March 2018 EXECUTIVE POWER ISSUE
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The Environment Is All Rights: Human Rights, Constitutional Rights and Environmental Rights
Advance Copy THE ENVIRONMENT IS ALL RIGHTS: HUMAN RIGHTS, CONSTITUTIONAL RIGHTS AND ENVIRONMENTAL RIGHTS RACHEL PEPPER* AND HARRY HOBBS† Te relationship between human rights and environmental rights is increasingly recognised in international and comparative law. Tis article explores that connection by examining the international environmental rights regime and the approaches taken at a domestic level in various countries to constitutionalising environmental protection. It compares these ap- proaches to that in Australia. It fnds that Australian law compares poorly to elsewhere. No express constitutional provision imposing obligations on government to protect the envi- ronment or empowering litigants to compel state action exists, and the potential for draw- ing further constitutional implications appears distant. As the climate emergency escalates, renewed focus on the link between environmental harm and human harm is required, and law and policymakers in Australia are encouraged to build on existing law in developing broader environmental rights protection. CONTENTS I Introduction .................................................................................................................. 2 II Human Rights-Based Environmental Protections ................................................... 8 A International Environmental Rights ............................................................. 8 B Constitutional Environmental Rights ......................................................... 15 1 Express Constitutional Recognition .............................................. -
Submissions of the Plaintiffs
,, . IN THE HIGH COURT OF AUSTRALIA SYDNEY REGISTRY No. S389 of 2011 BETWEEN: British American Tobacco Australasia Limited ACN 002 717 160 First Plaintiff British American Tobacco (Investments) Limited 10 BCN 00074974 Second Plaintiff British American Tobacco Australia Limited ACN 000 151 100 Third Plaintiff and The Commonwealth of Australia 20 Defendant SUBMISSIONS OF THE PLAINTIFFS Part 1: Publication of Submissions 1. These submissions are in a form suitable for publication on the internet. Part II: Issues Arising in the Proceedings 2. The issues arising in these proceedings are: (a) First, whether, apart from s. 15 of the Tobacco Plain Packaging Act 2011 (Cth) (TPP Act), some or all of the provisions of the TPP Act would effect an acquisition of any, and if so what, property of the plaintiffs or any of them otherwise than on 30 just terms (within the meaning of s. 51 (xxxi) of the Constitution. (b) S econdfy, whether s. 15 of the TPP Act is a valid law of the Commonwealth. Part III: Notices under Section 78B of the Judiciary Act 1903 (Cth) 3. The plaintiffs have served notices under s. 78B of the Judiciary Act 1903 (Cth). Part IV: Material Facts 4. The material facts are set out in Section A of the Questions Reserved dated 27 February 2012. Date of document: 26 March 2012 Filed on behalf of: The plaintiffs Prepared by: Corrs Chambers Westgarth riLED Lawyers Solicitors Code 973 Level32 Tel: (02) 9210 6 00 ~ 1 "' c\ '"l , .., "2 Z 0 l';n.J\\ r_,.., I Governor Phillip Tower Fax: (02) 9210 6 11 1 Farrer Place Ref: BJW/JXM 056488 Sydney NSW 2000 JamesWhitmke -t'~r~~-~·r:Jv •,-\:' ;<()IIRNE ' 2 Part V: Plaintiffs' Argument A. -
Palmer-WA Pltf.Pdf
H I G H C O U R T O F A U S T R A L I A NOTICE OF FILING This document was filed electronically in the High Court of Australia on 23 Apr 2021 and has been accepted for filing under the High Court Rules 2004. Details of filing and important additional information are provided below. Details of Filing File Number: B52/2020 File Title: Palmer v. The State of Western Australia Registry: Brisbane Document filed: Form 27A - Appellant's submissions-Plaintiff's submissions - Revised annexure Filing party: Plaintiff Date filed: 23 Apr 2021 Important Information This Notice has been inserted as the cover page of the document which has been accepted for filing electronically. It is now taken to be part of that document for the purposes of the proceeding in the Court and contains important information for all parties to that proceeding. It must be included in the document served on each of those parties and whenever the document is reproduced for use by the Court. Plaintiff B52/2020 Page 1 IN THE HIGH COURT OF AUSTRALIA No B52 of 2020 BRISBANE REGISTRY BETWEEN: CLIVE FREDERICK PALMER Plaintiff and STATE OF WESTERN AUSTRALIA 10 Defendant PLAINTIFF’S OUTLINE OF SUBMISSIONS Clive Frederick Palmer Date of this document: 23 April 2021 Level 17, 240 Queen Street T: 07 3832 2044 Brisbane Qld 4000 E: [email protected] Plaintiff Page 2 B52/2020 -1- PART I: FORM OF SUBMISSIONS 1. These submissions are in a form suitable for publication on the Internet. PART II: ISSUES PRESENTED 2. -
PRIVATE RIGHTS, PROTEST and PLACE in BROWN V TASMANIA
