LAWS1115 Summary Notes

Week 8 Lecture

Role of Parliament

  • Formally:
    • Parliament makes the law, executive runs things like police force, judiciary interprets law.
    • Legislation is ideally general (but, private acts), prospective (but not necessarily), and about rules for future conduct and affairs (law is not just prohibitions, it sets up systems and processes).
    • Subject to constitution, though few thick or even thin/procedural requirements. Rules mostly left to standing orders.
    • Royal assent required, but this is not a check on power.

Legislative power and other branches

  • No strict separation.
    • Parliament delegates SL to executive, independent agencies (ATO, Fair Work Aus), and courts (rules of court).
    • Judges also make law.
  • Parliament is distinguished by open process, representativeness, and fact that it is inherently political (media interest).

Parliament's real roles, order of importance:

  • 1. Responsible government, keeps executive accountable.
    • Question time (only MPs can be ministers) and committees (account for spending).
  • 2. Forum for debate and grievances
    • Parliamentary privilege. Any MP can raise issues large or small. (But, party discipline?)
    • Site for public protests and petitions.
    • Media interest is of practical importance.
  • 3. Approve/disapprove legislative agenda driven by Executive Ministers and bureaucrats.

The Constitution

  • s51 enumerates powers of Cth Parliament. Theoretically concurrent.
    • Peace, order and good gov't is a blanket term.
    • Important: Taxation, defence (state's can't raise army without consent, s114), immigration, external affairs, conciliation and arbitration of industrial disputes across state boundaries, corporations.
    • States can transfer powers to Cth temporarily.
  • Centralisation
    • Broad High Court interpretations of Cth powers:
  • Workchoices. Gov't wanted more than the conciliation and arbitration power. Used corporations power to make blanket laws for employees of corporations.
    • Crowding out states:
  • Defence, external affairs implicitly need to be centralised.
  • Taxation, high Cth taxes make State taxes impractical.
    • VFI:
      • 80% of taxation revenue goes to Canberra. Handed back out with strings attached. Universities set up by State legislation, but need Federal money, so obey conditions.
  • s109: Valid Cth law trumps inconsistent valid State law.
    • Workchoices: Cth law can 'cover the field', making any State law inconsistent.

State Legislative Powers

  • Not enumerated. Wouldn't be possible to list all possible powers needed.
    • So, parliamentary sovereignty, inherited from Westminster. Peace, welfare and good gov't imposes no limit. (Political: parliament/people's interpretation, not courts'.)
    • But, subject to Cth Constitution, and encroached upon by Fed power.
  • State Constitutions not entrenched. Amend by majority vote, flexible both in theory and practice compared to Cth.
    • Can't stand for parliament with 'office of profit under the crown': State parliaments were able to create detailed list of offices, and say that if you forget to resign you do so automatically.
  • Manner and form:
    • s53 QLD Constitution Act 1867: referendum requirement to change structure of parliament (Governor and Leg Assembly). Manner and form enforced by Australia Act 1986.

Legislative power: Executive dominance

  • Reasons:
    • Tighter party discipline than early days, with numbers to dominate lower house. Media jumps on controversy.
    • Legislation is complex, too much work. Detail has to be delegated to regulations.
  • Advantage: ability to develop policy/agenda, a bunch of independents would be reactive.
  • Hung parliament:
    • Change in parliamentary rules?
    • Opposition and private member bills more feasible?
    • Appropriations dominated by executive because it has to originate in lower house. Could opposition now pass bills to suck money away from budget?
    • Could PM advise GG not to assent?
      • GG is generally advised by executive: acts only on advice of the Cabinet… But it would be odd if the Prime Minister could veto legislation. The Crown is also part of Parliament: presumably, when assenting to legislation, is advised by parliament, not just executive.
    • What is the duty of an independent?
      • National interest? Constituency's interests? Election platform? Conscience?
  • I would argue, conscience primarily, but perhaps not to the extent of blatantly opposing electorate's wishes. There is a reason why we have representative, not direct, democracy.

