Laws6105 Final Exam draft PDF

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Laws6105 Final Exam1) Is the result in Dignan ’s Case (1931) contrary to the separation ofpower?The leading case of Dignan stated that parliaments could delegate a portion of their power to the Executives (the Governor-General) to amend an act. However, whether delegation is incompatible with the do...

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Laws6105 Final Exam

1) Is the result in Dignan’s Case (1931) contrary to the separation of power?

The leading case of Dignan stated that parliaments could delegate a portion of their power to the Executives (the Governor-General) to amend an act. However, whether delegation is incompatible with the doctrine of separation of power, is still worth considering. From my perspective, if the limitations stated by Evatt J and Dixon J are strictly followed, delegation would not contrary to separation of power. Source of Power

The case of Dignan deals with commonwealth level government that the commonwealth government intended to give certain legislative power to the executives.

Responsible government

Responsible government is a core doctrine entailed in Australian Constitution. From old ‘Westminster’ convention, the center feature of this notion is that executive governments are ‘chosen by’, ‘accountable to’ and ‘owes its continued existence/power’ to the legislature. It creates the relationship that the executives are accountable to the legislatures.

In general, responsible government in Australia entails the fact that there is overlap of members between the executives and legislatures. Thus, the notion of separation of power normally draws on the line between the combination of executive and legislative power, versus judicial power (Justin Gleeson SC, 2018).

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If ‘strict’ separation of power is applied in the Constitution, both delegation and responsible government may be incompatible with separation of power. However, Evatt J stated in Dignan that if ‘the full theory of ‘separation of power’ is applied under constitution, the result can be absurd.

Therefore, from responsible government perspective, it is valid for the executives to exercise certain legislative power under the control of legislatives, because the executives are accounted for the legislatures.

Reasoning from the High Court

It is also stated by the majorities of Dignan that whenever legislative powers are delegated to the executives, there must be ‘a law with respect to that subject’. Also, delegation of legislative power ‘does not operate to restrain’ the legislative power of parliaments.

In Dignan, Evatt J has imported the delegation doctrine from English constitutional history. Since the Executives are accountable to the legislatures, they were deemed as the ‘subordinate’ of parliament. So even the Executives hold certain legislative power, they must still express the will of the parliament.

Therefore, the Executives take legislative power under the control of the legislatives. They are not intending to establish laws based on their willingness to cause the consequence of mixed power. It is all about efficiency of the legal system (Evatt J, Dignan).

Limitations of delegation Delegation will not be valid if it fails to comply with certain limitations imposed by common law. Otherwise, it can be inconsistent with the Constitution. 2

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Dixon J in Dignan has warned that if the legislative power granted to the executives has ‘excessive width or vagueness/ uncertainty’, it can be incompatible with the doctrine of separation of legislative power. If the delegated power is not specified enough, the executives would have spaces to add their subjective view in the scope and content of lawmaking.

Secondly, Evatt J has warned that ‘the parliament of the Commonwealth is not competent to ‘abdicate’ its power of legislation’. If the legislatives lose the control on delegated legislative power, it may violate separation of legislative power. Consequently, the executives’ legislative power can be powerful and overwhelming.

Conclusion The result in Dignan’s case that the delegation of legislative power is constitutional valid, it not contrary to the doctrine of separation of power. In here, the executives act like a subordinate of the legislatures to make laws under control. The judgement complies with responsible government and the constitution. With precise limitation, delegating legislative power to the executives is not contrary to separation of power under the scenario of Dignan.

5) What makes a system of government a system of responsible government? Go on to provide at least one example in which responsible government has been relevant or influential in, the decision 3

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of a court.

The System of Responsible Government

The doctrine of responsible government is deeply entrenched in the Australian Constitution. The leading case Egan v Willis has given it a definition that, firstly, the system of responsible government, from traditionally view, is ‘the means by which parliament brings the executive to account’. It is also liable to ‘secure accountability of government activity’, which is ‘the very essence of responsible government’.

Responsible government doctrine is vested in the executives, which is included in the Constitution. It can be linked to s61 that where the Queen/ Governor-General exercise their executive power ‘on the basis of ministerial advice’. It entails the meaning that the act of the executives should be based on the advice of the legislatives.

The notion that the executives are accountable to the legislatures is derived from s 64 and s 83 of the Constitution. In 75(5), the executive accountability, is to ensure that ‘any officer (executives) of the Commonwealth acted and acted only within the scope of authority conferred on the Constitution or legislation.’

Therefore, accountability is the essence of the responsible government system, which makes the executives under the control of the legislatures. There are cases, which are substantially influenced by the doctrine of responsible government.