PRIVATE RIGHTS, PROTEST AND PLACE IN BROWN v TASMANIA PATRICK EMERTON AND MARIA O’SULLIVAN* I INTRODUCTION Protest is an important means of political communication in a contemporary democracy. Indeed, a person’s right to protest goes to the heart of the relationship between an individual and the state. In this regard, protest is about power. On one hand, there is the power of individuals to act individually or a collective to communicate their concerns about the operation of governmental policies or business activities. On the other, the often much stronger power wielded by a state to restrict that communication in the public interest. As part of this, state authorities may seek to limit certain protest activities on the basis that they are disruptive to public or commercial interests. The question is how the law should reconcile these competing interests. In this paper, we recognise that place is often integral to protest, particularly environmental protest. In many cases, place will be inextricably linked to the capacity of protest to result in influence. This is important given that the central aim of protest is usually to be an agent of change. As a result, the purpose of any legislation which seeks to protect business activities from harm and disruption goes to the heart of contestations about protest and power. In a recent analysis of First Amendment jurisprudence, Seidman suggests that [t]here is an intrinsic relationship between the right to speak and the ownership of places and things. Speech must occur somewhere and, under modern conditions, must use some things for purposes of amplification. -
3 0 APR 2018 and STATE of VICTORIA the REGISTRY BRISBANE Plaintiff 10 ANNOTATED SUBMISSIONS for the ATTORNEY-GENERAL for the STATE of QUEENSLAND (INTERVENING)
IN THE HIGH COURT OF AUSTRALIA No. M2 of2017 MELBOURNEREG~IS~T~R~Y--~~~~~~~ BETWEEN: HIGH COURT OF AUSTRALIA CRAIG WILLIAM JOHN MINOGUE FILED Plaintiff 3 0 APR 2018 AND STATE OF VICTORIA THE REGISTRY BRISBANE Plaintiff 10 ANNOTATED SUBMISSIONS FOR THE ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (INTERVENING) PART I: Internet publication I. These submissions are in a form suitable for publication on the Internet. PART 11: Basis of intervention 2. The Attorney-General for the State of Queensland ('Queensland') intervenes in these 20 proceedings in support of the defendant pursuant to s 78A of the Judiciary Act 1903 (Cth). PART Ill: Reasons why leave to intervene should be granted 3. Not applicable. PART IV: Submissions 30 Summary 4. Queensland's written submissions are confined to addressing the novel arguments of the plaintiff directed to constitutionalising his particular conception of the rule of law. The plaintiff submits that if ss 74AAA and 127A ofthe Corrections Act 1986 (Vie) apply to his parole application then they operate retrospectively and that such retrospectivity is inconsistent with the constitutional assumptions of the rule of law and therefore 40 invalid. 1 1 Plaintiffs submissions, 2 [4](c), 19 [68]; (SCB 84(36), 85(37)(c)). Intervener's submissions Mr GR Cooper Filed on behalf of the Attorney-General for the State CROWN SOLICITOR of Queensland (Intervening) 11th Floor, State Law Building Form 27c 50 Ann Street, Brisbane 4000 Dated: 30 April2018 Per Kent Blore Telephone 07 3239 3734 Ref PL8/ATT110/3710/BKE Facsimile 07 3239 6382 Document No: 7880475 5. Queensland's primary submission is that ss 74AAA and 127 A ofthe Corrections Act do not operate retrospectively as they merely prescribe criteria for the Board to apply in the future. -
Before the High Court
Before the High Court Comcare v Banerji: Public Servants and Political Communication Kieran Pender* Abstract In March 2019 the High Court of Australia will, for the first time, consider the constitutionality of limitations on the political expression of public servants. Comcare v Banerji will shape the Commonwealth of Australia’s regulation of its 240 000 public servants and indirectly impact state and local government employees, cumulatively constituting 16 per cent of the Australian workforce. But the litigation’s importance goes beyond its substantive outcome. In Comcare v Banerji, the High Court must determine the appropriate methodology to apply when considering the implied freedom of political communication’s operation on administrative decisions. The approach it adopts could have a significant impact on the continuing development of implied freedom jurisprudence, as well as the political expression of public servants. I Introduction Australian public servants have long endured an ‘obligation of silence’.1 Colonial civil servants were subject to strict limitations on their ability to engage in political life.2 Following Federation, employees of the new Commonwealth of Australia were not permitted to ‘discuss or in any way promote political movements’.3 While the more draconian of these restrictions have been gradually eased, limitations remain on the political expression of public servants. Until now, these have received surprisingly little judicial scrutiny. Although one of the few judgments in this field invalidated the impugned regulation,4 the Australian Public Service (‘APS’) has continued to limit the speech of its employees. * BA (Hons) LLB (Hons) (ANU); Legal Advisor, Legal Policy & Research Unit, International Bar Association, London, England. -
What Is Executive Power?
