PUBLIC LAW EXAMS NOTES & REVISION Australian Constitution came to effect on 1 Jan 1901 Australia borrowed the

US & UK models US= Judicial Review, Federalism & Separation of powers UK= Responsible & Representative Government from the West minister system *Responsible- limited power of executive, accountability. No single chain of command. UK Do not have a written constitution Constitutions Can be written/ unwritten Unwritten- Laws, statutes (UK) and state conventions (Australia) Written- US written laws Australia has both unwritten and written constitutions. Constitutions Can be rigid/flexible Australia- Rigid, government has to implement new reforms under S128 of the constitution Flexible- Ordinary parliaments can effect legislations Nominal Constitution: Limited Judicial Review: Courts exercising power must be independent of both state and federal governments. Australia- S64 of constitution provides that Ministers in federal government must also be members of the parliament. Hence, there is a blurring of line between executives and legislatives. S 76 of Australia constitution confers that the High court will have jurisdiction in all matters arising under the constitution or involving its interpretation. Legal Positivism- Some sort of a hierarchy and legal order Council Local government -> Constitution Supra Jurisdiction- Whether a court can act beyond its constitutional restraints and basic norm (legal order) which precludes it from recognising a new revolutionary regime as lawful because it is bound by the constitution that created it. Supra Jurisdiction over cedes a legal norm (Grundrom) Doctrine of Efficacy: Whether government is firmly established and there is no rival government Whether government s administration is effective Whether majority of people are behaving in conformity Doctrines of Efficacy & Necessity are applied if a court has supra jurisdiction powers

Doctrine of Necessity - Whether government is obeying basic human rights - Whether people are getting basic necessities etc. - Only applied if a court does not have supra jurisdiction powers and is exercising power within its own legal order.

Mokotso V HM King Mohoesbhoe II Illustration of Doctrine of necessity The test of efficacy was rejected in Mokotso V HM king Moshoesbhoe II because popular regimes could be oppressive as well although a new legal order might have created.

Fiji V Prasad Supra Jurisdiction illustration In the year 2000, the Fiji military seized the country. The leader, Bainirama imposed martial law and appointed himself as the head of the interim military government. The new government revoked the 1997 constitution by issuing the Fiji Constitution Revocation Decree. Prasad sought declaration that the 1997 constitution was still valid and the government of Fiji was not rightfully dismissed. The court did not consider the test of necessity. Applied the test of efficacy to reach a judgment. The condition of a government firmly established was not satisfied as there was a rival party willing to establish control and reinstating the 1997 constitution. The condition of whether the people were behaving in conformity was not satisfied as well, as the new government was an interim government and was not elected by the people. There was still strong support for the 1997 constitution.

Marbury V Madison- illustration of judicial review The Federalists were in power until the Republicans took over. Marshal, a federalist took over as the Chief Justice. The Federal government before passing out, passed the Organic Act creating 42 new justices of peace. When the Republicans took power, they rejected four federalist judges. These justices applied to the Supreme Court for Writ of Mandamus to compel the government to issue their commissions. Issue: Was the Supreme Court bound by the constitution? The court was bound by the written constitution Agreed that the appointees were entitled to their commissions But court could not grant such writs because the Judiciary Act of 1789 was unconstitutional. The Supreme court was only able to exercise Appellate jurisdiction.

The History of the West minister System: 3 Different Struggles: Parliament V Executive Executive V Judiciary Parliament V Judiciary Magna Carta was signed by King John in 1812. Was not merely a peace treaty between the king and the barons. It was an important symbol in the limiting of the monarchical power. It has been reaffirmed by each of the monarch since. Formed the principle of the rule of law. S80 of Australian Constitution- Rule of Law (Trial by Jury)

Parliament V Executive 16/17th Century Send petitions in form of statutes to which the King would dissent/ assent (Legal relevance in Australia) Great Struggle between monarchs and the executives. Henry VII and Charles I were aristocratic rulers. Executive V Judiciary Idea that the King held exclusive prerogative powers (rights to issues ordinances/taxes) Court of the Star Chamber (tyrannical) - Members of the executive formed the Court - Evidence was held in secret unlike the open system we have now - Punishment involved denunciation and public humiliation. It was free to award punishment according to penalties in existing statues or at its discretion. - It was popular because it was efficient - Shows the danger of blurring the executive power with the judiciarys power - E.g. Guantanamo Bay ( Executives influence in judiciary power) King James Believed in Divine right Prohibitions Del Roy- Case to illustrate Executive v Judiciary The King received a complaint from the archbishop of Canterbury concerning writ prohibitions. It was to be decided whether ecclesiastical judges had power concerning tithes. The judiciary did not want ecclesiastical tribunals to have jurisdiction. Sir Edward Cooke proclaimed that the Kings prerogative power had limits; felt that royal proclamations could not become laws. The King in his own person could not adjudge any case and matters are to be adjudged in Courts of justice.

Parliament V Judiciary Bonham- Case to illustrate Parliament V Judiciary Bonham, a medical practioner had troubles with the Royal College of Physicians. The Statute provided that any person who practised without being licensed by the college and accused of malpractice would be fined. Bonham was denied membership and when he continued to practise he was fined. When he was defiant, he was imprisoned. The Common Pleas Court under Edward Coke, agreed that the college lacked power to punish Bonham. The statute did not provide that Bonham could be prosecuted for practising without a membership. Sir Edward Coke stated that the Common Law has the right to overwrite Statutes. Bonham case states the doctrine of judicial review and maintains principle that acts of legislative and executive powers might be reviewed by judges and overthrown if courts found these acts as a contravention of the higher law.

Executive V Parliament Charles I tried to rule without a parliament. There was then a civil war between the Parliament and Charles I in which he was executed. In 1685 James II abdicated his throne. In 1688, William III and Mary took over power.

Glorious Revolution of 1628 The Parliament as the supreme law making body governing through a monarch of its own choice. Bill of Right- 1688 - Established the rule of law - Judges conceded the supremacy of the statute over common law - Judges turn their attention to securing individual from official interference via statutory interpretation - Parliament became the powerful body - Directed at the possibility of the King Misusing his powers; tried to reduce it Act of Settlement 1701- Catholics were not allowed to be a monarchs. Judges were to hold offices for good behaviour. Signalled judges independence.

Entick V Carrington (Case to establish Judiciarys protection of individual rights) Defendant was accused of being the author of seditious writings. The Kings messengers under authority of warrant issued by the Sec of state entered his house and took away his papers. Court ruled that it was an invasion of private property and there needs to be clear legal authority if anybody wants to take over the property. Somerset Case- Illustrate protection of individual liberties/ flexibility of common law A black was confined in irons on board a ship. Lord Mansfield issued a writ of habeas corpus and said that somerset was a runaway slave and had been captured. He was ordered to be released by the court as Slavery was odious.

Diceys Rule of Law Has had an impact on law in Australia Parliamentary Sovereignty ( The Parliament as the dominant institution and has the right to make or unmake laws)

Diceys Rule of Law No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law This limits the exercise of power by people in authority; arbitrary or discretionary powers to be constrained; Supremacy of law and limits on the government No man is above the law and every man whatever his rank or condition is subjected to ordinary law of the realm. Equality of all men; particularly applies to officials and those in power. Predominance of Legal Spirit & described as a special attribute of English constitution Rule of Law pervades on the general principles of the constitution. It is a system that has been drafted into the legal sphere and is something unique to England.

Criticisms to Diceys Rule of Law Jennings (Dicey view that all Englishmen are ruled by the law alone is not plausible because there could be discriminatory practices stemming from the legal order itself. This is true in the case of despotic states. There needs to be limitations on power of every political authority. Dicey also ignored the concept of economic equality. It is difficult to attain social and economic equality. Julius Stone( Dicey ignored the ethical consideration to the rule of law. Rule of law cannot demand that a uniform rule on all matters for every person society without regarding the merits of varying situations) Dicey Rule of Law is a simplistic proposition because power is actually exercised based on the values of those subjects in power. The rule of law is not an identical concept in every country and could vary from traditions, political structures. But the common workings of every system is underlined in the need to protect an individual liberty.

Dicey- Parliamentary Sovereignty Dicey said that the ultimate power lies in the hand of the parliament. They have the rights to make and unmake laws. The courts are seen as subordinate legislation because they cannot overwrite or repeal statutes. There are limits parliamentary sovereignty, which are internal & external. External: Certainty and possibility that large number of subjects would disobey the laws. Internal: The nature of the sovereign power ( based on moral principles; circumstances; societal pressure) Diceys Parliamentary Sovereignty not applicable in Australia because we have Judicial review. Criticism against Diceys Parliamentary Sovereignty - Geoffrey De Q Walker (It is an absolutist and unbalanced view of the constitution. He had disregarded morality and international law. He has no strong cases to demonstrate his view. - Would be ironical if our fundamental principles in the constitution would result in elective dictatorship - This dictatorial element would trample the ethical concerns that are protected in the constitution. - Jennings( If Sovereignty means supreme power then it is not sovereign because there are many things the parliament cannot do). They cannot pass a law that a substantial section of the population would dislike. They would not be re elected. - The constitution binds the parliament and powers of the parliament is derived from the law. - Courts determine whether legislation is within the limits of the governments power and they hold the interpretative power of statutes; therefore the source of legal authority. Therefore, this contradicts with Diceys claim that a sovereign power cannot while retaining its sovereignty restricts its own power by any particular enactment. Allans reinterpretation of Diceys theory on Parliamentary Sovereignty

Believes that parliamentary sovereignty as a medium, could provide the exercise of political will of the electorate. If courts continue to safeguard democratic principles, the political commitment of parliaments would be enhanced. The parliament is answerable to the courts for their treatments of an ordinary subject. Therefore parliamentary sovereignty does not indicate its supremacy as the law making body but instead a system that needs to be based on political morality and loyalty to democratic constitution.

Dicey attempted to reconcile Parliamentary Sovereignty and the Rule of Law - Sovereignty of power favours the supremacy of law. The will of the parliament can only be expressed through the act of the parliament. In a nutshell, the rule of law will prevent any forms of arbitrary governance. Criticisms to Dicey reconciliation attempts - Jennings (He only seems to be concerned with the rule of law and was contend that the common law was sufficient enough to protect individual rights. He failed to consider the discretionary powers held by authorities and in UK discretionary powers are concentrated in the parliaments hands (CASE OF ENTICK V CARRINGTON) - If the Judicial reviews role is to only defending the legislative will, the traditional roles of courts with regard to protecting individual liberties would be eroded. - The rule of law is quite valueless unless it is accepted as a rule which binds the legislature either as a matter of constitutional law or as a general principle or convention. What do a system need to achieve the rule of law (Legal & constitutional features) - Bound by a constitution - Parliaments responsibility to uphold representative democracy - Competent Judiciary which upholds principles of legality; remain uninfluenced of governments - Ready access to courts/law for those who seek legal remedy and relief. - Education on the areas of law Australia & Parliamentary Sovereignty - Parliamentary Sovereignty is understood in rigid limits and boundaries imposed by federal/ state constitutions. Principle of legality: In accordance to civil rights and in line with rule of law Case to illustrate reluctance of Judicial Interference Malone V Metropolitan Police Commissioner - Plaintiff claimed injunction to restrain the telephone tapping - He was accused of some stole property - The judge held that the telephone tapping could be carried without the breach of law and therefore it was allowed. - Ignorance of an individuals liberty.

Case to illustrate Judiciary Role in protecting Individual liberties Potter V Minahan

Mr Bryant stated that the legislature used the word immigrant in the sense that anyone entering Australia is prima facie an immigrant. The Court held that nothing in the act justified such an interpretation of the statute An interpretation of the statute cannot lead to a consequence where an Australian born whose actual permanent residence is Australia, would be subjected to a dictation test when returning from holidays. The Courts are to work on the presumption that statutes are not intended to alter common law or impair civil liberties/fundamental human rights unless it contain express words or necessary implications.

Coco V Queen - The conviction of Santo Coco for attempted bribery of the commonwealth police was quashed. - The conviction had been secured via private conversations obtained through a listening device secretly installed at Cocos Queensland factory by disguised Commonwealth police. - The police held that their actions were authorised by S 12 of the Australian Federal Police act 1979 which negated S43(2) (C) of the Invasion Privacy Act of 1971. - Court held the neither of the provisions could legitimate the unlawful entry by means which the device can be installed. - In the absence of express or unambigious words, it is to be presumed that the legislature did not intend to authorize what could have been a tortious conduct. - EX PARTE BEANE [1987], it was established that unless the parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not constitute a statute as having that operation.

Federalism and Australia REASONS AGAINST FEDERALISM Lead up to federation began in the middle of the 19th century There were economical considerations and ideological differences between the various states that served as barriers to a federation. New South Wales believed in free trade while Victoria advocated protectionism following the gold mining boom. The smaller colonies were afraid of losing their identities to the bigger colonies The bigger colonies were reluctant to subsidize the struggling economies of the smaller nations.

REASONS FOR FEDERALISM The fear of common enemies such as France and Germany who had expansionistic ambitions. They wanted to have a central government which could ease the problem of custom duties of states.

ISSUE AT THE AUSTRALIASIAN CONVENTION How to structure a federated system within a west minister framework? They disliked the Canadian model because it provided too much of power to the central government. US Model had a presidential system and would not reflect the monarchical aspect of the Westminister system. The US model was also achieved through traumatic civil wars and Australia was not like that. Needed the Westminister system of a responsible government Decided to follow the US model except for Presidential System Establish a central government and state governments with their own government institutions Distribution of authority Judicial Authority Supremacy of federal laws over state laws in cases of inconsistency Rigid Constitutional framework

Drafting of Constitution 1891 - It collapsed because NSW opposed the tariff policy being based on protectionism 1898 Convention in Melbourne - The draft constitution had to be ratified by the electorate of each colony - Queensland remained outside of the process because of internal disputes - Indigenous people were left out - South Australia had female voters The drafted constitution proceeded to Westminister for approval - They were subjected to changes - The British were driven by self interest and were afraid that the government would pass legislation that could severely curtail the right to appeal from the High Court to the Privy Council The Commonwealth of Australia Constitution Act was passed in 1900. The Australian Nation was created as a federation on 1 Jan 1901. There was no Bill of rights included in the constitution. - Rejected the Tasmanian Attorney General Andrew Inglis Clarks proposal of Clause 110 based on the 14th amendment to the US constitution - Not necessary because it did not take express words to protect civil liberites - An express document would question their civilisation . - Common Law alone is sufficient to protect individual rights. - Some colonies wanted to maintain their power and discriminate people based on their race

In the Australian Constitution No bill of rights

Section 41: The right of electors of states; cannot be denied to vote Section 51: Legislative powers of parliament Section 80: Right to a jury trial for indictable offences Section 116: Freedom of religion Does federalism remove the need for a bill of rights to be entrenched in the constitution?

Independence of Australia - Beginning of 20th century - Doctrine of Repugnancy: Any statutes inconsistent with Westminister statutes should not be taken into consideration. - Doctrine of extra-territoriality: Australia not able to legislate beyond its borders Case to illustrate Doctrine of Repugnancy Union Steamship CO of New Zealand V Commonwealth - Provisions of navigation act was invalid due to it being repugnant to Merchant Shipping Act of 1984. - Doctrine of repugnancy not applied to Commonwealth V Krelinger &Frenault because the matter was regarding only Australian affairs. Statute of Westminister of 1931 ( Affected the COMMONWEALTH NATIONS) World War 1 had brought major changes to the British empire and many of its colonies had contributed to war efforts There was an emerging national identity Dominions like Canada , South Africa persistently demanded greater autonomy and independence Australia was far less vocal and reluctant because they felt that they were already a selfgoverning community However, this position was far from true because they suffered from limitations in terms of governance. The Statute of Westminister freed the dominions from imperial restrictions ; removed the Colonial Validity Act and the Extra territoriality acts However, the UK could still legislate Australia by the doctrines of repugnancy and extra territoriality. Australia Act of 1986 Removed the doctrines of repugnancy and extra territoriality Whatever doubts that there might be about the capacity of anyone of the participating parliaments to terminate the states residual links with Britain, the doubts were eradicated by legislation at every possible level (A stringent process prior to implementation of the act) Marked the end of any legal ties with UK

Sue V Hill 1999 (Case to illustrate the validity of the Australia Act 1986) - Heather Hill had a UK citizenship and could not take part in the1990 federal elections . - The legal issue was whether UK was considered as a foreign power according to S44 (1) of the constitution. - Australia Act 1986 had removed any of UKs residual influence on Australia - Section 1 of the Australia Act of 1986 denied British Parliament to legislate matters in Australia; - No more UK Judicial power and appeals from Australian Courts to privy councils.

The Act denied British statutes efficacy as part of the law of commonwealth and state and territories. Dissenting Judgment Kirby felt that the Australia Act of 1986 was unconstitutional because it had not been implemented in accordance to S128 of the Australian Constitution.

