LAW 1504 Lecture Notes - Lecture 1: New South Wales Act 1823, John Bigge, Terra Nullius
23 May 2018
School
Department
Course
Professor
Constitutionalism and the Rule of Law;
Au Constitution; The Evolution of the
Province of SA; SA Parliament powers
Constitutionalism and the Rule of Law
o The Divine Right of Kings: King only answers
to god.
o Magna Carta (1215): limited King’s powers.
Extensive reiteration throughout following
centuries. No free man shall be taken,
imprisoned, disseised, outlawed, banished, or in
any way destroyed, nor will we proceed against
or prosecute him, except by the lawful judgment
of his peers and by the law of the land. To no
one will we sell, to no one will we refuse or
delay, right or justice.
The Rule of Law :
The law is King- Thomas Paine, Common Sense
(1776)
Government is under the law. Not ‘subject to the
inconstant, uncertain, unknown and arbitrary will of
another man’- John Locke, Two Treatises of
Government (1689)
Constitutional Supremacy
Marbury v Madison (1803) (Marshall CJ): Any act
of government repugnant to the constitution is void-
constitution is above all entities it creates
Subordination of the executive to the rule of law
o Entick v Carrington (1765): government cannot
do anything which does not source its authority
from the constitution
o Australian Communist Party v Commonwealth
(1951): stream can’t rise higher than its source.
o A v Hayden (1984) 156 CLR 532: ‘The
Executive power of the Commonwealth must be
exercised in accordance with the Constitution
and the laws of the Commonwealth. … every
officer of the Commonwealth [is] bound to
observe the laws of the land.”
The Australian Constitution
1. Commonwealth of Australia Constitution Act
1900 (Imp) - part of a British Act of Parliament,
passed on 5th of July 1900, given Royal assent on the
9th of July 1900, and took effect on 1 January 1901
2. Constitution found in clause 9 of the British Act,
first 8 are introductory, explanatory and
consequential provisions. 8 Chapters, 128 Sections
Creators
o Australian People (over 85% of the population
didn’t get to vote due to racial/ class/ age
discrimination) (Women- SA and WA only.
Aboriginal people- few)
o Election of delegates to the conventions in 1897
and 1898
o Referenda to approve the constitution
I) 3-4 June 1898
II) April- September 1899
III) 31 July 1900 (WA)
‘Washminster model’
British
US
Representative Government
Federalism
Responsible Government
Separation of Powers
Bicameral Parliaments
Judicial review of
legislation
Rule of Law
The senate
The Common Law
Judicial Review of
Administrative Action
Faith in Parliaments
Parliamentary Supremacy in
the States
The Crown
Mechanism
Purpose
Separation of powers
Maintenance of the rule of law,
impartial administration of justice
Responsible and
representative
government
Executive accountable to
parliament. Parliament held
accountable to voters (ss 7 and
24).
Equal representation (ss 7 and 28)
Written constitution
Clarity, places certain matters
beyond power.
Federalism
Diversity, liberty, common
understanding, geographical
unity, immigration restriction,
defence, participation of local
government.
Social and economic unity (ss 88,
51(ii), s 99).
Mechanism for
change
Flexibility (s 128)
Open government
Ensures voters are informed of all
govt conduct.
Evolution of Province and State of SA
Reception of Common Law
o 26th Jan 1788 settlement
o Terra Nullius
land belonging to no civilised person,
uninhabited. William Blackstone, Commentaries
on the Laws of England (1773)
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Constitutionalism and the rule of law: the divine right of kings: king only answers to god, magna carta (1215): limited king"s powers. No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land. To no one will we sell, to no one will we refuse or delay, right or justice. The law is king- thomas paine, common sense (1776) Not subject to the inconstant, uncertain, unknown and arbitrary will of another man"- john locke, two treatises of. Marbury v madison (1803) (marshall cj): any act of government repugnant to the constitution is void- constitution is above all entities it creates. Aboriginal people- few: election of delegates to the conventions in 1897 and 1898, referenda to approve the constitution, 3-4 june 1898. Separation of powers maintenance of the rule of law,
