Public Law test 1: topics 1-3

Question 1

Public v Private power in terms of interactions

Answer 1

Public law regulates interactions between individuals (horizontal) whereas private law regulates interactions between individuals and government (vertical)

Question 2

What is the rule of law?

Answer 2

Antithesis of the rule of men, no person is above the law i.e government power is limited by the law

Question 3

Conceptions of the rule of law (thin v thick)

Answer 3

A thin conception is merely a list of requirements focusing on procedures/formal rather than substantive character (focuses on the process) (Dicey, Raz)

A thick conception is substantive and has a broader focus on the quality of the law itself - can only be observed as the rule of law if it aligns with fundamental basic human rights (Bingham, Allan, Fuller)

Question 4

“No man is punishable except for a distinct breach of law established in ordinary legal manner before the courts, no man is above the law, general principles of the constitution are the result of judicial decisions”

Answer 4

Dicey

Question 5

Dicey’s interpretation of the rule of law

Answer 5

Formalist and ‘thin’, founded on institutional arrangements rather than substantive features

Question 6

“In a healthy legal system there should be a relationship of reciprocity between law makers and the public”

Answer 6

Fuller

Question 7

“A law that changes everyday is worse than no law at all”

Answer 7

Fuller

Question 8

Fuller’s interpretation of the rule of law

Answer 8

Provides a thick conception of the rule of law as he attempted to create a system of legal rules which miscarried when publicization, retroactive legislation, comprehension and contradictions failed. Seems procedural but on a deeper level involves substantive justice and fairness

Question 9

Raz’s interpretation of the rule of law

Answer 9

Provides a thin conception of the rule of law defined by two aspects.

1. obeying the law
2. ability to be guided by the law

Question 10

“People should be ruled by the law and obey it, the law should be such that people will be able to guided by it…it must be such that they can find out what it is and act on it”

Answer 10

Raz

Question 11

“The rule of law is just one of the virtues which a legal system may possess and by which it is to be judged. A non-democratic legal system based on denial of human rights…will be an immeasurably worse legal system, but it will excel in one respect: its conformity to the rule of law’

Answer 11

Raz

Question 12

Bingham’s conception of the rule of law

Answer 12

Advances a thick conception of the rule of law that embrace the protection of human rights

Question 13

“A state which savagely represses or persecutes sections of its people cannot be regarded as observing the rule of law”

Answer 13

Bingham

Question 14

Allan’s conception of the rule of law

Answer 14

Advances a thick conception of the rule of law, argues that rule of law is compliance with conditions under which each person’s freedom is secured

Doesn’t see it as an aspiration or ideal but that any law not compliant with his conception is not a law

Question 15

Australian Communist Party and the Commonwealth Case Study

Answer 15

Commonwealth banned the Communist Party in fear that ideology was spreading worldwide via Cth Party Dissolution Act. High court struck it down on the basis that it was constitutionally invalid (not because of breach of human rights) - reflects a thin conception of the rule of law

Question 16

“Nothing depends on the injustice or justice of the law. If the language of an act of parliament is clear, its merits and demerits are beside the point. it is the law and that is all.”

Answer 16

Fullagar (thin conception of the rule of law)

Question 17

What is constitutionalism?

Answer 17

A political doctrine that holds that the law of the constitution is supreme law in a legal and political sense

Question 18

Section 128 of the constitution

Answer 18

sets out the ability to change the constitution

Question 18

Political vs legal constitutionalism

Answer 18

Political constitutionalism is primarily constrained by political rules rather than enforceable laws (flexible conventions/customs) - UK

Legal constitutionalism is constrained by positive law where courts primarily in control through rigid written instrument

Question 18

Characteristics of Australian consititution

Answer 18

No bill of rights like US constitution.

Requires strict separation of judicial branch and legislative branch. Slight overlap between legislative and executive branches.

Responsible government: parliament can delegate some powers to the executive branch

Question 19

Is australia legal or political conventions?

Answer 19

Australia has both political and legal convention (federalism from US and responsible government from UK)

Question 20

Direct v representative democracy

Answer 20

Direct: people vote to make their own laws e.g. State of California

Representative: people vote for a smaller group

Question 21

Intrinsic vs Instrumental justifications of democracy

Answer 21

Intrinsic: Something inherently fairer about a system in which people have a say in the way they are governed

Instrumental: Will produce more benefits for society (outcome oriented)

Question 22

Instrumental justifications of democracy

Answer 22

Responsiveness, production of relatively good laws and policies, diversity trumps ability, character based

Question 23

Tyranny of the majority

Answer 23

An inherent weakness to majority rule in which the majority of an electorate pursues exclusively its own objectives at the expense of those of the minority factions - There may be certain groups that struggle to get their view across and policies that serve them may never be enacted

Question 24

Parliamentary democracy

Answer 24

Representative and responsible government

Question 25

Three arms of government

Answer 25

Executive - develops and implements policy Parliament - passes legislation/makes laws Judiciary - adjudicates and disputes the application of laws

Question 26

Section 51 Aus constitution

Answer 26

Sets out commonwealth heads of powers -concurrent powers (shared with the states)

Question 27

Section 52 Aus constitution

Answer 27

sets out powers exclusively given to the commonwealth

Question 28

Section 109 Aus constitution

Answer 28

In the face of inconsistency, federal law trumps state law i.e residual powers of lower superiority

Question 29

Separation of powers in Aus

Answer 29

Government power should not be concentrated in one person/group/branch In Aus, strict separation of judiciary and legislative but overlap between legislative and executive

Question 30

What is responsible government?

Answer 30

executive is responsible to parliament, parliament is then responsible to electorate and leaders of the executive government are members of parliament

Question 31

Section 64 Aus constitution

Answer 31

Stipulates Ministers must be members of parliament (enforced by the courts)

Question 32

1975 Gough Whitlam Dismissal

Answer 32

Was dismissed Under s64 of the constitution which empowers GG to dismiss the prime minister (breached customary conventions) Conventions: 1. GG should act on the advice of the prime minister 2. if you can't supply money, you should resign 3. The senate shouldn't block the supply of money

Question 33

Sources of international law

Answer 33

Agreements, declarations, international customary laws

Question 34

Is international law legally binding in Australia?

Answer 34

Once Australia signs up to a treaty they are bound by that treaty but only in the realm of international law, it only becomes binding in Australia once ratified domestically