Introduction to Australian Public Law.

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Full Title Copyright Preface Table of Cases Table of Statutes Abbreviations Table of Contents Chapter 1: The Scope of Public Law INTRODUCTION FORMS OF PUBLIC LAW Commonwealth Constitution State Constitution Acts Acts of Parliament Delegated or Subordinate Legislation Australian Common Law Constitutional Practice International Law Martial Law CONSTITUTIONS AND CONSTITUTIONALISM THE CONSTITUTION PARTS OF THE CONSTITUTION The Legislature The Judiciary The Executive Government The Crown Governor-General of the Commonwealth and the Governor of a state Prime Minister of the Commonwealth and the ministers Public service FEDERALISM SOVEREIGNTY AND INDEPENDENCE THE AUSTRALIAN ADVANTAGE Attitude Towards Power A Long Period of Constitution-Making Growth of Political Stability Political Moderation and Flexibility A Basic Awareness, and Acceptance, of the Constitutional Order by the General Populace Chapter 2: Indigenous Australians and Public Law INTRODUCTION SOVEREIGNTY BY SETTLEMENT International Law on the Acquisition of Colonies in the 18th Century Terra Nullius as an International Law Concept British Perceptions of Australia Mabo Treatment of Terra Nullius LAND RIGHTS Land Rights Pre-Mabo The Push for Legal Recognition of Native Title Mabo Post-Mabo Developments WHETHER ABORIGINES ARE SUBJECT TO THE LAW: SOVEREIGNTY Application of the Criminal Law The 19th century debate The current position CONSTITUTIONAL RECOGNITION The Present Commonwealth Position Proposed Recognition in the Commonwealth Constitution Recognition in State Constitutions The Stolen Generation Chapter 3: The Rule of Law INTRODUCTION RULE BY LAW VS RULE BY MEN NO SUSPENSION OF, OR DISPENSING WITH, THE LAWS BY THE EXECUTIVE No Suspension of the Laws by the Executive No Dispensing with the Laws by the Executive MODERN AUSTRALIAN JUDICIAL DISCUSSION DICEYEAN THEORY JURISPRUDENTIAL DISCUSSIONS THE INTERNATIONAL DIMENSION Chapter 4: Separation of Powers and Judicial Power INTRODUCTION EMERGENCE MONTESQUIEU Montesquieu in Australia POSITION IN COMMONWEALTH CONSTITUTIONAL LAW POSITION IN THE STATES History Avoidance of the Multiple Holding of Parliamentary Seats Partial Separation of Executive and Legislative Power Substantial Separation of Judicial and Legislative Power Separation of Judicial and Executive Power JUDICIAL POWER OF THE COMMONWEALTH Judicial Power in General THE TWO BASIC PRINCIPLES Judicial Power of the Commonwealth Cannot be Exercised by a Body Other than a Court Federal Courts Cannot Exercise Non-Judicial Powers CONSTITUTIONAL PRACTICE: THE APPOINTMENT OF FEDERAL JUDGES TO EXECUTIVE FUNCTIONS 1940–76 EXCEPTIONS TO THE BOILERMAKERS’ PRINCIPLES Persona Designata Limits to the persona designata rule Contempt Power of the Commonwealth Parliament Military Justice Limits to the military justice exception Chapter 5: Legislative Power INTRODUCTION THE COMMONWEALTH DIMENSION Commonwealth Legislative Power Exclusive powers Concurrent powers The Commonwealth Constitution denies to the states certain legislative powers The Commonwealth Constitution denies to the Commonwealth certain powers Movement of the federal boundary Non-s 51 legislative power THE LEGISLATURE LEGISLATIVE POWERS OF THE STATES Source of State Legislative Power South Australia New South Wales Western Australia and Queensland Victoria Tasmania Scope of the Legislative Power: Peace, Order and Good Government LIMITS ON STATE LEGISLATIVE POWER Limitation 1: The Commonwealth Constitution Limitation 2: Manner and Form Manner and Form Requirements by Jurisdiction Queensland South Australia Tasmania Western Australia Victoria New South Wales Limitation 3: Territoriality The reach of state laws within the state’s land boundaries Secession Commonwealth places Exception: diplomats Exception: visiting forces State laws are normally confined to the boundaries of the state Criminal laws Territorial waters Validating Void Legislation Chapter 6: Parliamentary Privilege INTRODUCTION THE PRIVILEGES OF PARLIAMENT Control Over Members Control Over Strangers or Visitors Power to Summon and Punish for Contempt of Parliament Power to Summon Witnesses and Compel Evidence Immunity from Defamation: Free Speech in Parliament Immunity from Arrest and Attendance before Courts Scope of the Privilege: The Precincts The Privileges May Be Waived Each House of a Bicameral Parliament May Judge its Own Privileges THE EMERGING RIGHT OF REPLY Chapter 7: Electing the Legislatures INTRODUCTION DEVELOPMENT OF ELECTED LEGISLATURES PARLIAMENTARY STRUCTURE DURATION WHO CAN BE ELECTED FOR PARLIAMENT? Eligibility Criteria Disqualification Financial