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General Pointers on Constitutional Policy in the Exam Consider what the question is asking. Define any relevant terms. Pick at least 3 areas of Constitutional.

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Presentation on theme: "General Pointers on Constitutional Policy in the Exam Consider what the question is asking. Define any relevant terms. Pick at least 3 areas of Constitutional."— Presentation transcript:


2 General Pointers on Constitutional Policy in the Exam Consider what the question is asking. Define any relevant terms. Pick at least 3 areas of Constitutional Law or key cases which you could discuss in relation to the topic. Set out the law clearly and succinctly. Be aware of alternative viewpoints and incorporate those into your essay. Have an opinion and make a balanced argument. Address the question in your conclusion.

3 Key Constitutional Policy Topics Human Rights Parliamentary Sovereignty Division of Powers/Federalism

4 Human Rights This may encompass a question on the impact a particular case has had in protecting human rights or may ask you to comment on whether the Constitution effectively protects human rights. Note that the founders did not intend the Constitution to be a human rights and adopted the theory of a benevolent parliament from the U.K. Key areas of law to be aware of are Separation of Powers (particularly state separation of powers), Implied Freedom of Political Communication and the Australian Communist Party Case.

5 Australian Communist Party Case Facts; The High Court was ruling on Constitutional validity of the Australian Communist Party Dissolution Act. It was argued the Act was valid under the defence power. Held; the law was invalid. This was not a case about the justice or injustice of the law in question but the outcome protected human rights. This demonstrates the way in which the Constitution may unintentionally protect human rights. Kirby J in Thomas described this as a judgment ‘worthy of a free and confident society’. He viewed the verdict reached in Thomas as a wrongful departure ; ‘form of judicial tyranny’.

6 DPP v Kable The legislation enabled renewable six month detention orders to be made and only applied to Kable. HCA (4-2) held legislation to be invalid. Doctrine of Incompatibility; state courts with fed jurisdiction cannot be vested with powers which may undermine the judiciary or public confidence in judicial process.

7 Gaudron J in Kable Public confidence cannot be maintained if courts are required to deprive persons of their liberty not on the basis that they have breached any law, but on the basis that an opinion is formed by reference to material (which may or may not be admissible in criminal proceedings) that on the balance of probabilities, they may do so. Also, stated that public confidence requires laws to be of general application and not just applicable to one applicant.

8 Fardon v A-G – Kirby J (dissent) Unthinkable for Kable to stand alone. Should be invalid because punishment based on predicted future conduct rather than past criminal offences, imposition of additional punishment on select class of prisoners and double punishment for offence for which time has already been served. Concerned about Kable being rendered a ‘Constitutional Guard Dog that barks but once’.

9 Implied Freedoms Political Communication – arising from representative nature of the Constitution (ACTV, Lange). Implied right to vote – Roach. Deane J in Theophaneous; ‘It should not be that the failure to include a detailed list of constitutional rights should be treated as somehow precluding or impeding the implication of rights, privileges and immunities from either the Constitution’s express terms or the fundamental doctrines upon which it was structured and which it incorporated as part of its very fabric.’

10 Example Questions Does Kable v DPP effectively protect human rights? The Constitution of Australia does not protect many human rights. Nevertheless, the High Court through Constitutional Interpretation has shown itself to be an appropriate protector of individual rights and has upheld the democratic system of government for all people. The cases of Lange and Kable and their successors demonstrate the strength of those decisions. Do you agree or disagree with this statement? Following Lange and Roach some commentators were hopeful that the High Court had a new enthusiasm for drawing implications from the Constitution for beneficial purposes but in Betfair the High Court refused to imply that protectionist legislation for the benefit of the people of the state may be valid. This conflicts with Lange and Roach, undermining the hopes of those commentators. Comment on this statement with reference to at least one case.

11 Parliamentary Sovereignty Described by A.V Dicey as the power bestowed on the Parliament to ‘make or unmake any law whatever; and further that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament’. This principle has been adopted in Australia from the U.K but has not been adopted to the same extent because in the Australian context the written Constitution provides some limitations to the doctrine. The advantage of the doctrine is placing the power to make legally and morally sensitive decisions in the hands of elected representatives but the disadvantage is that there is a lack of checks and balances. All areas which deal with Constitutional Limitations are potentially relevant to a question on Parliamentary Sovereignty.

