- Information
- AI Chat
LAW-1112-Public-Law-and-Statutory-Interpretation I
Property Law (LAW 2112)
Monash University
Preview text
LAW 1112 Public Law and Statutory Interpretation
Foundational Concepts
1. Public law
Legal principles concerned with the conferral and constraining of public power, and those who exercise it – i. government. Public law determines the scope of public power: - The nature of public power - Limitations placed on the exercise of public power - The procedures by which public power can be exercised. - Who can exercise public power > people and institutions that make up government i. parliament, executive and judiciary. Public law may be described as the body of legal principles that apply to public power. - Public power is typically exercised by people and institutions that make up ‘the government’ – the parliaments, the executive and the courts. Public and Private Law – Public law typically regulates the relationship between those exercising public power, whereas private law usually regulates the relationship between ‘private’ actors. - In terms of public power, no one person enjoys inherent public power, it is conferred by the law, and exercised in accordance with the law. - Public power may be more coercive than private power. e. creating taxation laws & collecting taxation money.
- Public Law and other legal disciplines
Sub-disciplines of public law include constitutional law, administrative law, human rights law
and law that governs statutory interpretation.
Public law underpins almost every other legal discipline, because PL principles determine
the scope of the government’s power to make, administer and adjudicate laws in every area.
1.2. Public law and Statutory Interpretation
- The power to make statues is an exercise of public power, and public law principles determine the statues a parliament can enact.
- Many statues empower the executive govt. to do certain things.
- Principles of public law inform how the courts should interpret statues.
- Foundational Concepts 1.3. The Rule of Law
No person is above the law, everyone is therefore ruled by the law rather than the rule of people. The govt. is ruled by the law, it cannot do whatever it wants, it must stay within its given powers. Rule of Law Theories Dicey 1. No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the courts. 2. Every person, despite their authority is subject to the law. 3. The constitution is pervaded by the rule of law on the ground that the general principles of the constitution are with us the result of judicial decisions determining the rights of private persons in particular case brought before the courts. Fuller The Consequences of Failure. King Rex Allegory In a healthy legal system, the govt. acts with restraint, in accordance with properly made laws laid down in advance, and the public acts in restraint by abiding by these laws. When the govt. flouts with the requirements of the rule of law (examples as per the consequences of failure), the healthy relationship breaks down. Raz Raz argues the rule of law has two aspects.
- That people should be ruled by the law and obey it
- That the law should be such that people will be able to be guided by it. To achieve 2. there are different principles, e. laws be open and clear, laws should be ‘relatively stable’ & there be an independent judiciary Bingham Bingham suggests ‘all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect in the future and publicly administered by the courts’. Bingham sets out a list of specific requirements for the rule of law. e., the law must be accessible and so far as possible intelligible, clear and predictable. Allan Allan puts forth that the rule of law is best understood as compliance with those conditions under which each person’s freedom (or liberty) is secured, consistently with the enjoyment of a similar freedom for everyone. 1.3. The Rule of Law in Australia Australian Communist Party v Commonwealth (Communist Party Case) – “the rule of law forms an assumption of the Constitution”. The case highlights that Parliament must comply with the law of the Constitution given the Constitution places legal limits on what the Parliament can do.
- Constitutionalism and its variations
Relationships and Structures
2. Democracy: Government and the People
A democracy is a system in which the people have some say in how the state is governed. Direct democracy Representative democracy Gives the people an immediate role in government decision making. - In California, citizens can propose new legislation, vote on which proposals should become law and repeal laws. The people are not directly involved in government decision making, rather their primary role is to choose who is going to govern on their behalf. - Positions of govt. are decided via elections. 2.1. Why democracy? Intrinsic • There is something inherently fairer about a system in which the people have some say in how they are governed.
- Premised on the view that as ‘ordinary people’ we are entitled to have some input into the way the government is run.
- It can lead to better decision-making because it takes
advantage of diversity of opinion, expertise, experience and
critical assessment.
Instrumental •
2.1. The complexities of democracy
Some argue that the democratic system has a flaw in that minority groups are at a
disadvantage.
