LAWS2140 - Notes Week 1 The Constitution Section 128 requires an absolute majority in Parliament (Proposal passed by lower and

d upper houses), and a majority of people in a majority of states (Double majority) Section 72 requires that High Court judges retire at the age of 70 Section 59 gives the Crown the right to disallow a law within one year of the Governor Generals assent The term of the House of Representatives is three years (s 28). A member of Senate may sit for a maximum of six years (s 7). A double dissolution may see an end to a term Rights in the Constitution include: o Section 41 Right to Vote (Transitional Provision) If you have the right to vote at state level, then you also have the Commonwealth franchise o Section 51 (xxxiv) 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 o Section 80 Individuals have the right to Trial by Jury on indictment of any offence against any law of the Commonwealth. However, Commonwealth can define which crimes are indictable o Section 116 The Commonwealth shall not legislate in respect of religion o Section 117 The States shall not discriminate on the basis of states Section 51 states the concurrent powers of the States and the Commonwealth. Section 52 states the exclusive powers of the Commonwealth Section 53 states that budget bills cannot originate or be amended in the Senate. It may only reject or recommend amendments Section 57 outlines the process for a disagreement between the Houses. If the Senate rejects a proposal, the House of Representatives can pass the proposal through again subject to any desired amendments. If the Senate rejects the proposal again, the Governor General draw on reserve powers and call a double dissolution and election. If the proposal is still rejected by the Senate, the Governor General may convene a joint sitting of both Houses, with a simply majority vote to decide Section 64 allows for a minister to hold office for three months without being a member of Parliament Section 96 allows the Commonwealth to grant financial assistance to any State on such terms and conditions as Parliament sees fit Section 121 states that the Parliament may admit to the Commonwealth or establish new States

Week 2 Constitutionalism and the Fiji Crisis Constitutional law describes the body of rules according to which a state is constituted or governed. There are written (e.g. Australia) and unwritten (e.g. UK) constitutions. According to Dicey: o A flexible constitution is 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

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LAWS2140 - Notes o A rigid constitution is one under which certain laws generally known as constitutional or fundamental laws cannot be changed in the same manner as ordinary laws. These constitutions require special procedures for change to occur Australia combines a mixture of both written and unwritten constitutional rules, and the States have adopted written constitutions which are flexible Australia has adopted a Washminster system A fusion of both the US (Separation of powers) and UK (Responsible government) systems

Separation of Powers Baron de Montesquieu (18th century): Those invested with power have the capacity to abuse it. Hence each society should have three bodies of power: The executive to administer the laws, the parliament to create the laws, and the courts to review the acts of the other two bodies. Realistically no society can have a complete separation of powers. Australia adopts a somewhat fused executive and legislature, with reliance upon the British doctrine of responsible government. Judicial Review The Constitution provides that any use of power brought before the courts and deemed inconsistent with the limitations, both explicit and implicit, within the Constitution, may be declared by the courts as unconstitutional and therefore invalid. Marbury v Madison 5 US (1 Cranch) 137 (1803) The Republican president, Thomas Jefferson, refused to commission four new federal judges appointed by the preceding Federalist president, John Adams. One of these judges was Marbury. The Supreme Court, with the judgment handed down by Marshall CJ, held that judicial review was an axiom of the constitutional scheme, and as such, charged with the duty of determining whether or not a piece of legislation is repugnant to the Constitution. If it is, then the Act is void. JR Lucas, The Principles of Politics. (Clarendon Press, 1966) The Constitution and the decisions of the Supreme Court have imbued the Supreme Court with substantial power over the legislature, bringing to mind the question quis custodiet ipsos custodies, or who will watch the watchmen? The limitations of the Supreme Courts power include the fact that it may only interpret contentious issues, i.e. those brought before the court, as well as the fact that if the Supreme Court was to abuse its position, it would lose the respect that is fundamental to its effectiveness. Legal Positivism and the Grundnorm An expansion of Han Kelsens Stufentheorie

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LAWS2140 - Notes Legal positivism was a dominant legal theory during the 19th century and influenced the development of Australian constitutional law. It essentially asserts that a law is valid if posited in the proper manner by a recognised authority. Implicit in this the question whether the body making the law has the legal power to do so. Hans Kelson, Pure Theory of Law (University of California Press, 1967; translated by M Knight from Reine Rechtslehre (Franz Deuticke, 2nd ed 1960)) Legal power must be conferred from a body higher in the legal hierarchy (Hans Kelsens Stufentheorie, or steps and stairs theory), and at the top of the hierarchy is the Constitution. For this source, power was conferred by earlier constitutional arrangements, yet should one go far back enough, the power was ultimately conferred by the Grundnorm, or basic norm, embodying the axiomatic assumption that that body had the force of law. Michel Foucault, Politics and the Study of Discourse (1978) 4 Ideology and Conscious 7 Where Kelsen seeks to construct a systematic framework for a pure (ahistorical and apolitical) theory of law that is characterised by hierarchy and unity, Foucaults approach is characterized by flux, inconsistency, discontinuity and change. Foucault insists that discourse can only ever be inconsistent and ruptured, and that only out of such a discourse can ideas originate. Coup dEtat FM Brookfield, Waitangi & Indigenous Rights: Revolution, Law and Legitimation (Auckland University Press, 1999) Two views may be adopted by the court when faced with a question of supra-constitutionality: - Older constitutionalist view that the court does not have the jurisdiction to rule on the legitimacy of a new government. It is bound by the previous constitution. - Newer view that all courts are authorised, if not required to decide upon the lawfulness of the new government. Such courts are said to assume supra-constitutional jurisdiction. This is arguably an extension of Kelsens concept of the grundnorm, as judges are given this right by virtue of their office, or rather the faith of a society upon their office. Cases on Coup dEtat 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. 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 [1989] LRC (Const) 24 Cullinan CJ of the High Court of Lesotho stated that A court may hold a revolutionary government to be lawful, and its acts to have been legitimated ab initio, where it is satisfied that (a) the government is firmly established, there being no other government in opposition thereto; and (b) the governments administration is effective in that the majority of the people are behaving, by and large, in conformity therewith Mitchell v Director of Public Prosecutions [1986] LRC (Const) 35 Haynes P stated that two further elements existed: (c) such conformity and obedience [must be] due to popular Page 3 of 43

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LAWS2140 - Notes acceptance and support and not mere tacit submission to coercion or fear of force; and (d) it must not appear that the regime was oppressive and undemocratic Republic of Fiji v Prasad [2001] 2 LRC 743 Facts: Prasad, an Indo-Fijian farmer, had been displaced when he and his family were forced off their land after a coup. Prasad sought a declaration that the 1997 Constitution remained in force and that the elected government of Fiji had not been lawfully dismissed. Law: From the four elements, the first three elements were accepted and the element of an oppressive and undemocratic government was not, with the rationale that the adherence to international human rights treaties is not relevant in determining the lawfulness of a government. Furthermore, it was added that conformity and obedience followed from popular acceptance. Qualifying Factors: Elections, length of time in which the de facto government has been in control, general popular acquiescence

Coup dEtat Tests Summarised 1. The first test, as stated by the High Court of Southern Rhodesia in Madzimbamuto v Lardner-Burke is one of effective control. Furthermore, it was held that if a former government is still striving for power, then there can be no such effective control. 2. Cullinan CJ of the High Court of Lesotho held in Mokotso v HM King Moshoeshoe formalised the test of effective control somewhat by specifying two qualifying requirements: a. A firmly established government with no opposition government b. Majority of the people behaving in conformity 3. In Mitchell v Director of Public Prosecutions, Haynes P had specified two further elements: c. Conformity and obedience must be due to popular acceptance and support, not a tacit submission to coercion or fear of force d. The regime must not be oppressive and undemocratic 4. The court held in 2001 in Republic of Fiji v Prasad that adherence to international human rights treaties is not relevant in determining the lawfulness of a government, therefore the fourth element, that of an oppressive and undemocratic regime, was struck down. Furthermore, popular acceptance already intimate conformity and obedience. Qualifying factors for these tests include the presence of elections, the length of time in which the de facto government has been in control, and general popular acquiescence. Week 3 The Westminster System Constitutional law serves to provide a stable and secure basis for the exercise of governmental power while also limiting this power. English Constitutional History The Magna Carta is important in its role of developing the values which later evolved into what is known as the rule of law. This Great Charter provided the basis for the idea that everyone is subject to the law by preventing the arbitrary exercise of power.

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LAWS2140 - Notes The Westminster System Parliament King made all important decisions with the advice of an assembly of the wisest men in the kingdom, known as the Witenagemot in England between the 7th century and 11th century. Together, the King and the Witan were the executive, the legislature, and the judiciary. After the departure of the Anglo-Saxon Kings, William I and his successors instead held Great Councils. During the thirteenth century, these councils became known as Parliaments. Particularly prominent within these councils were the three estates of the Realm: The Lords Spiritual, the Lords Temporal and the Commons. In 1265, Simon De Montfort summoned representatives of the commons, including Knights from the counties and two elected burgesses from the independent towns or boroughs with Royal Charters. In 1295, the Model Parliament of Edward I was summoned, including barons, knights, burgesses, senior clergy and lower clergy. The principle followed was that what touches all should be approved by all. The 16th and 17th century saw a constitutional struggle between the Monarchy and Parliament, as the Tudors and Stuarts sought to rule absolutely through an exercise of their royal prerogative. James II (1685-8) defied Parliament through a claim to his divine right, leading to the Glorious Revolution occurred, where Parliament openly resisted the King, who then fled. William III and Mary were then invited to accede and pass the Bill of Rights in 1689, ensuring parliamentary supremacy. FG Marcham, A Constitutional History of Modern England, 1485 to the Present (Harper & Brothers, 1960) The Star Chamber was established during the Tudor period. Its purpose was to remedy the defects of the established judicial system insofar as prosecuting those who did not get punished under the normal courts, but were believed to be deserving of punishment. The court had powers to gather evidence, examine the parties and hand out punishments without a confrontation between the accused and accuser, or even public examinations or written statements. Only sentencing was public. Goldwin Smith, A Constitutional and Legal History of England (Dorset Press, 1990) James I believed in the divine right of kings; the doctrine that stated that a king was appointed by God and answerable only to him. The King was above Parliament and the courts, whose powers were theirs only by the grace of the King rather than by any right. Sir Edward Coke, Chief Justice of the Court of Common Pleas, later Chief Justice of the Court of Kings Bench (1613), and later still a member of Parliament (1621), strongly opposed this doctrine, stating that the rights of all were defined by precedent, not by the King. Prohibitions del Roy (1607) 12 Co Rep 63; 77 ER 1342 Coke CJ stated that although the King had great natural reasoning, he could not dictate law as he stated because he lacked the artificial reasoning of lawyers. Alan Wong Page 5 of 43