standing Foreign allegiances Criminal conduct Conflicts of interest Government employment Commercial dealings with the government Vacation of a seat ELECTORAL SYSTEM ELECTORAL REDISTRIBUTION POLITICAL PARTIES ELECTIONS Administration of Elections The Right to Vote Disqualifications Compulsory enrolment and voting Calling Elections Nomination Process Voting Before polling day Polling day Offences Protecting the voting process Ensuring a ‘free’ choice Court of Disputed Returns Disputed elections Judicial review Chapter 8: The Executive INTRODUCTION PARTS OF THE EXECUTIVE The Crown Governor as the Crown Representative Deputy Governor Administrator to the Government in the States The Term ‘Executive’ Executive Council Cabinet and the Premier Ministers The Public Service POWERS OF THE EXECUTIVE General Functions of the Governor To assent to Bills passed by the parliament To summon, prorogue and dissolve parliament To remove or suspend from office persons appointed under the authority of the Crown To exercise the prerogative of mercy The Royal Prerogative Scope Extent Review by the courts Displacement or Ouster of the Royal Prerogative Abolition Displacement Loss by desuetude Retention of the prerogative Appointing ministers and members of the Executive Council Issuing writs for state or territory elections Issuing writs for the election of senators from the state or territory Exercising statutory powers conferred upon the Governor or the Governor in Council Making regulations and issuing proclamations The conduct of ceremonial functions Review by the courts CONVENTIONS OF THE CONSTITUTION Conventions: The Governor Acts on the Advice of the Ministry Exception: Reserve Powers and Constitutional Crises Reserve powers Dismissal Dissolution NO POWER TO TAX WITHOUT LEGISLATIVE ASSENT Authorisation to Spend Public Monies Chapter 9: Judicial Independence INTRODUCTION THE PRINCIPLE RATIONALE ORIGINS APPOINTMENT STATUS RETIREMENT SUSPENSION DISMISSAL ABOLITION OF OFFICE SALARIES, ALLOWANCES AND PENSIONS PROVISION OF NECESSARY SUPPORT AND STAFF JUDICIAL IMMUNITY JUDICIAL SELF-RESTRAINT JUDICIAL BIAS Exceptions to the Doctrine Chapter 10: Judicial Review INTRODUCTION MEANING ORIGINS Judicial Review of Administrative Action Judicial Review of Primary Legislation 19th century Australian example Justice Booth by and the constitutional crisis in South Australia The federal element constitutional Review of Commonwealth Legislation Section 51 cases Bank Nationalisation case Communist Party case Parliament does not interpret the Constitution Chapter 11: The Ombudsman and the Auditor-General INTRODUCTION THE OMBUDSMAN Origins Appointment, Term of Office and Removal How Investigations Start Jurisdiction Excluded agencies A matter of administrative action Powers Determinations Review by the courts Practice THE AUDITOR-GENERAL Independence Functions Limits on the Jurisdiction of the Office Review of the Office Chapter 12: Human Rights INTRODUCTION RIGHTS LANGUAGE Indigenous Australians Asians and Others Women THE BILL OF RIGHTS DEBATE IN AUSTRALIA TYPES OF BILLS OF RIGHTS THE COMMONWEALTH THE STATES Queensland 1959 South Australia 1972–73 Victoria 1988 New South Wales 2001 Victoria 2006 Queensland 2015 THE POLITICAL FORTUNES OF A BILL OF RIGHTS THE AUSTRALIAN SOLUTION Limited Rights in the Constitution Passage of Specific Acts on Specific Problems Continued Reliance on Common Law Principles Application of international human rights norms not incorporated into domestic legislation ARGUMENTS FOR A BILL OF RIGHTS Defects of Democracy Judicial Action and Legislative Inaction Minority Protection Educative Value Bringing Australia in Line with International Trends ARGUMENTS AGAINST A BILL OF RIGHTS It is not Part of the Parliamentary Tradition It Would Politicise the Courts It Would Limit Rights It Would Undermine Parliamentary Sovereignty It Will Increase Litigation It Could Intrude into Private Organisations Chapter 13: Public International Law INTRODUCTION Australia’s International Position FORMS OF INTERNATIONAL LAW Customary International Law Treaties and Other International Instruments Tests for determining whether a treaty is part of domestic law Areas of International Law that are not Part of Australian Law Unincorporated Treaties in Public Law USE OF TREATIES TO DEVELOP THE COMMON LAW OF AUSTRALIA USE OF TREATIES TO INTERPRET DOMESTIC LEGISLATION AUSTRALIAN LAW ON DIPLOMATIC IMMUNITY Origins Statutes DIPLOMATIC IMMUNITY Persons Covered Activities Covered Premises Covered When Immunity Starts and Finishes Waiver Persona Non Grata Consular Immunity SOVEREIGN IMMUNITY Foreign State Immunity in Australia The general rule Exceptions to the general rule Index