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With regard to the establishment of Australia, it can be argued that this was done on a legally dubious basis, and the rule of law and the separation of powers had to be won again by the free settlers of a penal colony, but these principles having been established, it would seem desirable to pursue reform through law rather than abandoning it. 1. Australian Constitutional Development 1. 1 The road to Federation (this account is a summary of P Parkinson, Tradition and Change in Australian Law, extracted, with commentary, in B&W 147-151. Also rely on PH Lane, An Introduction to the Australian Constitution 5th Eden (Sydney: LBS, 1990), 214-231) 1788-1855: As outlined in Lecture 3, by the end of this period there were self- governing, ‘responsible’ colonies in Australia which followed the Westminster tradition of bicameral (two houses) parliamentary government. (147) Mid-to-late asses: there was both an impetus towards and a resistance to inter- colonial cooperation.
One of the main causes of tension concerned the conflict between Victorians protectionist policy with respect to customs tariffs (in order to protect its industrial manufacturing advantages) and New South Wales’ free trade approach (in which customs duties were largely used as a form of revenue- raising for the services of government). Other deterrents to federation were the larger colonies’ fears that smaller states would be an economic drain on them, and smaller colonies’ anxiety that they would be dominated by larger states.
On the other hand, a number of familiar factors pushed the reluctant colonies towards federation: for example, the imperial and territorial ambitions of the French and Germans in the Pacific, and the common recognition of both the inefficiencies of inter-colonial trade and economic activity generally, and the perceived threat of ‘non-white’ immigration. (147-148) 1885: Federal Council of Australia (members: Victoria, Tasmania, Queensland, Western Australia, Fiji, South Australia). This was the first experiment in quasi- federal, inter-colonial cooperation.
The Federal Council had some supranational powers. It could pass bills with respect to extradition, excluding criminals, the regulation of fisheries, and the enforcement of judgments extra-territorially. However, the effectiveness of the body was undermined by News determination to remain outside it and go it alone. (148) asses: the key period. Following NEWS Premier Henry Parkers’ invitation, colonial leaders came together for a federation conference in Melbourne in 1 890 (148) 1891 : National Australian Convention (Sydney) with delegations from each colony.
A major concern at this meeting was how to combine a federal system with Westminster responsible government. While Canada provided one resolution of this quandary, the example of the U. S. A. Was ultimately preferred. Unlike Canada, its system provided much more robust protection to the rights and powers of states visas–visas the central government. Another issue was how to ‘reconcile government by a majority of people with government by a majority of the States. ‘ Naturally, smaller states favored a strong upper house to protect their interests.
A draft constitution Bill was produced, but it lacked popular support and was not approved by colonial legislatures. (148-149) 1895: The colonial premiers agreed to establish another convention, this time elected by popular vote. (149) 1897-1898: The Convention held meetings in Adelaide, Sydney and Melbourne. After discussion in various colonial legislatures, another draft constitution Bill was produced which still had many features of the 1891 Bill. (149) 1898 (June): The 1897 Bill was put to the vote in referenda in Victoria, South Australia and Tasmania, all of which strongly supported it.
No referenda were held in WA or Queensland. In NEWS there was narrow approval, but it was insufficient (NEWS had set its own prerequisite in terms of the level of support). The Bill was amended and re-submitted to every colony except WA. It secured the approval of electors, and every colony formally requested the Queen to enact the Bill in the UK Parliament. (150) 1900-1901 : The Commonwealth of Australia Constitution Act 1900 (Imp) was passed by the UK Parliament (after an amendment securing the power of the Privy Council court in relation to Australia) on 9 July 1900, coming into force 1 January 1901.
WA joined the new nation as an original member. (150-151) 1. 2 Human rights and the Australian Constitution (B&W 151-152) George Williams argues that the framers of the Australian constitution largely took a Dicey approach to the protection of the rights of individuals: these were, to the extent that they were to be protected at all, to be protected by the ordinary law (that is, the common law). The heritage of British constitutionalism was thought sufficient. Under the doctrine of parliamentary sovereignty parliament was to be trusted to do the right thing. If it did not, there could always be a political sanction.
