1. Legal Institutions
Topic 3 Glenn Dennett

2. The Rule of Law
“The doctrine of English law expounded by Dicey, in Law of the Constitution, that all men are equal before the law whether they are officials or not … so that the acts of officials in carrying out the behests of the executive government are cognizable by the ordinary courts and judged by the ordinary law, as including any special powers, privileges or exemptions attributed to the Crown by prerogative or statute. So far as offences are concerned, an offender will not be punished except for a breach of the ordinary law, and in the ordinary courts: there is here an absence of the exercise of arbitrary power. Further, the fundamental rights of the citizen; the freedom of the person, the freedom of speech and freedom of meeting or association, are rooted in the ordinary law, and not upon any special “constitutional guarantees.” Osborn’s Concise Law Dictionary

3. Rule of law ‘Blind’ justice Scales and sword of justice
Dicey and the written federal constitution

4. The Rule of Law: Rankings 2016 (world justice project)
Australia – ranked 0.81
1 is the strongest adherence to the rule of law)
global ranking 11 from 113 countries and dropped one spot

5. Australia and the rule of law: problems?
No discrimination in Criminal Law (0.53/1)
No unreasonable delays in justice systems (score 0.6/1)
Effective Correctional System (0.64/1)
Access and affordability of Civil Justice (0.48/1)
Equal treatment before the law with no discrimination (0.65/1)

6. Recent statement by the Federal Government (20 April 2017)

7. Legal Institutions
The institutions which enforce and uphold this rule of law in Australia are:
Parliament: which makes the laws
The Executive: which administers the laws, and
The Judiciary: which declares the law, and what the rights of the individual are under the law.

8. Separation of Powers
Parliament
Executive
Courts/Judiciary

9. Parliamentary Education Office (www.peo.gov.au)

10. http://www.cefa.org.au/ccf/democracy-turkey-v-australia and below the English Civi War 1642-1651

11. Separation of Powers Montesquieu 1689-1755 The Spirit of the Laws
Geneva 1748

12. The Federal Constitution and the separation of powers
First three chapters echo separation
But change is constant

13. Not a complete separation
Australia does not have a complete separation of powers because some of the roles of the Parliament, the Executive and the Judiciary overlap.
the Prime Minister and ministers are part of the Executive and the Parliament (Westminster system of government).
High Court judges, the Prime Minister and ministers are officially appointed by the Governor-General, who is part of the Parliament and the Executive.

14. The Queen: Constitutional Monarchy

15. Parliament
The Queen – as represented by the Governor-General or Governor
The Upper House – Senate or Legislative Council
The Lower House – House of Representatives or Legislative Assembly

16. Bi-cameral legislature
Two houses of Parliament
Except Queensland
Same as UK

17. Responsible Government
Responsible government means that a party, or coalition of parties, must maintain the support of the majority of members of the House of Representatives in order to remain in government. This provides another check on the Executive, ensuring they remain accountable to the Parliament and do not abuse their power.
The Parliament authorises the Executive Government (often simply called the government or the Executive) to spend public money by agreeing to government proposals for expenditure and taxation, scrutinises the administrative actions of the government and serves as a forum for the debate of public policy.

18. The UK Parliamentary model: bicameral legislature + the sovereign
House of Lords
Queen
Elizabeth II
House of Commons

19. New South Wales parliament
Legislative Council
Legislative Assembly
S3 NSW Constitution
NSW Governor David Hurley

20. Commonwealth parliament
House of Representatives
Senate
Governor General Sir Peter Cosgrove
S1 Constitution

21. Federal Parliament
The Senate - 76 senators, twelve from each of the six states and two from each of the mainland territories. It shares the power to make laws with the other House of the Parliament, the House of Representatives.
The People’s House’ or the ‘house of government’. The party, or parties, that hold a majority of seats in the House form government. There are currently 150 Members of the House of Representatives who each represent an electorate.

