Text Book Australian Public Law Chapter 1

o By the 20th century, the nation-state was unrivalled as the level of political association at which communities organise themselves o Challenged above by globalisation o Challenged below by local communities (differentiate themselves from toehr groups w.in the state) o Sovereignty is the location of absolute power in the state. Both a legal and a political concept. As a political concept, sovereignty concerns that capcity to generate and exercise policital power. As a legal concept, it is concered with the authority of the institutions of the state to make laws o Divine right of kings > allowed monarchs exercise royal prerogative arbitrary exercise o Evolution of government was the separation of church and state o Natural law theories o Source and content of lawss as the basis of their legitimacy o Legal Positivism o Laws are nothing more than the commands of a soverieng backed by the threat of punishment which are habitually obeyed by most people in a society o Role of the constitution is to constrain the government, and that when the government acts outside constitutional limitations it is exercising power without a right. o > 17th/18th centuries Thomas Hobbes, John Locke, Thomas Paine o > beg thoughts on constitutional limits o > John Locke social contract theory o autonomous individuals choose to enter a mutually binding covenant to from a government thtat has the power to promulgate and enforce a body of laws in the interest of preserving order. People effectively exchange their natural freedom for living under a system of law while retaining their basic rights and liberties. What makes this arrangement legitimate is the consent of these autonomous individuals. An unspoken bargain is made b/w indivs which means that they sacrifice a measure of their freeom in order to set up a from of government whose power is always limited. o Constitutional limits = separation of powers (b/w dif arms of gov) and federalism (b/w dif tiers of gov) o Public law in civil law countries France and Germany greater focus on public claw as the source of empowerment. Sense common enterprise of the people in a state, core common values. o Public law in common law countries UK, US, AUS freedom. Humans cant attain freedom on their own, as their natural state was to compete w others, and thr this competition indivs would destroy their freedom and freedom of others. o UK > empowerment. happiness was preserve of private sphere the public good is in nothing more essentially interested, than in the protection of every individuals private rights. o US > constraint. role of public law was to constrain government, needs to be small and tightly controleed o UK/US are cornerstone of Aus public law o Adam Smith on Liberalism 1

o first, the duty of protecting society from the violence and invasion of other independent societies; secondly, the duty of protectingevery member of the society from the injustice or oppression of every other emember of it, and thirdly, the duty of erecting and maintaining certain publick works and certain publick institutions, which it can never be for the interest of any individualto erect and maintain. o First two duties are consistent w narrow conception of public law that protects individual liberty o Third > dimension law concerned w public means to private ends o Originally states concerned w law and order/external affairs and raising revenue finance activities o Now few areas in public and personal life which government performs no role o Republicanism > it involves civic virtue and pursues a notion of the common good in contrast to the individual focus of liberalism. Freedom as either non-interference or non-domination. o Dichotomy of empowerment and constraint o Dichotomy of public law and private law o Private law reulates interaction of individuals horizontal relat o Public law reulates relationship b/w state and individuals vertical relat o Public sphere is now concerned w indiv economic, social, cultural well-being thr its administration of the affairs of the state o Common good and individual good o Tension b/w where formal law ends and politics begins o There is a tendency in public law to assert that all problems of power are resolvable by the law, thereby subsuming the political within it. o there are questions, such as the legitimacy of sovereignty, which cannot be satisfactorily resolved within the law. o Rule of Law o In australia, the rule of law operates as an underlying principle of legality, constraining government action o Friedrich Hayek > the rule of law will be effective only in so far as the legislator feels bound by it. In a democracy this means that it will not prevail unless it forms part of the moral tradition of the community, a common ideal shared and unquestioningly accepted by the majority. o Part of Westminster tradition since at least 17th century o Not explicitly mentioned in Constitution, it is an accepted part of our constitutionsal system and some believe that the rule of law provides authority for the constitution itself. o Procedural (thin) and Substantive (thick) approach o Procedural o Hayek = stripped of all technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand rules which make I tpossible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one individual affaris on the basis of this knowledge. o Certainty and predictability. General and equally applied. Laws should not single out specific persons or even groups. 2

o (hayek civil libertarian > rule of law limited to constraining state and not empowering it) o Joseph Raz > conditions for rule of law > independent judiciary, limited from legislative and administrative review, open and fair hearings, accessible justice, laws that are prospective/open/clear/public/certain/relatively stable. o No necessary connection b/w law and morality o Substantive o Agrees that Razs procedural conditions are nec for the rule of law but adds condition of morality o the rule of law is a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulagated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. it requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making., legal certainty, avoidance of arbitrariness and procedural and legal transparency. o Emphasizes rights. o Ronald Dworkin > rule of law contains fundamental civil and pol rights that pre-exist the written law. Means that when courts interpret the written law and find gaps or ambiguity in it, they should interpret the law in light of these underlying rights and dutiesin order to fill gaps. o Lord Bingham > rule of law relates to good law, and not just any law that is good procedurally. o Every version of liberalism reserves a place for the rule of law as it requires that every interference with liberty is done through lawful means. o Values underpinning public law = freedom, equality and community o Freedrom o Liberalism posits freedom as the foundation of the relat b/w indivs and state o Extends range of freedoms belief/opinion/expression/association o On Liberty JSM harm principle o Substantial degree of indiv freedom from state interference o Assumes people have capacity exercise real choices capacity depends upon indivs having basic necessities of life > good health/shelter/edu o Some branches of lib focus also on role of state ensuring citizens have freedom exercise meaningful choices for lives o Equality o Recognises that all indivs are of equal worth despite any differences in personal attributes, wealth, power, contribution to society o All are equal before law o Beyond formal equality is substantive equality concerned addressing imbalances of opportunity o Non-discrimination

o > provides ewual platform for people ot flourish but doesnt eliminate deeply entrencehed histrocial disadvantaes which may require more than formal equality to combat o hence positive discrimination to overcome entrecnched disadvnagtages arising from past inequalities o decrease inequality of wealth o Community o French republic famously built on fraternity o Fraternity encapsulates sense of community and common bond which it is the role of the stae to protect and foster o A collective sense of the common good gives rise to the possibility of liberty beyond that asserted and expressed as individual freedom. It is a liberty that comes from ruling oneself through the medium of a state which one has made ones own

A Defence of the Status Quo James Allan

o Arguing > need BOR (statutory/constitutional) because Australia is fully capable of protecting basic human interests without any sort of BOR o Notable features of the status quo o Bicameral, federal, constitutional monarchy system w written Constitution o Voting/electoral matters o House of Reps = initiaties money bills, home of PM, same number of electors per seat/rough voter equality o Was elected as first past the post but now uses preferneital voting system o > winner must obtain more than 50% of votes cast o > dislikes play a role o > voting sys for the couintrys most imp legislative chamber that requires esach constituency winner to get support of an absolute majority of electors, that measures to someo extend what voters do not want, and avoids many of disadvantages of proportional/first-past-post o Senators single transferable vote system/proportional representation sys w an element of preferential voting o Complicated and has the effect of making it most unlikely the government will obtain a majority here o Main goal of upper chamber is give the opportunity for a second, calm look b4 passing legis, make passage more difficult, strengthen hand of legislature against exec o Implemented voting systems w.out judicialising such issues o Amending the Constitutin o Referendum > majority of electrors in a majority of staes an da majrotiy of all electors o Constitutional change to direct say of people o Fact that amendment proposals have failed win support of half the voters does not mean that onerous procedurally > means majority not in favour o Amendments > direct appeal to people

