Public law summary notes summary of principles cases legislation and checklists for problem questions PDF

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LAWS1021 – PUBLIC LAW – SUMMARY NOTES Summary of cases/principles Topic 1 • • • • •

‘Peace, welfare and good government’ are not words of limitation – Union Steamship v King UK is a ‘foreign power’ as they no longer retain any residual influence on legislative, executive or judicial processes in Australia – Sue v Hill Political legitimacy still derived as long as people have had reasonable opportunity to become aware of rules; even if not everyone participates – Parker v South Eastern Railway Ultimate sovereignty lies in the body responsible for amending the Constitution – McGinty v WA Constitution is a living document – Roach v Electoral Commissioner

Topic 2 – Constitutional Amendment •

States have power to regulate their own Constitution – McCawley v The King

C’th Manner and Form • •

Parliamentary sovereignty – imperial parliament cannot limit its own sovereignty but it can confer power on a subordinate legislature to do so – Attorney General (NSW) v Trethowan “a legislature has no power to ignore conditions of law-making that are imposed by the instrument which itself regulates its power to make laws” – Bribery Commissioner v Ranasinghe

NSW Manner and Form • • •

‘constitution, powers and procedure’ of legislature – South Eastern Drainage Board (SA) v Savings Bank of South Australia Purported abdication of legislative power – West Lakes Ltd v SA Constitution = nature and composition; not only laws which abolish a House or its representative nature but also those which add to it – Attorney General (WA) v Marquet

Topic 3 – The Legislature and Representative Democracy • • • • •

Implied freedoms protect from power that would undermine the Const. – representative government – Lange v Australian Broadcasting Corporation; ACTV v Commonwealth s 7 and s 24 protect the freedom of people to exercise a free and informed choice as electors - Lange v Australian Broadcasting Corporation; ACTV v Commonwealth Implied rights can be curtailed if appropriate to a legitimate legislative purpose – Langer’s case s 41 – dead letter provision – no express right to vote – R v Pearson; ex parte Sipka ss 8, 9, 24, 29, 30 and 31 – Wide discretion – Const. only prescribes the irreducible minimum requirements for representative government – Mulholland v AEC

‘One vote, one value’ • •

No ‘one vote, one value’ but distribution can’t be so grossly disproportionate as to challenge notion of direct election – Ex rel McKinlay v Commonwealth ‘One vote, one value’ does not apply to States – McGinty v WA

‘Disqualification from voting’ • •

Is there actually a disqualification? – Rowe v Electoral Commissioner Exclusion from voting – reasonably appropriate/adapted (vis a vis representative government) - substantial reason for disqualification – Roach v Electoral Commissioner

Topic 4 – Judiciary • •

Ability to appeal a decision does not transform it into a non-judicial power – Federal Commissioner of Taxation v Munro Federal Parliament has a limited capacity to establish non-judicial tribunals with effective powers of dispute resolution – Brandy v HREOC

Control order •

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assessing whether there is an ‘unacceptable risk’; confirmation procedure in place – therefore, ex parte okay – Thomas v Mowbray cf. International Finance Trust Co v NSW Crime Commission – no means of appeal, therefore invalid cf. decisional independence – South Australia v Totani

Separation of powers •

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Judicial power cannot be conferred upon a non-judicial body – R v Kirby; ex parte Boilermakers’ Soc of Aust; NSW v Commonwealth (Wheat case); Waterside Worker’s Federation v J W Alexander (Alexanders’ case) Non-judicial power cannot be vested in a Ch III court unless strictly incidental to judicial functions – Boilermakers’ o Persona Designata – Drake v Minister for Immigration and Ethnic Affairs; Hilton v Wells ▪ Requires judge’s consent – Grollo v Palmer ▪ Incompatibility doctrine: must not be incompatible with judge’s performance of judicial functions or discharge of judiciary of its responsibilities as an institution – Grollo v Palmer; Wilson v Minister for ATSI Affairs; Wainohu v NSW o Okay if not incompatible with court’s institutional integrity: Momcilovic

