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JURD7141

Principles of Public Law

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Answer Structure

Identify the questions: Part B there are two options, First sketch an outline w possible themes, Structure: Introduction + body + conclusion

introduction: a general comment on your position (agree to disagree) body: arguments and counter-arguments (8: 2)

use subheading + highlights. What is Mason CJ saying? .. If you get a specific question, mention what the majority is saying & what the minority and the reasoning supporting their outcome / principles. What 'constitutional theories' can I use to further expand the question? Is this assessment convincing? [What are the reasons it might not be?]

Conclusion: sum up your views

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Contents CONSTITUTION ................................................................................................................................................................................................................................................ 4

II A. POLITICAL CONSTITUTIONALISM VS LEGAL CONSTITUTIONALISM ................................................................................................................... 4

B. Political Constitutionalism ..............................................................................................................................................................................................................................4

II B. US Inheritance (Legal Constitutionalism) ................................................................................................................................. Error! Bookmark not defined.

II C. RULE OF LAW ..................................................................................................................................................................................... Error! Bookmark not defined.

III. PARLIAMENT + LEGISLATIVE POWER .......................................................................................................................................... Error! Bookmark not defined.

A. Federal Parliament ............................................................................................................................................................................... Error! Bookmark not defined.

B. State Parliament ..................................................................................................................................................................................... Error! Bookmark not defined.

IV. FEDERAL EXECUTIVE ......................................................................................................................................................................... Error! Bookmark not defined.

V. JUDICIARY ................................................................................................................................................................................................ Error! Bookmark not defined.

VI. AUSTRALIA FEDERAL CONSTITUTION v STATES CONSTITUTION ...................................................................................... Error! Bookmark not defined.

VII. PROTECTION OF HUMAN RIGHTS ................................................................................................................................................. Error! Bookmark not defined.

VIII. CONSTITUTIONAL CHANGE ........................................................................................................................................................... Error! Bookmark not defined.

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CONSTITUTION

Def – Constitution is a document that explains how a nation is to be governed by distributing the sovereign power in a way that is in the best interest of the people of the country. Lay down for the means by which governmental authority is exercised. Empowers and restricts. Constitutionalism - Authority of state is declared and how it is limited. Dual Function - power recognised and restricted. C can only be as effective as the political structure of the country is. Aim: granting power; strengthen the consolidated chain of command (Basic rule of Constitutional Law – Strong govt. chain of command + limiting concentration of power) Tamanaha: ‘a constitution establishes the basic powers and limits of a government and the relationship between a government and its

citizens’ (p19) Dicey: ‘all rules which directly or indirectly affect the distribution/exercise of sovereign power in the state’. Jennings: ‘the rules governing the composition, powers and methods of operations of the main institutions of government and the

general principles applicable to their relations to the citizens’ Adam Tomkins: more recently, should in part explain the role of people/values in society. C establishes institutions and their inter-relationships, explain place and role of people, express political values to which a particular society lays claim

II A. POLITICAL CONSTITUTIONALISM VS LEGAL CONSTITUTIONALISM

B. Political Constitutionalism (UK Inheritance)

Political Constitutionalism – A political constitution is one in which those who exercise political power (such as the govt.) are held accountable through political means and through political institutions

What has Aus C taken from UK? o Responsible and representative govt. o Parliamentary Sovereignty o Constitutional Conventions

UK: English public law principles that it used to regulate relations between institutions of State under Political Constitutionalism: Rule of law: the executive must have prior legal authority before it acts

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Principle of ministerial responsibility: Government’s ministers are constitutionally responsible and accountable to parliament. Resulted from experience of the P from s6 of Act of Settlement 1701.