o If had BOR would have improved the White abuse of aboriginies >> looking at US this is not the case o NZ Maori men granted vote in 1867 and four seats reserved for Maori. Lacked BOR and operates w.out written constitution and w a sovereign parliament o o o o No BOR only implied rights Aus is unique among developed Weastern nations in lacking any sort of BOR Absence was not due to oversight it is the constitutional, or quasi-constitutional instrument (or series of instruments) that sets out very general standards about the place and entitlements of the individual in society an emotionally attractive statement of individual rights in broad, somewhat amorphous terms. US, Canada, France, Netherlands, Germany, NZ, UK, Israel have a version The Aus judiciary would play a signif greater role in social policy-making It is the absence of this enhanced, more powerful, overseeing role for unelected judges, that distinguishes Aus Hard to imply rights into our constit Whatever the Aus judiicar might do using the vehicle of implied rights, they could and would do much more w a set of explicit rights Most moral and political debate is these days conducted in the language of rights Disputes about how to rank competing rights, about which human interests are imp enough to warrant the protection of rights, and whether what began as a protective device for individuals can be extended to groups, what right to think of as preeminent Why rights should be entrusted to enelected jedges to be given specific content as cases arise? Why should their views of moral rights count more than anyone elses? Lead to excessive politicization of the juciicary, to promote an individualistic, entitlement culture, or to encourage excessive litigiousness Social policy-making to unelected judges and less directly to legal profession The adoption of a OR comes at the expense of widespread participation in decisionmaking > overwhelming majority of the population will be disenfranchised (in favour of a few select judges) on a signif number of major social policy questions, and indeed on basic rights questions BOR end up devlivering from elected politicians to unelected judges power to decide highly contestable policy issues Once BOR is implemented > can never be removed Unelected judges dont have a more highly developed sense of moral perspicacity than elected politicians constitutionalismsides with risking rigidity rather tan risking security. A constitution, in other words, is about locking things in, and one justifies that sort of entrenchment by reference to distrust of our future politics. Locking in rules and values But the cost is immense because it is only the point-of-application interpreters, the judges, who are thereby freed from the constitutions constraints. Proponents of such 5

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a living tree, contemporary needs type of interpretation of constitutions treade what they see as ancestor worship for what seems to me to be the worship of unelected judges o Majoritarian self-government may not be accorded pre-emptive value in Aus today, but it is accorded much greater weight than it would be were a BOR adopted o Undue paternalism > Aus constit remarkably lacking in paternalistic assumptions. Aus people are enturested w own destiny.

Introduction Larry Alexander

o Constitutionalism implements the rule of law: it bring sabout predictability and security in the relations of individuals to the government by defining in advance the powers and limits of that government. o Sides w risking rigidity rather than risking security o Why should we accept the authority of those who acted more than two hundred years ago? > for our acceptance of this metaconstitutional norm to be rational, all we need to believe is that the framers did a pretty good job o Why should I act against my better judgement now just because it said so then? o > we have good moral reasons to posit fixed rules that claim preemptive authrioty over our moral reasoning o change in the metaconstitutional rule can effect a change in the Constitution norms even if it does not change the Constitution symbols o problem of how a constitution authored then can legitimately bind now o first three theorists believe: a sufficien number of us accept now that we are so bound because we believe thtta the moral advantages so achieved make the old constitution a better moral bet than the vicissitudes of democratic politics (p. 8) o datable acts of will (then) and right reason (now) o the metholdology of interpreting according to the intent of the constitiutional autors subordinates right reason to past will o bound by constitution because we are same people though not same individuals o concern is conflict b/w constitutionalism and democratic decision-making o GAVE UP READ MOST ARTICLE DID NOT UNDERSTAND A LOT OF IT

Romancing the Constitution: Interpretation as Invention

o Originalism adhere to text and give text the meaning it bore when it was adopted o Used to lie about updating it o Transformation constitutional law achieved through 2 devices giving new meaning to old terms and through substantive due process o Opposite of procedural substance o that no person shall be deprived of life, liberty, or property, without due process of law are converted from a guarantee of process to a guarantee of substantive rights o some liberties are so important that no process will suffice to enable their deprivation o the consequence of finding that a particular policy question is answered by the constitution is to remove that question from the normal sphere of democratic debate 6

o when the real constitution placed it beyond democratic control, it did so only because a democratic majority had agreed to be disenfranchised with regard to those subjects o in addition to the restrictions upo governmental power imposed by the BOR, the States and the federal government shall be subject to such additional restrictions as are deemed appropriate, from time to time, by a majority of the Judges of the Supreme Court o federalizing effect of supreme court decisions o federal system: produces more citizends content w the laws under which they live o since days of Warren Court, notion of a living constitution has been marketed with overwhelming success o living document o there has finally developed public rejection of the Supreme Courts claim to lawyerly expertise and public rejection of legal ability as the primary criterion for selection of judges in general o when the primary function of the Supremem Court was thought to be interpretation of text and identification of legal tradition, the people were content to have justices selected primarily on the basis of legal ability. But they know that Harvard Law School, Stanfrod Law School yea, even Yale Law School do not make a man or woman any moer qualifified to determine whether there ought to be a right to abortion, or to homosexual conduct, or to suidcided, than Joe Six-Pack. o If function of Supreme Court is thought to be crafting living constitution > ought be looking for judges who agree with us, the majority, as to what the constitution should mean o moderate judges > adjective has no meaning in strictly legal context o constitution congenial to the majority is hardly a constitution worth having, since the whole purpose of constitutional guarentees is precisely to frustrate thew wishes of the majority

Federalism in Australia Greg Taylor

o Was not until the 1890s that federation of the six colonies was anything more thatn the subject of speculation o Inter-governmental discussions > constitutional conventions > draft constit o Constitution take effect w new century on 1 January 1901 o Colonies became states of new federation which remained w.in the empire (there being no declaration of independence) o Enumerated powers for thecentre set out in ss51 and 52 and left undefined residue w States under s107 o Aim: weak centre and strong states >> produced strong centre and weak states o 1 > decisions of High Court o 2 > federal governments dominance of financial matters o 1920 Engineers Case centralist judges in majority o > view dispensed w the obvious difficulty of relying on an unwritten list of reserved states powers as an aid to interpreting the written list of federal powers

o for a federal law to be valid, the federal parliament need select only one part of any processs on which federal laws are authorized by s51 and legislate on that aspect of the actiivtiy. o Power over external affairs (s51) entitles the federal legislature to make laws for implementing any treaty to which Astrlaia is a party o the only practical limitation on the subjects of Commonwelath expenditure and regulation is a political one. The constitutional division of legislative powers b/w Commonwealth and States, though relevant, has become of secondary importance. o Money o Power over taxation (s51ii) o Exclusive nature of its power over duties of customs and excise (s90) o Power to make grants of money to the States upon conditions (s96) o WWII > centralize all income taxation of both indivs/companies o Federal gov has vast surplus of money compared to its needs o Whole fields of legislative activity, entirely unmentioned in s51, have fallen under federal sway via conditional grants o Gov in office fom 96-07 did something to ameliorate situation o > intro goods and services tax fixed at 10% o > money raised to be granted w.out conditions to States o > reduced level of vertical fiscal imbalance o S128 > amendment by referendum o The proposed amendment must be approved by a majority of the voters but also to ensure that the rights or the smaller States were not trampled upon a majority of people ein a majority of States. A majority of six being four, a proposed amendment thus needs to be endorsed by an overall national majority and by majorities in at least four of the States. o Federalism Cheryl Saunders o Federalism provides one of the checks and balances of the Australian Constitution o Senate and HC linked to federal character also other checks and balances o Federalism weakened over time by national identity, combo of fed w resp gov and pragmatism that characterizes the Aus approach to constit Qs o National identity has grown WWI and internat econ compeititon o Comparative superiority >> no mere aggregation of the federating colonies o the Commonwealth as the hier to the authority of the imperial power in relation to Australia as independence was achieved. o Responsible Government o Responsible government tends to concrete power and to place a premium on speed and efficiency, tempered by regular elections o Federalism involves limited government and values diversity and pluralism, incl pluralism in electoral choice. o While the written constit is overwhelmingly federal in character, responsible government has been claimed as the central feature of the Aus constit system. o Result of conflict = approach ton constit interpretation that tends to favour central power w.out abandoning federal limits altogether.