22. From bill to law in Commonwealth Parliament
A bill, which is a formal document prepared in the form of a draft Act, is no more than a proposal for a law or a change to the law. A bill becomes an Act—a law—only after it has been passed in identical form by both Houses of the Parliament and has been assented to by the Governor-General.
Two readings …then a third in the House and then onto the Senate (98% of bills originate in the House of Rep.)

23. Making laws: Governor-General assents to an Act of Parliament

24. Parliamentary Power Parliamentary power in a Federal system
Constitutional Conventions
How many Parliaments? 8….
S51 Commonwealth Constitution

25. Australia: Federal System (a federation of 6 States and 2 Territories)
Council of Australian Governments

26. s51: Powers of Parliament
51.The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: - (i.) Trade and commerce with other countries, and among the States: (ii.) Taxation; but so as not to discriminate between States or parts of States: (iii.) Bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth: (iv.) Borrowing money on the public credit of the Commonwealth: (v.) Postal, telegraphic, telephonic, and other like services: (vi.) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth .(vii.) Lighthouses, lightships, beacons and buoys: (viii.) Astronomical and meteorological observations: (ix.) Quarantine: (x.) Fisheries in Australian waters beyond territorial limits: (xi.) Census and statistics: (xii.) Currency, coinage, and legal tender: (xiii.) Banking, other than State banking; …

27. (xiv.) Insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned: (xv.) Weights and measures: (xvi.) Bills of exchanging and promissory notes: (xvii.) Bankruptcy and insolvency: (xviii.) Copyrights, patents of inventions and designs, and trade marks: (xix.) Naturalisation and aliens: (xx.) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth: (xxi.) Marriage: (xxii.) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants: (xxiii.) Invalid and old-age pensions: (xxiiiA.) The provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances: (xxiv.) The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States: (xxv.) The recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States: (xxvi.) The people of any race, for whom it is deemed necessary to make special laws

28. (xxvii.) Immigration and emigration:
(xxviii.) The influx of criminals:
(xxix.) External Affairs:
(xxx.) The relations of the Commonwealth with the islands of the Pacific:
(xxxi.) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws:
(xxxii.) The control of railways with respect to transport for the naval and military purposes of the Commonwealth:
(xxxiii.) The acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State:
(xxxiv.) Railway construction and extension in any State with the consent of that State:
(xxxv.) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State:
(xxxvi.) Matters in respect of which this Constitution makes provision until the Parliament otherwise provides:
(xxxvii.) Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law:
(xxxviii.) The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia:
(xxxix.) Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.

29. States/Territories Northern Territory Australian Capital Territory
Source of power
Constitution
section 122 Government of territories                    The Parliament may make laws for the government of any territory … and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

30. Separation of Powers
Parliament
Executive
Courts/Judiciary

31. Parliamentary Education Office (www.peo.gov.au)

32. Westminster system (Responsible government)

33. Westminster system: responsible government

34. The Prime Minister... Is a member of Parliament
The member for Wentworth
Is the leader of the Government
Sits on the front bench in Parliament
Is the leader of the Executive
Leads Cabinet – composed of the Ministers

35. Federal Ministry http://www. aph. gov
Prime Minister
The Prime Minister is the head of the government. He or she achieves this position by being the elected leader of the party in government (in the case of a coalition government, the major party).
Cabinet
The Cabinet, consisting of senior Ministers presided over by the Prime Minister, is the government’s pre-eminent policy-making body. Major policy and legislative proposals are decided by the Cabinet. The Prime Minister selects Ministers for Cabinet positions.
Ministers
Ministers are selected by the Prime Minister. There are currently 30 Ministers. The maximum number can be increased by legislation. About 19 or so senior Ministers administer the major departments and are, usually, members of Cabinet. Other Ministers are responsible for particular areas of administration within a major department, or may be in charge of a small department. Ministers are appointed from both Houses of Parliament, although most (about two thirds) are Members of the House of Representatives.
Parliamentary Secretaries
Up to 12 Members and Senators are appointed by the Prime Minister as Parliamentary Secretaries to assist or represent Ministers in their administrative responsibilities.