Separation of power: tools that constitutions may use to regulate the legal/political relations of the institutions of the State

I. Representative and Responsible Govt.

Representative Govt

Government for the people (elected representatives) – Act of Settlement 1701 took radical steps of prescribing in law a constitutional framework underpinned by the principle of the separation of L, E, J and based on the requirements of formal, official process for executive decision-making to ensure govt. accountability to P (Loughlin)

s 7 + s 24 Con (implied right) = members of the Senate and the House of Representative must be directly chosen by the people. A mechanism to ensure popular franchise and the notion that Parliament represents the will of the People Held in Roach v Electoral Commissioner that franchise is critical for representative govt and lies at the heart of the concept of

participation in life of the community and of citizenship. Therefore, disenfranchisement of any group of adult citizens on basis that is not a substantial reason for exclusion from such participation would not be consistent with choice of people

s7 + 24 = supports evolutionary constitutional theory where words of this provision, despite not being a guarantee to vote, due to historical progress in legislation, have come to be guarantees.

s 245 Electorate Act: compulsory voting This system makes electorate (people) as most powerful followed by P, Ministry and Crown (least powerful)

Also adopted in the USA - Gageler, Foundations of Aus Federalism and Role of Judicial Review, explains that the system of republican givt was adopted which involved delegation of govt to a small number of citizens elected by the rest. Potential for tyranny and factionalism was also reduced by bringing a greater number of citizens under republican govt.

Responsible Government (see page 40)

Responsible govt requires that except when exercising reserve powers, the representative of Queen act on the advice of the ministers who are drawn from the P (s64) and so are accountable to it

Key tenet of Westminster system - classic theory of respon govt is that the exec should be 'chosen by, answerable to, and may be removed by' a popularly elected P. Concept establishes a line of accountability from the people who elect members of P to the executive (which holds office as long as it retains confidence of P)

Effect of RG is that the actual govt of the State is conducted by the officers who enjoy the confidence of people - Blacksham and Williams -

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this confidence is ultimately expressed or denied by operation of electoral process and attitude of electors to conduct of the E may be a significant determinant of contemporary practice of RG

Ministers, thus, hold office at the pleasure of the lower house of P and should be answerable to P for their actions and those of their departments - RG considered the ultimate guarantee of justice and indiv rights

Vital way of holding the govt accountable for its actions by way of which people can call to account the makers of govt policy - if they cannot have this accountability, then they have no way of controlling public policy or the impact of that policy on their lives

Evolution of Idea - Act of Settlement 1701 (s6 and 4) – Kept ministers of the Crown outside the P to avoid Crown influencing the decision of the P. Aligned with the current system of strict separation of power of USA. But was later repealed by reform acts. Such strict separation was not pragmatic. P discovered a more informal means of ensuring ministerial responsibility where rather than using legal proceedings pf impeachment, P established a position whereby a simple majority vote would be sufficient to remove a minister. Therefore, the kings' ministers could remain in office only as long as they enjoyed confidence of P

Australia 's executive is an adaption of the Westminster constitutionalism but combined with US system - s75(v) of C + judicial review of admin action under federal and state law + freedom of info legislation supplement the operation of RG.

Imp aspect of RG: i. Ministers may be members of either House of a bicameral legislature and liable to the scrutiny of that chamber in respect of the conduct

of the executive branch of govt. ii. Ministry must command support of the lower house of a bicameral legislature upon confidence motions

Bicameral System: While in theory, RG is the capacity of P to scrutinise actions of E, dominance of party system means that at least the lower house of the P is usually controlled by the party forming the govt. Where P has an upper house in which the govt does not hold a majority, there are greater opportunities for scrutiny available for govt actions. i. Senate has the power to refuse or defer a bill, making govt accountable to both houses of P - Senate establishes standing committees to

investigate questions or instances of exec action - Senate has constitutional power to refuse a money bill and a PM who is as a result unable to get supply of money from the Houses must either resign or advice for a general election (doctrine of ministerial responsibility) (Kerr dismissing Whitlam) - diff from UK system

Nature / Source of responsible government: Mainly based on convention, AND Necessitated & invigorated by the constitutional context / Provisions Lange (SUCH as 6, 49, 83, 62 + 64 of Con - establish formal

relation b/w E and P ) provisions impose requirement that the P meet at least annually, the provision for control of supply by P, requirement that

ministers be members of P, privilege of freedom of speech in debate, and power to coerce the provision of info provide the means for enforcing responsibility of E to the organs of representative govt