o Constitutional Pragmatism o Advantages in terms tackling immediate needs w relative speed and effectivness. Longer term consequences for constitutional development that are less beneficial. o *in adopting particular solutions to particular problems, little attention is paid to flowon conseqneces for the operation of the system of governnet o > the result is that many decisions of a broader constit kind in effect are made by default; the progressive widening nof the federal fiscal imbalance is only one of many imp examples. o Attachment to devolution and choice tends to strengthen w distance from the national capital o Complaints Aus is over-governed are common o For foreseeable future, Aus is likely to remain a federation, albeit one w a limited commitment to the federal principle o despite the dualism of the constit structure of the federation, it now operates in many respects as an integrated model in which policies are formulated by the Commonwelath but implemented by the States o powers of commonwealth parliament in sections 51 and 52, effectively leaving the residue to the Parliaments of the States through operation of section 107 o Section 51 lists 40 heads of power with respect to which the Commonwealth may legislate, subject to the rest of the Constit o Commercial trade and commerce, postal and telephonic, banking, weights and measures o National fefence, immigration and external affairs o Social marriage, divorce, provision of range of social welfare benefits o Section 107 leaves State parliaments w all exisitn powers except those exclusively left to Commonwealth or withdrawn from them by Constit o Powers in S51 are not expressed to be exclusive and so for the most part are concurrent, in the sense that they can be exercised by both the Commonwealth and the States o The few powers listed in section 52 are expressed to be exclusive o > impose duties of customs and excise o S109 > in event of inconsistency the Commonwealth law prevails and the state law is invalid to the extent of the inconsistency o How to determine the meaning of a power? How to est whether a challenged law was one with respect to a head or heads of power. o > Engineers foundation case o > consistent expansion Comm power o > certain head of power proved particularly adaptable to creative use eg. Taxation, external affairs o characterization o > analytical process where Court decides whether challenged law is one in respect to a head of power o > sometimes straightforward sometimes not o > eg. Quarantine Act 1908 = Quarantine 9

o > eg. Trade and commerce power be used to prohibit the exporation of mineral sands so as to discourage their mining in QLD o whether a law is one with respect to a head of power generally depends instead on whether there is a suffficient connection b/w the law and the subject-matter of the power, of a legal or, perhaps, practical nature. o Comm collects 85% all taxation, but resp for only expenditure o Hegemony of Comm in taxation o 1) expansion definition of duties of excise to incl effectively all taxes on goods o 2) transfer to Comm of power to impose income tax o 3) gradual abandonment by states of some of lesser taxes o constitution barely deals w revenue distribution > revenue transfers from Comm to states depend entirely pol decisions o revenue grants divided b/w states in light recommendations of statutory Commonwealth Grants Commission o section 90 prevents States imposing taxes in the nature of duties of customs and excise o customs duties = taxes on goods entering or leaving a jurisdiction o excise duties = inland tax on any step in dealing w goods up to, but possibly not incl, literal consumption o > effectively removed all taxes on goods from purview of State taxation o the Uniform Tax cases accepted that grants to the States could be mad eon condition that thtey refrained from imposing certain taxes. The technique has subsequently been used to further restrict the rang of taxes that the States impose. Most recently, in the Federal Financial Relations Agreement 2009, the States agreed to abolish financial institutions duties, a rang of stamp duties, bed taxes and debits taxes by 2013. o Conseq: states impose only sml rang minor taxes payroll tax, land tax, duties on conveyances, gambling taxes and car taxes o Obscure clear lines of accountability from both the Comm and States to their Parliaments and to voters for moneys raised and spent o Section 96 > Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit o A state is not compelled to accept a grant, although given the fiscal imbalance, refusal is rare o Through the mechanism of conditional grants, the Comm exercises extensive de facto control over most aresas of State resp that involve significant levels of expenditure o Most federations seek to consolidate union while also legiitmising difference o Comm constit places emphasis on economic union in form of internal free trade and internal mobility of popele o Section 117 Freedom of mobility o > resident in any state shall not be subject in any other state to any disability or discrimination which wold not be equlally applicable to him if he were resident in such oher state o > initially interpreted formalitstically triggered only when residence was criterion for discrim

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o > Street section has other signif applications, eg. Relation to uni admission policies that favour school leavers from home state o Instruments of co-operation o Ministerial councils o >driving force fo rintergovernmental relations in Aus is network of more than 40 ministerial councils o > apex is COAG o agreements o Australian govs regularly enter into agreements w ea other o Not law, function soft law binding govs to act o References o Section 51 empowers the Comm Parlia to make laws on matters referred to it by the Parliaments of one or more States but so that the law shall extend only to States by whose Parliaments the matter is referred, or which otherwise adopt the law. An exercise of the power results in legislation that is genuinely federal law, w the usual attributes of it. o Eg. Include antiterrorism and industrial relations o A matter can be referred subject to conditions and that a condition may make a reference terminable o National Specific Purpose Payments use in broadly defined areas healthcare, edu, skills, disability, hoising and indig affairs o National Partnership Payments connection w more specific programs early household edu, social hoising, preventative health o Enhance authority of the Comm unless there is genuine collaboratin b/w govs in development of strategies, outcomes and benchmarks around w ea of programs revolves o Increasingly, policy is made by the Commonwealth, whilst policy implementation is left to the states

Case Extracts on Federalism - Suri Ratnapala Amalgamated Society of Engineers v Adelaide

o Interpretation of the constitution formed on a vague, individual conception of the spirit of the compact, not the result of interpretying any specific language/principles of CL o This method of interpretation cannot provide any secure foundation for Comm or State action o Lead to divergencies and inconsistencies more and more pronounced as the decisions accumulate o Literalism became predominant method of consitiutional interpretation in Australia for years to come o Each jurisdiction was to be autonomous within its sphere fo power and the Consttituion was understood to provide a framework which secured this autonomy b/w two partners united in federation o Initial members of Court brought w them their knowelde of the Convention debates 11

o Applied Reserved powers doctrine and Doctrine of implied intergovernmental immunities o Implied in text to protect States o Methodology = constitutionalism o Engineers Case brought an end to constitutionalism and reserved powers doctrine/doctrine of implied intergovernmental immunities o Whether scope of Commonwealths corporations power was limited by the banking power?? o Scope of corporations power was limited by banking power o Provisions must be interpreted to exclude matters expressly dealt w elsewhere o The corporations power should be regarded as not applying to corporations so far as they are engaged in banking o Generalia specialibus non derogant general things do not detract from special things o The bank was a financial corporation, the Commonwealth nevertheless had no power to regulate State banks under the corporations power. o Characterisation question of whether a particular law is supported by a head of power granted to the Commonwelath must be decided by answerin the question of whether the law is with respect to the head of power o Under infl engineers case > test whether nexus b/w head of power and law > made by plain comparison b/w the subject matter of the power and the law o Fairfax v Federal Commissioner for Taxation o Question of substance and not of mere form anymore o Which of topics touched and ture nature and character of legislation o is it in its real substance a law upon, with respect to, one or more of the enumerated subjects o or is there no more in it in relation to any of those subjects than an interference so incidental as not in truth to affect its character o no hierarchy b/w heads of power o inquiry into the purpose of the law to ascertain the subject matter is irrelevant > if the effect or operation of the law is one which comes within a head of power, constitutionally is achieved o can have dual/multiple characterization of laws o Economic Provisions Suri Ratnapala o The power to influence the economy so pervasively resides in the Constitution o Federations are economic unions as much as political associations o Vertical fiscal balance = occurs when regional units under federation have flexible sources of revenue that allow them to meet increasing expenses of public goods for which they are responsible o Vertical fiscal imbalance = are created when central governments gains control of the major sources of flexible revenue to the exclusion of regional units o Increases state dependence on the centre, thus undermining the federal structure, but also subverts the principle of democratic accountability by disconnecting electoral responsibility and fiscal capacity. o Horizontal fiscal imbalance = occur b/w regional units as a consequence of differences in local resources and tax intakes 12

o Federations work best when there are no great disparities in living standards among the regions. Hence the efforts of federations to achieve some degree of horizontal fiscal balance through cross-subsidisation. o Anything close to complete equalization can only be achieved by sacrificing one of the great advantages of federalism, the competition and choice that multiple jurisdictions provide. o Conditions for successful federation (harmonious interstate relations and overall economic performance) o > Free movement of goods, services, capital and people across state borders o > Grant of power to central gov to legislate w respect to interstate and ovrerseas trade and commerce compatible w the autonomous tatus of the regions and the free movement dondition o > Grant of power to state governments to legislate w respect to trade w.in the states compatible w the free movement condition o > Grant of fiscal power (taxation and spending) to the central and state governments that enable the respective governments to carry out their administration and to provide essential public goods w.in their jurisdictions. o S51 the Commonwealth can: o Make law regarding interstate trade and international trade and commerce o Infl development commercial law thr its power to make law w respect to banking, insurance, bills of exchnae and promissory notes, bankruptcy and insolvency, IP o Regulate electronic and conventional communication o Regulate labour mkt thr industrial relations power o Coinage and est legal tender o Impose taxes and grant subsidies o Regulate key types of bus org incl foreign, trading and fin corporations and banks o Make outlays on econ infrastructure o State activities which are not distinctly excluded from the Federal powers by the Constitiution are subject to the Federal laws o Focus turned away from states, assigning to them the remainder of powers not assumed by the Commonwelath o Literal approach > wide reading of constitutional powers may only be limited based on the express language used in another provision of the constitution