Dickey’s approach was modified in the Australian context, both by the existence of a supreme, written constitution and by the recognition of judicial review (along similar lines – but with no bill of rights – unlike the USA). The framer Andrew English Clack’s suggestion that there be a clause in the Australian Constitution protecting the rights of Australians to life, liberty, property and equality before the law was not adopted. In significant part, this was due to the framers’ desire ‘to ensure that the Australian Constitution did not prevent the colonies, once they became states, from continuing to enact racially discriminatory legislation. 1. 3 Australian legislative dependence and liberation (B&W 153, 155-156) 1. 3. 1 Certainly prior to the Australia Acts of 1986, the Commonwealth was a creature of a U. K. Act of Parliament. The British Parliament could still pass legislation (in accordance with the Colonial Laws Validity Act 1865 (Imp), hereafter COLA) with so-called paramount force, which was binding in Australia and prevailed over local legislation repugnant to it (that is, in conflict with it): see also: Union Steamship co of New Zealand Ltd v Commonwealth (1925) 36 CLC 130, cited in B&W 153. . 3. 2 The Statute of Westminster 1931 (Imp) (see, in particular, as. 2, 4) effectively gave a legislative stamp of approval to the transition of British colonies toward more independent dominion status in the years following WWW. No longer loud the British Parliament legislate for the Commonwealth (this was not the position regarding the Australian states: see s 9), without the latter’s ‘request and consent. ‘ The COLA and the associated doctrine of repugnance no longer applied to Australia at the central level. 155-157) 1. 3. 3 According to Blackbodies and Williams (B 157), after the passing of the Statute of Westminster, there were still ‘two impediments’ to complete legal independence for Australia: Britain could still legislate for Australia (albeit with its consent), and states were still limited by COLA repugnance and the limitations on extraterritorial legislation. 1. 3. 4 It seems reasonable to conclude that the combined effect of the Australia Acts passed in 1986 by the U. K. Commonwealth and every state, and their interpretation by the High Court of Australia, has been to set Australia completely free in a legal sense from the U. K. (but that might not answer persistent doubts about the legitimacy of the Australian constitution being established by a UK Act of Parliament, nor those concerning our status as a constitutional monarchy with the Queen of Australia as its head). The UK was held to be a ‘foreign power in Sue v Hill (1999) 199 CLC 462, extracted and issued in B&W 168-170). The majority held that U. K. Away had no ‘efficacy as part of the law of the Commonwealth, the States and the Territories. ‘ Note also Calling G’s acceptance in A-G (WA) v Marquee (2003) 217 CLC 545 (quoted in B 172) that ‘All of the relevant [Australia] acts (federal and State) as well as the Australia Act 1986 (I-J) represent a final and indubitable recognition, a settlement between the United Kingdom, Australia and its States, and an ultimate legalization of the respective constitutions, the sovereignty and the plenitude of the powers of the respective Australian polities.
They also represent a remarkable and rare consensus of politics which requires that their terms be given their full effect. ‘ See also Calling J in Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLC 28 (quoted in 172): the commonwealth’s Australia Act was the ‘overt legislative act, mirroring simultaneous legislation in the United Kingdom, that gave voice to the completion of Australia’s evolutionary independence. It was a formal declaration that the Commonwealth of Australia and the Australian states were completely constitutionally independent of the United Kingdom.
Nothing can serve so well to give legitimacy to a nation and its constitutional integrity as a rare and complete consensus of governments of the kind that the enactment of the Australia Acts represent. ‘ Thus in Calling’s view Australia achieved complete legal independence from the U. K. When the Australia Acts came into force on 3 March 1986. (B&W 172-173). It is also arguable that as a matter of political reality, Australia was an independent state from 1931 and that even the Statute of Westminster (1 was simply recognizing the reality of the independence of the dominions.
THE RULE OF LAW 1. Definitions and theories: The alternative: the rule of men – but who makes the law? Who enforces it? Who interprets it? VA Dicey: parliamentary sovereignty subject to public rebellion, elections and common sense G De Q Walker: Parliament is restrained by the constitution: it is not above the law Jennings: parliament is subject to limits. It must face election. Sovereignty is a theological concept. Allan: Parliament is constrained by democracy. If Parliament sought to destroy democracy, courts would act Julius Stone (Australian) Loon Fuller (American) Joseph Razz 2.
Parliamentary sovereignty vs.. The rule of law? In British constitutionalism, there has always been at the very least a theoretical tension between the extravagant claims for the doctrine of parliamentary sovereignty and the simultaneous praise for the rule of law as part of constitutionalism. The former doctrine seems to assume that, but for political sanction against a government, legislative power is unrestrained, whereas the latter doctrines are defined by the restraint of power.
In its crude form, the doctrine of parliamentary sovereignty seems to assume that the parliament is not subject to the kinds of limitations it itself fought for in the seventeenth entry visas–visas the Crown. Of course, in reality even the British Parliament is restrained by convention and the constitution (albeit ‘unwritten’), as one would expect in a constitutional monarchy. Nevertheless, the shadow cast by A. V. Dicers defense of parliamentary sovereignty has been both a long and enduring one; from which Australian constitutional theory has not been excepted.
However, unlike Britain, in Australia the combination of a written supreme constitution, federalism and a supreme court (the High Court of Australia) which has accepted judicial review means that the Commonwealth parliament’s power s better described as constitutionally limited rather than sovereign (and see Jennings’ argument below). VA Dicey, Introduction to the Study of the Law of the Constitution (1885) (extracted in B&W 100-102) Note: my insertions and commentary in this and in following passages are inside square brackets.