Popular Sovereignty - Legitimacy of the constitution laid on the hands of the people - They supported the constitution by voting for it - Supremacy of constitution based on the continuing acquiescence of people to the operation of the constitution. - Acquiescence and complaisance should not be an excuse because people have a reasonable opportunity to become aware of the existence of pre-determined rules, which affect their behaviours and lives. It should be taken as an implied consent if people do not bother to find out such rules. Criticisms of Popular Sovereignty Cannot be construed as peoples document based on the 1st referenda. - Only few people were able to vote. - Most women and Indigenous people were excluded from voting and the latter from the discussions relating to the drafting of the constitution - Female voters excluded except in South Australia (However, it is not a matter of statistics but mechanism. Opened up public debates. Female enfranchisement in SA & WA inspired women and stimulated them to press harder for suffrage.) - Peoples reluctance to change the constitution does not mean they support or tacitly approve it. - Australians are largely ignorant of the constitution.

Federalism - Important element of constitution - Allocation of powers - Voice/Exit (Dual Democracy) - Voice- Smaller political units mean that individuals can participate more directly - Exit- Individuals dissatisfied with conditions in one state can move to another. - Provides democratic participation in dual citizenship of compound republic at both state and federal levels. Problems of Federalism in Australia - No bill of rights - State rights have come into conflict with individual liberties - Indigenous minority rights have been affected - Competitive nature of federalism has resulted in political power being centripetal. Power is largely concentrated in the hands of the federal government compared to the states. Case of the Tasmania Dam Case (Commonwealth V Tasmania) - The case centred around the proposed construction of a hydro-electric dam on the Gordon River in Tasmania which was supported by the Tasmanian Government. It was opposed by the Federal government and the environmentalists groups. The High Court in 1983 held that the dam should not be constructed under the World Heritage Act authorised under the external affairs power. S51xxxix of the constitution gives the federal parliament laws with

regards to external affairs. Under this provision, the Hawk government implemented the World Heritage Act as an International treaty to which the Australia was a party.

Aspects of Constitution which reflects federal nature so that the Commonwealth behaves fairly to each state: S 51 ii) Restrict taxation power so as not to discriminate between states; s51 also explicitly grants extra territorial options S88: Bounties and customs duties to be uniform throughout commonwealth S99: Commonwealth not to give preference to one state over matters in relation to law, regulation of trade, commerce or revenue. Aspects of Constitution which reflects fairness owned by State to Government and people of other states: S117: Prevents a state from discriminating against non-alien residents of each state S92: Discrimination against the trade and commerce of another state is prohibited. Trade and commerce among states to be free. S102: Prevents undue and unreasonable or unjust state railways rates to any state. S7: guarantees equal representation to people of original states in the Senate (practical principle involving the formation of a federation). The right to equal representation not granted to any new state unless on the will of the federal parliament in under S121.

INDIGENOUS PEOPLE & SOVEREIGNTY The definition of sovereignty: A political and legal authority that is derived from the basic norm. According to the Dicey Theory: Parliamentary Sovereignty What provisions to the Constitution provide with regard to the Indigenous people? - S41 No adult person entitled to vote at the state elections should be prevented from voting at the Federal elections - S 51- Parliament to make any laws except for the aboriginal race (because it was perceived that they needed special laws) The words aboriginal race was deleted after the 1967 referendum. However, State parliaments could therefore still legislate laws pertaining to aboriginal people if it deemed necessary. - S 127- aboriginal people would not be counted in the reckoning number of the state; commonwealth, was repealed after the 1967 referendum - S25- remains untouched; lowers the population count of a state if that state disqualifies a particular race from voting, thus penalising it by restricting parliamentary representation. However, this section tacitly acknowledges that Aboriginal people and other racial groups can be disqualified by Australian States.

There is no express words in the Constitution to guarantee the rights of the Indigenous people.

Indigenous People and Voting Issues - In S 6 of elections Act (QLD( in 1885 & S12 of Constitution Amendment Act 1893 of Western Australia excluded the Aborigines from voting. - Women were allowed to vote in South Australia & Western Australia. - A narrow interpretation of s41 was adopted. It was derived that s41 was included to protect the rights of those who were able to vote at the 1901 Federal election. It was just a transitional arrangement which was exhausted once the Commonwealth Franchise Act of 1902 had been passed. - Administrative interpretation of s41: in 1912 the Electorate handbook was amended to state that the right held under s41 did not extend to those whose name is not on the Commonwealth electorate roll. On that basis, even Aborigines who were clearly entitled to vote under s41, held their voting rights taken away. - After the establishment of the 1902 Commonwealth Franchise Act, voting was extended to all women but not to the Aborigines because they did not have intelligence or capacity. - It was only in 1983 that voting in federal elections became compulsory for Indigenous people. Neither of 1890s conventions that debated the constitution had included Indigenous people. 1901 Constitution did not reflect interests or aspirations of the Aboriginal people. NATIVE TITLE - Mabo V Queesnland (No 2) (1992) HC 175 CLR 1 Mabo on behalf of the Meriam people asserted that traditional Meriam title to Murray Islands was unimpaired by Queesnlands annexation of the Islands.

Common Law, Statute, Law, International Law & Customary Law were incorporated in this decision. Had to reconcile Blackstones theories of conquered land with the concept of terra nullius in international law. If Australia had been conquered, Indigenous legal traditions would have survived under the new British Sovereign. However, if Australia was settled it meant that there was a legal vacuum which would immediately be filled with English laws. The Court was not interested in the acquisition of the Crown because it said that the Crowns sovereignty cannot be challenged in a Municipal Court. Held that under International law, the doctrine of Terra Nullius no longer holds support because it is built on the notion that Native people are slow in the scale of organisation and Common law had to keep up with International Law. The Court rejected the proposition that upon the acquisition of sovereignty, full legal beneficial of all lands of the Colony was vested in the Crown. This proposition would only apply to territories which were literally terra nullius. Therefore, Radical title to a land which is acquired with the acquisition of sovereignty cannot itself be taken to confer an absolute beneficial title to the occupied land. Surviving Native title ought to have been extinguished with express action such as legislation or executive disposition of land. The case therefore severed the nexus between Radical Title and absolute beneficial ownership of the lands.

It was established in this case that Rights & interests must find their origins from laws or customs having a normative content and deriving from a normative system that existed before sovereignty. There could not be no parallel- law making system after the assertion of sovereignty. Rights & Interests created after the sovereignty and owed their origin and continued existence to a normative system other than sovereign power will not be given effect by a new legal order. What about those who have been forced to relocate? The Mabo decision was a very calculated move not to undermine formal constituent strictures of Australia governance.

Members of the Yorta Yorta Aboriginal Community V Victoria (2002) 214 CLR 422 The claim of the Yorta Yorta people to continuing Native Title was rejected by Olney J. Ancestors through whom the claimants claimed title had ceased to occupy their traditional lands in accordance with the traditional laws and customs. They had not existed continuously since 1778. Relied on a petition signed in 1881 by 42 Indigenous natives Para 114 stated that all land within our tribal boundaries has been taken possession of the Government & White Settlers. As supported by Mabos case, rights and interests created after sovereignty and owed their origin and continued existence previously was no longer valid to create new rights, duties or interests. If new interests or rights were to arise, they must find their roots in the legal order of the new Sovereign power.

Sovereignty and Self determination Demands of sovereignty have multiple meanings in Australian Indigenous discourse. Sovereignty to Indigenous people refers to their visions and aspirations but is met with confusion and suspicion from non- Indigenous people who view the concept of Sovereignty under the context international law. Very few activists have claimed that sovereignty means a new statehood. Continual attempts, overt & subservience by Indigenous people to resist institutions of dominant culture show that sovereignty of Indigenous Australians that existed in 1788 has not been eroded. Kevin Reed Gilbert Sovereignty & Self Determination mean human rights Human rights, basic needs, decision- making process, recognition of past injustice all weave into Reeds vision of sovereignty. Some see sovereignty as representative government and democracy & recognition of cultural distinctiveness.

But indigenous people have acknowledged that they have insufficient resources. But self-determination also includes the right not to be discriminated against. Recognition of Indigenous Sovereignty remains unlikely to be achieved in Australia, at least judicially Coe V Commonwealth No.2 (1993) 118 ALR 1993 Seeking compensation on behalf of the Wiradjui tribe Claimed they were the sovereign nation of people and were entitled to self- government Entitled to possession of rights and interests pertaining to land This claim was rejected by all 4 justices As established in Mabo, acquisition of Australia were acts of state whose validity cannot be challenged in Municipal courts. Aboriginal people are subject to laws of Commonwealth and states of territories unlike the Cherokee Nation of Indians who were distinct political society separated from others as established in Cherokee Nation V State of Georgia.

Walker V NSW (1994) 182 CLR 45 The Plaintiff accepted that he had been charged with an offence against laws of NSW within the area of the Bandjalung nation. Claimed that common law was only valid in its application to aboriginal people to the extent to which it has been accepted by them. Mason CJ upheld that legislature of NSW has power to make laws for peace, welfare and good government. Mabo V Queensland had no support for any notion pertaining to the lack of NSW legislative power to affect rights of the aboriginal people Basic principle that all people should stand equal before law to be maintained.

Both judgments suggest that recognition of an independent sovereignty of aboriginal people is unlikely to be accepted by the courts.

UN Declaration on the Rights of Indigenous people 2007 Australia voted against it Ruud Government reversed the Position and indicated its support in a function held on 3 April 2009 Not a binding agreement of international law But could provide catalyst for development of customary international law and drafting of binding treaties.

The US Example Government to Government relationships with Native American Tribal Governments. Through treaties, statutes and court decisions.

Australia Reconciliation Movement Concepts of sovereignty and self determination (Central to this movement) Council of Aboriginal Reconciliation established in 1991. Came up with the Draft Australian Declaration towards reconciliation which was urged by all levels of the Australian government to adopt. Was refused by the Howard government who proposed another alternative. Changes were made relating to the recognition of customary law and it was ensured that general application of law in Australia applied to all citizens.

A recommendation based on the 1986 Law reform commission resulted in Judicial discretion to take customary law into account in sentencing. - However, legislative policy of the Howard government went other way. S91 of the Northern Territory National Emergency Response Act of 2007 stated that in determining a sentence to be passed for an offence against a law of N.T, A court must not take into account any form of customary law or cultural practice as a reason for excusing, justifying, authorising, requiring or lessening seriousness of the criminal behaviour to which the offence relates. Council of Aboriginal Reconciliation believes that educational and public awareness activities need to be undertaken to help improve understanding and relations between Aboriginal and Torres Strait Islander peoples and the wider community. Prime Minister Kevin Rudd made a national apology to the stolen generations in Federal parliament on 13 February and Kirby J in Northern Territory V Arnhem Land Aboriginal Trust stated that henceforth the court should take judicial notice of the national apology when dealing with cases that affect the rights of the Indigenous people. Improvement of status of Indigenous people? - At state level, an acknowledgement of Indigenous people was added to the Victorian Constitution in 2004. - There is a preamble to the Victoria Charter of Human Rights and Responsibilities act 2006 recognising the Indigenous people and s19 of the act goes on to protect individually and collectively the distinct cultural rights of the aboriginal people - Similar in Queensland, introduced the constitution (preamble) amendment bill 2009; at the same time a new S3a in the constitution has a disclaimer saying that the preamble does not create in any person any legal right or gave rise to any civil cause of action ( So preamble is just mere words?) Australia is the only commonwealth nation that does not have a treaty with its Indigenous people. New Zealand had a treaty with its people. Canada in is35 (1) of its 1982 Constitution grants protection to treaties and similar agreements with regards to it Indigenous people.

Countries like Canada, USA and NZW show that instruments like treaties can have subtle and profound impact; help promote dialogue between Indigenous and non-Indigenous people. Regulation & Renegotiation of treaties allows accountability by governments and promises in treaty to be upheld. These countries have managed to uphold these treaties and preserve a shared idea of sovereignty without fracturing constitutional framework. We should not romanticise treaty experiences of these countries. Need public debates and hard headed assessment. Need preparedness on both sides to honour commitments. Treaties are not the only solution. Canada and NZY and US have bills, legislations & Court decisions.

State Constitutions Australian States have always been subject to external limitation on legislative capacity of their parliaments. Provisions allowing/ limiting State legislative powers S5 of Colonial Validity Act: Every Colonial Legislature shall have, and be deemed at all Times to have had , full power within its Jurisdiction to establish Courts of Judicature, and to abolish and reconstitute the same, and to alter the Constitution thereof, and to make Provision for the Administration of Justice therein; and every Representative Legislature shall, in respect to the Colony under its jurisdiction, have, and be deemed at all Times have had full power to make Laws respecting the Constitution, Powers and Procedure of such legislature provided that such laws shall have been passed in such Manner and Form as may from Time to Time be required by an Act of parliament, Letters Patent, Order in Council, or Colonial Law for the Time being in force of the said Colony. - Each local representative legislature had full power to make laws respecting its own constitution, powers and procedures. - The colonial validity act has been overwritten by the Australia Act of 1986 S106 of the Federal Constitution : Preserved the powers of state empowered by the Colonial Validity Act so that state constitutions continued as the establishment of the Commonwealth.

S6 of the Australia Act 1986: Manner and Form of making certain State Laws Notwithstanding sections 2 and 3(2) above, a law made after the commencement of this Act, by the Parliament of a State respecting the constitution, powers and procedures of the Parliament shall be of no force or effect unless it is made in such manner and form as may from time to time required by law made by that Parliament, whether made before or after the commencement of this Act. Powers exclusively vested in the Commonwealth Parliament S90 Levy duties of excise S51 (xxxvi)- Power specially assigned to the Commonwealth (Naval & Military) Examples of provisions in the Federal Constitution that limits State legislative powers. S114- state shall not... impose any tax on property of any kind belonging to the Commonwealth

S117- Prevents states from discriminating against residents of other states S92- Interstate trade, commerce and intercourse shall be absolutely free Other Forms of Limit of the State Legislative powers - Manner and Forms - Peace, Order, Good Formula - Judicial Review (Deeply Rooted Rights) Dicey: Study of the Law of Constitution - Diceys Parliamentary Sovereignty mean that a sovereign body cannot tie the hands of another sovereign body (successors/ predecessors) - This doctrine is a paradoxical one: The inability to bind future parliaments, imposed as a limit on the sovereignty of the current parliament at any given time, is conceived of as necessary to ensure the unlimited sovereignty of future parliament Parliament A 2010 Parliament B 2020 A cannot bind B; because B has to have unlimited sovereignty. So that would mean if you are unable to bind others, you already have a limit on your own sovereignty. State legislative powers: Constitution Act 1902 NSW S5 of this act provides the NSW state with legislative powers The legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare and good government of New South Wales in all cases whatever. - The peace, order & good formula has been imposed to all states by s (2) of the Australia Act 1986 This particular formula can be construed as having limitation of parliamentary Sovereignty at least in judicial terms. ( If courts applies reasoning that a statute would be struck down as unconstitutional if it does not serve the peace, welfare and good government of a parliamentary democracy.) This would be established in the BLF case. BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS FEDERATION OF NEW SOUTH WALES V MINISTER FOR INDUSTRIAL RELATIONS (BLF CASE) (1986) 7 NSWLR 372 Facts: A challenge to deregister BLF was dismissed in the Supreme Court of New South Wales by Lee J. The Union appealed and before the Appeal could be heard, NSW Parliament passed the Builders Labourers Federation (Special Provisions Act) 1986 which sought to remove any doubts that had appeared initially before Lee J. Argument: It was appealed in the New South Wales Court of Appeal that the Act was invalid because S5 of the 1902 NSW Constitution act did not empower the Parliament to abrogate certain fundamental rights. Outcome: Appeal dismissed.

Legal Reasoning Street CJ: - Agreed that the Peace, Welfare & Good Government formula was a limit to the states legislative powers and if acts do not serve this purpose, they would struck down by the courts as being unconstitutional. - Cited Bonhams case that common law will overwrite an act of parliament if it were against common right or reason. However, he conceded that legislations nevertheless were more superior than common law. - Was deduced that the Act was not of such character and did not infringe any doctrine. Kirby J - Doctrine of fundamental rights must be viewed with reservation not only because they lack legitimacy that attaches to the enactments ultimately sanctioned by the people; but because once allowed there is no logical limit to their ambit. - People would still be protected by the democratic nature of the parliament and the sovereignty of the Parliament is subject to the Rule of Law ( An implication that deep rights could still be a limitation on State legislative powers) - But if legislation is clear, even if a judge considers it to be unjust or even oppressive, he cannot substitute his opinion for that of the elected representatives of the Parliament

UNION STEAMSHIP CO OF AUSTRALIA PTY LTD V KING (1988) 166 CLR 1 Relevance of the case: - The High Court decision in Union Steamship quashed Street CJs suggestion that the peace, welfare, good government formula could pose as a limit to the States legislative powers. - The court decided that the words had no special semantic significance but was rather a simple conventional formula used by the imperial government to confer plenary power - This was supported by the interchangeable terms peace, welfare & good government with peace, order and good government. - However, the court left the possibility of rights deeply rooted in our democratic system... & common law serving as a limitation to state legislative powers. BLF & Union Steamship cases mention about deep rights as a possible limitation on state legislative powers. But there was no concrete stance taken by both of them. Should there be therefore, a bill of rights that would explicitly protect the fundamental rights against state interests and laws?