An Uncommon Court: How the High Court of Australia has undermined Australian Federalism James Allan and Nicholas Aroney
o Textual formalism, the professed motivating reason for which has been the idea that by following this method the udges will avoid imposing their own subjective and idiosyncratic views upon the authoritative text of the Constitution o The enactors of those rules (or the earlier judges creating them in a previous case) would never have envisaged that they would be used or interpreted in this way o Framers would never have imagined states would be as emasculated as they are today o > dependent on Comm for gov finances

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o > policy-making contingent on fed pol decisions o > corporatsion power allow Comm to take over field of Industrial Relations o > external affairs power enact far-reaching enviro/human rights/industrial relations laws o > states would give up income tax powers o 1. written constitutions are about locking things in o made harder than usual to alter or remove o locking these things in is the very pnt of adopting a written constit o risking rigidity rather than security o future generations cannot readily take stuff away o 2. Living tree o statement of our most imp values and the vehicle thr which these values are created and crystallised o constitution set out a relatively amorphous, indeterminate list of guidelines and values, a list that will need updating, chainging and altering as society advances and grows o constantly evolving and keeping pace w civilization o 99.9% of pop who are not court judges the constit will be locked in whatever updating is to be done, regular citizens will not be doing it o locked in - leaves judges as shackeled as rest of us o NZ - nothing is locked in updating job to an elected parliament o Statutory interpretation has taken a much more purposive turn, whereas constitutional interpretation in Australia has remained stubbornly literalist o Constitution is a framework of government intended to endure o > implications for the level of specifity and detail o > more general, less specific, more abstract o attachment to a literal mode of interpretation will leave the point-of-application interpreers the judges of our superior courts largely unconstrained in reaching the outcomes they otherwise desire. o BOR for instance > does a textual literalist approach tell us where to draw the line when it comes to voting, or who can marry, or limits on advertising o Literalism > appeals would be empty, that they would provide next to no guidance in the interpretation of the abstract language used, and without more would amount to leaving the decisions almost completely to the open-ended discretion of the point-ofapplication judges. (thus when literalist approach > turns into living tree > judges can alter) o Appeals literalism might make sense as regards interpreting preponderance of statutes, but not as regards vague, rather indeterminate rights guarantees in constit o Either one appeals to original intentions and understandings or one shrugs and hands the decision over to the point-of-application judiciary o Question for us in thinking about division of powers cases is whether advocating literalism and textualism is somehow more constraining when applied to the various heads of legislative power conferred upon the Commonwealth by the Australian Constitution compared to its use in the case of rights guarantees o Literalism or judicial activisim?? 14

o Depends on the degree of specificity and detail one finds in the following language > s51 o Commonwealth has power to legislate with respect to foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth. o Laws enabling he formation of corporations are usually accompanied by laws regulating questions of responsibility and liability for corporate activities o Narrow interpretation the qualifying adjectives (trading, financial and foreign) indicate the types of corporation that can be the object of laws under the corporations power but, beyod this, they have no further signif o Wider interpretation extends not only to the legal recognition of particular kinds of corporations w.in and thr.out Aus but also to the regulation of the specifically trading activities of trading corporations and the specifically financial activities of financial corporations o Expansive interpretation on this much broader view, all that is necessary is that he law takes as its discriminating feature the existence of one or more of these kinds of corporation (for convenience, we might call them constitutional corporations) and makes such corporations the direct or indirect objects of its command. Would now fall entirely within the power of the Commonwealth to regulate any of the activities of constitutional corporations. o Cannot regulate only external relations of corporations but also their internal relations, incl relations of constitutional corporations w their employees > Work Choices o Work Choices o Whether work choices was validly enacted, primarily under the corporations power. o The central objective was the replacement of State industrial relaions laws w a near comprehensive national sys designed to encourage the negotiation of workplace agreements directly b/w employers and employees w.out the intervention of third parties, such as trade unions o conciliation and arbitration for the prevention and settlement of industrial disputes extending beyong the limits of any one State o scope power incer o industrial disputes > interpreted cover disputes in any employer-employee relat, whether industrial or not o interstate > satisfied by mere paper disputes o employer = constitutional corporation > corporation to which s51 of Constitiution applies o connection to the Comm power to regulate constit corporations o federal heads of power are to be interpreted as widely as the language used allows, w.out any though being given to the impact on the powers left ot the States. o Appeals were disregarded appeals to: o > Convention debates o > intentions framers o > three attempts referenda but ea failed o Commonwealth to control virtually the entire body of workplace relaions law in Australia, sweeping aside Sate lasws regulating imp aspects of the field 15

o Disregarding Comm power in s51 >> Comm under the corporations power can now regulate the workplace relations of constitutional corporations in any way it wishes o The federal balance o plaintiffs in workchoices case were implicitly seeking for a return to reserved powers > but aware that would spell undoing of body of trade practices laws and affect body of federal distribution powers of law o theoretical significance lies in way in which it involved an attempt, covert and failed attempt, to re-introduce reserved powers reasoning into Aus Constit law o practical significance lies in the extent to which it has opened up yet another vast field of legsislative power for Comm o on only two major occasions since Engineers has the HC actually struck down federal legislation that purported to be based upon the corporations power Incorporation case 1990 and Re Dingjan 1995

Frontiers of Legal Theory

o I am concerned not with the grounds or motives of these doubts, but only w the doubters questioning of the consequences of the doctrine o 1. legislators take the Constit seriously even when there is no prospect of judicial enforcement o 2. legislators likely to take Constit more seriously if they cant pass the buck to the courts o 3. judicial review tells the public that the Constit is the judges business, not the peoples business o 4. Judicial review is condescending o 5. where the constit is clear there is no need for judicial review. Where constit is unclear, judicial review guided by pol preferences of the judges rather than by constit itself o 6. dont have resouces for informed lawmaking few justices can be well informed abouit all substantial issues o 7. decisions likely reflect cultural elite w little claim how average American feels o 8. courts lack the tools required to make unpopular constitutional rulings effective. o 9. instead of studying issues, constitutional scholars study supreme court opinions o 10. the political power that judicial review confer on the courts results in politicsing the process of judicial selection o 11. the legislative process thus is more resepectful of disagreement than the judicial o if the legislative process is not a satisfactory method of resolving fundamental disagreements, netither is the judicial o temporary victory do not resolve the disagreement by determining which side is right o courts deliberate w a mindset shaped by lawyers traditions and experience, producing constitutional norms that may reflect professional bias o judicial review secure sthe cour of the constitution against infringement. Clear violtations are unlikely to be committed or, if committed, to generate appeals all the way up to the supreme court 16

o protects liberty by decentralizing governmental powers o legislature is most likely to pass unconstitutional laws when it knows that the courts will strike them down o insulated from most of the political pressures that beset elected legislatures and these pressures sometimes reflect selfish or parochial interests o the laws would therefore have been enacted, at the same time and in the same form as they were, even if there had not been a power of judicial review would of lasted longer had the court not exercised that power to strike them down eg. Slave laws o the womens movement appears to owe little to the courts which did not discover a constitutional right to gender equality until the movement was well under way o the skeptics of judicial review have not proved that it is on balance a bad thing, or even that it is not on balance a good thing. What they have demonstrated is how little we know about this practice. Training in law is not training in law making Instead of studying issues, constitutional scholars study Supreme Court opinions

Human Rights Can we Afford to leave them to Judges?

