LAWS1115 Lecture 1

Week 1: Introduction & Scope of Public Law


  • James Allan, ‘A Defence of the Status Quo’ in Tom Campbell et al (eds), Protecting Human Rights (OUP, 2003). 1
  • Larry Alexander, ‘Introduction’ in Larry Alexander (ed), Constitutionalism: Philosophical Foundations (CUP, 1998). 12

Course expectations

  • Resources
  • Text: Clark (3rd ed)
  • ‘Learning Guide’ – Readings
  • Course website (eg. tutorial guides)
  • Assessment
  • 30% media reflection
  • Find one or two newspaper articles on the Bill of Rights debate and critique
  • 70% Final Exam
  • Is your book missing pp 47-8? Graeme Orr’s copy does…

Thematic Road Map

  • Constitution is the ultimate source for types of power and layers
  • Concern to put limits in public power
  • Restraint of power (afraid of abuse of power)
  • Historical: USA, France
  • Enabling power
  • Accountability
  • Political, legal – act within legal powers

Rule of Law

  • The notion that the government as the people are answerable to the law (and debatably, that the law must be known in advance, rather than retrospectively)
  • Thin View: All people, no matter how important, are answerable to the law (in particular, government agency and the PM)
  • Thick View: Restraining governmental power eg. Legislation restraining retrospective ruling

Nature of public power

  • Public Power: the sovereign power to govern for a community
  • Control over public monopolies (Defence, tax, adjudication etc)
  • Responsibility for vital or beneficial services – whether essential for flourishing (eg. education, health), redistributive (eg. welfare) or communally binding (eg. arts)
  • Regulation for co-ordination
  • eg. contract and trade practices law underpin market

Private Power

  • The power that flows from individual or corporate wealth, charisma or other resources
  • Different type of legitimacy between Public and Private Power (voting by shareholders is not a democracy)
  • Private power can display similar symptoms to governmental power
  • Can still tend to monopolies, particularly where economies of scale arise
  • Rent-seeking behaviour is tax-like (eg. bank fees)
  • Markets can self-regulate (eg. rules set in industry-wide contracts, adjudicatory bodies)

Public Private Power Overlap

  • The two types of power can be mingled
  • License of toll roads
  • Universities established by Acts of State Parliament, funded by Federal, Regulation and accreditation can only be granted by government

Sources of Law Making Power

  • Australian Constitution s52 ‘to make laws for peace, order and good government of the Commonwealth’
  • Queensland Constitution s2 ‘to make laws for the peace welfare and good government of the colony’
  • A law CANNOT be challenged on the grounds that it does not further ‘peace, order/welfare, and good government’ – phrase taken as a general platitude rather than a legal requirement
  • Extreme Cases: Cannot remove ALL PEOPLE from a territory, as to do so removes the right to make laws – upper limit on law making power
  • Strict Limitation: Judicial Power for Ch III Courts (established by Chapter III of the Australian Constitution – High Court and Federal Courts) cannot overlap
  • Strict Limitation: Parliament cannot determine guilt. They can, however, hold people in contempt (holdover from British Parliament)

Two views of constitutionalism and legitimacy of public power

‘Thin’ Constitutionalism (aka ‘political constitutionalism’)

  • Constitutions are an enabling source of power
  • They enable the business of governing
  • Government is elected by the people, and made legitimate by the electoral process

‘Thick’ Constitutionalism

  • Liberal constraints on power/government (imported from the USA)
  • Leads to a ‘thicker’ rule of law – constitutional limits of due process, cruel/unusual punishment, etc.
  • Leads to constitutional rights (or implicit rights being found in the constitution by the High Court)
  • Constitutional division of power – levels of government (state and federal) or branches of government (judicial, legislative, executive) or Parliament itself (multiple houses)
  • Legitimacy of government is tied to these legal (constitutional) restraints

Division and Source of Public/Governmental Power

  • Division of Power (by type)
  1. Judicial
  2. Legislative
  3. Executive
  • Formal view – powers distinct and check/balance each other.
  • Branches of government jostle for power
  • Division of Power (by level of government)
  • Federalism
  • Formal view – power shared in Australian Constitution - states signed over a specific subset of powers to the Commonwealth, and kept the rest for themselves
  • Reality? Dominance of national government
  • Clear example is vertical fiscal imbalance
  • Federal Government gets 80% of taxes, and as such have gained control over a number of areas that aren’t strictly within their constitutional purview indirectly by controlling funding allocation

Judicial Power & Rights

  • Formal: Judges apply/interpret the law to resolve disputes (law > justice)
  • Actual: All disputed cases involve legal or factual ambiguity
  • Judicial oath: ‘to do justice according to law’
  • Nature of rights: human rights prior to law?
  • Source of rights: constitutionalised or legislated?
  • Australian/UK tradition favours parliamentary sovereignty
  • Australian Constitution contains relatively few explicit rights
  • Its focus is on division of power

Bill of Rights debate

  • Political or Judicial – which body should have the power to decide on rights?
  • Judicial Accountability – Who are judges accountable to?

Constitutional or legislated? Illustration of debate: the right to vote

  • In what sense do you have a ‘right to vote’?
  • Australia: Constitution only says that parliament is to be ‘directly elected by the people’
  • High Court interprets this as a limit on legislative power.
  • Parliament cannot legislate to unreasonably restrict universal adult franchise
  • Who defines ‘adult’ – court or parliament? Who defines ‘unreasonably’?
  • Are you enrolled to vote?
    • Howard government law only gives ~ 1 day to enrol after election campaign is formally begun
    • NB: GetUp! is launching High Court case this week to strike down this law
  • Should courts be involved in shaping fundamental political and social questions?
  • Judicial review of legislation: unaccountable judges versus elected parliament?
  • Limit judicial review: majority ignores minorities?, executive government controls parliament, potentially entrenching its interests?

Parliament & Representative Democracy

  • Political accountability: representative elections, constitutional referenda
  • Parliamentary Sovereignty derived from and resides in the people
  • Our constitution originally an Act of the British Parliament, but has been ‘repatriated’ as an Australian document
    • Formal view: parliament supreme legislative (and deliberative) forum
    • Reality: High Court Authority to strike down legislation on constitutional grounds
  • Executive dominance of the political system (see Whitlam, 1975) and party lines

Executive Power – ‘The Government’

  • Crown (represented by ministers/governors/governor general)
  • Constitution formally vests all power in Crown
  • Unwritten convention: Crown acts on advice of Ministers, except for ‘reserve powers’
  • Even dissolution of parliament – not set by constitution beyond a maximum duration, but dissolved by the power of the governor/governor general on advice/request from prime minister/premier
    • Formal view: ‘responsible government’ = executive drawn from and responsible to parliament (Compare US)
    • Reality? Executive dominance of lower house of parliament, less respect for parliament as centrepiece
    • Modern states are too large/complex to be overseen by a single body like parliament

Executive Accountability

  • Old UK doctrine of parliamentary supremacy and ‘political constituion’
  • Compare US idea of 3 branches checking each other
  • A fourth, ‘integrity branch’?
  • Arms of executive, but independent of political control eg. ombudsman, electoral commission, crime and corruption commissions (overseeing police, public sector)
  • Who watches these watchers? Well, they report to the parliament …
  • Freedom of information legislation – ‘open government’