12 What is the doctrine of Parliamentary Sovereignty and to what extent does it apply in Australia? This question requires definition of the term parliamentary sovereignty, as well as your opinion on Parliamentary Sovereignty in Australia. Essential to answer both parts but most of your policy discussion will be concentrated in the second part of the question.

13 Answering the Question Define the term in the introduction and provide signposts to your answer. State that the Commonwealth Parliament does not have absolute sovereignty because it is constrained by written Constitution. Areas of Constitutional Law which may be relevant; Intergovernmental Immunities Implied Rights Freedom of Interstate Trade and Commerce Manner and Form Provisions.

14 Body Paragraph 1 The Commonwealth Parliament has broad powers and its powers have been interpreted expansively by the High Court. Legislation made cannot be struck down on the basis of being unjust or on the basis of Court disagreement. [N]othing depends on the justice or injustice of the law in question… it is only because the legislative power of the Commonwealth Parliament is limited by an instrument emanating from a superior authority that it arises in the case of the Commonwealth Parliament. Fullagar J in ACP v Commonwealth.

15 Body Paragraph 2 Is the Federal nature of the Australian Political system a constraint on Parliamentary Sovereignty? - Division of Powers - Maintenance of a federal system - Intergovernmental immunities; can’t legislate in a way which may impair the ability of the state to function as a government. - May be able to contrast against Grants Power.

16 Body Paragraph 3 Implied Prohibitions on the power of the Commonwealth in respect of the Representative system of government, eg. freedom of political communication and voting. Consider the effect of these as restrictions on Parliamentary Sovereignty – how significant are they? Note the 2 nd limb from Lange enables the Commonwealth to circumvent the freedom if the circumvention is for a legitimate purpose and is appropriate and adapted.

17 Conclude Give an opinion as to what extent Parliamentary sovereignty operates in Australia. Comment on the merit of Parliamentary sovereignty. The balance between a check on legislative power and the ability of the representative Parliament to pass the laws which it sees fit on the behalf of the people.

18 Division of Powers/Federalism This type of question will require an evaluation or discussion of areas of law which have affected the division of powers between the states and Commonwealth. Generally, it will require some discussion of the trend in constitutional interpretation to interpret the powers of the Commonwealth expansively. It is important to understand federalism as a concept and the rationale behind it. Key topics include external affairs power, corporations power, grants power and IGI.

19 What is the most significant criticism you would make of the Engineers Case? This is a question asking about a specific case, in order to answer it you would need a strong knowledge about this particular case and its impact. It is also asking for you to single out one thing as a key criticism – as the significance of the Engineers Case is the end of the Reserved Powers doctrine, the shift in the division of powers between Commonwealth and state is a logical criticism to make.

20 Example Introduction The most significant criticism to be made of the decision which the High Court reached in the Engineers Case would be the challenge the decision has posed to federalism. The decision radically altered the federal balance of power by removing the reserved powers doctrine. This doctrine had operated to protect state legislative power by preventing the Commonwealth from legislating in areas where power was reserved. The impact of the decision in Engineers has been to skew the federal division of power in favour of the Commonwealth, giving the federal parliament expansive powers, particularly in areas of external affairs, corporations and grants of financial assistance to states. This expansive approach to Constitutional interpretation has posed a massive challenge to federalism in Australia and the impact which the Engineers Case had in precipitating this is the most significant reason for criticisms of the decision.

21 Body Paragraph 1 What was the position prior to Engineers? The R.P doctrine operated, as per Barger. Summarise the facts in 1-2 sentences. Industrial Relations claim lodged in arbitration court and defendants included state government employees. Under reserve powers doctrine, the Court could not have affected relations between state government and employees. What was held and why. The R.P doctrine was abolished – note obiter comments from court which set out reciprocal powers, indicating the court did not intend to challenge federalism.

22 Body Paragraph 2 As the Reserve Powers doctrine no longer limits the legislative power of the Commonwealth, the heads of power under the Constitution have been interpreted in ways that see the Commonwealth move into traditional areas of state power. Eg. EAP s.51(xxix) Judicial discussion in both Tas Dams and Koowarta provide great insight on federalism.

23 Murphy J in Koowarta There are limitations imposed on the ability of the Commonwealth to enter into treaties in relation to its external affairs power, such as s 116 which provides that the Commonwealth cannot legislate with respect to religion, but if otherwise, unless confined by Parliament, the external affairs power remains unconfined. Held that there was plenary Cth Power.