o o o o o o o o o o o o o o o o o o Majoritarian decision making will not do Need impartiality Goods because they lead on to greater human happiness Goods-in-themselves Unelected judges Enumeration and elaboration should rest w the democratically elected representatives of the people 1990 NZ statutory BOR gave themselves the power to issue declaration of inconsistency whenever an enactment can be given a meaning that is consistent w the rights and freedoms contained in this BOR that meaning shall be preferred to any other meaning so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights. Not difference b/w openly striking down a statute and rewriting that same statute Legislature can respond w even clearer words indicating its intention Ambiguity Read in words Rule of law values tied to certainty Only constraints on the unelected judges are self-imposed Tobacco and commercial advertising, campaign finance, ban on private health insurance was unconstitutional, confining marriage to heterosexuals, convicted and incarcerated prisoners vote It drives resolution of imp social issues from the pol arena into the courts

A Right-Based Critique of Constitutional Rights

17

o They rejected the Platonic view that the people are incapable of thinking thr issues of justice o Extension of the franchise to women, legacy of civil rights denials to an end in the context of American racism o Courts deciding things by a majority, and lots and ltos or ordinary men and women deciding things by a majority o you may write to the newspaper and get up a petition and organise a pressure group to lobby Parliament. But even if you succeed, beyond your wildest dreams, and orchestrate the support of a large number of like-minded men and women, and, and manage to prevail in the legislature, your measure may be challenged and struck down because your view of what rights we have does not accord w the judges view

The Victorian Charter of Human Rights and Responsibilities: Origins and Scope
o Parliamentary representatives as constrained by the doctrine of responsible government and the common law o Recent years this view has come under challenge o statues designed to protect particular rights, does not protect fundamental rights as comprehensively as do constitutional guarantees and conventions on human rights o removal of Aboriginal children, detention of children seeking asylum and refuge, enactment of new laws on sedition post 9/11 o WWII and the passage of the Universal Declaration of Human Rights o Consideration given to inserting guarantees of human rights at constitutional conventions held in the 1890s o Power to pass racially discriminatory laws o S117 merely prevents discrimination on the basis of state residence o It is an ordinary act of parliament o Ensures the continuing sovereignty of the Vic Parlia o Protects; o Recognition nand equality before the law o Right to life o Torture/cruel/inhuman/degrading treatment o Freedom from forced work o Freedom of movement o Privacy and reputation o Freedom of thought, conscience, relig, belief o Freedom of expression o Peaceful assembly and assoc o Protection of families nad children

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Taking part in public life Cultural rights Property rights Liberty and security of person Humane treatment when deprived of liberty Children in the criminal process Fair hearing Rights in criminal proceedings Right not to be tried or punished more than once Retrospective criminal laws Contentious right to life and self-determination Human right may be subject under law only to such reasonable limits Override clause in the Vic Charter of Rights is unnecessary > ordinary act of parlia Human rights are taken into account at the earliest stages of the development of law and policy o Fundamental rights are given a higher status and legit w.in gov and the community o Does not disturb accepted principles of parlia sov and does not confer the powes assoc w many BOR o Striking down inconsistent laws o o o o o o o o o o o o o o

The Victorian Charter of Human Rights and Responsibilities: Exegesis and Criticism
o o o o S32 Reading down provision S36- The Declaration of inconsistent interpretation S31- The Override S28 Statements of Compatibility

Judicial Review of Legislation

o Contemporary debates are over the form that judicial review should take o Whether a statute was compatible w the Constit o Courts invoked principles to override legislation supported by contemporary majorities o Original meaning jurisprudence o Enforce a prior generations views on the present generation, but allowing them to enforce their personal views of justice and equality against a popular majorities is more questionable o Developing appropriate methods of judicial selection o Unconstitutional some structural provision or some indiv rights provisions o Strong form judicial review o Legislatures cannot be trusted to adhere to limitations on their own power o Separation of powers and federalism would give politicians pol incentives to respect constit limitations 19

o that is legislatures do not typically simply disregard the limitations placed on them by constitutions, but rather act on their frequently reasonable interpretations of those limitations. Courts may be enforcing an equally reasonable interpretation when they invalidate the ensuing legislation o no reason to prefer courts interpretation to a legislatures, in circumstances of reasonable disagreement o legislatures might disregard constit limitations o weak form judicial review allows legislatures to consider the courts view s and respond w.out going thr elaborate processes of constit amendment o social welfare rights deal w the level and distrib w.in soc of goods like food, housing and edu

Referenda and Direct Democracy

o Referendum > direct democracy > as opposed representative democ o A governmentt can turn a plebiscite into a referendum by pledging only to act if the proposal in question is approved o Two types referenda > constitutional and legis o Design of ballot compulsion formality of votes o S128 not direct democracy in its purest form, since electors cannot propose an amendment o Approval or veto over constit change o S128 favours the status quo of the original constit of 1901 o Double majority majority nation-wide and in majority of states (4 states) o Majority of states to approve is natural, given the federal nature of the constit o Opposition from states, distrust further centralization, apathetic favour status quo, something reinforced by compulsory voting o Compulsory voting maximizes turnout, add legit o It is another thing > demand that every citizen have a sensible view on legal controversies such as the division of powers in a federation o Voluntary voting potential for gov to game the system o the proposed law shall be submitted to the electors o > does not mean a copy of the Bill has to be sent to every elector, let alone appended to the ballot paper >> means submission to the votes of the electors o Context, phrasing and ordering of questions can influence responses to them o Typical is for the question to contain only the name of the proposed law > long title o Nothing to prevent a parliament trunning several proposed amendments or laws together, as a package o > mini bill of rights referendum ADAM ROCKS o yes and no case o Each case is publicly funded and contained in an official booklet > 2000 words per case o Outside such expenditure, the Federal government cannot spend money advocating the referendum proposal as opposed to money encouraging awareness of the fact of the referendum 20

o Distinction b/w campaigners or candidates illegitimately being involved in the administration of a poll, and the legit promotion of their ideas in otherwise balanced official propaganda promoting awareness of the issues at hand o Federal government controls which questions are put to the people at a national level o State/territory can use unlimited public resources toi oppose/occasionally promoteFederal referenda proposals o May have contrib. to failed Commonwealth referenda o Limiting official material to a text-based booklet has come to be seen as inadequate, in an age when many people rely primarily on broadcast media and the internet

Australian Capital Television Pty Ltd v Commonwealth

o ACTV involved a challenge to validity Political Broadcasts and Political Disclosures Act added a new PT IID dealing with political broadcasts o Section 95B imposed a blanket prohibition on pol advertisements on radio or television during federal election periods o Similar bans for territory under 95c o Similar for state/local gov elections under 96d o Exceptions to the ban were made for policy launches, news and current affairs items, talkback radio programs and advertisements for charities that did not explicitly advocate a vote for one candidate or party o free time for pol advertising o allocated to pol parties by the Aus Broadcasting Tribunal o 90% reserved parites represented in prevo parlia and fielding at least a prescribed no. candidates in the current electon o two minute telecast or one minute radio o w.out dramatic enactment or impersonation o Pt IIID fell w.in the Commonwealth power in s51(v) over postal, telegraphic, telephone, and other like services or the comm. various powers w respect to fed elections o Whether Pt IIID was invalid cos infringed a constit guaranteed freedom of pol discussion o Mason/Deane/Toohey/Gaudron held wholly invalid on that basis o McHugh held invalid except in relation to s95c > territory elections o Brennan agreed there was such an implication, provisions reasonable restriction on the protected freedom o it may not be right to say that no implication will be made unless it is necessary. In cases where the implication is sought to be derived from the actual terms of the Constitution it may be sufficient that the relevant intention is manifested according to the accepted principles of interpretation. However, where the implication is structural rather than textual it is no doubt correct to say that the term sought to be implied must be logically or practially necessary for the preservation of the integrity of that structure.

