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Public Law - Contents
2. CONSTITUTIONALISM AND JUDICIAL REVIEW
2.1 Introduction 2.2 Constitutional Validity 2.3 Judicial Review 2.4 Separation of Powers Page 2 Pg 2 Pg 2-3 Pg 4-6 Pg 6-7
3. EVOLUTION OF THE WESTMINSTER SYSTEM – POWER STRUGGLE BETWEEN INSTITUTIONS
3.1 Magna Carter
3.2 Parliament and Glorious Revolution 3.3 Star Chamber 3.4 Limited Government Page 8 Pg 8 Pg 8-11 Pg 11 Pg 11-12
4. DICEY, PARLIAMENT SOVEREIGNTY AND THE RULE OF LAW
4.1 Parliamentary Sovereignty 4.2 Rule of Law
4.3 Reconciling Parliamentary Sovereignty and the Rule of Law
Page 13
Pg 13-14 Pg 14-16 Pg 16-19
5. FEDERATION AND POPULAR SOVEREIGNTY
5.1 Path to Federation
5.2 Human Rights and Australian Constitution 5.3 Path to Real Independence
5.4 Popular Sovereignty
5.5 The Australian Federal System
Page 20 Page 20-21 Pg 21 Pg 21-23 Pg 23-24 Pg 24-25
6. INDIGENOUS PEOPLE AND THE QUESTION OF SOVEREIGNTY
6.1 Introduction 6.2 Native Title
6.3 Indigenous Sovereignty & Self Determination 6.4 Treaties Page 26 Pg 26-27 Pg 27-29 Pg 29-31 Pg 31-32 7. STATE CONSTITUTION 7.1 Introduction
7.2 Peace, Welfare and Good Governance 7.3 Deep Common Law Rights
7.4 Amending State Constitution 7.5 Manner and Form Requirement
Page 33
Pg 33 Pg 33 Pg 33-35 Pg 35-36
8. VOTING AND ELECTION TO FEDERAL PARLIAMENT
8.1 Rights to vote 8.2 Eligibility for Election
Page 37
Pg 37-40 Pg 40-43
9. THE EXECUTIVE
9.1 Introduction
9.2 Source & Scope of Executive Power
9.3 Responsible Government and the Control of the Executive 9.4 Constitutional Conventions Page 44 Pg 44 Pg 44-46 Pg 46-48 Pg 48-49
10. SEPARATION OF JUDICIAL POWER
10.1 Separation of Federal Judicial Power 10.2 Defining Judicial Power
10.3 Exceptions to the Boilermakers’ Case – Persona Designata Rule
Page 50
Pg 50-51 Pg 51-52 Pg 52-54
11. HUMAN RIGHTS AND BILL OF RIGHTS
11.1 What are Human Rights 11.2 Bill of Rights
Page 55
Pg 55-57 Pg 57-59
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2. CONSTITUTIONALISM & JUDICIAL REVIEW
2.1 Introduction
What is a constitution?
Definition: Constitutional law describes the body of rules according to which a state is constituted or governed, the way in which the organs of government are structured and defined, and the way in which those organs relate to one another and to citizens. It is important to have:
1 Description of where power is distributed
2 Supporting the exercise of power by clarifying source of existence
3 Taking perspectives of individuals rather institutions; i.e. how power is limited. Constitution Classifications
Types of constitutions , according to Dicey a constitution can either be
Written or unwritten: A written constitution is a document which founds a political community and defines its chief political institutions, confers powers and circumscribes permissible limits. Whereas UK never adopted a single document so it referred to as a written constitution/ Rigid or flexible : A flexible constitution is one under which every law of every description can
legally be changed with ease by one and the same body. Whereas a rigid constitution is one under which certain laws generally known as constitutional or fundamental laws cannot be changed like ordinary laws; specific procedures are followed.
Australia’s Constitution
Commonwealth of Australia was formed on 1st January 1901 by the Commonwealth of Australia Constitution Act (Imp)
Our system is a hybrid model between:
United Kingdom – representation and responsible government United State – Federation, separation of powers & judicial review
We have both a written and non written part
Commonwealth constitution (rigid – changeable by referendum) and state constitution (flexible) which are supplemented : common law principles, Statute of Westminster, Australia act 7 unwritten conventions.
What is the source of authority in the Australian Constitution?
1901 – Grundnorm was British Parliaments’ ability to alter the Australian constitution
1986 – Australia Act means Britain cannot alter Australia’s laws
2004 – High Court recognises popular sovereignty as a source of the constitution and all the laws in society.
2.2 Constitutional Validity
(p40) Legal Positivism: a theory that maintains that the validity of any legal rule depends solely on whether an authority issuing the rule had the legal power to do so.
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From where does the constitution derive its validity?
H Kelsan p411 Kelsen’s Theory
Hierarchical structure of the legal order:
The relationship between the norm that regulates the creation of another norm and the norm created in conformity with the former can be presented as a relationship of super and subordination. The basic norm is therefore the highest reason for validity of norms, one created in conformity with another thus a legal order in its hierarchical structure.
The entire legal order is a pyramid of norms derived from norm-creating powers conferred by the constitution, which itself derived validity from any earlier constitutional arrangements pursuant to which it was adopted.
Reason for validity of a legal order:
Validity of existing constitution is justified by the fact that it was created according to rules of an earlier constitution by amendment. For validity of the first constitution, the assumption that it is a binding norm must be presupposed if we want to interpret the creation of subsequent norms to be valid.
Basic norm as transcendental logical presupposition:
Ultimately there is a grudnorm/basic norm which is the assumption that the legal order must be obeyed. It is the starting point of the positive law creation ( dynamic derivation).
Criticisms
Kelsan seeks to construct a systematic framework for pure theory of law characterised by hierarchy and unity but in reality it is not so structured – too formalistic and artificial
One needs to make a moral judgment to believe the constitution is the Grundnorm (i.e the one you should obey). There are still cultural and other influences that are simply masked y Kelsan’s analysis that we simply obey it because it is an assumption.
Theory is too inert and has no consideration of the cultural framework which contributes to the validity of the legal system.
By linking legal validity with power and power alone, it removes laws from value judgments about the goodness and badness of the subjective content of law. Thus even tyrannical laws can have legal validity.
Foucalt Foucault’s Theory
Discourse can only ever be inconsistent ruptured & that only out of such discourse can ideas originate. Power comes from all sorts of discourses e.g. Cultural, political, economic.
Our culture is a law bound culture, it is inherent in us to obey the law, our actions reinforce the validity of the law. Cultural assumptions and the way society has shaped us leads to an unconscious conformity to the legal system.
