Debating the Nature and Ambit of the Commonwealth's Non-Statutory
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The Doctrine of Implied Intergovernmental Immunities: a Recrudescence? Thomas Dixon*
The Doctrine of Implied Intergovernmental Immunities: A Recrudescence? Thomas Dixon* The essential and distinctive feature of “a truly federal government” is the preservation of the separate existence and corporate life of each of the component States concurrently with that of the national government. Accepting that a number of polities are contemplated as coexisting within a federation does not, however, address the fundamental question of how legislative and executive powers are to be allocated among the constituent constitutional units inter se, nor the extent to which the various polities are immune from interference occasioned by their constitutional counterparts. These “federal” questions are fundamental as they ultimately define the prism through which one views the Constitution. Shifts in the lens have resulted in significant ramifications for intergovernmental relations. This article traces the development of the Melbourne Corporation doctrine in Australia, and undertakes a comparative analysis with the development of the cognate jurisprudence in the United States. Analysis is undertaken of the major Australian industrial relations decisions, such as the Amalgamated Society of Engineers v Adelaide Steamship Co Ltd, Re Australian Education Union; Ex parte Victoria, Queensland Electricity Commission v Commonwealth, and United Firefighters Union of Australia v Country Fire Authority, in this context. But one of the first and most leading principles on which the commonwealth and the laws are consecrated, is left the temporary possessors -
Two Countries Two Systems Anglo Australasian Lawyers' Society Chief Justice Robert French AC 9 September 2016, London
Vive la difference — two countries two systems Anglo Australasian Lawyers' Society Chief Justice Robert French AC 9 September 2016, London The United Kingdom and Australia have deep historical and constitutional connections and much in common in their culture and legal systems. However, there are important differences. Each is, with respect to the other, a foreign country. How that all came to be is part of the story of Australia's evolving nationhood. I say 'evolving nationhood' because even though 1 January 1901 was the birth date of the Commonwealth it did not mean that Australia sprang into existence fully formed as an independent nation in the global community of nations. Sir Owen Dixon, in an article published in the Law Quarterly Review in 1935, expressed the general view of our Constitution: It is not a supreme law purporting to obtain its force from the direct expression of a peoples' inherent authority to constitute a government. It is a statute of the British Parliament enacted in the exercise of its legal sovereignty over the law everywhere in the King's Dominions.1 Even after the Australian Constitution came into existence, the British Parliament retained legal sovereignty over Australia. The Colonial Laws Validity Act 1865 (Imp), another Imperial Act, continued in force. It provided for the invalidation of any colonial legislation which was repugnant to a British law applying to the colony by paramount force.2 In 1979, three Justices of the High Court in China Ocean Shipping Co v South Australia3 looked back and described the Australia of 1901 as a self-governing colony lacking political and constitutional independence.4 For nearly three decades after the Commonwealth came into existence, its executive power was not exercised as that of an independent nation in 1 Owen Dixon, 'The Law and the Constitution' (1935) 51 Law Quarterly Review 590, 597. -
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. -
THE IMPACT of HIGH COURT DECISIONS on the GOVERNANCE of AUSTRALIA I Regard It As a Great Honour to Be Asked to Give the Annual
THE IMPACT OF HIGH COURT DECISIONS ON THE GOVERNANCE OF AUSTRALIA I regard it as a great honour to be asked to give the annual Hal Wootten Lecture. Hal Wootten has been one of the most significant figures in Australian legal history. He was a practising barrister who became a Queens Counsel and the leader of the Industrial Bar. He was an innovative Supreme Court judge for 10 years. As Royal Commissioner into Aboriginal Deaths in Custody, he brought home to the consciousness of the Australian people that the real issue was not why so many Aboriginals were dying in prison – whether by suicide or otherwise - but why so many Aboriginals were in prison. These were great achievements. Nevertheless, many knowledgeable lawyers would say that his greatest legal achievement was developing this Law School and the Aboriginal Legal Service which commenced shortly after its foundation. That is because the object for which this Law School was founded will continue to be achieved long after those of us present tonight have gone. Lawyers and many others assume that he came to the Law School to achieve social justice for disadvantaged groups. No doubt that was one of the objects. But it would be more accurate to say that his purpose in coming to the Law School was to achieve justice for all. As he has been at pains to point out publicly, he saw a major object of a Law School as producing lawyers who would see the legal profession as having a duty to serve the whole of society. That meant 1 producing lawyers who had the ability to meet the needs of business, governments and ordinary citizens as well as disadvantaged groups like Aboriginals. -
