LAWS1116 L1, 2011

Introduction and Separation of Powers

• Option 30% case note
• Exam
o NB: Tutorial questions come from past exam papers.
• ACL: F& T, 2nd ed, Ch 1, 5 and 6
• ACL: C& C, Ch 2
• Constitution, Ch III
What is a Constitution?
Meaning 1: Paramount Law
• It is the basic law that determines powers of the various organs of government.
• It may set out constitutional rights and freedoms (although not all constitutions do).
• It is paramount in the sense that ordinary laws must not violate it.
• It is usually found written in one or more documents.
• It may be amended by special procedures.
Meaning 2: The Living Constitution
• This is the constitution in actual operation.
• It lives in the experience of the people.
• It represents the patterns of conduct by those in authority and the general public.
• The paramount law or the paper constitution is only a partial description of the actual constitution.
• A constitution in this sense may exist even without a paramount law. England, for example, does not have a written constitution; however, its living constitution is robust. Parliament theoretically can do what it wants, but is restrained by historical constraints. Also, New Zealand.
Meaning 3: Constitution in the philosophical sense
• This is a constitution that is designed to contain power.
• Its aim is the rule of law (ie the subjection of all authority to the governance of law).
• Its ideal is a government of law and not of men.
• Aristotle’s Politeia and Kant’s Rechtstsaat
• It seeks to direct authority to the public good (rres publica), not private gain.
• This ideal has never been fully realised. Political systems can only approximate to it.
Devices in aiming for the idea constitution
• Constitutional stability.
• Representative democracy.
• Separation of powers that secures an independent judiciary.
• Federal distribution of powers.
o Historically, federal distribution frayed.
o Way Commonwealth has done something at expense of state.
• Protection of basic rights and liberties.
o No bill of rights.
o Some rights expressed in Australian Constitution etc.
Idealised snapshot of the constitution
• Easier to just pay a fine etc. than spend money going to Court
• Recourses are there in theory
o Legal things are expensive
• Party that gets less number of votes can get more seats and things (happened five times in Australian history).
Four features of constitution
• Elected government (representative)
• Responsible government (Executive PM plus ministers, responsible to parliament, if not, government resigns etc.)
• Federalism
• Separation of Powers
Separation of powers in the constitution
• s 1: Legislative power of the Commonwealth is vested in Parliament (Queen, Senate and the house of Representatives)
• s 61: Executive power of the Commonwealth is vested in Queen (exercisable by governor-general)
o PM + ministers exercise this power, really
o Formally, the crown
o Conventionally, minsters and things
• s 71: Judicial power vested in High Court, in other federal courts as the Parliament creates and such other courts (State courts) as Parliament invests with federal jurisdiction.
o Intended separation of powers.
o Each power granted to different branch of government.
o In practice not as clear.
o Separation of power in Australia is qualified.
Separation of powers in Australia is qualified
• In parliamentary system, ministers are members of parliament.
• Executive enjoys majority support in the House of Representatives.
• Executive usually determines legislative agenda (what bills are introduced and what bills are passed).
• High Court allows legislature to delegate wide law making power.
• Judges are appointed by Executive and removable by Parliament.
Legislative Power
• Power to make general rules.
o General rules apply to all persons or class of persons.
o Alters existing legal relations.
o Ideally, exercised by elected representatives.
• Parliament makes primary legislation (Acts of Parliament).
• The executive makes subordinate (delegated) legislation.
Subordinate legislation (Delegated legislation)
• Subordinate legislation is made by the executive branch usually governor-general in Council or a minister, local authority or statutory body
• Sub-legislation can only be made under authority delegated by Act of Parliament.
• Usually sub-legislation has to be placed before Parliament for approval or disapproval.
• In practice, Parliament has little time to scrutinise sub-legislation.
• Usual types: regulations, rules, by-laws, orders etc.
• Important type is local authority by-laws
The justification for sub-legislation
1. Parliament has not time to supply all the detail of legislation
o eg. University of Queensland Act cannot lay down all the rules about courses and exams.
o An Occupational Health and Safety Act cannot provide all details about safety standards in workplaces.
2. Parliament has no technical expertise to determine the detail.
3. Speed and flexibility – the details may have to be changed frequently.
Executive power
Aspects of executive power
• Power not impinging on rights (purely administrative power)
o Private rights not usually affected (eg. erecting buildings, managing the public service, buying supplies
• Contracts power
o Power to make contracts with individuals and firms for purposes of government.
o Remember that the Crown (government) is a legal person.
o Contracts power cannot be used to alter legal relations of others unilaterally
• Police power (law enforcement)
o Police power is exercised under authority of law
 Enforcement of the criminal law
 Customs, immigration
• Military power
o Power to defend the nation military
o Includes the power to declare war and peace
o Power to deploy forces abroad
• Foreign Affairs Power
o Power to conduct diplomatic relations
o Power to conclude treaties
• Quasi-judicial power
o Power to alter legal relations unilaterally in the particular case. For example:
 Granting (cancelling) licenses)
 Making industrial awards under IR law
o Standards of natural justice and fairness apply to quasi-judicial decisions.
o Quasi-judicial power is not judicial power.
Judicial Power
• Judiical power at the Commonwealth level can only be exercised by courts designated in the constitution itself
• Non-judicial power cannot be given to federal courts
• Distinction between judicial power and other non-judicial power is critical
• This distinction rests body of constitutional law – growing area of constitutional law.

