public law week 1-5 quiz

public law definition

the body of legal principles with the primary purpose of constraining the exercise of public power

• public law principles determine the scope of public power - its nature, limitations, the procedures by which it can be exercised, and who can exercise it

public law vs private law

public law regulates interactions between gov & govs / individuals / constituent arms of gov

• gov law, constitutional law, administrative law

private law regulates interactions between individuals

• torts law, property law, contract law

rule of law definition

The notion of the rule of law means that everyone is bound equally by the same set of laws – no one is ‘above the law’ – and those laws are fairly and consistently enforced

thin vs thick interpretations of the ROL

thin - suggests that it is the process of making law that is important to the control of arbitrary power, focuses on how the law is carried out and enforced, not the substantive power

• legal theorists: Dicey, Fuller, Raz

thick: if the end is bad it cannot be rule of law positive, broader focus on the quality of the law, about justice

• legal theorists: Allen, Bingham

different interpretations of the ROL

Dicey: no man is punishable except for a distinct breach of law

Allan: ROL is more than just predictability and regularity. Restrictions on rights are only permitted modestly and when necessary. A law that fails to comply with the ROL is not a law at all

Fuller: laws should be general, publicly accessible, prospective, clear, non-contradictory, stable, have a possibility of compliance, congruence between declared law and official action.

Raz: human rights and democracy are not necessary for the ROL (legal positivist), rule of law serves to minimise the arbitrary use of power.

Bingham: societies that savagely persecutes people ≠ the ROL

Dworkin: The ROL contains fundamental civil and political rights and duties that pre-exist written law

constitutionalism definition

the principle that public (government) power is limited and its exercise controlled

• governing according to a respected and enforce set of operating rules or laws

• legal constitutionalism and political constitutionalism

legal constitutionalism and political constitutionalism

legal: there are substantive legal limits on gov powers, which are enforced by courts

political: relies on political mechanisms to control the exercise of govt power

• important decisions are made by the elected branches of govt

australian constitutional model

The Australian Constitution is described as a ‘distinctive combination of political and legal constitutionalism’

• there are legal rules on gov power found in the con

• Australian courts enforce the legal limits on govt power, however, those limits are not as numerous or broad as those found in other countries, this means a great deal is entrusted to the political process

constitutional change

• s128 of the Australian constitution: constitutional change must be approved by a majority of the whole population and a majority of states in a referendum (double majority)

• barriers: compulsory voting forces lower interest and lower politically educated voters which can randomly cast votes, double majority

communist party case

• Aus govt attempted to ban the Australian Communist Party and blacklist its members for national security

• The High Court rules that the law was unconstitutional as it did not conform to the requirements set out in the Constitution 

• Application: the rule of law applies in AUS – In his judgement in this case Dixon J said that the rule of law ‘forms an assumption’ of the Constitution

• This demonstrates a basic but fundamental principle of Australian public law: the Parliament must comply with the law of the Constitution

democracy definition

ruled by the people; people in the legal system determine how they are governed

direct democracy vs representative democracy

direct democracy = where the people have an immediate role in govt decision-making — people vote to make their own laws

representative democracy = where the people elect members of parliaments who then makes laws and decisions on their behalf

delegates & representatives

delegate model: MPs act in accordance with the preferences of those who elected then

representative model: MPs are entrusted to exercise their own independent judgement as to how the country ought to be governed

federalism

A system of government in which authority is constitutionally divided between a national (or central, federal) government and subnational governments

separation of powers

the basic idea of the separation of powers is that govt power should not be concentrated in the hands of one person, or group. Rather it should be divided up and distributed

• this limits the power of each members, or branch of govt and creates ‘checks and balances’

• safeguards against the abuse of power

responsible govt

ministers are responsible to parliament

• Members of the executive are drawn from and responsible to Parliament – s 64 of the Constitution provides that all Ministers must also be members of parliament, meaning Ministers must also be responsible to the people

international law

the law that governs the relations between nations

sources:

• international agreements - treaties, conventions

• decisions, declarations, and instruments made by international legal bodies

• international custom - rules that have been developed over many years by which nations consider themselves bound

the executive has the power to enter into agreements with other nations on Australia’s behalf

• although international law transcends national borders, it does not operate as a ‘higher’ law within each legal system

• International law is not legally binding in aus, unless the aus parliament enacts legislation making it so

aus’ first public law

• australian law and its institutional structures were built upon a pre-existing system of Indigenous nations, societies, and laws (Gordon J)

• Ngarra law: indigenous law that functioned for thousands of years and has dealt with crisis within indigenous communities