LAWS2140 - Notes Bonhams Case In Bonhams Case, Coke drew particular criticism when he effectively struck down statute, asserting the right of judges to adjust such act to be void if it be repugnant to the common law. Cokes indifference to royal prerogative saw him in trouble, as he convinced eleven judges to ignore a summons on behalf of the Crown from Sir Francis Bacon, then Attorney-General, on the basis that his summons was illegal as all judges were bound by their oaths to delay no case. Although the eleven judges sided with James I over his claim to right to delay the case to review it, Coke refused to accede, and upon the request of the King, proceedings were began against Coke for failure to pay an installment of debt owed to Sir Christopher Hatton. Coke was removed from all office, and upon further refusal to edit his manuscript such that opinions critical of the royal prerogative would be taken out, was removed from all offices under the Crown in 1616. However, Coke was later elected to Parliament. The Glorious Revolution The Petition of Right 1628 to which Charles I yielded to the demand of parliamentary control of taxation was also drafted by Coke. The Interregnum that followed and the subsequent execution of Charles I in 1649 failed to produce a stable parliamentary alternative to monarchical rule, and in 1660, monarchy was restored by Charles II. In 1688, James II cast the Great Seal of the Realm into Thames and fled the country, at which point the Convention Parliament met and announced that the king had abdicated by his neglect of the people. The crown was given to William and Mary of Orange, ho accepted the declaration and enacted the Bill of Rights 1688. The Act of Settlement The Act of Settlement 1701 provided that the Kings pardon under the Great Seal would not be a bar to an impeachment by Parliament, that judges were to hold office during good behaviour instead of at the kings pleasure, that they were to be removed or have their salary altered upon address by both houses of Parliament and charges of misconduct proved in Parliament, that the Crown be a member of the Church of England, that England was not obligated to protect the foreign interests of a foreign king, that the king may leave England without parliamentary permission, and that any person that is employed under the king or receives a pension from the king be allowed to sit in the House of Commons. Bill of Rights 1688 (I Will & Mary, Sess 2 c 2) The rule of law was firmly installed and it was made clear that the King is subject to the decisions of Parliament. Both the Magna Carta and the Bill of Rights have continuing legal relevance in Australia through the reception of English law. Section 6 of the Imperial Acts Application Act 1969 (NSW) declares that the Bill of Rights and Magna Carta remain in force in NSW to the extent that they are not affected by other State or Imperial enactments in force in NSW. Limited Government

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LAWS2140 - Notes The government is limited by its purpose, leading to the sanctity of property from the government. Entick v Carrington (1765) 19 St Tr 1030 Two Kings messengers broke into Enticks house and stole papers alleged to be seditious writings. Entick sued for trespass, and Carrington argued that the warrant was legal as the power to issue such warrants was a valid power. Lord Camden CJ stated that If it is law, it will be found in out books. If it is not to be found there, it is not law. State powers cannot be implied, they must be written in law. This reinforces the idea of limiting the powers of a government under the rule of law. Sommersetts Case (1772) 20 St Tr 1 A writ of habeas corpus was addressed to the captain of a ship where James Somersett, a Negro slave, as held in irons. The return to the writ asserted that Somersett was a runaway slave who had been recaptured by his master, Charles Steuart, and was held in irons at Steuarts request. The court held that no one can be held without lawful reason to be held. The state must either try you or release you. AV Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 1st ed 1885, 10th ed 1959) The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever, and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament. Two limits exist on parliamentary power: External limit: That at any time the populace may disobey or resist the laws put forward by Parliament Internal limit: The limitations placed by the moral feelings of the time and the society to which he belongs Although a written constitution and judicial review detract from parliamentary sovereignty, it must be asked how often the courts review statute. Only rarely will the courts interfere. Rule of Law According to Dicey, the rule of law can be regarded from three different points of view. 1. Firstly, it refers to the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, that a man can be punished for a breach of the law, but for nothing else 2. Secondly, that before the law, everyone is equal 3. Lastly, that the law of the constitution is not the source but the consequence of the rights of individuals, as defined and enforced by the courts Alan Wong Page 7 of 43

LAWS2140 - Notes According to WI Jennings: - The rule of lawrequires that the powers of the Crown and of its servants shall be derived from and limited by either legislation enacted by Parliament or judicial decisions taken by independent courts. - Contains the notion of equality, yet equality before the law does not imply that property should be distributed equally, nor that the same laws should apply to all persons in the same state; nor imply political equality (e.g. children dont vote). What equality before the law means is that it assumes that among equals the laws should be equal and should be equally administered, that like should be treated alike According to Julius Stone: - Doctrine of the rule of law lies in the recognition by those in power that their power is wielded and tolerated only subject to the restraints of shared socio-ethical convictions - It is artificial and confusing to juxtapose the rule of law and the sanctity of human rights as if they were competing ideals - Substantive law must respond to needs of social and economic development - The rule of law in any case, does not demand a uniform rule on all matters for every person in society, regardless of the merits of varying situations According to the International Commission of Jurists: - The rule of law can be characterised as the principles, institutions and procedures, not always identical, but broadly similar, which the experience and traditions of lawyers in different countries of the world, often having themselves varying political structures and economic backgrounds, have shown to be important to protect the individual from arbitrary government and enable him to enjoy the dignity of men High Court judges have accepted the rule of law as an implicit but not defined part of Australias constitution (Separation of powers is a traditional conception of the Constitution, Communist Party Case; Largely unexplored concept, Hindmarsh Island Bridge Case). Development of the rule of law: Bill of Rights 1688 entrenched the rule of law at common law. Act of Settlement 1701 dictated that judges were independent of the Crown Entick v Carrington (1765) held that State powers cannot be implied, but rather must be written in law Sommersetts Case (1772) stated that no one could be imprisoned without reason. One must be tried or released. Week 4 Federation to Popular Sovereignty The Constitution completed its passage through that Parliament on 5 July 1900, was assented to by the Queen on 9 July 1900, and came into force on 1 January 1901.

Patrick Parkinson, Tradition and Change in Australian Law (LBC Information Services, 2nd ed 2001)

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LAWS2140 - Notes By 1855, bicameral legislature and responsible government had already begun to emerge in a number of colonies Impetus for federation came from Britains Colonial Secretary, Earl Grey, who tried to introduce a Bill which later became the Australian Constitutions Act 1850 Inter-colonial co-operation was desirable, if not necessary in the presence of customs tariffs at colony borders (Although free trade was desirable by NSW, it was spurned by Victoria who wished to protect its local industries, and affected the revenue of all colonies) Smaller colonies had the potential to lose their identity in the larger mass, and larger colonies had the possibility of a requirement to subsidise the struggling economies of Tasmania and South Australia hanging over them Fear of common enemies was one cause of co-operation Henry Parkes, the Premier of New South Wales at the time, was a highly influential proponent of federation, and was instrumental in encouraging discussion in the 1890s. He organised a conference in Melbourne in 1890, which led to the National Australasian Convention which met in Sydney in 1891. The Canadian Constitution was examined as well, as well as the American Constitution, which provided an example of the protection of States rights, as well as the idea that the Senate should consist of an equal number of members from each State while the House of Representatives should reflect the national distribution of population. It was early perceived that a suitable constitution for Australia would marry the American concept of a Senate representing each State equally with the Westminster system of government by which the government of the day, with its ministers drawn from the ranks of the Parliament, would be required to maintain the confidence of the popularly elected lower House. Upon a vote for a draft Constitution, NSW failed to meet its quorum of voters stated by its enabling legislation, resulting in another round of negotiations between premiers. Most importantly, a proviso was added which enabled Parliament to grant financial assistance to any State on such terms and conditions as it saw fit. Upon an Address requesting the Queen to enact the Bill in Westminster Parliament so as to provide a legal basis for federation (An order of paramount force was required so as to sanction this exercise and make it applicable to colonies such as WA), the imperial government insisted that on constitutional matters, the High Court should have the right to determine if the matter was should be heard in the Privy Council.

George Williams, Human Rights Under the Australian Constitution (Oxford University Press, 1999) Dicey argued that civil liberties can be adequately protected through the common law and political processes without the incorporation of guarantees of rights in a written constitution. Dicey has stated that a Bill of Rights is unnecessary as the current channels are appropriate, with other theorists saying that the inclusion of a Bill of Rights reflects poorly upon the our civilization. John Gordon of South Australia followed the line of argument that such equality was so implicit that if we were to include such a Bill of Rights, might you not as well say the states should not legalize murder.

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LAWS2140 - Notes Constitutional Commission, Final Report of the Constitutional Commission Features of the Constitution include: o Establishment of a central, Federal Government and State Governments, each with its own governmental institutions o A distribution of authority between Federal and State Governments o A judicial authority appointed by the Federal Government to provide judicial review of powers o The supremacy of federal laws over State laws in cases of inconsistency o The entrenchment of these features in a rigid framework that is difficult to alter Aspects of the Constitution reflect its federal nature, such as its push for fair treatment between States and representation in the Senate Brian Galligan and Cliff Walsh, Australian Federalism Yes or No? For the most part, the Australian founders focused more on the practical issue of getting the support of all the colonies rather than a detailed exposition of federalism and its advantages. However, this is not to say the Constitution is thus void of such consideration. James Gillespie, New Federalisms It is argued that the division of powers acts as a guarantee that the state will not become too large or oppressive. Rival levels of government, each with their own democratic franchise, set a major barrier to the concentration of political power in too few hands Federalism also provides a check on unconstitutional exercises of power outside the right of a government to legislate The slowness of legal decision-making processes places an emphasis on the concept of due process, limiting arbitrary action by the state Proponents of Federalism such as Galligan, Knopff and Uhr argue that a federal constitution is itself a bill of rights as it guarantees due process in government Commonwealth v Kreglinger & Fernau Ltd (Skin Wool Case) (1926) 37 CLR 393 Doctrine of Extraterritoriality still applies Broad interpretation: An exercise of colonial legislative power is invalid unless its operation has sufficient connection with the geographical area of the legislating colony Narrow Interpretation: A colonys laws can never have any operation outside its territorial borders Statute of Westminster 1931 (Imp) This Act (s 2) freed the Dominions, including the Commonwealth, from Imperial restrictions by excluding the operation of the Colonial Laws Validity Act and thereby the repugnancy doctrine and the doctrine of extraterritoriality. Alan Wong Page 10 of 43

