jurisdiction, to recognise the revolutionary regime”
Eg Pakistan judges hold office  basic norm: sovereignty of Allah
What principles or principles must the court apply in exercising the supra-constitutional jurisdiction? One principle is that of by-and-large effectiveness revolution must be practical to be successful.

Madzimbamuto v Lardner-Burke

[1969] 1 AC 645

Majority of the High Court of Southern Rhodesia held that only the 1961 Constitution, and the laws flowing from it, had any legal validity
Also held, for public safety, the de facto effectiveness of the Smith regime required that its day-to-day “law and order” directives should be enforced
2 constitutions competing  2 basic norms  concept of basic norm did not provide a solution
another way to think of it: no basic norm  the assumption of a binding legal norm is only possible when it is in fact assumed by most of the population as a matter of unambiguous and unquestioned consensus.
On appeal, majority of Privy Council held that this was not possible  there can only be one lawful government, court must decide  only legal binding constitution was the 1961 one.
Lord Reid accepted that the test is one of effective control, and that it is not made out when a former government is still striving for power.

Mokotso v HM King Moshoeshoe II