What is a Constitution? •Constitutional government is a government that as a Constitution which limits the powers of political authorities and is not susceptible to easy modification or abrogation •Constitution as Paramount Law oA law overriding all other laws (laws must comply with the Constitution or will be deemed invalid) ? Will not be able to be amended through an ordinary statute oDetermines the power of each area of government (separation of powers) oUsually found in written form – one or more documents.
oWill include – details of the key branches of government (their composition and power), protected rights and freedoms, procedure of changing the Constitution •Constitution as the actual system of government (living Constitution) oNeed to consult supplementary legislation, conventions and relevant judicial proceedings oMany areas of government are not specified in the Constitution but have developed through convention (e. g.the Australian Constitution makes no mention of the Prime Minister).
oConstitution in actual operation (a country may have a very good written Constitution but the experience of the society does not reflect the Constitution if judges/politicians are corrupt) •Constitution in the Philosophical Sense oThe realization of an ideal (never fully realised) oDesigned to limit/contain power and implement the rule of law •The Unwritten Constitution – a constitutional government may exist without a written constitution oE. g.
the United Kingdom – government derives their composition, powers, privileges and basic procedures from ancient custom and common law, conventional practice and a few defining statutes oParliament is supreme – legislation cannot be questioned by the courts •Mixture of ideas – Westminster system from the UK, the written form, federalism, separation of powers and judicial review from the USA •Dicey – constitutional law includes “all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the State”.
•Ideal Constitution – constitutional stability (hard to change), representative democracy, separation of power, federal distribution of power, protects basic rights and liberties ? Separation of Powers •Sections of the Constitution vests the three great powers into three different branches of government os. 1 – legislative power vested in Parliament (Queen, Senate and HoR) os. 61 – executive power vested in the Queen (exercised by GG) os. 71 – judicial power vested in High Court, other federal courts and other courts (State Courts) (known as CH III Courts) •This ideal is impossible to achieve completely.
oE. g. Separation of powers does not completely exist in Australia – the executive has majority support in HoR, the executive organized the legislative agenda (the executive control what Bills are passed), High Court allows legislature wide law making power, judges are appointed by the executive and removable by Parliament •The HC has condoned integration of the legislative and executive power but is strict on separation of judicial and non-judicial powers •Legislative Power.
oCapacity to change existing legal relations (creating new rules – must apply generally (or to a class), not an individual) oLegislative power is distributed between Federal and State level oLegislation that involves matters of policy or principle should be made by Parliament (not the Executive) •Executive Power oExtends to the execution and maintenance of the Constitution and of the laws of the Commonwealth oMost commonly – accomplishing physical tasks within the limits of the law (e.g. carrying out public work on Crown land using funds already appropriated for the purpose) oPolice power – keep the peace and investigate and prosecute criminals.
Police officers have no power to violate a citizen’s rights without the authority of law oMilitary power – power to declare war and peace, deploy the nation’s military forces oForeign Affairs power – power to conduct relations with other nations and international organisations and make treaties with foreign States (treatiesmust be adopted by legislation to become domestic law).
oContracts power – power to enter into contracts to achieve the purposes of government (can’t create legal relations unilaterally, only consensually) oPower to alter legal relations unilaterally or coercively – power to create new legal relations or modify existing legal relations without the consent of the affected person (e. g. licences, authorisations, approvals and other regulatory orders) ? Quasi-Judicial Power ? Different from legislative power in that while it allows the creation of new legal rights, these rights are not general and only apply in the particular case.
•Judicial Power o ‘The power which every sovereign must of necessity have to decide controversies between its subjects, or between itself and its subjects, wether the rights relate to life, liberty or property. ’ The exercise of this power does not begin until ‘some tribunal which has the power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action’ – per Griffith CJ, Huddart, Parker & Co Pty Ltd v Moorehead (1909) at p. 357.
oTwo key aspects- existence of a controversy and the capacity to determine the controversy conclusively oJudicial power is controlled power – it’s exercise is based on authoritative legal materials (rules, principles, conceptions and standards) oJudicial power of the Cth is vested almost exclusively in CH III courts oKey question when it comes to judicial power – is the relevant power characterised as judicial power oJurisdiction (is the matter one in relation to which the judge may act? ) – no court has unlimited jurisdiction (s. 73 – appellate jurisdiction, s. 74 – original jurisdiction in respect to certain subjects, s.
