LLB107 Week 2 Tutorial
Foundational Concepts
Question 1
We encounter the exercise of public power on a daily basis. Can you list some examples
of recent interactions that you have had with the government? These interactions might
be with a government agency or department, or you may have utilised a government
service.
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Voting
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Political/ gov surveys
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Exec government- re school
Question 2
Read the summary of Joseph Raz’s theory of the rule of law on pages 10–12 of the
reading. Raz adopts a ‘thin’ or procedural conception of the rule of law. List the
principles or requirements that comprise Raz’s ‘thin’ conception of the rule of law.
(a)
(b)
Laws generally be prospective rather than retroactive;
Laws be open and clear;
Laws be 'relatively stable' and not changed 'too often';
There be open, clear and relatively stable rules and procedures for the making of laws;
The principles of natural justice (including '[o]pen and fair hearing, absence of bias,
and the like') be observed in the administration of laws;
There be an independent judiciary, with power to review the actions of government to
ensure that it conforms to the rule of law;
The courts be 'easily accessible'; and
The discretion of crime prevention agencies should not be allowed to pervert the law.
Read the summary of Lord Bingham’s theory of the rule of law on pages 12–13 of
the reading. Bingham adopts a ‘thick’ or substantive conception of the rule of law.
List the principles or requirements that comprise Bingham’s ‘thick’ conception of
the rule of law.
1. 'The law must be accessible and so far as possible intelligible, clear and predictable';
2. 'Questions of legal right and liability should ordinarily be resolved by application of
the law and not the exercise of discretion';
3. The laws of the land should apply equally to all, save to the extent that objective
differences justify differentiation';
4. 'Ministers and public officers at all levels must exercise the powers conferred on them
in good faith, fairly, for the purpose for which the powers were conferred, without
exceeding the limits of such powers and not unreasonably';
5. 'The law must afford adequate protection of fundamental human rights';
6. 'Means must be provided for resolving, without prohibitive cost or inordinate delay,
bona fide civil disputes which the parties are themselves able to resolve';
7. 'Adjudicative procedures provided by the state should be fair' (that is, a fair trial); and
8. ‘Compliance by the state with its obligations in international law as well as in national
law'.
(c)
What are the key differences between these two conceptions of the rule of law?
-
(d)
For Raz, the law should be clear, stable and predictable, whereas its content can be
immoral and unjust so long as the process by which it was made is clear and so long as
we know what the law is/ in contrast, for Bingham, the law should have a certain
minimum content, it should be fair, it should promote equality and non-discrimination,
it should promote human rights and it should be consistent with international law.
Consider the following scenario. In response to concerns about the decreasing
koala population in Queensland, the Queensland Parliament passes the Land
Clearing Prohibition Act 2019. The Act commenced on 12 July 2019 and makes it
an offence for all property owners in Queensland to clear trees on their land and
imposes a penalty of $5,000.00, effective from 1 January 2015.
Susan owns a house in Redland Bay. On 28 November 2018, she cleared all of the
trees in her backyard to make way for a pool. Susan has recently been fined
$5,000.00 for contravening the Act. Susan is outraged by this, because at the time
she cleared her backyard, she did not know that she was committing an offence
and she obtained all of the relevant approvals from her local council.
You are a Trainee Solicitor for a Brisbane law firm. Your supervising Partner
asks you to prepare a short memorandum on whether this Act infringes the rule
of law concept. Your supervising Partner asks that you consider the rule of law
from both the ‘thin’ and ‘thick’ perspectives when giving your advice.
“Thin” conception (Raz)?
-
Retrospective laws which change legal rights and obligations from a date prior to the
date when the legislation was enacted is clearly contrary to the ‘Thin’ ROL because
one of Raz’s most important concepts is that the law should be clear, predictable and
open- you should know it and you should be able to order your behaviour based on the
legal rules, as you know them. In this case, Susan could not possibly do this, as the law
did not exist at the time she acted, so she unknowingly committed an offence because
of the retrospective operation of the rule of law.
“Thick” conception (Bingham)?
-
Similarly, for Bingham, the law is not capable of being known in advance because it
has a retrospective operation- infringes criterion 1 of Bingham’s concept of the ROL,
because laws should be accessible, intelligible and clear and predictable.
-
Does it matter that the State was trying to comply with its international obligations
which is Lord Bingham’s criterion 8 of the ROL- It does matter. It is possible to comply
with the State’s international obligations while not passing retrospective laws- does not
benefit the State’s international obligations in any respect- make offence prospective
rather than retrospective.
Question 3
(a)
What is the difference between political constitutionalism and legal constitutionalism?
•
-
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(b)
Political constitutionalism (UK): the limits on government power are
primarily political (eg the electoral process).
The idea that political mechanisms control the exercise of government power e.g.
elections.
• Legal constitutionalism (USA): government power is limited by the law and
those limits can be enforced by the judiciary.
Legal constitutionalism limits government power by the law e.g. a written constitution
that has what powers the gov has e.g. re the passing of laws.
How are these concepts reflected in the Australian Constitution?
The Australian Constitution combines legal and political constitutionalism.
Representative and responsible government act as the fundamental constraints on
government power (political constitutionalism - UK).
The Australian Constitution uses the principles of federalism and separation of
powers to limit government power. These limits are enforceable by the judiciary (legal
constitutionalism - USA).
Question 4
Constitutions are generally described as ‘rigid’ if they are difficult to change or as
‘flexible’. How would you classify the Australian Constitution? What about the
Queensland Constitution? Which do you prefer and why?
(a)
•
(b)
In Australia, we have a written and rigid Constitution (like the USA, Canada).
• Most of the constitutional rules that limit power are found in the text of the
Constitution and are enforceable by the Courts.
• The Australian Constitution is difficult to change. It can only be amended by a
referendum: s 128.
Read s 128 of the Australian Constitution. What is the process for amending the
Australian Constitution?
In short: A referendum
Section 128 of the Constitution provides that any proposed law to alter the
Constitution must be passed by an absolute majority in both Houses of the
Commonwealth Parliament. If passed by both Houses, it is submitted to a
referendum at least two months, but less than six months, after it has been passed by
Parliament. In certain circumstances, a proposed amendment can be submitted to a
referendum if it is passed on two separate occasions by only one House of the
Parliament.
At the referendum the proposed alteration must be approved by a 'double majority'.
That is:


a national majority of electors in the states and territories
a majority of electors in a majority of the states (i.e. at least four out of six states).
Question 5
Traditionally, government power is thought of as having three ‘arms’ or ‘branches.' What are
they? Where are they located in the Australian Constitution and Constitution of Queensland
2001?
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Parliament (Chapter – Australian Constitution)
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Executive (Chapter 2- Australian Constitution)
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Judiciary (Chapter 3- Australian Constitution)