Criticism
Lacks structure, in reality there is a need for some sort of structure for why we obey the law.
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2.3 Judicial Review
(p3) Judicial review is the power of a body (usually a court) to construe legislation to ensure compliance with constitutional limits.
Australian constitution assumes that were a statute is enacted by any Australian parliament that exceeds the powers recognised by constitution any court (but in practice, the High court) has the power to declare the act invalid.
Is judicial review democratic?
Against For
Judiciary is unelected, and therefore they should not be permitted to strike down law made by elected representatives of the people, and so infringe on parliamentary sovereignty.
Judges are appointed by political parties, political bias of judges not democratic.
Democratic election is a form of review, judicial review is redundant.
Imbalance of power between courts/parliaments.
If courts look after repugnant legislations then which body looks after the court? “Who watches the watchmen?”
Popular sovereignty: constitution upholds the will and the demands of people and in order to preserve it Judges should be conferred the power to strike down unconstitutional laws
Judges are appointed by elected representatives of the people (parliament)
Can protect minorities from unfair majority
Judicial review is appropriately limited by the constitution; courts can only adjudicate matters in dispute that come before them, public would “recognise abuse of power, courts would lose its legitimacy, respect and cease to be effective”. (Lucas p6) 2
Can judiciary determine validity of legislation?
MARBURY V MADISON (p4) Facts:
Outgoing president and Secretary of state introduced legislation doubling the size of the judiciary and nominating many new judges who has sympathetic views.
Commission was provided to all judges except 4 including Marbury before the presidency term ended. These 4 judges demanded new president Jefferson to give them commission but was refused.
They applied to Supreme Court for a writ of Mandamus to compel Jefferson to give them commission. Marshall CJ was the chief justice of Supreme (originally the Secretary of State) dismissed the case. Marshall CJ held:
Held that if the 4 judges were validly appointed then Judiciary Act 1789 granted Supreme Court power to issue order but it would be unconstitutional. This was because Supreme court could only grant appellant jurisdiction and not original jurisdiction as required to issue the writ of mandamus.
For limitations of a constitution to be meaningful it must not be easily changed by an Act of Parliament. Also if law of Parliament is inconsistent with Constitution then courts can either
1 Let law prevail and disregard constitution OR (if this is true the written constitution is meaningless) 2 Constitution prevail and disregard law
This was an important case as it entrenched idea of judicial review and has yet to be overturned. Therefore if a piece of legislation is repugnant or unconstitutional courts can declare it invalid.
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BROWN V BOARD OF EDUCATION (p7) Held:
Held that segregation of children in public schools on the basis of race was unconstitutional. Troops were sent to ensure desegregation as put into place.
COOPER V AARON (p7) Facts:
State of Arkansas amended the state constitution to provide that the desegregation that had taken place were unconstitutional and the legislature was to oppose the desegregation that the US supreme court had ordered.
Little Rock School sought an order from the court to allow them to stop further desegregation because of riots and protests.
Held:
Held that it was “settle doctrine” that the constitution was “supreme law of the land.” It is the court’s role and duty to say what the law is and so no state governor has power to nullify an order by the court; if he did then the constitution would be reduced to “solemn mockery” and a series of “impotent phrases”. Can judiciary determine validity of constitution? (FM Brookfield p46)3
Coup d’Etat refers to the overthrowing of legal order such as that started by a military. The key question is can a court determine whether a new regime has become lawful?
Older View – constitution binds courts
The older constitutional view is that court created under pre-revolutionary constitution has no jurisdiction to recognise a revolutionary regime as lawful but bound to constitution that created it.
Judges cannot inquire into the validity of the constitution under which they hold office New courts is non-valid as long as old court is permitted to function or until judges resign.
In Kelsen’s terms. The basic norm may be destroyed by a revolution. So courts of that order cannot adjudicate upon the revolutionary change.
Existing courts cannot determine whether or not revolution of new order has replaced the existing regime. If revolutionaries want full recognition they must complete usurpation by appointing a new judiciary bound by their oath of office to uphold the new order.
Newer View – supra-constitutional jurisdiction4
Courts including those created by a written constitution are authorised and required to decide when and if a revolutionary regime has become lawful. Courts have a supra-constitutional jurisdiction, exercisable in extreme revolutionary circumstances.
What is the basis for supra-constitutional jurisdiction ? According to Privy council, Courts must accept the role of deciding whether the revolution has succeeded, is based on ‘some principle of law independent of any particular system which authorises a judge simply by virtue of his office and irrespective of the source of...jurisdiction to recognise the revolutionary regime.’
3
Waitanagi & indigenous Rights: Revolution, Law and Legitimation, 4
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What principle(s) must the court apply in exercising the supra-jurisdiction? MADZIMBAMUTO V
LARDNER-BURKE(1969) Lord Reid p48
1. When there are 2 regime of constitution existing, we cannot have 2 lawful governments.
Test for whether the new government is lawful:
2. The test becomes one of the efficacy of the change i.e. test of effective control. This means the former govt cannot be striving for power because then it would be impossible to say the new govt is in control because the new govt is opposing the old lawful one.
MOKOTSO V HM KING MOSHOESHO (1989), Cullinan CJ p49
Requirement
3. Provided a more elaborate test where a court may hold revolutionary regime lawful and its act to have been legitimate where court is satisfied that:
1. The government is firmly established, there is no government opposition to,
2. The government’s administration is effective in that the majority of the people are behaving in conformity therewith.
REPUBLIC OF FIJI V
PRASAD (2001) p49 Facts - Prasad was a farmer who had been forced off his land after the coup. He sought a declaration from High Court of Fiji that the 1997 Constitution remained in force and that the elected government had not been properly dismissed. He won; interim government appealed to Court of appeal but was dismissed. Changed the efficacy test
1 Burden of establishing whether the efficacy test has been met rests on the new, usurping govt
2 Proof must be high civil standard
3 The overthrow must be successful; established administratively & no rival government.5
4 Proof people conform with new rules and it must stem from popular acceptance and support rather than fear and coercion.
5 Length of time of usurping govt in control is relevant
6 Election will be strong evidence of efficacy which is to be asses at the time of the hearing (not the time of takeover).
2.4 Separation of Powers
What is the Separation of Powers?4. Divides power into 3 arms (Phillips & Jackson p9)6
1. The legislative function is the making of new laws and alteration or repeal of existing laws. 2. The executive/administrative function is the general and detailed carrying on of government
according to law i.e. implementation of government.
