Public Law:

[I just wanna party (party)]


A brief index of the articles:

Larry Alexander - Introduction:

Overview: Provides an overview of different scholars’ perceptions of constitutionalism. Crux: The main clash is between those whose opinions differ on whether we should be bound by a preemptive document, and which method of interpretation is appropriate.

Jeffrey Goldsworthy - Legislative Sovereignty and the Rule of Law:

Overview: Explores the content of the rule of law as a political ideal.

Key points:

  1.  The thin conception refers to procedural adherence.
  2. The thick conception refers to the adherence to morally good law.
  3. “The rule of law or the rule of good law.”

Crux: The content of the rule of law is still indeterminate.

Graeme Orr - ‘Referenda and Direct Democracy’:

Overview: Referenda are the purest exercise in direct democracy (electors cannot propose).

Key Points:

  1. s 128 outlines the process for altering the constitution
  2. Double majority requirement
  3. Identical franchise
  4. ‘Yes’and ‘no’ cases to be equal at 2000 words
  5. State  have no limits

Crux: The 2000 word system may be outdated in the digital age.

Cheryl Saunders - ‘The Sources and Scope of Commonwealth Power to Spend’:

Overview: Pape is the most recent case on the issue. It reinforces that the Commonwealth can still spend on essentially whatever they feel like spending on, based on the incidental spending power (s 51(xxxix)).

Key Points:

  1. Tampa: “the power to determine who may come into australia is so central...”
  2. ss 81, 83 not source of power to spend
  3. s 61 said to be the source of executive power: maintenance of s 51 powers: commerce (i), taxation (ii), external affairs (xxix), incidental to powers (xxxix) <-- the centre of the ambit dispute!

Crux: There are several ways you can claim a power to spend, the HCA rejected 81 and 83.  s 61 is where it’s at!

ACTV Case Extract:

Overview: Reasons from representative government (ss 7, 24) to freedom of political communication. Know that the proposed legislation was meant to regulate political advertising in election periods.

Key Points:

  1. s 7, 24 - directly chosen
  2. representative government
  3. requires an open channel of communication
  4. requires that information can flow freely
  5. thus, and implied right to free political communication.
  6. an implication is a concept which inheres in the instrument as part of it, an assumption stands outside the instrument

Crux: Freedom of political communication can be implied from representative government.

Peter Cane - ‘Parliaments’

Overview: Responsible government refers to the Westminster system where representatives are responsible to the legislature.

Key Points:

  1. Executive and legislative branches meld together.
  2. Executive responsible, in effect, for primary and delegated legislation
  3. Delegated legislation is not ‘soft law’
  4. Debates, motions (no confidence), questions, committee inquiries, sanctions.

Crux: Whatever you want it to be.

Malcolm Aldons - ‘Responsible, Representative and Accountable Government’:

Overview: Responsible government is at odds with representative government.

  1. responsible party government vs responsible parliamentary government - where party government means the cabinet is more responsible to the governing party than the house... although in practice this is sometimes the same.
  2. HoR = responsible party govt. Senate = responsible parliamentary government.
  3. Some house functions overlap - manifest legitimation (rubber stamping), latent legitmation (raise acceptance), accountability.
  4. Three types of accountability. Political, parliamentary and public. Some overlap in the first two.

Harry Evans - ‘Parliamentary and Extra-Parliamentary Accountability Institutions’:

The paradox of supposedly ‘apolitical’ accountability mechanisms (eg. Ombudsmen) is that they are set up by and report to the same body which they are meant to oversee (parliament, controlled by the executive). They also can not be fully apolitical, because they need political support in order to be effective- without media attention, the executive can ignore or dismantle them at will.

Alan Fenna - ‘Commonwealth Fiscal Power and Australian Federalism’:

So, there’s some VFI: The Federal government has 82% of all the money, but States do 50% of the spending. States need to get money from the Federal government, and the Federal government can attach conditions (s96 tied grants).

This is good because: it gives the Federal government a way to get around Constitutional restrictions on its legislative power, which might be a good thing in a modern society.

This is bad because: It erodes the Federal balance the founding fathers wanted, and paying someone to do things is less efficient than being able to just do them: ie, legislate directly. More specifically, tied grants enable the Federal government to effectively legislate beyond their powers in s 51. One such example can be seen in the Howard government’s flag policy whereby schools could only attain certain funding if they had an Australian flag hoisted. The states had nothing legislated with such respect, this is the federal government’s agenda in the state jurisdiction.

Graeme Orr - ‘Government Advertising’:

In the first half of the article, Graeme argues for a cap on the government’s annual spending on advertising. He also suggests that, although there’s not a ‘bright line’ between informational and self-promoting advertising, government advertising should be as objective as possible. In the second half, he provides an analysis of the Combet (WorkChoices advertising) judgments.

Changes to the Framework for Government Advertising:

Overview: They be changin’ it.

  1. Government advertising is a critical democratic function
  2. Removing the Auditor-general’s reviewing role, replaced by ICC (independent communications committee)
  3. Adopted reporting, accountability and transparency measures.

Crux: See overview.

Guidelines on Information and Advertising Campaigns by Aus. Govt. Deps and Agencies:

Key Principles:

  1. Members of the public have equal rights access to comprehensive information regarding policies
  2. Governments may legitimately use public funds to explain policies or inform the public of their rights, obligations etc. RELEVANT.
  3. Government campaigns cannot be conducted for party political purposes. OBJECTIVE.
  4. Must be lawful.

Spigelman CJ - ‘The Integrity Branch’:

  1. Rave rave rave about china. <-- SO TRUE!
  2. The rest of the article’s content has been vetoed by popular demand.

Anita Stuhmcke and Anne Tran - ‘The Commonwealth Ombudsmen’:

Overview: Ombudsman = good and not a ‘toothless tiger’. And AWESOME.

  1. Resources and expertise to efficiently and effectively investigate administration deficiencies (procedural and substantive).
  2. An argument against the Ombudsman (the idea that it is a ‘toothless tiger’) is the fact that it cannot make binding decisions. However, this is arguably a good thing.
  1. The Ombudsman is more efficient in dealing with complaints (don’t need to follow procedure since they aren’t making binding decisions).
  2. It is able to maintain better relations with the departments Ombudsmen must investigate.
  3. Furthermore, most of their recommendations are followed.
  1. Theoretically, the ombudsman is supposed to be apolitical so that it can remain unbiased, and pursue complaints and issues on their merits (and not just follow topical ones). Paradoxically, the ombudsmen require political support to be effective.
  1. Example: Murray-Darling Basic Authority. The government commissioned experts to assess the situation. Being unbiased, the Authority gave their recommendations, which didn’t have political support. The recommendations weren’t followed.

Then there is the question of how they are held accountable. And the funny thing is that they report to parliament ... which is what they’re investigating into ... They can also be accountable to themselves (internal investigations).