- In particular those who are already marginalised: ethnic minority, religious minority etc
- It therefore may deny the idea that everyone is entitled to have their say, and certain people’s lives will be governed in a way they cannot change or approve of. The democratic system is designed to allow the ‘people’ to have their say. This is not entirely true given there are exclusions to this i. those below the age threshold and those convicted of serious crimes. 2.1. Democratically elected parliaments: representatives or delegates? Delegates should act in accordance with the preferences of those whole elected them. Representatives should follow their own judgement about the proper course of action. In Australia, the ‘representative’ model has prevailed, whereby elected members are entrusted to exercise their own judgement on how the country should be governed.
Party politics in the Aus political system placed expectations on members of parliament to promote their parties political agendas.
2. Federalism
Australia is a federation; a system of government in which there is more than one government (in contrast to a unitary system). Levels of Govt: 1. Federal or Cth Government – powers are set out in the Australian Constitution. 2. State Government – powers are found in respective state Constitutions & informed to an extent from the Australian Constitution. 3. Australian Territories (ACT & NT) 4. Local governments. 2.2. Federalism: Pros and Cons Pros Cons - Regional govt. may be more alert to the particular needs of their region; can better tailor laws reflecting those needs. - People can relocate to a state/region which the laws align with their views and values. - Federalisms allows for experimentation in law-making; laboratory federalism. - Not all experimentation may be positive; there would be nothing that could be done to prevent a regional govt. implementing draconian measures. - The potential for the inconsistency of laws may cause inconvenience. - The inconvenience of needing to reorient oneself to each region’s laws.
2. The Separation of Powers
1. Legislative power (exercised by Parliament)
2. Judicial power (exercised by courts)
3. Executive power (exercised by the executive branch of govt. e. Ministers).
The SOP promotes that govt. power should not be concentrated in the hands of one
person or group.
- It should be divided, limiting the power of each branch.
- This creates a system of checks and balances.
- It is often seen as a safeguard against an abuse of power.
Dividing power also enables groups of people to develop specialist expertise in their
area.
The SOP reflects the notion of independence; each govt. actor should be able to
perform their duty without undue influence from the other branches of govt.
Why was it so controversial?
- Some people argue that there is a constitutional convention that the Senate
will not block supply and the Senate breached this convention by refusing to
pass the budget.
- Other people argue that there is a constitutional convention that the Governor-
General should act on the advice of the Prime Minister and that the Governor-
General breached this convention as he did not discuss his fears with
Whitlam, he simply dismissed him.
- Still others argue that the Whitlam government breached the constitutional
convention that it would resign if it could not guarantee supply.
2 Australia’s Legal Relationship with the World
The sources of international law include:
- International agreements: agreements are negotiated and ultimately entered
into by two or more nations. E. treaties, conventions, covenants etc.
- The decisions, declarations and instruments made by international legal
bodies, many of which were first established by international agreement.
Importantly the UN, as well as others such as the International Criminal Court.
- International custom: rules that have developed, over many years, by which
most nations consider themselves bound.
The act of entering into agreements is taken as a signal to the world that Australia
agrees to be bound by the promises that they contain.
Dualist System under the Australian Constitution – international law is not legally
binding or enforceable within Australia unless the Australian Parliament enacts
legislation making it so.
Relationships and Structures
The Origin and Evolution of Australian Public Law
3. Australia’s First Public Law
- The arrival of British explorers and the claiming of Australian territory for the possession of the King of GB in 1770 marked the beginning of British Public law in Australia. o Referred to as ‘Anglo-Australian’ public law.
- In 1768, King George III gave Captain Cook secret instructions on his first pacific voyage. o Authorising Cook to take possession of the land & with consent of the natives to take possession of the country in the name of the King of GB.
- In 1788, Governor Arthur Phillip arrived in Sydney with the First Fleet. o This marked the beginning of European settlement in Australia. o Phillip asserted British law would apply – NSW ‘received’ all of the suitable British law.
- Governor Phillip declared British law to be the law of the land, on the moral and legal basis that Australia was previously uninhabited. o This was premised on the doctrine of ‘terra nullius’ – ‘nobody’s land’. Australia then, was considered an empty land: British law was regarded as filling a complete legal and political vacuum.
- In the landmark case of Mabo No 2 the legal fiction of an uninhabited territory was finally rejected, and the HCA recognised the Indigenous people had a pre-existing legal system. o ‘a discriminatory denigration of Indigenous inhabitants, their social organisation and customs’. o Native title.
- Walker v New South Wales – Walker argued Indigenous Australians are not bound by British law, on the basis they did not consent to it. o Chief justice was not persuaded and rejected the sovereignty argument.
