LAWS1116 Lecture 1

LAWS1116 L1

General Notes

  • 1115 focuses on representative government, separation of powers, and federal system with a focus on the state side
  • 1116 focuses on federalism and implied rights, with a focus on the national side
  • Additional readings will be recommended in each weeks guide
  • Lecture cases + required readings should take priority
  • Assignment is 1500 word case note due 4pm on the 04/10/10 – optional 30%
  • Short preliminary, basic analysis of one of the cases

What is Law?

  • Rights
  • Duties
  • Powers
  • Immunities

Fundamental Constitutional Law

  • Metalaw – law that defines law making and judicial decisions
  • The rule of law (knowledge of the law and its application to all, even government)
  • Constitutionalism and Judicial Review
  • Separation of Powers

Rule of Law Example

  • Road rules must be known in advance
  • Police exercise delegated powers of state government to enforce them
  • All government administrators are similarly bound
  • You must be taken to court to enforce the speeding ticket in a legally binding manner
  • Rules created by Legislated
  • Executed by the Executive
  • Enforced by the Judiciary

Constitutional Law

  • Goes to identify and define the powers of the three branches of government, and their respective limitations
  • Applies limits on law making abilities – constitution (as interpreted by the High Court) trumps government legislation

Types of Constitutional Government

  • Monarchy (ruled by one)
  • Aristocracy (ruled by an elite group)
  • Democracy (ruled by the common people)
  • Can be purely one of the three, or a mixture of two or three categories.
  • Australia made democratic by the Monarch acting only on advice of an elected group, answerable to an elite group of judges
  • Primarily a representative (elected) democracy, rather than a direct democracy (referenda)

Responsible Government

  • Executive power only executed on advice of elected representatives with political support
  • Not a legal requirement so much as dictated by unwritten conventions

Federalism

1. Foundation of the System (Formation)

  • Federation was an agreement of the states
  • Root word ‘foedus’ means covenant or treaty
  • Must be read/understood in light of the original federal agreement

2. Representative System (Representation)

  • Bicameral at state level (except for Queensland) and Federal level

3. Division of Power (Distribution)

  • Between Commonwealth and state
  • State sacrificed specific powers named in the constitution to Commonwealth control

4. Economic Union

  • Conversion of Australia in a single trade area
  • States can no longer erect trade barriers between each other

5. Amendment of Constitution

  • Created/amended by referenda
  • Majority of people AND majority of states required

Origin of Queensland and Victoria

  • Call for self government from parts of NSW lead to separate colonies

Factors that lead to Federalism

  • Size (Easier to administrate centrally)
  • Geographic Kinship (shared continent)
  • Federation was the ‘in thing’ – USA and Canada were doing it, Academics were writing about it, etc.

Primary Influences for the Australian Constitution

  • USA Constitution
  • Swiss Constitution (Swiss confederation dates back to 13th century)
  • Preservation of local self-government (preserve the colonies as states, rather than convert the nation into a single entity)
  • Original of Dual Referendum (Fear that NSW would control the new federation)

Secondary Influences for the Australian Constitution

  • Canada (More in line with Britain than America – provided an example of alternative kind of constitution)
  • Germany (Dominated by single powerful state of Prussia – example of potential inequality of NSW)

Political Theories the Founders were familiar with

  • Montesquieu (Spirit of Law) – separation of powers
  • Madison (Federalist No 39) – what is a federal commonwealth?
  • Bryce (American Commonwealth) – How the US system worked
  • Freeman (History of Federal Government) – History of federation
  • Dicey (Introduction to the Study of the Law of the Constitution) – Meaning of rule of law and sovereignty of parliament as written by a lawyer

What is a Federation?

  • Small states agree to form a larger state while preserving themselves
  • Assemblage of societies that also constitutes a new society
  • Preserves the smaller but creates a larger by agreement
  • Serves to preserve existence and liberties of smaller states by enabling security (primarily military security)
  • Also offers logistical advantages of central government

The Preamble of the Australian Constitution

  • States are all named separately
  • “agreed to unite”
  • A “commonwealth” – origin common weal – common wealth and well-being