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Egan v Willis - Gleeson J recognised that RG is an evolving concept - based upon a combination of law, conventions and political practice Contemporary operation of system of RG reflects significant role of modern political parties - contemporary position of RG in Aus is that

while the primary role of P is to pass laws, it also has the imp function to question and criticise govt on behalf of its people and that to secure accountability of govt activity

By Convention, RG encompasses twin notions of collective ministerial responsibility and indiv ministerial responsibility Collective Ministerial Respon - Ministers support their decision of Cabinet and uphold the collective govt position. Ministers

must not speak against govt policy or reveal deliberations of Cabinet. Requires that govt resigns if a vote of no confidence is passed against it in P. Lindell argues that collective minis respon is the most imp and relevant feature of responsible govt in Aus

Indiv Ministerial Respon - Ministers be accountable to the P for their policies, their own performance and performance of people and entities within their portfolios. Ministers expected to explain their actions and policies to P, inform P of developments in their portfolio, take action to correct problems and if required, resign from their position. Lindell asserted that indiv minis response is a diminished and diminishing notion due to strong presence of party politics in Aus legislatures

What has come to be reasonably necessary at any time for the proper exercise of function of a house of P is to be understood by reference to what, at the time of question, have come to be conventional practices established and maintained by that house

P controls appropriation of expenditure - essential feature of responsible govt - School Chaplains Case (Look below - contracting and spending section)

Executive arm is responsible to Parliament for its actions s 64 of Constitution E integrated into L by requirement that Ministers are Members of Parliament accountable to it through questioning time (s 64) Accountability of govt. officials to ordinary law in ordinary courts was the cornerstone of the system

Weakening of RG

Vertical Fiscal Imbalance: Has impaired accountability and weakening of democratic controls over the govt. as there is unilateral basis for decision on revenue-sharing

Use of IGA [NOTES 92-93]: executive cooperation to achieve common interest + Executive exercise of legislative power (they pick what to legislate) + state parliaments 'function of oversight legislation is diminished + blur the boundaries of departments' responsibilities & accountability + encourages coercive federalism and centralisation of power

Held by Kirby J in Thomas v Mowbry that contemporary practice of 'cooperative federalism' has involved a shift of power from State and Cth P to COAG. Reference power belongs to the P and not E

Extra Constitutional - even though political undertakings and not legal obligations, they intervene in functioning of responsible govt - P comes into the decision making picture v.late - bypasses C to make amendments

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Political accountability becomes diff to locate States’ control over Cth’s power to subsequently amend the referral law is limited pursuant to Thomas v Mowbray Montesquieu: integrity of legislative and executive leads to tyrannical laws and implementations [FN 4]

II. Constitutional Convention: Unwritten rules formed by customs or belief, which are imp for the separation of constitutional system. They keep evolving to fit the social, economic, political, and cultural beliefs of the society+ keep it flexible so that easier to manage and change. (Dicey) – Understanding or habits which may regulate the conduct of several members of sovereign power, Ministers, and officials but are not laws which can be enforced through the courts.

Advantage flexible (non-legal rules): Dicey accountability: a presumption that Parliament would not intend to breach convention central to the development of the doctrine of responsible government (Executive powers are derived from the

many constitutional convention) Reflecting the Westminster Constitutionalism: parliamentary sovereignty + political accountability

Shortcoming lack of enforceability Dicey: [convention = constitutional morality] - these understanding, habits, or practices are not in reality

laws at all since they are not enforced by the courts Uncertainty It is difficult to determine whether and when a political practice has crystallized into a constitutional convention, and

if so, what is its scope In Australia: the 1975 crisis shows the possible collision between constitutional convention and constitutional law

1975 crisis: the then GG Kerr dismissed the Whitlam 's Labour Government on the ground that it had not been able to obtain supply and was refusing to resign or advice dissolution constitutional convention: a convention deriving from the principles of responsible government that the Senate must never under any circumstances exercise the power to reject an appropriation bill constitutional law: Senate's power to reject or defer the appropriation bills

III. Parliamentary Sovereignty (page 25 of Notes) UK: absolute parliamentary sovereignty [Dicey's notion of absolute parliamentary sovereignty + critics on Dicey's notion]