3. The Reception of British Law
The legal validity of British Law in Australia was assumed to be resolved by the passage of the Australian Courts act 1828 by the imperial parliament. It confirmed that British law had been received by the Australian colonies.
3. Reforming the Constitution
The mode of altering the constitution rests in s 128 of the constitution: the process of a referendum.
- In 1977, s 72 of the Constitution was amended so that it now requires High Court judges to retire at the age of 70. Before then, judges could sit on the bench for as long as they liked.
- In 1967 – the Aboriginal Referendum.
- Removed the phrased ‘other than aboriginal race in any State’ should be removed from s 51 (xxvi). This would allow federal Parliament to make nation-wide laws for Indigenous Australians to redress discrimination and disadvantage.
- Repeal s 127 of the constitution which related to counting Indigenous people as part of the Cth.
Parliament and Legislative Power
4. What is Parliament
A Parliament is a body or group of people that is typically responsible for making statue law within a legal system. Due to the federal system of government. - the federal Parliament (sometimes also called the ‘Commonwealth’ or ‘Australian’ Parliament), which sits in Canberra; - the Parliaments of each of the Australian States; and - the Parliaments of the Australian Territories. 3 Important Characteristics of Australian Parliament – 1. Parliaments are elected. o Their members are chosen by the people via elections unlike other branches of govt. 2. Primary role of Australia’s Parliament is to enact statutes: written instruments that state what the law is. o Parliament is the supreme law-making body in Australia, that can override common law. o Parliament’s law-making powers are not unlimited. 3. Most of Australia’s Parliaments are bicameral. o This is comprised of two houses or chambers. ▪ Federally, the ‘lower house’ is the House of Representatives, and the ‘upper house’ is the Senate. ▪ In Victoria, the ‘lower house’ is the Legislative Assembly and the ‘upper house’ is the Legislative Council.
4. The Origins of the British Parliament and the Doctrine of Parliament
Sovereignty
The doctrine of parliamentary sovereignty is the ‘bedrock of British Constitutionalism’. Parliamentary sovereignty means that the Parliament sitting in the Westminster has unlimited legislative power, and that whatever the Parliament enacts is law. - Everyone within the legal system, is legally bound to obey Parliament’s laws. The doctrine of parliamentary sovereignty emerged as a positive solution to the historical struggle for power between the British Monarchy and other members of society. In 1215, the Barons forced King John to sign the Magna Carta, this acknowledged that the powers of the King were not unlimited; he was subject to legal rules, like ordinary people. In 1610 Sir Edward Coke, the Chief Justice of England, asserted that Acts of Parliament would be invalid if they were ‘against common right and reason, or repugnant, or impossible to be performed’
4. The Structure and Processes of Parliament
In bicameral Parliaments, every statute must be approved by both houses of Parliament before it becomes law. The final step in the passage of a bill into law is royal assent. - S 58 of the Australian Constitution. - The Governor-General should be concerned with ensuring legislation has been passed with due process, it is the responsibility of Parliament to ensure proper quality and content of the legislation.
4.3. The Role of the Two Houses
s 7 and s 24 of the Constitution require that both houses of the federal Parliament be ‘directly chosen by the people’. - These sections are a vital constitutional guarantee of democracy: it limits the Federal Parliament’s ability to deprive certain people of the right to vote. The bicameral system is useful because it allows each house to review legislation passed by the other. In Victoria, the lower house is elected via a system of preferential voting, whereas the upper house is elected via a system of proportional preferential voting. - Preferential voting tends to lead to the candidate who is preferred by the majority of people being elected (even if that candidate is not every person’s first preference). - Proportional preferential voting allows candidates who receive a certain number of votes to win a seat, even if they are not supported by a majority of people. The interests of Australia as a whole is represented by the lower house – - Section 24 states that ‘[t]he number of members [for the House of Representatives] chosen in the several States shall be in proportion to the respective numbers of their people’. - Australia is divided into 151 electorates, which each represent a (roughly) similar number of people. The interests of the States are represented by the upper house – - s 7 of the Constitution states that ‘[t]he Senate shall be composed of senators for each State, directly chosen by the people of the State, voting ... as one electorate’. - In 2021, each State is represented by 12 Senators, and each mainland Territory is represented by two. This was intended to ensure that the will of the majority could not ride over the interest of the people in the less populous states.
