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Federalism – division of power between arms of government, states and Cth

State constitutions – subject to SS 106 & 107

Separation of powers – tripartite of government – 3 independent arms of government law made by legislature – administered by executive – interpreted by judiciary

SoP is inferred from text and structure of chapters (Chap 1 = parliament ; Chap 2 = executive ; chap 3 = judiciary) Then S 64 provides that ministers (exec) accountable to Parliament (leg)

Responsible government – implicitly recognized in S 64 

All ministers to be drawn from parliament and responsible to it (S 64)

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Business of government (executive power) lies with GG who must act on advice of Govt of day – which controls lower house (S 61)

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Keys to treasury held by P (S 83), but executive have power

Parliamentary supremacy (cf sovereignty) Cth law making power – SS 51 & 52 Shared – S 109 Unexpressed residuary – lies with states HCA has judicial review power – strike down any State or Cth law that is unconstituional

P is supreme to other arms of gov insofar as it is acting constitutionally – can abrogate effect of judicial decision

Rule of law Exists impliedly in S 5 – law binds all of state and Cth

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Quiz Topic 1 - Intro + history Topic 2 – Executive Topic 3 – Parliament Topic 4 – Legislative procedures Topic 5 – Judiciary

1) notes – facts / law + conclusion for future 2) Questions prac 3) extra readings Goal - 33/40 marks

Topic 1 – Introduction to Australian Constitutionalism

1066 William (the Duke of Normandy) conquers England. Declares the old system of Anglo –Saxon local customary law courts will continue to exist. The King begins to ‘hold court’ throughout England which leads in time to the creation of the common law courts —Court of Common Pleas, Court of Chancery and the King’s Bench.

1199 - King John assumes the English throne.

1215 Signing of the Magna Carta by King John. It is significant for limiting the arbitrary exercise of royal power and has come to represent the birth of what we now call the rule of law. It provided that no person could be arbitrarily arrested or imprisoned by the Monarch. Trial by ordeal is outlawed.

1265 First assembly called a ‘Parliament’ summoned by Simon de Montfort.

1295 Model Parliament is summoned by King Edward. House of Commons and House of Lords.

1500 - Birth of Equity: Chancellor (usually a religious man) begins to hear petitions claiming of injustice suffered at the hands of the common law courts.

1530 King Henry VIII begins battle with the papacy. As a consequence the importance and activity of the Parliament grows rapidly. During his reign more than 700 statutes are passed, doubling the size of the existing statute book.

1600 (early)—Clash between Lord Ellesmere (Chancellor) and Sir Edward Coke (Chief Justice of the King’s Bench) with the result that in the event of a conflict between the common law and equity, equity will prevail.

1607 Case of Prohibitions: judges determine that the King should not be personally involved in common law court cases

1610 King James I outlines to Parliament his theory; the ‘Divine Right of Kings’.

1611 Case of Proclamations: judges hold that the King could not create new crimes by proclamation. (Judicature limiting power of executive)

1628 Parliament produces the Petition of Right: it cited the Magna Carta and circumscribed royal power by denying the Crown power to levy charges upon, imprison or punish anyone without due process of law.

1642 English Civil War—battle between the Crown and Parliament.

1646 Parliamentary forces led by Oliver Cromwell are victorious. Parliament is recognized as the supreme law -maker in England.

1649- Trial and beheading of King Charles I.

1660 Cromwell dies. Parliament asks Charles II to assume the throne.

1688 Glorious Revolution. Parliament deposes James II and passes the

Bill of Rights. William and Mary of Orange assume the throne on terms set out in the Bill of Rights These include that the Crown cannot suspend the law, only Parliament can impose taxes and parliamentary debates cannot be called into question by the Crown.

1701 Act of Settlement - establishes the independence of the judiciary; judges to serve during good behaviour and can only be removed by a request from both houses of parliament.

1776 American Declaration of Independence.

1787 US Constitution adopted by the convention of American States.

1788 First Fleet arrive in Australia. The land was deemed to be vacant with – terra nullius – with scant recognition of Aboriginal Australians. Terra Nullius was rejected by the High Court in the landmark Mabo's case. Dean and Gaudron JJ recognized the oppression devastation caused by settlement.

