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Seminar 5 Sources of domestic Public Law 1. Australian Courts Act 1828 (UK), s 24: Reception of British law in Australia • •

English law automatically applied to the extent it was applicable to the colonial setting – but what law actually applied? s 24 of the Australian Courts Act 1828 (UK) was an attempt to clarify some of these questions

S 24 of the Australian Courts Act Before 25 July 1828, all common law and statute law of England then in force applied to colony of NSW and Tasmania (then ‘Van Diemen’s land’) • After 25 July 1828, any subsequent English legislation would only apply by ‘paramount force’, meaning that the state must either expressly provide or necessarily intend such a consequence (Phillips v Eyre (1870) LR QB 1) However: •

NSW supreme court judges followed laws of England, on occasions the court would pull back, and would not depart to drastically • It didn’t really resolve many questions Still an open question: what parts of English law applied? •

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2. Imperial Acts Application Act 1980 (Vic): Imperial Acts Application Act 1980 Repealed all English acts that were enforced at the time of the passage of the Australia law passage • Subject to some important exceptions, English Acts in force at time of passing of Australian Courts Act repealed (section 5) Exception •

Specific English laws of fundamental constitutional and historical significance are preserved (section 3) • Free elections • Habeas corpus (provide you with the right to procedural affairs) • Magna Carta (everyone subject to the law, justice without delay, [was not just for rich men]) • Bill of Rights 1688 (further limited the powers of the crown, and increase powers of parliament )

3. Statute of Westminster 1931 (UK), ss 2, 4, 8, 9: However, this deals only with the Cth, not the states: The sovereign British parliament revokes its own ‘ultimate sovereignty’ – gives it to the Cth of Australia (but, note s 9(1), not the Australian states). - S 2: Dominions can finally pass laws that may be “repugnant” to the laws of England (repeals the Colonial Laws Validity Act). - S 3: Dominions can legislate extraterritorially - S 4: no Act of the UK should extend to dominion as part of its law unless expressly declared that Dominion had requested and consented. - S 8: this does nothing to alter the Constitution (because the Constitution was based on a British Act, this section is designed to ‘save the status’ of the Constitution). - S 9: Commonwealth of Australia cannot make laws on any matter which is within the authority of the states of Australia o Nonetheless, under section 9 of the statute, on matters not within Commonwealth power Britain could still legislate with effect in all or any of the Australian states, without the agreement of the Commonwealth although only to the extent of "the constitutional practice existing before the commencement" of the statute. However, this capacity was never used - S 10: requires Australia to pass an Adoption Act in order to give power to the Act. o S 10: provided that the Act shall have no effect until adopted by the Parliament of a dominion → only applicable upon ratification Statute of Westminster Adoption Act 1942: Operated retrospectively to the beginning of WWII (e.g. 3 Sep 1939). - S 2(1): Colonial Laws Validity Act no longer applicable to Cth laws. o Therefore, no law shall be void or inoperative on the basis that it’s repugnant to a law of England (s 2(2)). - S 3 : Cth power to make laws extraterritorially. – - S 9 : doesn’t apply to states within Australia. 4. Australia Act 1986 (Cth), ss 1-3, 8-9: An Act to reinforce Australia’s status as an independent sovereign state; essentially about tying up remaining legal prohibitions on states from their colonial origins through legislation, resolved the anomalous power of the United Kingdom's parliament to legislate over the individual Australian states, a power that it had exercised since colonial times and which had not been affected by the Statute of Westminster Act 1931. The state received the same level of independence as the common law did - S 1: UK can not legislate for Australia (even if Australia asks it to do so, repealing s 4 of Statute of Westminster Act) - S2 o (1) states can legislate extraterritorially for the peace order and good government of that state - S3 o (1) Repealing the Colonial Laws Validity Act o (2) no law of any state can be found “repugnant” to the laws of England - S 8: State laws cannot be disallowed by the Queen once they have been assented by the Governor - S 8-9: Provisions for disallowance and reservation of State legislation abolished.