1 What is Executive Power? I Introduction In the 1988 case of Davis v Commonwealth, Mason J said of executive power that it is potentially very broad yet ‘its scope [is not] amenable to exhaustive definition.’1 Executive power is a power with significant content but ill-defined limits. It is not the particular power of lawmaking, or of determining disputes but, rather, the general power to carry out all the other functions of government. In the Westminster tradition, all governmental power derived originally from the Crown2 and independent legislative3 and judicial4 functions were a subsequent development. The Coronation Charter of Henry I, the immediate successor to William I and, therefore, the first postconquest king to have a coronation as such, illustrates the breadth of the original power of the Crown (the following excerpts indicating executive, judicial and legislative power respectively): 1 Davis v Commonwealth (1988) 166 CLR 79, 93. 2 Magna Carta 1215 (Imp); NSW v Commonwealth (1975) 135 CLR 337, 480, 487–91 (‘Seas and Submerged Lands Case’) (Jacobs J); J H Baker, An Introduction to English Legal History, (Butterworths, 2nd ed, 1979) 12–15; John Gillingham, ‘The Early Middle Ages 1066–1290’ in Kenneth Morgan (ed), The Oxford Illustrated History of Britain (Oxford University Press, 1984), 104; Elizabeth Wicks, The Evolution of a Constitution: Eight Key Moments in British Constitutional History(Hart, 2006) 3–6; cf Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 137–8 Mason CJ discussing ‘sovereign power which resides in the people’ by virtue of the mechanism for constitutional amendment being a referendum under s 128 of the Constitution. -
Court of Australia Bill 2012 and the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012
Submission to the Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the Military Court of Australia Bill 2012 and the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 The purpose of this submission is to examine four key objections which have been raised to the establishment of a permanent military court in Australia in the form of the Military Court of Australia. The submission is not intended to be comprehensive, but rather seeks to consider some of the legal issues which arise in relation to these four objections.1 The authors do not consider that the first three objections are legitimate bases to reject the establishment of the Military Court of Australia, but are concerned that the fourth objection (the lack of jury trial) may give rise to a future constitutional challenge. The four objections to the establishment of a permanent military court which have been raised are as follows: 1. The establishment of a permanent court is unnecessary given that the current system is not defective This objection is based on the idea that if the system is not broken it does not need fixing. The current system of courts martial and Defence Force magistrates (reintroduced after the High Court struck down the Australian Military Court in Lane v Morrison2), has certainly survived a number of constitutional challenges in the High Court – although often with strong dissents. The strength of those dissents, the continued shifts of opinion within the High Court, and the absence of a clear and coherent consensus within that Court on the extent to which the specific constitutional powers relied upon by the Commonwealth3 can support a military justice system operating outside Chapter III of the Commonwealth Constitution, means that the validity of the current system is assumed rather than assured. -
Chapter One the Seven Pillars of Centralism: Federalism and the Engineers’ Case
Chapter One The Seven Pillars of Centralism: Federalism and the Engineers’ Case Professor Geoffrey de Q Walker Holding the balance: 1903 to 1920 The High Court of Australia’s 1920 decision in the Engineers’ Case1 remains an event of capital importance in Australian history. It is crucial not so much for what it actually decided as for the way in which it switched the entire enterprise of Australian federalism onto a diverging track, that carried it to destinations far removed from those intended by the generation that had brought the Federation into being. Holistic beginnings. How constitutional doctrine developed through the Court’s decisions from 1903 to 1920 has been fully described elsewhere, including in a paper presented at the 1995 conference of this society by John Nethercote.2 Briefly, the original Court comprised Chief Justice Griffith and Justices Barton and O’Connor, who had been leaders in the federation movement and authors of the Commonwealth of Australia Constitution. The starting-point of their adjudicative philosophy was the nature of the Constitution as an enduring instrument of government, not merely a British statute: “The Constitution Act is not only an Act of the Imperial legislature, but it embodies a compact entered into between the six Australian colonies which formed the Commonwealth. This is recited in the Preamble to the Act itself”.3 Noting that before Federation the Colonies had almost unlimited powers,4 the Court declared that: “In considering the respective powers of the Commonwealth and the States it is essential to bear in mind that each is, within the ambit of its authority, a sovereign State”.5 The founders had considered Canada’s constitutional structure too centralist,6 and had deliberately chosen the more decentralized distribution of powers used in the Constitution of the United States. -