Definition (Dicey): The Queen, House of Lords and House of Commons together form the P. (1) P has right to make/unmake any law; (2) No person or body can overturn P 's law; (3) No person or body can make laws which override or derogate from an Act of P. This

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implies that the expression of the electorate is limited to be legally expressed by the P. No law can be declared invalid by the court coz it is opposing the opinion of the electorate. Court 's role (Dicey):

Last say vested in the Parliament: Judges have no power to repeal a Statute + Acts of Parliament may override the law of the judges Judicial legislation (interpretation of laws) is subordinate legislation, carried on with the assent and subject to the supervision of

Parliament à Related principle of legality in statute interpretation (courts will interpret the law in favour of protection of human rights; courts can not assume that parliament legislate to intrude human rights)

George Winterton (3 conceptions of PS) – Page 26 of notes Goldsworthy – Supports the idea of PS conceptialised by Dicey saying that it is not a dogma and has been adopted by several

jurisdictions coz of many reasons that include logical or practical necessity to empower a single, ultimate and unlimited law-making power in a single body, even if they are disobeyed coz they are unjust.

Substantive Restriction - P's legislative power is unlimited and may be exercised on most issues in the normal manner. But there are certain issues for which it must be exercised in a special way

Rule of law and absolute parliamentary sovereignty relationships: Acc to him, P’s law-making power fits with RoL through its 2 characteristics:

Will of P can be expressed only through an Act of P - Command of P is a combination of action of three bodies – Queen, HoC and HoL. Bill that becomes statute immediately subject of judicial review. Although legislation is interpreted by the Courts, judicial interpretation does not diminish the power of P. It empowers the judicial arm to interpret the law.

English P has never exercised direct executive power or appointed the officials of the executive arm of govt. How to consolidate Dicey’s idea of PS with RoL?

Dicey 's understanding of "rule of law" is a formal / thin conception of rule of law. It only covers the idea of due process, and does not cover the judgment of the substantive part of the law (whether a law is good or bad).

Dicey 's rule of law is consistent with his idea of parliamentary sovereignty. Because his of rule of law only connects with parliament' s activities of legislation where parliament must promulgate according to due process.

Limitation (Dicey): External Limits: Though electors’ opinion can only be legally expressed through P and they do not hold the right to

initiate/sanction/repeal a legislation of the P, there is a likelihood that electors will disobey laws that are diabolical. Power of imposing laws is dependent upon instinct of subordination

Internal Limits: politicians' personal morality + social morality govern the nature of P. Stephen says that P is a product of certain social conditions and determined by whatever determines the society. Also, P cannot bind its own successors by terms of any statute in order to limit the discretion of future P and to disable the legislature from entire freedom of action at any future time

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when it might be needed The disadvantage: the notion that parliamentary sovereignty is externally subject to moral constraints fails to recognize

the distinction between moral and legal authority Morally fallible legislature could have unlimited legal authority to enact laws, despite its limited moral authority (Goldsworthy)..

Dicey absolute parliamentary sovereignty theory of criticism (challenges / critics of Dicey 's absolute PS) electors have no rights or legal means to repealing, sanctioning or initiating the parliament legislation Walker: Dicey 's theory lacks support from cases, and no reference to statute or constitutional instrument Jennings: (i) parliament cannot bind itself; (ii) parliament cannot pass non-sovereign legislatures, such as legislatures to disfranchise the Roman Catholics, or to prohibit the existence of trade unions; (iii) Dicey 's understanding of legal sovereignty and political sovereignty means parliament 's law-making power is restricted by legal limits, and therefore show that there is no supreme sovereignty. Thus, P is a legal sovereign and the people are the political sovereign. As a legal sovereign, it can make rules, even limiting its own power, by following the due process.