DURHAM HOLDINGS PTY LTD V NSW (2001) 205 CLR 399 Facts: Involved the validity of the Coal Acquisition Act 1981 (NSW) which provided for payments to landowners. From, 1990 the amount was capped thereby denying full compensation. Durham argued that the scheme was invalid because it exceeded the legislative powers of the NSW parliament in providing for an acquisition of property without compensation. Prior Proceedings: Was rejected in Court of Appeal The High Court refused to grant special leave because the argument would enjoy no prospects of success.

Kirby J reached the same conclusion as had 15 years before in the BLF case in rejecting the limitations arising from the grant of legislative powers. However, he now suggested that limitations might arise from a different source - Law of state made by its parliament could only be a law of a kind envisaged by the Constitution. - Acknowledged that certain extreme laws might fall outside this constitutional presupposition . - There is a possibility that the extreme laws would not be judicially recognised. Jeffrey Goldsworthy - Argued that courts do not possess the power to protect rights deeply rooted in the democratic system of government against abuse by parliament. If judges were given ultimate legal authority, their decisions would have to be accepted as lawful by people who may think that it is unjust. Judges are morally fallible and thus there would be dangers of occasional, possibly egregious injustice. Constitutional Amendment - Each state has the power to amend the constitution of its state - S106 of the Federal Constitution state constitutions continued as establishment of the commonwealth and its alteration in accordance with the constitution of the state. TAYLOR V ATTORNEY GENERAL OF QUEENSLAND (1917) 23 CLR 457 - Case to illustrate that state legislations could be altered via express amendment Facts: - The Parliamentary Bills Referendum Act 1908 provided an alternative legislative procedure. If a bill was twice passed by legislative assembly in two successive sessions and twice rejected by the legislative council in these two sessions, it might then be submitted to a referendum and if approved it would be presented for Royal assent. - Pursuant to this bill, in 1915, a bill to amend the constitution by abolishing the legislative council was passed by the legislative Assembly but rejected by the legislative council. Same thing happened again in 1916. - In 1917, the government decided to put the Bill up for referendum - The Queensland Supreme Court granted interlocutory injunction to prevent the referendum from going ahead. - On appeal to the High court, the injunction was dissolved on condition that the Queensland government did not take any action based on results of the referendum until constitutional issues had been determined by the High Court - Majority voted against the proposal in the referendum. - The High Court held that the Act was valid by relying upon s5 of the Colonial Laws Validity Act. Legal issues/ reasoning - Barton J : A legislative body can create a law so as long it conforms to authority conferred by that instrument of government. - The Parliamentary Bills reform act is a law respecting powers of the legislature and is therefore valid. Gavan Duffy and Rich JJ: A representative legislature can alter its constitution as it chooses.

S5 of the Colonial Validity Act intended a colonial legislature to have power to constitute new courts and put an end to existing courts; to determine whether specific courts should continue to exist or should cease to exist, as well as to mould their forms. The Parliamentary Bills referendum Act of 1908 was to provide that in certain cases, laws should be made by the legislative Assembly & the legislative Council. Its true effect was merely to limit the powers of the legislative council by rendering its concurrence unnecessary in the making of laws in certain circumstances. The case established that Queensland Legislative Council could be abolished. This occurred in 1921 without a further referendum.

MCAWLEY V THE KING [1920] AC 691 (This case illustrates that a state could amend its state legislations through an act that is inconsistent but nevertheless, provides implied meaning that it could repeal a legislation.)

Facts: -The Industrial Arbitration Act 1916 created a court of Industrial Arbitration for Queensland and envisaged that its President could be appointed as the Supreme Court Judge of Queensland. - S6(6) of the Act made up an attempt to ensure that a Supreme Court appointment when conferred on a person already holding office of a President would carry with it all the normal guarantees of such an appointment, including a tenure good behaviour for life. When MCawley presented himself at the Supreme Court to take the Judicial Oath, members of the bar objected saying that s 6(6) was not capable of authorising an appointment of a Supreme Court for a 7 year term. S 15 of the Constitution Act 1867 (QLD) stated that all present and future Supreme Court Judges shall continue and remain in full force during their good behaviour. Outcome: The Privy Council affirmed the powers of the Queensland legislature to pass S 6 (6) thereby effectively to amend the states constitution.

Manner & Form Requirements - A restrictive procedure - Requires that law on certain topics may only be enacted by a special and more difficult procedure. - Greatest challenge to Diceys concept of parliamentary sovereignty. - Derived it authority from S5 of the Colonial Laws Validity Act 1865 and s6 of the Australia Act 1986. Attorney General (NSW) v Trethowen (1931) 44 CLR 395 Facts: The Conservative government in 1929 sought to forestall any future attempts by parliaments to amend the Constitution Act 1902 (NSW) to insert S 7a. S7a (1) : The Legislative Council shall not be abolished nor, subject to the provisions of subsection six of this section, shall its constitution or powers be altered except in the manner provided in this section. S 7(3) : On a day sooner than two months after the passage of the Bill through both houses of the legislature, the Bill shall be submitted to the electors qualified to vote for the election of members of the Legislative Assembly. Such day shall be appointed by the legislature.

S7 (6): The provisions of this section shall extend to any Bill for the repeal or amendment of this section but shall not apply to any Bill for the repeal or amendment of any of the following sections of this Act, namely sections thirteen, fourteen, fifteen, eighteen, nineteen, twenty, twenty-one and twenty two. Section 7a meant that the legislative council could not be abolished without a referendum and also by virtue of sub s(6), that s7a itself could not be amended or repealed without a referendum. Thus, if s7a entrenched constitutional status of the legislative council, sub s(6) made this a double entrenchment (It entrenched the entire s7a) In 1930, the Labour government tried to abolish the legislative council. The legislative council passed a bill without referendum to repeal s 7a. This bill was passed by the legislative assembly. Two members in the legislative council sued in the New South Wales Supreme Court for an injunction to present the bill. The Labour government then introduced its own bill to abolish the legislature council without referendum. The plaintiffs sought injunction in that respect too. Proceedings at the New South Wales Supreme Court Outcome: 4: 1 to the Plaintiffs - Neither bills could be passed without referendum - Sub s (6) meant that s 7a could only be repealed in the manner of referendum prescribed by s7a. S7a incorporated a manner & form requirement imposed by a law within the meaning of the provisio of s5 of the Colonial Validity Act. The Labour Government appealed against the decision in the High Court Outcome: 3:2, affirmed the decision in the Supreme Court of New South Wales. Legal Reasoning: Rich J: - s7a shows that a legislative body has been created for the purpose of passing or cooperating in passing a particular law. - McCawleys case reaffirms the full power of the legislature to regulate its own constitution - S7a constitutes a referendum, which is a manner and form of legislation and includes the electorate as an element in legislative authority in which the power of constitutional alteration resides. Dixon J: - The Power of the NSW legislation is derived from S5 of the Colonial Laws Validity Act which authorises a representative legislature to make laws respecting its own constitution. - The legislature cannot do more than prescribe the mode in which laws respecting these matters must be made. - The proposal to repeal s 7a is not valid because it requires the approval of the electors as condition of its repeal. Dissenting Judgment: McTiernan J - A parliament cannot cut down its own powers in a way that would bind future parliaments. - Felt that sub s6 of s7a deprived the legislative power and renders the King, the legislative assembled in the parliament, powerless to repeal the section unless an external body intervenes and approves the repeal .

The majority decision in the High Court was reaffirmed by the Privy Council in Attorney- General for NSW v Trethowan [1932] AC 526.

The entrenchment mechanism need not take the form of a referendum. There could be other alternative like an absolute majority in both houses Trethowans case demonstrated that if a manner and form requirement provision has not been doubly entrenched, a parliament is free to legislate and remove the entrenchment and amend the protected provision. It also established that the requirement of submission to a referendum can be a manner and form requirement within the meaning of s5 of the Colonial Validity Act.

A summarized chart on the limitations on State legislative powers

Judicial Review : Deeply rooted rights Could be a limitation Street CJ mentioned it in BLF. Kirby J left it unanswered in Union Steamship

Extreme Laws Found in Kirby Js judgment in Durham Holdings Pty Ltd V NSW It is only a possibility; not a conclusive stance A High Court judgment

Manner and Form Requirment Yes it would be a limitation as shown in the double entrenchment of a provision in Trethowan.

Limitations on State Parliaments Peace, Welfare, Good Government Formula Advocated by Street CJ in the BLF case. The BLF case was a NSWCA decision This notion was rejected in the Union Steamship case by the High Court (Binding Authority)

Q1) Discuss your own understanding of the relationship between: a) The jurisdiction exercised by the Fiji Court of Appeal in Republic of Fiji v Prasad [2001] 2 LRC 743 and b) Kelsens explanation of a grundnorm According to Kelsens explanation, grundnorm refers to the basic legal order or hierarchy that furnishes the validity of a constitution and of the coercive order created in accordance with it. What needs to be consistent in this legal order would be the process of authorising. In Republic of Fiji v Prasad, a new revolutionary regime under Banirama had been formed after a military coup and the issue of contention was whether the Court had the power to recognise the new revolutionary regime although it had been formed before the coup. If Kelsens idea of grundnorm were to be applied to this case, it would mean that since the court was formed before the coup, it had to owe its allegiance to the grundnorm and therefore it had to be bound by the constitution that created it. The grundnorm would prevent the Court from being able to act beyond its constitutional restraints when deciding whether Baniramas regime should be given judicial recognition. This puts the Court in a dilemma, as it would need to uphold the rule of law embodied in the prior legal order without prolonging a period of uncertainty or distress if it made an order in favour of the displaced regime. To overcome this problem, in the event where a court is restricted by the grundnorm, it would be entitled to apply the doctrine of necessity to conclude whether a new regime should be given judicial recognition. The doctrine of necessity consisting of factors such as whether basic necessities are being provided to the people needs to be satisfied before the court can recognise the new regime. As established in the judgment of Republic of Fiji v Prasad, the court was allowed to apply both the doctrines of necessity and efficacy (although ignoring the former) to decide whether Baniramas regime was lawful. It is important to note that a court would only be able to apply both these doctrines if it possessed Supra jurisdiction powers. Supra jurisdiction powers empower a court, which has been established before a military or political coup, to act beyond its constitutional restrains and grundnorm. In essence, supra jurisdiction powers allow a court to over cede its grundnorm. In Republic of Fiji v Prasad, the Supra jurisdictional powers enabled the court to apply the doctrine of efficacy which constituted three important factors such as whether people were behaving in conformity with the new regime, whether the new government was firmly established and had no rival opposition party and whether the new government had effective administration, to arrive at its conclusion. Since the Baniramas regime did not satisfy the majority of the factors, the court upheld that the new regime was unlawful and should not be given judicial recognition. As observed, Kelsens grundnorm seeks to provide authorisation and regulation of an established legal hierarchy. The judgment in Republic of Fiji v Prasad, suggests that the only means a court can over cede its own legal order would be to possess supra

jurisdictional powers. The Supra jurisdiction powers would in return allow a court to reconcile two very conflicting ideas presented by grundnorm in the event of a military or political coup: One one hand, the court would need to uphold the rule of law as embodied in the prior legal order and on the other hand, it needs to bear in mind that any order it makes in support of the displaced legal system may serve to prolong distress and uncertainty.

Q2) It is possible to draw a straight line between Lord Cokes approach in Dr Bonhams case and the constitutional role of the judiciary in Australia today. Explain whether you agree or not and why? I disagree that a straight line can be drawn between Lords Cokes approach in Dr Bonham case and the constitutional role of the judiciary in Australia today. The proposition provided is a sweeping statement that fails to acknowledge the reluctance of the modern Australian judiciary to undermine legislative powers. It is firstly important to establish the principle advocated by Lord Coke in Dr Bonhams case. The case sets up the proposition that acts of legislative and executive powers might be reviewed by judges and overthrown if the courts found these acts as a contravention of the higher the law. In essence, the case stated the doctrine of judicial review. Judicial review ensures that the principle of legality is upheld by protecting individual liberties and that courts remain uninfluenced by governments. It is also important to note that this radical principle was expressed at a time where there was a power struggle between the Judiciary and the Parliament in England. In modern Australia, the Legislative body clearly has more power compared to the Judiciary. There have been instances whereby courts have been crucial in protecting civil liberties. In 1994, in Coco v Queen the High Court held that unless a parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, courts will not constitute a statute as having that operation. This similar proposition was also previously established by the High Court in Potter v Minahan. The decision in Coco v Queen parallels to that in Dr Bonhams case as they both establish the crucial role of the judiciary in protecting individual rights and keeping the legislative powers in check. However, it is important to note that the judgment in Coco v Queen and Potter v Minahan do not state that courts have the power to overthrow statutes if they contravened the higher law, unlike as explicitly expressed in Dr Bonhams case. In modern Australia, Courts have also been reluctant to expressly indicate that they have the power to keep legislative and executive powers in check. In the BLF case, J Kirby expressed an opinion that a judge would not be able to substitute his opinion for that of the elected representatives of the parliament even if the courts considered an unambiguous legislation to be unjust or even oppressive. In the same case, Street CJ although citing Dr Bonhams case in his legal reasoning, conceded that legislations were nevertheless more superior than common law. In Durham Holdings Pty Ltd v NSW, J

Kirby, in the High Court, expressed the same opinion he did so fifteen years ago in the BLF case, in rejecting the limitations arising from the grant of legislative powers. However, this time he did open up a possibility that certain extreme laws of a legislation which fall outside the constitutional presupposition would not be judicially recognised. This possibility alone is not valid to uphold the claim that a possible straight line could be drawn between Dr Bonhams case and the constitutional role of the judiciary in Australia today. In addition, the modern Australian Judiciary has also shown reservations to enforce the recognition of individual rights at the expense of state or federal parliaments unlike the principle expressed in Dr Bonhams case. This is especially evident in the High Courts decisions regarding Indigenous sovereignty and rights. Although Mabo v Queensland severed the nexus between radical title and absolute beneficial ownership of lands and recognised native land rights, the High Court was careful not to provide any drastic decision that would undermine the formal constituent strictures of the Australian government. In its decision, the High Court affirmed that there should not be any parallel law making system after the assertion of sovereignty and Indigenous rights and interests created after sovereignty would not be given effect by the new legal order. Decisions in Coe v Commonwealth and Walker v NSW further reiterate the notion that judicial recognition of Indigenous sovereignty remains unlikely to be achieved in Australia. In conclusion, it is clear that a straight line cannot be drawn between Dr Bonhams case and the constitutional role of the Judiciary in Australia today. Despite upholding the doctrine of judicial review, the modern judiciary has largely been careful not to undermine legislative and executive powers at the expense of recognising individual rights. Q3) Justiciability Firstly, the validity of the Single Council Electorate Court Act 2010 (NSW) can be challenged in a Court. Attorney General (NSW) v Trethowen provides authority for this. The facts in this case are similar to that in Trethowens case. In that case, the High Court held the power to decide the validity of a proposed bill passed by the Labour government,which sought to repeal S7a of the Constitution1902 (NSW) so that the Legislative Council could be abolished. Therefore, there should be no doubts about the justiciability of the matter. Flexbility The State constitutions are flexible compared to the rigid Australian Constitution which via S128 requires a referendum for laws to be amended. Therefore, State constitutions are more easily altered.

Can a Parliament tie the hands of its predecessor? The Opposition government held the power to restrict the powers of its successors. A parliament can alter its constitution and legislation as empowered by s5 of the Colonial Validity Act. S5 provides that each local representative legislature has full power to makes laws respecting its own constitution, powers and procedures. This was established in cases like Taylor v Attorney General of Queensland and Attorney General (NSW) v Trethowen where the High Court held that respective legislatures could validly amend their legislations without restrictions. The Colonial Validity Act has since be replaced with the Australia Act of 1986 in which s6 allows a legislature to amend legislations based on manner and form required by law made by the previous Parliament. Therefore, any doubts therefore arising whether a state parliament has powers to amend its legislations should be erased by virtue of these acts. Manner and Form Requirement Next, Sub s(3) of s7B of the Constitution Act 1902 (NSW) provides that a referendum must be held before prior to the alteration to the arrangements to the legislative council. As established in Attorney General (NSW) v Trethowen, the requirement of submission of an amended bill to a referendum can be a manner and form within the meaning of s6 of the Australia Act 1986. The manner and form requirement is a restrictive procedure that requires a law to be enacted by a special and more difficult procedure. On first look, this would mean that State government would not be able to amend s7b of the cannot amend s7B of the Constitution Act of 1902 (NSW) because it has not been passed through a referendum of electors as required by sub s(3) of S7b. In essence, sub s 3 of s7B entrenches the provision that voters can only vote for five regional representatives. Therefore, Sid Vicious claim will hold grounds in this instance and Premier Lydon would be unable to allow voters to vote for the whole legislative council in the 2011 Legislative Council election.