76 – Parliament can confer additional original jurisdiction) oEffect – declare rights and duties of litigants according to established law but not altering legal positions (incremental changes) Elements of Judicial Power (each must exist for the power to be deemed judicial) oControversy ?Must be a controversy between two parties (either the Crown and a subject or between two subjects) ? Controversy is absolutely necessary ? Ch III defines federal jurisdiction in relation to matters (Re Judiciary Act interpreted the term ‘matter’ to refer to a controversy concerning a right, duty or liability ?
The dispute must be brought before the court – the court does not go out of their way to bring a matter before them ? The Question of Standing – judicial power can only be exercised when a controversy is brought before the court by a person entitled to do so. The person has locus standi – a personal interest in the matter greater than the public •The Attorney-General has standing to bring an action to defend a public right oRights, Liberty and Property ?The controversy must concern ‘rights, liberty or property’ ? Two elements: rights must be – existing rights and basic rights ? Pre-Existing Rights.
•Must decide controversy according to existing rights and obligations, not create new rights and obligations – Tasmanian Breweries Case (1970) •This means that judges don’t make law – this is arguable. However, if judges do make law it is different to law made by the legislature (they can’t make law on any matter they want – limited to the controversy at hand – and must observe the rule of natural justice) ? Basic Rights •R v Quinn (1977) – judicial power is exercised only with respect to ‘basic rights which traditionally, and therefore historically, are judged by that independent judiciary which is the bulwark of freedom.
’ •Problem – what rights are considered basic? oConclusiveness ?Capacity to give a binding or authoritative decision (whether subject to appeal or not) ? The court/tribunal doesn’t necessarily have to possess the ability to enforce its own decisions – R v Davison (1954) ? Court of Record – a court that has the power to both make determinations and enforce them (Alexander’s Case (1918)) ? Doctrine of res judicata – the matter cannot be litigated again by the same litigants ? Doctrine of functus officio – the decisions cannot be varied by the same tribunal except in very limited circumstances ?
Doctrine of collateral attack – the decision made within jurisdiction cannot be questioned in a collateral proceeding ? De novo hearings – the decision must not be subject to a de novo hearing (when a court rehears both the evidence and legal submissions •Brandy v HREOC (1995) – stated the requirements of a de novo hearing oThe original decision is not enforceable because the aggrieved party failed to appeal oThere is no onus to appeal oTo enforce the decision, a new action must commence in a proper court oProsecutor must lead all the evidence – no discretion, it is a new action oThe court must rehear the case on facts and law?If all of these conditions are met, the initial decision is not conclusive oNon-Consensual ?
Both parties don’t need to consent to go to court •Chameleon Power oR v Quinn – the power vested in the registrar to cancel the registration of a trade mark was non-judicial. However, in Farberfabriken, the court held this power to be constitutional. Why? oA chameleon power is judicial when vested in a court and is non-judicial when vested in some other body oPrinciple of contradiction – you can’t say something is and isn’t at the same time – condemned in Visnic v ASIC (2007) and Alberran (2007) Separation of Legislative & Executive Powers.
oWeak separation – the executive usually controls the HoR, parliament can delegate wide legislative power to the executive, the GG can summon/prorogue (suspend)/dissolve parliament oVictorian Stevedoring Co and General Contracting Co v Dignan (1931) ? The separation was initially weak – but has been further weakened by the court ? s. 3 (which allowed the GG to make regulations on all aspects of waterside employment) challenged based on unconstitutional delegation of legislative power ? s.
3 was upheld – reasons: responsible government is a safeguard, parliament can repeal bad executive law ? Court suggested 2 limitations to delegated legislation: •Must not be too wide that legislation can’t be characterized •Must not amount to abdication of power oLegislative Standards Act – lay down standards about delegating legislative power (laudable, not binding – not Constitutional) Separation of Judicial and Non-Judicial Power •The High Court is very strict in ensuring that judicial power is not given to other bodies and that non-judicial power is not given to courts •Rationale:
oFederalist: independent judiciary to maintain federal division (an independent judiciary can only be achieved if the judicial power is separated from other powers) oLibertarian: checks and balances and judicial independence •KEY PROVISION: s. 71 – The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction.
