LAWS1205 Lecture 1: APL lecture notes full sem
Week 1 – Introduction to Australian Public Law - State, Power, Accountability + History and Structure of
the Australian State
What is Public Law?
What is Australian Public Law?
State. Power. Accountability.
Legal systems perform the important generic functions of:
Maintaining social order;
Creating and regulating distinctive legal roles and relationships;
Coordinating collective action; and
Enabling the pursuit of specific social ends and values.
Public law is derived from legal systems
Primary and secondary laws
Primary laws – directly regulate the thought and behaviour of the subjects of law in order to
realise the generic functions and the specific social ends and values of the legal system.
Secondary laws – provide for
othe creation, amendment, repeal of law;
othe administration and enforcement of law; and
othe interpretation of and adjudication upon law.
Secondary laws provide for these tasks by enabling the creation, empowerment and regulation of
officials and institutions charged with the actual performance of these tasks.
All legal systems include a discrete body of legal rules (secondary laws) which create, empower, and
regulate officials (i.e. police) and institutions who are charged with the important social tasks of:
Creating and changing the laws of the legal system;
Administering and enforcing the laws of the legal system; and
Adjudicating questions and disputes about what the laws of the legal system are, what they mean,
and how they apply in any given situation.
That is, all legal systems include a discrete body of laws which create, empower, and regulate
Legislative officials and institutions
Administrative/executive officials and institutions
Judicial officials and institutions
Together, all of these legislative, administrative, and adjudicative officials and institutions comprise the
state.
The state is made up of those officials and institutions charged with the tasks of legislating, administering,
and adjudicating upon the law.
The state
The overall structure (public institutions, officials, rules etc) under which or by which a community is
politically unified.
The government under which a politically unified community exists.
A body of people occupying a defined territory and organised under a sovereign government as a politically
unified community (nation state, federal province, regional union).
As both:
creatures of the legal system and
agents of the legal system,
state officials and institutions are charged with implementing the legal system’s generic functions of:
maintaining social order;
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creating and regulating legal roles and relationships;
coordinating collective action; and
enabling the pursuit of specific social ends and values.
State officials and institutions perform their tasks by exercising the power conferred on them by public law
to perform those tasks.
Public law:
creates and confers power on (empowers) state officials and institutions;
imposes limits/boundaries on the exercise of that power;
otherwise regulates (guides) the exercise of that power.
1. Creates – s3 of Constitution ‘Proclamation of Commonwealth’
2. Empowers – s51 ‘Legislative powers of the Parliament’ and s68 ‘Command of naval and military
forces’
3. Limits – s99 ‘Commonwealth not to give preference’ and s100 ‘Nor abridge right to use water’
4. Regulates – s35 ‘Election of Speaker’ and s80 ‘Trial by jury’
Public law is the law which governs the state. Because the state makes, implements, determines the
content of, and decides disputes about all law in a society, public law is also the law governing the law
itself – it is the law of the law.
State officials and institutions act lawfully only to the extent that they comply with the public law which
creates, empowers, and regulates them.
In order for a legal system to realise its generic functions and specific social ends and values, state officials
and institutions must comply with the public law.
In order to ensure that state officials and institutions act lawfully – that is, comply with the public law
which creates, empowers, and regulates them - public law may additionally provide for the creation,
empowerment, and regulation of other state officials and institutions whose role is to render those
aforementioned officials and institutions accountable for their actions.
5. Renders accountable – s7 ‘The Senate’, s4 ‘Establishment of offices of Ombudsman…’, s5 ‘Functions
of Ombudsman’ etc.
Public law, then, is the body of law which creates, empowers, regulates, and calls to account state officials
and institutions.
Australian public law is the body of law which performs this role in relation to the officials and institutions
of the Australian state at all its levels - Commonwealth, State, Territory, and local – and across all its
branches – legislative, administrative, and judicial.
It is concerned with the lawfulness of the actions of the agents of the Australian state, with the
interrelations between those agents, and with the relations between those agents and the subjects of
Australian law.