Tute Reading: Referenda and Direct Democracy

  • Referenda: constitutional, or legislative. Constitutional required for Cth, and some manner and form State, Constitutional provisions.
  • Plebiscite: legally non-binding referendum, can be politically important.
  • s128 referenda:
    • Not quite direct democracy: Bill has to be proposed by Parliament.
    • Slender success rate due to conservative forces: Double majority (responsible for 5 failures), apathetic compulsory voters sticking with status quo.
  • Compulsory voting, same franchise as for House of Reps: Every person has a valid view on who ought to govern, but not so much on the legal controversies that go to referenda.
  • Referendum questions can be phrased how ever parliament (the executive) likes. Voters do not have to be shown the bill. Phrasing can influence the vote.
  • Spending:
    • Commonwealth spending is limited to a balanced booklet with 2000 words each for the yes and no cases.
    • State public spending is unlimited.

Week 9 Lecture

Euthanasia issue

  • Parliament is often more concerned about a vocal minority likely to vote on an issue than a favourable but less interested majority- so in a sense, a court concerned with community standards can be more democratic.
  • Territories: given self-government, but then had their sovereignty limited.
  • Odd case of competitive Federalism if something is murder in one State but okay in another.

What is representative democracy?

  • Are MPs delegates of electors? Or on trust (Edmund Burke)?
  • Should they act based on:
    • Party line? Many voters vote for a party, not an individual.
    • Campaign platform/promises?
    • Constituency's interests? You represent them.
    • National interest? More important than the interests of your little area.
      • But, interests vary. Even if you go with what the majority wants, does the majority know what is in its best interests?
    • Conscience/ideology?

Bicameralism: A 'lower' and 'upper' house

  • Senate is a house of review, not just (or, at all now) a State's house. Lets the tea cool down.
  • Strong Senate in Australia:
    • Can veto anything, including budget and taxation measures, but can't put these forward.
    • Can't ram things through overnight, but trade-off against efficiency eg. in emergencies.
  • Less representative than lower house:
    • Equal numbers from States with different populations
    • Continuing body with 6-year staggered terms.
      • Except when GG is advised by Cabinet to call a s 57 Double Dissolution.
  • Queensland: No upper house
    • Labour got rid of conservative, appointed upper house by stacking it.
      • Why appointed in the first place? 19th century ideals, distrust of the mob.
    • Should we bring Legislative Council back now that upper houses are elected with PR?
      • Would require a referendum under manner and form.
      • Problems without it? Legislation rushed through, no effective committee system in lower house, unstable with frequently changing majority?

Representative Government vs. Representative Democracy

  • High Court: Representative government is implied in the Constitution.
    • ss 7 (Senate), 24 (Reps): directly chosen by the people
    • s 64: Ministers must sit in Parliament
    • s 128: Referendum required to amend constitution, mix of representative and direct.
  • But, Constitution prescribes few rules of representative democracy:
    • No explicit right to free speech
    • ss 8, 30: can't have two votes, but no explicit right to vote.
    • ss 9, 16, 31, 34: Method of election, number of MPs left up to parliament.
  • Danger of constitutionalising the obsessions of one generation
    • eg. s 44 disqualifications. Subject of foreign power? Bankrupt (even worse, opens way for bribery of those who could lose their seat, problem for business risk-takers…)? Reflect 19th century concerns.

Who sets the ground rules?

  • Westminster tradition of leaving political rules to parliament
    • eg. AEC set up under statute (part of 'integrity branch')
  • vs. Entrenching political rights and processes
    • eg. Implied rights, ACTV: limit on political communication must be proportionate and adapted to some competing end (like defamation law).

