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Public Law Notes
Jordan Rowland-Wild
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1B – Constitutionalism and the Rule of Law
B&W (textbook) 1-3
Constitutional Law
• Commonwealth of Australia Constitution Act 1900 (Imp) – Australian
constitution came into to force 1 Jan 1901.
• Mix of US and UK model – Washminster hybrid.
• UK: representative government (elected officials) & responsible government
(executive is responsible to Parliament).
• US: Judicial Review, Federalism, Separation of Powers (designed to protect the
people from power of govt).
• AV Dicey – defined “constitutional law “ as all rules which directly or indirectly
affect the distribution or the exercise of sovereign power in the state.’
• Can be written (AU, US) or unwritten (UK) constitutions, Although even written
Constitution relies on unwritten understandings (constitutional conventions)
• Flexible Constitution – laws can be changed with same ease and same manner by one
and the same body.
• Rigid Constitution – certain laws known as fundamental of constitutional cannot be
changed in same manner as ordinary laws.
Constitutionalism and Judicial Review
Constitutionalism – Lecture slide 1(b)
The idea of constitutionalism can be seen as simply a description of how power is distributed
and which institutions can do something with the force of law. E.g separation of powers
** Marbury v Madison (1803) 5 US (1 Cranch) 137.**
Issue: whether law repugnant to Constitution can become law of the land.
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The constitution is either a superior paramount law, unchangeable by ordinary means,
or level with ordinary legislation.
If an Act is repugnant to Constitution (is void) does is notwithstanding bind the
courts? … The Constitution and not an ordinary act must govern the case. It governs
the courts and the legislature.
Constitution is superior law; law repugnant to it is void.
** Cooper v Aaron (1958) 358 US 1 **
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The constitution is binding, along with Supreme Court decision, on the States.
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In Australia the High court is given original jurisdiction under s76 to hear all matters
regarding the constitution and its interpretation.
(3) Separation of Powers
Phillips & Jackson, Constitutional and Administrative Law:
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Legislature – making of laws (amending, repeal), Parliament
Executive – ministers with individual portfolios, the government, administration and
regulations: social welfare, housing, education etc.
Judiciary – the courts, Judicial Review, interpretation and application of the law.
Baron de Montesquieu, The Spirit of the Laws:
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Political liberty is found…only where there is no abuse of power.
To prevent this abuse, it is necessary from the very nature of things power should be a
check to power.
Tomkins – Public law - What are constitutions for? (pg. 4-6)
Three main tasks:
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Creation of institutions of State
Regulate relations between those institutions and one another and regulate the
relations between institutions and the people (citizens).
Specify the powers of the institutions and who has last say (eg. Parliamentary
sovereignty)
Numerous values a Constitution may seek to promote like Democracy. One must understand
these values to understand the Constitution.
POLITICAL AND LEGAL CONSTIUTIONS:
Political:
Is where those who exercise political power (govt) are held
accountable by political means (Parliamentary scrutiny). To be
effective requires vibrant political scene and scrutiny of govt by media
and Parliament, and democratic election.
Legal:
Means they are accountable to law in court (Govt sued by those who
disagree rather than lobbying). To be effective requires independent
courts and judges. Must see law as method of keeping govt
accountable. Dicey believed courts should play a small role. Placed
emphasis on ROL and Parliamentary Sovereignty…
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French - ‘The Future of Australian Constitutionalism’
Constitutionalism – adherence to constitutional principles & a constitutional system of
government. (Oxford Dictionary)
Henkins Constitutionalism:
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Govt legitimacy based on popular sovereignty (will of the people)
Prescriptive Constitution in form of superior law
Commitment to representative govt and democratic political institutions
Separation of powers – system of checks and balances
Respect by govt for individual rights – Universal Declaration Human Rights
Institution to monitor constitutional blueprint, limit of govt.
Respect for self-determination, right of “the people” to chose political affiliation.
Tamanaha – On the Rule of Law
Formal Theories – Alternative ROL formulations
Formal
versions:
1. Rule by Law
- Law as instrument of govt
action
Substantive 4. Individual Rights
Versions:
-property, contract, privacy,
2. Formal Legality general, prospective,
clear, certain
3. Democracy + Legality consent, determine content of
law.
5. Right of Dignity
and/or justice
6. Social Welfare
To
Thicker
autonomy
Thinner
- substantive equality, welfare,
preservation of community
Formal theories (prominent in Australia) focus on the proper sources and form of legality
(public, clear in meaning, prospective in nature etc), while substantive theories also include
requirements about concept of law.
The thinnest formal version of the ROL is notion that law is the means by which the state
conducts its affairs. Whatever a govt does it should do by law (becomes rule by law rather
than ROL).
Tamanaha:
Formal versions of the rule of law have substantive implications and substantive implications
still observe formal requirements.
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Three themes – Government limited by law
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Broadest understanding of ROL is govt limited by law, protection from arbitrary
power. Restraints on law making powers, current laws must be obeyed.
The sovereign is limited by law; law making power is limited by law.
Judiciary holds capacity to hold other arms accountable through legal means.
Govt can circumvent this by amending/repealing laws.
Key to successful implementation of ROL is setting limitations on governments.
Formal Legality
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Prospective laws, with the quality of generality, equality of application, and certainty.
ROL makes “it possible to foresee with fair certainty how the authority will use its
coercive powers in given circumstances and to plan one’s individual affairs on the
basis of this knowledge.”
May strengthen the grip of authoritarian regime with inequitable laws– formal legality
attempts to restrain this but also requires distributive equality and doing justice in
individual case. (threatens generality)
Close connection between capitalism and formal legality – protects rights of property
owners, contracts, and ensures predictability for citizens.
Rule of Law, not man.
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Law is non-discretionary, man is arbitrary will. Law is objective, man is subjective.