Not a Double Entrenchment In Attorney General (NSW) v Trethowen, it was held that the proposal by the Labour government to abolish the Legislative council was invalid because the provision s7a of the Constitution Act 1902 (NSW) had been doubly entrenched. However, this decision would be inapplicable in this instance because s 7b is not doubly entrenched. There is no provision that protects s7b from being amended. Therefore, this opens a possibility that s 7b could be amended. Implied amendment In Mcawley v The King, it was held that a state could amend its state legislations through an act that is inconsistent but nevertheless provides an implied meaning that it could repeal a legislation. In this case, the Single Council Electorate Act 2010 (NSW) can

constitute of such an amendment and therefore can seek to alter s7b of the Constitution Act 1902 (NSW). Is it a law respecting the legislative powers? The Single Electorate Act does not reduce the legislative powers but instead has the potential to promote greater representative democracy in the legislation but paving a way for electors to vote for every single member of the Legislative Council and not only for those belonging to their region. Conclusion Therefore, the 2011 Legislative Council Election will not be based on a system of regional representation because the previous Parliament failed to successfully bind its predecessors. This mean that that the Single Council Electorate Act 2010 (NSW) is valid and can alter s 7b of the Constitution Act 1902 (NSW) by bypassing the referendum.

Week 10- Voting and Elections in the Federal Parliament Voting S 7 and 24 of the Constitution state members of the State and the House of Representatives must be directly chosen by the people. - Proportional representation (Senate) - Preferential representation (House of Representatives)

Commonwealth Electorate Act 1918 S94 and 94 A exclude from enrolment Australian citizens living overseas who when they left did not intend to resume residing in Australia within six years. Only in 1962, the Act was amended to allow Aboriginal Australians to vote. Voting in Federal elections has been compulsory since 1924 S 245(1) Duty of every elector to vote at each election. Judd v Mckeon (1926) 38 CLR 390- Only Higgins J was prepared to concede that a socialist who refused to vote because all the parties and candidates were capitalists. It was a legitimate claim which was analogous to the objection of taking part in military service on religious grounds. Adelaide Company of Jehovas Witnesses Inc v Commonwealth (1943) 67 CLR 116 Latham CJ: S 116 of the Constitution not only protects the freedom of religion but also protects one with no religion. Therefore, ss 7 and s 24 should be seen in the same light and a Parliament cannot force electors to vote and the compulsory voting as established by s 245 of the Commonwealth Electorate Act is constitutionally flawed. S245: Does not actually force a voter to make a choice. The voter does not need to mark the ballot paper. He just needs to attend the polls and deposit the voting paper in the ballot box. LANGER V COMMONWEALTH (1996) 186 CLR 302 ( Case to illustrate that Compulsory voting made by S 245 of the Commonwealth Electorate Act 1918 is not inconsistent with ss 7 and s 24 of the Constitution/ Proportionality technique of Interpretation) Background of the Commonwealth Electorate Act 1918 S 240 of Commonwealth Electorate Act : In a House of Representatives election, a person shall mark his or her vote by numbering every square until an exhaustive preference is stated. S268: Any paper that fails to express an exhaustive preference is informal unless if one square was blank and the others were numbered in sequence. Blank was to be taken to express voters lowest preference. s 270 (2): Ballot paper shall not be informal if it included a sequence of consecutive numbers beginning with 1 even if numbers were duplicated and even if one square was blank. E.g 1,2, 3, 3 would indicate a voters preference of 1 and 2. S329(A): An offence to print publish or distribute... any matter or thing with the intention of encouraging people to fill in the ballot paper otherwise in accordance with s240.

Facts of the Case - 1993 Federal Elections. Albert Langer urged electors to vote 1, 2, 3, 3 with the majority parties being placed equal last.

Australian Electoral Commissions counter publicity emphasised that a formal vote must number every square using consecutive numbers. Langer sued in the High Court for an injunction. Argued that the Commissions advertisements were misleading and intimidating. He questioned the validity of S 329 A. He argued that it infringed the implied constitutional freedom of political communication. Argued that s240 was also invalid since its stipulations were inconsistent to s24 of the Constitution that representatives are to be directly chosen by the people. Hence, if people are to choose freely, they are entitled to leave squares blank. Outcome: All six judges held that s 240 was valid. By 5:1 Dawson J dissenting, S 329A was valid and a legitimate means to protect the voting method validly prescribed by s 240. Brennan J: S24 of the Constitution does not limit the Parliaments selection of the method of voting so as long it allows a free choice. S 240 permits a voter to make a discriminating choice among candidates for election to the House of Representatives. S329 A is a law that is appropriate and adapted to prevent the subversion of the power of an elector to vote freely. S329 A is designed to minimize the exclusion of ballot papers from the scrutiny. The extent of limitation of the Parliament in preserving the freedom of political discussion depends on particular circumstances. S 329 A does not prohibit the discussion about the operation or desirability of the method of voting as prescribed by s 240. It only prohibits intentional encouragement of filing in ballot papers in a way in would result a ballot paper from the scrutiny. S 329 A is imposed not in a view of repressing political discussion but as an incident to the protection of s240 method of voting. (Proportionality Interpretative technique: the provision does not curtail freedom of communication and the curtailment offered by the provision is reasonably capable of being viewed as appropriate and adapted to further enhance the democratic process) Dawson J (Dissenting): The Constitution requires that a choice must be made and the choice involved must obviously be a genuine and a well informed one. S329A is a law that is designed to keep information from voters which is required by them to make well informed choice. The effect of S329A is to prevent persons from imparting to eligible voters knowledge that the electoral system permits optional or selective preferential voting.

Express Right to Vote S41 of the Constitution might be viewed as guaranteeing an express right to vote in Federal elections for any entitled to vote for the Lower House of a State Parliament (State elections). Commentators Quick and Garran view S41 as a transitional provision designed to protect the voting rights of SA women until the new Commonwealth Parliament could enact a uniform federal Franchise. On this view, once the Commonwealth Franchise Act was passed (S93), S 41 no longer applied to people who acquired an entitlement to vote in State elections at any time after 1902.

King v Jones (1972) 128 CLR 1 Facts: High Court was asked to apply S41 to resolve the political controversy over the lowering of the voting age to 18 years. NSW and WA made this happen in 1970. SA followed suit in 1971. In 1972, the Mac Mahon Federal government was resisting any change. Susan King who was 18 years old, argued that she was an adult person by virtue of both social and legal acceptance. The latter was relied on the Age of Majority (Reduction)Act 1970 (SA). She argued that as an adult person she had acquired the rights to vote in SA state elections and therefore by virtue of s41, this was also applicable to voting in Federal elections. Outcome: The whole Court held that the word adult in S 41 was not open to a shift in meaning and the constitutional use of the word was held to be fixed with the meaning it had in 1901. Legal Reasoning: Stephen J: Preferred to see s41 as a constitutional guarantee as opposed to a restraint on Commonwealth legislative powers. (Originalist Interpretation) Adult in S41 is not concerned with any definition of fields of legislative powers or broad concepts of freedom. There is no reason why it should involve any obscurity of language. Barwick CJ: Approached the case on the assumption that a franchise derived from a State Law made subsequent to the enactment of the Constitution is within s41 a matter of construction which it is unnecessary presently to resolve. Menzies J : (On the Quick and Garrans commentary of the transitional value of S41) Character of S41 is that of a permanent constitutional provision. Not a temporary arrangement. The dicta in King V Jones stating that s41 was not a transitional arrangement was not adopted in R v Pearson (1983) 152 CLR 254.

Background of S 45 of Commonwealth Electoral Act 1918: Claims for enrolment ... which are received by the Registrar after 6 in the afternoon of the day of the issue of the Writ for an election, shall not be registered until after the close of the polling election. R v Pearson (1983) 152 CLR 254. ( There is no express constitutional right to vote) Facts: On 3 February 1983, there was a double dissolution of both Houses of the Federal Parliament. The date of issue of writs were fixed on the following day, 4 February 1983 and the election on 5 March 1983. On 16 February 1983, 4 persons who were entitled to vote in NSW elections but effectively excluded from the Federal election by s45 of the Act, asserted the right to vote on the basis of s 41. Outcome: Majority held that S 41 had not been infringed.

Legal Reasoning: J Brennan, Deane and Dawson JJ: - Though it is right to see s 41 as a constitutional guarantee of the right to vote, the means by which that guarantee is secured is itself definitive of the extent of the guarantee. Voting,

that is, the exercise of an existing right to vote, 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. If the construction of s41 by the appellants is taken into account, it would mean that the power conferred upon the Parliament to legislate for a uniform franchise would be destroyed. A Parliament of a State would be empowered to give the federal franchise to those whom the Commonwealth Parliament has excluded or disqualified, for example, property owners who do not live in the State, aliens, prohibited immigrants or convicts under sentence for more serious offences. The persons to whom s 41 applies are the persons who acquired the rights to vote in ss30 and 8A. Practical effect of s41 is spent and most electors who have acquired vote to at the Federal elections pursuant to ss30 and 8A would have died. Thus for policy and historical reasons, they decided to adopt the narrow interpretation of s 41.

Dissenting Judgment Murphy J: - The plain meaning of the section ;One of the few guarantees of the rights of the persons in the Australian Constitution. - Should be given purposive interpretation - Guarantees of personal rights should not be read narrowly - Referred to the history of s41 where Edmund Barton proposed that the clause which would become section 41 should explicitly apply only to electors who had the right to vote at state level "at the establishment of the Commonwealth or afterwards A referendum proposal to delete s41 and substitute a new provision that would be unambiguously guarantee a right to vote was defeated nationally and in every state.

Background information leading to Roachs case: Commonwealth Electoral Act 1918: S 93(8)B had disqualified any person serving a sentence of 3 years or longer for an offence against the law of the Commonwealth or of a State or territory from voting in the Federal elections. However, Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 sought to amend the Commonwealth Electoral Act 1918. S 93 (8AA) now provided that that all prisoners serving a sentence of full time detention in respect of an offence against the State or Commonwealth will not be entitled to vote at any Senate or House of Representatives Election Roach v Electoral Commissioner(2007) 233 CLR 162 (No absolute entitlement to vote) Facts: Roach, an Indigenous woman was convicted in 2004 for five offences. She was sentenced to six years imprisonment. She challenged the validity of S 93 (8AA). Outcome: Majority of the Court held that the 2006 amendments and S93 (8AA) was invalid because they were inconsistent with the system of representative democracy established by the s Constitution. The previous exclusion of persons serving a sentence of three years or more was upheld because since the amendments were struck down, the statute was restored back.

Legal Reasoning: Gleeson CJ: The right to vote is constitutionally protected by virtue of ss 7 and S24 which requires that the senators and members of the House of Representatives be directly chosen by the people Held that the removing of the right to vote for serious misconduct was acceptable. Hence the previous legislation would be valid. Some who are serving short term sentences are imprisoned for relatively less serious offences such as homelessness. In this instance, they should not be excluded from voting because the seriousness of the offences would not warrantee an exclusion from the political rights of citizenship. Hence S93 (8AA) is invalid because it removes the voting rights of all prisoners regardless of their duration of imprisonment. Representative democracy has developed in such a way that it has become a constitutional protection to vote. Gummow, Kirby and Crennan J: Existence and exercise of franchise reflects the notions of citizenship and membership of Australian Federal body Politic. Such notions are not extinguished by the mere fact of imprisonment. S 93(8AA) operates without the regard to the nature of the offence committed, the length of the term of the imprisonment imposed, or the personal circumstances of the offender. They found that the prior exclusion of prisoners serving a sentence of three years or more was valid. They found that the criterion does distinguish between serious lawlessness and endless serious lawlessness and less serious but still reprehensible conduct and reflects the electoral cycle for which the Constitution itself provides. Test applied in this case: interpretative technique of proportionality Whether the amending legislation was appropriately adopted Dissenting Judgment Hayne J Ss 7 and 24 : Is directly chosen by the people to be understood by reference to the common understanding of the time? This proposition should be rejected. It is difficult to determine by what those standards are and to what extent they should be generally accepted. The ambit of relevant constitutional power should not be constrained by what may from time to time be identified as politically acceptable or accepted limits to the qualifications that may be made to what now is otherwise is universal adult suffrage. Political acceptance and Political acceptability find no footing in accepted doctrines of constitutional construction.

Eligibility for Election Commonwealth Electoral Act 1918 S 163- 18 years; An Australian Citizen; Either an elector to vote at the House of Representatives or a person qualified to become an elector; could be elected as a Senator or member of the House of Representatives.

Restrictions of eligibility for elections in the Constitution S43 of Constitution Member of either House of the Parliament shall be incapable of being chosen or of sitting as a member of the Other House. Any person who falls within the disqualifying categories in s44 of the Constitution will be incapable of being chosen or sitting as a senator or a member of the House of Representatives.

R v Webster (1975) 132 CLR 270 Facts: Senator James Webster; a shareholder in JJ Webster Pty Ltd At the time of the 1974 election, he was also the Managing Director, Secretary and Manager of the Company. In 1973, 1974, Company had submitted quotations and contracts for the supply of timber to Commonwealth Departments. The issue was whether the senator had any direct or indirect pecuniary interests in any agreement with the Public Service of the Commonwealth within the meaning of s 44(V) Since its inception, the High Court has been constituted as a Court of Disputed Returns to hear petitions disputing the validity of election results. Ss 353-354 of the Commonwealth Electorate Act 1918 provides that questions of qualification for election may be referred by resolution to the Court of Disputed returns by which the questions arises. Outcome: Was decided by Barwick CJ that Webster was not disqualified under s44 (v) .Each quotation submitted by the company was an offer and acceptance occurred each time the government placed an order and none of these separate contracts attracted the provisions of ss 44(V) Judgment: Barwick CJ: S44 (v) applies only to executor contracts, that is to say, contracts under which at relevant tome something remains to be done by the contractor in performance of the contract. The agreement to fall within the scope of ss 44(v) must have a currency for a substantial period of time and must be one under which the Crown could conceivably influence the contractor in relation to parliamentary affairs by the very existence of the agreement. An immediate Response to Websters case was the Common Informers (Parliamentary Disqualifications ) Act 1975. which substituted far more modest penalties for those set out in s46 of the Constitution.

Re v Wood (1988) 167 CLR 145 Facts: Robert Wood was elected as a Senator of NSW. His election was challenged on the ground that he was a British Citizen. The High Court held that Wood had not been validly elected but the election was not void as the problem could be solved by a further distribution of preferences. Woods incapacity flowed simply from s 163 (1) (b) of the Commonwealth Electorate Act, which requires an elected person to be an Australian Citizen. The statutory ground enabled the Court to avoid the problem of s44 (i) of the Constitution. The Court: It has been unnecessary to determine whether Senator Wood was incapable of being chosen or sitting as a senator by reason of the provisions of S44(i) of the Constitution.

In Sykes v Cleary (1992) 176 CLR 77, the Court finally decided to answer the problem posed by s 44(i) of the Constitution. Facts: There was the Federal by election on 11 April 1992. Phil Cleary, an Independent, was elected to seat of Wills. The Liberal Party candidate was John Declaretaz and the Labour Party Candidate was Bill Kardamitsis. Cleary was a Secondary School teacher employed by the Victorian Education Department. Except for two days, he had been on leave without pay since 1 February 1990. He lodged his nomination for the seat in Wills on 20 March 1992. On the day of the election, he was still on leave without pay. The Declaration of the Poll was held on 23 April 1992 but early scrutiny had indicated that Cleary had won. Therefore, on 16 April 1992, Cleary resigned from his teaching post. He was an officer under the Teaching Service Act on the day he lodged his nomination and on the election day. Outcome: On the basis he was an Officer on both the days, the High unanimously held that Cleary held office of profit under the Crown, within the meaning of s 44(iv) and by 6:1 with Deane J dissenting, he was incapable of being chosen of sitting as a member of the House of Representatives.