The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes. •s. 72 – the tenure and remuneration of federal judges •s. 73 – the appellate jurisdiction of the High Court •s. 75-76 – the original jurisdiction of the High Court •s. 77 – the Parliament’s power to define and invest federal jurisdiction in federal and State courts •The High Court seeks to invest judicial power in only CH III Courts and prevent the vesting of non-judicial power in these courts Prohibitory Rules 1.
Judicial power of the Cth shall not be vested in bodies not designated in CH III •Such bodies = High Court, Federal Courts (Federal Court, Family Court, Federal Magistrates Court) and State Courts in which Parliament vests federal judicial power) •Boilermakers Case (1956) – established this rule: the language of the Constitution prevents the possibility of vesting judicial power in other bodies 2. Judicial power may be vested only in courts in the strict sense •A body is regarded as court if its main function or functions are judicial – Alexander’s Case (1918) 3.
Federal courts that exercise judicial power must conform to s. 72 •The court must be constituted as provided in s. 72 – Alexander’s Case •Requirements: federal judges are appointed by the Governor-General; removal can only be done by the Governor-General on an address of both houses of parliament on the grounds of proved misbehaviour or incapacity; remuneration of judges must be fixed and not diminish •Tenure for life (until 70) – can’t appoint judges for fixed terms (Alexander’s Case) 4.
A court may delegate judicial power but must not abdicate judicial power •Relieve the court from some of their work by assigning non-contentious aspects of jurisdiction to officials who are not judges •Harris v Caladine (1991) – Held that delegation of judicial powers to those who are not judges (e. g. registrars) is valid providing that: oThe delegation is not so extensive that it can no longer be said that judges constitute the court oThe delegation must not be inconsistent with the obligation of the court to act judicially, and the decisions must be subject to review or appeal by a judge •The structure of the Court must not change.
•The person the power is delegated to must be an official of the court 5. Judicial powers not within CH III must not be vested in the High Court or other federal courts •Re Judiciary Act (1921) – s. 88 of the Act gave power to the HC to determine the validity of laws referred to it by the Governor General. It was held that as the power was judicial power outside of CH II, it was not exercisable by the High Court •The express vesting of some powers means the exclusion of other powers 6.
Federal courts cannot exercise State judicial power except in cases of ‘accrued jurisdiction’ •Federal courts can exercise State judicial power in cases in which both Federal and State jurisdiction arise in the same controversy 7. Parliament must not vest non-judicial power in CH III courts •Boilermakers Case – the reasoning that judicial power cannot be vested in bodies that are not CH III courts due to the express vestment of such power in CH III courts must be applied to legislative and executive power (non-judicial power).
As non-judicial power is expressly vested in other bodies, this means they cannot be vested in CH III courts. •There are exceptions. There is a difference between Federal and State courts in respect to this: (more non-judicial power can be given to State courts than to federal courts) oNon-judicial power may be given to State courts providing that it is not incompatible with the exercise of federal judicial power (Kable, Fardon, Baker) oNon-judicial power can’t be given to the HC or federal courts unless it’s incidental to the exercise of judicial power (Bond, Thornton, Davison).
8. State Parliaments must not vest in State courts non-judicial powers that are incompatible with their exercise of federal judicial power •There is an absence of an explicit separation of powers in State Constitutions – allows State courts to exercise non-judicial power •Alexander’s Case – State Parliaments can give State courts non-judicial powers providing they do not threaten the character of the courts as bodies that primarily perform judicial function and do not undermine the courts’ capacity to exercise federal judicial power by diminishing public confidence 9.