McKinlay's Case (1975)

  • 'One vote, one value'
  • 1970s, zonal distribution of State parliaments. In QLD, country seats about half size of city. This distribution of course maintained by those elected under it. Justifications?
    • Some seats would be geographically huge. Does this matter?
    • Areas with few people but economic/cultural importance, ie mining and agriculture. But, still seems undemocratic.
  • Federal House of Reps constituencies not zonal. Allowed at most 20% difference in size at time of mapping.
  • McKinlay challenged the 20% allowance, arguing for one vote, one value.
    • Barwick CJ: 'mere slogan or political catch-cry'. Not rooted in the Constitution, which for example guaranteed 5 MHRs at least to each original State. s 24 requires total number of electorates to be proportional to state population, not of equal size. Constitution also says nothing about State Parliaments, which is what McKinlay really wanted a basis to attack.
    • Murphy: Dissented, looked to US precedent, said should be as equal as mathematically possible.
      • Chosen implied chosen by all capable of choosing. Implied, as in the US model, a system in which all such people have equal voting power.
    • 3 others: 'chosen by the people' implied an outer limit against gross disparities, but 20% was fine.
      • Stephens: Representative democracy is a spectrum. The system used must fall within that spectrum, but no single requirement is essential.

Roach's Case: Universal Suffrage

  • Parliament can of course exclude people from voting: children, the mentally ill.
  • Previously, prisoners serving a sentence of 3 years or more couldn't vote. Howard government banned all prisoners from voting.
  • High Court:
    • Universal adult franchise is implied into Constitution due to 'changed historical circumstances including legislative history': it is no longer okay to, eg., ban women or indigenous people from voting.
    • Parliament can only restrict this franchise with 'substantial reasons'/reasons proportionally adapted to some aim.
    • Arbitrary to exclude short-term prisoners, but excluding longer term prisoners okay and adapted to aim of symbolic punishment for their crime.
  • Not an individual right to vote: can't sue if your name is left off the roll. Just a means for you to get the court to review legislation that restricts the franchise.
  • Gleeson:
    • Parliament can not legislate to remove universal adult suffrage. Why? Because, although in 1901 'directly chosen by the people' did not mandate adult suffrage, they do now.
    • An arbitrary exception is inconsistent with direct choice by the people. Exceptions must have some rationale, a rational connection to community membership or capacity to choose.
    • Setting a length of sentence marks an attempt by parliament to identify what counts as a crime serious enough to deserve a symbolic removal of one of the privileges of community membership, voting. Abandoning any such attempt is arbitrary, and not permitted. Identifying a sentence of 3 years, or possibly a shorter sentence, is permissible.

ACTV (Reading)

  • Mason CJ:
    • Assumption vs implication: implications are in the document itself, assumptions are not (eg. assumed that Senate would protect States)
    • Reference to McKinlay: Found principle of representative government in ss 7 and 24.
    • In order to be achieve the purpose of representative government, government must be accountable to the people and know the views of the electorate. Free political communication is necessary for this to occur.
    • This freedom is not divisible: can't be limited to Federal level
    • 'Public participation in political discussion' is central to the political process.
    • The test:
      • Distinction between restrictions on ideas and restrictions on means of communication. The former needs a very compelling justification.
      • Restrictions of means of communication are more justifiable.
      • The Court must consider whether the burden on free communication is proportionate to the attainment of a competing public interest.
  • Deane, Toohey and Gaudron:
    • The legislation was invalid, violated the implied freedom. The freedom extended to political discussion at Commonwealth and State levels.
  • McHugh J:
    • ss 7 and 24 guarantee more than voting: they guarantee representative government, which requires elected representatives, but also that those representatives be in a position of political power and that they be answerable to the people.
    • ss 7 and 24 refer to the Federal electoral process. There is a right to freedom of participation, association and communication in relation to that process.
      • McHugh J's judgment was narrower: limited to the Federal electoral process.
  • Dawson and Brennan JJ:
    • Recognised some limit, but did not find the legislation violated it. Representative government can survive without paid political advertising during election time.

Week 10 Lecture

The State: A body politic

  • Nation-state with sovereignty, or 'State' of Queensland
  • A formal entity.

The Executive Government

  • What people call 'the Australian government'
    • A political entity, usually understood as the Ministry of the day (Cabinet + PM, or at State level Premier + Cabinet).
    • 'The Australian government' is not a legal entity. Exists, but as a fuzzy political concept.
      • Is a local Labour MP part of the Australian government? Not a Minister or part of executive, but member of dominant party.
      • A public servant at Centrelink? Centrelink is apolitical, but part of the wider bureaucratic power that we could think of as the Australian government.

