Clark's Chapter 1: The Scope of Public Law

A Summary.

Introduction

  • Public law includes the two large and conventional categories of constitutional law and administrative law
  • Constitutional law means federal or commonwealth
  • Public law is wider and includes state and territorial constitutional law
    • Also local government and parts of criminal law

Constitution – Government and the State

Constitution

  • Refers to a specific document
    • Constitutes the major branches of government
      • Executive
      • Legislature
      • Judiciary
  • Constitutional law combines elements of history, statutory interpretation and political philosophy
  • Public law emerged from history and often cannot be understood except in its historical context
  • British have an unwritten Constitution but in a literal sense this is nonsense
    • Uncodified
  • Most countries have a codified, written, Constitution
  • Large category:
    • 1. A Constitution as a frame of government which in many cases cats as a protector of rights where it includes a bill of rights. The United States Constitution is an example of this. The Australian Constitutions do not include a bill of rights (one of the few modern Constitutions not to do so) (though rights are scattered around them) but the Constitutions do provide a basic frame of government
    • 2. A constitution as a revolutionary manifesto such as the Constitutions in former and present communist states such as Cuba
    • 3. A Constitution as a tempered political ideal such as the Constitutions in much of Latin America which promise much and which are designed to meet long-term aspirations
    • 4. A Constitution as a modern adaption of an ancient traditional Constitution such as that found in the United Kingdom
  • Variants on these
    • Not all secular in nature

Government

  • Refers to political executive
  • Sometimes to the judiciary and legislature

The State

  • The organs of government
  • Body politic
  • State used to refer to the whole political organisation of the body politic

Sovereignty

  • Supreme legal power of the King
  • British acquired sovereignty over Australia by an act of State
    • Assertion by the executive using its prerogative powers to acquire territory
  • Cannot be challenged in the courts
  • General notion is that of supreme legal authority and usually means in relation to a country that it is not subject to the laws of any other country

Sources of Public Law

  • Two most important sources of public law are enactments and the judicial cases on the subject

The Commonwealth Constitution

  • Constitution of the Commonwealth of Australia Act 1900 (UK) is the highest form of law in Australia
  • Statute that constituted the Australian federation by bringing into existence both the States and the federal tier of government

The State and Territory Constitutions

  • Each state has its own written Constitution Act
  • Mixture of UK legislation and prerogative legislative instruments
  • Does not exhaust the scope of State constitutional law
  • State Constitutions have been largely consisted of ordinary statutes capable of being changed by an ordinary majority in the parliament

Delegated or Subordinate Legislation

  • Parliament cannot make all the legislation necessary
  • Most Acts of parliament confer a power to make delegated or subordinate legislation

++Imperial Law in Australia

The Common Law

  • Colonies either conquered or ceded or both
  • Already a system of law in place and the incoming power could choose whether to retain, replace or simply modify existing laws
  • Settled colonies even with inhabitants brought the whole English common law with them on settlement
  • Over time the common law changed through judicial decisions and Australian common law emerged

Imperial State Law

  • Local legislatures can repeal statues or amend them

Australian Common Law

  • British settlers brought the common law of England
  • Principles of equity brought over from England
    • Eventually became branches of substantive law
  • Over time modified
  • Only permitted to rule on matters brought before them

++The Royal Prerogative

  • Original royal authority apart from statute and is a part of Australian common law

The Conventions of the Constitution

  • Many practices not written down
  • Constitutional law is a mixture of history, statutory interpretation and some political philosophy

International Law

  • If there is conflict, domestic law prevails

Martial Law

  • May not maintain military force without consent of Parliament

Key Public Law Concepts

Parliamentary Supremacy

  • Doctrine that originated in England and that parliament may make or repeal any statute it chooses

The Rule of Law

  • Refers to general notion of constitutional government
  • All persons in Australia, be they citizens, visitors, residents or officials, are under a duty to obey the law of the land

Federalism

  • More co-operation

Responsible Government

  • Relationship between the legislature and the executive

Separation of Powers

  • 3 branches of government ought to be kept separate from each other to avoid the over-concentration of power

Due Process of Law and Natural Justice

  • Public officials should act in accordance with the law

Ultra Vires

  • Official action is lawful
  • Whether regulations or subordinate legislation is within the powers given by primary legislation

Judicial Review

  • Specific procedure provided for in the rules of each Supreme Court
  • Court questions of legal validity

The Protection of Human Rights

  • Liberty lies in the silence of the law