Decisional Independence • • •

“neither the Parliament of NSW nor of the C’th can invest functions in the NSWSC that are incompatible with the exercise of federal judicial power” – Kable v DPP Integrated system (State courts awarded Federal jurisdiction) – State courts must also be and must be perceived to be independent from legislature and executive – Kable v DPP Kuczborski v Queensland (VLAD laws)

Topic 5 – Implications from Ch III •

Retrospective laws do not contravene separation of powers as long as determination of guilt is left to the courts – Polukhovic v Commonwealth (War Crimes Act Case)

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The termination of a right conferred by statute is not an exclusively judicial function – Duncan v NSW – legislative detriment ≠ legislative punishment Outline of exclusively judicial functions – Duncan v NSW

Executive detention: •

The involuntary detention of a citizen is penal and punitive in character and only exists as a function of adjudging and punishing criminal guilt – Lim’s case – with exceptions

Aliens power exception – non-citizens • • • • •

Lim’s case: established – detention authorised to extent necessary for deportation/visa Al-Kateb: can be indefinite Behrooz: harsh conditions are still valid Re Woolley: extends to children Plaintiff S4/2014: ‘as soon as reasonably practicable’

Preventative Detention • • • •

An order of a superior court is valid until it is set aside, even if made in excess of jurisdiction – NSW v Kable (Kable No 2) Continuing detention orders may be valid if enough discretion is conferred upon the courts – Fardon v Attorney-General (Qld) ‘unacceptable risk to the safety, welfare and order of the community’ is evaluative and purposive – Assistant Commissioner Condon v Pompano Pty Ltd State parliaments cannot limit appeals for jurisdictional errors (Supreme Court) – Kirk v Industrial Relations Commission – but can non-jurisdictional errors (questions of fact)

Topic 6 – Judiciary •

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Justiciability/matter – In re Judiciary and Navigation Act o Some immediate right, duty or liability needing to be established o Legislature cannot authorise the court to make a declaration of law divorced from any attempt to administer it – ‘advisory opinions’ = invalid The determination of a question of law on reference to a superior court is clearly a judicial function – Commonwealth v Queensland (Queen of Queensland Case) Matter remained, despite the appeal not being able to affect the original decision, as it was related to the original administration of the law – Mellifont v Attorney-General (Qld) Parliament can limit jurisdiction over parts of matters – Abebe v Commonwealth If there is no legal remedy for a wrong, there can be no matter – Re McBain It is sufficient that they wish to engage in conduct as part of their ordinary business practices for which they may encounter prosecution – APLA Ltd v Legal Service Commissioner; Croome v Tasmania Matter does not demand a particular requirement as to standing (Parliament may allow anyone to bring an action so long as a remedy is available – special interest test rejected) – Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd Result of a case would not be limited to the applicant, but would apply generally – despite applicant only having standing with respect to his matter – Pape v Commissioner of Taxation

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No standing as the legal operation of the Act does not restrict his conduct - VLAD laws – Kuczborksi v Queensland – no standing until charged with offence

Topic 8 – Executive Powers Statutory authority • •

Must be grounded in a head of power under s 51 (Williams v Commonwealth) o Can be incidental to executive power (s 51 (xxxix)) [e.g. nationhood, or prerogative] Reconcilable with separation of powers (Victoria Stevedoring & General Contracting v Dignan; NSW v C’th (Work Choices Case) – represents the continuing will of Parliament

Prerogative powers • • • •

Can be abrogated, modified or regulated by laws of the Commonwealth – in clear language Ruddock v Vadarlis Where a statute clearly regulates a power of the C’th, it is restrained by statute – CPCF v Minister for Immigration and Border Protection Judicially reviewable - Justiciability of prerogative powers depends on subject matter – Bancoult v Secretary of State for Foreign and Commonwealth Affairs Prerogative powers distributed between C’th and states with respect to distribution of legislative power – Cadia Holdings Pty Ltd v NSW

Nationhood power • • •

A capacity to engage in activities peculiarly adapted to the government and which cannot otherwise be carried out for the benefit of the nation – AAP case – Mason J Limited case law – Seas and Submerged Lands case; Tasmania Dam case; Davis v Commonwealth May be used as basis for legislative power – s 51(xxxix)