Constitutional blind spots

  • Queen and GG are all over the Constitution, but no mention of PM and Cabinet.
  • But, Federal Executive Council mentioned in ss 62, 63:
    • Formally, a key mechanism.
    • FEC in reality is two senior Ministers, doesn't have to include PM. Attend GG and formally give papers to sign.
    • s 63: GG in council is GG acting with the advice of the FEC.

The Crown: 'verbally impressive mysticism'

  • In a monarchy, the Crown was the sovereign and source of all public power.
  • In our Constitutional Monarchy:
    • Represented by GG, who is appointed by Queen, on the advice of the Prime Minister.
  • Crown is schizoidal:
    • There is a crown in right of Australia, a Queen of Australia. Also a Queen of each state: problem if we have a national referendum for a monarchy?
    • Different manifestations of the crown in judicial, legislative and executive roles.
  • Typically, the Crown refers to the executive power: defence, taxation, etc.
  • But also a role in parliament.
    • Signs off on legislation. What if PM advised not to sign? Better advice is, in role as part of parliament, act on advice of parliament (not the executive).
  • Our constitution is built on conventions as much as written rules.
  • Responsible government:
    • Crown is subject to constitutional conventions. GG operates on advice of Ministry, except for rare reserve powers (eg. dismissing PM).
    • Ministry sits in and is responsible to parliament.
      • Non-MP can sit for three months. Senator was appointed PM when Harold Holt died.
    • This political accountability is simplified but weakened by party discipline:
      • Executive not held to account by its own dominant party
      • But, nice simple choice of brands and leaders on polling day: which do I trust for 3 years?
    • The Crown/Executive is subject to the law
      • Accountability through administrative law. Especially:
  • Judicial review and merits review. Ideas originally developed by independent judiciary at common law: not just conformity with law, but due process, right to appear.
  • Integrity branch (eg. Ombudsman) and open government (FOI). Executive is full of elements designed to keep other parts of itself in check. Police are investigated not by themselves, but the Crime and Misconduct Commission.
    • Exception: Crown 'prerogatives'.
      • Some still unreviewable, others now reviewable. Court can at minimum decide whether the power exists and what it is, even if not whether it was exercised correctly.
      • Three kinds:
  • Power to do stuff. International relations, diplomacy, war. Preserved in s 68 of Constitution: GG is commander-in-chief. Also power of mercy, especially State Governors.
  • Preference or immunity. Priority of debts (first dibs on bankrupts), Crown not bound by legislation unless explicitly.
  • Property rights: Mineral royalties (if you strike oil in your backyard, it's not yours- you need a licence to exploit it), foreshore.

Tax and Spend

  • Key monopoly power is taxation. Even more so than defence: need money to fight war.
  • Legally, a tax is a compulsory levy for public purposes, not as a fee for service (eg. licence or toll).
  • Parliamentary oversight: tax must be struck by an Act, not a prerogative power now.
    • But, Constitution ss 53, 55: must originate in the lower house, link back to it being a power of the executive (which controls the lower house).
  • Taxing power theoretically shared. But:
    • Uniform income tax since WW2. High Federal Tax made State taxes impractical.
    • Constitution s 90: Commonwealth has exclusive power over customs, excise, bounties.
      • Australia was created as a customs union. At the time, economy based on goods.
  • Executive power illustrated:
    • Commonwealth is the largest single employer, $300 billion budget.
    • Executive is complex, multi-layered:
      • Some arms in tension, eg. dept. of environment vs. dept. of energy.
      • Some arms independent, eg. AEC.
      • Some deliberately provide a check on others. Human Rights Commission, Auditor-General.

Federalism, Executive Power and VFI

  • VFI:
    • Commonwealth gets 82% of taxation revenue, States 14%, local 4%.
    • On its face, Constitution s 51 enumerates limited legislative power to the Commonwealth. Doesn't include education… so why do we have a Minister and Department of Education?
      • s 96 tied grants. Large sums of money given to States on conditions.
      • Direct expenditure (eg. to universities) with conditions.
      • One exception: can't use spending power to set up a whole system with criminal sanctions, eg. licensing for doctors.