3. The judicial function consists of the interpretation of law and application by rule or discretion to facts of case.
5. Argues that liberty is best protected by separating all three arms of government because, (Baron de Montesquieu p9)7
5 Rival government exists if old govt is willing to resume power if the constitution re-instated. No need for arms. 6
Constitutional and Administrative Law,
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When legislative and executive powers are united there can be no liberty, tyrannical laws are created and executed
When judicial is united with legislative and executive, subjects exposed to arbitrary control, for the judges will be the legislators and might behave with violence and oppression.
Can we really separate powers?
It is impossible to adopt a complete separation of powers but checks and balances in power has developed between three arms. (Gerald Carney p10)8
Argues that in a sense administration subverts the tripartite system : (Julius Stone p11)9
This raises the question of is administration properly party of executive or legislative function? Or is it a 4th arm of government? This is because there is a growth in independent commissions, given tasks and specific powers to act like a court e.g. tribunals.
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Separation of Powers in the Westminster System,
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3. EVOLUTION OF THE WESTMINISTER SYSTEM - POWER
STRUGGLE BETWEEN INSTUTITONS
3.1 Magna Carter
(p54)What is the Magna Carter (p54)
The Magna Carter 1215 played a symbolic role in enshrining equality and justice by limiting the arbitrary exercise of monarchical power when it was first ratified by King John and then reaffirmed by the
monarchs who succeeded him.
3 important reflective principles
1 Every free person has an inherent individual right to his life, liberty, property and citizenship
2 His individual rights must always yield to necessities of the general welfare at the will of the state
3 The law of the land is only mode by which state can so declare its will
The group that drew it up was not solely composed of the nobility and the clergy, but also included the merchants, townsmen, inhabitants of the forests and freemen generally. (G. Walker p54)10
Magna carter is of symbolic interest as it does the subservience of the king to ideas of law, and also setting up rudimentary enforcement machinery against the king. (J Alder p55)11
Rule of Law – individual rights represented and subjects monarch to the law.
3.2 Parliament
(p59)& Glorious Revolution
(p72)12Historical Outline
Anglo-Saxon – In the early 13th century Kings of England ruled by “divine rights,” Anglo-Saxon kings were assisted by Witenagemot. These were the wisest men who gave advice and counsel and met 2-3 times a year with the king. The witan disappeared with the Anglo-Saxon Kings.
William I and his successors held Great Councils instead which constituted of nobles and others who held their lands directly from the king.
Edward I in 1295 set up a Model Parliament which included barons ( nobility) , knights, burgesses, clergy. These people were summoned to some parliaments only, especially when the king needed extra funding for wars or crusades.
Lords/nobles would meet separately to the commoners
Give/take relationship started to develop between King and Commons. When king wanted to raise tax, Commons would bargain some benefits for the people which was brought to king’s attention through petitions as Bills. These bills were often tampered with bu Lord or Kings without notice of Commons.
10
The Rule of Law: Foundation of Constitutional Democracy
11
Constitutional and Administrative Law
12
British Constitution Made Simple, CF Padfield (p59)
Constitutional and Administrative Law in NZ, PA Joseph (p72) Bill of Rights 1688 (p73)
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King Henry VII (1413-1422), the practice became to send Bills to King in form a statute which would either be assented or dissented to which prevents the tampering.
Bicameralism was introduced in 14th century – the lower house of commons and the upper house of nobles and churchmen.
Tudor Period (1485-1603) - 16th-17th century which saw a great constitutional struggle between the Monarch and the Parliament.
Henry VIII ended Catholicism and established the Church of England so that he could divorce Catherine of Aragon ( Arthur’s window, i.e his brother) . He however had direct clashes with the parliament.
Elizabeth I , the daughter of Henry VIII ruled through the Parliament for her own purpose whilst avoiding head-on conflicts with Parliament.
Stuart Monarch (1603-1714)
Charles I (1625-49) tried to force Parliament to give him royal prerogatives including: right to issue proclamations, tax, grant immunity to anyone he wished and to suspend the operations of laws. 1641 He assented various acts which gave parliament protection from arbitrary dissolution by
king.
English civil war (1641-51) ending with Charles execution and his son Charles II exiled. Interregnum (1651-1660)
– English monarch replaced with commonwealth of England which was then replaced by Protectorate under Olive Cromwell
Restoration of Monarch (1660) – Charles II was invited back by Parliament but had to adhere to certain conditions. Stared the precedent that British monarchs needed consent of parliament to govern
Glorious Revolution (1688) –parliament overthrew the king,
– James II (1685-8) tried to rule by divine rights and alienated even supported of the crown which of course led to him being overthrown.
– William II (1689-1702) invited to rule along with Mary but only if they agreed to pass Bill of Rights. Bill of rights 1689 was ratified.
Act of Settlement (1701) – confirmed the bill of rights and restriction who could become King i.e. succession issues. King could no longer pardon people from offences nor could he fire judges if they were properly behaved. Royal officials and nobles were excluded from membership of the House of Commons.
What is the Parliamentary Importance of the Tudor Period? (F. Marcham p60,p74)13
The Tudor period was significant to the development of Parliament. There were 2 streams of law; 1 made by Parliament (private bills dealing with individuals or specialist groups)
2 made by the King (public legislation)
Procedure for making laws
1 King produced bill to House of lords or Commons (either)
2 Bill read 3 times, if accepted it is passed to next House (Lords or Commons) 3 Bill is read another 3 times and if accepted it is passed to King for approval 4 King has the power to veto the bill .
Other functions of parliament Recognised titles Legalised taxes 13
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Possessed Judicial power in particular the House of Lords; this meant that they could hear cases against peers charged with treason or felony hear impeachments; declares Acts of Attainder and hear appeals from the court on factual errors
Through Elizabeth’s reign, Parliament had attained freedom of speech which meant commons could not be punished for attacking the Crown; however some topics were still off limits. (e.g. religion and
succession).
Is the Bill of Rights still relevant Today?
Bill of Rights 1688 established Parliamentary supremacy, leaving only a small range of royal prerogatives to the King. (p73)
Still law of NSW to the extent that is has not been affected by any State or Imperial enactment (s6 Imperial Acts application Act 1969 (NSW).)
Bill of rights invoked in Commissioner of Stamps V Telegraph Investments (1995) to exclude tax obligations which were imposed by executive discretion rather than statutory criteria.
Power Struggle Between the Court and Crown (G. Smith p65)14
James I wanted to rule by divine rights so people had privileges rather than rights but parliament did not accept this approach. Many academics are also against the idea of divine rights and have frequently referred to Edward Coke’s arguments.
Coke and his supporters ...insisted that the common law controlled the province of the royal prerogative power. They asserted that the rights of both king and Parliament were derived from and defined by precedent.
