Friday, October 28, 2005

Some key concepts

Australia, unlike the United States or the United Kingdom does not have a Bill of Rights. Our Constitution has few express guarantees of civil rights. This means that, aside from some few guarantees that the High Court has recognized as implied by the structure of the Australian Constitution, individual rights are in the hands of the Parliament.

Legislative power of the Commonwealth: The Constitution provides for a federal system of government that divides power between the Commonwealth and the States. It does this by specifying certain areas (or “heads”) of power in relation to which the Commonwealth may pass legislation, such as defence, foreign affairs or corporations. The States have exclusive legislative power except insofar as the Commonwealth exercises its powers under the heads listed in the Constitution. There is no Commonwealth head of power with respect to terrorism or crime. This is why the Commonwealth needs the support of the States if it is to pass the Anti-Terrorism Bill 2005. The Constitution provides a mechanism whereby the States can refer any matter to the Commonwealth that would otherwise not come within the scope of Commonwealth legislative power.

Separation of powers and the rule of law: The legislative power of the Commonwealth is further limited by the principle of the separation of powers. In essence this principle means that one body (the legislature) makes the laws, another (the executive or the administration – “the government”) executes them, and a third (the judiciary) judges their application in particular cases. According to the theory each branch constitutes a check on the others, to ensure that power is not abused.
The separation of judicial and executive power is a key one and one which limits the kinds of laws that the Parliament can make. The executive (the government), according to the principle of the rule of law, is not above the law, but must adhere to it. Courts play in important role in ensuring that members of the executive (so Ministers, bureaucrats, even lower-level employees of the state like police officers, and teachers) do not exceed their powers (see below). They are also, in principle at least, the only mechanism for testing the legality of detention and arrest (the principle of so-called habeas corpus). Under the Constitution the “adjudgment and punishment of criminal guilt” are “essentially and exclusively judicial in character.” It may be that some of the legislation we are considering could face challenges in the High Court to its constitutional validity on this basis. For example, some of the laws giving a Minister the power to list certain organizations (and by implication making their members guilty of an offence) might be held to usurp the function of the courts in adjudging criminal guilt.

Judicial review of executive action: Australia has a legislative regime (contained in the Administrative Decisions (Judicial Review) Act 1975) for testing the legality of executive decisions such as those of a Minister or a public servant in a court. This is not what is known as merits review, i.e. you cannot appeal against a bad decision simply because it was a bad decision. Only decisions that were procedurally flawed can be successfully challenged (often the court will return the case to the original decision-maker with a direction to make the decision again). The Anti-Terrorism Bill would exempt some of the decisions made by the Attorney-General under the Criminal Code from even this weak kind of judicial review. Decisions made under the Australian Security Intelligence Organisation Act 1979 are already exempted.

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