Williams No.1

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In Williams No.1, there is a ‘common assumption’ related to the spending power of the Executive, that ‘the spending power of the executive branch of government is co-extensive with those activities which could be the subject of legislation supported by any head of power, in 51 of the constitution’. (Gummow and Bell JJ, Williams No. 1) The court held that this assumption cannot stand because it is inconsistent with certain fundamental doctrines of the Constitution, including the doctrine of responsible government. Responsible Government In s 53 of the Constitution, it clearly states that ‘laws appropriating revenue or money, or imposing taxation must originate in the House of Representatives’. Crennan J in Williams No.1 also stated that in order for the executives to be accountable to the legislatures, there is ‘need for the Executive to enjoy the confidence of the House of Parliament dealing with finance…and therefore, responsible to, the people (electors).’ Thus, when passing and exercising an appropriation act which is not backed by legislation, Parliament does not play a role in this process, so the Executives are not accountable to legislatures, therefore not responsible to the electors. The ‘common assumption’ have violated the doctrine of responsible government and it is inconsistent with the Constitution. This is an example of judgement, taking the doctrine of responsible government into account. Gummow J and Bell JJ has reasoned that when ‘an executive spending scheme has no legislative engagement for its creation or operation beyond the appropriation process’, the assumption should be discarded because it is inconsistent with the doctrine of responsible government, thus not constitutionally valid.

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6) Did the High Court get it wrong in Chu Kheng Lim (1992)?

In the case of Chu Kheng Lim (‘Lim’) the court approved the involuntary sentencing of the Cambodian refugee because it is for ‘non-punitive’ and ‘protective’ purpose. The judgement can give rise to the conflict between certain public law doctrines. In general, I hold the opinion that the High Court’s judgement in Lim is not wrong because it is constitutionally valid. Source of power The exclusive judicial power of the federal judicial system in Australia is authorized by s 51 of the Constitution, which includes the right to the ‘adjudgment and punishment of criminal guilt under a law of the Commonwealth.’ (Brennan, Deane and Dawson JJ, Chu Kheng Lim, 1992). Separation of power Separation of judicial power from Commonwealth level is applied strictly based on Chapter III of the Constitution and Boilmakers principle. It prohibits federal judicial power, being vested in anywhere other than a court identified

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in s71 (Boilmakers). It also prohibits federal court to undertake any activities outside judicial power (except for incidental circumstances) ( Boilmakers). Thus, if it is determined that the involuntary detention in Lim is source from judicial power, it may conflict with separation of power doctrine. Is such detention an inherently judicial power? It is clear that s 51 of the Constitution does not allow judicial power to be conferred to Executive Organs. Base on the majorities of Lim, the federal judicial system holds exclusive power on punishing criminal act. However, the involuntary detention is valid in this case because the situation of sentencing aliens is subject to incidental circumstances, which is related to national sovereignty, so the executives have power to deal with it under the Constitution s51 (39). Also, the executives are sentencing them for neither punitive nor part of the judicial power ( Lim). The executives were just trying to keep them under supervision. Hence, the majorities hold that the involuntary sentencing was authorized by pure executive power, backed by the relevant act and the Constitution. Judicial power does not play a role in this case. Admittedly, involuntary detention with punitive purpose is the exclusive right of the judicial system (Kruger). However, there are exceptions that non-punitive involuntary detention can be authorized by institutions other than courts. Therefore, the majorities held that there is no inherently judicial power in this case. Dissenting judgement There are criticisms saying that, by approving cases like Lim, the line between executive power and judicial power can be blurred. I do agree with this opinion due to the proved impossibility of strict separation of power. McHugh J in Lim has stated that it has been proved that it is impossible to ‘prescriptively separating the three powers.’ However, by attaching strict limitations, it is not likely to affect the general function of the federal government. Thus, the executive of Lim, reasoned by the majorities that they have validly exercised their executive power, has in fact made decisions, to sentence people bypassed federal judicial system. It is hard to say that the executives have done nothing to override federal judicial power. Judicial power in Australia can be defined as ‘quelling controversies about legal rights and obligations through ascertainment of facts…’ (Rizeq v WA, 2017). Whether 7

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the executives have violated Chapter III of the constitution, is still determined by the interpretation of judge case by case. Nevertheless, according to the majorities of Lim, to ensure the effectiveness and liberty of each power, there must be clear lines on when, which power should be used. For example, in Lim and AI-kateb, executive power can be only used for involuntary detention when it is for protective purpose instead of punitive purpose. Conclusion Overall, the operation of a legal system is a matter of balancing and degree (Fuller, Morality of Law). Although the majorities have concluded that there is no inherited judicial process engaged in Lim, the executives can exercise some judicial power when they are properly reasoned by the judge with clear limitations and scope of work to ensure the certainty of Australian legal system.

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