Judgment: Mason CJ, Toohey and McHugh JJ: It has been accepted in Australia that a provision expressed in the same terms excludes public servants who are officers of the departments of government from the membership of the legislature. 1) The performance by a public servant of his or her public service duties impair his or her capacity to attend to the duties of a member of the House. 2) Considerable risk that a public servant would share the political opinions of the Minister of his or her department and would not bring 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. A permanent public servant who is a teacher falls within these categories whose public service duties are incompatible The taking of leave without pay by a person who holds office of profit under the Crown does not alter the character of the office of which he or she holds. The judges also held that the expression being chosen in s44 refers not to the declaration of the poll, nor even the election day but the entire process of being chosen, of which nomination is an essential part. Clearly therefore could have avoided the operation of s44(i) by resigning before the lodging of nomination on 20 March 1992. Since there was a need to hold a fresh election as the seat of Wills would become void, the Court reconsidered the eligibility of the other candidates, Kardamitsis and Delacretaz.

Mason CJ, Toohey and McHugh JJ:

Eligibility of Delacretaz Was born in Switzerland and migrated to Australia. He did not make application to the Government of Switzerland to renounce or otherwise terminate his Swiss Citizenship. Under the law of Switzerland, a Swiss Citizen will be released from his or her citizenship upon his or her demand if he or she has no residence in Switzerland and has a acquired another nationality Eligibility of Kardamitsis When he became an Australian citizen, he surrendered a Greek passport which he then held. Under the law of Greece, a Greek national will have his or her Greek nationality discharged if (a) he or she has acquired the nationality of another country with the permission of the appropriate Greek Minister; or (b) he or she has acquired the nationality of another country and later obtains the approval of the appropriate Greek Minister for the discharge of his or her Greek nationality. He had not sought not to have his Greek nationality discharged and accordingly under the law of Greece, he is and was at all material times a Greek national. Hence both of them were held to be entitled to the rights or privileges of a subject or citizen of a foreign power within the meaning of s44(i) because THEY HAD NOT TAKEN REASONABLE STEPS TO DIVEST THEMSELVES OF FOREIGN POWER. They were therefore incapable of being chosen or of sitting as members of the House of Representatives. THE JUDGMENT DID NOT LEAVE THE QUESTION OF FOREIGN CITIZENSHIP TO BE DETERMINED ENTIRELY BY FOREIGN STATE CONCERNED AS TRADITIONAL LAW WOULD HAVE REQURIED; It is therefore relevant but does not aid to a conclusive view.

Deane and Gaudron JJ dissented. Gaudron J argued that the matter should be considered solely within the framework of Australian Law. Within the framework, both men had each been through a naturalisation ceremony renouncing all allegiance. Whether the law of Greece or Switzerland accepted the efficacy of that renunciation was in her view irrelevant. I In Free v Kelly (1996) 185 CLR 296, it was ultimately conceded that ss 44(iv) as interpreted in Sykes v Clearly, must also result in the disqualification of Jackie Kelly, who had been elected in March 1996 because at the time of her nomination she had been an officer of the Royal Australian Air Force.

Background leading up to Sue v Hill Heather Hill at the 1998 Federal election was elected as a senator of Queensland. She was born in the United Kingdom and migrated to Australia in 1971. In 1998, she was granted Australian Citizenship. In November 1998, she became aware of the steps that could be taken to renounce her British Citizenship. She contacted the British High Commission completed a declaration of renunciation. Sue v Hill (1999) 199 CLR 462 Facts: Two petitioners challenged Hills election on the basis that at the time of her nomination, she did not satisfy the requirement s of s 44(i) of the Constitution. The central issue was whether the UK was a foreign power under that section. Gleeson CJ, Gaudron, Gummow, and Hayne JJ held it was and that Hill had not been duly elected (Australia Act 1986*).

McHugh, Kirby and Callinan JJ did not reach a conclusion on the operation of s 44 (i) because they held that the High Court had no capacity to determine the question in proceedings instituted by a petition. They held that the Commonwealth Court Electoral Act 1918 did not confer the Court with jurisdiction upon the Court, sitting as the Court of Disputed Returns, to determine such an issue. McHugh claimed that the question could be raised only on a referral by one of the Houses of Parliament or incidentally in determining whether an election should be set aside on the ground that the elected person has committed an illegal practice by falsely declaring that her or she was qualified to be elected. This conclusion depended upon the interpretation of ss 353 and 354 of the Commonwealth Electoral Act. S 353: the validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise. S354: The High Court as the Court of Disputed Returns; conferred upon its jurisdiction to try the petitions referred to in s353; and endowed it (in respect of the petition) with all the powers and functions of the Court Disputed Returns. S 376: Any question respecting the qualifications of a Senator or of a Member of the House of Representatives or respecting a vacancy in either House of the Parliament may be referred by resolution to the Court of Disputed Returns by the House in which the questions arises and the Court of Disputed Returns shall thereupon have jurisdiction to hear and determine the question. The constitution provides its own mechanism for determining such issues by s47, which provides that: Until Parliament otherwise, provides any question respecting the qualification of a senator or of a member of the House of Representatives..., and any question of a disputed election to either House, shall be determined by the House in which the question arises.

Question posed in Sue v Hill : Whether s 376 (Div 1) intended to provide the only way of raising issues of disqualification in the High Court or whether the words of ss353 and 354 (Div 2) are wide enough to permit the raising of these issues by a petition? McHugh, Kirby and Callinan KK accepted that the two provisions were mutually exclusive. This question arose two weeks before the judgment in Sue v Hill was delivered when the Federal opposition argued that Warren Fentsch was disqualified from continuing to sit in the House of Representatives. He held an interest in a private company which won a contract to supply concrete for an RAAF base. It was alleged that this amounted to a pecuniary interest in an agreement with the Public Service of the Commonwealth within the meaning of ss 44(v) of the Constitution. The judgment in Sue v Hill determine that the referral mechanism in s 376 of the Act is not exclusive of the possibility that such issues may also be raised by petition under ss 353-354. The Court remained cryptic about the continuing effect of s47 of the constitution. Gleeson CJ, Gummow and Hayne JJ: It has been suggested that if there was a pending petition under s 376, the relevant chamber can proceed to determine the issue without waiting for the determination of the petition and without

making a reference under s 353 and 354. Questions respecting the exercise by the chambers of the Parliament of their constitutional authority bestowed by s47 of the Constitution are not to be approached by reference to some distorting possibility. This suggests that of the Relevant House of the Parliament does still have power to answer such a question for itself under s 47 of the constitution; the fact it might have already done so does not deter the High Court from giving a different answer in response to a petition under ss 353- 354. Since four majority judges held that the petitions fell within the Courts jurisdictions under ss 353354 of the Act , they had to decide whether such a conferral of jurisdiction was itself was unconstitutional. It was argued that since the functions of Courts of Disputed Returns are incidental or ancillary to the working of the legislative institutions , they must be regarded as incidents of legislative power and not that of judicial nature. Gleeson CJ, Gummow and Hayne JJ Rejected the argument by stating that there was nothing in the nature of the resolution of disputed elections which places such controversies necessarily outside the judicial power of the Commonwealth.

RELEVANT PROVISIONS FOR THIS CHAPTER Australia Constitution

7. The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. 24. The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators. 41. No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth. Disqualification. 44. Any person who (i) Is under any acknowledgment 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 a citizen of a foreign power: or (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 (iii) Is an undischarged bankrupt or insolvent: or (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 (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.

Constitutional Conventions : AV Diceys Reading The law of constitution is enforced by courts. The other set of rules consist of conventions, understanding, habits or practices which though may regulate the conduct of several member s of the sovereign power, of the Ministry, are not in reality laws and cannot be enforced by the court. They are termed Conventions of the Constitution.

Conventions cane be judicially noticed and may influence the interpretation of statutes For example, the presumption that parliament would not intend a breach of convention. The legal status of conventions was considered by the Supreme Court of Canada in Re Resolution to Amend the Constitution [1981] 1 SCR 753; (1981) 125 DLR (3d) 1. Both houses of the Canadian Parliament decided to request the British Parliament to pass legislation to amend the Canadian Constitution. Wanted to patriate the Constitution and obtain a domestic amending procedure and the Canadian Charter of Rights and Freedoms. Several Canadian provinces opposed. 6:3 Supreme Court held that there was a constitutional convention that the Federal parliament would not request amendments to the Canadian Constitution affecting the powers, rights or privilege without first obtaining a substantial degree of provincial consent. 7:2 held that this constitutional convention is not a legal requirement and this degree of consent was not constitutionally required.

Judgment - When a federal or provincial statute is found by the courts to be in excess of the legislative competence of the legislature which enacted it, it is declared null and void and the courts refuse to give effect to it. This is the Law of constitution and the courts enforce it. - Conventions of the Constitution are principles and rules of responsible government and regulate the relationship between ministers, crown etc. - They ensure the legal framework of the constitution and that it is working in accordance to the constitutional values and principles of the period. - Their importance depends on that of the value or principle which they are meant to safeguard (No formal sanctions if they are breached) -

Conventions in Australia Underpinned in the day to day operation of the Australian Constitution Constitution does not mention the office or powers of the Prime Minister This is left to the conventions. The Governor General under the Constitution hold considerable executive power E.g. s 64 ministers may be appointed by the Governor General These sections apparently vest considerable even dictatorial power in the Governor General. But these powers are largely illusory because he can only act on the advice of the parliamentary leader of the majority party in the House of Representatives. Australian government tend to derive their conventions largely from Britain Fundamental Conventions : More certain to lead to an ultimate breach of law.

The Crown Federal Executive includes the King or Queen, the Governor General, misters and public servants employed by government departments. Adaptation of the Westminister system of government. After the 1688 Glorious Revolution, the parliament has established itself as the dominant institution that can make or unmake laws. King and Queen remain formally responsible for the laws administration through the public servants but by conventional constitutions it came to be recognised that even in higher executive functions, monarchs must act on the advice of their ministers.

Executive Power S61 of the Constitution: The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. Vests executive power in the Queen These powers are exercisable by the Governor General Silent on the scope of powers Executive could exercise the prerogative powers of the Crown

Prerogative powers - Seen as incorporated in S61 of the Constitution - Now seen as ascribed to the Crown by Common Law because of the fact that the Crown can be seen as a legal person Adam Thomkins s reading - Blackstone : Prerogative powers are unique to the Crown; a closed list of identifiable and discrete powers covering areas of government - Dicey: Argued that prerogative power consists of the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown. Republic Advisory Committee, An Australian Republic Reading - Three categories of prerogatives of the Crown - 1) Executive prerogatives: Monarch had the power to do various acts, e.g, make peace, declare war - 2) Immunities and preferences: e.g. priority of Crown debts over those owed to creditors - 3) Property rights: e.g. entitlements to royal metals etc. - Like other common law rights, these prerogatives are subject to legislation Property prerogatives remain with states; Crown has original or radical title to all lands. Executive prerogatives incorporated in S61 of the Constitution; Executive power of the commonwealth is subject to control by legislation Because prerogative powers depend on the common law, they are subject to modification by statute (Can be done in two ways)

1) Statutory regime can regulate the power by e.g. stripping it of discretionary elements and imposing criteria and procedures by which the exercise of the power is to be controlled. 2) Statutory regime can wholly supplant or extinguish the power (So what was formerly an inherent power of the government now depends wholly on a statute)

NSW v Cadia Holdings Pty Ltd (2009) 257 ALR 528 STATUTE DISPLACING PREROGATIVE? Facts: The Crown in right of NSW was entitled to royalties from a mine near Orange containing both gold and copper. In the case of Mines, it was already decided that in such a case, the Crown owns the entirety of the ore. However, the issue was whether that decision was modified by the Royal Mines Act of 1688 and 1693 which altered the prerogative to encourage enterprise Judgment: Spigelman CJ (NSWCA, Dissent): The act had abolished the prerogative power because it abolished the Crowns prerogative ownership in relation to copper although it left the ownership of gold untouched. Basten JA: Said that the act limited to cases where technological developments in melting and refining metals had allowed for extraction of gold and silver where they had not been previously possible(Only applied to Royal mines) Handley AJA: Prerogative power is not to be displaced or restricted by statute in the absence of clear words. Since the act did not clearly apply to mines containing both gold and copper, the prerogative power in relation to those mines should not be affected.

Attorney- General v De Keysers Royal Hotel Ltd [1920] AC 508- WHAT PREROGATIVE POWERS ACTUALLY MEAN? Facts: The UK government had requisitioned a hotel during World War I for the purpose for headquarters of the Royal Flying Corps. This was made pursuant to regulations under the Defence and the Realm Consolidation Act 1914 which provided for compensation. The Hotel owners were denied compensation when they asked for it. The government asserted that it acted in exercise of a prerogative power to take property without compensation. Outcome: Held that the Legislative scheme must be upheld, thus compensation should be paid. However, no unanimous decision was expressed about the relation between the legislative scheme and prerogative power; Hence it was unclear. Judgment: Sir John Simon KC: Prerogative is merged with the higher title derived by the Act of Parliament. Lord Dunedin: If the powers of the prerogative is covered by a statute, that statute would prevail. When the Act deals with something before the Act could be effected by the prerogative and specially empowers the Crown to do the same thing, but subject to conditions, the Crown assents to that, and by that Act to the prerogative being curtailed; Legislation has supplanted the Prerogative powers. Lord Atkinson: When a statute expressing the will and intention of the King and of the 3 estates of the realm is passed and abridges the Royal prerogative, the Crown will only be able to act in accordance with the statutory provisions and that its prerogative power to do that thing is abeyance. So if the statute is repealed, the prerogative power would come back into effect.

Lord Moulton: The Act has not abrogated the royal prerogative in any way but had rendered the exercise of the power unnecessary. Lord Summer: Held that the Defence Acts had superseded the Executive s prerogative powers. Lord Parmoor: The Executive is bound to observe restrictions which Parliament has imposed in favour of its subject.

R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No.2) [2009] 1 ac 453 Concerned with the scope of prerogative power in the UK Facts: Concerned with the validity of an Order in Council made in 2004. Purporting to lay down a constitution for the British Indian Ocean Territory by exercising prerogative power to legislate for territories acquired by conquest or cession. The territory had originally been ceded to the UK by France and now had been leased to the US for purposes of its military base. From 1968 to 1971, the indigenous inhabitants had been resettled to make way for the military base. The order in 2004 wanted to exclude them from ever returning back to the territory. Outcome: The order by 3:2 was upheld to be a valid exercise of prerogative power. Lord Bingham: When existence or effect of royal prerogative is in question the courts must conduct an historical inquiry to ascertain whether there is any precedent for the exercise of power in the given circumstances. - Has been established that it is a fundamental right to enter ones own country - The duty of protection of its citizens by the Crown cannot be ordinarily be discharged by removing and excluding the citizen from his homeland. Lordships were unanimous in accepting Blackstones assertion that prerogative could not be used to send any subject of England out of the land against his will. Lord Hoffman, Lord Rodger and Lord Carswell distinguished between her Majestys powers as Queen of UK and her powers in respect of colonial territories under the British Crown

Lord Hoffman: - The Queen is entitled to legislate for a colony in interests of the UK. In the event of conflict of interest, she is entitled on the advice of her UK ministers to prefer the interests of the UK. All their Lordships agreed that the Order was subject to judicial review. It was to be decided whether the act was reasonable to give weight to the interests of the UK, including its security interests and the importance of those interests of its relationship with the US. House unanimously rejected that these factors would not immunise the exercise of prerogative powers from judicial review. Allegations that the US was using the territory for its military base provided a need for heightened judicial scrutiny.

Lord Hoffman: - An exercise of prerogative power lacks representative character. - It should not be excluded from judicial review on principles of legality, rationality and procedural impropriety in the same manner as any other executive function.

If allegations of US using the territory for the purposes of prisons and people are being tortured were to be true, it would not be acceptable that such an act was to be legitimated by prerogative power. The islanders had been granted citizenship by UK and their claims arising from birth on the islands had been extended to children born after 1969 to women who had been born there. The Question was whether prerogative power could be used to prevent access to territory to persons who by citizenship or perhaps by birth were entitled to regard it as their home.

Lord Mance: - Supreme power in every state has the right to refuse to permit an alien to enter the state. The other lordships agreed that there was no prerogative barriers to the exclusion of aliens.

Ruddock v Vadarlis (Tampa Case) (2001) 183 ALR 1 Background: Historically, it was held that Australia s prerogative power extended to the exclusion of aliens . It was contended that this had been displaced by a statute. This issue was central to the Tampa Case. Facts: 433 Afghan people were rescued at sea in international waters from a sinking boat. They were taken abroad on the Norwegian commercial vessel, Tampa. The Master of Tampa asked Australia to provide medical assistance to the rescued people. When this was not forthcoming, he took Tampa into Australian Territorial waters. The Howard Government did not want the asylum seekers to be permitted into the land and 45 SAS troops boarded the ship. Proceedings were then initiated. Proceedings were initiated by the Victorian Council for Civil Liberties and by Eric Vadarlis, a Victorian Solicitor for a writ of habeas Corpus. Prior Proceeding at the Federal Court: North J - Held that the rescues were unlawfully detained - Ordered them to be released onto mainland Australia where they were to be detained but also be given opportunity to make a visa application under the Migration Act 1958. - He expressed doubt whether the prerogative right concerning the expulsion of nonresidents from Australian Waters, ever existed. - Even if such a right existed, it had now been supplanted by the Migration Act Davies J - At present time, the law with respect to the entry of persons to Australia and with respect to their expulsion is regulated by statute. Proceedings at the Full Court of the Federal Court 1) Did the Commonwealth have prerogative power with regards to expelling aliens from the country? 2) If it did, had it been displaced by the statute, Migration Act?