LAWS2140 - Notes Under s 4, the British Parliament could still legislate for Australia, but only with the request and consent of the Commonwealth Parliament. The Australia Act The Australia Act 1986 (Cth) was assented to on 4 December 1985 and came into operation on 3 March 1986 when it was proclaimed by Elizabeth II in Canberra. This Act bought an end to the continued application and paramountcy of Imperial laws in the Australian States. The Act also removed the ability of British Parliament to legislate for Australia (s 1), removed the doctrine of extraterritoriality (s 2) and removed the doctrine of repugnancy (s 3) insofar as each applied to the States. Sue v Hill (1999) 199 CLR 462 Heather Hill stood for the Senate in Queensland in the 1998 federal election, but was disqualified because she had not renounced her UK citizenship. Hill resisted the argument that the UK is a foreign power on the basis that so long as the UK retained any residual influence upon legislative, executive, or judicial processes in Australia, they cannot be foreign to Australia. Gleeson CJ, Gummow and Hayne JJ responded by showing that since the Australia Act, the UK retains no such influence, on either an executive, legislative (s 1 of Australia Act), or judicial level (Termination of appeals to Privy Council). Popular Sovereignty Sir Owen Dixon, The Law and the Constitution (1935) 51 Law Quarterly Review 590 It [The Constitution] is not a supreme law purporting to obtain its force from the direct expression of a peoples inherent authority to constitute a government. It is a statute of the British Parliament enacted in the exercise of its legal sovereignty over the law everywhere in the Kings Dominions. As the Australia Act has diminished, if not extinguished the continuing legal relevance of the Imperial legislation, the opening recital Whereas the people has assumed a deeper significance. It may also supply a persuasive explanation of why the Constitution is binding Geoffrey Lindell, Why is Australias Constitution Binding? The Reasons in 1900 and Now, and the Effect of Independent (1986) 16 Federal Law Review 29 The legal status of the Constitution was derived from the fact it was contained in an enactment of the British Parliament. The political legitimacy or authority was based on the words contained in the preamble which refer to the people of the Australian colonies having agreed to unite in a Federal Commonwealth. Since the 1900s, several important changes have occurred: The development of Australias independence in the eyes of the international community; the inability of the British Parliament to legislate for Australia; and the ability of both Commonwealth and State Parliaments to alter or repeal British statutes of any kind other than the Constitution and Australia Acts. the Alan Wong Page 11 of 43

LAWS2140 - Notes Constitution now enjoys its character as a higher law because of the will and authority of the people. Even before the Australia Act, Murphy J stated in Bistricic v Rokov that the Constitution was binding because of its continuing acceptance by the Australian people. George Williams, The High Court and the People In Hugh Selby (ed), Tomorrows Law (Federation Press, 1995), 271 Problems with Justice Deanes assertion in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 that the present legitimacy of the Constitution lies exclusively in the original adoption (by referenda) and subsequent maintenance (by acquiescence) of its provision by the people: o Approval by referenda Only 52% of persons eligible to vote at the referenda did so, with only narrow support in NSW (56%/52% 1899/1898) and Queensland (55% in 1899). On top of this, the Aboriginal people were not granted voting rights until 1965, and women were only able to vote in SA and WA. Not one of the drafting delegates was female, or of Aboriginal background o Approval by acquiescence Australians do not go about deciding whether to continue to acquiesce to the existing constitutional structure. That they are reluctant to amend the Constitution does not mean that they continue to support it. Indeed, how can the populace acquiesce to something they are largely ignorant of? (Civics Expert Group report on citizenship in 1994)

Helen Irving, The People and their Conventions In Cooper, M and Williams, G (eds), Power, Parliament and the People (Federation Press, 1997), 113 Despite the low number of votes actually cast for the new constitution, Federation can still be regarded as a popular process. We dont know the reasons why people did not vote. It may be due to rejection, alienation from the processes, complaisance, or even approval and acceptance. Week 5 Indigenous Peoples and the Question of Sovereignty Orthodox sources of law include statute, common law, international law, and traditional law or custom. USA, Canada and NZ have recognised indigenous peoples as domestic dependant nations. Mabo (No 2) and the Wik Case took care to avoid undermining the skeleton of the Constitution, recognising the customary laws and entitlements of indigenous peoples only to the extent that the norms of the constitutionally established nation allowed such recognition. Common law recognition of native title is not equal to indigenous sovereignty.

Voting Rights and the Constitution Prior to Federation, Indigenous Australians could vote except in Queensland (s6 of Elections Act 1885) and Western Australia (s12 of the Constitution Amendment Act 1893). Alan Wong Page 12 of 43

LAWS2140 - Notes Section 4 of the Commonwealth Franchise Act 1902 (Cth) specifically denied the voting rights of aboriginal native[s] of Australiaunless so entitled under s 41 of the Constitution. However, s 41 had been read down to a transitional provision, and as such, did little by way of granting any rights. Further, in 1912 Sir Robert Garran amended the Electoral Handbook such that Aborigines who could have voted under s 41 that were not on the roll were denied the right to vote. It was not until 1962 that the Commonwealth Electoral Act 1918 (Cth) was amended to extend universal adult suffrage to Aboriginal people. However, it was not until 1983 that Indigenous people gained equality of voting rights as the Commonwealth Parliamentary Committee recommended that compulsory enrolment should apply to all Australians. Aboriginal natives were no longer referred to in Commonwealth electoral legislation. Mabo v Queensland (No 2) (1992) 175 CLR 1 Brennan J: Terra Nullius is a legal fiction which has no place in the contemporary law of this country While it has been accepted that Australia was not settled, the rules applicable to a conquered land have been adopted Impact of international law 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 when international law declares the existence of universal human rights Sovereignty does not grant full beneficial ownership of land The radical title which is acquired with the acquisition of sovereignty cannot itself be taken to confer an absolute beneficial title to the occupied land Native title can be extinguished through positive acts Native title could be extinguished without compensation by clear and unambiguous legislative action Native title may be awarded Maintenance of the connexion with the land, observance of customs based on traditions of that clanthe traditional community title of that clan can be said to remain in existence. Must remain as an identifiable communityHowever, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared Minority held that: Deane and Gaudron JJ: Compensation must be achievable for Aborigines for prior dispossession (s51(xxxi) of the Constitution) Toohey J: Fiduciary duty is owed by the government to Indigenous people Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 Olney J: [B]efore the end of the 19th century the ancestors through whom the claimants claim title had ceased to occupy their traditional lands in accordance with their traditional laws and customs. The tide of history has indeed washed away any real acknowledgement of their Alan Wong Page 13 of 43

LAWS2140 - Notes traditional laws and any real observance of their traditional customs. Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 Appeal to the High Court dismissed 5:2. The only native title rights which the new sovereign order recognised were those that existed at the time of change in sovereignty. Whilst these rights survived, any new arising rights or interests would find their roots in the legal order of the new sovereign power. It must be shown that the society, under whose laws and customs the native title rights are said to be possessed, has continued to exist throughout the period The findings we have identified are...that the forebears of the claimants have ceased to occupy their lands in accordance with traditional laws and customs, and that there was no evidence that they continued to acknowledge and observe those laws and customs. Upon these findings, the claimants must fail.

Sovereignty and Self-Determination Coe v Commonwealth (No 2) (1993) 118 ALR 193 Mason CJ sitting alone. Wiradjuri claimed that Aboriginal sovereignty existed and in act of settling, the Commonwealth had committed genocide. Mason CJ rejected such an argument because they were inconsistent with the precedent set by Mabo (No 2) regarding sovereignty. Sovereignty cannot be challenged in a municipal court. Walker v NSW (1994) 182 CLR 45 Mason CJ sitting alone. Bandjalung people claimed NSW criminal law did not apply to them because NSW had not received consent from the people to try Walker; seeking recognition of Indigenous customary law. Even if it be assumed that the customary criminal law of Aboriginal people survived British settlement, it was extinguished by the passage of criminal statutes of general application Erica-lrene Daes, Some Considerations on the Right of Indigenous Peoples to SelfDetermination (1993) 3 Transitional Law and contemporary Problems 1 The Declaration of the Granting of Independence to Colonial Countries and Peoples (Contained in an adopted General Assembly resolution) expressly provides that all peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. External self-determination the act by which a people determines its future international status and liberates itself from alien rule may be distinguished from internal selfdetermination, which includes the selection of both the desired system of government and the substantive nature (democratic, socialist, or other) of the regime selected. Alan Wong Page 14 of 43

LAWS2140 - Notes Larissa Behrendt, Achieving Social Justice: Indigenous Rights and Australias Future (Federation Press, 2003) Sovereignty does not necessarily mean the creation of a new nation. It can refer to representative government, recognition of cultural distinctiveness and freedom of the individual. Council for Aboriginal Reconciliation, Recognising Aboriginal and Torres Strait Islander Rights (AGPS, 2000) In international law, self-determination is the right of all peoples to freely determine their political status and to pursue their own economic, social and cultural development Notes: The large grey area left in discussing self-determination and sovereignty leaves much room to maneuver, and many avenues to explore There is nothing automatic in the creation of a separate nation state. It is highly circumstantial. Sovereignty is a starting point, not an end point. Although an extreme case will allow for the separation of a nation case, this argument must be tempered by pragmatism. Still, there is much leeway to have a coexisting degree of sovereignty within the current legal framework. If changes are made, enshrined constitutional changes are more desirable

Week 6 Voting and Election to the Federal Parliament Sections 7 and 24 of the Constitution require that the members of the Senate and the House of Representatives be directly chosen by the people. It was held by the court in R v Pearson; Ex parte Sipka (1983) 152 CLR 254 that s 41 does not confer an express right to vote. However, ss 7 & 24 can be argued to grant an implied right to vote, as held in Roach v Electoral Commission [2007] HCA 43. Commonwealth Electoral Act 1918 (Cth) sets out the criteria for voting and elections. Compulsory to vote since 1924 (s 245(1) Commonwealth Electoral Act 1918). Failure to vote if eligible without sufficient reason results in a fine of $20, or fine of $50 if dealt with by a court.