• Decision on a controversy or dispute
• Dispute concerns existing rights
• Strictly according to established law
o Courts do and can modify existing law when they decide
o Most of the time they don’t do this
o When they do it, it’s very subtle, and just interpret the law differently, can’t admit to actively changing the law
o If they do admit to changing law, society will freak out and start a riot.
• Conclusive determination
o Conclusive; doesn’t mean matter is closed forever
• Non-consensual – power independent of agreement (contrast arbitral power based on contract)
o Arbitral power: internal agreement
Separation of legislative and executive powers
• Queen is part of parliament but always assents
• PM and ministers usually control HR

Victorian Stevedoring Co and General Contracting Co v Dignan (Dignan’s Case) (1931) 46 CLR 73.
• s 3 of the Transport Workers Act empowered the governor-general in Council to make regulations on every aspect of waterside employment.
• Regulations even could determine who could be employed as waterside workers
• It included a King Henry VIII clause
o Clause which says you can edit the act in delegated legislation.
o Parliament gives power to executive branch which can contradict the act of parliament itself.
o Making of regulations which override the acts of parliament.
• Majority
o Upheld s 3
o Approved delegation of wide legislative power with no significant limits
• Reasons:
o Responsible government is a sufficient safeguard
o Parliament can repeal bad executive law if necessary
o It is in keeping with UK parliamentary practice
o Executive legislation necessary in modern state
• The Court suggested two limits to the power to delegate legislative power
1. Must not be so wide that the legislation cannot be ‘characterised’.
 Example: ‘Minister may make regulations in the public interest’.
2. Must not amount to abdication of power
 Example: ‘Minister may make regulations with respect to national defence’.
• No law has been struck down for violating these limits yet.

• See criticism of this judgment’s effect on the rule of law: ACL: F&T pp 105-112
• Recently (ten years ago), State and Commonwealth Parliaments have adopted Legislative Standards Acts that lay down standards about delegating legislative power.
• These Acts, though laudable, are not strictly binding on parliaments which can disregard them.
Separation of judicial and other powers: High Court’s jurisprudence
• HC’s rationale for separating judicial and other powers
o Federal theme
 Importance of independent judiciary to maintain federal division
 Separation from other branches needed for independence
o Libertarian theme
 Checks and balances protect liberty
 Judicial independence protects liberty
• Definition of judicial power
o Griffith CJ’s classic definition in Huddart Parker v Moorehead (1909) 8 CLR 330 at 357:

1. A controversy or dispute must exist.
 Term ‘matter in ch 3 refers to controversy (Re Judiciary Act (1921) 29 CLR 257, 265-267)
 This is a key distinction between judicial and non-judicial power
 It limits law making power of judges.
o The controversy must affect rights, liberties or property of persons.
o Court must decide according to pre-existing law
o The decision must be ‘conclusive’
o Judicial power arises under law (non-consensual basis)
o A court must decide case before the court
o Courts have no general authority to make law
2. Controversy must concern rights/liberties or property of persons (Can’t be about who is best dressed person in the world etc.).
o Judicial power arises with respect to existing rights. Read R v Trade Practices Tribunal (1970) 123 CLR 361, pp 372-378.
o Creation of new rights is non-judicial
 Proposals to build x thing, someone objects to it  dispute. Judicial? Nahhhh, it’s about a creation of new rights.
 eg. IRC awards, TPC rulings
o Complication introduced by Q v Quinn: judicial power arises only with respect to ‘basic rights’.
o Quinn: held that a trademark not a basic right.
o Test of ‘basic right’ was not provided.
3. Decision must be conclusive
o Does not mean that there is no appeal
o Means if not appealed, it is final.
o Decision is not conclusive if it:
 can be attacked in a collateral action;
 can be reheard de novo in appeal
 Collateral attack = a separate challenge, not appeal
 de novo hearing = complete rehearing

• Brandy v HREOC (1995) 183 CLR 254