The decision of North J was reversed 2:1; Black CJ dissented. French CJ and Beaumont J held that the rescuees had not been detained and the executive power of the Commonwealth extended to the expulsion of the rescuees and to their detention for that purpose.

French J: - Executive power of the Commonwealth under s61 of the Constitution cannot be treated as a species of the royal prerogative. - It is subject not only to limitations as to subject matter that flow directly from the constitution but also to the laws of the Commonwealth made under it. - Executive power of the Commonwealth, absent statutory extinguishment or abridgement would extend to a power to prevent the entry of non citizens and to do such things as are necessary to effect such exclusion. - The power to determine who can come into Australia is central to the sovereignty and therefore, the executive should not lack any power conferred by the Constitution in relation to this. - S61 confers upon the power to exclude or prevent the entry of a non-citizen to Australia. - The Migration Act does not abrogate the executive power under S61. - Looked towards the intention of the Migration Act; Has no express words to displace the prerogative power. The intention of the act is not to deprive the executive of the power but instead confers power. Dissenting Judgement Black CJ - Doubted whether such a prerogative ever existed. - Held that the power to expel people from entering Australia illegally, derives only from legislation and not from power exercisable by the executive. - The executive cannot expel a person from Australia without statutory authority - Prerogative powers can be extinguished not merely because a legislation has been passed but because these powers have become incompatible with modern constitutional jurisprudence. - By the end of 19th century, in English Jurisprudence, the power to exclude aliens in times of peace was not considered to be part of the prerogative. There was hence a disuse of the prerogative power. The last time it was used when the Crown directed the Jews to be excluded from the British territory. - The Migration Act provided a very comprehensive relating to migration, departure, deportation of aliens. It is comprehensive in its coverage of apprehension and detention. - The intention of the Parliament, through this act, was to therefore exclude any executive power unless conferred by the Parliament to deal exclusion, entry and expulsion of the aliens. The prospect of a successful High Court appeal was foreclosed by the Border Protection (Validation and Enforcement Powers) Act 2001 which retrospectively authorised the detention of the rescuees and other acts. The High Court refused an application for special leave to appeal Gaudron, Gummow and Hayne JJ held that the original detention abroad the Tampa could no longer be challenged because the rescuees had been transferred However, stated that the question of standing to seek ... relief under s 75 (V) of the Constitution was an important constitutional question of the executive and prerogative power. In 2003 Iraq War, Australia participated as part of the coalition of the wiling

Raised questions about prerogative Constitution did not state who can declare war for Australia, and under what circumstances in which Australia could go for war. Matter was governed by prerogative By contrast , Art 9 of the Japanese Constitution states that the Japanese people forever renounce war as a sovereign right of the nation.

Gooffrey Lindells reading - Powers to declare war and peace are now taken to be vested in the executive power of the commonwealth which could be derived under s 61. - Prerogative nature of the power of making war and peace means that they can be exercised without parliamentary approval unless there is any statutory provision that regulate this power or limit the power to deploy military forces overseas. Defence Amendment Bill 2003 which sought to provide that members of the Defence force may not be required to serve beyond the territorial limits of Australia except in accordance with resolution agreed by each of the House or pursuant to an emergency proclamation by the Governor General, has yet to be passed.

Control of the Executive Many mechanisms for keeping the executive in check Include controls imposed by the executive upon itself i.e. Code of Conduct issued by the Prime Minister to regulate the behaviour of his or her ministers. Or laws such as Freedom Information Act 1982 or scrutiny of officers under the Ombudsman Decision- making by ministers and their departments is also subject to review; by tribunal or by the court under Administrative Decisions (Judicial Review) Act 1977. Could be regulated under the common law (Tampa Case) High Court could regulate through the constitutional writs guaranteed by s 75(v) of the Constitution. Parliament can hold the executive under account through the conventions of responsible government.

Responsible Government - Queens representatives Governors in each state and Governor General must act on the advice of the ministers. - Ministers in turn should be members of the Parliament and be accountable to it, and therefore ultimately be accountable to the electors. - S64 of the Constitution; No member of the state shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives. Australia and Responsible Government - Executive authority is vested in a ministry whose members must be members of the Parliament or must do so within three months of taking office. They are collectively responsible to the Parliament. - All ministers are responsible to the Parliament for the affairs of their own departments. - The power of final political decision lies with the Cabinet

Governor General acts as the final component of the Legislative process; confirms the validity of laws duly passed by majorities in both Houses. Executive can be dismissed in 2 ways; either by losing an election or by losing a vote of no confidence in the lower house (Prime Minister). The loss of a vote of confidence signals that the executive can longer command majority support in the Lower House.

Problems with Australias system of Responsible government - Problems with chain of accountability: Do ministers possess effective control over their departments? - Can Parliament fully control the ministers and the executive - Problems created by the Senates power to block supply under s53 - Problems arising from the extent of the discretionary powers of the Governor General vested in the Constitution; can intervene in the case of dispute between the two houses over supply and even dismiss a government with a majority in the Lower House if it cannot obtain a supply. Dominance of party system means that the Lower House of the Federal parliament is usually controlled by the party that forms the government. The Parliament might therefore be directed by the executive instead. If the Parliament had an upper house in which the government does not have a majority because of proportional representation voting system, there would be greater opportunities for the scrutiny of government action. In the Federal Parliament, the Senates powers have been enhanced by the Senate Committee system. The Senate has controlled by a changing combination of the opposition minor parties and independents. The Senate committee, conducts inquires and report on matters referred to them by the Senate. It examines the proposed annual expenditure of government departments and authorities and investigates particular questions or particular instance of executive action through the estimate process. During Question Time, ministers are asked questions pertaining to the decisions they have made on the advice of senior officials. In state parliaments, Upper Houses have asserted a more active role in the scrutiny of the government. In NSW, the Legislative Council forms the Upper House Egan v Willis (1998) 195 CLR 424 Facts: Egan was treasurer in the Labour government. He was the leader of the Government in the Legislative Council of the NSW parliament. The government lacked majority in that house. The Legislative Cabinet had agreed that Ministers should decline to comply with such orders. The council then passed a resolution stating that Egan was guilty of contempt and suspended him for the remainder of the day when he refused to give documents relating to the internal affairs of the government. When Egan refused to leave the House, the Usher conducted him out of the chamber onto the footpath outside. Eagan brought an action that the declarations were invalid and his removal into the street was actionable as trespass.

NSW Court of Appeal: Dismissed Appeal but held that a trespass had been committed.

High Court & issue of justiciablity Issue was whether the declarations were within the Legislative Councils power under the Constitution Act 1902 (NSW) Matters of the internal affairs of the Parliament have generally been regarded as nonjusticiable. Majority of the Court held that in this case it was justiciable because there was a claim of trespass being committed by the Legislative Council and questions respecting the existence of the powers and privileges of a legislative chamber may present justiciable issues when they are elements in a controversy arising in the courts under the general law.

Outcome: - Dismissed the appeal and held that the Legislative Council had the power to deal with Egans refusal to produce the documents by ordering his suspension for a limited time. Judgment: - The test of reasonable necessity should be applied to conclude whether the Legislative Council could suspend one of its members for failing to produce State Papers that the House Sought. - Test of reasonable necessity : Whether the action is necessary to the existence of such a body and the proper exercise of the functions which it is intended to execute The contemporary position in Australia is that the Parliament not only passes laws but also questions and criticizes the government on behalf of the people. Securing accountability of government activity is the very essence of responsible government. There was therefore a legal recognition of the convention of Responsible government. Primary function of the Legislative Council is indicated by s5 of the Constitution Act : The Legislative Council, as an element of the Legislature, subject to the provisions of the Commonwealth Constitution, to make laws for the peace, welfare and good governments in NSW... What is reasonably necessary for the proper exercise of the functions of the Legislative Council have come to be conventional practices established and maintained by the Legislative Council. Barton v Taylor : If a member will not produce documents sought by the House there may be some limits to the steps it make take in response. They should be necessary but not punitive. Doctrine of reasonable necessity would authorize suspension until submission or apology of offending member Unconditional suspension for an indefinite period of time may be an abuse of power But you could still suspend for a limited time from the service of the house. McHugh although agreed to the decision, would have allowed the appeal on the basis that the Court of appeal lacked the jurisdiction to determine an issue which deals with the internal affairs of the Parliament (Issue of justiciability).

Egan v Willis was decided only on 19 Nov 1998. 5 weeks earlier, Egan was asked to supply documents relating to Sydney Water supply. Egan refused to produce the documents and Legislative Council suspended him for 5 sitting days. After the case was decided, the Legislative Council again asked for the documents but now itemised in great detail. Egan produced many of the itemised documents but not the Cabinet ones. The Legislative Council suspended him for the remainder of the session. He was removed again from the House and he sued for assault. Action was dismissed. Egan v Chadwick (1999) 46 NSWLR 563 NSW Court of Appeal applied the test of reasonable necessity as laid down in Egan v Wills. On that basis, Egans claim to legal professional privilege was unanimously dismissed. Spigelman CJ: Access to legal advice would assist an informed assessment of the justification of the Executive decision. - CJ Spigelman: The issue was whether or not the power of the Legislative Council to call for all documents extends to documents which claims of legal professional privilege or of public interest immunity could be made at common law. - Legal Professional Privilege: Rule of Law that protects the confidentiality of information made between a client and his lawyer. All three members of the Court agreed that Council's power to call for documents did extend to privileged documents, only on the basis that such a power may be reasonably necessary for the exercise of its legislative function and its role in scrutinising the Executive. Spigelman: The Councils power to scrutinise the Executive is derived from the principle of responsible government; this is because the scrutiny power provides a means of enforcing the responsibility of the Executive to the organs of representative government; Spigelman CJ and Meagher JA found that the power does not extend to ordering the production of Cabinet documents. Meagher J's formulation of the restriction was broader in this regard, with his Honour granting immunity to Cabinet documents generally. For Spigelman CJ, on the other hand, the immunity applied to documents which, directly or indirectly, reveal the deliberations of Cabinet due to Ministerial Responsibility As for documents prepared outside Cabinet for submission to Cabinet, depending on their content', these may, or may not' also lie beyond the Council's power. Priestly JA dissented to this exception: The legislative Council should have the same power as a court with the same responsibility of balancing the conflicting public interest considerations; no legal right to absolute secrecy should be given to any group of men and women in government. The practical question for the future is how broadly or narrowly the courts will interpret the restriction on Cabinet documents.

Question 1 (15 marks) Hughies opponent has commenced court action that seeks Hughies disqualification from Parliament for reasons connected with US citizenship. Advise Hughie regarding the legal issues involved and his prospects of successfully defending the action. Issue of Jusiticiablity: In Sue v Hill - Was held that the High Court was not conferred any power by the Commonwealth Electorate Act 1918 to determine issues instituted by a petition. - It was held that such an issue could be raised only on a referral by one of the Houses of Parliament or incidentally in determining whether an election should be set aside on that ground that the elected person has committed an illegal practice by falsely declaring that he or she was qualified to be elected. - S47 of the constitution: Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises. - Since, in this case Hughies opponent had decided to commence a court action, the High Court will not have the capacity to deal with the matter. - However, in Sue v Hill, the Court still went ahead to provide a judgment. - Hence, a court action might still be possible. Provisions regarding disqualification of an elected person because of nationality issues: - S 163 (1) (b) of the Commonwealth electorate Act which requires an elected person to be an Australian Citizen (Re v Wood). - S 44(i) would be incapable of being chosen if they were entitled to the rights or privileges of a subject or citizen of a foreign power. - Unclear that he is an Australian Citizen - Alternatively if it assumed that he is an Australian citizen, the issue is whether did he successfully renounce the citizenship. Issues (Did he successfully renounce his citizenship?) In order for a US citizen to renounce their citizenship in a prescribed form by: appearing in person before a US consular or diplomatic officer; in a foreign country (normally at a U.S. Embassy or Consulate); and signing an oath of renunciation.

He would need to appear in person. He did not do that. It was held by a majority in Sykes v Cleary that renunciation of a citizenship should be done in accordance to the prescribed manner of the respective countries or one must have at least must have taken reasonable steps to have done so. He did not do so. Conclusion: He would be unsuccessful in defending the action against him because he has not renounced his citizenship in a satisfactory manner.

The Separation of Judicial Power 3) Advise Louie regarding the legal issues involved in a challenge to his suspension from the Legislative Council and his prospects of success. Issue of Justiciability - Could be problematic in this kind of matters - Matters of internal affairs of the Parliament have generally been regarded as nonjusiticiable (Egan v Willis) - But the Court held that when there are elements in controversy arising under the general law such as trespass, the matter could be justiciable. - In this case, it could involve trespass committed by the Legislative Council because Louie was physically taken by arm by the Usher of Black rod. What are the issues 1) Does the Legislative Council have the power to order someones suspension? 2) Should Louie be obliged to produce all the documents? 3) Would he enjoy the prospects of success? 1) Yes it could suspend one of its members for failing to produce the State papers (Egan v Willis) - The relevance of Responsible government/ Convention of Responsible Government - Need to apply the test of reasonable necessity - Whether or not the action is necessary to the existence of such a body and the proper exercise of the functions which it intended to execute - Securing accountability is the very essence of responsible government - In this case it is appropriate because of allegations of corruptions - He had no reasonable excuse as well - Function of Legislative Council S5 of NSW Constitution Act 2) 3) Issue of suspension Has been suspended for three months (Punitive?) Egan v Willis (Barton v Taylor) Held that you cannot have unreasonable/unconditional suspension for a period of time In Egan, he was only suspended for the remaining of the day Therefore, this could be a punitive punishment. Should he produce all the documents In Egan v Chadwick Exception to cabinet documents that involve deliberations of the cabinet Since it is not specified here what are the documents He need not necessarily been ordered to provide all the documents Only documents that would assist an informed assessment of the justification of the executive decision

4) Conclusion: Legislative Council had the rights to order his suspension if he failed to produce the relevant documents. If he had been forced to produce other documents which involve Cabinet deliberations, his suspension might be invalid. His punishment is punitive as we Separation of Powers - Judicial Review ; Courts exercising such power must be independent of the government and other legislature

Boilermakers Case: Judicial power of the Commonwealth must be kept strictly separated from other governmental institutions. Australia: No strict separation between Legislative and Executive power. Executive is integrated into the legislature by the requirement that Ministers responsible for the departments of the government must be Members of Parliament accountable to it through mechanisms such as Question Time. Acknowledged in S64 of the Constitution: No minister shall hold office for a longer period than three months unless he is or become a senator or a member of the House of Representatives. Separation of Powers in CH I, CHII, CHII of the Constitution. The chapters outlines the powers and roles of the various arms of government.

In Victorian Stevendoring & General Contracting Co Pty Ltd & Meakes v Dignan (1931) 46 CLR - Dixon J suggested that by virtue of separation of powers, the Parliament is restrained from reposing any power essentially judicial in any other body and from reposing any other than judicial power in such tribunals. - 1) Judicial Power of the Commonwealth cannot be vested in any tribunal other than a CHIII court - 2) A CIII court cannot be invested with anything other than judicial power (except for those ancillary powers that are strictly incidental to its functioning as a court.) - Therefore, judicial and non-judicial power cannot be vested in the same tribunal. - This was held in the Boilermakers Case.

R v Kirby, Ex parte Boilermakers Society of Australia (Boilermakers Case) (1956) 94 CLR 254 Breach in the Separation of Powers Facts: The Metal Trades Employers Association sought to enforce a no- strike clause in award. The Arbitration Court made an order requiring the union to comply with the award and further order fining the union for contempt of court when it disobeyed the earlier order. Outcome: In the High Court, the Union obtained an order of Nisi from McTiernan J, calling on 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 exercising non- judicial power was unconstitutional. 4:3 (Williams, Webb and Taylor JJ dissented) Order Nisi was made absolute.