Reading: Allan Fenna, Commonwealth Fiscal Power and Australian Federation

Introduction

  • VFI:
    • Cth has half the service delivery responsibilities, 80% of revenue. So, need to transfer funds to States.
  • Good or bad?
    • Good: Adapting constitution to new circumstances. Tied grants allow Cth to promote national interest in areas where it would otherwise be barred.
      • Bad: If we want Federalism, this is a problem. If we don't, why have it at all?

Constitutional Status

*Constitution here explicitly allows the Commonwealth to attach any conditions.

  • The theoretical idea of division of powers between the levels of government is not how our Federal system operates in practice.
  • Often bypass states and give straight to bodies over which they have no legislative control, eg. Unis.

The Reason for Tied Grants

Fiscal Imbalance and Modern Federalism-

  • VFI is common in Federal systems, but extreme in Australia.
    • Unrestricted parallel taxation powers.
    • Progressive taxation easier at national level (at lower levels, corporations could dodge). Demand for redistributive social programs requires progressive tax.
    • Poorer areas want to draw from common pool, not their own.

Week 11 Lecture

(Continued from Week 10)

Power to Spend not unlimited: Pape's Case

  • Mr Pape the Academic challenged the $900 stimulus payment.
  • This spending was not supported by the s51(ii) taxation power: that is a power to tax, not a power to do anything involving taxpayers.
  • If Pape had won, it would have cast doubt on lots of things, eg. University funding.
  • He lost, but the court's judgment cast doubt on breadth of power to spend. Not quite clear where it comes from.
  • High Court:
    • s 61 executive power of the Commonwealth… execution and maintenance of Constitution and laws…
    • Court basically accepted that the power can be used to do 'national things'.
      • eg. Bicentennial party; but can't use it to create criminal sanctions/whole regulatory scheme (T-shirt).
  • Could give money to Unis on conditions, but couldn't pass a law forcing them to take the money for example.
    • What about universities? Is higher education a problem of national character/urgency?
    • ss81,83 NOT sources of power to spend: all they say is that budget must go through parliament, does not give parliament power to spend on whatever it likes.

Power to spend can seem unlimited: Government Advertising

  • How is government accountable for this spending? How can we be sure that executives don't abuse this power to maintain their incumbency?
  • Combet's case (Workchoices Advertising case):
    • A lot of money spent on advertising before draft was even before parliament. Winning over public support and thus pressuring parliament.
    • Combet lost: Appropriations a political matter. If parliament wants more control, needs to insist on more detailed budgets.
  • Government advertising
    • Necessary public service? Representative government requires flow of information from gov't to citizens.
      • But, in Combet, the legislation hadn't even been passed yet…
    • Or, incumbency benefit, about branding the executive?
      • Remind people what a smashing job the government is doing.
      • Arguing for controversial government policies.
  • Government needs to be able to argue for its policies.
    • But, should it be doing so with $100s of millions of taxpayers' money?

Onto week 11 topics

Accountability

  • Aldons: In a strict sense, means giving an account or explanation to someone empowered to obtain it.
  • Evans: Ability to compel governments to account for their actions.
  • Accountability:
    • Oversight: by a body able to demand explanations, or review decisions.
    • Some transparency, openness of process/reasons. But only some, or it will be too inefficient, unable to float controversial ideas, etc.
    • Consequences: sanctions or incentives. Political as well as formal/legal.

Classifying accountability mechanisms

  • Political or informal accountability
    • Elections. An important but crude mechanism: doesn't allow us to show our opinion of particular policies.
    • Media, public opinion.
  • Oversight mechanisms: Not legalistic, but not purely political.
    • Parliament, eg. committee enquiries.
    • Extra-parliamentary integrity bodies. Parliament is too small to keep up with everything the exec does, executive is too big and complex.
  • Formal/legalistic mechanisms:
    • Tribunals (eg. AAT). Power to make binding decision.
    • Courts: judicial review of administration. Argue that government has acted unlawfully, or just contrary to the rule of law (no due process, etc.)