The sovereignty of Parliament is (from a legal point of view) the dominant characteristic of our (that is, English) political institutions [Parliamentary sovereignty is] fully recognized by the law of England none of the alleged legal limitations on the sovereignty of Parliament have any existence The principle f Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever, and, further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament The plain truth is that as a matter of law Parliament is the sovereign power in the state The external [or political] limit to the real power of the sovereign consists in the possibility or certainty that his subjects, or a large number of them, will disobey or resist his laws [CB the social contract theory: or example, John Locker’s justification of rebellion/revolution if the contract is broken by a government trampling on the natural rights of its subjects/citizens] The internal limit to the exercise of sovereignty arises from the nature of the sovereign power itself. Even a despot exercises his powers in accordance with his character molded by the circumstances under which he lives, including under that head the moral feelings of the time and the society to which he belongs .. [Dicey then quotes from Leslie Stephens Science of Ethics to support his point:] ‘If a legislature decided that all blue-eyed babies should be murdered [sic: if Stephens point is accepted they would not be being ‘murdered,’ but lawfully killed], the preservation of blue-eyed babies would be illegal; but legislatures must go mad before they could pass such a law, and subjects be idiotic before they could submit to it. Geoffrey De Q Walker, ‘Dickey’s Dubious Dogma of Parliamentary Sovereignty’ (extracted in B 102-103) [Contrary to Dicey, Walker emphasizes the theme of constitutionalism throughout English legal history, particularly in the seventeenth century, culminating in the Glorious Revolution. ] [B]y dint of sheer repetition, academic preaching of the absolutist theory of overseeing has diverted the attention of bench and bar away from the more limited and balanced principle developed by common lawyers during the seventeenth century. This principle is one of parliamentary supremacy, not sovereignty [W]hat Parliament had in mind was a government of laws and not of men It seems that Dickey’s theory is like some huge, ugly Victorian monument that dominates the legal and constitutional landscape and exerts a hypnotic effect on legal perception. The foundations of Dickeys doctrine of parliamentary sovereignty] are weak and it has never clearly and formally, least f all democratically, been made part of our Constitutions. [But one must note, pace De Q Walker, that Coke CO was not the victor in common law court battles with parliament: the notion of judicial review applies only in the public law context. Legislation of course prevails over the common law. But both, in Australia at least, are subject to the Commonwealth Constitution. ] [Note Jeffrey Goldsmiths qualified defense of the notion of parliamentary sovereignty (B&W 103). ] WI Jennings, The Law and the Constitution (1959) (extracted in B&W 103-105) Dicey has called this enormous legal power the ‘sovereignty’ of Parliament.
But his is a word of quasi-theological origin [CB the ‘descending theory of rule and the doctrine of the ‘divine right’ of monarchical rule] which may easily lead us into difficulties [Elf sovereignty is supreme power, Parliament is not sovereign [contrast De Q Walker’s, and my understanding, of parliamentary supremacy as referring to legislation as the supreme form of ordinary law, subordinate only to constitutional law]. For there are many things, as Dicey and Lacks both point out, which Parliament cannot do Parliament is not the permanent and personal sovereign contemplated by [French philosopher Jean] Boding it is two groups f men [who must be elected but CB House of Lords. ] Since, if they wish for re- election, they may be called upon to give account of their actions, they must consider what the general opinion about them may be. Parliament passes many laws which many people do not want.
But it never passes any laws which any substantial section of the population violently dislikes [Do you agree? ].. [Parliament] has powers derived from the law [l]t is not entirely ridiculous to say that a legislature is sovereign in respect of certain subjects, for it may then pass any sort of laws on those subjects, but not on any other subjects. Emphasis added] TRY Allan, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (1993) (extracted in B&W 106) [In a useful summary, Blackbodies and Williams, B&W 105, write that ‘[floor Allan, parliamentary sovereignty is a concept that is intricately linked to representative democracy and thus cannot be exercised in an undemocratic manner. ] [T]he courts’ continuing adherence to the legal doctrine of sovereignty must entail commitment to some irreducible, minimum concept of the democratic principle. In almost all likely circumstances, that political commitment will emend respect for the legislative measures adopted by Parliament as the representative assembly. That respect, however, clearly cannot be a limitless one. A parliamentary enactment whose effect would be the destruction of any recognizable form of democracy could not consistently be applied by the courts as law An enactment which threatened the essential elements of any plausible conception of democratic government would lie beyond those boundaries. It would forfeit, by the same token, any claim to be recognized as law.