People as Sovereign reflected in writings of Bryce, The American Cth – USA a union which is not dissoluble at pleasure but is an instrument of perpetual efficacy. Alterable only by the people. Union can exercise all power essential to preserve and protect its own existence and of the states. But no such change to the structure and relations between the states can happen w/o consent of the people. Was also acknowledged by Madison in The Federalist

UK Status (current situation in UK show that current UK Parliament is not sovereignty): [FN 13] 3 reasons:

EU laws: national laws must yield to directly enforceable law of EU with which they are in conflict The effect of internally dividing sovereignty through the devolution of power to Scotland, Wales and Northern

Ireland after 1998 The incorporation of the European Convention on Human Rights into domestic law through the Human Rights Act 1998 (UK)

R (Jackson) v Attorney-General: "parliamentary supremacy has been reduced to merely a general principle" Tomkins: these current challenges can be repealed, therefore technically it is still parliament sovereignty

Allan: Parliament sovereignty is subject to the limit of rule of law (and political morality). No Act can be enacted to destruct recognizable form of democracy – courts can disobey undemocratic laws which do not reflect the political morality of the contemporary conditions. (pg 28) Hard to consolidate Dicey 's understanding of parliamentary sovereignty (in the context of thin conception of rule of law, only cover due process) with the modern thick conception of rule of law (cover due process + laws should be substantially good)

Australia: NO absolute PS in Australia

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Hybrid characteristic of Aus C where PS is subjected to judicial review – S of P is subjected to constraints imposed by instruments P has 2 houses - HoR and Senate - both have almost same legislative power, except that Senate may not originate nor amend a money bill P IS SUPREME: Aus P is empowered to make or unmake any laws - but that is accountable through the process of judicial review,

besides electoral process. BUT judicial review and Principle of Legality powerless when legislation is clearly entrenching rights P still has the last say and courts cannot expose their meaning on the statutes (Spigelman) - PoL is not a constitutional rule Explained by Hayne J in Roach v Electoral Commissioner that the argument that P does not have the power to depart from the

commonly understood min requirement of franchise is invalid Both Roach and Rowe reflect the tensions between the enactment of laws by P and notion of responsible govt - pursued and

respected in both decision by the judiciary Provisions in Con entrench the sovereignty of P in decision making - e.g. s72, which serves the dual purpose of ensuring that no

one but P has power to remove the judge from an office and to ensure that P can do so w/o challenge from the HCA CONSTRAINTS ON P'S POWER ARE POLITICAL NOT LEGAL - P can legislate abrogating fundamental rights of indiv and courts

will interpret it accordingly but only when such an intention is clearly manifested by unambiguous language (R v Secretary of State for the Home Dept; Coco v The Queen)

P has power to legislate retrospectively (Doro v Victorian Railways Commissioner) Historically also, Colonial legislatures were did not have unlimited powers but were subjected to constraints imposed by CLVA and

Doctrine of Extraterritoriality - CLVA implied that it could not pass legislation inconsistent with British laws applied by paramount force; Doctrine of Extraterritoriality meant that Cth and state laws were operational within geographical borders

Statute of Westminster 1931: Aus P was further empowered with implementation of the Statute of Westminster 1931 which was a legal manifestation of the Belfour Declaration and gave the colonies their legal independence from the Imperial P - repealed CLVA and extraterritoriality (s2 - Cth could pass laws outside its geographical borders; s9 - States bound by it)

Supremacy of C: PS in Aus is understood in the context of rigid limits and boundaries imposed by the Aus Con and to some extent the state Con. C is written and rigid with federal characteristics. This implies that power granted to the national govt is not an exclusive grant – there are matters in which both or either state and national govt deal with. So Cth P is not completely sovereign with unaccounted and unlimited power.

Dicey’s Idea of PS and RoL: Hard to consolidate his thin concept of RoL associated only with due process of legislation under the modern understanding. (see pg 31 of notes)

Judicial Review - See below - But except for the list of Cth powers in s51, most sections in the Chapter of Con have attracted less judicial attention since 70s - General rule of thumb is that P is entitled to control its own affairs and that the courts should not interfere

Reflected in Decision of Egan v Willis (McHugh in his dissenting judgment) and Egan v Chadwick where held that public interest immunity is a judgment of the govt/P, not business of the courts

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Federalism: existence of multiple-sovereignty (power divided between federal and states)

Federal level Responsible government – Following from the later developments of statutory controls under Act of Settlement 1701, P discovered a

more informal means of ensuring ministerial responsibility where instead of using legal proceedings of impeachment, P established a system where simple majority vote would be sufficient to remove a minister from his position. This implies that a king’s ministers could remain in office only so long as they maintained the confidence of P.