Responsible government and parliament

  • Cane & McDonald: responsible government = integration rather than separation of legislative and executive branches.
  • Aldons:
    • 19th century ideal of responsible parliamentary government.
    • Accountability of Ministers/government to elected assembly assumes a relatively independent parliament, loose alliances, etc.
      • But would we really want weak government falling every 6 months or so?
    • Aldons says, house of reps is party government.
      • Strong Cabinet government relies on party unity. Responsible party government, parties as competitive brands.
    • Only in Senate does the old responsible parliamentary government idea still come into play:
      • Different voting system and 6 year terms make it difficult for government to get majority.
      • Less democratic voting method actually makes it a better accountability mechanism.

Parliamentary oversight

  • Relatively ineffectual, but not impotent, overseer of government activity.
  • Oversight over legislation: 'limited'
    • Drafts come from executive bureaucracy. Necessary if we want strong, coherent policy.
    • Some debate. Perhaps committee inquiry, invite submissions from people.
    • Power to disallow delegated legislation, particularly scrutiny committee.
      • But, don't have time or expertise to review all SL.
  • Oversight over administration:
    • 1. General debate.
      • Parliament can talk about whatever it likes, subject to Standing Orders. Opposition can move matters of public importance to grab media attention: Parliament stops, debate on that issue ensues.
    • 2. Question time.
      • Questions directed to PM and Ministers in lower house, gov't leader and Ministers in Senate. About an hour per day.
      • Two types:
  • Without notice. Oral, point-scoring. But, show is necessary to get media.
  • With notice. Written, digging for detail. Minister obliged to answer, a bit like FOI.
    • 3. Committee inquiries.
      • Can look at legislation, policy in bills gov't wants to pass.
      • More importantly, estimates (expenditures). Summon any public servant or Minister, ask anything about what was spent and where.
      • Inquiry into specific executive action, particularly in the Senate. eg. How are immigration systems so bad that Australians got deported?
      • Oversight of non-judicial arms of integrity branch. The watchers need to be watched, and this is done by committees.
    • 4. Grievances.
      • Adjournment debate; MPs can raise issues of concern to them/constituency.
      • Local MPs who want your vote can be like a mini-ombudsman.
  • Those are about information, political embarrassment… but what about sanctions?
  • Conventional sanctions:
    • Ministerial resignation for misleading… But, not really. More political pressure now.
    • Parliamentary Committees can summon public servants, Ministers. Could hold you in contempt if you don't show up, or lie.

Parliament, accountability and outside bodies

  • Aldons (former clerk of House of Reps):
    • Focus on what parliament can cope with: can't hold $360bn executive to account.
    • Don't bemoan need for other bodies like ombudsman. They are more effective, have more resources and can develop expertise that MPs don't have.
    • Perfect accountability would not be good. Gridlock.
  • Evans (former clerk of Senate):
    • Paradox: extra-parliamentary bodies are established by and report to parliament, same parliament we consider degenerated by executive dominance.
    • We try to put outside bodies in the stratosphere, above the swamp of politics… but they need politics to be successful. Need support, or the executive can get rid of them.

Executive accountability and responsible government: Two case studies

  • Murray-darling basin authority:
    • River system in decline. Competitive federalism? Founders didn't foresee impact of each state looking after its own interests.
    • Political accountability failure? Farmers will change their vote, armchair environmentalists won't.
    • Gov't set up independent authority. Set up by executive, but expert panel, meant to come up with real ideas, not political popularity stuff. Released a plan, which is now being ignored because it's unpopular.
      • So: you can't avoid the politics.
  • Climate change, pricing carbon:
    • Multi-party committee. Hybrid model: cabinet secrecy.
    • Why the hybrid model?
      • Hung parliament, need to involve Greens and independents in policy-making to keep their votes.
      • Why not a regular parliamentary committee inquiry? Anyone could make a submission, media would report on everything. Committee members might take partisan positions, put on a show, rather than rational discussion.