Law is to be shielded from human weakness: error, prejudice, bias.
ROL is grounded upon fear and distrust of others. The judge becomes the law
personified – unbiased, free from passion & prejudice.
Legal qualifications of judges, long-term appointment, procedural and substantive
process, independent through Separation of Powers.
ROL might become Rule by Judges – judges must be selected with upmost care, must
possess judgement, wisdom and character.
Dicey’s Rule of Law:
Three elements:
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supremacy of regular law, as opposed to arbitrary power in the discretion of a
monarch
equal subjection to law (mainly in the sense that officials are not exempt)
the law of the constitution is the consequences of therights of individuals as defined
and enforced by the courts
Turpin & Tompkins, British Government and the Constitution
Accountability
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Obligation of those with public powers and duties to justify and explain their
decisions.
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Accountability is retrospective; it is an obligation to answer after the event for acts or
decisions.
Demands those in power should not exceed limits of their authority
Accountability of govt is through democracy; elections. Expect that minsters, govt
will be held to accountability mechanisms.
Accountability may be direct, legal (taken in accordance with law), political
responsibility, remedial/amendatory after administrative decisions which affect
individual rights.
Accountability of minsters to Parliament, and through Parliament to the nation,
theoretical basis of English Constitution.
Rule of law: concluding remarks – slide 1(b)
Importance of the mutual reinforcement of the rule of law within a society and over time:
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The rule of law is not just a set of rules or a set of institutional arrangements but a
powerful combination of ideals and practices;
In the end the key appears to be a pervasive belief across society, amongst the
government and the governed, that law does indeed set limits on government power
The rule of law discussion draws to the judiciary as a branch of powers separated from two
others (=independent?), BUT:
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The risk that the rule of law might become rule by judges
Giving judges the last say or decisive say over the legal limits of power is not
everyone’s preference, when putting the notion of the rule of law into operation
Non-judicial methods for making government accountable are important
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2A - A Constitutional ‘Washminster’ Hybrid
Intro
Combination of the British system of parliamentary government containing an
executive responsible to the legislature with American federalism as ‘probably the
most striking achievement of the framers of the Australian instrument of government’
(R v Kirby; Ex parte Boilermakers ‘Society of Australia (1956) 94 CLR 254,
Dixon CJ, McTierman, Fullagar and Kitto JJ (B&W 40).
Structural overview of Australian system of public law
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Goldsworthy, ‘Australia: Devotion to Legalism’
In early cases the High Court established the Constitution was a compact
between the people and the States, not only a statute.
Australia combines the British system of responsible govt with the US style
federalism that distributes legislative, executive and judicial powers between
state and federal levels.
Ch 1 deals with Parliament powers and is detailed and comprehensive.
Alternatively Ch II (executive powers) is misleading and less clear.
Follows American model of listing legislative powers but saying little about
the state governments (they have general powers under their own constitutions
unless explicitly mentioned that power is withdraw).
Ch III deals with independence, structure and powers of judiciary. Vests
federal power in the High Court and other courts P creates (P can vest State
court with federal jurisdiction).
This has been interpreted as impliedly prohibiting the vesting of non-judicial
powers on Ch III courts or federal judicial power in any non-judicial body.
Constitution may only be amended by referendum procedure – 8 out of 42
proposals have been successful.
Australia took UK view on rights and has been described as a
‘paradigmatically utilitarian society.’ The framers feared judicial
interpretation of abstract rights could have unpredictable & undesirable
consequences. They wished to have discriminatory powers
The Parliament was said to enact plenary power as sovereign within the limits
of the Constitution.
Irving, Models for a Nation
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1890 Federation Conference – debates over various models US, Canadian etc.
Choosing sign posts, maps of other systems to not only chose a political model
but a type of political culture the new nation would embody.
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Analysis of other models – wanted strong British influence but with others
o “we want to see a union of strong colonies, each with its own local
traditions…local affections…own peculiarities…Australia could not
follow Canada in that respect” – Sir Samuel Griffith.
Australians desired state rights, and the need to see itself as distinctive as an
independent nation. Both arguments against a British model.
Canadian Constitution was too centralist and less liberal. Oppressive to its
provinces/states.
Australians acted as if immediate possibility that NZ would join even though
they saw the developed of its country into a different nation type.
Considered German and Swiss models. German nation power of old age
pension made it into s 51 (xxiii). Swiss contributed the referendum system of
amendment (only included in final draft) and a model of equal representation
for States.
Swiss did not have responsible govt unlike Canada.
Although wishing to stay away from scandal of associating with American
model (civil war, states laws divorce) they adopted Supreme Court and
senators being appointed from States.
Asserted through writing constitution and reflecting on character that they
were British meaning commitment to parliament, rule of law, and minimal
interference in peoples liberty.
Marriage of UK and US models – task of not creating a constitution but
shaping one to our national characteristics.
Stephen Gageler, Foundations of Australian Federalism and the Role of Judicial
Review (1987) Federal Law Review
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Australian Constitution embodies two cultural traditions; modelled partly on
US Const. it incorporates British notion of responsible govt.
Significance of the tension is in Judicial Review – framers intended to ensure
that govt would act to promote general welfare.
To protect private rights against the danger of majority but also the spirit of
the popular govt.
Responsible govt relied on the participation of citizens holding govt
accountable to the electorate. Representative govt meant a small number of
citizens were chosen to represent the interests of the population.
Separation of powers meant establishing organs of govt to each check one
another.
Aspiration for balanced parliament checking interest with interest, class with
class and ensuring no one arm could dominate its citizens.
Legislature was further divided into bicameral system (HOR & Senate)
exercising co-ordinate powers. And State and federal. Senators were chosen
from the States and a president was chosen to veto legislation
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