To him the peculiar wisdom of the common law determined the goods and liberties of the people. The wisdom of the king, asserted coke could not do that. The king, coke held, was legally limited by the common law. The law was greater than the Crown.
Prohibition del Roy (p66)
King in his own person cannot adjudicate any case ...ought to be adjudicated in some Court of justice according to the law and customs of England.
His majesty was not learned in the laws of his realm of England....his subjects are not be decided by natural reason by artificial reason and judgment of law, which requires long study and experience. Power struggle between court and parliament
BONHAM’S CASE (p67)15
Suggestions in Bonham’s Case that a statute was perceived as contrary to common right and reasons might judicially be held invalid was deeply influential in later development of American constitutional law but was largely abandoned in England. Started doctrine of judicial review. (G. Smith p68,70)16
FACTS - Boham had a medical degree. There was a statutory-granted Royal College of Physician who said they could govern all medical practitioners. Boham had no license from this college; they would not give him one but he continued to practice so college imprisoned him.
HELD –
Court held College had no right to punish Boham. This is because one body cannot be the maker of
14
A Constitutional and Legal History of England,
15
Coke was severely criticised after the publishment of Bonham’s case which cost him his job.
16
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law and then proceed to judge at the same time.
Coke says that “common law will control Acts of Parliament and sometimes adjudge them to be utterly void; for when a acct of Parliament is against common right and reason or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void.” ROWLES V MASON – coke held that common law “corrects allows and disallows both statute law
and custom...if there be repugnancy in a statute or unreasonableness in custom.”
3.3 Star Chamber (p63)
What is the Star Chamber? ( F. Marchman p63)17
The Star Chamber was an invention during the Tudor period (e.g. Henry VII) which later became a symbol of oppression and tyranny. It was set up for the purpose of remedying a defect in the judicial system at the time and was meant to act as a judicial tribunal.
How does the star Chamber work ( F. Marchman p63)18
Remedy a defect in the working of the established judicial system. They set forth to suppress certain offences (e.g. riots and obstruction to the operation of courts and justice)
The court has complete freedom as to the procedure it followed; the evidence it considered and the punishment it meted out.
Abolished in 1640
Reality of the Star Chamber ( F. Marchman p63)19
Repressive system, operated in secrecy and clearly lacked transparency – There was no confrontation between accused and accuse. The examination of witness took place in secret and the only occasion when the case emerged into public view was when the court met in the Star Chamber to announce a decision to the accused. It acted tyrannically and became an institution of propaganda and oppression rather than justice.
Political influence in decision making – senior politicians were principal features of the judiciary which breached separation of powers
Emerged as an agency of propaganda (punishment was harsh and individualised) – The court made public spectacle of a man’s conviction and punishment to drive home the gravity of certain illegal acts.| Enabling Privy Council to make plain its intention to enforce government policies.
The star chamber was tyrannical because it tended to become a court of politician enforcing a policy not a court of judges administering the la. (JR Tanner p64)20
3.4 Limited Government (p74)
Judicial Review Limiting Government?ENTICK V CARRINGTON (p74)
FACTS
Secretary of state issued warrant o search Entick’s house upon allegation of him writing seditious materials. Entick sued for trespass but was challenged on the ground that the warrant was legal.
The problem was, did SOS (i.e. government) have right to issue the warrant?
17
Constitutional History of Modern England
18 Constitutional History of Modern England 19
Constitutional History of Modern England
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HELD (Lord Camden)
If it is law it will be found in our books. If it is not found then it is not law. Therefore, warrant to seize and carry away the party and papers in the case of sedition is illegal and void.
Emphasised the importance of private property rights. Unless statute or common law clearly takes away private property for the good of community (e.g. tax), no person can intrude upon other’s private property.
HELD that there was no right in law for King’s messenger to trespass onto one’s land and seize documents unless their power was derived from the law.
Judicial Review for Liberty?
SOMMERSETT’S CASE (p76)
FACTS - Sommersett was held in irons on board a ship by its captain, issued a writ of habeas corpus (orders to release a person that is wrongfully imprisoned). The captain asserted that he has the right to recapture the runaway slave.
HELD (Lord Mansfield ) - To prove a power dominance over a slave you had to show there was some positive written law to support it. There was no written law and the nature of slavery was not a popular political and moral argument; therefore it is unlawful.
Was another symbolic case demonstrating that importance of individual liberty where it was held no law in England allows for slaves and so no slaves were allowed.
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4. DICEY, PARLIAMENT SOVEREIGNTY AND THE RULE OF LAW
4.1 Parliamentary Sovereignty
(p83)What is parliamentary sovereignty? According to Dicey (p83)21
o “parliament has the right to make and unmake any laws”
No one including the courts has the right to override legislation made by parliament (but it can be struck down by judicial review if it is inconsistent with the constitution).
Everyone including the court must obey the laws of Parliament
o The role of “the people” is limited to voting at elections so there is no legal or effective means of challenging the government (e.g When Howard had majority in both upper and lower houses he pushed through with work choices 05-06. Despite its lack of popularity people had no effective legal means to challenge it before election).
Electors are the political sovereigns
Parliament is the legal sovereign (powers of law making unrestricted by legal limits). o Judges develop a body of common law
not inconsistent with parliamentary sovereignty parliament can override common law with statute o Limitation of Parliamentary Sovereignty
If a law is entirely absurd such an act of genocide or murdering all blue eyed babies then significant number of electors will simply disregard and disobey the law. In such instances the political system will be under turmoil and will collapse.
Social influences on the character of Parliament such as morality, societal beliefs and environmental & political circumstances.
According to Jennings (p86)22 Is the British Parliament truly sovereign? o There are many things Parliament cannot do in practice. E.g.
Abolish trade unions Retrospective criminal laws Extend its own life
Different laws for different people Seize property
Introduce communism Interfere with contracts
o If there is a distinction between legal sovereignty and political sovereignty, is the former sovereignty at all?
It would mean that the sovereignty parliament has is not supreme power like the scope of power of historic English kings before they were constrained by parliament and the Magna Carter.
Descriptive relationship between the parliament and courts?
o If Dicey is correct is saying that Parliament cannot bind future Parliament THEN
21
Introduction to the study of the law of the constitution
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The concept of parliamentary sovereignty is rather contradicting because if parliament is sovereign then it should have powers to change the nature of its own sovereignty. BUT arguably can future parliaments undo the change because they too are sovereigns? We are essentially engulfed in a circular argument.
What are the problems with Dicey’s view of parliamentary sovereignty?