Commonwealth Electoral Act 1918 (Cth) One can vote if: Section 93(1): Can vote if over 18 and an Australian citizen or on the electoral roll or a non-citizen who would have been a British subject prior to 26/01/1984 Circumstances where one is prohibited from voting: Section 93(7): Those who are holders of a temporary visa or an unlawful non-citizen under the Migration Act 1958 Section 93(8)(a): Of unsound mind Section 93(8)(b): Serving a sentence of 3 years or longer Section 93(8)(c): Convicted of treason or treachery and has not been pardoned Sections 94 and 94A: Living overseas with no intention of returning for 6 years Alan Wong Page 15 of 43

LAWS2140 - Notes Langer v Commonwealth (1996) 186 CLR 302 Section 240 of the Commonwealth Electoral Act requires sequential numbering of candidates on a ballot sheet. Section 329A stipulates that it is an offence to encourage persons to fill in ballots other than in accordance with s 240. Langer argued s 329A was invalid as it was unconstitutional given that it infringed the implied constitutional freedom of political communication. Furthermore, Langer argued that s 240 as it is inconsistent with s 24 of the Constitution insofar that representatives be directly chosen by the people, as the people, if choosing freely, must be free not to choose by not numbering every square. All six judges held that s 240 was valid. Majority of 5:1, Dawson J dissenting, held that s 329A was also valid. Brennan CJ: The power to enact s 329A in order to protect what the Parliament intends to be the primary method of choosing members of the House of Representatives Furthermore, s 24 of the Constitution does not limit the parliaments selection of the method of voting by which a voters choice is made known so long as the method allows a free choice. Dawson J (dissenting): The choice must be genuine and informed. Section 329A suppresses the information about voting alternatives necessary to make an informed choice. Therefore, it is not a free choice. After the 1996 Election, s 240 was amended to include the words consecutive numbers, without the repetition of any number and s 329A was repealed in the Electoral and Referendum Amendment Act 1988 (Cth). Right to Vote King v Jones (1972) 128 CLR 221 Susan King argued that she was an adult person, relying on the Age of Majority (Reduction) Act 1970 (SA). As an adult person she argued that she was entitled by s 41 to exercise voting rights in federal elections equivalent to those she had acquired in SA The court unanimously held that the constitutional use of the word adult in s 41 was held to be fixed with the meaning it had in 1901. Obiter: Section 41 only applied to people in 1901, thus King received her State franchise 70 years too late to use s 41 in order to gain a Federal franchise Stephen J viewed s 41 as an entitlement to the Federal franchise for those State-enfranchised electors who fall within its terms by means of a constitutional guarantee Menzies J held more specifically that s 41 is not a provision to make temporary arrangements for the period between the establishment of the Constitution and the making of Commonwealth Alan Wong Page 16 of 43

LAWS2140 - Notes laws. Rather, it applies to a person, who, in 1901, had or who, in the future, acquires particular voting rights by the laws of a State. R v Pearson; Ex parte Sipka (1983) 152 CLR 254 Despite the ruling in King, the court held in favour of the transitional view. In a 6:1 majority, Murphy J dissenting. Brennan, Deane and Dawson JJ: That definition of the constitutional franchise was to yield to a statutory franchise when the parliament, empowered by s 51(xxxvi), defined the qualification of electors of members of the parliament. Voting at elections of the Commonwealth Parliament cannot be prevented by any law of the Commonwealth but s 41 does not in terms confer a right to vote After enactment of Commonwealth Franchise Act 1902 (Cth) no person could acquire the right to vote at federal elections save in accordance with its terms. It follows that the practical effect of s 41 is spent. The only application of s 41 was when it was first enacted; it was an interim measure Quick and Garran similarly suggested in 1901 that the section is merely a transitional provision designed to preserve the voting rights of SA women. Murphy J (dissent): Section 41 is one of the few guarantees of the rights of persons in the Australian constitution. It should be given the purposive interpretation which accords with its plain words, with its context of other provisions of unlimited duration, and its contrast with transitional provisions. Its words are not transitional. Guarantees of personal rights should not be read narrowly and the Constitutional is not to be mocked. Eligibility for Election Section 163 of the Commonwealth Electoral Act 1918 (Cth) specifies who is eligible to be elected to the federal parliament: Section 163(1) o (a) 18 years or over o (b) Australian citizen o (c) is either: (i) an elector entitled to vote at a House of Representatives election (ii) a person qualified to become such an elector Disqualifying factors (Constitution) Section 43: A member of either house of the parliament shall be incapable of being chosen or of sitting as a member of the other house Section 44: Any person who: o (i) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power: or Alan Wong Page 17 of 43

LAWS2140 - Notes o (ii) Is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or o (iii) Is an undischarged bankrupt or insolvent: or o (iv) Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or This subsection does not exclude Ministers of State, pensioners, persons in the army or navy o (v) Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons Note: The exclusion of permanent officers of the executive government from the House was recognition of the incompatibility of a person at the one time holding such an office and being a member of the house. There are three factors that give rise to that incompatibility: (1) performance by a public servant of his/her public service duties would impair his/her capacity to attend to the duties of a member of the House (2) risk that a public servant would share the political opinions of the minister of his/her department and would not being to bear as a member of the House a free and independent judgment (3) membership of the House would detract from the performance of the relevant public service duty Re Webster (1975) 132 CLR 270 Websters family-owned company had, at various times in 1973 and 1974, submitted quotations and tenders, accepted offers and entered into contracts for the supply of timber to Commonwealth departments. Issue: Whether s44(v) of the Constitution precluded his lawful seat as a senator given the existence of a direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth within the meaning of the Constitution. Court: Section 44(v) has been replaced, its wording was obscure and anachronistic (out of date; belonging to another time period), and that its application should therefore be narrowly confined Since the contracts between Websters company and the Commonwealth were not ongoing, there was no pecuniary interest on either side and therefore Webster was not disqualified from his seat in the Senate. This decision was controversial as Barwick CJ chose not to refer the case to a full bench, as well as being a former Liberal party politician As a direct result of this case, the Common Informer (Parliamentary Disqualifications) Act 1975 (Cth) was enacted, replacing the 100/day penalty outlined in s 46 of Constitution with $200/day. In re Wood (1988) 167 CLR 145 Alan Wong Page 18 of 43

LAWS2140 - Notes Robert Wood was elected as a NSW senator The High Court held that Wood had not been validly elected into the NSW Senate as he was a British citizen Section 163(1)(b) Commonwealth Electoral Act required any person wishing to be elected must be an Australian Citizen The issue of s 44(i) of the Constitution must be left for another day Sykes v Cleary (1992) 176 CLR 77 Cleary, an independent, was elected to the seat of Wills. The Liberal Party candidate was Delacretaz and the Labor Party candidate was Kardamitsis Cleary had been a secondary school teacher employed by the Victorian Education Department under the Teaching Service Act 1981 (Vic). He had been on leave without pay for almost two years but he did not resign from his position in the teaching services until after his nomination and after the election day. He resigned before the result of the election was announced The High Court unanimously held that Cleary was the holder of an office of profit under the Crown within the meaning of s 44(iv) and, by 6:1, Deane J dissenting, that he was incapable of being chosen or of sitting as a member of the House of Representatives The court held that the taking of leave without pay by a person who holds an office of profit under the Crown does not alter the character of the office which he/she holds The majority held that being chosen in s 44 refers to the entire process of being chosen, of which nomination is an essential part. Thus Cleary could only have avoided being caught by s 44(i) by resigning before lodging his nomination The other candidates (Delacretaz and Kardamitsis) were also disqualified since they had not taken every possible step to divest themselves (A 5:2 majority, Deane and Gaudron JJ dissenting, held that this must be done both within the Australian framework of law and within the framework of law within their home countries. Gaudron J stated only the domestic framework of law was relevant) of foreign citizenship, they remained entitled to the rights or privileges of a subject or a citizen of a foreign power within the meaning of s 44(i). They were therefore incapable of being chosen or of sitting as members of the House of Representatives Sue v Hill (1999) 199 CLR 462 Ms Heather Hill of the One Nation Party was elected to the Queensland Senate. She was a British and Australian Citizen. After election, she went through the proper procedures (Payment or $135 and relinquishment of British passport) to further renounce her British Citizenship Under s 44(i) of the Commonwealth Electoral Act 1918 (Cth) it was determined that the UK constituted a foreign power and thus Hills election was invalid Gleeson CJ, Gummow and Hayne JJ: The circumstances that the same monarch

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LAWS2140 - Notes exercises regal functions under the constitutional arrangements in the United Kingdom and Australia does not deny the proposition that the United Kingdom is a foreign power within the meaning of s 44(i) of the Constitution. Section 1 of the Australia Act 1986 (Cth), in terminating the power of the Parliament of UK to legislate for Australia, meant that at least since 1986 with respect to the exercise of legislative power, the UK is to be classified as a foreign power. Roach v Electoral Commission [2007] HCA 43 First time the court had been asked openly to rule on whether or not the Constitution gave an express right to vote rather than merely providing dicta There are parts of a right to vote that is entrenched in the Constitution, that Parliament cannot remove Background: Section 93 of the Commonwealth Electoral Act 1918 (Cth) states that those with a prison term of 3 years or more have no right to vote. Parliament passed a package of electoral changes, such that no prisoners serving a sentence had a right to vote Issue: Can Parliament issue such a blanket ban on the right to vote? The High Court held that, at the very least, there was some kind of constitutional requirement that people be allowed to vote, subject to limitations Sections 7 and 24 state that the government shall be directly chosen by the people of the Commonwealth. The Court discerned that the words directly chosen carry an implication that this is a system of representative government. These sections are a constitutional protection of the right to vote. The Gleeson court demonstrates a great reluctance to frame notions of the Constitution in terms of international rights, providing a conservative framing. The court was at pains to minimise controversies surrounding it by taking care to distinguish the system in Australia from the international framework A blanket ban loses the rational connection, the proportionality of achieving universal suffrage, and is repugnant to any notions of respectable limitations Most of the people in the prison system are on remand. There must be a presumption of innocence. If a blanket ban was applied, the law becomes arbitrary and loses its connection with the sense of community involvement. Many factors such as the location of ones home impact adversely and would result in one being denied the right to vote if a blanket ban was laid down. The proportionality of ones wrong is thus violated Week 7 State Constitutions State Legislative Power It is sometimes suggested that the formula peace, welfare [order] and good government [For NSW, Constitution Act 1902 (NSW)] might be judicially construed as a limitation on parliamentary sovereignty (BLF Case by Street CJ). Building Construction Employees and Builders Labourers Federation of New South Wales v Minister for Industrial Relations (BLF Case) (1986) 7 NSWLR 372

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LAWS2140 - Notes A union that was in the process of being deregistered appealed to the Supreme Court of NSW. Its case was dismissed by Lee J. Before the appeal could progress, the NSW Parliament passed the Builders Labourers Federation (Special Provisions) Act 1986 (NSW) to resolve any doubts on the appeal Argument: The Act was invalid because s 5 of the NSW Constitution- was contrary to the purpose of peace, welfare, and good government. This argument failed, as did a separate argument that the Act was invalid because it breached a doctrine of separation of powers in the NSW Constitution. See Kirby P below Street CJ: Accepting restrictions: It has plenary powers. But they are circumscribed or limited by the requirement of the peace, welfare, and good government of New South Wales. The limit may well be wide and extensive. Ultimately, however, it is a binding limit. Laws inimical to, or which do not serve, the peace, welfare, and good government of our parliamentary democracy, perceived in the sense I have previously indicated, will be struck down by the courts as unconstitutional Kirby P (dissenting): Rejecting restrictions: Those words have hitherto been seen as an ample grant of power in all cases whatsoever Kirby P also rejects the notion of deep rights, arguing that despite lingering judicial temptation, respect must be given to the desirable notion of elected democracy. In regards to rights, Kirby P proclaims The chief protection lies in the democratic nature of our Parliamentary institutions. Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 The ship was registered in NSW. The respondent claimed damages from the owner of the ship depending on a particular piece of legislation. The company argued that this Act was not for the peace, welfare and good government because of the insufficient territorial connection This argument was rejected by the court, overruling the decision in the BLF Case. The Court: The power to make laws for the peace, welfare, and good government of a territory is indistinguishable from the power to make laws for the peace, order and good government of a territory. Such a power is a plenary power and it was so recognized, even in an era when emphasis was given to the character of colonial legislatures as subordinate law-making bodies Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399 The High Court still left a method on the table so that they may review constitutional change, thereby allowing them to step in for extreme cases. Kirby J stood by his previous decision in BLF that the states had a plenary power without limitations. However, his Honour acknowledged that extreme laws might fall outside the constitutional presupposition, i.e. may not be a law of the kind envisaged by the Constitution. Jeffrey Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Clarendon Press, 1999)