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o Difference b/w implication and unexpressed assumption o Implication > term/concept inheres in the instrument/operates as part of the instrument (eg. principle responsible government) o Assumption > stands outside the instrument (eg. Senate protect states) o Founders assumption no need incorporate BOR o Freedom is an essential concomitant of representative government, it is necessarily implied in the prescription of that system o S7 = shall be composed of senators for each state, directly chosen by the people of the State, voting until the Parliament otherwise e provides, as one electorate o S24 = shall be composed of members directly chosen by the people of the Commonwealth o > discerned in these two provisions the principles of representative democracy o the sovereign power which resides in the people is exercised on their behalf by their representatives o the point is that the representatives who are members of parliament and Ministers of state are not only chosen by the pople but exercise their legislative and executive owers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the popele for what they do and have a responsibility to take account of the views of the people on whose behalf they act. o Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and pol discussion o communicate to and criticise gov o Communication in the exercise of the freedom is by no means a one-way traffic, for the elected representatives have a responsibility not only to ascertain the views of the electorate but also to explain and account for their decisions and actions in government and to inform the people so that they make informed judgements on relevant matters. o The efficacy of representative government depends also upon free communication on such matters b/w all persons, groups and other bodies in the community o The indivisibility of freedom of communication in relation to public affairs and pol discussion >> public affairs and pol discussion are indivisible o Infringement: the test to be applied o > the concept of freedom of communication is not an absolute. The guarantee does not postulate that the freedom must always and necessarily prevail over competing interests of the public. o > distinction b/w restrictions on communication which target ideas/info and those restrict an activity/mode of communication o Whether those restrictions are justified calls for a balancing of the public interest in free communication against the competing public interest which the restriction is designed to serve, and for a determination whether the restriction is reasonably necessary to achieve the competing public interest. If the restriction imposes a burden on free communication that is disproportionate to the attainment of the competing public interest, then the existence of the disproportionate burden indicates that the purpose and effect of the restrictions is in fact to impair freedom of communication

22

o purpose of Pt IIID is to safeguard the integrity of the pol process by reducing pressure on parties and candidates to raise substantial sums of money, thus lessening the risk of corruption and undue influence o (a) the advantage enjoyed by wealthy persons and groups in gaining access to use of the airways o (b) the trivializing of pol debate resulting from very brief pol advertisments o Pt IID severely restricts freedom of communication in relation to the pol process, particularly the electoral process, in such a way as to discrimate against potential participants in the process o the consequences is that the severe restriction of freedom of communication plainly fails to preserve or enhance fair access to the mode of communication which is the subject of the restriction. The replacement regime, though it reduces the expenses of pol campaigning and the risks of trivialization of pol debate, does not introduce a level playing field. It is discriminatory in the respects already mentioned. o Lack of free time available to persons who were not candidates and to organisations that were not pol parties o The share in the government which the Constitution ensures would be but a pious aspiration unless ss7 and 24 carried w them more than the right to case a vote o Subject ot necessary exceptions, the people have a constitutional right to convey and receive opinions, arguments and information concerning matter intended or likely to affect voting in an election for the Senate or the House of Representatives o But it is unnecessary for the purpose of this case to decide whether, by implication, the Constitution gives to the people eof the Commonwealth such a general right of freedom of communication o McHugh > except for s 95c, territories o They preferred to place their trust in Parliament to preserve the nature of our soc and regarded as undemocratic guarantees which fettered its powers o Thus an election in which the electors are denied access to the information necessary for the exercise of a true choice is not the kind of election envisaged by the Constit o Brennan > saw nothing objectionable in the present legislation o Commonwealth Fiscal Power and Australian Federalism o Such disparity nec entails some sys of fiscal transfer whereby the surplus funds of the Comm are used to make up the corresponding shortfall in the states. o States, on average, are dependent on the comm. for 45% of their revenue o Substantial share are in form Specific Purpose Payments (SPPs) o Exert policy infl in areas of state jurisdiction o Single list approach > division of power o it would seem a nec implication of such an approach to the division of powers that those areas in which the national government is not granted a head of power remain w.in the exclusive domain of the States, nowhere in either the US of Aus constit was that made explicit o s96 >> gives the comm. authority to make grants to the States on such terms and conditions as the Parliament thinks fit

23

o inducement even if such inducements amount to the proverbial offer one cannot refuse the Comm is operating in at least a formal sense w.in the boundaries of federalism o VFI is more extreme in Aus than in other Federations o Unfettered tax power has certainly helped the cause of centralisation, but it would not have brought about centralisation on its own o the tree main tax bases are monopolized by the comm. o s90 >>that not only customs tariffs but also excise would be exclusive to the comm. o GST > improvement for the States but simultaneously made them even more dependent on the comm. o > enhanced their budgetary capacity while reducing their fiscal capacity o use of tied grants to build the modern welfare state o Whitlam tied grants became a preferred mode of circumventing the constitutional obstacles to growth of the nat regulatory and redistributive state o Purpose of tied grants was to induce specifc policy action from the recipients o not so difficult if it is being directed toward an activity that is currently receiving no funding from the recipient gov. if, however, as is often the case, ti represents an addition to existing expenditures or programs, there is always the potential for the recipient government to shift some of its existing expenditure away to another purpose and thus undermine the policy intent of the grant. o Howard govs school flagpole policy of 2004 o Contravene federal norms by violating the division of powrs and imposing centralised decisions in areas lying w.in the jurisdiction of the states o Compromise the ability of a federal sys to deliver its potential advantages o Gov entanglement and inefficiency o Violate division of powers o Public hospitals are operated by the States - medicare funded by the comm. o Competition horizontally (b/w states) o Competition vertically (b/w the levels of government ) o Competition over near substitutes o Duplication and overlap o No level playing field o National luxury w its superior fin resources and no formal responsibility o Scope for horizontal and vertical competition to be inversely related o Share of the personal and perhaps corporate income tax is readily conceivable o Lifting the GST rate reducing Aus over-reliance on income taxation and its excessive VFI in one stroke o Block grants general purpose grants devolving policy autonomy back to the subnational jurisdictions o Authors suggested that most of the 120 existing SPPs should be rolled into three national programs o 2008-2009 comm budget announce rationalize 90 existing SPPs into five new ones: health; early childhood education and schools; vocational education and training; disabilities; and housing.

24

o Consistent w the rationale of broadbanding, input controls are scheduled to disappear, leaving states w more autonomy o Hitch rigorous focus on the achievement of outcomes o Mutually-agreed statement of objectives and outcomes o Performance reporting o Benign yardstick competition o Less benign resp for rewarding and punishing states for their performances o Old SPPs do not disappear; reduced to an estimated 30% of total tied grant funcing and are re-styled national performancy payments o Reforms impose little constraint on the future use of the comm spending power

The States of the Nation

o Nations, unless they arise naturally, rather than by referendum, the relationship b/w them will be open to almost continuous question o States remain set in their ways and as suspicious of one antoerh as they were before the union was declared o Local questions and local affairs o Turn to comnity rather than nation when they ask themselves were they belong o fellow Australians >> Fellow Queenslanders o but if uniformity from ocean to ocean is what we are to have, then that represents a radical change from what the fathers of Federation intended o having declared that we were a nation, we had still to attract the people to fill it and decide who those people might be o a fair go is a very down-to-earth version of liberty, equality, fraternity o sporting + war o Federation on the other hand is a pol union made on practical grounds o Unusual for all the difference in class and style of their founders, the different environmental conditions they faced and the economies they created, Australian colonies had for the most part the same demographic make up, same language, inherited the same culture and legal and pol sys and were accountable same authority o Have non of deep-seated cultural and religious divisions o It is entirely proper that control of all cross-border issues interstate highways, railway links b/w the capitals, water management of our river ssy, workplace conditions, banking should be in the hands of a single authroty and that decisions in these areas should be made on a national basis o Wonder if those parts of our lives that involve individual needs and are shaped largely by local conditions really best managed from a centre that may be thousands of km off, and by decision-makers who have little grasp of how differently people see things o Cost and efficiency cannot be the only consideration

Parliament and Extra-Parliamentary Accountability Institutions

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o Extra-parliamentary accountability institutions, a term encompassing all instit that are designed to enhance accountability of gov and which operate outside parliament and the pol process expressed thr parliament o Auditors-general, ombudsmen, administrative appeals tribunals and commissions of inquiry o Expansion recent decades o Inadequacy of parliament as an accountability mechanism o Gov being so large and complex and busy o Debilitation brought about by party system o Executive governemtn largely controls parlia is seen to have almost destroyed parlia as an institt able to enforce accountability o Institutions require parliamentary action, form of legislation to set them up o Parlia can dismantle these instit as well as est them o Ability to compel governments to a/c for their actions o Gov are no longer resp to parlia but only to the electorate at election time o Public exposure of matters that affect the public perception of gov o Recent times ome of them have been suspected by gov of media managemtn o Accountability is essentially a pol process o Attempts made accountability out of swamp of pol o Est high-powered inquisitorial bodies - criminal justice sys o In order to justify their efforts, these bodies inevitably rely on public exposures of corruption and look for correction thr the pol sys o Leads them back to the pol arena o Survive and flourish only to the extent that they secure and maintain public support and they cannot do htat without having a pol impact

