notes (2014) - The University of Queensland Law Society

PPL Notes 1. Characteristics of democracies  Constitutional Monarchies v Republics o However in Australia, the Queen is really no more than a figurehead, represented by the Governor General who always signs off on legislation anyway.  Parliamentary v Presidential o All Commonwealth countries are parliamentary systems. In this system, the people vote for a whole body of Members of Parliament, and the executive comes from within this body (there’s not much separation of power). o In a presidential system, the people vote for congress (like parliament). They also vote for the president (executive), and he appoints a cabinet (the cabinet may not be elected representatives).  Unitary v Federal o One government for the whole country v power divided between regional and central governments.  Unicameral v Bicameral o Australia is bicameral, as are all the states except Queensland o Generally speaking, the upper house is really useless and the lower house is very powerful o For example, in the UK and Canada the Upper house isn’t elected so it’s pretty useless o The Australian lower house is the house of representatives, where government is formed by the party in the majority, and the executive is chosen from that group (the PM comes from here) o Australia has a very strong upper house that can block legislation including supply (forcing a double dissolution under s57), it is a ‘house of review’ rather than a state house and it is a continuing body o The US has a very strong upper house too (ours is modelled on theirs) but Australia has 12 senators per state and the US has 2 o US budget deadlock: a failure of bicameralism? No, no law is better than a bad law.  Democracy is a SYSTEM OF LIMITING POWER. 2. Federalism  Canada’s constitution notes down exactly what powers the provinces and centre have, with the intention of having weak states, but they got the exact opposite  American wanted strong states so they set out centre powers and left states the rest  Australia wanted to do this too but it went pear shaped  Why is this? In Canada, all the Supreme Court cases were ruled in favour of the states, whereas the opposite has occurred in Australia  Australia wouldn’t be here without federalism, anyway, because the states wouldn’t have agreed to federate if it meant losing their autonomy  Competition o The richest democracies in the world are federations because federalism brings competition

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People ‘vote with their feet’ e.g. in the USA state taxes vary from very high to very low. The provision of services does accordingly. People move to states with the best jobs and the best balance of services and taxes, which creates an incentive for all states to improve to attract citizens and grow. More separation of power: more freedom Satisfies more preferences (see Scalia) Australia has an issue with Vertical Fiscal Imbalance o Uniform taxation legislation 1942 gives income tax to the centre o Centre is rich but states required to spend heaps o Problem: who do you hold accountable for screw ups? o GST was meant to alleviate this but it is not apportioned by population size (WA is mad because it has to give money to Tasmania), and if it was apportioned by population it would make the problem worse o In the US they don’t equalise at all but it doesn’t matter because people MOVE (they tried to recreate this in the EU but it didn’t work because of language differences) o 82, 14, 4 federal, state, local (percentage of tax)

3. Voting systems  Power can be limited by a voting system  Voting forces leaders to moderate policies to please the greatest number of people  But different voting systems yield different results  US, UK, Canada: First past the post system (i.e. it doesn’t matter how much your horse wins by) o You end up with a centre left and a centre right party (because they are the only parties generally palatable enough to win government) o This system is good because it really punishes the party that loses until they change policies to be popular again o However, you never have a true majority o Bargain BEFORE the election  Proportional system o Percentage of votes translates to a percentage of seats in government o Therefore, no one wins alone and they must form coalitions o This means that very few election promises are actually kept and that losers never really get thrown out o Bargaining AFTER the election  ATB/AB (unique to Australian LOWER HOUSE) o We give preferences to work out who is the most generally liked candidate o It’s like first past the post but better o There is still and in and an out party, but you can also express dislike by preferencing someone low o So someone like Pauline Hansen (very polarising) can’t just keep winning because people that hate her can not vote for her AND not preference her

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o This is because you keep redistributing votes until someone gets ‘past the post’ o It’s also basically impossible to win in the upper house STV (Australian Senate and Ireland) o Formula works out how many votes you need to be elected o People who have enough first preferences to be elected outright are elected and any excess votes are distributed according to preferences o When no one is able to make the quota outright, the candidate with the lowest number of votes is eliminated and their votes distributed according to preferences Compulsory voting o It is odd to force people to vote, but it yields good outcomes, in Australia 80-90% of people vote compared to around 50% in Canada. o This means the time and money spent getting people to just turn up is saved

4. Constitutions  Only 3 countries in the democratic world without written constitutions: Israel, the UK and New Zealand o Therefore, in New Zealand parliament can be considered sovereign, with the only limits on power being moral and practical (i.e. that there will be another election: in this sense democracy limits power) no LEGAL limits (however, in a constitution we rely on judges rather than politicians, so what difference is there?)  Why? Well the UK has never lost a war on its own soil, never had a successful revolution on its soil and has never decolonised. Those are the things which tend to lead to the writing of a constitution.  Why should you have a written constitution? o Provides certainty in how a country will look in the future o Allows us to ‘lock in’ certain things we consider extremely important o Articulates fundamental values  However, how strong those constraints are depends how the constitution is interpreted o Literal interpretation: plain meaning o Purposive interpretation: this is the most common in the common law but it’s a very GENEROUS interpretation  Originalism o means giving the text the meaning it had when it was written: wither the intention of the writers or what an educated person would have understood it to mean at the time o the constitution (and the meaning of the words in it) never chnges which is why we have an amendment mechanism o you interpret it the way you interpret any other text  “Living tree” o even though words are staying the same, the meaning changes with time o compare either approach on the meaning of the words ‘capital punishment’ and it is not the same result  Amending the constitution

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America: 2/3 or BOTH houses and ¾ of the states (very hard – 1970s no equal rights amendment) Canada: YES from the house of commons and a YES from every province (Quebec has said it will never vote yes lol) Australia: majority of people, majority of states. Although there’s been minimal success, this doesn’t mean the mechanism is no good.

5. The Rule of Law  Disagreement as to the meaning of the rule of law  There is a procedural element (e.g. how are decisions made and by whom?) o The rule of law means to say that decisions are made by the LAW o This is because individual decisions may be imperfect and arbitrary  The rule of law also looks at the characteristics of laws (e.g. what are the laws like?) o Laws should be POSSIBLE to follow and forward looking o Rules should be interpreted by someone independent  There is disagreement as to whether the rule of law means taking into account rights and morality as well (i.e. can an oppressive law be made in a society living under the rule of law?) – this is a morally pregnant conception of the rule of law 6. The Australian Constitution  Very minimal, because the states all wanted to maintain their autonomy  Constitution Key Institutions: o s7: creates the senate – same number of senators from each original state o s24: house of reps – no electorate may cross state boundaries (this only makes sense from a federalist perspective) o s51: heads of powers o s57: disagreement between houses o s128: copied from Switzerland – direct democracy – requires approval of people and states  Constitution Federalism: o s7: same number of senators from each original state o s24: no electorate may cross state boundaries (this only makes sense from a federalist perspective) o s96: tied grants o s109: centre trumps states o s128: requires approval of people and states  Constitution Representative Government: o s7, s24: directly chosen by the people o s64: ministers MUST be parliamentarians o s128: must have a referendum to amend constitution o s8, s30: no right to vote, but no vote counts more than once o s9, 16, 31, 34: parliament may decide the method of election o s44: excludes people with ‘an office of profit under the crown’ from running (look at the case of Sykes v Cleary) o s44: excludes ‘subjects of a foreign power’ e.g. See v Hill

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38 out of 44 referendums have failed (33 of those failed at the first step of a majority of citizens) Workchoices Case o When the centre passes a law and the sates say that its unconstitutional, the High Court looks at the powers in the constitution and decides if it falls under one. o The centre has a very limited international relations power and a broad corporations power. Workchoices could not fit under the IR power, so it was argued that it fitted under the corporations power. Held that it was acceptable, and the specific power didn’t limit the general power. o High Court says 2 failed referenda on the centre controlling IR irrelevant. o Implicitly necessary? Practicality? LECTURE 8 The Engineers case – reserve powers doctrine The Tasmanian Dams case ACTV case o Discussions of campaign finance and political communications o How? No BoR. o Held that ‘directly chosen by the people’ as in s7 and s24 means that people should choose representatives, that those representatives must be accountable, and because accountability necessitates transparency, there must be an implied right to political communication o This freedom waxed and waned after ACTV, but was reshaped in Lange Roache o Prisoner voting case: held that there must be a reasonable connection between the group being excluded and exclusion from voting (e.g. prisoners have shirked social responsibilities so they lose social rights) Rowe o Dealt with closing the electoral roll

7. Judicial Review of Legislation  Judicial review of administrative action is usually not undemocratic  Judicial review of legislation is also possible, with the most common case type in Australia being cases about federalism 8. Representative Government  What do we mean by representative government? o Politicians are just ciphers for the public will o Politicians are there on trust, to represent our interests o Politicians may represent local or regional interests, the national or public interest, they may stick to party lines or make ideological judgements (conscience)  An example of a failure of representative government is abortion o Public generally supports the right to choose o Judges defend doctors and women o Police never prosecute

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There is no action, though, because of a small but very vocal minority who are so absolutely opposed to the idea o Judges don’t care about this minority – more likely to represent the general public opinion  Representative democracy can be understood in contrast to direct democracy o Chosen ‘by the people’ as in s7 and s24 is an example of direct democracy as is s128 about referendums (however, we are limited to constitutional proposals) o Representative democracy is more elite, deliberative and rational  The ground rules for representative democracy are largely left to parliament, but the Independent Electoral Commission also has a role to play  McKinlay’s case 1975 o Should everyone’s vote be equally weighted? OR what interests are represented? o 1970s Queensland ‘zonal’ redistribution of parliament o Country electorates had less than half the electors of those in Brisbane o Jerrymandering o McKinlay argues for one vote one value o Barwick CJ: ‘mere slogan or political catch-cry’: constitution says nothing about State parliaments o Murphy J: followed US precedent implying mathematical equality, as nearly as practicable. o Three other judges suggested ‘chosen by people’ implied an outer limit against gross disparities in electorate size. 9. Legislature  Formal view of legislative power (something only parliament has?) o Parliament makes the law and the law is ideally general, prospective and makes rules for future conduct and affairs o Thin constitutionalism: procedure mostly left to parliamentary standing orders and ‘conventions’ from Westminster o GG signs off on bills  Legislative Power and Other Branches o No strict separation of legislative power from other powers o Parliament can delegate subordinate legislation i.e. to ministers/executive councils/commissions/agencies e.g. Fairwork Commission sets award rates o Judges make the rules of court and make common law o ATO can make private rulings but also public rulings  Parliament as a body o Responsible government: question time, committee, executive reporting to parliament o Forum for debate/grievances: site for petitions, protest and media interest o Approve/disapprove the legislative  Constitution and Federal Aspects o Most Commonwealth powers are actually shared o Centralism has crept in though o S109 centre trumps states o E.g. Workchoices (see Constitution)

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o Both centre and state parliaments are sovereign Centre is sovereign within the terms of reference in the constitution States have a wider sovereignty: plenary powers endowed by Great Britain for peace, welfare and good government o May also make extra-territorial laws (e.g. ban Australians from paying for sex while overseas): as long as there is a connection between the law and Queensland o State constitutions not entrenched: series of executive documents and directives o This means parliaments can undo their own constitutions (which is flexible and good) but also, can one parliament bind its successors? No not really. o However, manner and form. Ever since state parliaments were born, they have had the power to bind future parliaments on certain issues (constitutional issues e.g. number of members of parliament/role of the governor). This just means that a parliament CAN entrench or lock in certain things which can only be changed using a certain mechanism (e.g. state referendum). o This is a bit undemocratic because it’s easier to lock in than change. However, it can only apply to rules which can reasonably argue to apply to the constitution of the state. o For example, this is how the senate in Queensland was voted out of existence. No getting the senate back unless we get a referendum. o There only fairly minimal limits of who can run for office in Queensland (as opposed to fairly extreme limits at a federal level) o This is more flexible and democratic because it’s in the hands of parliament not the high court WE ARE USED TO EXECUTIVE DOMINANCE IN AUSTRALIA: The executive have the power and resources to develop rational, holistic policy, and parties help with this by streamlining government action (i.e. an executive full of independents would get nothing done) Also better to delegate detail to ministerial regulations (they know more and have more time) Party and cabinet discipline makes the process smoother and begets stronger government (members of parties must vote along party lines) o Government controls numbers on the floor of the house o Also the media (which focusses on screw ups and gaffes) focusses on leaders and necessitates discipline NONE OF THIS is present where the parliament is hung (which is a big deal in Australia). o The executive is much more likely to lose occasionally o The government was perceived as weak

10. Executive  The state o a body politic, a nation state (e.g. Australia), or a defined jurisdiction e.g. Australia o a legal entity (e.g. something that you can sue)  The executive government o A political creature, identified with the current set of ministers – because they hold the executive power at any given time

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PM and cabinet not in the constitution LOL o They are conventions The ‘crown’ o Represents the power of the monarchy o Represented in Australia by GG and governors o Divided up in three ways: the UK crown (actually the Queen), the crown in right of Australia (the Governor General), crown in right of each state o Separated three ways: judges swear allegiance to the crown, the legislature and the judiciary Constitutional Monarchy and Responsible Government o Monarch takes directions from ministers and is guided by conventions o Responsible government means that the ministry sits in and is accountable to parliament o Government accountability is also simplified (limited?) by the party system o Executive is constrained by the law and regulations (including that it makes) and is accountable through administrative law especially judicial/merits review and the integrity branch o Exceptions: crown ‘prerogatives’ including waging war etc, state governors may ‘pardon’ someone (we now usually use parole) o Crown is not bound by legislation unless the legislation explicitly says so Key executive powers o Monopoly on force o Monopoly on tax o A tax is a compulsory levy for public purposes o Taxes must be initiated by an Act of parliament o However that can’t originate in the senate (s53, 55) because there is a convention that the treasurer sits in the lower house o Tax shared power, but corporations, income and sales tax centralised o Commonwealth Australia’s largest employer o Executive complex, some arms conflict, some are deliberately set up to be checks on other branches e.g. human rights commission and ombudsman Vertical fiscal imbalance o Cth has broad spending powers o S96 allows tied grants o Direct expenditure e.g. higher education funding (how can we do this?) o However, can’t force states to take it and can’t micromanage Benefits o National policies o Horizontal fiscal equalisation (e.g. GST) Problems o Erodes division of power o Makes accountability difficult (yeah but always a problem in a federation, and if you cut ties too much then that puts a dent in the idea of Australia as a nation) Centralised taxation is just simpler and more efficient

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Pape’s case o Law lecturer and federalist and doesn’t like central government o 2008 GFC o Pape challenges the $900 payment to every household regardless of the tax paid o Where is this power in the constitution? o Not really under taxation law? o He lost the battle but may have won the war o The HCA cast some doubt on the spending powers of the commonwealth (even though this instance was okay under s61 which is the executive power) o Executive power applies where this is a national matter of urgency or emergency o Opened a dialogue about federalism o Also says that just because expenditure is okayed by parliament, doesn’t mean that it’s constitutional It’s also unclear whether direct funding of universities is constitutional William’s Case – Commonwealth Spending o Commonwealth government chaplaincy program o $150m per year in about 2500 schools o Chaplains religious o High court cases in 2012 and 2014 o Try to use section 116 to argue that there is ‘no religious qualification for public office’ but the HCA have interpreted this very narrowly to mean the public service o However, he wins because education is a state power Unfortunately they continued the program through tied grants The point was that all government spending has to fit under a s51 power

11. Executive Accountability  Accountability is the ability to compel government to account for their actions o Giving an account by giving answers or reasons o Transparency and openness of information and process o Consequences – reviewing decisions, sanctions or incentives  Accountability mechanisms o Informal (public accountability) – elections, the media and public opinion o Oversight mechanisms – responsible government (e.g. parliamentary committees), FOI and parliamentary integrity bodies e.g. the ombudsman o Formal/legalistic mechanisms – tribunals (AAT), judicial review of administration  These mechanisms range from the very general to the very specific, but a lot of the heavy lifting is done by the middle group  Responsible government means the integration of the legislature and executive o 19th century ideal: the accountability of ministers or government as a whole to the elected assembly o This assumes the MPs are relatively independent from the executive o However, a strong cabinet relies on party unity: so this is really more responsible PARTY government o House of Reps – party government (at least not when hung)

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o Senate – parliamentary government Parliamentary oversight o Limited oversight of legislation (i.e. yay or nay) o Debates/enquiries into bills o Delegated legislation – power to disallow legislative instruments (i.e. regulations), senate scrutiny committee Oversight of Administration o General debate o Question time (without notice: political points, with notice: digging for detail) o Committee enquiries (policy in bills, estimates of expenditures, specific executive action, oversight of non-judicial arms of integrity branch – but don’t look into judicial decisions) o Grievances (specific or general constituency concerns) Sanctions: what are the remedies? o Ministerial resignation for misleading parliament (this is a convention) o Power to summon public servants and minister’s staff, but not members of the other house Executive accountability through executive bodies o Government functions have grown in complexity o There can be too much accountability if it is expensive and counter-productive (plants don’t flourish if we pull them up too often to check their roots) Evans: o Paradox: extra-parliamentary accountability bodies are set up by parliament and report to parliament o Same parliament bemoaned as ‘denegrated’ by executive dominance o Trend is to establish powerful (e.g. anti-corruption) bodies in the stratosphere but there is a danger of giving them too much power o Swamp of politics is not completely avoidable o Accountability is essentially a political process o Outside bodies NEED politics to be successful (e.g. media, public support) Two problem areas for accountability Murray-Darling River Basin Authority o Mighty river system in long-term decline o Competitive federalism at its worst o Political accountability at its worst o Howard govt commissioned an independent report by experts who devised a plan for parliaments to implement o Political pressures led to a limited plan which the upstream states are delaying Foreign affairs o S51 external affairs power o Power to wage war/sign treaties = executive prerogatives o Senate committee looks at new treaties o Treaties require legislation and parliament may question/debate those laws o HOWEVER, PM/cabinet negotiate/sign treaties, move troops independently of parliament

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Security info strictly controlled: ASIO issues its own warrants to spy etc Elections rarely turn on foreign affairs Where is the accountability?

12. FOI and Wikileaks  Freedom of information has a ‘rights’ basis but also a pragmatic basis for the improvement of government processes  Roots in Swedish legislation, and contemporary roots in the US Government in the Sunshine policy  In the US they actually take this to the extent of broadcasting government meetings etc on TV, but we haven’t adopted this in Australia  Open government is an aspect of accountability, knowledge is a tool of power  Useful for media, lobbyists, opposition groups and litigants  People also obtain personal records  How do you do it? o Begin with an informal written request o Duty to give the information unless the info is exempt o Right to refuse (e.g. an unreasonably large request) o There are costs involved o There are different forms in which you might get access o The FOI Act of 1982 was in the pre-computer era o Similar acts at state level o The acts talk about ‘documents’ so FOI only really relates to recorded information (e.g. you can’t FOI someone’s conversation or motivation)  Exempt documents include o Things relating to law enforcement, security and diplomacy o Commercial secrets, e.g. contracts with private individuals or trade secrets o Cabinet documents are exempt (this is because it encourages openness rather than self-censorship, and also it promotes cabinet solidarity), but this only a 20 year exemption o Conditional exemptions: deliberative process (i.e. fearless and frank advice to ministers) must be released unless government can prove contrary public interest (e.g. effect on economy but NOT mere political embarrassment) o Also no release of private information except in public interest o Can seek AAT review of the decision not to disclose o Or at state level Queensland Information Commissioner  If someone requests information about you, you will be notified and can challenge its limited release  Weighing up whether the information concerns ‘personal affairs’ with the public interest  There are usually fees because of the processing associated with preparing the information  What will happen now in the information age? o Reform: push rather than pull? Better to publish information e.g. on the internet, rather than requiring people to pull bits out individually o Protection for whistleblowers