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LAWS2140 - Notes Argument: We cannot simply rely on courts to protect us through rights so deeply rooted in the democratic system from any abuse by Parliament. What is to say that judges are not as morally infallible as Parliamentarians? A certain measure of trust should be placed with Parliament lest the power given to them be made redundant. If judges rather than Parliament had this ultimate authority, we would be in the same predicament. Their decisions would have to be accepted by people who rightfully or wrongfully, believed them to be unjust. And because judges, like legislators, are morally fallible, we would still face the danger of occasional, possibly egregious injustice Manner and Form Requirements Manner and form requirements are restrictive procedures for state constitutions. They restrict the legislative powers of the Parliament by requiring that laws on certain topics may only be enacted by a special and more difficult procedure. In this way, it is possible for a Parliament to restrain the powers of its successors. The proviso to s 5 of the Colonial Laws Validity Act 1865 (Imp) (provided that such Laws shall have been passed in such Manner and Form as may from Time to Time be required), as well as the proviso re-enacted in s 6 of the Australia Act 1986 (Cth), provided a basis for the this argument of binding successive Parliaments. Further, the Australia Act 1986 (Cth) states that if the requirements arent met then the legislation shall be of no force or effect. Constitution Act 1902 (NSW) Section 7A of the Constitution Act 1902 (NSW) was introduced as a means of forestalling any future attempts made by a government to abolish the Legislative Council. Section 7A(1) is said to entrench the status of the Legislative Council through the need for a referendum. Subsection 6 entrenched s 7A(1) making it doubly entrenched. Attorney-General (NSW) v Trethowan (1931) 44 CLR 395 High Court ruled 3:2, Duffy CJ and McTiernan J dissenting, that neither Bill could be presented for the Royal Assent without referendum Dixon J: [Section 5 of the Colonial Laws Validity Act] both confers power and describes the conditions to be observed in its exercise. It authorizes a representative legislature to make laws respecting its own constitution, its own powers and its own procedureThe power to make laws respecting its own procedure enables it to prescribe rules which have the force of law for its own conduct. Laws which relate to its own constitution and procedures must govern the legislature in the exercise of its powers, including the exercise of its power to repeal those very laws McTiernan J argued that s 7A could not operate to impose a referendum requirement. He insisted that the Parliament could not cut down its own powers in a way that would bind future Parliaments. It is in substance a law depriving the Legislature of power Findings of the court: If a manner and form provision is not doubly entrenched, a Parliament is free to legislate (explicitly or through implied rejection) first to remove the entrenchment and second to amend the protected provision

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LAWS2140 - Notes Week 8 The Executive I Prerogative Power The powers of the executive are defined and restrained by s 61 of the Constitution. Certain powers are now recognised by the common law, and to some degree, seen as incorporated into s 61. Sir John Comyns, A Digest of the Laws of England (4th ed by Samuel Rose, A Strahan, 1800) vol 6, sub voce Praerogative Prerogative (in the 1800s) was divided up into four main fields: 1. The Kings Prerogative 2. Prerogative as to Foreign Nations 3. Prerogatives in respect of the Kings own subjects, in Time of War 4. Prerogatives, which regard Time of Peace Because the prerogative powers depend on the common law, they are subject to modification by statute. A statutory regime may regulate the exercise of a prerogative power, stripping it of discretionary elements and imposing criteria and procedures Alternatively, a statutory regime may extinguish the prerogative, so that what was formerly an inherent power of government now depends wholly on statutes. An Australian Republic: The Options Republic Advisory Committee (AGPS, The Report of the Republic Advisory Committee, 1993), vol 1 According to HV Evatt, the prerogatives of the Crown fall under three categories: executive prerogatives under which the monarch had power to do various acts, e.g. execute treaties, declare war, coin money immunities and preferences such as the priority of Crown debts over those owed to other creditors, immunity from the ordinary process of the courts property rights such as the entitlement to royal metals, royal fish, treasure trove, etc. Attorney-General v De Keysers Royal Hotel Ltd [1920] AC 508 During World War I, the UK government requisitioned a hotel for use as the headquarters of the Royal Flying Corps. Although explicitly made pursuant to regulations under the Defence of the Realm Consolidation Act 1914 (UK), which provided for compensation, when the hotel owners claimed compensation, the government asserted that it had acted in the exercise of a prerogative power to take property without compensation The House of Lords held that the legislative scheme governed the matter, so that compensation was payable However, as to the relation between the legislative power and the prerogative power, no two Lords took quite the same view Ruddock v Vardalis (Tampa Case) (2001) 183 ALR 1 Alan Wong Page 23 of 43

LAWS2140 - Notes North J of the Federal Court held on 11 September 2001 that the rescuees, as he called them, had been detained without lawful authority (Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs (2001) 182 ALR 617) He ordered that they be released onto the mainland of Australia after which they would again have been detained, but this time with the opportunity to make a visa application under the Migration Act 1958 (Cth) The first step in his reasoning involved a finding that the handling of the rescuees aboard the Tampa had amounted to detention, since the government had shown itself committed to retaining control of the fate of the rescuees in all respects The second step in reasoning involved a rejection of the governments argument that the expulsion of non-residents from Australian waters is a valid exercise of prerogative powers. Two arguments made by North J were: o It was doubtful whether the supposed prerogative had ever existed o Even if it had existed, whatever the scope of the prerogative in this respect, it had now been wholly supplanted by the statutory scheme of the Migration Act 1958 (Cth) On appeal to a full court, this decision was overturned by a 2:1 majority, Black CJ dissenting. French J: The executive power can be abrogated, modified or regulated by laws of the Commonwealth. Its common law ancestry, the royal prerogative, was similarly subject to abrogation, modification or regulation by statute. There is no place then for any doctrine that a law made on a particular subject matter is presumed to displace or regulate the operation of the executive power in respect of that subject matter. Appears to suggest a more explicit abrogation in order to take effect. The power to determine who may come into Australia is so central to its sovereignty that it is not to be supposed that the government of the nation would lack under the power to prevent people not part of the Australia community from entering. There is a clear prerogative power to regulate. Migration Act does not impliedly abrogate the prerogative. The Migration Act confers power to Commonwealth government and control entry, it does not take power away and abrogate the power to prevent entry Black CJ (dissenting): The power to expel people entering Australia illegally derives only from legislation, and not from powers otherwise exercisable by the executive. There is an argument that a long period of disuse extinguishes the prerogative, because it would be illusory to say that parliament has, in such circumstances, made a choice to leave the prerogative in the Crowns hands. Review of the Migration Act shows that it provides for a very comprehensive regime relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens (Long Title) Effect of decision: Foreclosed by the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth), an Act which retrospectively authorised the detention of the rescues.

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LAWS2140 - Notes Geoffrey Lindell, Responsible Government In Finn, PD (ed), Essays on Law and Government: Principles and Values (Law Book Co, 1995) vol 1, 75 Professor Parkers definition of the English system of responsible government, or Westminster syndrome, in Australia 1. Ministers have to be members of parliament s 64 of the Constitution 2. Ministers require a majority in the popular house of Parliament to hold office 3. The Houses of the parliament (presumably the popular Houses) can be dissolved before the expiration of their maximum terms 4. Public servants must have different tenures from their Ministers Other hallmarks of a responsible government include: 1. The conventions that bind the Governor-General to act on Ministerial advice 2. Cabinet solidarity (it is rare to have a Cabinet consisting of members from both sides of Parliament) 3. Cabinet secrecy 4. The notion of Ministers being individually responsible to the Parliament. This concept operates, if at all, only in a truncated form 5. Collective ministerial responsibility Control of the Executive Responsible Government Hugh Emy and Owen Hughes, Australian Politics: Realities in Conflict (Macmillan, 2nd ed 1991) The major components of responsible government are: Executive authority is vested in a ministry whose members in Australia must be members of Parliament, to whom they are individually and collectively responsible Executive authority is bifurcated between the ministry and an appointed head of state, the Governor-General, acting on advice tendered by the Prime Minister on behalf of the ministry. Final political decisions lie with the Cabinet, chaired by the Prime Minister and with deliberations conducted in secret The Governor-General acts as the final component in the legislative process, and possess reserve powers to ensure the government does not breach the terms of the Constitution or undermine the principles of legitimacy from which its authority to govern derives The executive may be dismissed by losing an election or by losing a vote of confidence in the lower House. Policies are open to debate and open to scrutiny from both Houses Executive is supported and advised by a bureaucracy formed by members appointed and promoted on the basis of merit by independent selection procedures, enjoying security of tenure and anonymity Concept of a direct chain of accountability running from officials to a minister and so to Cabinet, to Parliament, and the Cabinet to the electorate Issues with this in Australia: Accountability Ministers do not necessarily possess control over their departments and public servants

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LAWS2140 - Notes Control Can Parliament call ministers to account or scrutinise the executive, when Australias party system means that the federal Parliament is usually controlled by the same party forming the executive Senates power to block supply under s 53 Governor-Generals reserve powers and the extent of discretion Ken Turner, Parliament In R Smith (ed), Politics in Australia (Allen and Unwin, 2nd ed 1993), 78 By convention, the government will resign if it no longer has the confidence in the lower House (Vote of no confidence) Where a Parliament has an upper house in which the government does not have a majority, there is greater scrutiny of government action Egan v Willis (1998) 195 CLR 424 Treasurer Michael Egan was called upon by the legislative council to table documents, but refused to do so since the cabinet had earlier agreed that Ministers should decline to comply with such orders When Egan refused to table the documents, the Legislative Council charged him with contempt and he was escorted out by the Usher of the Black Rod Egan brought an action seeking declarations he was not in contempt and that his removal into the street was a trespass, since he had been removed beyond the parliamentary precincts. The NSW Court of Appeal dismissed the claim that the resolutions were invalid, but held that a trespass had been committed. Egan appealed to the High Court. The issue before the High Court was limited to whether pars 2 and 3(a) of the resolution of 2 May 1996 were within the powers of the Legislative Council under the Constitution Act 1902 (NSW) The Court dismissed the appeal Gaudron, Gummow and Hayne JJ: What is reasonably necessary at any time for the proper exercise of the functions of the Legislative Council is to be understood by reference to what, at the time in question, have come to be conventional practices established and maintained by the Legislative Council On no view of the authorities did the action taken in passing and implementing pars 2 and 3(a) of the resolution go beyond the boundary of what is permissible McHugh J: The power to adjudge the appellant guilty of contempt of the Council and to suspend him for failing to produce the papers inheres in the Council by reason of its being part of the Parliament of NSW. Law: Parliament has a capacity to call the Executive into account. One aspect of responsible government is that the Executive is answerable to demands for the demand of documents by Parliament Egan v Chadwick (1999) 46 NSWLR 563