Government Advertising: Parliament and Political Equality

Advertising campaigns promoting government policy Terrorism mail-out featuring fridge-magnet Governments dont exist to self-promote Gov responsiveness to opinion-polling can be a valuable form of democratic accountability o Motherhood slogans o Threat of excessive promotional advertising ot pol equality is clear. Commonwealth government advertising in financial year 2000-01 - an election year - reached 156 million dollars. Yet public funding of the 2001 election was a quarter of that. Pubic funding is meant to equalize the electoral playing field. It is democratic in that it o o o o

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o o o o o o o o o o o o o o o o o o o o o o o o o o

follows the votes each party earns. Government advertising, in contrast, ensures to the benefit of incumbent governments. Federal government = nations largest advertiser > individual states not far behind only legitimate to serve a demonstratable need for info > mount info programs or education campaigns not to promote gov policy we can guess when a gov polling shows it is perceived negatively on an issue, for then we see an avalanche of advertising to soften those perceptions selectivity total amount of spending on selective, large scale campaigns, and their timing >> jeopardizes pol equality not based on content-restrictions alone: that is, for a legislated, annual cap on the executives budget for campaign advertising Sir Joh Bjelke-Petersens purchase of air time for a puff television programme called Queensland Unlimited Keating gov buy itself Working Nation package Least of all policies that require but have not yet received parliamentary attention IR ad campaign roundly condemned, both in scope and intention $55 million expenditure of so much public money on what are really party pol advertisements is disgusting Persuasional advertising is risky, for it you are trying to persuade people away from a negative view, by drawing attention to the issue youmay reinforce those negative views And such ads are not designed to sway the partisan, but infl the disengaged Proportionate response to correct specific misperceptions in the ACTUs ads may also have been justified in informational terms What if parlia chooses to amend the package? Will the gov run addenda ads by way of correction A recipient of arts funding gov insignia must appear everywhere, alongside the logo of the council I have advocated that gov advertising be authorised not by a brand, ut by an office; the title of the responsible minister or agency > also clarify responsibility to an actual entity ACTUA sought to restrain the Minister for Finance fro approving payment of the governments initial IR ads Whether the 2005 Budget covered expenditure on an IR ad campaign ACTU argued that none of the departmental outcomes or the supporting portfolio budget statements mentioned anything approximating a campaign to advocate new policy Government, argued that advertising normal incident of government, budgeted allocations were broad enough to allow flexibility Majority of five to two agreed w the government Gleesons separate reasons in support of the govs case, are considerably more credible and transparent 27

o > Persuading the publicof the merits of government policy may be as imp to successful formulation and implementation of policy as the drafting of advice and legislation o > matter for political rather than legal sanctions o ignoring the fact that the real power lies w the executive o unstated assumption executive control of Parlia is not a matter for judicial notice o Justice Kirby > rendered the IR campaign unlawful w.out special appropriation o > not bar a gov mounting such campaigns, require openly cost and justify them ahead of time to parlia o pre-legislative policies o rhetorical and argumentative campaigns o presumably he meant such advertising was legit to generate interest, possibly debate, as well as to smooth implementation o interest of deliberative democracy, to invest public money in rhetorical advertising to stimulate public interest and debate on issue of the day, there simple model we can follow o > referendum model yes/no pro/con campaign o referendum funding model particularly directed at promotional advertising of prelegislative policy o constitution rather than legislative policy o we want to publicly fund soundbite and banner ads, in the interest of pol equality, we need to ensure the resulting discourse is not one-sided

Freedom of Information
o Freedom of Information Act 1982 (Cth) o Aim was to help incr accountability and openness in gov decision making o FOI requests frequently made by journalists, opposition, academics, other researchers to scrutinize/report on gov decision making and running of gov depts. o Extend as far as possible the right of the Australian Community to access information in the possession of the government of the Comm o Relating to them, information completely unrelated to that person o Person does not have to specify their reasons for wanting to access the document o Deny a request o Substantially and unreasonably detract the resources of the agency from tis other operations o Cannot locate the document or if it does not exist o Partially dney access to documents by deleting material in a document that is exemptor irrelevant to the persons request o Whether disclosure would be in the public interest o ACTU Australian Council of Trade Unions o Five factors relevant in determining whether disclosure was in the public interest o Held: reasonable grounds to support the claim that disclosure would be against the public interest

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o o o o o o o o o o o o o o o o o o o o o o o o o o o

National security of defence of Australia Confidentially foreign gov/internat org Cabinet documents (cabinet notebooks cannot be accessed for 50 years) Internal working documents deliberative processes, incl opinions, advice or recommendations Personal privacy personal info (incl deceased persons) 3rd partys bus affairs > trade secrets > info w commercial value > disclosure would adversely affect those affairs legal professional privilege denied access review decision appeal the decision to AAT (Administrative Appeals Tribunal) order that the documents must be provided to applicant appeal to federal court of aus on a question of law applicant also complain to the comm. ombudsman ombudsman can only make a non-enforecable recommendation concerning the conduct of the Minister or agency requiring agencies to publish info; and providing for right of access to documents Public Interest Test statutory reformulation > language favours disclosure must give access to the document unless, on balance, disclosure would be contrary to the public interest > following factors must NOT be taken into account (a) Access to the document could result in embarrassment to the Commonwealth Government, or casue a loss of confidence in the Cmmonwealth Government (b) Access to the document could result in the applicant misinterpreting or misunderstanding the document (c) The author of the document was (or is) of high seniority in the agency to which the request for access to the document was made (d) Access to the document could result in confusion or unnecessary debate narrowing the definition of Cabinet documents removal of fees and charges

What is the effect of WikiLeaks for Freedom of Information?

o Bill aimed > illegal to publish the names of mil/intelligence community informants o Wiretap all online communication o Espionage Act o Journalists rights to publish leaked information? o Double-standard of journalists, in partic, who fail to understand why the gov must sometimes protect its sources of info is mind-blowing

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o Access to gov info, censorship and the blocking of web sites, government secrecy and the over-classification of gov info, treatment of whistleblowers, gov transparency, legalities surrounding classified info

The Asialink Essays WikiLeaks

o Vietnam + 9/11 > cause for secrecy/confidentiality o Internet + Globalisation o Most people, partic young, sympathise w WikiLeaks happening and what it represents o Most people western countries do not have anything like the same problem w the material released as do governments o Less rather than more openness o Freedom of the media o Difference b/w Mr Assagne does and what newspaper does >> relates only to the scale of the leak and the related technological means of catchin it o If WikiLeaks does indeed demonstrate real community support for more openness o Australian Law Reform Commisson has proposals before the gov to amend the Crimes Act which would make unauthorized release of certain info punishable by up to two years imprisonment o Difference b/w what a gov thiks must be protected in the publics interest and whatthe public itself might believe