Judgment: Relevance of CHIII of the Constitution Held that the judicial power of the Commonwealth could not be vested in a tribunal that also exercised non-judicial functions. The doctrine of the separation of powers in the Commonwealth Constitution and, in particular CHIII, emphasized the independent and exclusive character of the federal judicial power. It was impossible to escape the conviction that CIII of the Constitution

CIII does not allow the exercise of a jurisdiction which of its very nature belongs to the judicial power of the Commonwealth Chapter III does not allow a combination with judicial power of functions which are not ancillary or incidental to its exercise but are foreign. Limitation of Legislative Powers in accordance to the Constitution

The Commonwealth Constitution embodied a legal distribution of the legislative, executive and judicial powers between Parliament, the Executive and the courts respectively. Chapter III of the Constitution is assisted by s.51 (xxxix); furnishes the court with authorities incidental to the performance of the functions derived under or from CIII. Its beyond the competence of the Parliament to invest with any part of the judicial power any body or person except a court created pursuant by S71 and constituted in accordance to S72 or a court brought into existence by the state. CIII is the sole repository of Commonwealth judicial power and the sole determinant of the manner of its exercise. Arbitration Court (Non- Judicial in Nature) The conciliation and arbitration power was non-judicial in nature and content foreign to the judicial power. Since its creation in 1904, the dominant functions of the Arbitration Court had been "arbitral" and not judicial. The division of legislative, executive and judicial powers accomplished byss. 1, 61, and 71 of the Constitution could not, they held, be treated as a mere draftsman's arrangement. It followed the plan of the United States. The Constitution was intended to establish legal limitations on the powers of the organs of government.

Had there been no such Chapter (III) in the Constitution, some at least of the legislative powers would have been construed as extending to the creation of courts with jurisdictions appropriate to the subject matter of the power. But this was negatived, firstly by the special provision made in the Constitution for the judicial power and, secondly, by the nature and contents of Chapter III itself. That Chapter, though not expressed in affirmative terms, was "an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested" It was, moreover, an exhaustive treatment of the whole judicial power, not merely of a judicial power exercisableby the judicature.

The decision was reaffirmed by the Privy Council on appeal Attorney General (Commonwealth) v The Queen

Lord Simonds (for their lordships) By S71 of the Constitution, it is provided that 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. S71 & the succeeding sections negative the possibility that such power can be vested in other courts or extending their power beyond these limits. S 51 (xxxix) empowers the Parliament to make laws in respect of matters incidental to the execution of vesting of power of a federal judicature. The conferment of such limited power of legislation S51 makes it clear that it is in Chapter III alone that a larger power is contained. Provisions in that Chapter do not contain any authority for vesting in a court powers and functions which are not judicial or to vest in a body of persons exercising non-judicial functions part of the Judicial power of the Commonwealth.

Amendments had already been made to the Conciliation and Arbitration Act before the judgment. It divided the former Court of Conciliation and Arbitration into a Conciliation and Arbitration Commission and a Commonwealth Industrial Court. In 1974, the High Court almost invited the rule in the Boilermakers Case to be overruled.

R v Joske; Ex parte Australian Building Construction Employees & Builders Labourers Federation (1974) 130 CLR 87 Barwick CJ: The decision in Boilermakers lead to excessive subtlety and technicality in the operation of the Constitution without any compensating benefit Despite this, it may be proper that it should continued to be followed It may be so unsuited to the working of the Constitution and there should now be a departure from some or all of its conclusions.

Mason J: - Agreed with Barwick but held that it was not a question that needed to be considered in order for the case to be resolved. In R v Joske; Ex parte Shop Distributive & Allied Employees Association (1976) 135 CLR 194, it looked as if the time for the over ruling had arrived. Was a challenge to the Supervisory powers of the Commonwealth Industrial Court over the internal affairs of trade unions. It was argued that that Statutory provisions had sought to confer non-judicial power on Industrial Court in contravention of the Boilermakers Case. Case was ultimately dismissed on the ground that the relevant sections did not confer nonjudicial power . It was held that the Parliament could give certain (administrative) powers which were incidental to their judicial functions. Hence, the Boilermakers case need not be resolved.

Since 1970s, the underlying rationale of the Boilermakers doctrine has shifted.

Boilermakers Case: The need to insulate from political interference the special judicial responsibility for the maintenance of the Constitution. It has been argued by Leslie Zines that this rationale only peculiarly applied to the High Court so that the position of other Federal Courts can be distinguished. Recent years rationale: Courts are treated as bulwarks or bastions of individual liberty and thereby implies that their role in policing constitutional limits on government has much to do with the protection of individual freedom as with the federal distribution of powers. - Asserted in Street v Queensland Bar Association (1989) by Deane J - Constitution contains a significant number of express or implied guarantees of rights and immunities - Most important is the guarantee that citizen can only be subjected to the exercise of Judicial power only by the Courts designated by Chapter III. The shift was signaled by Jacobs J in R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR - Held that the power of the Registrar of Trade Marks to order the removal of a trade mark from the registrar did not involve judicial power - Whether a power is exclusively a judicial power is based upon the recognition that we have inherited and were intended by the Constitution to live under a system of law and government which has traditionally protected the rights of persons by ensuring that those rights are determined by a judiciary independent of the parliament and the executive. Defining Judicial Power Huddart, Parker & Co Pty Ltd b Moorehead (1909) 8 CLR 330 Griffith CJ: Judicial power in S71 of the Constitution means the power which every sovereign authority must of necessity have to decide controversies between people or between itself and its subjects. The power does not begin until some tribunal which has the power to give a binding or authoritative decision is called upon to take action. Such definitions meant that tribunals whose functions might seem to overlap with Judicial power have nevertheless been regarded as validly constituted if the particular grant of power is appropriately tailored to the legislative purpose. The following decision illustrates this viewpoint.

R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 . The functions of the Trade Practices Tribunal as defined by the Trade Practices Act 1965 did not involve judicial power and were thus validly conferred. Part IV of the act empowered the Tribunal to hear proceedings instituted by the Commissioner of Trade Practices and to make determinations and order in those proceedings It was held that with Menzies J dissenting that this did not involve judicial power.

Judgment: Kitto J - The question is whether the powers conferred by Part IV are within the concept of Judicial power of the Commonwealth. - Some powers may be appropriately treated as administrative when conferred on an administrative functionary may just as appropriately be seen in a judicial aspect and be validly conferred upon a federal court. 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. The provisions of the Act suggest no exercise of any of the Tribunals powers as an adjudication and the result of the exercise of the powers is foreign to the nature of judicial power. In Labour Relation Board of Saskatchewan v John East Iron Work Ltd [1949] It was held by the Privy Council that judicial power involves 1) Decision settling for the future, i.e. between parties 2) Question as to the existence of a right or obligation A process needs to be followed A) inquire the law and the facts B) application of the law C) Conclusion A power which does not involve such a process needs to possess some compelling feature if its inclusion in the category of judicial power is to be justified In Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) It was held that the line between Judicial power and executive power is very blurred. Historical evidence plays an important part in the classification of a power While Judicial power may have a number of indicia, none of these indicia is itself decisive. Whether a power can be said to be Judicial depends upon the indicia found in the power being weighted up against those which are absent or against other indicia to the contrary.

AR BLACKSHILED THE LAW READING - Judicial power is controlled power; must be based on authoritative legal materials - It is argued that application of criteria such as oppressive, unreasonable etc lies beyond scope of judicial power because the individual persons who compose the tribunal cannot proceed mechanically or even objectively but must bring in their own subjective evaluations. - Such arguments have failed - Tasmanian Breweries Case (1970); The Public interest concept was held not a sufficiently justiciable standard. - It is a concept that attracts indefinite considerations of policy that are appropriate to law making then to adjudication according to existing law. - Courts cannot provide an objectively determinable criteria. - It is an exercise of legislative or administrative function instead of judicial power. - Formulation of strict legislative guidelines so tightly defined also leave the court with no leeway for choice in its application of the law. - The argument that this is also incompatible with the idea of Judicial power because it reduces the court to a mere rubber stamp also fails.

Oliver Wendell Holmes held that what matters is not whether or not the ultimate decision is in fact a predetermined interference from the existing rules of law but whether the judge believes and acts as if the principle he applies are derived from the existing legal principles.

Palles CB in R v Commonwealth Board (1902) It was held that the key to judicial power is neither in law or facts but in the determination by the judge which is interposed between these. A judges decision within jurisdiction will having binding force and effect for the parties even if the underlying interpretation of the law or the facts is wrong. In the end, Judicial power must somehow be circumscribed or control, whether by law or by facts. In Cominos v Cominos (1972) 127 CLR 588, it was held that a court cannot embark on an action of its own initiative but must wait until a claim is filed or an application is made. It must then determine the issues raised by that claim or application

Persona Designta Rule - Although it is impermissible to supplement the judicial functions of a federal judge by adding non- judicial function, a person who happens to be a federal judge may validly be appointed or assigned to perform non judicial functions provided that the appointment or assignment is addressed to the individual person - Such functions can be conferred even if federal judicial tenure is the criterion by which that person is selected This rule is illustrated by the holding in the Federal Court that Davies J, of that Court was validly appointed also as a Deputy President of the Administrative Appeals Tribunals.

Drake v Minister for Immigration & Ethnic Affairs(1979) Bowen CJ and Deane J: - Davies J appointment as presidential member was a personal appointment. - Before he could be validly appointed as a presidential member, it was necessary that he hold one of a number of designated qualifications. - It so happened that the qualification he held was that he was the Judge of the Federal Court. - The appointment was of him to the office of Deputy President of the Tribunal and not a conferring of functions or duties on the Court of which he was already a member Such an appointment does not involve any permissible attempt to confer upon a CHIII court functions which are antithetical exercise of judicial power.

The first application of the Persona Designata Rule was in the High Court s case of Hilton v Wells.

Hilton v Wells (1985) 157 CLR 57 Facts: The case arose from a Federal Police investigation into allegation of bribery and corruption in procuring the early release of prisoners from New South Wales prisons. The evidence of the alleged conspiracy was obtained by telephone tapping pursuant to warrants issued by Judges of the Federal Court under s20 of the Telecommunications (Interception) Act 1979 which authorised the issue of such warrants by a Judge. By S 18, the words Judge was defined to mean a judge of the Federal Court of Australia or ACT Supreme Court or (subject to arrangements) of the Supreme Court of a State or Northern Territory. It was argued that S20 of the Act was unconstitutional. Outcome: Argument failed. 3:2 Judgment: Gibbs CJ, Wilson & Dawson JJ: - The power conferred by s20 is not ancillary or incidental to any judicial function. - If s 20 confers power on courts of which 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. - S 77 (iii) of the Constitution, which enables the Parliament to make laws investing any court of a State with federal jurisdiction, does not enable the Parliament to require State courts to exercise non-judicial power. Question is whether s20 confers powers on the Federal Court or on the judges individually as designated persons. Where a power, judicial or non judicial is conferred by statute upon a court or a judge, it is not necessarily conferred on the court or the judge as such. It involves a question of construction of the statute Where the power is conferred on the court there will originally be a presumption that the court as such is intended. Where the power is conferred on the judge rather than the court, it will be a question whether the distinction was deliberate and whether the reference to Judge rather than to court indicates that the power was intended to be vested in the judge as an individual because he possesses the necessary qualifications to exercise it. It is clear that if the judge is a member of the Supreme Court of a state or of the Supreme Court of the Northern Territory, the power is not conferred in these courts but upon the Judge as a designated person. Unless the Governor General has made arrangements with the Governor of the State or the Administrator of the Northern Territory, no judge of the Supreme Court of the State or territory will be invested with power by s20. Since s20 refers to a judge, it is unlikely that the Parliament intended in other cases to refer to the judge as such and to confer power on that court.

The nature of power conferred is of importance in deciding whether the judge on whom it is conferred is intended to exercise it in capacity as a judge or a designated person. If it is purely administrative, and not incidental to the exercise of judicial power, it is likely that it is intended to be exercised by the judge as a designated person. Under S20, the judge makes no order or 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. The section designates the judges as individuals particularly well qualified to fulfil the sensitive role that the section envisages and confers on them a function which is not incompatible with their status and independence with the exercise of their judicial powers.

Dissenting Judgment: Mason and Deane JJ - The ability of the Parliament to confer non- judicial power on a judge of CIII courts, as distinct from the court to which he belongs, has the potential, if it is not kept within the strict limits, to undermine the doctrine of the Boilermakers case. - It is to be acknowledged that the Parliament may confer non-judicial functions on a federal judge only when there is a clear expression of the 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.
-

It may be argued that in accordance to the doctrine of Separation of powers, it is beyond the Parliaments power to attach to the holding of judicial office as a member of a CIII court an unavoidable obligation to perform as a designated person.
This question was left unanswered because it was irrelevant to the case. It is also important to stick to the strict principle of the separation of powers because when a function is entrusted to a judge by reference to his judicial office the legislators and the community are entitled expect that he will perform the function in that capacity.

In Jones v Commonwealth (1987) , a 7 judge Court was asked to reconsider Hilton v Wills , a 6:1 majority refused to do so. The sole dissent was Gaudron J. Following Hilton v Wills, the Telecommunications (Interception) Act 1979 was amended in 1987 to make it clear that a judge who authorized a telephone tap was doing so as a persona desginata. The terms a judge and the troublesome definitions were abandoned and instead relevant powers were conferred upon an eligible judge. The validity of the new provisions were considered by the High Court in Crollo v Plamer (1995) in the absence of Gaudron J. The case was decided by a Court of 6 judges. All 6 acknowledged that the 1987 amendments was clear that the function were entrusted to the judges as persona designate and not members of the Court.

It was considered in the case whether the performance of such a role in the criminal investigation process was compatible with Judicial office even for a personal desginata.

Grollo v Palmer (1995) 184 CLR 348 Brennan CJ, Deane, Dawson and Toohey JJ: The term Personal Designata means that there is no necessary inconsistency with the separation of powers mandated by CIII of the Constitution if non- judicial power is vested in individual judges detached from the court they constitute. Conditions to which non-judicial power can be conferred upon judges as personal designata I) It cannot be conferred without the Judges consent Ii) 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 responsibilities as an institution exercising judicial function ( incompatibility condition) Incompatibility condition: If the performance of the judicial functions is compromised or impaired (Practical effect/ Will it divert the judges from their judicial duties?) Performance of non-judicial functions are of nature that public confidence in the integrity of the judiciary as an institution or The capacity if the individual judge to perform his or her judicial functions with integrity is diminished.

Warrants Issue of biasness can be resolved if a judge who has issued a warrant in a particular matter can ensure that he or she does not sit in any case to which the warrant relates.

It was acknowledged that incompatibility conditions existed in the Persona Designata rule but they did not apply in this case. Dissenting Judge McHugh J: - The persona designate exception to the Boilermakers principle must give way when the exercise of non-judicial function 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 power conferred upon by the act is of such manner and because of that public confidence is likely to be jeopardized. - The act allows Judges to be 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. - It directly conflicts with their judicial functions.

Because applications and the identity of judges are secret, the parties to proceedings are not aware that the judge is in possession of information that is prejudicial to one of them; the affected party is unable to ask the judge to disqualify him or herself on the grounds of apprehended bias. The judge is also unable to reveal information to them because he cannot breach the statutory obligation of secrecy.

Problems (Relationship between Judiciary and Legislative Powers) Laws which interfere in the judicial process have also been enacted from time to time by State Parliaments and while upheld as valid laws they have provoked considerable criticism from the court. In the BLF V NSW Minister for Industrial Relations (1986) 7 NSWLR 374, the NSW Court of Appeal upheld NSW legislation which was enacted just before an appeal was to be heard, which effectively directed the court to dismiss the appeal and make no order as to costs. Street CJ clearly disapproved of this legislation: it is contrary both to modern constitutional convention, and to the public interest in the due administration of justice, for Parliament to exercise that power by legislation interfering with The judicial process in a particular case pending before the Court. In Federal Level
The High Court has given legal effect to the doctrine of separation of powers in relation to the judicial power of the Commonwealth Erosion of the Boilermaker Principle by Personal Designata Rule

S72 of the Constitution ( Judges remunerated by the Parliament) Judges are appointed by the Federal Parliament (Lack of transparency/ Biasness) Power becoming centripetal (Concentrated in the hands of the Federal Parliament) Is there now really a strict principle of separation of powers?