1 Indigenous Recognition Or Is It a Doomed Mission?
Indigenous recognition or is it a doomed mission? Proposals to Constitutionally recognise Aboriginal and Torres Strait Islander peoples and their language are often divided into the symbolic as either amending the preamble or standalone provision(s) which acknowledge Indigenous identity and the more substantive such as a constitutional ban on racial discrimination or a First Nation’s voice to Parliament. While all Australian States have now adopted purely symbolic Indigenous recognition provisions, it has generally fallen out of favour at the national level. Are there any good reasons to adopt purely symbolic forms of Constitutional recognition? One should compare the experience of reforms in the Australian States. I Necessity and broader movements The present state of non-recognition of indigenous culture and language in the national Constitution can inflict harm and act as a form of oppression, As Taylor states, this can imprison individuals and groups in a false, distorted and reduced mode of being.1 Australian First Nation Peoples (FNP) as a minority group experience marginalisation from mainstream social, political and economic discourse.2 A preamble or standalone provision(s) recognising indigenous culture and language may assist in changing societal and legislative measures in favour of substantive equality. With the intended function of redeeming the document, unifying communities and reducing or eliminating barriers to entry in the otherwise marginalized activities. The proposal has national approval in principle by all major political parties, with intentions of furthering national reconciliation and to guard Australia’s reputation internationally through indigenous wellbeing.3 Instilling in the Constitution a restorative justice theory, whereby in the interests of equality indigenous are treated differently4 by their positive inclusion. -
The Chief Justice and the Governor-General Chief Justice Robert French
Melbourne University Law Review Annual Dinner The Chief Justice and the Governor-General Chief Justice Robert French 29 October 2009, Melbourne It would be something of an exaggeration to describe Law Reviews as the only drivers of intellectual discourse about law, justice and the legal system. In fact they have been rather harshly treated in the past in the United States and in Australia. Fred Rodell's famous denunciation "Goodbye to Law Reviews" was published in the 1930s in the United States 1 and in 1999 in the Australian Law Journal 2. His paper, bolstered in the Australian Law Journal by some like-minded sentiments from John Gava, included laments about bad writing, mediocrity and lack of humour. As to the latter, he observed: 3 The best way to get a laugh out of a law review is to take a couple of drinks and then read an article, any article, aloud. That can be really funny. ______________________ 1 F Rodell, "Goodbye to Law Review" (1936) 23 Virginia Laaw Review 38. 2 F Rodell, "Goodbye to Law Reviews" (1999) 73 Australian Law Journal 593. 3 F Rodell, "Goodbye to Law Reviews" (1999) 73 Australian Law Journal 593 at 594 2. On the other hand a measured defence and some praise was offered by Justice Kirby in 2002 in his piece "Welcome to Law Reviews" published in this University's Law Review. He said: 4 Law reviews can have a value that transcends even the work of the High Court of Australia. They must criticise, cajole and analyse the law. They must question received wisdom and current orthodoxy. -
EULOGY for PROFESSOR GEORGE WINTERTON Professor of Constitutional Law, University of Sydney
EULOGY FOR PROFESSOR GEORGE WINTERTON Professor of Constitutional Law, University of Sydney DELIVERED BY DR PETER GERANGELOS Faculty of Law, University of Sydney 12TH NOVEMBER 2008, ST FRANCIS OF ASSISI, PADDINGTON, SYDNEY We are gathered here today to farewell and celebrate a great man. ‘And they shall be as when the standard-bearer falleth,’ so say we of the Academy and the Legal Profession. I want to assure the family that all of us, and those of us here in spirit, stand with you and George, shoulder to shoulder, a vast congregation of advocates and witnesses testifying before the world and the courts of the Almighty to the brilliance and goodness of this special man, to a great scholar, lawyer and teacher, dedicated to his calling, leading member of the great constitutional councils of the nation, and