5. Law Reform Commission of Western Australia, Aboriginal Customary Laws: The Interaction of Western Australian Law with Aboriginal Law and Culture, September 2006, Chapter 4, pp. 61-74; p. 365 (Recommendation 5): The need to identify key terms “customary Law” and “Aboriginal” Recommendation 4 - Genealogical evidence - Evidence of genetic descent - Identifies as Aboriginal - Accepted by aboriginal community There is no single system of customary law that applies to all aboriginal people, different tribe have alternative rulings Aboriginal people remain bound and protected by Australian and Western Australian law at all times. Whether individual Aboriginal people are also bound and protected by their relevant customary law is a matter for them and their communities. Kinship is the social relationships in which people refer to each other related and unrelated, a circular system -

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Aboriginal customary law connected people in a web of relationships with a diverse group of people; and with our ancestral spirits, the land, the sea and the universe; and our responsibility to the maintenance of this order Aboriginal customary law governs all aspects of Aboriginal life, establishing a person’s rights and responsibilities to others, as well as to the land and natural resources

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The other two areas of potential conflict involve the recognition of particular Aboriginal customary practices that may contravene international laws (such as spearing and non-consensual child marriage) and the recognition of collective rights of indigenous peoples as against the individual rights of women under international law. The Commission’s research on each of these areas highlights the fact that, although recognition of Aboriginal customary law may be considered desirable as part of a program of affirmative discrimination and reconciliation, blanket recognition is not possible. - BUT - All submissions received in respect of this proposal endorsed the Commission’s view;however, a number of submissions reinforced the need for explicit protection of Aboriginal women and children. … = recommendation 5 Recommendation 5 Recognition of customary law consistent with international human rights standards That recognition of Aboriginal customary laws and practices in Western Australia must be consistent with international human rights standards and should be determined on a case-by-case basis. In all aspects of the recognition process particular attention should be paid to the rights of women and children and the right not to be subject to inhuman, cruel or unusual treatment or punishment under international law. How can it be recognised, customary law In respect of violence against Aboriginal women or children the Commission emphasises that violence or sexual abuse of Aboriginal women and children has never been part of Aboriginal customary law. The Commission’s recommendations are incontrovertibly clear that such actions will not be tolerated by Western Australian law.

6. Emily Crawford, ‘Monism and Dualism – An Australian Perspective’ Sydney Law School: Legal Studies Research Paper No. 12/87 (November 2012): Approaches to International Law and Domestic Law - Thus, monists see international law and domestic law as parts of a larger, unified whole; dualism sees international law and domestic law as operating on different planes. Summary - In terms of the monist/dualist paradigm, Australia is, at first glance, essentially dualist in its approach to and reception of international law. However, an examination of how international law has interacted with the Australian legal system, in all branches of government, demonstrates that the strict monist/dualist approach does not adequately address how international law is received in Australia. -

This open acceptance of the value and importance of international law at the beginning of Australia’s life as a self-governing nation is remarkable, especially when one considers that resistance, if not outright hostility, to international law continues to be evinced by political and judicial leaders a century later. International law is a dynamic and important part of the Australian political and legal landscape and will only continue to contribute to Australia’s domestic and international experience.

The structure of the Constitution • Chapter I: The Parliament • Chapter II: The Executive Government • Chapter III: The Judicature • Chapter IV: Finance and Trade • Chapter V: The States • Chapter VI: New States • Chapter VII: Miscellaneous • Chapter VIII: Alteration of the Constitution Separation of powers   

Parliaments make laws The executive administers or enforces laws The judiciary adjudicates disputes about the law

Responsible government Lipton, 1997: “The Executive Government is responsible to the Parliament because Parliament is ultimately accountable to the electorate.” o One way of keeping everyone accountable o Representative democracy, we pick a party not individuals Representative government 

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The people of the Commonwealth are the protectors of Australia’s democracy Constitutional change cannot occur without a referendum, pursuant to section 128 •

Constitutional conventions

Constitutional rights • •

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No bill of rights But there are some rights under the Constitution: • Trial by jury (s 80) • Compensation on just terms for the acquisition of property (s 51(xxi)) • Featured in the Australian film “The Castle”! • Prohibition of discrimination in one State against the resident of another State (s 177) • Freedom of religion (s 116) Implied right of freedom of political communication...