The term Australian state refers to all the officials and institutions of state in Australia, at the
Commonwealth, State, Territory, and local governmental levels.
Public law – comprised of two key domains
Constitutional Law
Administrative Law
The social ends and values of a legal system and state may serve the interests of some, most, or all of
those subject to that legal system and state.
Law and the state as complex social instruments in the service of some set of ends, values and people.
All the people subject to law and state
Most of the people subject to law and state
Some of the people subject to law and state
Very few of the people subject to law and state
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Who benefits and who loses from the actions of the State?
The extent to which the state serves the interests and values of the subjects of the state depends on the
content and design of the system of public law at work in the jurisdiction in question.
To what extent does Australian public law and the Australian state serve the interests and values of those
people who are subject to that law and state?
Modes of public law
Constitutional provision e.g. Section 16 of the Constitution Act 1975 (Vic)
o“The Parliament shall have power to make laws in and for Victoria in all cases whatsoever.”
Statutory provision e.g. Section 5 of the Judicial Officers Act 1986 (NSW)
o“There is constituted by this Act a commission to be called the “Judicial Commission of New
South Wales”.
Regulatory (delegated legislation) e.g. Regulation 133 of the Air Navigation Regulations 1947 (Cth)
o“If an authorised person has reason to believe that a person has committed an infringement
notice offence, the authorised person may issue a notice (called an infringement notice) to
the person for the offence.”
Common law e.g. the so-called principle of legality, a common law presumption guiding the
interpretation of statutory provisions by courts (Lee v NSW Crime Commission (2013)) at 310
Constitutional conventions e.g. the convention that (subject to some arguable exceptions) the
Governor-General and the State Governors must exercise their formal constitutional powers only
on the advice of relevant ministers of state
Doctrines, principles, values etc e.g. the rule of law which, amongst other things, holds that every
action of state must be authorised by valid law
Constitution
That set of public laws which are:
structurally foundational,
politically (and morally) of the utmost importance, and
relatively stable over time.
Section 1 - “The legislative power of the Commonwealth shall be vested in a Federal Parliament, which
shall consist of the Queen, a Senate, and a House of Representatives, and which is herein-after called “The
Parliament” or “The Parliament.”
Section 71 - “The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be
called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such
other courts as it invests with federal jurisdiction of the Commonwealth.”
Section 128 ‘Mode of Altering the Constitution’ - This Constitution shall not be altered except in the
following manner:
The proposed law for the alteration thereof must be passed by an absolute majority of each House
of the Parliament, and not less than two nor more than six months after its passage through both
Houses the proposed law shall be submitted in each State and Territory to the electors qualified to
vote for the election of members of the House of Representatives…
The Australian state is characterised by:
Its historical origins as a collection of self-governing colonies of the British Empire, involving the
colonisation of the Indigenous peoples of Australia and reflecting British modes of governance;
Its politico-moral identity as a liberal democracy committed to the rule of law, with many of the
subsidiary ends and values associated with that identity;
Its federal structure, involving Commonwealth, State, and Territorial levels of government with
some degree of separation of state powers between the legislative, administrative, and
adjudicative branches across these three levels;
Its comparative lack of constitutionally entrenched human rights constraints and its traditional
reliance on statutory and common law mechanisms for the protection of human rights.
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Document Summary
Week 1 introduction to australian public law - state, power, accountability + history and structure of the australian state. Legal systems perform the important generic functions of: Creating and regulating distinctive legal roles and relationships; Enabling the pursuit of specific social ends and values. Primary laws directly regulate the thought and behaviour of the subjects of law in order to realise the generic functions and the specific social ends and values of the legal system. Secondary laws provide for: the creation, amendment, repeal of law, the administration and enforcement of law; and, the interpretation of and adjudication upon law. Secondary laws provide for these tasks by enabling the creation, empowerment and regulation of officials and institutions charged with the actual performance of these tasks. All legal systems include a discrete body of legal rules (secondary laws) which create, empower, and regulate officials (i. e. police) and institutions who are charged with the important social tasks of:
