The Commonwealth of Australia Constitution Act 1900 (UK)
Consists of 8 Chapters and the Schedule.
I. The Parliament
consisting of the Queen, a Senate & a House of Representatives
Governor General appointed by the Queen as her representative
Before taking their seat, they must all swear and Oath or Affirmation of Allegiance.
II. The Executive Government
Executive power is vested in the Queen and can be exercised by the Governor General
The Governor General chooses the members of the Federal Executive Council, who advise him/her.
All references to the Governor General in Council refer to the Governor General acting on the advice of the Federal Executive Council.
III. The Judicature
Judicial power of the Commonwealth is vested in the Federal Supreme Court, called the High Court of AustraliaJustices are appointed by the Governor General in
Council.
IV. Finance and Trade
V. The States
VI. New States
VII. Miscellaneous
VIII. Alteration of the Constitution
The proposed law for the alteration must be passed by an absolute majority of each House of the Parliament and not less than two or more than six months must be submitted to a referendum of the voters in each State and Territory .
If, the referendum is approved by a majority of the States and a majority of the voters, the Governor-General may approve the proposed law.
The Schedule
The Oath & Affirmation of the new parliamentarian.
Protection of Rights
There is no Bill of Rights in the Australian Constitution, because the majority of the people felt that the traditional rights and freedoms of British subjects were sufficiently guaranteed by the Separation of Powers and the 2 houses of Parliament.
And as the Act itself is British law, our access was therefore provided to the Magna Carta, Habeus Corpus, Bill of Rights 1649 and etc.
However the Constitution did include the following rights –
* Right to Trial by Jury in s80 for indictable offences against Commonwealth Law.
* Right to Just Compensation in s51 (xxxi) for assets taken by the Commonwealth.
* Right to Freedom of religion in s116, wherein the Commonwealth can not make laws to do with religion.
* Right to Freedom from Discrimination against residents of another state in s117.
The High Court have also established an implied Right to Freedom of Political Communication and a limited Right to Vote in s7 & s24.
Separation of Powers
Refers to the separation of the Executive (the Ministry), the Legislature (the Parliament) and the Judiciary (the Courts), with none of the three branches of government able to exercise total power.
Legislative power means the power to make laws and is concentrated in the Parliament. Executive power means the power to implement laws and is given to the government.
Judicial power gives the High Court power to decide whether laws are legal according to the Constitution.
The essence of the doctrine of separation of powers is thus based on the idea of checks and balances.
Prime Ministers, Premiers & Political Parties
The Constitution does not mention any of these entities in any manner.
The intent of the Constitution was that each person entering the House of Representatives & the Senate would be entirely independent, answerable only to the electors.
Referendums & Plebiscites
At all times, the only manner in which the Constitution could be altered were by binding polls called referendums.
To pass a referendum the final vote had to consist of a majority of states and a majority of the voters agreement.A Yes vote in a referendum would change that section of the Constitution. This would then be presented to the Governor - General for Royal Assent. This then becomes a binding and entrenched alteration to the Constitution.
A No vote was as lawful, in that it meant that there could be no change to the relevant section.
A Plebiscite is an optional voting structure to do with decisions that do not alter the Constitution.
Because the general feeling toward the Constitution is that it is fine the way it is, only 5 Federal referendums out of 21 have received a Yes vote.
* In 1916 & 1917, the people voted No to allow govt to conscript Australians for war.
* 1n 1944, the people voted No when govt wanted to extend its wartime powers into peace times.
* In 1951 the people voted No to banning communism – because it infringed on Freedom of Choice.
* In 1967, 89% of the People voted Yes to include Aboriginal people in the Constitution.
* In 1988, the Federal govt tried to introduce a Bill of Rights which, by stealth, gave govt greater powers. 70% of the people voted No, preferring less govt control.
* In 1999, over 50% of the people voted No against a Republic.
* The people have voted No to allowing govt to further extend their powers into trade, finance, corporations, industrial matters, disputes, aviation, marketing, democratic rights, pricing, incomes and more.
* Important referendums in which the people voted No twice, were in 1974 & 1988, where the People refused to allow Local Councils to be recognized in the Constitution.
