LAWS1205 Study Guide - Final Guide: Crimes Act 1914, Arnhem Land, Miriwoong Language
Week 1
Public law regulates the enterprise of government
Tuesday, 14 March 2017
22:50
The Constitution took the essence of the Westminster of representative and
responsible government within the framework of a constitutional monarchy, and also
adopted written constitutions from the US and took on the concept of federalism , the
separation of powers and judicial review
Governor-General is the head of the state, representing the Queen
The constitution does not specify the Prime Minister, but in the Constitution, it
specifies the Queen and her representative's power
Section 59 of the Constitution: the Queen is able to disallow, or annul, laws made by
the federal parliament. But this has become obsolete, and both have little scope to act
independently of advice
By convention, they normally act on the advice of the prime minister and other
ministers
Representative government: government by the people through their elected
representatives
Responsible government: the executive arm of government is responsible to
Parliament for its actions
The power of the Crown is controlled by the ministry, the ministry is controlled by the
Parliament, the parliament is controlled by the electorate
Separation of power: power of government is divided, allocating legislative,
executive and judicial functions to distinct institutions, at least partially independent of
one another
Federalism: allocating all governmental power and especially legislative power
among different political units
These allocations are subject to checks and balances, including the ability of the
courts to exercise a power of judicial review to strike down laws and governmental
actions found to be inconsistent with the Constitution
Written constitution: a single solemn document which founds a political
community, defines its chief political institutions, confers their powers, and
circumscribes the permissible limits of those powers, such as the constitution of the US
Unwritten constitution: the UK has never adopted such a single document , it is
sometimes called unwritten
But many important parts of that constitution do exist in a written form,: in the Act of
Settlement 1701 and spelled out in judicial decisions expounding the common law
Constitutional convention: where a written constitution will still depend on
unwritten understandings, reflecting how government ought to be conducted, either
supplementing or contradicting the written rules
Australia has a written constitution but also has unwritten constitution
Commonwealth of Australia Constitution is complemented by the Statue of
Westminster 1931(IMP) and the Australia Act 1986 (Cth)
Rigid Constitution: the Australian constitution is rigid, amendments to any
constitutional rules are initiated by the Cth Parliamenet, but can only be effected by a
referendum satisfying the requirement of s 128 of the Constitution
But the constitutions for the Australian states are for the most part flexible by
exercising its ordinary power
Rule of law: the executive must have prior legal authority before it acts
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Basic forms of government power
Legislative power
Executive power (implement laws)
Judicial power (adjudicating disputes under laws)
Sovereignty: the possession of supreme normative power and authortiy over some
domain
Government: those persons or institutions through whom that sovereignty is
exercised
Entrenchment: important feature of constitutionalism is that norms imposing limits
upon governmental power must be in some way entrenched, that is, powers are
constitutionally limited, the institutions of government, must not be legally entitled to
change or expunge those limits at their pleasure
The Australia Act 1986: declared Australian independence, bringing our legal
relationship with Britain into alignment with the political relationship (Sue v Hill 1999)
Commonwealth of Australia Constitution Act 1900 (Imp): created by the UK
Blankard v Galdy: uninhabited country newly found by the English objects, all laws
in force in England are in force
If the King of England conquered a country, for there the conqueror, by saving the
lives of the people, gains a right and property, hence he may impose them what laws he
pleases, but until such laws given by the conquering prince, the laws and customs of the
conquered country shall hold place, unless contrary to religion, or enact anything that is
silent, the laws of the conquering country shall prevail
Conquered or ceded counties already have laws of their own, the king may alter or
change, but till he does actually change them, the laws of the country remain, unless
against the law of the God,, as in the case of an infidel country
The common law of England is also the common law of Australia
The common law is the same in every state
Colonial laws validity Act: the statues passed by the colonial legislature could
override received English status and common law, but did not extend to colonial laws
whose effect would be repugnant to those British statues applicable by paramount force
Commonwealth of the Australia Constitution Act: s 9, the Commonwealth was
created by the Imperial Parliament by virtue of a British statue applying to Australia by
paramount force
The Cth of Australia Constitution Act might have been regarded as impliedly
repealing the Colonial laws validity Act to the extent of any inconsistency
Thus each grant of the legislative power to the Commonwealth in s 51 of the Cons, as
incorporated in s 9 of the Comm of Aus Cons Act might have been regarded, as freeing
the new parliament from the repugnancy doctrine.