4.3. When the Houses of Parliament Disagree
Disputes between the Houses of Federal Parliament –
Some people are still precluded from the electoral process – the Commonwealth Electoral Act stipulates that any ‘person who is serving a sentence of imprisonment of 3 years or longer’ cannot vote.
4.3. Delegating Legislative Power
- Parliament can ‘delegate’ some of their legislative power to members of the executive branch – that is, Parliament can authorise executive officers to make laws. o Not expressly mentioned in the constitution.
- Legislation made by the executive can be known as delegated legislation or subordinate legislation.
- Parliament still retains control over the making of delegated legislation.
- These types of law do not need to be passed with the full parliamentary process: it is impracticable to require every law to go through the full parliamentary process.
- Those executive members of the relevant departments can help make more informed delegated legislation given they are at the ‘coal face’.
- Delegated legislation is easier and faster to change compared to primary legislation: it allows the govt. to respond to crises. e., COVID-19 rules.
- Delegated legislation does juxtapose the idea of the separation of powers.
- Delegated powers must conform to the Constitution: its powers are limited.
4.3. Delegating Legislation v ‘Soft Law’
Quasi-legislation or soft law: technically, not binding laws. - The ATO often issues many types of soft law. Soft law differs to delegated legislation in force and process: soft law does not need to go through the same process of being tabled in Parliament.
4. Legislative Power
4.4. State Legislative Power
- The Parliament of the Aus States were modelled on the Parliament in Westminster, their powers reflect accordingly.
- Many State Parliaments are given power to make laws for the ‘peace, order and good government’ of that State. o s 16 Constitution Act 1975 (Vic) – ‘the Parliament shall have power to make laws in and for Victoria in all cases whatsoever.’ o s 5 Consitution 1902 (NSW) – ‘The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever’.
- If read literally, it suggests that state Parliaments can only enact laws that are actually beneficial of peace, order and good government – if this were the case, then it might be possible to challenge the validity of a law that disrupts that State or is otherwise contrary to the best interests of the people. o This is emblematic of the argument posed by Sir Edward Coke asserting that the Parliament in Westminster could not enact legislation that was contrary to fundamental rights – this is NOT THE CASE in for the Australian States.
Union Steamship Co of Australian Ltd v King (1988) 166 CLR 1 Facts:
- King was a seaman employed by Union Steamship.
- King developed boilermaker’s deafness as a result of working and, under the s46 of the Workers Compensation Act 1926 (NSW), sought compensation.
- The Workers Compensation Act 1926 (NSW) purported to apply to claims for injury occurring on a ship registered in NSW regardless of where in the world the ship happened to be when the injury was incurred.
- Because it operated extraterritorially, Union Steamship argued it was not for the ‘peace, welfare and good government of NSW’.
- The Court of Appeal dismissed this argument.
- Union Steamship appealed to the High Court. Held: appeal dismissed: ▪ “These decisions and statements of high authority demonstrate that, within the limits of the grant, a power to make laws for the peace, order and good government of a territory is as ample and plenary as the power possessed by the Imperial Parliament itself. That is, the words “for the peace, order and good government” are not words of limitation. They did not confer on the courts of a colony, just as they do not confer on the courts of a State, jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the colony. Just as the courts of the United Kingdom cannot invalidate laws made by the Parliament of the United Kingdom on the ground that they do not secure the welfare and the public interest, so the exercise of its legislative power by the Parliament of New South Wales is not susceptible to judicial review on that score. Whether the exercise of that legislative power is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law ... is another question which we need not explore.” Considerations:
- How did the High Court interpret the phrase ‘peace, welfare, and good government’ as it appears in the New South Wales Constitution?
- In Union Steamship Co of Australian Ltd v King, the High Court of Australia interpreted the phrase ‘peace, welfare, and good government’ to not be words of limitations as they are expressed in the Constitution Act 1902 (NSW).
- What did the High Court say about the nature and scope of State legislative power?
- The High Court of Australia in Union Steamship Co of Australian Ltd v King relied on authority favoured in the United Kingdom in order to inform their decision about the nature and scope of State legislative power. In the case of Ibralebbe v The Queen, it was expressed by Viscount Radcliffe when describing a power to make laws for the peace, order and good of a territory as “connot[ing], in British constitutional language, the widest law making powers appropriate to a Sovereign”.
