Week 3 Intro to Law
The Rule of Law
The power to govern must be shared amongst the people
Everyone is subject to the law, even higher powers
Magna Carta 1215
The exercise of power by government must be shared with the people and cannot be concentrated in the ruler
The rule of law underpins our legal system, providing for stability, and for order in society, by preventing autocratic rule by government
Professor Albert Venn Dicey:
- The law applies equally to everyone
- The absolute supremacy of ‘government by law’ as opposed to government by arbitrary fiat
- Courts will uphold the legal rights of citizens
- Anyone can be punished only for a breach of law, and not otherwise
The law must be:
- General
- Publicly promulgated
- Prospective
- Clear, intelligible and free from contradictions
- Stable and sufficiently constant
- Practical and not impossible to obey
The Rule of Law is put at risk when powerful people question the legitimacy of the law and their obligation to observe it
The Rule of Law in Queensland
- Magna Carta still applies in Queensland
The “fundamental legislative principles are the principles relating to legislation [in Qld] that underlie a parliamentary democracy based on the rule of law”. (Legislative Standards Act 1992 (Qld) s 4)
- Human Rights Act 2019 (Qld)
o s 15 (3): Every person is equal before the law and is entitled to the equal protection of the law without discrimination
o Non-binding Preamble
Separation of Powers
If each kind of governmental power is kept in a different set of hands then the opportunity for oppression and injustice is minimised.
- Legislative – Parliament (‘legislature’)
- Executive – Crown Þ Governor-General/Governor Þ Prime Minister/ Premier and ministers
- Judicial – Courts (‘judicature’)
The Legislature
Function is to make laws
Commonwealth Parliament – Exercises federal legislative powers per the Constitution (concurrent and exclusive)
- Recall : Consists of the King, a House of Representatives and a Senate
Queensland Parliament – Exercises state legislative powers (concurrent and residual), to the extent not inconsistent with Commonwealth laws
- Power to make laws for the ‘peace, welfare and good government’ of Queensland (Constitution Act 1867 (Qld) s 2)
- Recall : Consists of the King, and a Legislative Assembly (Constituion Act 1867 (Qld) s 2A)
The Executive
Function is to administer laws
Traditionally vested in the ‘head of state’
At Commonwealth level, this power is exercisable by the Governor-General in Council:
- The Governor-General is the Crown’s representative who is advised by:
o The Federal Executive Council, which consists of government Ministers
o Cabinet Ministers
o Outer Ministry
o Parliamentary Secretaries
In Queensland, this power is exercisable by the Governor in Council:
- The Governor is the Crown’s representative, who is advised by:
o The Executive Council, which consists of government Ministers
o The Premier
o All members of the Ministry
The Governor-General
- Representative of / appointed by the monarch.
- Commander-in-Chief of the Australian Defence Forces (Constitution s 68).
- Acts on advice of Federal Executive Council, giving formal effect to decisions of government. For example:
o Enact delegated legislation
o Proclaim commencement of an Act
o Appoint a Minister
o Appoint a Judge to a Commonwealth court
o Dissolve parliament and issue writs for an election.
- Holds ‘reserve powers’
Ministers
Commonwealth: Prime Minister (Anthony Albanese) and Cabinet
- The Prime Minister is the leader of the party with the majority in the House of Representatives (Westminster convention, not Constitution)
- He or she, in practice, leads the ‘government’ – ie the body that runs Australia
- Prime Minister selects ministers to assist with the task of government – cabinet ministry; outer ministry; parliamentary secretaries (assistant ministers).
Queensland : Premier (David Crisafulli) and Cabinet
- Premier is the leader of the party with the majority in the Legislative Assembly
- Cabinet contains Premier and all the ministers (maximum 19 ministers)
o Constitution of Queensland 2001 (Qld) ss 42, 43
The Judiciary
Function is to interpret and apply laws
Judiciary = courts. They exercise ‘judicial’ power
Courts are presided over by a judge or judges
These decisions are not based on whim or individual belief, but on the Law. Judges must work out what the law is (interpret the law) before they give a decision (apply the law)
Various courts have ‘jurisdiction’ over different seriousness of case; and decisions may be able to appealed to a higher court. (More on this later in the semester)
State and Commonwealth court hierarchies. High Court of Australia is atop both.
Separation of Powers is, in theory, a strict separation.
- No-one should be in more than one arm of government;
- One arm of government should not interfere with another;
- Each arm should only exercise its specific powers.