The High Court also recognized that aspects of indigenous law – such as native title had survived the importation of English law.

Despite the legally fictional doctrine of terra nullius, the settlement of Australia was considered consistent with international law at the time and remains valid under Australian law.

1828 Australian Courts Act 1828 —Official date of reception of all English laws and

statutes in NSW & Van Diemens Land (including Vic & Qld); WA–1829, SA 1836, ACT & NT 1911. Increased the size of the Legislative Council and constrained the power of the Governor.

1842 Australian Constitutions Act (UK) passed —first step towards representative government in Australia. Increased the size of the Legislative Council and two -thirds to be elected. Colonies given power to draft their own Constitutions.

1855 Victorian Constitution is passed. NSW, Vic and Tas adopt a system of responsible government with a bicameral parliament and a popularly elected lower chambers.

1865 Colonial Laws Validity Act —passed as a consequence of Benjamin Boothby invalidating as many colonial laws as possible on the grounds that they offended fundamental principles of English Law.

1890s —Move towards federation spurred on by defence and trade concerns among the colonies. Constitutional Conventions held in Adelaide (1891), Sydney and Melbourne (1897 & 1898).

1901 Australian Constitution is proclaimed.

1926 Declaration of Balfour.

1931 Statute of Westminster (UK).

1942 Statute of Westminster Adoption Act (Cth).

1986 Australia Acts. 1999 Referendum on the Australian Republic fails.

Conclusions from history We can see a trend that shows, over the course of English and Australian history, the gradual decrease of executive power alongside an increase in legislative power. Arguably this trend has seen a transfer of power from kings, governors and ministers to the people via their popularly elected representatives in the legislature

Similarly, we see Australia moving towards greater legal independence.

Powers of colonial legislatures

Generally colonial legislatures were conferred with plenary power to make laws for the colonies under their power for 'peace, order and good government' under the Colonial Laws Validity Act 1865 (IMP) R v Burah confirmed that, subject to a few limitations, colonial legislatures had extensive law making powers. In that case a law of the colonial parliament removing jurisdiction from the Calcutta high court was held to be valid

Fetters to colonial legislative power

1. Repugnancy S 2 of the Colonial Laws Validity Act provided that if a colonial law was repugnant to imperial legislation, that it would be void. 2. Territorial limit There was a presumption that colonies did not have extra-territorial legislative power. States now have extra-territorial legislative power where there is a nexis between the state and the subject of the legislation (Union Steamship Company Case) States cannot legislate if it would legislate with the legislative authority of another state: Mobil Oil Aus per Gleeson CJ and Kirby and Callinan JJ 3. Disallowance The Monarch reserved the right to disallow a colonial law – even after the Governer had assented. This right is preserved in s 59 which permits the queen to disallow any commonwealth law within 1 year of GGs assent. By convention this never occurs as queen always acts on advice of ministers.

Statute of Westminster 1931 (UK) 

Applied to British empire's self-governing colonies

Ratified by the Statute of Westminster Adoption Act 1942 (Cth), and backdated adoption to 1939. It did not apply to Australian states because they were not considered dominions or self-governing nations. This means that no commonwealth statute was subject to the Colonial Laws Validity Act (s 2(1)) The act also provides that no longer can a law be void due to the repugnancy rule (s 2(2)). S 3 provides extra-territorial power to Cth P + removes ability of UK P to extend legislation to the Commonwealth (with the exception of cases where Cth requests and consents to enactment of extension act.