- Resting on this authority, the High Court expressed that the “within the limits of the grant, a power to make laws for the peace, order and good government of a territory is as ample and plenary as the power possessed by the imperial Parliament itself”
Held (per Dawson J): ‘ ... in Union Steamship Co of Australia Pty Ltd v King this Court reserved the question whether the exercise of that legislative power is subject to restraints to be found in fundamental principle. This case throws up the question reserved in those cases and it should now be answered by saying that no non-territorial restraints upon parliamentary supremacy arise from the nature of a power to make laws for peace, order (or welfare), and good government or from the notion that there are fundamental rights which must prevail against the will of the legislature. The doctrine of parliamentary supremacy is a doctrine as deeply rooted as any in the common law. It is of its essence that a court, once it has ascertained the true scope and effect of an Act of Parliament, should give unquestioned effect to it accordingly.’ Durham Holdings Pty Ltd v New South Wales (2001) 2015 CLR 399 Facts: ▪ Coal Acquisition Act 1981 (NSW) provided for compensation to be paid to certain landowners in NSW when coal was taken from their land. ▪ Section 6 provided that Arrangements (a delegated legislative instrument) made to compensate landowners could differentiate between persons or classes of persons, and for compensation to certain persons to be capped. ▪ Clause 22AA(3) of Arrangements made under s 6 capped the amount payable to certain coal mining companies including Durham Holdings. The result was that they denied full – just – compensation for the coal acquired. Durham Holdings argued - ▪ common law presumption that parliaments do not intend to acquire property without just compensation, and the legislation should be interpreted in accordance with that presumption ▪ NSW Parliament does not have power to enact laws authorising the acquisition of land without just compensation. Held: ▪ presumption rebutted – legislation clearly intends to empower arrangements to make laws about compensation, including capping compensation. ▪ States have plenary power - State legislatures are empowered to limit common law rights, provided that legislation is sufficiently clear ▪ Courts cannot strike down state laws on the basis that they are bad policy, or infringe on fundamental rights and freedoms. Demonstrates that Aus Courts will presume that Parliament intends to pay just compensation when it takes away someone’s property – principle of legality: it means that when interpreting a statue, the courts will presume that Parliament does not intend to takeaway fundamental rights. These cases confirm that the phrase ‘peace, order and good government’ (and its variations), which appears in several constitutional documents, does not impose any legal limitations on the legislative powers of the Australian States. A state law cannot be challenged on the basis that is contrary to the interests of the people, unfair or unjust.
Laws with Extraterritorial Application Extraterritorial application: purport to attach legal consequences to things that are done outside the territory of the legal system that enacts them.
- The law has to be of some relevance to the state, i., prohibit conduct that might have some detrimental effect on the state, for it to be valid. Laws that Change the Constitution State Parliaments can change any law, including State Constitutions, provided that they comply with any procedural requirements that might apply. Limits on State Legislative Power Derived from the Australian Constitution Australian Constitution limits that the powers that State Parliaments can confer on State Courts. o ‘Kable doctrine’. AC limits the legislative power of the State Parliaments: they are granted exclusive power to legislate with those matters to the federal Parliament. AC limits the operation of State laws with the function of s 109. Where State and federal laws are inconsistent, federal law prevails, to the extent of the inconsistency.
4.4. Federal Legislative Power
Federal Parliament is created by the Australian constitution. The federal Parliament is given legislative power by s 1 of the Constitution – “'The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called The Parliament, or The Parliament of the Commonwealth.” Sections 51 and 52 of the Australian Constitution ss 51 and 52 of the AC impose limitations on the federal legislative power. s 51: legislative powers of the Parliament ‘[t]he Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to’ certain matters, including ‘taxation’ and ‘light-houses’ and ‘aliens’. s 52: exclusive powers of the Parliament Parliament is given ‘exclusive power to make laws with respect to’ in s 51 This not replicated in the Australian States.
- There is also legislation that requires federal Parliament to follow procedures that may make it more likely that its laws do not contravene human rights.