The legal authority of statute depends in the final analysis on its compatibility with the central core f that morality which constitutes the rule of law If Parliament ceased to be a representative assembly or if it proceeded to enact legislation undermining the democratic basis of our institutions, political morality might direct judicial resistance rather than obedience. These suggestions suggest how the apparent conflict between Dicers ‘guiding principles’ of legislative sovereignty and the rule of law might finally be resolved. Have suggested that a statute which threatened fundamentally the central tenets of our democracy could derive no authority from the doctrine of sovereignty, properly understood. The limits of legislative supremacy are to be discovered, then, in that deeper constitutional morality from which the rule of law derives its strength and virtue. 3.
The Dicey doctrine of the rule of law (extracted in B&W 107-108) [Dicey developed a highly influential tripartite conception of the rule of law: the integrating thread is that Englishmen can rely on the ordinary law, to which all are subject, for the protection of their rights such as they are:] [The rule of law which] forms a fundamental principle of the constitution means [1] the absolute supremacy or predominance of regular law as opposed o the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative [royal power], or even of wide discretionary authority on the part of the government. Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else [Chef Latin maxim annual phone sine leg: no punishment without law]. 2] equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the law ordinary law courts; the ‘rule of law’ in this sense excludes the idea of any exemption of officials or others from the duty f obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals [3] with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts [T]hush the constitution is the result of the ordinary law of the land.
WAS Jennings, The Law and the Constitution (1959) (extracted in B&W 108-110) Expressed in English terms, the rule of law in this liberal sense requires that the powers of the Crown and its servants shall be derived from and limited by either isolation enacted by Parliament, or judicial decisions taken by independent courts The doctrine involves some considerable limitation on the powers of every political authority, except possibly (for this is open to dispute) those of a representative legislature. Indeed it contains something more, though it is not capable of precise definition. It is an attitude, an expression of liberal and democratic principles, in themselves vague when it is sought to analyses them, but clear enough in their results. There are many facets to free government, and it is easier to recognize it than to define it. It is clear, however, that it involves the notion that all governmental powers, save those of the representative legislature, shall be distributed and determined by reasonably precise laws.
Accordingly a king or any other person acting on behalf of the State cannot exercise a power unless he can point to some specific rule of law which authorizes his act. The State as a whole is regulated by law. For this reason, the doctrine is expressed in [European] continental legal theory by saying that the State is a ‘legal state’ – Orchestrates, ??tat De adroit, stats did diorite [CB Sartorial discussion] Since monumentally it requires a limitation of powers, most States have sought to attain it by written constitutions, for such a constitution is fundamental law which limits by express rules the powers of the various governing bodies and thus substitutes constitutional government (in large part a synonym for the rule of law) for absolutism.
It implies also a separation of powers, since the confusion of powers in one authority is dictatorship or absolutism, which, according to liberal ideas, is potential tyranny. [Jennings then describes the part notions of equality have to play in the concept of the rule of law: attacks on privilege, quality before the law (meaning ‘among equals the laws should be equal and should be equally administered, that like should be treated alike In the criminal law, indeed, the rule of law implies a combination of the notion of equality before the law with the notion that the limits of police powers should be rigidly defined. The rule of law in this sense is expressed in the maxim, derived from nineteenth-century liberalism, annual phone sine leg [It] includes at least four notions. 1] First, it means that the category of crimes should be determined by general rules of a more or less fixed character [contrast laws that target pacific individuals, known as bills of attainder: see Polyphonic v Commonwealth (1991) 172 CLC 696-704]. (2) Secondly, it implies that a person should not be punished except for a crime which falls within these general rules [3] Thirdly, it may mean that penal statutes should be strictly construed, so that no act may be made criminal which is not clearly covered by the statutes. [4] Fourthly, it may mean that penal laws should never have retrospective effect. Above all, the rule of law implies the even less precise notion of liberty. Eric Bartend, ‘Dicey and Civil Liberties’ (1985) (extracted in B 114??116)
The absence of arbitrary power made so much of in [Dickeys) The Law of the Constitution was an absence of autonomous executive or prerogative power; what we are more concerned with nowadays is the risk of governments abusing their powers through their De facto control of the legislature The rule of law is a quite valueless doctrine these days unless it is accepted as a rule which binds the legislature, either as a matter of constitutional law or at least as a general political principle or convention. Potter v Minoan (1908) 7 CLC 277 (B 117-118) [One right which it would not be assumed the legislature intended to take away except by express words or necessary implication. That is the right of every British subject born in Australia, and whose home is in Australia, to remain in, depart from, or re-enter Australia as and when he thought fit, unless there was in force in Australia a positive law to the contrary. (per O’Connor J) [this is why we have citizenship law! Coco v The Queen (1994) 1 79 CLC 427 (B&W 119-120) (conviction supported by evidence obtained from listening devices unlawfully installed, by unlawful entry, was quashed: B&W 119) Statutory authority to engage in what otherwise would be tortuous conduct just be clearly expressed in unmistakable and unambiguous language The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them.