Power to contract and spend • • • •

Statutory authority – where legislation is grounded in a head of legislative power under s 51 – Williams v Commonwealth If authorised by implied nationhood power (e.g. in Pape v Commissioner of Taxation) For services required for, or incidental to, the carrying out of the ordinary and well organised functions of government – Williams v Commonwealth Note: ss 81 and 83 (appropriation) are not general sources of power for C’th to spend – Williams v Commonwealth (No 2)

Topic 9 – Executive Accountability Regulations/Delegated legislation • • •

Delegated legislation reconcilable with separation of powers - Victoria Stevedoring & General Contracting v Dignan NSW – Interpretation Act – notice in Gazette – sufficient compliance enough (as far as reasonably practicable) – Watson v Lee The ceasing of an regulation does not affect its validity before the date of cessation – Thorpe

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It is the regulation making power, not the regulation, that is meant to be construed vis a vis the principle of legality (not to encroach upon freedoms unless clear) – Evans v NSW (WYD Case)

Parliamentary call for documents • •

The Legislative Council has such powers, privileges and immunities as are reasonably necessary for the proper exercise of its functions – Egan v Willis Issues of PII and LPP up to Parliament to decide not the courts – Egan v Chadwick

Reasons for decisions •

There is no requirement for reasons for administrative decisions – Public Service Board of NSW v Osmond

Topic 10 – Judicial Review of Executive Actions Jurisdiction • • •

s 73 gives constitutional basis for supervisory jurisdiction of Supreme Courts – Kirk v Industrial Relations Commission Courts can determine whether or not executives have applied the right test, but not if the test itself was/is satisfied – Green v Daniels; Haneef’s case Cabinet is not referred to in the Constitution and rarely in statute, thus only in very limited circumstances would matters pertaining to them be justiciable; matter ≠ complex policy consideration – Minister for Arts, Heritage and Environment v Peko-Wallsend

Justiciability • • • • • •

Just because something is political in nature does not mean it is not justiciable – Bennett v Commonwealth Regulation made by representative of the Crown could be challenged as being in bad faith or with ulterior motive – R v Toohey; Ex parte Northern Land Council Prerogative powers may be justiciable if it pertains to a matter upon which the court can adjudicate – CCSU v Minister for the Civil Service Non-justiciable to comment on the nature of the law and not its application – Aye v minister for Immigration and Citizenship Any question as to limits of C’th power is justiciable – Marbury v Madison The act of state doctrine has no application where it is alleged that Commonwealth officials have acted beyond the bounds of their authority under Commonwealth law – Habib v Commonwealth of Australia

Public Interest Immunity from disclosure of documents in judicial reviews •

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Courts will not order the disclosure of documents/information if it would be injurious to the public interest to disclose it – Murrumbidgee Groundwater Preservation Association v Minister for Natural Resources Only required to have enough information to make submissions in defence for procedural fairness to be awarded, not all documents – Jaffarie v Director-General of Security

Topic 11 – Independent Tribunals and Investigative Bodies

Ombudsmen •

Ombudsman may not make findings of individual guilt, may only express opinions, and if so, must provide reasons and evidentiary material relied on – Chairperson, Aboriginal and Torres Strait Islander Commission v Commonwealth Ombudsman

ICAC • •

ICAC’s jurisdiction could only include offences which could adversely affect the probity of official functions not merely the proper exercise of official functions – ICAC v Cunneen Validation of meaning of corrupt conduct was valid – changed the substantive law and did not affect the processes of the court – Duncan v ICAC

Important sections Topic 1 Statute of Westminster: s 2: CLVA shall not apply to any law by Parliament of a Dominion – no law shall be void on the ground that it is repugnant s 3: Parliament of a Dominion has full power to make laws having extraterritorial effect s 4: UK Parliament not to legislate for a Dominion except by request and consent of the Dominion Australia Acts: s 1: removed power of UK to legislate for Australia (incl. with “request and consent”) s 2: confirmed plenary power of States to make laws for “peace, order and good government” s 3 (1): removed repugnancy provisions s 6: manner and form s 7: Queen to be directly advised by state premier with respect to state matters s 11: termination of appeals to UKPC s 15: Australia Act and remaining parts of SOW entrenched

Topic 2 – Constitutional Amendment s 128: referendum to amend Constitution – majority of electors and a majority of electors in a majority of states Manner and Form: s 6 of Australia Acts: 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 or procedure of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament, whether made before or after the commencement of this Act.