The absence of a bill of rights (Parliament has the last say in protecting the People) (see below table -protection of human rights) Power of Cth is delegated power – Enumerated and defined in the C. Union is an artificial creation, which cannot have what the C has

not conferred upon it. Presumption is therefore against the national govt. State level

State parliament 's plenary legislative power- State is not subjected to any restriction which the C has not distinctly imposed on it Accords with Dicey's conception of PS - P is supreme and existence of substantial restrictions only means that power is

exercised in a special way BLF Case: 'Peace, welfare and good government'; constitutional amendment (I) state parliament has plenary power within

the frame of federal constitution; (ii) There is no 'common law rights' 'Deeply rooted' in state constitutions that can limit State Parliaments' legislative power; (iii) judges are not elected and therefore lack of accountability (Kirby J)

Flexible ways to amend state constitution (see section behind state parliament) Australia is not absolute parliamentary sovereignty performance reasons (see below table)

Parliamentary Privilege- S 49 of Con, federal Parliament 's power to declare its own' powers, privileges, and immunities' = affirmed in Fitzpatrick

'Sovereignty' in the context of indigenous sovereignty [FN 22; Chapter 5] Brennan, Gunn and Williams - For Indig, sovereignty was about the recognition of their title over their land and their

sovereignty in decision making and their recognition as the first people of Aus - sovereignty at a more fundamental level rather than for the British for whom sovereignty described their capacity to make decisions across the range of political, social and economic life

Self-Determination - Sovereignty is seen as something inherent and not something which is imposed by a document such as Con. UN Declaration on the Rights of Indig People where self-determination was directed to encourage internal arrangements for democratic governance for Indig people rather than breakaway nation-state

PS under Aus Con is a result of common consensus amongst states to unite together as one land. Diff from historic conception where the British sovereignty was asserted on the Indigenous people instead of their wish being recognised like in N. America

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where the government entered into treaties with the Indigenous tribes and titled them as domestic dependent states. Aus is only country with no treaty with its Indig people - treaty has enduring political, legal and cultural significance. Helps

in resolving disagreements, eco development, and tackling social problems Treaty making is based on Sovereignty. Since British did not recognise the sovereignty of Indig people, they did not make

treaties with Indig people but rather categorised their entrenchment as 'settlement'. Indig people want sovereignty to empower to build their independence within pockets of Aus - community does not have th

resources or infra or desire to separate from Aus (Behredt) Exists in State of Georgia where the state has sovereignty over the area but cannot reject the existence of native people

(Cherokee Nation v Georgia) Idea of Ab. sovereignty is inconsistent with Mabo, which was derived through the constitutional system (Coe (No. 2)) - this

implies that recognition of native title depends on CL. Yorta Yorta: the tension within the text for recognition of indigenous people 's rights and interest à no parallel law making or

sovereignty from 1788 (which deprivedpre-1788 sovereignty) + indigenous people to establish a system of 'laws and customs by proving its' continuous existence and vitality' (which derived from the pre-1788 sovereignty)

Idea of Sovereignty in Aus can be contrasted with Self-Determination (SD): SD presumed prominence in Aus coz of 2 reasons - functioned as organising concept put forward by the Cth govt for its approach to Indig affairs policy Independently of govt, idea used by Indig people to advance their political claims

For historical reasons: From colonial legislation to acquisition of legal independence Colonial legislature is subordinate to the imperial authority

The provincial legislatures has plenary legislative power within the limits prescribed in the relevant Imperial legislation (R v Burch)

Notion of repugnancy: legislation which is repugnant (inconsistent) to the law of England (common law or statutes) can be strike down

Effect of CLVA After the implementation of Colonial Laws Validity Act 1865 (Imp) ('CLVA'): though Australian states could repeal / amend