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LAWS2140 - Notes In resolutions of 24 and 26 November 1998, the Legislative Council again required Egan to table certain documents or deliver them to the Clerk. Again Egan refused, this time claiming that the documents were protected by legal professional privilege or lacking this, public interest immunity Again, he was found to be guilty of contempt and was escorted out by the Usher of the Black Rod Egan brought an action on the basis that his removal from the House constituted an assault, and argued that he could not be required to table documents protected by public interest immunity and legal professional privilege Spigelmen CJ: This court must decide what recognition should be given to a claim for public interest immunity in the context of determining the scope of a common law power to call for documents that satisfy the test of reasonably necessary for the performance by the Legislative Council of its constitutional functions. This requires a balancing of conflicting public interests. The immunity is not absolute. (Priestley JA added that there is no legal right to absolute secrecy is given to any group of men and women in government. As a minimum, the courts can compel production of the documents) The high constitutional functions of the Legislative Council encompass both legislating and the enforcement of the accountability of the Executive. Performance of these functions may require access to information the disclosure of which may harm public interest When the issue of access to Cabinet documents has arisen in the context of claims for public interest immunity in the course of litigation, the courts have recognised the significance of Cabinet confidentiality as an application of the principle of collective responsibility However, a distinction has been made between documents which disclose the actual deliberations within Cabinet and those which are described as Cabinet Documents Held by the court: The power should, at least, be restricted to documents which do not, directly or indirectly, reveal the deliberations of Cabinet. Any document that reveals cabinet discussions are is sacrosanct The claim to legal professional privilege must yield to the accountability principle Week 9 The Executive II Constitutional Conventions A V Dicey, Introduction to the Study of Law of the Constitution (Macmillan, 1st ed 1885, 10th ed 1999) Laws are rules that are enforceable but the courts Conventions are regulatory in nature, but not enforceable by the courts Laws of the Constitution are rules that constitute constitutional law and are enforceable by the courts Conventions of the Constitution are maxims or practices which, while regulating the ordinary conduct of the Crown, Ministers and of other persons under the Constitution, are not truly laws insofar as failing to be enforceable by the courts Alan Wong Page 27 of 43

LAWS2140 - Notes Re Resolution to Amend the Constitution [1981] 1 SCR 753; (1981) 125 DLR (3d) 1 The legal status of conventions was called into question before the Supreme Court of Canada In 1981, both Houses of the Canadian Parliament, against the wishes of several Canadian provinces, adopted a resolution requesting British Parliament to pass legislation amending the Canadian Constitution In a 6:3 majority, the Supreme Court held that a constitutional convention existed that stated that Parliament would not request amendments to the Canadian Constitution affecting the powers, rights or privileges of the provinces without first obtaining a substantial degree of provincial consent In a 7:2 majority, the Court also held that the convention did not impose a legal requirement Colin Hughes, Conventions: Dicey Revisited in Patrick Weller and Dean Jaensch (eds), Responsible Government in Australia (Drummond Publishing, 1980) Constitutional conventions provide the flesh which clothes the dry bones of the law; they make a legal constitution work; they keep it in touch with the growth of ideas. Marshall and Moodie: The crucial questions must always be whether or not a particular class of action is likely to destroy respect for the established distribution of authority and whether or not it is likely to maintain respect for the constitutional system by changing (or sustaining) the distribution of authority. The Governor-General Section 2 of the Constitution provides that the Governor-General is the Queens representative in the Commonwealth and that he or she shall have and may exercise in the Commonwealth during the Queens pleasure, but subject to this Constitution, such powers and functions of the Queens as Her Majesty may be pleased to assign to him. Powers of the Governor-General include: Section 5 Dissolve, prorogue and summon Parliament Section 32 Issue writes for a general election of the House of Representatives Section 57 Dissolve both Houses of Parliament Section 58 Grant or withhold royal assent for Bills passed by the Parliament, and, if he or she wishes, return a Bill to the Parliament with proposed amendments Section 61 Exercise the executive power of the Commonwealth Section 64 Appoint Ministers of State Section 68 Act as Commander-in-Chief of the Commonwealth armed forces Republic Advisory Committee, An Australian Republic: The Options (AGPS, The Report of the Republic Advisory Committee, 1993), vol 2 The most important convention is that (subject to limited exceptions in relation to the reserve powers) the Governor-General acts only on the advice of responsible Ministers. If Ministers Alan Wong Page 28 of 43

LAWS2140 - Notes persist in their advice, the Governor-General is bound by convention to follow it. This convention ensures that decisions of government are controlled by Ministers who are responsible to the popularly elected lower House of Parliament There are four powers generally accepted as reserve powers: Appointing the Prime Minister Dismissing the Prime Minister A recourse of a last resort, an ultimate weapon which is liable to destroy its user. There are two situations in which it seems to be accepted that the Governor-General may dismiss a Prime Minister o Where the Prime Minister has been defeated in the lower House on a vote which is regarded as a vote of no confidence; and o Where the government is persisting in illegal or unconstitutional conduct There has been considerable debate in Australia as to whether the Governor-General may dismiss a Prime Minister who is unable to secure the passage of supply bills through the upper House. This has been argued on the grounds of an expression of no confidence. Refusing to dissolve Parliament Forcing a dissolution of Parliament Ian Harris (ed), House of Representatives Practice (AGP, 5th ed 2005) 11 November During the lunch suspension, Mr. Whitlam went to Government House for a prearranged meeting with the Governor-General, Sir John Kerr During the meeting, the Governor-General terminated Mr. Whitlams commission as Prime Minister The Senate passes the main appropriation bills 2:34pm Mr. Fraser announced to the House that the Governor-General had commission him to form a Government. The Speaker is informed by letter The House agrees to a motion to call the Honourable Member for Werriwa [Mr. Whitlam] to form a Government 3:15pm The Speaker suspends the sitting and seeks an appointment with the Governor-General. An appointment for 4:45pm is scheduled 4:40pm Both Houses are dissolved 4:45pm Double dissolution proclamation read 12 November Mr. Scholes, as Speaker, writes to the Queen expressing his serious concern about the actions of Sir John Kerr 17 November The Queens Private Secretary, at the command of Her Majesty, replied that the matter is clearly placed within the jurisdiction of the Governor-General by the Constitution Act Statement by the Governor-General, 11 November 1975 in JA Pettifer (ed), House of Representatives Practice (AGPS, 1st ed 1981) and Alan Wong Page 29 of 43

LAWS2140 - Notes Sir Garfield Barwick, Letter of Advice to the GG in JA Pettifer (ed), House of Representative Practice (AGPS, 1st ed 1981) The Governor-General released a statement, after obtaining advice from the Chief Justice of Australia, explaining his decision to dissolve Parliament. The letter from Sir Garfield Barwick essentially advised the Governor General, Sir John Kerr, that the Prime Minister could be removed and the Leader of the Opposition called to form a caretaker government; one which makes no appointments or initiates any policies. Additionally, it was held that the Senate has constitutional power to refuse to pass a money bill; it has power to refuse supply to the Government of the day. Furthermore, a Prime Minister who cannot ensure supply to the Crown, including funds for carrying on the ordinary services of Government must either advise a general election or resign. Week 10 The Separation of Judicial Power Baron de Montesqueiu, The Spirit of the Laws (transl T Nugent, Hafner Press, 1949) In every government there are three sorts of power: the legislative, the executive in respect to things dependent on the law of nations, and the executive in regard to matters that depend on the civil law. When the legislative and executive powers are united in the same person there can be no liberty Again, there is no liberty when the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined with executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers. Owen Hood Phillips and Paul Jackson, Constitutional and Administrative Law (Sweet and Maxwell, 7th ed 1987) The legislative function The making of new law and the alteration or repeal of existing law. Without a legislative body of some sort a state could not provide law readily enough to meet modern conditions. The executive function The general and detailed carrying on of government according to law, including the framing of policy and the choice of the manner in which the law may be made to render that policy possible. The judicial function Consists in the interpretation of the law and its application by rule or discretion to the facts of particular cases. The categories are inclined to be blurred. For example, the Constitution requires the executive to be members of the legislative Complete separation of powers would bring government to a standstill What the doctrine must be taken to advocate is the prevention of tyranny by the conferment of too much power on any one person or body, and the check of one power by another. Alan Wong Page 30 of 43

LAWS2140 - Notes Gerald Carney, Separation of Powers in the Westminster System Legislative Studies (Vol 8, No 2, Autumn 1994), 59 There seems to be no current constitutional system which adopts this complete separation of powers The strict doctrine is only a theory and it has to give way to the realities of government where some overlap is inevitable. But while permitting this overlap to occur, a system of checks and balances has developed The first three chapters of the Australian Constitution are headed respectively The Parliament, The Executive Government, and The Judicature. Implicit in this structure is a recognition of the separation of powers doctrine The Separation of Federal Judicial Power Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan (1931) 46 CLR 73 Dixon J suggested by way of obiter that by virtue of the separation of powers, Parliament was restrained both from reposing any power essentially judicial in any other organ or body, and from reposing any other than that judicial power in such tribunals. This embodied two principles: 1. Judicial power could not be vested in any tribunal other than a Ch III court; and 2. That a Ch III court could not be invested with anything other than judicial power (except for those ancillary powers which were strictly incidental to its functioning as a court) The combined effect of these propositions was that judicial and non-judicial power could not be mixed up in the same tribunal. R v Kirby; Ex parte Boilermakers Society of Australia (Boilermakers Case) (1956) 94 CLR 254 Metal Trades Employers Association sought to enforce a no-strike clause in an award Arbitration Court had made an order requiring the union to comply with the award (non-judicial power), and a further order fining the union for contempt of court by reason of disobedience to the earlier order (judicial power). In the High Court, the union obtained an order nisi from McTiernan J calling upon the judges of the Arbitration Court to show cause why a writ of prohibition should not issue on the ground that the vesting of judicial power in a body also exercising non-judicial power was unconstitutional. Dixon CJ, McTiernan, Fullagar and Kitto JJ: Commonwealth it must operate through or in conformity with Chap III. For that reason it is beyond the competence of the Parliament to invest with any part of the judicial power any body or person except a court created pursuant to s 71 and constituted in accordance with s 72 or a court brought into existence by a State A number of considerations exist which point very definitely to the conclusion that the Constitution does not allow the use of courts established by or under Chap III for the discharge of functions which are not in themselves part of the judicial power and are not auxiliary or incidental thereto