Under s 9 of the UK version, the British parliament still had power to create

Australia Acts 1. S 1 of the Australia Act 1986 (UK) and (Cth) terminated the power of the UK parliament to legislate for any of the states. 2. S 2(1) conferred power to make extra-territorial legislation 3. S2(2) confirmed plenary power that already existed in their constitutions 4. No longer could a state law be void due to being repugnant with UK statutes – s 3(1) 5. Appeals to the Privy Council from Australian states (S 11) 6. Aus Act 1986 can only be amended with the request and consent of all of the states or by way of s 128 of Constitution 7. Aus Act valid under 51(xxxviii) - 'exercise within Cth at the request of the states + UK parliament' 8. The UK version has been held, by HCA to be unnecessary and irrelevant (AG (wa) v Maquet) 9. The UK is now considered a foreign power (Sue v Hill)

Topic 2 – The Executive The role of the executive is to apply, enforce and administer the law and policies S 61 vest the executive with the power for the 'execution and maintenance' of the Constitution. Neither s 61 nor chapter ii disclose the full extent of this power. The executive also has ancient common law powers - 'prerogative powers' In practice the Executive is governed as much by convention as by the Constitution or Parliament. There is also little scope for judicial review by the High Court. Modern crown functions cf traditional regal activities Dawson, Toohey and Gaudron JJ in Re Residential Tenancies Tribunal of New South Wales observed that: 1) In reality the day to day activities of the Crown are undertaken through the activities of public agencies and public services 2) Activities of Crown nowadays extend to entrepanural and commercial activates

Executive in the Constitution Chapter II deals with the executive S 61 – Vests federal executive power in the Queen and her representative – the governor-general SS 62 & 63 - provide for Federal Executive Council – comprising ministers appointed by GG S 64 – references to administrative departments under the watch of 'Queen's Ministers'. S 67 – Civil servants S 68 – Armed forces

However, great deal of executive is omitted from the Constitution - notably the Prime minister, Cabinet and statutory authoties + those employed directly and indirectly by the executive Eg police and postal workers

Governor-General The Governor-General is vested with a central role by the Constitution, however the political reality the role is largely ceremonial. Rarely does the GG act with being advised by the PM or Cabinet. It is unclear what would happen if a Governor-General choose to deviate from this convention as is suggested by the fact that the legality of the dismissal of prime minister Whitlam is still debated decades later.

Responsible Gov and executive The doctrine of responsible government exists implicitly in chapter II. This is because the executive – through the Queen's ministers – are held accountable to parliament (see Egan v Willis per Gaudron, Gummow and Hayne JJ)

Principles of responsible gov 1) Soverign only acts on constitutional advice (Unless GG acting on reserve powers) 2) Ministers who command the 'confidence' of parliament's lower house 3) ministers are individually and collectively responsible to parliament

Executive accountability limited in Australia Political convention dictates that all members of parliament below to a political party. This means that members of the government vote on government lines and thus support the actions of the Cabinet who are in the same party. Commentators such as Weller, therefore expressed concern that this significantly limits executive accountability resulting in the executive domination of the legislature, rather than the other way around. Cabinet Cabinet is a political entity, not a legal entity. Its decisions are therefore not justiciable although implementation of Cabinet decisions may be justiciable if implemented by another arm of government such as a statutory authority. Not mentioned in the Constitution -

Division of executive power In Australia executive power is divided between functions exercised by federal and state governments. The division of legislative power can be used as a guide to determine which function is exercisable by the varying levels of executive government.

Presumptive immunity The crown is presumed to be immune from suit at each level. Although the Judiciary Act 1903 (Cth) provides for litigation between states and the commonwealth in the High Court and provides a right of action where a state acts in an area of federal jurisdiction. This immunity seems to be in tension with the rule of law which provides that all are bound by the law.

Indeed it would be interesting for the High Court to consider whether this immunity is consistent with the rule of law.

Crown not bound by statutes There is a presumption that the Crown is not bound by statutes. This is rebutted by necessary implication or the words ' this Act shall bind the Crown in right of the Commonwealth and in right of all the States' (Bropho v WA (1990))

Reserve powers By way of convention, the Governor-General only acts on the advice of the Prime Minister. Where the Governor-General does not act of the advice of the Prime Minister, they act independently and without advice they are using the reserve powers 1. Appoint PM as leader of lower house 2. If the prerequisites under s 57 are not met, the Governor-General may refuse to decline to dissolve Parliament 3. The power to dismiss a Prime Minister – only to be done in extreme circumstances (Illegal activity or departure from standards of honesty or integrity) per Gleeson CJ in Griener v Independent Commissioner agianst Corruption

The reserve power was exercised in 1975 with the dismissal of Prime Minister Whitlam who could not pass supply bills through a hostile Senate. However, this case is interesting because Whitlam had the confidence of the lower house when dismissed. The appropriateness of this dismissal remains unclear.