British statutes and British common law, they are still bound by British statutes which applied to them by paramount force Australian Constitution - the Commonwealth of Australia Constitution Act 1900 (Imp) - Is a law passed and asserted by imperial

parliament, and subject to the repugnancy rules under CLVA Effect of Statute of Westminster 1931 (Imp)

Freed the Commonwealth from Imperial restriction, but states were still bound by the doctrine of repugnancy under CLVA and the extraterritoriality

s 4 provides that UK could still legislate for the Cth, albeit at the Cth 's request and consent

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Effect of Australia Acts 1986 (Cth) Legally speaking, it is the moment of Australia 's final independence + UK became a' foreign power '(Sue v Hill)

Other examples the limitation of 'manner and form requirement' imposed on state parliaments 'legislative power (provide a parliament the channel

to bind future parliaments) is a challenge to Dicey' s conception of parliamentary sovereignty, under which a parliament cannot bind the future P.

Govt. of Aus states are still Westminster system which have faith in P – in absence of bill of rights, the idea that P has the power to protect rights of people

Overall, it is the idea of Constitutional Supremacy where the C dictates what P can do.

Absolute PS - Australian example shows is bad (moral limitation regardless of use)

the failure of IGAFFR (2008 Intergovernmental Agreement on Federal Financial Relations): IGA agreement without legal enforceability - Cth kept making specific purpose payment notwithstanding the alternative approach adopted under the IGAFFR - mindset of Cth was to intrude in the issues, undermining state autonomy

the expansion of Cth 's power under the federalism through referrals of powers + degree to which Cth has become involved in state affairs is resulting in diminishing returns on involvement

most referendums were about expansion of parliament 's power no sufficient protection for human rights (see part of human rights)

s 128 requires that proposals for constitutional change passed by both House of the federal parliament 'shall be submitted' to the people However, this constitutional requirement has been on occasion be ignored:. (i) 1965, the government changed its mind about holding a referendum because incoming PM Harold Holt was less supportive of the particular proposals than outgoing PM Sir Robert Menzies; (ii) 2013, a referendum to alter s 96 of the Constitution to authorise the Cth to make grants of financial assistance directly to local government bodies did not proceed after PM Julia Gillard was deposed and replaced with Kevin Rudd

Unwritten Constitution

Never a written C but many imp parts of C that exist in a written form through seminal docs (e.g. Magna Carta, Act of Settlement 1701; EU legislations; Bill of Rights)

Imp principles spelled out in CL

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Constitutional conventions (see table below)

Accountability (Political Constitutionalism)

Politicians are held to account through political means and institutions (Parliament and the Government / Executive) Govt. subjected to endless media and public scrutiny Executive subject to scrutiny in Parliament by means of taking part in debates, answering questions, participating in and responding to the

investigations of committees of inquiry, and etc. Rule of law (see table below)

Definition (3 part) Formal conception contrast substantive conception

Formal: the definition of Dicey's + Jennings Criticism Substantive: other people's point of view

The rules on eligibility / disqualification of parliament members: ensure the impartiality, independence and compatibility of the parliament members (see below II)

See the limitations behind the parliament and executive

Advantage

Effective in Protecting Human Rights: Governments will not do things that they cannot politically get away with, as they will lose power Act in a pro-active way in indigenous affairs

E.g., constitutional recognition of the indigenous people in Australia (the then PM Kevin Rudd 's national apology to the Stolen Generations in the federal parliament; 1967 referendums on constitutional change to remove discriminatory references to indigenous people and to extend Cth' s power in s 51 (xxvi) to legislate on aboriginal affairs)

Problems: non-realization of political promises (when Julia Gillard formed a minority government, she made policy commitments to hold a referendum during the life of the Parliament or at the next election on 'Indigenous constitutional recognition', in order to securing the backing of Independent and Greens members. But no referendum was put during this time frame)

Constitutional convention (see table below) Parliamentary sovereignty (see table below)

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Advantages behind parliament and executive of + judiciary's shortcomings

Shortcoming

Minority is not represented the value of open, transparent, participatory, representative and deliberative are easier to articulate than to follow in practice Constitutional convention (see table below) Parliamentary sovereignty (see table below) The disadvantage behind parliament and executive of + judiciary's shortcomings