Ombudsman
o Accountability of public officials and agencies o Ombudsman origins in Sweden o Classic Ombudsman indep public office constituted by legislation which investigates complaints of a non-legal kind concerning administrative acts taken by government departments, public statutory bodies or local government o Specialist ombudsmen electricity, legal services, defence tc o Ombudsman like instit > Health Complaints Commissioners o Private sector ombudsman constituted by an industy handling complaints in sector o Evolved to be more indep of parlia and it now focuses on handling compaints by citizens about administration o Following the initiative in WA in 1971, all Australian States and internal Territories, as well as the Commonwealth adopted the instit o 3 defining characteristics of office o 1. the Ombudsman is appointed by the legislature to receive, investigate and resolve complaints from citizens and others about administrative action or inaction by gov officials or agencies. The office is not confined to illegal acts but may also consider injustice and maladministration or actions that are simply wrong o 2. the office is indep of the exec and the other branches of gov and can only be removed in exceptional circumstances for cause. Many have similar tenure to that of a judge 30

o 3. He or she has the power to investigate, criticse and publicise, but not to reverse administrative action o failure of parlia process to effectuate administrative justice in indiv cases o appointed by exec though some cases on recommendation of a resolution of both Houses of Parlia o obliged to take no other employment unless w permission of minister resp for Act o like judges, Ombudsmen can only be removed by the Governor upon the presentation of a resolution of both Houses of Parlia o person affected by administrative decision complains initially be telephone to the Ombudsman o initiated at the instance of a House or committee of the parlia o Ombudsman initiate investigation on own accord o Refuse to investigate a matter that is outside their jurisdiction o Refuse if trivial o 12 month o in respect of the included agencies, administrative action includes a decision and an act, a failure ot make a decision, the formulation of a proposal or intention and the making of a recommendation. In all cases the office has jurisdiction over local gov, public authorities, as well as State or Territory departments, and the jurisdiction may be extended or restricted by regulation by adding or removing agencies from the list o general sense of the term the office investigates the exec ranch of gov, departmental or agency level, not matters relating to the judicial functions o courts have drawn a distinction b/w matters of administration that are w.in the jurisdiction of the office and matters of policy which are not o distinction was first referred to in Booth v Dillon o policy > decisions require all inmates in a partic unit to sleep in dormitories or be locked in indiv cells was a matter of policy o no clear line of demarcation wxists b/w policy and administration o whether certain or sufficient funds should be made available to the department for certain purposes was also not a matter of administration o City of Salisbury v Biganovsky o Policy was implemented in an agreement w a swimming gclub and the policy, in short, involved an annual licensing fee o City sought declarations that the Ombudsman had exceeded his jurisdiction in that the policy was not a matter of administration and the Ombudsman could not pass on matters of policy for this reason o Court agreed w this argument o Council was accountable to its constituency o It seems that in the administration of a policy in relation to indiv cases a practice may emerge that itself is an administrative act an this may, therefore, be reviewed by the Ombudsman o Formal powers of office are extensive and impressive but in practice are rarely invoked o Agencies cooperate w Ombudsman and for most part voluntarily comply

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o Enter premises, seize documents, summon persons to give evidence on aoth and may compel the production of documents o Info disclosed cannot be disclosed or used in court of law o Refusal to investigate a matter is not normally subject to judicial review and the courts have been very reluctant to interfere w a decision o unlike the Swedish Ombudsman, the Ombudsmen of Australia do not have coercive powers to implement their decisions. Even if thy find that a complaint is justified the Ombudsman has no power to compel anything, unlike a court, of example. The sole power is to make a recommendation to the department or agency concerned, to inform the complainant of the result, and in some cases to report the partic matter to parlia. In practice this has proved to be very effective mechanism in all jurisdictions where the office exists. It has been suggested that the absence of coercive powers is actually a key strength of the office since it allows for reasonable accommodations b/w the parties. o Remedial steps are taken not because orders are made that they be taken, but because the weight of its findings and the prestige of the office demands that they be taken o English Minister rejected the finding of Ombudsman o May conclude that the act, or conduct is contrary to law o Recommend changes be made in the conduct, reasons be tiven for the decision o Cannot do is subsitutte their own decision for tthat of the agency, nor does the office act as a court or administrative appeals tribunal o Agency refuses to accept the Ombudsmans recommendations, complainant may resort to ordinary admin law remedies o Ombudsmen and their staff are immune from civil and criminal legal proceedings in respect of actions that they may take in their official capacity o Courts may review the decisions made > Ombudsman is subject to judicial review o Widespread acceptance of it by both the public and the public service o Key roles of office is educational o Recommendations made by Ombudsmen often result in policy and other admin changes o Inexpensive, informal and generally effective mechanism for citizens and others to complain about administrative action by public bodies

The Integrity Branch of Government The First Lecture in the 2004 Natinal Lecture Series for the Australian Institute of Administrative Law
o Chinese censorial system was organised as a separate branch of gov to maintain surveillance over all other gov activities and thereby enforce proper behaviour thr processes of impeachment, censure and punishment o 1920s five branch sys of gov o 3 western branches + 2 from Chinas gov tradition (examination and integrity branch) o fourth branch o concept focuses on instit integrity rather than personal integrity o connotation of an unimpaired or uncorrupted state of affairs

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o idea of purity o ensure that performance of governmental functions is not corrupt, not merely in the narrow sense that officials do not take bribes, but in the broader sense of observing proper practice o legality o first, maintenance of fidelity to the public purposes for the pursuit of which the instit is created. o Secondly, the application of the public values, incl procedural values, which the instit was expected to obey o Fidelity to purpose and to applicable public values does, in my opinion, distinugsh the integrity function from a focus on the quality of actual outcomes o Gov instit exercises the powers conferred on it in the manner in which it is expected and/or required to do so and for the purposes for which those powers were conferred o Numerous examples of a partic instit exercising the function of one of the other branches o Exec performs legis function o Recognition that judges make law o Ministerial resp accountability = integrity function o Formal opposition, question time, inquiries by parlia committees o Governor-General resp to see that the sys works as required by the law o Auditor-General ensuring that gov expenditure is properly made by means of fin audit is clearly an integrity function o Expanded the scope >> into performance auditing (economy, efficiency, effectiveness) o Ombudsman o Public inquiries > Parliamentary Committees and by exec inquiries o Royal Commissions o Fitzgerald Inquiry into corruption in the QLD Police Force o Consitutional law judicial review o Judicial review merits review of exec o HC > constitutional writs of prohibition and mandamus o Legality v merits o The proportionality test has not been accepted as a ground for judicial review o No focus on the reasonableness or quality of the ultimate decision o The language of actuating purpose is the language of integrity. It does not crosss to the merits side of the boundary o Judicial review > ensuring the integrity of governance o When the courts review matters which do not give rise to integrity issues, it is likely that they have gone too far o There is, I believe, utility in identifying the common function performed by the institutions to which I have referred: Parliament when not acting as a legislature, the head of state, the courts by judicial review, auditors general, corruption commissions, royal commission etc. Whilst also performing other functions, from legislation in the case of a Parliament to resolving individual disputes in the case of the judiciary, it is

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possible to identify a distinctive function which can be categories as maintain the integrity of government in the manner I have identified: ie. Ensuring that powers are exercised for the purposes and in the manner envisaged.

The Commonwealth Ombudsman

o Ensure that each governmental institution exercises the powers conferred on it, in the manner in which it is expected and/or required to do so nad for the purposes for which those powers were conferred, and for no other purpose o Institutionalized independence > Auditor-General and Ombudsman o The incr focus on impr overall integrity of gov by going beyond the indiv complaint to impr the sys of administrative decision making can be seen in recent immigration investigations o John McMillan three damning reports into immigration dept handling of 20 pplz detained in Aus immigration sys b/w 2000-2005 o Identify a rang of mistakes by dept of Immigration o Ombudsman institution can suggest improvements in public administration and strengthen the accountability framework in Aus o These recommendations are not enforceable o Ombudsman identified a number of deficiencies in administration that contrib. to the wrongful detentions. These ncl the lack of reliability of DIMAs databases, poor record keeping procedures and inadequate training of officers o > recommendations accepted o DIMA agreed w the Ombudsmans recommendations o Issues are often only of concern to the indiv complainant and are procedural rather than substantive in nature o Reactive indiv complaint-handling role is the trad core bus of Ombudsman and is critical for principles of democ and accountability o Integrity of gov administration o Package in 1976 > places growing emphasis upon being a proactive sys reformer rather than a reactive complaint handler o 1990s > proactive incr o incr involved in making submissions to parlia inquiries and commenting on various administrative practice mattes o favour the intro of integrity branch o international precedent o broad movement internationally recog imp integrity sys o reliant upon there being a separation b/w arms of gov o Ombudsman o Subject substantial scrutiny o Recommendations for admin changes, monitoring of responses to recommendations, rule of law, accountability o Not enforceable

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o Adverse publicity to cajoling and persuasion to convince gov depts of the correctness of its advised course of action o Is not toothless tiger o from an administrative viewpoint, the handling of this case is a tragic reminder to all government officials that in applying bureaucratic process and processes and procedures they should never lose sight of the human dimension of their work.

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