Chapter III Court
Under the Constitutional Judicial structure, a constitutional court of law is known as a Chapter III Court.
The judicial power of the Commonwealth can only be exercised by a Chapter III court.
No other body, such as a panel, tribunal, commission, etc can render and enforce a judgment.
This has been upheld by the High Court in
* NSW v Commonwealth (1915) the Wheat Case
* Harry Brandy v Human Rights & Equal Opportunities Commission 1995
* Lane v Morrison 2009
Showing posts with label Habeus Corpus. Show all posts
Showing posts with label Habeus Corpus. Show all posts
Wednesday, January 6, 2010
Monday, December 7, 2009
Writ of Habeus Corpus
Background
In 1641, the Star Chamber (Latin Camera stellata) was an English court of law sitting at the royal Palace of Westminster.
The court was set up to ensure the fair enforcement of laws against prominent people, those so powerful that ordinary courts could never convict them of their crimes.
Court sessions were held in secret, with no indictments, no right of appeal, no juries, and no witnesses.
Evidence was presented in writing.
And over time it evolved into a political weapon and became a symbol of the misuse and abuse of power by the English monarchy and courts.
King Henry VII used the power of Star Chamber to break the power of the landed gentry which had been such a cause of problems in the War of the Roses.
Abuses
As the U.S Supreme Court described it, "the Star Chamber has, for centuries, symbolized disregard of basic individual rights. The Star Chamber not merely allowed, but required, defendants to have counsel. The defendant's answer to an indictment was not accepted unless it was signed by counsel. When counsel refused to sign the answer, for whatever reason, the defendant was considered to have confessed." Faretta v California, 422 U.S. 806, 821-22 (1975).
Too, the historical abuses of the Star Chamber are considered a primary motivating force behind the protections against compelled self-incrimination embodied in theFifth Amendment to the United States Constitution.
The meaning of "compelled testimony" under the Fifth Amendment—i.e., the conditions under which a defendant is allowed to "take the Fifth"—is thus often interpreted via reference to the inquisitorial methods of the Star Chamber.
Habeus Corpus
The foundations for Habeas Corpus were established by the Magna Carta of 1215. William Blackstone cites the first recorded usage of habeas corpus ad subjiciendum in 1305, during the reign of King Edward I.
However, other writs were issued with the same effect as early as the reign of Henry II in the 12th century. Blackstone explained the basis of the writ, saying:
"The King is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted."
Therefore, in 1641, theLong Parliament led byJohn Pym and inflamed by the severe treatment of John Lilburne, as well as that of other religious dissenters such as William Prynne, Alexander Leighton, John Bastwick & Henry Burton, abolished the Star Chamber with an Act of Parliament, the Habeus Corpus Act 1640.
Then, as now, the writ of habeas corpus was issued by a superior court in the name of the Sovereign, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the Royal courts of law.
A habeas corpus petition could be made by the prisoner himself or by a third party on his behalf and, as a result of the Habeas Corpus Acts, could be made regardless of whether the court was in session, by presenting the petition to a judge.
Since the 18th century the writ has also been used in cases of unlawful detention by private individuals, most famously in Somersett's Case (1771), where the black slave Somersett was ordered to be freed, the famous words being quoted as:
"The air of England has long been too pure for a slave, and every man is free who breathes it."
A Writ of Habeus Corpus
Habeus Corpus means "You have the body."
In common usage, and whenever these words are used alone, they are understood to mean ""produce the body."
Therefore, when someone is arrested, this writ would be directed at the "jailor", commanding him to produce the body of the person being detained, with the day and cause of his capture and detention, to submit to and receive whatsoever the judge or court awarding the writ shall consider and determine as a judgment in the matter.
This then prevents a person from being held in illegal captivity, with no trial.
The writ of habeas corpus as a procedural remedy is part of Australia's English law inheritance.
In 2005, the Australian parliament passed the Australian Ant-Terrorism Act 2005. Some legal experts questioned the constitutionality of the act, due in part to limitations it placed on habeas corpus.
In 1641, the Star Chamber (Latin Camera stellata) was an English court of law sitting at the royal Palace of Westminster.