Dicey’s view contains some fatal flaws that render it an inadequate analysis of parliamentary sovereignty
Inadequate weight placed on old common law principles (e.g. retrospective criminal laws)
Lack of authority to support his views o Nothing to bind future parliament o No applicable statutes
o Heavily criticised by Blackstone
Explain what parliamentary sovereignty means but fails to explain why they should be sovereigns. Goldsworthy defends parliamentary sovereignty as a doctrine (p86)23
The doctrine is not a dogma it is merely the way the political institution operates that leads to dogma. 1. Someone has to be sovereign (practical necessity)
2. We used to accept that King has sovereign power
3. Parliament used to have judicial power could make, interpret and apply laws 4. Parliament with limited power may not be able to deal with emergencies e.g. war
5. As contemporary circumstances change new parliament needs flexibility to create laws to adapt to those changes
6. By voting all subjects are deemed to consent to whatever Parliament does (really?)
7. The collective wisdom of the whole community, reflected in and expressed by Parliament is better than a single ruler that often leads to tyranny.
8. The King, Lords and Common places checks and balances on each other 9. Judges cannot be trusted with judicial review powers
10. Chances of tyranny or abuse by Parliament are not large enough to limit Parliament’s powers and accept all the negatives that come with such limitations. (benefit > costs)
Shaping Parliamentary Sovereignty preserver democracy? (Allan – p88)24
Doctrine of Parliamentary sovereignty itself may protect people against certain laws by Parliament e.g o Laws depriving substantial portions of the electorate from the vote because they tend to prefer a
different political party o Laws abolishing democracy
o “a statute which threatened fundamentally the central tenets of our democracy could derive no authority from the doctrine of sovereignty, properly understood”
4.2 The Rule of Law
(p90)What is the Rule of Law?
23
The Sovereignty of Parliament: History and Philosophy
24
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According to Dicey (p90)25 – the rule of law is the idea that no one can defy the law. It forms a fundamental principle of the constitution and has 3 meanings
1. “the supremacy of law or predominance of the regular law over the influence of arbitrary power”
not punished unjustly
2. “equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. It excludes the idea of exemption of anyone from the duty of obedience to the law”
uniformly applied
3. “A formula for expressing that the law of the constitution is a consequence of the rights if individuals.”
faith in the capacity for rights of individuals to be secured through the common law and Parliament. Rights protection is inherent in the system though not codified.
According to Jennings (p91)26
o The rule of law has something to do with the “content” of the law as well and may not be universal because
it is based on liberal-democratic decisions (communism) can conflict ideologies that a powerful state leads to happiness can conflict with ideologies that there should be no universal principle
underlying the state
different cultural religious, historical ethos in different countries?
o Phrases by Dicey like “Englishmen are ruled by the law, and the law alone – powers of crown derived from law” are to a certain extent, pure ideological rhetoric and lacks pragmatism because
State’s powers are derived from the law but parliament makes those law, so what parliament grant excessive or arbitrary power because they are political sovereign?
Despot (ruler) rules under the law he/she makes
Some substantive limitation is required as a part of the constitutional principle such as a separation of powers doctrine.
o Rule of law is tied to the notion of equality and liberty but is very imprecise in its scope What equality does it refer to?
– E.g. political, economic? – Special classes of law?
– No discretion in individual cases What does liberty mean?
– Political freedom? – Market forces?
– Individualism? a social theory advocating the liberty, rights, or independent action of the individual
o Rule of law is not a complete guarantee of freedom just because we’ve elected our rulers o The ruler of law is more complicated than Dicey’s 3 points. It also involves some considerable
limitations on powers of every political authority so that all government power (except legislative) shall be distributed and determined by reasonably precise laws.
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Introduction to the study of the law of the constitution
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In recent times the rule of law has been subjected to strong criticism, that its formation and neutrality is simply masking the economic and political underpinnings of the law.
Criticism of the Rule of Law According to Stone (p93)27
o Argues that the rule of law may be understood as an ethical and not just a legal doctrine
o The heart of the rule of law that those in power recognises their power is only tolerated because of shared socio ethical convictions ( a point that Dicey’s doctrine fails to consider0
o Substantive content of the law is also important and the existence of a responsible legislature o The rule of law doesn’t demand uniform rule of all matters for every person in society as
suggested by Dicey. Instead there are varying situations. Merely conformity to the law is not sufficient, instead we need conformity to the ideal “rule of law”.
o The rule of law cannot be reduced to 3 formal propositions suggested by Dicey. Reports by International Commission of Jurist 1959 (p94)28
Defines rule of law as: the principles, institution and procedures (may often differ but broadly similar), experiences and tradition of lawyers in different countries that operate to protect individuals from arbitrary governments.
Rule of law is “convenient term to summarise a combination of ideals and practical legal experience”. It is based on 2 ideals
o That power of the State must be derived and exercised lawfully AND
o That the law is based “on respect for the supreme values of human personality”
The rule of law implies that without regard to the content of the law, all power of the state derived from and should be exercised in accordance with the law. However the law itself is based on respect for the supreme value of human personality.
Is the rule of law applied in Australia?
HC has acknowledge that the rule of law is implicit but undefined part of the Australian constitutional system
However it is a vague concept, its relevance is limited depending on how you view the concept (i.e. which version of the rule of law should you apply)
Although the rule of law is a fundamental norm in the modern Australia society in some areas (e.g. Anti terrorism laws where much power is given to executive without checks on their power) it may be undermined.
4.3 Reconciling Parliamentary Sovereignty and the Rule of Law
Here the main question is whether the parliament is the sovereign as they make the laws or is the law the sovereign that is parliament’s power is also effectively derived from the law itself.
Dicey ‘s reconciliation (p95)29
Are they mutually exclusive? Meaning that they are independent of each other? OR do they coexist in harmony?
27 Social Dimension of and Law and Justice 28
The Rule of Law in a Free Society
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o “sovereignty of Parliament favours the supremacy of the law of the land” although they may appear to oppose each other as a form of check and balances but law of the land is the true sovereign.
Parliament can only exercise its power through statutes which must be created following the proper process (which require deliberation) and then interpreted by the courts.
o Entrenches the power of the courts
o Statutes become subject of judicial interpretation
o English parliaments has never except during revolutions exercised direct executive power to appoint executive governments.
Dicey’s reconciliation of the 2 has been largely unconvincing because rule of law prevents arbitrary government actions but if parliament is sovereign it should have plenary powers to legislate and not be bound by the rule of law. Clear contradiction in definition.