- For this reason it is said that the powers of the federal Parliament are ‘plenary within the terms of the grant’: Parliament can make any laws it thinks fit, as long as it complies with the limitations imposed by the AC. o Conveys another way of suggesting the powers of federal parliament are limited but very broad. o i., powers of parliament are limited – but very broad. Australian Communist Party v Commonwealth Facts: ▪ Commonwealth Government sought to ban the Australian Communist Party ▪ Passed the Communist Party Dissolution Act. ▪ It contained a preamble that asserted it was necessary for (amongst other things) the ‘defence of the Commonwealth’ – a matter within the legislative power of the Commonwealth (s 51(vi)) Held: ▪ High Court confirmed it was its job to independently scrutinise legislation, and determine whether an Act of parliament falls within a head of power (in this case the defence power) ▪ A majority concluded that it was not with the power – that there was no evident connection between banning the Communist Party and defence, apart from the legislature’s assertion - which was not enough. Per Fullagar J: ▪ ‘The validity of a law or of an administrative act done under a law cannot be made to depend on the opinion of the law-maker, or the person who is to do the act, that the law or the consequence of the act is within the constitutional power upon which the law in question itself depends for its validity. A power to make laws with respect to lighthouses does not authorize the making of a law with respect to anything which is, in the opinion of the law-maker, a lighthouse.’ ▪ ‘Parliament cannot recite itself into a field the gates of which are locked against it by superior law. ... “A Parliament of limited powers cannot arrogate a power to itself by attaching a label to a statute.”’ ▪ ‘... nothing depends on the justice or injustice of the law in question. If the language of an Act of Parliament is clear, its merits and demerits are alike beside the point. It is the law, and that is all. Such a law as the Communist Party Dissolution Act could clearly be passed by the Parliament of the United Kingdom or of any of the Australian States. It is only because the legislative power of the Commonwealth Parliament is limited by an instrument emanating from a superior authority that it arises in the case of the Commonwealth Parliament.’
- The fact that the law may have been oppressive to human rights was not the issue: The law was invalid because it did not fall within the enumerated powers of the federal Parliament. o “It should be observed at this stage that nothing depends on the justice or injustice of the law in question. If the language of an Act of Parliament is clear, its merits and demerits are alike beside the point. It is the law, and that is all.” – Fullagar J
4.4. The Legislative Power of Territory Parliaments
The power of the ACT and NT parliaments to make laws was conferred on them by s 122 of the ACC. - Territory Parliaments only have powers granted by the Cth Parliament – the Cth Parliament can thus overturn legislation enacted by Territory legislatures. Can Parliament enact extreme laws? – Is it within the power of the Commowealth or State Parliaments to pass laws like the Nazi era race laws? The role of the courts in such instances? ▪ ‘the justice and wisdom of [a law of the Commonwealth] are matters entirely for the Legislature and not for the Judiciary.’ - Dixon J in Burton v Hogan (1952) 86 CLR 169 ▪ ‘If it be conceivable that the representatives of the people of Australia as a whole would ever proceed to use their national powers to injure the people of Australia considered sectionally, it is certainly within the power of the people themselves to resent and reverse what may be done. No protection of this Court in such a case is necessary or proper.’ - Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (‘Engineers Case’) (1920) 28 CLR 129, 151-152 (Knox CJ, Isaacs, Rich and Starke JJ) Dicey believed that a democratically elected Parliament would be “self-correcting”. What does this mean? Do you agree? The answer to that riddle appears to lie in that area where law and political reality coincide. The same may be said of examples of extreme laws which would offend the fundamental values of our society which are sometimes suggested in disproof of parliamentary supremacy. It may be observed that a legislature wishing to enact a statute ordering that all blue-eyed babies be killed would hardly be perturbed by a principle of law which purported to deny it that power.’ Kable v DPP (NSW) (1996) 189 CLR 51, 74 (Dawson J))
4. Parliament’s Non-Legislative Powers
Parliaments needs to be able to: - Inquire into a wide range of matters to decide whether new legislation is required. - Hold the executive branch to account for its administration of the law. o Parliaments inquiry powers include those such as summoning witnesses, compelling witnesses to provide information and protecting confidential information during an inquiry. Parliamentary Privilege – members of Parliament are immune from prosecution and civil suits for what they say and hand forth to Parliament. - The rationale is to ensure Parliaments garners accurate information from witnesses to ensure free and full debate. Power of each house of Parliament to enforce orders –
LAW-1112-Public-Law-and-Statutory-Interpretation I
Course: Property Law (LAW 2112)
University: Monash University
- Discover more from:
