Public Law In A Nutshell

Hello!

It appears you've stumbled across my delightful page. I'm going to do my best to cover the course's content in as few words as humanly possible. Let's see how this goes.

Lecture 1 - Introduction

This introduction lecture by Orr, covered many key points in the course that you ought to know, if nothing else:

  • Constitutionalism is about:
    • imposing political restraints
    • an enabling document
    • government under law.
  • Rule of Law
    • Two conceptions
      • Thin/Procedural
      • Thick/Substantive
        • Encompasses constitutional rights etc. Seems irrelevant to exam.
  • Division of power
    • Judicial
    • Legislative
    • Executive
    • —federalism and the division of power
      • VFI
  • Representative democracy and political accountability
    • Legislature v Judiciary again.
    • Referenda - the only truly pure act of representative democracy
  • Executive power
    • Constitution vests power in crown
    • Crown basically vests power in the ministers
    • Ministers administer law and policy
    • Notions of responsible government
      • Is this at odds with representative democracy?
  • Executive accountability
    • The integrity branch. (a bit of a vague concept, but GO seems to like it.)
    • Ombudsmen, commissions etc…
      • 'Who watches the watchers?'

alright, lecture 1, you are ouuuutta here

JA's section of the course

Lecture 2 - Constitutionalism

  • Const. is a limitation on power
  • Democracy as a platform
Parliamentary Presidential
Unitary Federal - geographically big
Unicameral Bicameral
Floating Fixed election dates
Constitutional Monarchy Republic
No BoR BoR
  • Preferential > First Past the Post since in FPTP, majority of population didn't vote for the elected party —> 'bad' democracy.
  • Constitutionalism
    • The alternative - NZ model - pure parl. sov.
    • Reasons for a constitution
      • Lock in limits
      • Reflecting changing social values
        • Judges read in implied rights
        • Are these rights really implied?
        • Would the elected parliament be better at (or more democratically valid in doing) this?
      • Changing the constitution
        • Referenda
        • General trend is 'no', Australians would rather leave it to parliament.
        • Only 8 out of 44 have been approved by a majority (nation+states .. more on that later)

That's it for JA's first lecture.

The associated reading is 'Introduction' by Larry Alexander. Some notes on it:

'Introduction' by Larry Alexander.

Alexander posits a step-by-step process of how constitutions are formed:

  1. Get your own inherent views
  2. Seek agreement as fully as possible —> metaconstitution
  3. When views change, replaced by a new metaconstitution

Kay:

  • Binding the government by rules laid down before its action
  • We accept framers' intentions when interpreting

Michelman:

  • Why should the constitution pre-empt current judgment?

Raz:

  • Constitution has authority if people would abide by it anyway - inherent.
  • If we like the consequences, that's the interpretation we should go with.

Rubenfeld:

  • why follow now what they said then?
  • 'writtenness'

Sager:

  • The intention of framers was to be general
  • In effect to say 'do justice as you see it'

Waldron:

  • Argues against constitutionalism (in favour of parl. sov.)
  • Framers left it vague so legislature should intervene democratically

Lecture 3: Rule of Law/Federalism

Rule of Law [RoL from here on ;)]:

* 2 conceptions:
* old: thin, procedural about how you make law
* new: thick, substantive about what the law is
* morally right rule of law
* JA asks: what is right? consensus?

The corresponding article is:

Legislative Sovereignty and the Rule of Law by Jeff Goldsworthy

  • He begins by saying the RoL is a political aspiration
  • Identifies two branches:
  • Thick
    • Moral/substantive
    • More than mere legality
    • Everything could be challenged on a RoL basis
    • Designed to limit/control arbitrary power
  • Thin
    • Procedural
    • compliance with procedure is all the RoL entails
  • Goldsworthy concludes by saying that thea RoL is a nice notion, but its content is still very much indeterminate (AAH NOT THAT WORD).

Federalism

  • The intention of such a system is to give the states power
  • HCA has altered this, now the centre has a lot of power.
  • Federalism (in JA's eyes) is based on competition not co-operation
    • Through competition you eventually seek find the best practice
  • Federalism satisfies more people on contentious issues … smaller groups.
  • tends to create more wealth and be more efficient.

There isn't a specifically related reading, although there are some snippets of the Aus Const. which support JA's statement that Aus. was designed to give a lot of power to the states.

Part V of the Constitution - s 107

Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the
Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of
 the State, as the case may be.

This section, I think, demonstrates nicely how the states were meant to retain a great deal more power than they have. That is to say, they were meant to retain all functions except the ones specifically allotted to the Commonwealth in this document. Is this the case? No.