Topic 3 – The Legislature and Representative Democracy s 7: “The Senate shall be … directly chose by the people of the State …” • •

Equal number of senators from each State Parliament can legislate to increase or reduce no of senators for each State, but must maintain equal representation of original States at no fewer than 6

s 24: “The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth ...” •

Proportionate to population

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Roughly double the number of senators (150/76)

s 41: conferring right to vote on those who had the right to vote in State prior to enactment of C’th electoral legislation – dead letter provision now s 122: Territories power The Parliament may make laws allowing the representation of a Territory in either House of Parliament to the extent and on the terms which it thinks fit s 8, 10, 30, 31, 31(36) – C’th Parliament can make laws with respect to elections confers considerable discretion including when you can lose entitlement to vote – but provisions must be read subject to ‘constitutional bedrock’ of ‘directly chosen by people’

Topic 4 – The Judiciary s 72: appointment – appointed by GG in council - removed by the GG in council on address from both houses for proved misbehaviour or incapacity grounds; tenure till 70 C’th – HCA Act - s 6 – AG to consult with AGs; s 7 – must be barrister/solicitor or judge NSW – appointment Supreme Court Act – s 26 – Governor appoints: judge at either C’th or State or is Aus lawyer of > 7y Judicial Officers Act – s 44(1) – retire at 72 – after that, acting judge Constitution Act – s 53(2): removal same as s 72 of C’th Constitution ^ s 73: HCA has broad appellate jurisdiction s 75: original jurisdiction of HCA – in all matters: • • • • •

Arising under any treaty Affecting consuls or other representatives of other countries In which the C’th, or a person suing, or being sued on behalf of the C’th, is a party Between States, residents of different states, or State and a resident of a different State In which a writ…is sought against an officer of the Commonwealth

s 76: Parliament may confer original jurisdiction on the HCA s 77: Parliament may invest any court of a State with federal jurisdiction – may also define the jurisdiction of the federal courts Topic 6 – Executive s 61: 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. s 51: legislative heads of power s 81/83: cannot spend unless appropriation by law Topic 9 – Delegated Legislation

Regulations/delegated legislation: C’th – Legislative Instruments Act s 38: tabling requirements within 6 days s 42: each house has 15 sitting days to disallow and 15 days after that to move motion s 45: effect of disallowance – ceases to have effect NSW – Subordinate Legislation Act 1989 s 5: regulatory impact statement complying with Sch 2 published in Gazette stating objects, where to find the statement and inviting comments within 21 days – as far as is reasonably practicable NSW – Interpretation Act s 40: written notice requirements within 14 days after publication s 40(4): not giving notice doesn’t affect validity (unlike C’th) s 41: each house has 15 sitting days from notice to give notice of resolution to disallow s 41(2): effect of disallowance – ceases to have effect s 39: must be published on the NSW website – commences on day it was published or a later day specified NSW – Legislation Review Act 1987 s 9: Legislation Review Committee reviews legislation to see if they unduly trespass on personal rights, business community or other factors

Topic 9 – Freedom of Information C’th – Freedom of Information Act Part 2: presumption in favour of release s 11: every person has legally enforceable right to have access to document – reason not relevant Note: applies to documents, not information

s 52: internal review of decisions except those made by principal agent or responsible Minister

Division 4: IC review of a refusal, internal review or decision to refuse additional time to apply for internal review s 56: appeal to FCA on questions of law – from IC review; can make substitute decision s 57A: appeal to AAT – decision of IC – can’t order disclosure of exempt document NSW – Government Information (Public Access) Act s 5: presumption in favour of disclosure s 9: legally enforceable right Schedule 1 (s 14(1)): exemptions – conclusively presumed overriding public interest: • • • • • • •

Overriding secrecy laws Cabinet information Executive Council information Contempt Legal professional privilege Excluded information Documents affecting law enforcement and public safety

s 82: internal review – except decision by primary agent or Minister s 89: IC review – after internal review – unless access applicant is applicant for review s 100: apply to NCAT...