The court was set up to ensure the fair enforcement of laws against prominent people, those so powerful that ordinary courts could never convict them of their crimes.
Court sessions were held in secret, with no indictments, no right of appeal, no juries, and no witnesses.
Evidence was presented in writing.
And over time it evolved into a political weapon and became a symbol of the misuse and abuse of power by the English monarchy and courts.
King Henry VII used the power of Star Chamber to break the power of the landed gentry which had been such a cause of problems in the War of the Roses.
Abuses
As the U.S Supreme Court described it, "the Star Chamber has, for centuries, symbolized disregard of basic individual rights. The Star Chamber not merely allowed, but required, defendants to have counsel. The defendant's answer to an indictment was not accepted unless it was signed by counsel. When counsel refused to sign the answer, for whatever reason, the defendant was considered to have confessed." Faretta v California, 422 U.S. 806, 821-22 (1975).
Too, the historical abuses of the Star Chamber are considered a primary motivating force behind the protections against compelled self-incrimination embodied in theFifth Amendment to the United States Constitution.
The meaning of "compelled testimony" under the Fifth Amendment—i.e., the conditions under which a defendant is allowed to "take the Fifth"—is thus often interpreted via reference to the inquisitorial methods of the Star Chamber.
Habeus Corpus
The foundations for Habeas Corpus were established by the Magna Carta of 1215. William Blackstone cites the first recorded usage of habeas corpus ad subjiciendum in 1305, during the reign of King Edward I.
However, other writs were issued with the same effect as early as the reign of Henry II in the 12th century. Blackstone explained the basis of the writ, saying:
"The King is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted."
Therefore, in 1641, theLong Parliament led byJohn Pym and inflamed by the severe treatment of John Lilburne, as well as that of other religious dissenters such as William Prynne, Alexander Leighton, John Bastwick & Henry Burton, abolished the Star Chamber with an Act of Parliament, the Habeus Corpus Act 1640.
Then, as now, the writ of habeas corpus was issued by a superior court in the name of the Sovereign, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the Royal courts of law.
A habeas corpus petition could be made by the prisoner himself or by a third party on his behalf and, as a result of the Habeas Corpus Acts, could be made regardless of whether the court was in session, by presenting the petition to a judge.
Since the 18th century the writ has also been used in cases of unlawful detention by private individuals, most famously in Somersett's Case (1771), where the black slave Somersett was ordered to be freed, the famous words being quoted as:
"The air of England has long been too pure for a slave, and every man is free who breathes it."
A Writ of Habeus Corpus
Habeus Corpus means "You have the body."
In common usage, and whenever these words are used alone, they are understood to mean ""produce the body."
Therefore, when someone is arrested, this writ would be directed at the "jailor", commanding him to produce the body of the person being detained, with the day and cause of his capture and detention, to submit to and receive whatsoever the judge or court awarding the writ shall consider and determine as a judgment in the matter.
This then prevents a person from being held in illegal captivity, with no trial.
- Habeas corpus ad deliberandum et recipiendum, a writ for bringing an accused from a different county into a court in the place where a crime had been committed for purposes of trial, or more literally to return holding the body for purposes of “deliberation and receipt” of a decision;
- Habeas corpus ad faciendum et recipiendum, also called habeas corpus cum causa, a writ of a superior court to a custodian to return with the body being held by the order of a lower court "with reasons", for the purpose of “receiving” the decision of the superior court and of “doing” what it ordered;
- Habeas corpus ad prosequendum, a writ ordering return with a prisoner for the purpose of “prosecuting” him before the court;
- Habeas corpus ad respondendum, a writ ordering return to allow the prisoner to “answer” to new proceedings before the court;
- Habeas corpus ad satisfaciendum, a writ ordering return with the body of a prisoner for “satisfaction” or execution of a judgment of the issuing court; and
- Habeas corpus ad testificandum, a writ ordering return with the body of a prisoner for the purposes of “testifying”.
The writ of habeas corpus as a procedural remedy is part of Australia's English law inheritance.
In 2005, the Australian parliament passed the Australian Ant-Terrorism Act 2005. Some legal experts questioned the constitutionality of the act, due in part to limitations it placed on habeas corpus.
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