Jenning’s view on Dicey’s reconciliation (p96)30
Public authorities have wide discretionary powers even in the time of Dicey.
o Take property without compensation during war or for purpose of reservoirs o Compelled to leave work in order to serve jury or military
o Liberty restrained in times of war o Jailed indefinitely for contempt of court
Laws are often passed quickly without deliberation (careful consideration)
o When a bill is passed is will become the subject of judicial interpretation unless government provides otherwise. If govt dislike the interpretation given they can simply reverse the interpretation by inserting a new section or make alterations to clarify the legislation. Dicey’s reasons why we don’t need a Bill of Right (p97)31
Bill of Rights is not necessary
Charters of rights give rights but often don’t specify a remedy for breach of mechanism for enforcement
Rights given in legislative form are always accompanied by a means of enforcement within the legislation itself so to have a bill of rights would be repetitive and inefficient.
Because Charters of rights are considered extraneous to the ordinary body of law – they can be susceptible to being suspended in times of emergency. Where rights are inherent to the system they are less susceptible to this. Then what is the point of them?
Other reasons purported by John Howard (1996) that he calls great pillars of Australia democracy 1. Inherited anti-authoritarianism and individualism
2. Parliamentary system bicameralism keeps check and balances 3. Independent judiciary judicial review
4. Independent free media and free press can instigate public pressure Rule of Law and Civil Liberties (Barendt p98)32
30 The law and the constitution
31
Introduction to the study of law of the constitution
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Does the rule of law provide an adequate framework for protecting civil liberties?
o Do we need positive rights of assembly, rights to form political parties, rights against excessive police action?
o Has Dicey exaggerate the extent to which courts are willing to use common law principles to restrain draconian legislation?
o Common law has clear deficiencies
Malone (1979) – phone tapping by post office not unlawful because there was no law forbidding it
Common law is slow to develop along the lines of human rights. Has Dicey’s view against Bill of Rights prevailed in UK? (p100)
No it has not prevailed
o Human Rights Act 1988 (UK) statutory bill of rights – incorporated the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 into UK law
o If statute is inconsistent with it only judicial remedy is a “declaration of incompatibility”
May trigger statutory amendments or
Amendments by executive order in extreme cases. Other ways to reconcile Rule of Law with Parliamentary Sovereignty
Presumption (to be known as an aspect of the principle of legality) – Statutes are not intended to alter the common law is frequently applied in Australia
POTTER v MINAHAM
(1908) – p100 FACTS - Word immigrant in Immigration restriction Act 1901 interpreted as excluding Australian born people returning from overseas thus preventing appellant was treated an immigrant.
HELD - Court rejected that and held that it is unlikely that legislature would
overthrow fundamental principles, infringe rights of common law without expressing clear intention to do so.
WATERSIDE WORKERS (1924) – p101
HELD - To overcome the presumption something equivocal must be found either in the context or the circumstances (Issacs J)
Principle of legality – is the legal ideal that requires all law to be clear, ascertainable and non-retrospective. It requires decision makers to resolve disputes by applying legal rules that have been declared beforehand, and not to alter the legal situation retrospectively by discretionary departures from established law. It is closely related to legal formalism and the rule of law and can be traced from the writings of Dicey.
R v HOME SECRETARTY (1998) – p102 – Lord Steyn
FACTS - Statutory language wide and unambiguous but Court held that the Home secretary acted unlawfully in fixing a minimum non-release period for a prisoner conviction of murder.
HELD - Courts don’t legislate in vacuum – statutes can be detailed but much goes unsaid because legislators assume that statute will be interpreted by court within the context of the great body of law and legal principles that already exist.
o Principles that even widely drafted discretionary powers must be exercise reasonably
o “these presumptions of general application not supplement statute but operate at a higher level as expression of fundamental principles governing both civil liberties and the relations between parliament, executive and the court. They operate as constitutional principles which are not easily displaced
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by statutory text”.
o “unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law”.
Lord Steyn found a broader principle that postulates that European liberal democracy is founded upon principles and tradition of the common law
COCO v THE QUEEN (1994) – p101 – Brennan, Mason, Gaudron & McHugh JJ
FACT – Coco’s conviction for attempted bribery of federal police quashed by High Court. Evidence obtained through secret listening device installed in Coco’s factory by
disguised police
o Invasion of Privacy Act (QLD) authorised installation o AFP Act (CTH) negated need for authorisation
HELD – neither of above could authorise unlawful entry by means which the device had been installed because there is a presumption that legislation had not intend so as to protect fundamental rights of individuals unless there is a clear implication that authority’s entry was intended.
o Invasion of Privacy Act (QLD) authorised installation perhaps construed as allowed to install but entry is a separate issue.
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5. FEDERATION AND POPULAR SOVEREIGNTY
5.1 Path to Federation
(p122)The lead up to Federation in Australia was a process that had taken over 60 years of effort and fluctuating public interest. The idea first appeared in 1890s and was heavily promoted by Sir Henry Parkes, the Father of Federation. It was not until the 2 conventions that the constitution was approved by the people via a referendum in 1898 and 1900 respectively. The draft approved draft was sent to and enacted by the British Parliament as the Commonwealth of Australia Constitution Act 1900 (IMP) which came into effect 1st January 1901.
Reasons for/against Federation in 1980s ( Parkinson p122)
Reasons for Federation Reasons against Federation
Economic benefits: Remove tariff barriers between states of the federation but the new issue was how trade policy should affect imports
National Defence: fear of a common enemy from the expansion of German interest and activities of the French.
Nationalism: the proportion of Australian born was increasing
Different Trade Policy: Victoria has protectionist policy whereas NSW supported free trade.
Size: Small colonies may lose their identities and be dominated by larger colonies such as NSW
Economic Cost: There was a chance that NSW had to subsidies Tasmania and South Australia
US: Negative sentiment/experience in the USA – civil war.
Others: disputes over land policy and electoral reforms.
Once the colonies agreed on Federation, problem arose as to how to structure the federation within the Westminster system of government ( Parkinson p123)
Since Britain did not have a Federal System Australia looked to other examples such as America, Canada and Switzerland.
Canadian model though to have a too powerful central government
The American model was deemed favourable because
o it protected the States’ rights. Some powers were left in Federal’s hands but most powers were within State jurisdiction. This was essentially the separation of powers.
o Also provided that the “senate should consist of equal number of members from each state while the House of representative should reflect the national distribution of population”
o Created a federal judiciary to decide whether the govt had exceeded its ambit of power o Supremacy of federal laws over state laws in the event of inconsistency s109
o Entrenchment s128.
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Whether appeals from HC should go to Privy Council ( decided that HC should be the final court of appeal for constitutional matters unless the public interest of another part of her Majesty’s dominions were involved).