Whereas s 52, outlines that:

The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth

it seems unlikely that such a massive revoking of state powers was implied.

Separation of Powers

My notes seem to suggest this was skipped over in the lecture, so this mainly focuses on the coverage of the topic in Clark.

Chapter 4 of Clark - Separation of Powers and Judicial Power

  • Three branches of government
    • Legislature
    • Judiciary
    • Executive

Locke

  • Executive
      • Executing the laws (includes our judiciary)
    • Legislative
      • Making the laws
    • Federative
      • Wars/peace treaties/international agreements

Montesquieu

  • Legislative
  • Executive power over things depending on the right of nations —
  • Executive power over things depending on civil right — the power of judging
  • Australia never adopted the view that legislature and executive should be separate (although not all members of the legislature are in the exec and vice versa).
  • Real Australian focus is on the separation of Legislature and Judiciary - judges cannot be elected to the legislature.
  • Consequently, since Exec must be in Leg, the powers of Exec and Judiciary are separated too.

Lecture 4: Bills of Rights & Lecture 5: Judicial Review

As far as I can tell, we get to skip these delightful lectures as they pertain solely to BoR.

That brings us to the end of JA's part of the course, I believe. :)

GO's section

Legislative Power:

  • Parliament makes the law
  • Good legislation is
    • GENERAL
    • PROSPECTIVE
  • All subject to the constitution
    • Australian constitution leaves most procedural issues to parliament.
  • Bills require royal assent - G.G signature.
  • Subordinate legislation - i.e. delegation of powers to:
    • Ministers (exec council)
    • Comm’ns/Agencies
  • Parliamentary law-making takes an open debate, deliberation style.

Parliament as a Body: GOALS.

  1. RESPONSIBLE GOVERNMENT
  2. FORUM FOR GRIEVANCES
  3. APPROVE/DISAPPROVE LEGISLATION

s 51 of the constitution outlines sharing of powers:

51  Legislative powers of the Parliament [see Notes 10 and 11]

            The Parliament shall, subject to this Constitution, have power
         to make laws for the peace, order, and good government of the
         Commonwealth with respect to:

      (i)   trade and commerce with other countries, and among the States;
      (ii)  taxation; but so as not to discriminate between States or parts
             of States;
      (iii) bounties on the production or export of goods, but so that such
             bounties shall be uniform throughout the Commonwealth;
      (iv)  borrowing money on the public credit of the Commonwealth;
      (v)   postal, telegraphic, telephonic, and other like services;
      (vi)  the naval and military defence of the Commonwealth and of the
             several States, and the control of the forces to execute and
             maintain the laws of the Commonwealth;
      (vii) lighthouses, lightships, beacons and buoys;
      (viii)     astronomical and meteorological observations;
      (ix)  quarantine;
      (x)   fisheries in Australian waters beyond territorial limits;
      (xi)  census and statistics;
      (xii) currency, coinage, and legal tender;

These sections have been read by the HCA to give more power to the centre.

State Legislative Powers

  • It was assumed that remaining powers would go to the states
  • State constitutions not entrenched, instead comprised of various acts
  • QLD has only a legislative assembly s 1, Constitution Act 1867 (Qld)
  • To go back to two houses, it would require a referendum as per s 53 of Constitution Act 1867 (Qld)
53 Certain measures to be supported by referendum 

(1) A Bill that expressly or impliedly provides for the abolition of 
or alteration in the office of Governor or that expressly or 
impliedly in any way affects any of the following sections of 
this Act namely— 
sections 1, 2, 2A, 11A, 11B; and this section 53.
shall not be presented for assent by or in the name of the 
Queen unless it has first been approved by the electors in 
accordance with this section and a Bill so assented to 
consequent upon its presentation in contravention of this 
subsection shall be of no effect as an Act.

Other than these protected sections, the state constitution is readily amendable by a majority of state parliament.

  • The last thing in this lecture was about executive dominance.
    • Ministers have the resources to develop policy
    • Most of the detail is in the regulation
    • Party discipline to seek ministry.

Week 9: Representative Democracy and Parliamentary Structure

  • Bicameralism
    • Senate as a house of review
    • Can veto legislation
    • Cannot initiate or amend tax/money bills

s 53 as pertaining to the Senate and revenue raising bills.

53  Powers of the Houses in respect of legislation

            Proposed laws appropriating revenue or moneys, or imposing
         taxation, shall not originate in the Senate...

The Senate may not amend any proposed law so as to increase any
         proposed charge or burden on the people.
[to be continued… 'senators have longer terms…']