Wilkie V Commonwealth and Glenn Ryall Parliamentary Control of Appropriations
Wilkie v Commonwealth and Glenn Ryall Parliamentary Control of Appropriations In September 2017 the High Court rejected two challenges to the legality of the Australian Marriage Law Postal Survey in Wilkie v Commonwealth. From the Parliament’s perspective this case was significant as it canvassed important issues relating to the Parliament’s role in appropriating money, particularly for urgent expenditure. This paper will briefly outline Parliament’s role in making appropriations and then consider the significance of the case to the extent that it emphasised that it is largely the role of the Parliament (and not the courts) to exercise control over appropriations. The paper concludes with a discussion of some options to increase parliamentary oversight of the appropriation mechanism known as the Advance to the Finance Minister (the Advance). Background The proceedings challenged the lawfulness of measures taken by the Commonwealth Government ‘to direct and to fund the conduct of a [voluntary] survey of the views of Australian electors on the question of whether the law should be changed to allow same-sex couples to marry’.1 These measures followed the defeat in the Senate2 of a government bill—the Plebiscite (Same-Sex Marriage) Bill 2016—which would have authorised the holding of a compulsory plebiscite and appropriated the funds to pay for it.3 The plaintiffs’ arguments While the challenges also raised issues such as standing and the scope of the functions of the Australian Bureau of Statistics (ABS), of particular relevance to the Parliament was the plaintiffs’ challenge to the mechanism used to fund the survey— a determination made under section 10 of Appropriation Act (No. -
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Christos Mantziaris* THE FEDERAL DIVISION OF PUBLIC INTEREST SUITS BY AN ATTORNEY-GENERAL ABSTRACT Until recently, the orthodox position was that the Attorney–General of any polity had standing in a public interest suit merely by showing that the suit was brought to enforce compliance with the Constitution. This liberal and pragmatic approach to standing was reinforced by a system of statutory rights of removal of causes to the High Court and rights of intervention and the ever-broadening standing rules for ordinary citizens. This development ended in the Bishops Case (2002).1 In that case, the majority refused the federal Attorney-General standing because he could not show the existence of a ‘matter’ under Chapter III of the Constitution. The majority derived from the concept of ‘matter’ a new constitutional implication limiting the role of each Attorney-General within the federation. The real animus of this new restriction lies in judicial choices about competing public interests in the administration of justice and the appropriate response to the problem of selective political enforcement of the law. The Court disguised these policy choices in the matter concept. The reasoning is symptomatic of the current High Court’s reasoning on Chapter III matters. * BA (Hons) (Syd), LLB (UNSW), PhD (ANU), Sydney Bar. This article is based on a paper presented at the conference ‘Dead Hands or Living Tree? and Other Constitutional Conundrums: A Festschrift in Honour of Geoffrey Lindell’, Australian Association of Constitutional Lawyers, University of Melbourne, 6–8 December 2002. For comments on this paper, I thank Tony Connolly, Leighton McDonald, Carol Harlow, Jane Stapleton, Ted Thomas, Kristin Walker, Ernst Willheim and Leslie Zines. -
Murdoch University School of Law Michael Olds This Thesis Is
Murdoch University School of Law THE STREAM CANNOT RISE ABOVE ITS SOURCE: THE PRINCIPLE OF RESPONSIBLE GOVERNMENT INFORMING A LIMIT ON THE AMBIT OF THE EXECUTIVE POWER OF THE COMMONWEALTH Michael Olds This thesis is presented in fulfilment of the requirements of a Bachelor of Laws with Honours at Murdoch University in 2016 Word Count: 19,329 (Excluding title page, declaration, copyright acknowledgment, abstract, acknowledgments and bibliography) DECLARATION This thesis contains no material which has been accepted for the award of any other degree or diploma in any other University. Further, to the best of my knowledge or belief, this thesis contains no material previously published or written by another person except where due reference is made in the text. _______________ Michael Olds ii COPYRIGHT ACKNOWLEDGMENT I acknowledge that a copy of this thesis will be held at the Murdoch University Library. I understand that, under the provisions of s 51(2) of the Copyright Act 1968 (Cth), all or part of this thesis may be copied without infringement of copyright where such reproduction is for the purposes of study and research. This statement does not signal any transfer of copyright away from the author. Signed: ………………………………… Full Name of Degree: Bachelor of Laws with Honours Thesis Title: The stream cannot rise above its source: The principle of Responsible Government informing a limit on the ambit of the Executive Power of the Commonwealth Author: Michael Olds Year: 2016 iii ABSTRACT The Executive Power of the Commonwealth is shrouded in mystery. Although the scope of the legislative power of the Commonwealth Parliament has been settled for some time, the development of the Executive power has not followed suit.