Parliament must not remove from courts jurisdiction that the Constitution has directly vested in them •Appellate Jurisdiction – s. 73 has jurisdiction to hear appeals from all judgments from the original jurisdiction of the High Court, any other federal court, State Supreme Court, or any court – this right to appeal to the High Court cannot be removed (Cockle v Isaksen (1958)) •Original Jurisdiction under s. 75 cannot be removed – Lim v Minister of Immigration (1992) 10.
Parliament must not direct the way courts exercise judicial power •Parliament cannot direct the manner and outcome of the exercise of judicial power •Legislation should not impose a judgment on the court (Calder v Bull) or intervene in judicial proceedings 11. The ban on bills of attainder and ex post facto punishment •Basic doctrine – it is lawful to do whatever the al woes not forbid •Retrospective laws are not permitted – Polyukhvich v Commonwealth (1991).
Permissive Rules 1. The persona designate rule •Non-judicial power can be vested in a judge in his/her personal capacity – Hilton v Wells (1985) •Grollo v Palmer (1995) imposed two conditions: oCompatibility condition – compatible with the judge’s capacity to perform further judicial functions (time) and with the court’s responsibility (confidence) oConsent condition – the judge must consent to being given the power unless it is incidental to judicial power 2. Judicial power with respect to military offences by service personnel may be vested in courts martial •Power outside CH III, thus can be given to a military tribunal – White v Director of Military Prosecutions (2007) •A service offence can also be a ‘civil’ offence triable under a CH III court (e. g. assault of a civilian while on duty) •What is a service offence?
– E. g.desertion in times of war, insubordination, drunkenness on duty, unlawful discharge of a weapon. Two theories: oService status theory – triable by court marital if committed by a military servicemen even if it does not concern military discipline oService connection theory – triable by court martial only if connected to the purpose of maintaining military discipline (majority of judges like this theory but some disagreement – e. g.
Alpert (2004) – rape by a service personnel while on recreational leave, triable by court martial) 3. Parliament may exercise judicial power in relation to its own powers, privileges and immunities •Contempt of Parliament – influencing a member one way or another, giving false evidence to a committee of Parliament, stopping a member from getting to Parliament (Parliament decides what is contempt) •With these acts – parliament can exercise judicial power in relation to them (s.49 – Parliament may declare its own privileges – Parliamentary Privileges Act)
4. Superior courts may make rules of procedure •Legislative in character – power of courts to regulate their own procedure (general rules of conduct •R v Davison (1954) – making procedural rules is ‘an extreme example of a function that may be given to courts as an incident of judicial power or dealt with directly as an exercise of legislative power’ Separation of Powers in State Constitutions.
•State Constitutions do not recongise separation of powers to any degree – courts did not recognize any separation until Kable v DPP (1996) •State Parliaments can delegate but not abdicate legislative power •HC’s doctrine of institutional integrity (DII) has effected a degree of separation of powers. 4 aspects: oGrant of Incompatible Jurisdiction – State legislature must not grant a State court a power that is incompatible with its role as a court exercising federal judicial power oE. g. – Kable v DPP (1996) –
legislation allowed the court to issue a detention order if it was likely that Kable would commit an act of violence – giving the court the power to make detention orders makes the court an instrument of government policy (undermines public confidence/independence) – this is incompatible with the federal judicial power vested in them) oDepriving Supervisory Jurisdiction – State Supreme Courts have the power to confine inferior courts to the limits of their jurisdiction by granting relief (usually by writ of certiorari) on the grounds of jurisdictional error (an error leading to the court exceeding its legal power) oState parliament can’t deprive Supreme.
Courts of this power – Kirk v Industrial Court of New South Wales (2010) oIntegrity of the constitution of courts should not be affected– excessive acting appointment would distort the character of the court as an independent and impartial body (this is not constitutional – tenure until 70) oState law leading to failure of natural justice – basic requirements are impartiality and reasonable hearing oGypsy Jokers (2008);
K-Generation (2009) – possible for court to receive criminal intelligence and not give this information to the defendant ? Commonwealth-State Relations •The relationship between Cth and State government is a crucial part of the constitutional framework •Federation is evident throughout the Constitution •Cth and States have defined areas of power – there is a possibility of conflict os. 51 – enumerated powers of the Cth oSome powers are exclusive to Cth – s. 52 and some other ones scattered throughout the Cth (e. g. ss. 90 and 122) oSome powers are exclusive to States as they are not explicitly given to the Cth – Residual Powers (s.107).