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LAWS2140 - Notes The basal reason why such a combination is constitutionally inadmissible is that Chap III does not allow powers which are foreign to the judicial power to be attached to the courts or created by or under that chapter for the exercise of the judicial power of the Commonwealth The effect of the Boilermakers Case was that the Court of Conciliation and Arbitration had been invalidly constituted ever since its restructuring in 1926, 30 years ago. However measures were taken by Parliament to preserve the validity of all decisions made within that timeframe through amendments to the Conciliation and Arbitration Act. Attorney-General (Commonwealth) v The Queen [1957] AC 288 Appeal of the Boilermakers Case to the Privy Council Lord Simonds (for their Lordhips): Section 71 and the succeeding sections, while affirmatively prescribing in what courts the judicial power of the Commonwealth may be vested and the limits of their jurisdiction, negative the possibility of vesting such power in other courts or extending their jurisdiction beyond these limits. It is Chapter III alone that the Parliament must have recourse if it wishes to legislate in regard to the judicial power R v Joske; Ex parte Australian Building Construction Employees & Builders Labourers Federation (1974) 130 CLR 87 Barwick CJ: The decision [in the Boilermakers Case] leads to excessive subtlety and technicality in the operation of the Constitution without, in my opinion, any compensating benefit. But none the less and notwithstanding the unprofitable inconveniences it entails it may be proper that it should continue to be followed. On the other hand, it may be thought to be so unsuited to the working of the Constitution in the circumstances of the nation that there should now be a departure from some or all of its conclusions Defining Judicial Power Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 Griffith CJ: I am of the opinion that the words judicial power as used in sec 71 of the Constitution mean the power which every sovereign authority 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 power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action. The imprecise nature of this definition has meant that tribunals whose functions might seem to overlap with judicial powers have nevertheless been held to be validly constituted if the particular grant of power is appropriately tailored to the legislative purpose. R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361

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LAWS2140 - Notes In this decision, it was held, (Menzies J dissenting), that the functions of the Trade Practices Tribunal, as defined by the Trade Practices Act 1965 (Cth), did not involve judicial power and were thus validly conferred. Kitto J: It has not been found possibly to frame an exhaustive definition of judicial power The powers must, of course, be performed in a judicial manner, that is to say with judicial fairness and detachment, but the same is true of many administrative powers Close examination of the relevant provisions of the Act shows, I think, that on one hand no exercise of any of the Tribunals powers is an adjudication, and that on the other hand the result achieved by an exercise of any of the powers is a result foreign to the nature of judicial power Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be declined as between those persons or classes of persons AR Blackshield, The Law in Power in Australia: Directions of Change (Centre for Continuing Education, Australian National University, 1981), 171 Judicial power is controlled power, in the sense that its exercise must be based on authoritative legal materials One the one hand, it is sometimes argued that the applicationstandards lies beyond the scope of judicial power because, in applying such standards, the individual personsmust necessarily bring into play their own subjective evaluations On the other hand, it is sometimes argued that the formulation of legislative guidelines so tightly definedas to leave the court no leeway for choice at all in its application of the predetermined law, is also incompatible with the idea of judicial power A court has a duty to act: whatever other discretions it may have, it typically lacks discretion both in the sense that it cannot embark on action of its own initiative, but must wait until a claim is filed or an application is made, and in the sense that it must then determine the issues raised by that claim or application. Exceptions to the Boilermkers Case Persona Designata Rule Although you cannot assign non-judicial powers to a Chapter III court, a person may be validly assigned to perform non-judicial functions even if the criterion by which they are selected is their federal judicial tenure, provided that the appointment is addressed to the individual person in their personal capacity and not to the court in which he or she sits. Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 Argument presented before the Federal Court that Davies J could not be validly appointed as a Deputy President of the Administrative Appeals Tribunal Bowen CJ and Deane J:

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LAWS2140 - Notes There is nothing in the Constitution which precludes a justice of the High Court or a judge of this or any court created by the Parliament under Ch III of the Constitution from, in his personal capacity, being appointed to an office involving the performance of administrative or executive functions including functions which are quasi-judicial in their nature Hilton v Wells (1985) 157 CLR 57 Argument raised that s 20 of the Telecommunications (Interception) Act 1979 (Cth) is unconstitutional as it provides that a Judge may authorise a warrant for the interception of telephone communications, where s 18 defines a judge to include a variety of individuals sitting in Chapter III courts Gibbs CJ, Wilson and Dawson JJ: The power conferred by s 20 is not ancillary or incidental to any judicial function. If s 20 confers power on the courts of which the judges to which it refers are members, it will therefore be invalid in so far as the court on which it confers the power is the Federal Court of Australia. It will be equally invalid in so far as it invests the Supreme Courts of the States with non-judicial power The nature of the power conferred is of importance in deciding whether the judge on whom it is conferred is intended to exercise it in his capacity as a judge or as a designated person Under s 20 the judge makes no order and nothing that he does is enforced under the Federal Court of Australia Act. He grants a warrant, the effect of which depends entirely upon the Telecommunications (Interception) Act. For these reasons we conclude that s 20 confers no power on the Federal Court and does not infringe the rule laid down in the Boilermakers Case Mason and Deane JJ (dissenting): We reject the notion that functions may be entrusted to a person as a judge, but not as a member of the court to which he belongs. The metaphysical notion of a judge acting in his character or capacity as a judge, at large, so to speak, detached from the court of which he is a member, cannot be supported as a matter of legal theory Parliament may confer non-judicial functions on a federal judge only where there is a clear expression of legislative intention that the functions are to be exercised by him in his personal capacity, detached from the court of which he is a member An observer might well think, with some degree of justification, that it is all an elaborate charade Grollo v Palmer (1995) 184 CLR 348 Brennan CJ, Deane, Dawson and Toohey JJ: The conception of persona designata is said to serve as a charade concealing the reality that a non-judicial power has been conferred on the judges of a Ch III court The conditions thus expressed on the power to confer non-judicial functions on judges as designated persons are twofold: first, no non-judicial function that is not incidental to a judicial function can be conferred without the judges consent; and, second, no function can be conferred that is incompatible either with the judges performance of his or her judicial functions or with the proper discharge by the judiciary of its Alan Wong Page 34 of 43

LAWS2140 - Notes responsibilities as an institution exercising judicial power (the incompatibility doctrine) Various situations exist which may give rise to the incompatibility doctrine: o Incompatibility might consist in so permanent and complete a commitment to the performance of non-judicial functions by a judge that the further performance of substantial judicial functions by that judge is not practicable o It might consist in the performance of non-judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions with integrity is compromised or impaired o Or it might consist in the performance of non-judicial functions of such a nature public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished The legislation is not invalid unless what we have referred to as the incompatibility condition precludes the vesting of power to issue interception warrants. For the reasons given earlier, that is not the case McHugh J (dissenting): The persona designata exception to the Boilmakers principle must give way when the exercise of non-judicial functions impairs a federal judges ability to perform judicial functions or when it would give rise to a reasonable doubt as to the independence or impartiality of a federal judge The maintenance of public confidence in the independence and impartiality of the Federal Court judgesis contingent upon the public perception that the judges...are impartial and entirely independent of the executive arm of government The public perception must be diminished when the judges of the Federal Court are involved in secret, ex parte administrative procedures, forming part of the criminal investigative process, that are carried out as a routine part of their daily work Week 11 Human Rights and Bills of Rights In identifying rights, context is important. However, certain rights are seen as universal In Gerhardy v Brown (1985) 159 CLR 70, Brennan J stated that an attempt to define human rights and fundamental freedoms exhaustively is bound to fail George Williams, Human Rights Under the Australian Constitution (Oxford University Press, 1999) Dicey argued that civil liberties can be adequately protected through the common law and political processes without the incorporation of guarantees of rights in a written constitution. Dicey has stated that a Bill of Rights is unnecessary as the current channels are appropriate, with other theorists saying that the inclusion of a Bill of Rights reflects poorly upon the our civilization. John Gordon of South Australia followed the line of argument that such equality was so implicit that if we were to include such a Bill of Rights, might you not as well say the states should not legalize murder.

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LAWS2140 - Notes Louis Henkin, The Age of Rights (Columbia University Press, 1990) Human rights are derived from accepted principles, or are required by accepted societal or individual ends, such as peace and justice, or human dignity and happiness respectively They are those benefits deemed essential for individual well-being, dignity and fulfillment and that reflect a common sense of justice, fairness and decency Human rights cannot be transferred Human rights are universal. They are human rights Human rights are rights, not merely aspirations Human rights may be fundamental, but they are not necessarily absolute. If a public emergency threatens the life of the nation, then such rights may be derogated to the extent that is necessary International Covenants include: Universal Declaration of Human Rights 1948 o Art 3 Right to life, liberty and security of person o Art 18 Right to freedom of thought, conscience and religion o Art 19 Right to freedom of opinion and expression o Art 20 Right to peaceful assembly o Art 26 Right to education International Covenant on Civil and Political Rights Adopted 16 December 1966; entered into force 23 March 1976; 999 UN Treaty Series 171 o Art 19 Freedom of expression o Art 26 Equal protection under the law International Covenant on Economic, Social and Cultural Rights Adopted 16 December 196; entered into force 3 January 1976; 993 UN Treaty Series 3 o Art 9 Right to social security o Art 11 Right to adequate standard of living Human rights in Australia: Magna Carta and the Bill of Rights have become diluted over the years Statutes such as the Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), Human Rights and Equal Opportunity Commission Act 1986 (Cth) Note that international covenants must be enacted before they gain legal recognition in Australia Common law Bill of Rights The Constitution of the United States of America Both positive rights (The right to do something) and negative rights (The right to have something not done to you) are not only conferred, but constitutionally enshrined at the Federal level

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LAWS2140 - Notes The fourteenth amendment was added to provide protection against the actions of States. It specifically states No State shall. Although express guarantees are evident, implied guarantees have also been held to exist through this amendment. It has been said to act as a gateway for the Supreme Court to render legislation vulnerable to the Bill of Rights. Notable phrases include: o No State shall make or enforce any law which shall abridge the privileges or immunities of citizens o nor shall any State deprive any person of life, liberty, or property, without due process of law Note the tension between judicial and parliamentary sovereignty in the enacting of a Bill of Rights. This tension was particularly acute in the case of Indias rights, as the Constitution is fully amendable by the Indian Parliament. In Kesavananda v State of Kerala, AIR 1973 SC 1461, the Supreme Court of India held that Parliament could amend the whole of the Constitution, including the fundamental rights, but not if it affects the essential features or basic structure of the Constitution, a decision with its reasoning derived from Victoria v Commonwealth (1971) 122 CLR 353. Standing Committee on Law and Justice, A NSW Bill of Rights (NSW Parliament, Report No 17, October 2001) A Bill of Rights would give too much power to the judiciary and result in an increase politicisation of the judiciary A Bill of Rights in NSW would mean there would be increased scope for judicial decision making, leading to an increase in public pressure and criticism. Furthermore, the judiciary is not elected, and are not taken into account as publicly as a government operating under the doctrine of responsible government. This also serves to undermine the independence and quality of (and arguably faith in) the judiciary Report of the ACT Bill of Rights Consultative Committee, Towards an ACT Human Rights Act (May 2003) Bill of Rights enacted as a piece of legislation, not entrenched Section 37 provides that when a bill is introduced into the ACT Legislative Assembly the Attorney-General must prepare a compatibility statement about whether it is consistent with the protected rights Section 38 provides that a standing parliamentary committee must report on any human rights issues raised by the law The ACT Supreme Court can make a declaration of incompatibility if a piece of legislation is inconsistent with the Human Rights Act. The legislative assembly then decides whether or not to amend the law Issues to resolve when enacting a Bill of Rights What legal form should the bill adopt? Should it be statutory or constitutional? If statutory, should it be entrenched through manner and form provisions, and will there be express override provisions? Alan Wong Page 37 of 43