Execution and maintenance of the Constitution S 61 vests the federal executive with the power to execute the Constitution. Compared to s 51, executive powers seem to be deliberately vague. This means the power to carry out functions that are defined elsewhere such as the power to appoint civil servants (s 67) or the power to collect customs and excise duties (s 86) 'Maintenance' of the Constitution means the power to protect the constitutional system (Australian Communist Party). It also refers to the power to defend against domestic and international threats (Thomas v Mowbray) The power of execution and maintenance power can be exercised without legislative authorisation. For instance the Australian Security Intelligence Services operated without a statutory basis.

Execution and maintenance of the laws of the Cth (includes delegated leg) The executive has the function to 'execute and maintain' the laws of the Commonwealth. This means to administer and implement the laws. The Commonwealth parliament can only delegate legislative power to executive for heads of power covered in s 51. Eg the Australian Federal Police 'execute and maintain' Commonwealth criminal laws.

The Commonwealth Parliament also vests the executive with delegated legislative power to enact, inter alia, regulations, rules and by-laws.

Insofar as Parliament retains the ability to divest the executive of the delegated legislative authority, and does not abdicate its own legislative power, it may confer the executive with expansive discretionary power to the executive. Parliament can retract the legislative functions delegated to the executive as confirmed in s 48 of the Acts Interpretation Act 1901 (Cth)

Deeper: Delegating legislative power, it could be argued, may cause the laws to avoid the democratic processes because laws can be made by the Governor-General and other members of the executive who are not popularly elected or subject to the processes of responsible government. Parliament still

In Dignan's case the ability of the Governor-General to make Regulations that could override any earlier statute had its validity challenged in the High Court. The court unanimously upheld the validity of the Act. (Qualifications delegated legislative power can never exceed the authority of the enabling act, nor can Parliament abdicate its legislative power, nor delegate power it does not have).

Prerogative powers This refers to executive power that comes from common law. These are the residual powers that remain with the Crown – most of which come from the UK They are, in Australia, distributed between the federal partners. Egs 

Prerogatives of foreign affairs – declare war, execute treaties, make peace, request extradition

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Royal prerogatives - coin currency, pardon offenders, confer honours, initiate Royal Commissions

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Prerogative preferences – Crown's priority in debt repayment, immunity from prosecution

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Proprietary prerogatives – ownership rights – metals and minerals, royal fish

(See Evatt J in Commissioner of Taxation v Liquidator of EO Farley)

Because the prerogative powers are from common law, they may be modified by Parliament (Brown v West 1990). However a statute will not abrogate a prerogative power unless it does so by express words or necessary implication (Oats v Attorney General)

(Blackstone approach – 'preference for modern over archaic' - approved by Crennan and Gageler JJ in Plaintiff M68/2015 Cf Dicey who preferred a wider understanding of the scope of prerogative powers) End of residual prerogative power There is authority that a prerogoative power may be abrogated or curtailed by way of legislation or desuetude (disuse) cf Lord Reid in De Keyser's Hotel Statute will not extinguish a prerogative power In the Tampa Case the majority of the Federal Court held that the prerogative power to expel aliens was not extinguished or displaced by the existence of legislation on this area – specially the Migration Act 1958 (Cth) However Black CJ dissented finding that the power to expel illegal entrants was derived from legislation. His Honour found that there was no longer a prerogative power to expel aliens during peacetime

The government legislated to retrospectively authorise the detention of the refugee. This was not challenged in the High Court

Arguably, the Tampa decision is undermined by Plaintiff M68/2015 where the majority held that statutory provision a...