most importantly devoted husband and father, a dedicated son and loving brother. The God, who wept at the death of his friend, at the loss of the only son of a widow, cannot but incline His ear to hear us. I will attempt to celebrate the real George Winterton, not an idealised version. George Winterton: • Professor of Constitutional Law, University of Sydney • Emeritus Professor, University of New South Wales. • Doctor of Juridical Science, Columbia University. • Doctor of Laws (honoris causa) University of Western Australia (his alma mater) from which he had received the university medal as an undergraduate. • Barrister of the Supreme Courts of New South Wales, Victoria and Western Australia. • Fulbright Scholar and the holder of numerous other academic prizes and awards. -
Crown and Sword: Executive Power and the Use of Force by The
CROWN AND SWORD EXECUTIVE POWER AND THE USE OF FORCE BY THE AUSTRALIAN DEFENCE FORCE CROWN AND SWORD EXECUTIVE POWER AND THE USE OF FORCE BY THE AUSTRALIAN DEFENCE FORCE CAMERON MOORE Published by ANU Press The Australian National University Acton ACT 2601, Australia Email: [email protected] This title is also available online at press.anu.edu.au National Library of Australia Cataloguing-in-Publication entry Creator: Moore, Cameron, author. Title: Crown and sword : executive power and the use of force by the Australian Defence Force / Cameron Moore. ISBN: 9781760461553 (paperback) 9781760461560 (ebook) Subjects: Australia. Department of Defence. Executive power--Australia. Internal security--Australia. Australia--Armed Forces. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying or otherwise, without the prior permission of the publisher. Cover design and layout by ANU Press. Cover photographs by Søren Niedziella flic.kr/p/ ahroZv and Kurtis Garbutt flic.kr/p/9krqeu. This edition © 2017 ANU Press Contents Prefatory Notes . vii List of Maps . ix Introduction . 1 1 . What is Executive Power? . 7 2 . The Australian Defence Force within the Executive . 79 3 . Martial Law . 129 4 . Internal Security . 165 5 . War . 205 6 . External Security . 253 Conclusion: What are the Limits? . 307 Bibliography . 313 Prefatory Notes Acknowledgement I would like to acknowledge the tremendous and unflagging support of my family and friends, my supervisors and my colleagues in the writing of this book. It has been a long journey and I offer my profound thanks. -
Bibliography
Select Bibliography [APP.10] CASEBOOKS .................................................................................................................. 2 [APP.20] REFERENCE BOOKS ...................................................................................................... 2 [APP.20] Annotations of Commonwealth Constitution .......................................... 2 [APP.30] Historical background ................................................................................. 2 [APP.60] Constitutional reform proposals: Official publications ........................... 11 [APP.70] Bibliographies ............................................................................................. 12 [APP.80] High Court .................................................................................................. 13 [APP.90] Justices ........................................................................................................ 16 [APP.480]CHAPTER 1: CONSTITUTIONAL FUNDAMENTALS ................................................. 27 [APP.490]CHAPTER 2: PARLIAMENTARY SOVEREIGNTY AND STATE CONSTITUTIONAL LAW .............................................................................................................................. 33 [APP.500]CHAPTER 3: THE EXECUTIVE ..................................................................................... 35 [APP.510]CHAPTER 4: INCONSISTENCY .................................................................................. 41 [APP.520]CHAPTER 5: COMMERCE AND CORPORATIONS .................................................. -
'Executive Power' Issue of the UWA Law Review