oSome powers are concurrent – s. 51 ? this raises the possibility of conflict •Conflict can arise in 3 ways: oInconsistencies between Cth and State legislation in respect of concurrent powers (s. 109 prevails) oCth legislation affects the executive government of the States oState legislation affects the executive government of the Cth •First question to ask: Does the subject matter of the law fall within one or more enumerated heads of power of the Cth? •Crown Immunity: oDistinct from intergovernmental immunities oThe Crown is immune from lawsuits, legislation doesn’t bind the crown, the Crown is a priority in the repayment of debts •Intergovernmental Immunities:
oThe idea that the Cth and the States may be impliedly wholly or partly immune from each other’s laws oProhibits the Cth and the States imposing upon each other’s agents and instrumentalities burdens that fetter, control or interfere with the free exercise of the legislative or executive power oTo what extent is the executive of the State/Cth government immune from interference from the other level of government? oThree stages in the HC’s approach ?Dual sovereignty (1903-1920) – extensive ‘immunity of instrumentalities’ was recognised (very strict) ? Legislative sovereignty (1920 – 1947) – no immunities were enforced. The Cth was given broad power to regulate the States (this shift was caused by The Engineer’s Case) ? Dual Federalism (1947 – present) – immunities revived in a modified form.
A balance between the two previous stages (compromise of strict and relaxed) Dual Sovereignty •Early days – the court was prepared to subject federal powers to heavy scrutiny •Doctrine of reserved powers – where a power wasn’t expressly given to the Cth, it belonged to the States •D’Emden v Pedder (1904) oInterference with Cth by a State oLooked at whether salary paid by the Cth to a Cth employee was subject to State stamp duty oHeld: this was not allowed as it was a form of interference by the States.
The statute was read down so not to apply to the Cth o‘When a State attempts to … fetter control or interfere with, the free exercise of the legislative or executive power of the Cth’ the attempt is invalid (p.111) – need to keep the two levels of government separate oFollowed by Deakin v Webb, Cth v NSW and Baxter v Commissioner of Taxation oKEY CASE: established that the two levels of government were wholly immune from the other level of government.
•Railway Servants’ Case (1906) oInterference with States by the Cth oCth law relating to industrial arbitration scheme that was to bind NSW government instrumentalities (businesses that are under the control of the gov’t –e. g. Australia Post, provision of utilities) oWhile the Cth has the power to make laws with respect to this under the conciliation and arbitration power (s. 51(xxxv)). However, need to consider implied immunities – this will restrict the exercise of Cth power oHeld: the Cth could not force NSW to take part in the industrial arbitration framework.
Need to keep each government level separate •R v Barger (1904) oInterference with States by Cth oQuestion – could a Cth law impose a special tariff on agricultural machinery used by factories that didn’t grant their workers certain conditions oHeld: no as this was outside the Cth’s taxation power (can’t use taxation to interfere with an area of State power – indirectly interfering with workers conditions) and it discriminated between the States oThe Cth can’t use the taxation power to interfere with a State area.
•Exception to the Immunities – 3 main exceptions: oInterference is permitted in regard to a Cth power that involved control of some aspect of State government –(e. g.Cth power to regulate interstate trade and commerce) oTrading activities of State instrumentalities may be subject to Cth regulations as long as regulations are the same as other businesses (general regulations that only apply to trading activity, not employment conditions) oLocal governments do not enjoy immunity from Cth laws Legislative Sovereignty •Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920)
(The Engineers’ Case) oConcerned a union award for engineers that was endorsed by a Cth industrial relations tribunal. Was the award binding on the States as employers? oQuestion – Does the Cth government have the power to make laws binding on the States with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of one State? os. 51(xxxv) – arbitration power – read broadly to cover all disputes across State borders.
