Public Law test 1: topics 1-3 Flashcards
Public v Private power in terms of interactions
Public law regulates interactions between individuals (horizontal) whereas private law regulates interactions between individuals and government (vertical)
What is the rule of law?
Antithesis of the rule of men, no person is above the law i.e government power is limited by the law
Conceptions of the rule of law (thin v thick)
A thin conception is merely a list of requirements focusing on procedures/formal rather than substantive character (focuses on the process) (Dicey, Raz)
A thick conception is substantive and has a broader focus on the quality of the law itself - can only be observed as the rule of law if it aligns with fundamental basic human rights (Bingham, Allan, Fuller)
“No man is punishable except for a distinct breach of law established in ordinary legal manner before the courts, no man is above the law, general principles of the constitution are the result of judicial decisions”
Dicey
Dicey’s interpretation of the rule of law
Formalist and ‘thin’, founded on institutional arrangements rather than substantive features
“In a healthy legal system there should be a relationship of reciprocity between law makers and the public”
Fuller
“A law that changes everyday is worse than no law at all”
Fuller
Fuller’s interpretation of the rule of law
Provides a thick conception of the rule of law as he attempted to create a system of legal rules which miscarried when publicization, retroactive legislation, comprehension and contradictions failed. Seems procedural but on a deeper level involves substantive justice and fairness
Raz’s interpretation of the rule of law
Provides a thin conception of the rule of law defined by two aspects.
- obeying the law
- ability to be guided by the law
“People should be ruled by the law and obey it, the law should be such that people will be able to guided by it…it must be such that they can find out what it is and act on it”
Raz
“The rule of law is just one of the virtues which a legal system may possess and by which it is to be judged. A non-democratic legal system based on denial of human rights…will be an immeasurably worse legal system, but it will excel in one respect: its conformity to the rule of law’
Raz
Bingham’s conception of the rule of law
Advances a thick conception of the rule of law that embrace the protection of human rights
“A state which savagely represses or persecutes sections of its people cannot be regarded as observing the rule of law”
Bingham
Allan’s conception of the rule of law
Advances a thick conception of the rule of law, argues that rule of law is compliance with conditions under which each person’s freedom is secured
Doesn’t see it as an aspiration or ideal but that any law not compliant with his conception is not a law
Australian Communist Party and the Commonwealth Case Study
Commonwealth banned the Communist Party in fear that ideology was spreading worldwide via Cth Party Dissolution Act. High court struck it down on the basis that it was constitutionally invalid (not because of breach of human rights) - reflects a thin conception of the rule of law
“Nothing depends on the injustice or justice of the law. If the language of an act of parliament is clear, its merits and demerits are beside the point. it is the law and that is all.”
Fullagar (thin conception of the rule of law)
What is constitutionalism?
A political doctrine that holds that the law of the constitution is supreme law in a legal and political sense
Section 128 of the constitution
sets out the ability to change the constitution
Political vs legal constitutionalism
Political constitutionalism is primarily constrained by political rules rather than enforceable laws (flexible conventions/customs) - UK
Legal constitutionalism is constrained by positive law where courts primarily in control through rigid written instrument
Characteristics of Australian consititution
No bill of rights like US constitution.
Requires strict separation of judicial branch and legislative branch. Slight overlap between legislative and executive branches.
Responsible government: parliament can delegate some powers to the executive branch
Is australia legal or political conventions?
Australia has both political and legal convention (federalism from US and responsible government from UK)
Direct v representative democracy
Direct: people vote to make their own laws e.g. State of California
Representative: people vote for a smaller group
Intrinsic vs Instrumental justifications of democracy
Intrinsic: Something inherently fairer about a system in which people have a say in the way they are governed
Instrumental: Will produce more benefits for society (outcome oriented)
Instrumental justifications of democracy
Responsiveness, production of relatively good laws and policies, diversity trumps ability, character based
Tyranny of the majority
An inherent weakness to majority rule in which the majority of an electorate pursues exclusively its own objectives at the expense of those of the minority factions - There may be certain groups that struggle to get their view across and policies that serve them may never be enacted
Parliamentary democracy
Representative and responsible government
Three arms of government
Executive - develops and implements policy
Parliament - passes legislation/makes laws
Judiciary - adjudicates and disputes the application of laws
Section 51 Aus constitution
Sets out commonwealth heads of powers -concurrent powers (shared with the states)
Section 52 Aus constitution
sets out powers exclusively given to the commonwealth
Section 109 Aus constitution
In the face of inconsistency, federal law trumps state law i.e residual powers of lower superiority
Separation of powers in Aus
Government power should not be concentrated in one person/group/branch
In Aus, strict separation of judiciary and legislative but overlap between legislative and executive
What is responsible government?
executive is responsible to parliament, parliament is then responsible to electorate and leaders of the executive government are members of parliament
Section 64 Aus constitution
Stipulates Ministers must be members of parliament (enforced by the courts)
1975 Gough Whitlam Dismissal
Was dismissed Under s64 of the constitution which empowers GG to dismiss the prime minister (breached customary conventions)
Conventions:
1. GG should act on the advice of the prime minister
2. if you can’t supply money, you should resign
3. The senate shouldn’t block the supply of money
Sources of international law
Agreements, declarations, international customary laws
Is international law legally binding in Australia?
Once Australia signs up to a treaty they are bound by that treaty but only in the realm of international law, it only becomes binding in Australia once ratified domestically