Custom duties (decided that ¾ would be paid to state for the first 10 years of federation)
Deadlock provision (agreed that following double dissolution of both Houses, only an overall majority in a joint sitting of the Houses was required to resolve the deadlock)
The Act was finally passed in 1900
Assent by Queen was required because only an Act of the Imperial Parliament could provide legal basis for the federation of colonies
Although Aus largely adopted the US model it did not include a Bill of Rights
5.2. Human Rights and the Australian Constitution
The constitution framers did not include an express Bill of Rights largely because they were heavily influenced by writings of Dicey who was sceptical of the necessity to expressly guarantee rights in written constitutions. According to Dicey – Common law and political process will adequately protect civil liberties because the rule of law has already been integrated into the system. Also parliamentary sovereignty meant that they had the power to make and unmake laws and no other body besides parliament can override legislations drafted by parliament.
Our constitution had elements of Dicey’s Idea of parliamentary sovereignty but was subjected to judicial review where the C could invalidate legislations if inconsistent with the constitution. (Williams p126)33 Arguments against express human rights Arguments for express human rights
Rule of law will provide adequate protection. The need to preserve human rights is blatantly obvious and by expressing it in a written constitution would simply impair the image of Australia .
S80 (trial by jury), s116 (free religion), ss117 (anti-discrimination) already protected people’s rights.
There are many instances in history where rulers have set asides principles of justice, hence an express right provides outright protection
Parliament could act tyrannical which may in some instances arise from a dictatorship as in the case of Hitler during WW2.
For other arguments refer to Bill of Rights Section
5.3 Path to Real Independence
Many believed that independence was achieved with the enactment of the Australian Constitution but in hindsight, it was that clear that with the Colonial Validity Act operating (if law of colony was different ten English law overrides it) Australia was not free from any imperial legislation from British parliament. Limitations to law making after 1901 (p127)
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Doctrine of Repugnancy - if an inconsistency exists between colony and imperial law, imperial law prevails
Doctrine of extraterritoriality – ability to make laws affecting outside their territory (enforcement of law as another issue).
o According to Issac J (skin wools case) the new cmwth and its states were limited by the Doctrine of Extraterritoriality. There were 2 version
1. Moderate version – an exercise of colonial legislative power was invalid unless its operation had sufficient connection with the geographical area of the legislating colony.
2. Extreme version – a colony’s laws could have no operation outside its territorial borders at all.
The above were considered in the following cases COMMONWEALT v
LIMERICK
STEAMSHIP (1924) - p128
FACTS – s39(2) Judiciary Act 1903 (cth) invested State Supreme Court with federal jurisdiction in all matters listed in ss75 and 76 of the constitution – on condition there be no appeal to Privy Council from State Supreme Court in respect to those matters BUT inconsistent with Judicial Committee Act 1844 (imp) which permitted such appeals.
HELD – s39(2) valid not repugnant because the Cmwth of Constitution Act (IMP) was later in time - implied repeal of Australia Crts Act 1828
UNION
STEAMSHIP CO OF NZ v
COMMONWEALTH (1925) – p128
Provisions in Navigation Act 1912 (cth) invalid due to repugnancy with Merchant Shipping Act 1984 (imp)
Clearly contradicts the previous case (isn’t there an implied repeal?) COMMONWEALTH
v KREGLINGER (SKIN WOOL CASE) (1926) – p128
Issac J attempts to explain the disparity between the 2 cases above. Australian constitution (imp) superior to Judiciary Act 1903 (Cth) (later act).
HELD –
1 Under Judicial Committee Act appeals to Privy council depended on Order of Council which is an Imperial function performed by imperial ministers. Imperial ministers were responsible to imperial parliament not Australia.
2 Because it needed immediate operation of responsible administration a different emphasis was placed on Cmwth of Aus Constitution Act unlike the position with the merchant shipping act 1894 (imp)federal matters were left to us.
Elimination of the limitations on colonies’ law making powers after 1901 (Sawer p130)34 Statute of Westminster 1931 (imp)
o Freed the Dominions including the Cmth from Imperial restrictions by excluding the operation fof the Colonial Validity Act.
o Removed limitations via
S3 – removed any restriction upon the Cmwt’s legislative powers arsign under the extraterritoriality doctrine
S2 – removed repugnancy doctrine
o S4 - However the British parliament could still legislate for Australia but only with the “request and consent” of Cmwth Parliament
o Marked an important step in Australia legal independence
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However there were still limitations despite the Statute of Westminster
o The statute did not automatically apply to Australia, instead it was left for them to “adopt” under s10 of the Act. (Later Australia did adopt it in the Statute of Westminster Act 1942 (cth) which backdated the adoption to 3 September 1939).
o The statute did not extend the liberating effect of the Act to the provinces as well as the Dominion. Instead s9 preserved the existing legal position of states. colonial validity act still applied
The Australian Act 1986 (cth) (p141)
o Brought about the complete independence of Australia and the end to applications of imperial laws in the Australian states and expressly
– S1 – ended power of the British Parliament to legislate for cth or state – S2 – removed doctrine of extraterritoriality for states
– S3 – removed doctrine of repugnancy for states SUE v HILL (1999) –
p141 – Gleeson CJ, Gummow & Hayne JJ
Declared that UK was a foreign power. Decided that Australia becoming an
independent nation was an evolutionary process and reinforced by the Australia Act.
S1 Australia act – does not attempt to “exclude as a matter of law of the UK” instead it denies their efficacy as part of Australian Law by “terminating any appeals to Privy Council”.
The constitution had not changed but its operation has (“the constitution speaks to the present and its interpretation takes account of and moves with these
developments”.) ATTORNEY GENEARL (WA) v MARQUET (2003) –p144 – Kirby Dissent
FACT - Claimed the Australia Act was unconstitutional. He argued that s6 purported to impose new restraints on legislative power of state parliaments. There was a change of the constitution via a “back door” method and claimed the act was not really the “will of the people”
HELD – held that the Australia Act was unconstitutional on the ground that s6 purported to impose new restraints on legislative of state powers, impliedly amended ss106-107 of cmwth constitution by introducing into state constitutions new elements.
5.4 Popular Sovereignty
(p145)Much controversy surrounds whether the Australia Govt is a form of popular sovereignty. Unlike other
countries (e.g. india and USA) Australia’s constitution derives its validity from an exercise of British sovereignty and now directly from the people.