THE UNIVERSITY OF WESTERN AUSTRALIA LAW REVIEW Volume 43(2) March 2018 EXECUTIVE POWER ISSUE Introduction Dr Murray Wesson ............................................................................................................. 1 Executive Power in Australia - Nurtured and Bound in Anxiety The Hon Robert French AC ............................................................................................ 16 The Strange Death of Prerogative in England Thomas Poole .................................................................................................................... 42 Judicial Review of Non-Statutory Executive Action: Australia and the United Kingdom Amanda Sapienza .............................................................................................................. 67 Section 61 of the Commonwealth Constitution and an 'Historical Constitutional Approach': An Excursus on Justice Gageler's Reasoning in the M68 Case Peter Gerangelos ............................................................................................................. 103 Nationhood and Section 61 of the Constitution Dr Peta Stephenson ........................................................................................................ 149 Finding the Streams' True Sources: The Implied Freedom of Political Communication and Executive Power Joshua Forrester, Lorraine Finlay and Augusto Zimmerman .................................. 188 A Comment on How the Implied Freedom of Political Communication Restricts Non-Statutory Executive Power -
Inaugural George Winterton Lecture Sydney Law School, the University of Sydney
Inaugural George Winterton Lecture Sydney Law School, The University of Sydney The Executive Power Chief Justice RS French Sydney, 18 February 2010 It is an honour to have been asked to deliver this inaugural lecture in celebration of the life and work of the late Professor George Winterton. It is nevertheless an honour tinged with sadness and one which I wish had not come to pass. George's death in 2008, although the result of an illness he had battled for a long time, was untimely. He still had much to give to constitutional scholarship in this country, to public debate about the republic and to his family, his wife Ros and their children, and to his friends, including Peter Gerangelos who organised this lecture. I have chosen "The Executive Power" as my topic as it was a subject which occupied a significant part of George's scholarship. His book Parliament, the Executive and the Governor-General: a constitutional analysis1, published in 1983, was a seminal work in the field. Professor Geoffrey Sawer at the time described it as "a most impressive piece of scholarship, quite the most thorough examination of the question yet written". ______________________ 1 Winterton G, Parliament, the Executive and the Governor-General: a constitutional analysis (Melbourne: Melbourne University Press, 1983). 2. I do not pretend to match the breadth or the depth of George Winterton's thinking on the subject. His body of work and that of his colleagues in the Academy in this, as in other areas of legal scholarship, is neither forensic nor judicial. -
Submission to the Joint Select Committee on Constitutional
Submission to the Joint Select Committee on! Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples! by! Nick Hobson DFC, AFC! ! The Expert Panel’s report on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution was presented to the then Prime Minister, The Hon Julia Gillard MP, on 16 January 2012. Subsequently, the incumbent Prime Minister, The Hon Tony Abbott MP, on Australia Day this year, re-iterated his strong belief that recognising Australia's first people would be completing the constitution more than changing it.! ! Constitutional change is never a guaranteed event; historically, the people of the Commonwealth have only agreed to 8 out of the 44 referenda that have been submitted to them. Many commentators suggest that bi-partisan support will garnish the required result in respect of indigenous constitutional recognition. That said, there have been two referenda which received bipartisan support but never passed muster. They are the simultaneous elections -1977 and the aviation - 1937 referenda.! ! Additionally, the lowest percentage formal vote of 54.39% for the bottom rung of the successful referenda so far, along with the constitutional double majority requirement, already starts to raise the hurdle to a level that will be difficult to achieve - not impossible though, just difficult! It would also seem, that to reach the highest percentage formal vote of 90.77% as was the case with the 1967 referendum, could be nothing more than a pipe dream. None-the-less, such known difficulties