No reason why an Act based on this power would not apply to States. 90 oStates that the Railway Servants’ Case was decided wrongly oWhat changed? – different judges (influential judges left) •West v Commissioner of Taxation (NSW) (1937) oConcerned whether the NSW State government could tax the pension of a retired Cth public servant oDixon J stated that ‘where … separate and exclusive governmental powers have been allotted to two distinct organisms, neither is intended … to destroy or weaken the capacity of functions expressly conferred on the other’ Dual Federalism (this is where we are at now – look at these cases).
•Melbourne Corporation v Commonwealth (1947) oInterference with States by the Cth oConcerned an attempt by the Cth government to nationalise the banking industry. The Banking Act 1945 (Cth) attempted to prevent private banks from providing services for a State or a State instrumentality (s. 48 made them bank with the Commonwealth Bank). The Melbourne City Council challenged this law on the grounds that it was not within the Cth banking power and it was an impermissible interference with State governments oHeld: the HC struck s. 48 down and stated that it was invalid based on the fact that the law singled out the States ? Dixon J – Laws that impose a disability or burden upon the States are unconstitutional.
‘A distinction is drawn between laws of general application and laws singling out governments and placing special burdens upon the exercise of powers or the fulfilment of functions constitutionally belonging to them. ’ (pp. 81-82) •This applies to all powers under s. 51 – except for some powers which authorise discrimination against the States (xxxi, xxxii, xxxiii, xxxiv) ? Dixon J: – stated what he believed to be the legal proposition of the Engineers’ Case – a power given to the Cth to legislate in respect to a given subject allows the Cth to make laws that affect the operations of the States and their agencies ? Reservations – the use of federal legislative power to make a law that discriminates against States ?
Stated that the Cth cannot enact a law ‘aimed at the restriction or control of a State in the exercise of its executive authority’ ? Starke J – stated that legislation will be invalid if aimed to destroy the other level of government. Question: does ‘the legislation or the executive action curtails or interferes in a substantial manner with the exercise of constitutional power by the other’? (p. 75) – if so, the legislation is invalid. ?Latham CJ – based his reasoning on either/or characterisation, which is now discredited ? Rich J – There is no implication in the Constitution that the Cth is restricted from exercising its powers to the fullest extent due to reservation to the States. However, ‘the Constitution expressly provides for the continued existence of the States.
Any action on the part of the Cth … which would prevent a State from continuing to exist and function as such is necessarily invalid. ’ Action can be invalid in two cases – ? ‘where the Cth singles out the States or agencies … and imposes on them restrictions which prevent them from performing those functions’ ? ‘where, although the States or their essential agencies are not singled out, they are subjected to some provision of general application which in its application to the would so prevent or impede them. ’ (p. 66) oTwo key questions (Dixon J approach): ?Is the legislation within power? ?If so – Does the legislation violate any prohibitions?
(offend an express or implied limitation on the Cth’s use of power) •It was held that the law was within the banking power but violated an implied immunity oSome confusion as to which criteria to address in regards to interference with State function as all judges adopted different approaches •Commonwealth v CIgamatic (1962) oInterference with the Cth by a State oConcerned a NSW statute that interfered with the Crown’s prerogative right of the Cth to be prioritised in the payment of debt after insolvency oStated that the federal system is a dual system – if there is any supremacy, it belongs to the Cth (States do not have the power to regulate the rights, privileges, duties or disabilities of the Cth) oUther v Federal Commissioner of Taxation (1947) – Rich J stated that a State is allowed to abolish a prerogative of the Crown.
Dixon CJ held in Cigamatic that Uther should not be considered as binding •Victoria v Commonwealth (Payroll Tax Case) (1971) oInterference with States by the Cth oA Cth Act imposed a general tax of 2. 5% on all wages paid by an employer (which included States and State entities). States argued that this was not within the Cth’s power as it interfered with the functioning of State governments as employers oHC held this was valid as it was a general law – didn’t only apply States in order to disadvantage them (applied to all employers – some exceptions) oReaffirmed the principle in Melbourne Corporation oBarwick CJ – ‘the government cannot ‘aim’ its legislation against a State’ ?
His understanding of Melbourne Corporation – ‘a law of the Cth which in substance takes a State or its powers or function of government as its subject matter is invalid because it cannot be supported upon any granted legislative pow