Why is the Australian constitution binding? (Lindell p146)35
Why is it binding in 1900 Why is it binding in 1986
The constitution was part of an act passed by the British Imperial Parliament
Its legal status was derived from the fact that it was contained in an enactment of the British Imperial parliament since British statutes were the original source of law in Australia.
changes since the enactment of the constitution (e.g. Statutes of Westminster, Australia act) affect the explanation as to what made the constitution legally binding.
the answer could be found in the words of the preamble of the constitution (i.e. agreement of
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its political legitimacy – derived from words in the preamble referring to the people of Australian colonies as having agreed to unite in a “federal commonwealth” (was approved by 60% of the eligible voters)
the people to federate” supported by the role given to them to alter the constitution gave support for the proposition that the constitution was a “people’s document”. Their acquiescence in its continued operation as fundamental law was what gave the constitution its legal force after 1986 till now.
Besides that nothing has changed from the position that the cth and states cant legislate inconsistently with it
o Development of aus’s independence has been in the eyes of international
community
o Inability of British Parliament to legislate for Aus in any other respect and our ability to repeal imperial enactment.
In short the constitution enjoyed its character as higher law because of the “will and authority of the people”
Is the Australian constitution a “people’s document”? OR problems with the theory?
William (p147)36 Irving (p149)37
Only 52% of eligible voters turned up to vote for or against constitution
Williams believed the constitution cannot be considered a “people’s document” because most women and many aboriginal people were excluded from voting
Williams also had difficulty with Lindell’s “acquiescence” (agreement) argument because Australians do not go about deciding whether to continue
acquiescence to existing constitutional structure. Instead statistics show the majority of people are largely ignorant of the constitution.
Irving argued against Williams that despite the low number of votes actually cast during the vote for Federation it can still be regarded as “popular process”. Just because many people did not vote doesn’t mean we can assume they disapprove of the constitution and so it would be wrong to conclude it was not a popular process.
“The people” is less about statistics and more about mechanism of voting, Once a public participatory process began (e.g. people were ware or hard a reasonable opportunity to become aware of the existence of the constitution) then even if some people did not bother to find out about the rules there is still implied consent to those rules.
Therefore it was the level of scrutiny and public debate that made it popular process.
5.5 The Australian Federal System
Federalism is a method of dividing power between the central and regional governments so that each are within their own sphere, coordinated and independent. (Bryce/Wheare’s view)
36
The High Court of the People
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Advantages Disadvantages
1. Robust constitution that anchors pluralist democracy – gets the advantages of localised govt and adv of centralised govt (Galligan & Walsh p207)38
Despite many similarities in policies there are also significant differences that reflect independent cultures of the States.
Process allows better policy options that are tailored to suit individual states.
2. Federalism can help secure democracy and human rights (Galligan & Walsh)39
Enhances democratic participation from double democracy because they can participate more directly so it prevents central govt from becoming too oppressive
Dual citizenship offers a freedom of movement between states.
3. Division of power prevents government becoming too oppressive . (Gillespie p209)40
Prevent govt from infringing on liberty of individuals. States are generally better than Federal to protect rights
The longer decision making process prevents hasty government decisions.
Helps enshrine “due process” by limiting arbitrary govt action
4. Federalism is not an old fashioned and impractical system of govt. Its flexibility allows for local needs to be satisfied and respond to international pressures of globalisation. It is especially useful in a country that is geographically large where citizens live in very different circumstances, like in Australia. (Twomey)
5. “Federalism removes the need for a Bill of Rights because it is a bill of rights in itself” (Galligan, Knopff & Uhr p209)
1. Federalism presents financial tensions between the state and Federal Govt (e.g. especially produce negative outlines in health sector) 2. The argument of the benefit of Federalism
allowing dissatisfied citizens to leave their state is only a luxury for those wealth enough to leave. An effective system should benefit all.
3. Removing federalism doesn’t not mean removing checks and balance
4. The argument that state government protects individual rights better than Federal govt is confusing state rights with individual rights (e.g. work choice rights, IR laws are state govt right not individual rights). It is hard to detect times where the Federal system has protected individual rights in Australia
5. Efficiency is created by the Federal system with its overlapping ad bureaucracy leading to a wastage of resources.
6. Larger states may often end up carrying to burden of little states
7. Questions whether the federal system really provides check on power. Even if it can be said the state governments through their distribution of power scrutinises the federal legislation, it is really the senate that is doing this. However the problem is senators do not have direct tie to any government below the cmwth(unless they are senator and mayor of the region). Also the operation of the senate s dominated by party politics
38 Australian Federation Yes or No? 39
Ibid
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6. INDIGENOUS PEOPLE AND THE QUESTION OF SOVEREIGNTY
6.1 Introduction
(p152)The idea of Aboriginal sovereignty gave rise to 2 competing ideas of sovereignty. To recognise both the sovereignty of the Crown and the Aborigines meant trying to find the right balance between the two with considerations of the practical implications that settlement had.
The English had a very different view of the land to Aborigines
English view – of radical title is the notion that land is not capable of beign owned by someone, instead the King is declared the owner of all land who then allocated land to noblemen who then passed or onto others. Crown was ultimate owner. View was also very individualistic.
Aborigines’ view – of land was very communal
Aboriginal Voting Rights (p153)
1 Prior to 1901
Aborigines other than freeholders were excluded from franchise (voting) - proviso s6 of Elections Act 1885 (QLD)
Disqualification in WA to aborigines – proviso of s12 Constitutional amendment Act 1893 (WA)
Other states had no such disqualification so s41 kicked in Did not ensure AP had right to vote (refer to below)
Women vote – only in WA and SA
2. Post 1901 Commonwealth Franchise Act 1902 (CTH) – extended franchise to women but rejected proposal for AP to vote arguing that they lacked the intelligence, interest or capacity to vote.
1962 amendment to Commonwealth Electoral Act 1918 (cth) – universal franchise including AP
1967 Referendum – remove discriminatory references & allow Commonwealth to take over responsibility of Indigenous welfare.
i. 90% YES changed s51(xxvi) , removeds 127 to include AP in the census
1983 - compulsory for all 3. Readings of
s41
S41 Constitution – “No adult person entitled at vote at State level can be prevented from
voting at federal election by Commonwealth Law” But this did not ensure Aborigines to vote at federal elections. This section given a narrow transitional interpretation:
i. If you had the vote at state level before 1902 then s41 allowed federal vote ii. If you were an aboriginal person turned 21 in 1904 and qualified for state
franchise; omitted from federal vote
iii. As people already 21 aged 21 in 1902 aged and died the benefit of s41 for AP would disappear.
Legislature and AP
Only in 1973 with the Whitlam Gvt and Justice Woodward that a report on Aboriginal land right was established. Although his terms were limited to the NT it was thought it would be implemented nationally
The aboriginal Land Rights Commission: Second Report included
o Promotion of social harmony and stability of Aborigines with the wider Australian community, provisions for basic compensation to the Aboriginal people