Union steamship v Commonwealth (CLR): the high court held that the repugnancy
doctrine continued to apply to the Commonwealth. The court held that provisions of the
Navigation Act 19121 were invalid by reason of repugnancy to the Merchant shipping
Act 1981 (Imp). This conclusion was reached despite s 98 of the constitution which
reads: "the power of the parliament to make laws with respect to trade and commerce
extends to navigation and shipping".
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By s 39(2) of the Judiciary Act 1903 Cth, The Commonwealth sought to exclude the
possibility of appeals to the privy council from state supreme courts in constitutional
cases
Commonwealth v Limerick Steamship: that provision was valid, it was held not to
be repugnant to the specific provision for privy council appeals in s 15 of the Australian
Courts Act, because the power to enact s39(2) was conferred by the Constitution Act,
itself an Imperial statue, assuming two imperial enactments conflict, the later one shall
prevail
Doctrine of extraterritoriality: the extraterritorial exercise of colonial legislative
power was invalid unless its operation had a sufficient connection with a geographical
area of the legislating colony.
Under international laws, a sovereign state may sometimes legislate extraterritorially,
for example where the Crimes (Child sex tourism) Amendment Act 1994, amended the
Crimes Act 1914 to permit the prosecution of Australian citizens or residents in respect
of offences committed outside Australia
Macelod v Attorney-General (NSW) AC: Macelod married a second wife in the US
while his first wife was still alive, the privy council held that he could not be prosecuted
for bigamy under the NSW law since the second marriage, had taken place outside the
territorial limits of NSW
S 51 (i) of the constitution: 'to legislate with respect to trade and commerce with other
countries necessarily extends to the regulations of activities outside Australia ( See
Crowe v Commonwealth (CLR))
Merchant Service Guild v Commonwealth Steamship (CLR): the high court held
that the Commonwealth legislative power with respect to industrial disputes ( S 51
(xxxv)) was confined to industrial disputes within Australian territorial limits and did
not extend to disputes on Australian ships outside Australian waters.
Re Maritime Union of Australia (CLR): a case where the shipowner was
incorporated in Barbados and ultimately owned by a Canadian company, and the crew
were' foreign seafarers, not resident in Australia, not engaged in Australia and not
members of any relevant Australian industrial organisations.
The statue of Westminster
The Statue of Westminster 1931 (Imp) freed the Dominions, including the
Commonwealth, from Imperial restrictions by excluding the operation of the Colonial
Laws Validity Act and thereby the repugnancy doctrine
The statue also removed any restrictions on Commonwealth legislative power arising
under extraterritoriality doctrine.
The British Parliament still had the power to legislate for the Dominions through
paramount force, it came to be assumed that this power would never be exercised unless
legislation was requested and consented by the Parliament of the relevant
Dominion
Under s 2 of the Statue of Westminster , once Australia had adopted it, that neither
repugnancy nor the Colonial Laws Validity could restrict the powers of the
Commonwealth Parliament.
Under s 4 of the Statue, the British Parliament could still legislate for Australia, but
only with the 'request and consent' of the Commonwealth Parliament
Copyright owners reproduction society v EMI (CLR): s 2 applied, the copyright
act 1911 (Imp) applied to Australia by paramount force, however in the UK, that Act
had been repealed and replaced by the Copyright Act 1956 (UK). The HC held that this
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Document Summary
Governor-general is the head of the state, representing the queen. The constitution does not specify the prime minister, but in the constitution, it specifies the queen and her representative"s power. Section 59 of the constitution: the queen is able to disallow, or annul, laws made by the federal parliament. But this has become obsolete, and both have little scope to act independently of advice. By convention, they normally act on the advice of the prime minister and other ministers. Representative government: government by the people through their elected representatives. Responsible government: the executive arm of government is responsible to. The power of the crown is controlled by the ministry, the ministry is controlled by the. Parliament, the parliament is controlled by the electorate. Separation of power: power of government is divided, allocating legislative, executive and judicial functions to distinct institutions, at least partially independent of one another. Federalism: allocating all governmental power and especially legislative power among different political units.