LAWS2140 - Notes What rights are included? Civil, political, economic, social? Indigenous rights? What are the relative roles of the different arms of the government? Will a Constitutionally-entrenched model be adopted, a dialogue model, or a model entirely subject to parliamentary opinion. Note hat a dialogue model is distinguishable from a judicial or parliamentary monologue, providing greater weight to the democraticallyelected political institutions than the Constitutionally-entrenched model does What are the consequences and remedies for a breach? Damages, invalidating subordinate legislation, declaration of incompatibility. What mechanisms for change will be implemented? Who is required to respect these rights and in what situations Commonwealth and States, Parliament, Executive, and Judiciary, Private and Public, Citizens and Businesses Example of Bill of Rights model in Victoria: Public servants are to consider the Charter at the earliest point. A statement of compatibility must be made by the executive as to the compatibility of the Bill with the Charter of Rights Legislature have a Standing Committee which review the compatibility Judiciary interprets statute and subordinate legislation Judiciary works to create compatibility of possible If unable to create compatibility, judiciary make a declaration of incompatibility Human rights were deliberately given little room by the framers of the Constitution, and until recently, rights have been narrowly read as per the High Court. However, the area of human rights has perhaps developed at the most rapid rate in recent years, and seems to only grow stronger Week 12 Changing the Constitution and the Republic Since 1901, 44 proposals have been put before the people. Eight of these proposals (18%) have been successful. Amending the Constitution Justice Toohey of the High Court referred to the argument that written constitutions create a two-track lawmaking system. o The normal lawmaking path through Parliament o A higher lawmaking track for judgments previously made in the higher law accents of We the People Section 128 provides that a for a change to the Constitution, there must be: o A proposal passed by an absolute majority of both houses of the Federal Parliament, or by one House twice; and o A referendum, passed by a majority of the people as a while, and by a majority of the people in a majority of the States (Currently four out of six States required) Furthermore, vote shall be taken in such manner as the Parliament prescribes

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LAWS2140 - Notes The referendum procedure has since been regulated by the Referendum (Machinery Provisions) Act 1984 (Cth) o Section 11 The electoral commissioner must send to each elector a pamphlet showing the proposed amendment to the Constitution along with arguments for and against the proposal. Money shall not be spent on encouraging electors to vote for or against the proposal o Section 45 Voting is compulsory for all electors Scott Bennett, The Politics of Constitutional Amendment (Parliamentary Research Service, Commonwealth Parliament, Research Paper No 11 2002-03) Labour government had strong tendencies to reform, called for increase in Commonwealth powers Referendums with too many issues tend to fail. In 1911 and 1913 the ALP put forward eight questions six of which were submitted in 1913. None of the amendments was ratified Smaller states tend to vote against, in referendums Some writers such as Crisp accuse voters of ignorance and conservatism. Ordinary people ill-equipped to deal with complex issues, and therefore play safe and tend to vote No There is strong support against amendments to increase Commonwealth power Growing voter conservatism may be representative of voter satisfaction with the Australian political system coupled with a growing cynicism with politicians Constitutional Commission, Final Report of the Constitutional Commission (AGPS, 1988), Vol 2 Recommendation that the States be allowed to initiate constitutional referendums Recommendation against commission or convention initiation of proposed alterations Recommendation by majority against initiation by electors of referendums An Australian Republic The Constitution establishes Australia as a constitutional monarchy in the Commonwealth of Australia Constitution Act 1900 (Imp) Although the Australia Act 1986 (Cth) marked the end of the power of the British Parliament to legislate for Australia, the constitution has never been formally repatriated although Sue v Hill proved that Britain was a foreign power Contemporary debate on a republic is not about whether Australia should amend the Constitution to become an independent nation. It is about whether the Constitution should be altered to reflect the existing reality of independence and whether the nation should take a final symbolic step of replacing the Queen with an Australian president George Williams, A Republican Tradition for Australia? (1995) 23 Federal Law Review 133 Pettit characterised republicanism as incorporating the following themes: Alan Wong Page 39 of 43

LAWS2140 - Notes 1. An anti-monarchical motif A local should be the Head of State 2. Republics must embody rule of law, check and balance of authorities This assumption of institutional constraint is somewhat flawed within an Australian context given that the separation of powers has only been implicitly acknowledged by the Constitution 3. Rule of virtue expressed both in a politically active citizenry and public officers able to stand against corruption and willing to perform their duties to the best of their ability. A minimalist republic would seek for a cosmetic constitutional change, which may not amount to a genuinely republican movement at all. It really only focuses upon the first theme of Pettit, without seeking to disturb existing political structures, thereby maintaining the existing facets of the Westminster system. Proponents of republicanism would want not only the establishment of formalities, but altering the political structure to imbue the themes of republicanism. Republic Advisory Committee, An Australian Republic: The Options (AGPS, The Report of the Republic Advisory Committee, 1993), vol 1 It may be appropriate to regard Australia as a crowned republic, a view favoured by some monarchists, in that the only Australian office incompatible with a republic is the monarchy, as every other office derives its power, indirectly or directly, from the people. Thus the only step required to make Australia republic is to remove the monarch. Four options in appointing the Head Of State: 1. Appointment by Prime Minister Process most similar to current practice 2. Appointment by Parliament Renders this a democratic process that, depending on the particular method selected, can ensure that the person selected has the support of all major parties 3. Popular Election Entirely democratic 4. Appointment by Electoral College Made up of representatives from national and state parliaments Prime Minister Paul Keating, An Australian Republic: The Way Forward (AGPS, 7 June 1995) Regarding codification of the reserve powers and conventions surrounding the Head of State: The advantage of codifying the conventions, whether in whole or in part, would be to bring a degree of clarity and certainty to the options open to a Head of State in different situations However, as the system evolves there needs to be some capacity to respond to circumstances quite unforeseen today. Tightly defined rules can themselves have unforeseen consequences For these reasons the Government believes that, on balance, whatever the immediate attraction of this course might be, it would not be desirable to attempt to codify the reserve powers; and that the design, processes and conventions at present governing their exercise by the Governor-General should be transferred to the Australian Head of State without alteration Alan Wong Page 40 of 43

LAWS2140 - Notes George Williams, Why Australia Kept The Queen (2000) 63 Saskatchewan Law Review 477 The Convention was asked to resolve three broad issues: 1. Whether or not Australia should become a republic; 2. Which republican model should be put to the electorate to consider against the status quo 3. In what time frame and under what circumstances might any change be considered. In considering the appropriate model, several options were suggested: Direct Election Model o Any Australian could nominate a person to be Head of State o A joint sitting of both Houses would, by a two-thirds majority, select three or more candidates o Election by the people Hayden Model o A person can stand for office if they are nominated by one percent of voters McGarvie Model o The President is chosen by the Prime Minister and appointed or dismissed by a Constitutional Council bound to act as the Prime Minister advises Bi-partisan Appointment of the President Model o Any person can nominate someone to be President o Names of nominees betted by a Committee established by Parliament o Short-list passes onto Prime Minister for presentation of a single nomination for President o Seconded by Leader of the Opposition o Two-thirds majority approval by joint sitting of both Houses of the Federal Parliament The Bi-partisan Appointment of the President Model was favoured by the Convention. YES/NO Referendum 99 (Australian Electoral Commission, 1999) Yes: Moving on, embrace independence, have local head of state, promote our interests, national unity, stand on our own two feet No: The referendum is not just about being republic, but also what model the proposed model flawed, it is untried, unworkable, undemocratic and elitist. Politicians will appoint the President not the people. There will be a removal of checks and balance from the current system. Other reasons to vote no include: dont know, no say depending on the model chosen, the President will be the Prime Ministers puppet, keeping the status quo. Mark McKenna, Amelia Simpson and George Williams, With Hope in God, the Prime Minister and the Poet: Lessons from the 1999 Referendum on the Preamble (2001) 24 University of New South Wales Law Journal 401 November 6, 1999, two questions were put to the people:

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LAWS2140 - Notes To alter the constitution to establish the commonwealth of Australia as a republic with the Queen and Governor-General being replaced by a President appointed by a two-thirds majority of the members of the Commonwealth Parliament To alter the constitution to insert a preamble Australians answered a resounding No to both questions. This proposal would also have inserted a new s 125A into the Constitution, providing: The preamble to this Constitution has no legal force and shall not be considered in interpreting this Constitution or the law in force in the Commonwealth or any part of the Commonwealth. This would have served to remove the justiciability of the preamble. Helen Irving, The Republic Referendum of 6 November 1999 (2000) 35 Australian Journal of Political Science 111 The failure of both referendum questions was widely predicted prior to the event. The consensus appears to have narrowed in on three explanations for the defeat: 1. Referendums have no chance of succeeding if they do not have wide, cross-party support and particularly the support of the Prime Minister 2. This particular referendum failed because it represented the aspirations of an elite and it alienated the people, especially the battlers The elite may be interpreted as the politicians and citizens at the centre of the movement, particular as the selected model removed direct election by the population 3. Insufficient voter knowledge Although this theory did not explain the result Michael Kirby, The Australian Referendum on a Republic Ten Lessons (2000) 46 Australian Journal of Politics & History 510 Absurd mythical scare campaigns surrounding the republicanism debate: Australia would not be invited to rejoin the Commonwealth o Nations, of which the Queen is the Head The Commonwealth Secretary-General made it clear this was not the case in a statement With the removal of the Queen, Crown land in Australia would revert to Aboriginal Australians The Governor-General is actually the Head of State Genuine concerns: Ease with which the Prime Minister can dismiss the President To those who urged acceptance of the model, even if defective, on the promise of later amendment and improvement the spectre of the difficulty of securing later change loomed large. Even electors generally sympathetic to the idea of a republic could therefore rationally reject the proposed model Senate Legal and Constitutional References Committee, The Road to a Republic (Parliamentary Paper No 222 of 2004) The Australian people should be full consulted and involved in any process leading towards a future Australia republic Alan Wong Page 42 of 43

LAWS2140 - Notes In order for the process to be fully democratic, informed participation is required A parliamentary committee should be established and fully resourced to undertake this responsibility, as well as facilitate and oversee the on-going education, involvement and engagement of the Australian people Recommendation of a four-step process: A full national non-binding plebiscite asking whether the community wants a republic A full national non-binding plebiscite giving voters a choice of republican models Refine the details of the republic model chosen with the aid of constitutional experts A final, binding, constitutional referendum

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