24 Mason J in Koowarta Not sensible to suggest that these powers can be left to the states and that the states can then be expected to act uniformly and cooperatively in implementing these powers. If there is a disturbance of the balance of power between the Commonwealth and the States, then it is a necessary disturbance and one which is essential to Australia’s participation in world affairs.

25 Gibbs CJ in Koowarta It is impossible to envisage any area of power which could not become the subject of Commonwealth legislation if the commonwealth became a party to an appropriate international agreement. To understand the power as becoming available merely because Australia enters into an international agreement or because the subject matter is one of international concern is to misunderstand the Federal Nature of the Constitution The Federal balance of power achieved by the Constitution could be destroyed. This would make s.51 (xxix) a mechanism by which the Commonwealth could achieve unlimited legislative power.

26 Deane J in Tas Dams It is generally best to interpret the provisions of the Constitution in a broad scope except for where the context indicates that a narrower interpretation will best carry out the operation and purpose of that instrument. In the modern world, there are few subjects which are not prone to becoming treaties and the distinction between matters which are internal and matters which are external has, for all practical purposes, disappeared. External affairs has no precise meaning and its construction must be informed by the federal nature of the Australian Constitution rather than the unlimited scope of treaty making power.

27 Body Para 3 Similarly, the Corporations Power under s.51(xx) has been given a very expansive interpretation. This is primarily illustrated by the High Court decision in the Workchoices Case.

28 Majority Judgment in Workchoices Concerns about federalism are irrelevant – should not be concerned about federalism but should just ask whether the law does in fact direct itself at a Constitutional Corporation.

29 Kirby J in Workchoices The majority reasoning opens the way for the Commonwealth to radically reduce application of state laws where they have operated for more than a century, eg. private schools and private hospitals; opportunistic shift in federalism and a radical shift in the make-up of the Australian nation. HCA charged with defending the checks and balances of government within our system – the present age shows the necessity of rediscovering the fundamental federal nature of the Constitution.

30 Kirby J Cont. Federalism is a political system of particular value in contemporary circumstances as it protects the freedom of individuals when the law, politics and technology all tend to pull in the other direction. ‘Once a Constitutional Rubicon such as this is crossed, there is rarely a going back’.

31 Body Para 4 The Grants Power under s.96 also provides an example of the challenge posed to federalism in Australia. - Discuss vertical fiscal imbalance in favour of the Commonwealth. The only limitations are that states cannot be coerced and that the state must be constitutionally capable of fulfilling the conditions. Menzies on the First Uniform Tax Case; the end of the federal era in Australia.

32 Conclusion The Engineers Case was a landmark case in Australian Constitutional Law. It removed the doctrine of reserved powers which had been a source of protection for the states and enabled the powers of the Commonwealth to be read far more expansively. Federalism in Australia is currently very tenuous as the Commonwealth powers broaden to an extent where the states become almost legislatively crippled. The most significant criticism to be made of Engineers Case is the role which it played in creating this situation.

33 Addressing Problem Questions Is the legislation Commonwealth or State legislation? - if state; is there a manner and form provision? Is it doubly entrenched? Is it too onerous? Is the 2 nd law a CPP law? Is there any IGI breach – state purporting to regulate relationship between Commonwealth and subjects (Cigamatic) as distinct from exercise (Henderson)? Does the legislation confer power on a state court which is incompatible with judicial independence or public confidence in the judiciary (Kable)? Does the law burden interstate commerce with a protectionist and discriminatory effect without a non-discriminatory aim (Cole v Whitfield)? Is it inconsistent with rights conferred by a Cth law (Ansett) or does it attempt to legislate in an area where the Cth intends to cover the field (Clyde v Cowburn)?

34 Addressing Problem Questions Continued If Commonwealth; does it fall within the direct or incidental scope of a head of power? - EAP s.51(xxix) - treaty -international concern -international relations - extraterritoriality -Corporations s.51(xx) -direct; object of command test -incidental; adoption of Re Pacific Coal statement which extends to employees -Grants Power s.96

35 Addressing Problem Question Continued Limitations; IGI – impair capacity of state to function as gov (Austin). Consider cases of QEC and State Banking. S.O.P; Is court other than Ch 3 exercising JP (Wheat Case) or Is Ch 3 court exercising Non JP (Boilermakers)? - Exceptions; Delegation (Princ 1) and Incidental/Persona Designata (Princ 2). Implied Freedoms ; Political Communication (Lange). Is there a burden on communication which is political? Is there merit to burden and is means appropriate and adapted?

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