36. U.S. Constitution Separation of powers/responsible government

37. Separation of Powers
Parliament
Executive
Courts/Judiciary

38. Courts in a Federal System
Law Courts Building
Queens Square
Sydney
Federal Court of Australia
NSW Supreme Court

39. NSW Judicial Hierarchy

40. Supreme Court Act 1970 – s 43
Section 43 Sittings (1) Any 3 or more Judges of Appeal constitute the Court of Appeal.

41. NSW Supreme Court

42. NSW Supreme Court
The Supreme Court is the highest court in NSW. It has unlimited civil jurisdiction and hears the most serious criminal matters.
The Court has both appellate and trial jurisdictions. The appellate courts are the:
Court of Appeal
Court of Criminal Appeal.
The trial work of the criminal and civil jurisdictions is divided between two Divisions:
the Common Law Division
the Equity Division.

43. NSW Court of Criminal Appeal

44. Federal Judicial Hierarchy

45. Australian Court Hierarchy

46. Jurisdiction
Original/appellate
Civil/Criminal

47. High Court of Australia

48. Source of power: Constitution
The Australasian Federation Conference delegates, Melbourne, February 1890

49. Source of power? Consitution
The first bench of the High Court: Barton, Griffith and O'Connor seated, with court officials in the background

50. The Earl of Hopetoun, first Governor-General of the Commonwealth of Australia
Australia's 9th Governor-General from and the first Australian born GG Sir Isaac Isaacs

51. First cabinet: Edmund Barton

52. Constitution
A constitution is an expression of the political will of the people, a statement, or an agreement, as to how the people are to be governed, by whom, and with what responsibilities. A constitution is a document, or a group of documents, laws or conventions, which outline the system of government for that state.

53. Australian Parliament House

54. Constitution may be:
Unwritten, resting mainly on custom or convention;
Written, in a formal legal form;
Flexible, capable of being amended by ordinary legislative enactment; or
Rigid (or entrenched), capable of being altered only by a special procedure – such as a referendum.

55. William Charles Wentworth

56. Federation process

57. US Bill of Rights

58. Constitution of the People’s Republic of China
Article 4. All nationalities in the People's Republic of China are equal. The state protects the lawful rights and interests of the minority nationalities and upholds and develops the relationship of equality, unity and mutual assistance among all of China's nationalities. Discrimination against and oppression of any nationality are prohibited; any acts that undermine the unity of the nationalities or instigate their secession are prohibited. The state helps the areas inhabited by minority nationalities speed up their economic and cultural development in accordance with the peculiarities and needs of the different minority nationalities. Regional autonomy is practised in areas where people of minority nationalities live in compact communities; in these areas organs of self- government are established for the exercise of the right of autonomy. All the national autonomous areas are inalienable parts of the People's Republic of China. The people of all nationalities have the freedom to use and develop their own spoken and written languages, and to preserve or reform their own ways and customs.

59. Constitution of the People’s Republic of China
Article 35. Citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.

60. Constitution of the People’s Republic of China
Article 36. Citizens of the People's Republic of China enjoy freedom of religious belief. No state organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion. The state protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the state. Religious bodies and religious affairs are not subject to any foreign domination.

61. Personal rights in the Australian Constitution
s41: Right to vote
R v Pearson; Ex parte Sipka (1983) 152 CLR 254
s51(xxxi): Acquisition of property on just terms
Minister of State for the Army v Dalziel (1944) 68 CLR 261
s80: Trial by jury
R v Archdall (1928) 41 CLR 128
s116: Freedom of religion
Krygger v Williams (1912) 15 CLR 366

62. Personal rights in the Australian Constitution
s117:Equal treatment of state residents
Davies and Jones v State of Western Australia (1904) 2 CLR 29
Street v Queensland Bar Association (1989) 168 CLR 461
Implied rights
Australian Capital Television Pty Ltd v Commonwealth (1992)177 CLR 106
Leeth v Commonwealth (1992) 174 CLR 455).