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Public servants can only leak information with ministerial approval HOWEVER usually leaking by whistle blowers is only allowed to investigative agencies not the media or the public Wikileaks – outflanking FOI? o An online repository for information which is secret, from businesses and governments, and the United Nations o Violates confidentiality law o They try to redact personal information now o Freedom of information and the press? Reactions to wikileaks o Praised by libertarians who are against bureaucracy and believe in freedom of information o Mixed reactions by civil rights groups due to implications for individual privacy o Secrecy doesn’t always equal wrongdoing o Media jealousy o US wants to prosecute them o Is publication a crime as well as leaking? o Wikileaks doesn’t necessarily screen info like the media does o Freedom of information: there is an unintended consequence that if we relax too much about whistleblowing and give too much access – people will decrease the number of records/emails and go back to talking which cannot be accessed

13. The ombudsman  AKA parliamentary commissioner for investigation  Independent executive agency  Answerable to parliament (reports annually) o However, difficult to remove  Power to investigate complaints o May also initiate investigation  About most executive action or inaction  Only remedial power is to recommend/report and guide  Some general oversight of ombudsman by parliament  Roots in Swedish innovations in the 19th century  Exists in all Australian jurisdictions  Key industries have also set up ombudsmen to deal with complaints (e.g. telecommunications/electricity)  Public law of natural justice and rights seeping into the private law?  Companies must pay for complaints against them (so this is a market mechanism)  The Commonwealth Ombudsman o There are state ombudsmen as well o Ombudsman Act 1976, the ombudsman may: o S(5)1 investigate action that relates to a matter of administration  Exclusions: o Particular agencies like judges/parliament

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o Ministers (but not their delegates) Standing o Ombudsman can initiate action o Negative standing rule (no busybodies), doesn’t have to be a monetary interest o S3 prescribed authority Procedural powers o Initiating complaints is an informal process – maybe sending an email or making a phone call o S6 may decline to investigate (matter old, unwarranted, premature, better avenues) o S8 formal investigation, protection for disclosure, but complainant has no ‘right’ to appear o S9 can demand info o S13-14 can examine and search o S36 it’s an offence not to cooperate o S37 immunity for complainant/informing Remedial Powers o Ss10-11 may refer specific questions about administrative action to AAT o S15 report to agency/minister on anything unlawful, unreasonable, improper etc May recommend changes o S16 may report to PM/parliament on inaction o S19 annual and ad hoc reports to parliament Pros of system o It’s free o It’s informal o Independent o Expertise in administration and knowledge from past investigations o Can deal with things like neglect and rudeness not just bad decisions o Can deal with bad process and practice Cons of system o Discretion to investigate o Independence means that the complainant doesn’t have control o No binding remedies o Workload heavy Commonwealth Ombudsman o 26 500 complaints in a year: 6% uncovered error/deficiency primarily in 1) delay, 2) procedural deficiency, 3) flawed processes, 4) inadequate advice, 5) human error o Courts apply the law to the facts, so when you go to court you need to have evidence to meet your burden of proof o The ombudsman does all this for you o Most powerful of all administrative tribunals o e.g. government outsourcing Visa processing to Wizard Consulting, HCA holds that the ombudsman can review the decisions of anyone vested with administrative power o May review anything, not just decisions o Anyone has standing

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Can go beyond principles of judicial review No enforcement mechanism – can’t force anyone to do anything HOWEVER maybe forcing change in one specific case won’t create lasting change: the ombudsman has the power to liaise/talk to/persuade people: power is nonbinding but effective, and maybe this is how you get long term change? The Industry Ombudsmen o Began with banking, followed by telecommunications ombudsman o Industry OBs are funded by the industries o This provides a non-state-funded alternative to state-funded litigation o This was important after the privatisation of Telstra o There are several important values which underpin the industry ombudsman system including independence, accessibility, accountability and fairness o Fairness means making decisions by looking at the law (like a court does), but also going beyond that to look at industry codes of conduct and what is fair and reasonable. o A form of ADR (alternative dispute resolution) meaning if you have a dispute you can get a reference number to take back to the telco, and then the ombudsman may investigate and deliver a binding result (binds telco but not consumers) o How? Legislation: all telcos must be members of TIO and in becoming members they agree to abide by its rulings. They can’t just ignore it or withdraw because the legislation gives the telecommunications and media authority the power to go after non-compliant telcos.