LAWS1205 Study Guide - Final Guide: Implied Repeal, Racial Discrimination Act 1975, Cabinet Collective Responsibility
Week 2
Tuesday, 14 March 2017
22:54
Liberalism:
The foundation of liberal thought in England had been laid through the device of the
social contract (that is the idea of legitimacy of government is derived from the consent
of the governed, through a contract in which citizens give up rights and powers in return
for stability and social order)
Plaintiff S157/2002 v Commonwealth of Australia:
A privative clause in legislation is one which attempts to prevent courts from
pronouncing on the lawfulness of administrative actions
Held: The plaintiff challenged a decision of the Refugee Review Tribunal
confirming the refusal of a visa, on the grounds of breach of natural justice. The
High Court considered the operation of an amendment to the Migration Act which
purported to limit judicial review of the Tribunal’s decisions.
Issue: There is a strong presumption that a privative clause will not be effective to
exclude judicial review generally, particularly of a jurisdictional error including a
breach of natural justice.
Held: The High Court essentially rendered the privative clause useless. Although
the clause was ‘valid’, the court held that parliament couldn’t have possibly
intended to apply it to jurisdictional error. Jurisdictional error is not affected by
privative clauses because those decisions are not decisions at all. They are
nullities.
A v Hayden (1984) CLR:
Facts: the plaintiffs were secret intelligence service agents who committed criminal
offences in the course of field training. When the state government asked the
Commonwealth to disclose their identities, the plaintiffs argued that they should be
protected by confidentiality (expressed in their employment contracts) and that their
actions were protected by ministerial approval etc.
Held: the executive government did not have the power to confer such immunities from
criminal law.
Governments, even in the pursuit of national security objectives, do not
inherently possess the power to authorise officials to act in defiance of the
criminal law (ie, immunity from prosecution, etc).
The executive government and its servants must still abide by the laws, and no
agency of the executive is beyond the rule of law - that is the cornerstone of
parliamentary democracy.
Separation of power
Executive is integrated into the legislature by the requirement that the Ministers
responsible for the departments of government must be Members of Parliament
accountable to it through such mechanisms
Responsible and representative government
The classic theory is that the executive should be chosen by, is answerable to and
may be removed by a popular elected parliament
The effect of responsible government is that the actual government of the state is
conducted by officers who enjoy the confidence of the people
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
A privative clause in legislation is one which attempts to prevent courts from pronouncing on the lawfulness of administrative actions. Held: the plaintiff challenged a decision of the refugee review tribunal confirming the refusal of a visa, on the grounds of breach of natural justice. High court considered the operation of an amendment to the migration act which purported to limit judicial review of the tribunal"s decisions. Issue: there is a strong presumption that a privative clause will not be effective to exclude judicial review generally, particularly of a jurisdictional error including a breach of natural justice. Held: the high court essentially rendered the privative clause useless. Although the clause was valid", the court held that parliament couldn"t have possibly intended to apply it to jurisdictional error. Jurisdictional error is not affected by privative clauses because those decisions are not decisions at all.