Human Rights - Literally, those entitlements that every person is said to have a claim to simply by reason of their existence as a human being - Full list of human rights remain contentious - Generally accepted that it include right to life, expression and religion, as well as socioeconomic claims like education and health care. - Basic human rights are seen as universal. Louis Henkin, The Age of Rights (Reading) Human rights are listed in international instruments such as Universal Declaration of Human Rights. - They are deemed essential for individual well being, dignity etc. - They reflect common sense of justice, fairness and decency. - Human Rights (Immunity Claims and Resource Claims) - Immunity Claims; Limitation as to what a government can do to the individual - Resource Claims; What the society is deemed required to do for the individual (include liberties such as freedom to speech) - To call them rights implies that they are claims as of right. - Human rights imply the obligation of a society to satisfy those claims. - The state must develop procedures, must plan and must mobilize resources as necessary to meet those claims. - Commonly held that Human Rights are fundamental. But this does not mean that they are absolute that they may never be abridged for any purpose in any circumstances. - Human rights enjoy prima facie, presumptive inviolability and will often trump other public goods. - However, they may be sacrificed if countervailing societal interests are important enough, in particular circumstances, for limited times and purposes, to the extent strictly necessary. - The idea of rights accepts that some limitations on rights are permissible but the limitations are themselves strictly limited. Process of Human Rights in the International sphere began after World War II with the creation of the United Nations in 1945. Adoption of the Universal Declaration of Human Rights (1948) In 2007, a complementary list of rights specific to the Indigenous peoples of the world was set out in the United Nations Declaration of Rights of Indigenous Peoples. The Universal Declaration of Human Rights is not a binding statement. However, many international lawyers argue that the declaration has come to be part of the customary International law and therefore, is binding all nations. In any event, the declaration like the Magna Carta, has an influence that far exceeds its legal effect. The Universal Declaration has been bolstered by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights

They are now called the International Bill of Human Rights. Both Covenants were ratified by Australia in 1980 and 1976

International Covenant on Civil and Political Rights 2 (2) Each State party is to take necessary steps to adopt such legislative or other measures as may be necessary to give effect rights listed in the Covenant.

International Covenant on Economic, Social and Cultural Rights 2(1) Each State party is to the maximum of its available resources, with a view of achieving progressively achieve the rights listed. This includes the adoption of legislative measures. The weaker obligation imposed by the latter Covenant is in part a reflection of the need for compromise in securing international acceptance for such an instrument. It also reflects the functional recognition that resource claims may not be amenable to the same degree of legal enforcement as is usually demanded for civil and political rights. They are both binding Both covenants are not enforceable under Australian Law except to the extent that have been incorporated by legislation. The rights in these covenants and other instruments have been incorporated in ad hoc fashion. E.g. Racial Discrimination Act 175 and Sex Discrimination Act 1984 There is no national law or Bill of Rights Justice Brennan in Mabo: Common Law needs to keep up with the developments of International Law.

In 1991, Australia acceded to the First Optional Protocol to the International Covenant on Civil and Political Rights. - Under Art 2, individuals who claim that they rights arising from the ICCPR have been violated and have exhausted all available domestic remedies may submit a written complaint to the Human Rights Committee of the United Nations. - What follows from the complaint is cautiously structured. After considering the response from the national government concerned, - Under Art 5(4), the committee can forward its views to the State party concerned and to the Individual. - It is then left to the National Government to indicate whether or how it will respond to those views. - The pressure for a positive response depends on moral and political persuasion rather than legal sanctions. - It may induce a Federal Parliament to legislate to bring domestic law in line with the Covenant. E.g. Human Rights (Sexual Conduct) Act 1994 Croome v Tasmania (1997) The committee found that the Tasmanian Criminal Code Act 1924 decriminalized consensual sex between two men and this contravened Art 17 of the ICCPR. However, despite a number of adverse findings, Australian Law has not since been changed to be brought into conformity with the Covenant. Henkins distinction between immunities and resource claims corresponds to the distinction drawn by the International Covenants between civil and political rights and economic, social and cultural rights.

Wesley Hohfield attempted to reserve the word right for situations where an individual claim is correlated with an enforceable legal duty to respect that claim. According to him, a privilege or liberty is something less than a right and cannot be legally enforceable. Immunities were also different from rights and liberties. They had an absence of legal power to affect the individuals legal position in the relevant respect.

Australia (Freedom and Liberties) - Lange v Australian Broadcasting Corporation (1997) - A unanimous High Court stated that ss 7 and s 24 of the Constitution which gave rise to an implied freedom of political communication do not confer personal rights on individuals. - Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power. Express provisions in the Constitution that might protect individuals are usually expressed as limitations on power rather than as positive rights. For instance, s116 dealing with freedom of religion begins with The commonwealth shall not make any law Only apparent exception to this usage is S117 which focuses on the position of the individual and forbids the imposition of any disability or discrimination based on out-of-state residency. These distinctions affect the remedies available when a constitutional freedom is infringed. For instance, in the case of proceedings under s 117, a person will be entitled to a declaration that the law is invalid but not to any further relief such as damages caused by the breach. Conversely when s117 is invoked, the individual immunity view will mean that the plaintiffs are entitled to a declaration that the impugned provision would not apply to them but not to a declaration that the provision is invalid.

A Bill or Charter Rights? - Australia is the only democratic country without a national law that expressly state human rights. US MODEL Bill of Rights added as the First 10 amendments in 1971. Combination of the guarantees with the practice of judicial review has meant that legislation enacted by the Federal Congress but judicially perceived a s infringing a Bill of Rights provision is automatically struck down by the courts. Since the adoption of the 14th Amendment, the same has been state of State legislation. There has been concerns over the merits and dangers of judicial activism. It is argued that there is democratic deficit of allowing an elected legislature to be overridden by an unelected judiciary. A particular concern has been the absence of any definition of the word liberty in the due process clause of the 14 Amendment. Its content has been party supplied by reference to the fist 10 Amendments and partly by reference to societal values. Where such fundamental liberty interests are involved, the requirement of due process has been construed as requiring not only procedural fairness in judicial or executive action but appropriate weighting in legislative action.

A statute that impinges on such an interest without a sufficient countervailing reason or without according due weight to the protected liberty interest, may be struck down as arbitrary. 14 amendment has been formulated as an express guarantee. But it is also a fertile source of implied guarantees. Lawrence v Texas (2003); holding that a criminal conviction for consensual sexual activity between male homosexuals in their home violated their 14th Amendment Liberty. Planned Parenthood of Southeastern Pennsylvania v Casey (1992); that a pregnant woman has the liberty interest in choosing physician assisted abortion Washington v Glucksberg (1997); declining to hold that a terminally ill person has a liberty interest in choosing physician assisted suicide. Since the 1930s, the United States Supreme Court has been vigorous in protecting the civil and political rights than economic rights. But before that, the Court was more interested in protecting property rights as opposed to individual rights. E.g. Dred Scott v Sandford (1857); denied the personal rights of the slaves and affirmed the property rights of their masters. The Shift since 1930s, is manifest not only in the importance attached to provisions like the 1st Amendment but also in the identification the liberty interests against which legislation is tested for substantive due process In context of laissez faire ideology, references to liberty in the 5th and 14th Amendment were understood to be exclusively protecting freedom of contract. Lochner v New York (1905); invalidated a New York law prohibiting employment in bakeries for more than 60 hours a well. It was held that it was right of the individual to labor for such time as he may choose. It was argued that legislative attempts to regulate working conditions denied substantive due process because they were mere meddlesome interferences with the rights of the individuals. Whatever the merits or demerits of such decisions, they provoked a constitutional crisis. When Roosevelt had the opportunity to reshape the Court, he appointed 6 new justices. The effect was fundamental. In the economic sphere, the court shifted its ground to repudiate activism asserting in Nebbia v New York; a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare and that so long as laws have a reasonable relation to a proper legislative purpose, the Court will not interfere. More recently, Supreme Court activism has taken different directions. From 1967 to 2008, majority of new appointments to the Court were made by the Republican Presidents & changing composition of the Court in those years is generally thought to have put an end to the liberal initiatives of the mid century decades.

Indian Model - The tension between judicial review and parliamentary sovereignty was particularly acute in the Indian case, since the Constitution is fully amenable by the Indian Parliamentsometimes by a special majority, but mostly by ordinary legislation .

Kesavananda v State of Kerala; the Supreme Court of India held that the Parliament could amend the whole of the Constitution including the fundamental rights but not if it affects the essential features of basic structure of the Constitution. The court relied on the High Court of Australias language in Victoria v Commonwealth (Payroll Case), where it was stated that whether a particular right or freedom is an essential feature of the constitution is a question to be determined by the Supreme Court on a case by case basis.

South African Model - It goes beyond the Indian Model by including in its Bill of Rights social aspirations and values of the kind that the Indian model had relegated to directive principles.

Other countries have given legal protection to human rights while avoiding or modifying the consequences of direct judicial enforcement on the United States model.

Canada Model - Canadian Bill of Rights 1960 - A statutory Bill of Rights - Its operation depended on S2; every law of Canada, shall, unless it is expressly declared by an Act of Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights , be so construed and applied as not to abrogate, abridge or infringe any of the rights or freedom herein declared and recognized and declared. Supreme Court of Canada held that s2 was effective not only against earlier statutes but also against later statutes. S2 was also a mandatory directive to judges faced with 2 inconsistent but valid statutes that the Canadian Bill of Rights, rather that the offending statue was to be operative. Canadian Bill of Rights was replaced in 1982 by the Canadian Charter of Rights and Freedoms S33 of the Charter develops the earlier statutory device so called over ride clause. This allows a parliament to expressly declare that a particular act would operate notwithstanding a provision included in s2 or s7-15 of the Charter. This means that a Canadian parliament can override rights such as the right not to be arbitrarily detained or imprisoned in s8, or even the right to equality to law in s15. However rights such as those to vote in the federal elections in s3 are beyond reach. Courts, have been reluctant to make use of the override clause.

Commonwealth Model It aims to protect human rights in a manner more consistent with the emphasis of the West minister system on parliamentary sovereignty, and to bring about a dialogue on human rights protection between and within different arms of government. - It also has the notwithstanding clause like the Canadian model, which enables legislatures to respond to and even override judicial decisions. - Such a model is seen as less of a threat to parliamentary sovereignty since the final say on any conflict of rights is left not to the Judiciary but to the Parliament.

Human Rights Act 1998 (UK MODEL) - S4 (Declaration of incompatibility) - It makes clear that a declaration of incompatibility by a court does not affect the validity of the law even thought it has been found to be inconsistent with a protected right. - The conflict will continue unless there is response from a different arm of government. - The legislature may respond by amending the offending provision or in an urgent case the amendment may be made by an executive order under s 10(2) which provides that after a declaration of incompatibility has been made, if a minister of the crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendment to the legislation to remove the incompatibility. George Williams, A charter of Rights for Australia 1944 Referendum - 1944, it was proposed that the constitution be amended to grant the Commonwealth 14 new powers over postwar reconstruction. The proposal sought to insert guarantees of free speech and expression and extend the states guarantee of religious freedom contained in s116 of the constitution. - Proposal was defeated at the 1944 referendum. Human Rights Bill 1973 In 1973, the AG in the Whitlam Labor government introduced the Human Rights Bill into the Federal Parliament. The Bill would have implemented both the international covenants together. Under s109 of the Constitution, the rights listed in Murphys legislation would have overridden inconsistent state legislation. It also provided that Commonwealth legislation would be ineffective if it breached any of the rights listed in the bill, unless the statute included an express exemption from its operation. The listed rights could be enforced not only against governments but also the private sector. This Bill lapsed in 1974. Australian Human Rights Bill 1985 AG of the Hawke Government prepared a charter of rights similar to that of 1973 The model was weaker than the one in 1973. It only applied to governmental action. It was not introduced into the parliament. Bowen who replaces Evans as the AG in the 1984 federal election, re drafted and watered down the bill (Australian Human Rights Bill). It was passed by the House of Representatives but was withdrawn in 1986. The constitutional commission and the 1988 Referendum Hawke government established the Constitutional commission to recommend the revision of the Australian constitution. The commission responded in an interim report that the scope of the express rights in the constitution should be expanded. Commissions final report was ambitious. Recommended a new chapter (VIA- rights and freedoms) to be inserted into the constitution. It proposed that a person whose rights were breached should be able to gain appropriate remedy in the courts and rejected the idea of allowing the Commonwealth or the states to pass legislation notwithstanding a guarantee of rights in the constitution. The proposals were defeated nationally and in every state.

The failure of the 1988 referendum can be attributed to the rushed nature of the referendum , the effective spoiling of the campaign mounted by the opponents and a lack of community understanding.

Should New South Wales have a Human Rights Law? - Standing Committee on Law and Justice It will result in a fundamental change between representative democracy, through an elected parliament and the judicial system. Independence of the Judiciary and the supremacy of the Parliament are the foundations of the current system. They will alter under a Bill of Rights. A bill of rights would increase the responsibility of the Judiciary to protect human rights, giving it a role that should primarily be the responsibility of Parliament. It is ultimately against the publics interest for Parliament to hand over such decisions to an unelected judiciary who are not directly accountable to the community for the consequences of their decisions. It will lead to the increased politicization of the Judiciary. The judiciary is already subjected to unprecedented and frequently unwarranted public criticism. This will increase if a Bill of Rights was implemented because it will increase the scope of judicial decision making into an area of broadly defined rights. Executive governments will increasingly likely to make appointments based upon judges political views rather than their legal skills. This tendency would undermine the independence and quality of the judiciary.

ACT Charter of Rights (Report of the ACT Bill of Rights Consultative Committee, towards an ACT Human Rights Act) The legislation should be designed to encourage a dialogue among the branches of the government and the community about the protection of human rights. - The legislature should still be assigned the last day in relation to human rights issues. - The Judiciary should not be able to invalidate legislation. Rather, it should be able to give its opinion that a law is incompatible with the Human Rights Act. Both the ACT and Victorian Statutes are based on the UK Human Rights Act and protect rights derived from the International Covenant on Civil and Political Rights. S37 of the ACT Act; when a bill is introduced into the ACT legislative assembly, the AG must prepare a compatibility statement about whether it is consistent with the protected rights. S38; a parliamentary committee must then report on any human rights issues raised by the law. S28(1); Human rights may be subject only to reasonable limits set by the territory laws that can be demonstrably justified in a free and democratic society. (2); in deciding whether a limit is reasonable, all relevant factors must be considered. This includes the nature of the right of affected and any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve. The ACT act makes no provision for inconsistent territory laws to be struck down as invalid

S30; so far it is possible to do so consistently with its purpose, a territory law must be interpreted in a way that compatible with human rights. S31; International law and judgments of foreign and international courts and tribunals, relevant to human right may be considered in interpreting the human right. In cases where an interpretive solution is not available, the ACT Supreme Court can make a declaration of incompatibility(Similar to S4 of the UK Act) S33; The AG then has 6 months to prepare a written response to the declaration of incompatibility and present it to the legislative assembly.

Recent Developments - In 2008, the Rudd government established a National Human Rights Consultation. - Chaired by Father Frank Brennan - Brennan Committee delivered a report - It stated that 87.4 per cent of those surveyed favored the option of enacting a charter of rights or a Human Rights Act - Committee made 31 recommendations - It recommended that education should be the highest priority for improving and promoting human rights in Australia. - Recommended that Australia adopt a federal human rights act based on dialogue model in force in the ACT and Victoria. - Stated that if economic and social rights are listed in the Federal Human Rights act, those rights are not jusiticiable and that complains be heard by the Australian Human Rights Commission. - In 2009, the government response was NO; said a Bill of rights would be indecisive. - Joint Parliamentary Committee, ongoing process/review of legislation - Members of both Houses review Anti Discrimination Laws - They said they would think of a bill of rights in 2014. Problems surrounding a Bill of Rights in Australia - Should such a new law be limited to protecting the community against the legislative and executive interferences by government with individual rights? - Or should it reach out into the community to protect individuals against abuses by other individuals? - Or should there be a middle course with a primary focus on infringements of laws and government actions, but with the courts having the ability to apply the provisions to private sector bodies when they undertake public function (UK, ACT and Victoria) Should human rights protection be constitutionally entrenched so that any limitations it turns out to impose on legislative or executive action can only be overcome by constitutional amendment? Or should it be confined to an ordinary Act of amendment? Or should there be a middle course, like the Canadian compromise of constitutionally entrenched provisions that are nevertheless potentially subject to legislative override? Should a bill of rights be the basis for judicial remedies or merely be used for educative or inspirational purposes? Should administrative review and damages be available in respect of breach or rights?

Should the courts be able to issue a declaration of invalidity like the US model or of inoperability as in the early Canadian model or merely of incompatibility like the UK, ACT and Victorian models? What should be the role of the other arms of the government be? Should a new law be accompanied by an executive statement as to whether it complies with the protected right? ( Canada, New Zealand, Australian Statutes) Should contentious bills be reviewed by a special parliamentary committee like the Joint Committee on Human Rights of the UK Parliament? Should guarantees be limited to those of the kind stated in ICCPR or also extend to the Covenant of Economic, social and cultural rights? If protection is limited, should it prioritize a selective range of rights on the basis of an outmoded ideology of classical liberalism? Or does it merely reflect the functional recognition of those spelled out in the covenants themselves? (ie. Rights relating to Covenant of Economic, social and cultural rights should be implemented by legislative measures tailored to the maximum of. Available resources) Or should there be middle course for complaints to the Australian Human Rights Commission