Constitutional law [4th edition.] 9780409339185, 0409339180

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LexisNexis Questions & Answers

Constitutional Law 4TH EDITION• lmt iaz Omar Assists students to consolidate their knowledge LexisNexis Questions and Answers - Constitutional Law provides an understanding of constitutional law and gives a clear and systematic approach to analysing and answering problem and exam questions.

Contents

Each chapter commences with a summary of the relevant law and key issues. All questions are followed by a suggested answer plan, a sample answer and comments on how the answer might be assessed by an examiner. The author also offers advice on the common errors to avoid when answering each question .

• Com i onwealth Parliament Taxation and Grants Powers • Duties of Excise

• Introduction to the Commonwealth Constitution • Constitutional Concepts • The High Court and Judicial Review • Commonwealth Executive

A feature of this book is a separate chapter of hypothetical fact situations that incorporate multiple constitutional issues in a single problem question.

• Trade and Commerce Power • Freedom of Trade and Commerce • Corporations Power • External Affairs Power • Defence Power • Inconsistency of Laws • Intergovernmental Immunities • Individual Rights and the Constitution • Implied Rights • Revision Problems

Related LexisNexis Titles • Clark, Introduction to Australian Public Law, 4th ed, 2013 • Harvey, Longo, Ligertwood, Babovich & Parker, LexisNexis Study Guide - Constitutional Law, 2nd ed, 2015 ISBN 978-0-409-33918-5 • Keyzer, Principles of Australian Constitutional Law, 4th ed, 2013 [email protected] www.lexisnexis.com.au

• LexisNexis· Butterworth s

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National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN: Series: Notes: Subjects: Dewey Number:

Omar, lmtiaz. Constitutional Law. 4th edition. 9780409339185 (pbk). 9780409339192 (ebk). LexisNexis Questions and Answers. Includes index. Constitutional Law -Australia. 342.9402.

© 2015 Reed International Books Australia Pty Limited trading as LexisNexis.

Second edition, 2003 reprinted 2006 and 2009; Third edition, 2010. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Sabon and Optima LT Std. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

For Ifty and Sandrina

Contents Preface

tX

Table of Cases

Xt

Table of Statutes

xix

Chapter 1

Introduction to the Commonwealth Constitution

Chapter 2

Constitutional Concepts

25

Chapter 3

The High Court and Separation of Judicial Power

43

Chapter 4

Commonwealth Executive

73

Chapter 5

Commonwealth Parliament

99

Chapter 6

Taxation and Grants Powers

127

Chapter 7

Duties of Excise

163

Chapter 8

Trade and Commerce Power

189

Chapter 9

Freedom of Interstate Trade

209

Chapter 10

Corporations Power

233

Chapter 11

External Affairs Power

257

Chapter 12

Defence Power

277

Chapter 13

Inconsistency of Laws

295

Chapter 14

Intergovernmental Immunities

317

Chapter 15

Individual Rights and the Commonwealth

1

Constitution

337

Chapter 16

Implied Rights and Freedoms

359

Chapter 17

Revision Problems

379

Index

413

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Preface I am glad that the book has been useful and popular with students of Australian constitutional law, and I hope this current, 4th edition, continues this trend. The book was originally conceived to be an introductory text to provide students with a basic knowledge of Australian constitutional law. It was designed to assist students to study the major topics in this area of law by adopting a style that would enable them to comprehend the contents of these topics and acquire the skills of applying the legal rules and principles in hypothetical fact situations. The second, third and current editions of this book have retained the same approach. Like the previous editions, this new edition deals with the issues, questions and judicial decisions in the different areas of constitutional law in a question and answer format. There are several advantages of this book for students of constitutional law. The book is designed to equip them with the fundamentals in this area of law, including legal writing skills and preparation for exams. Separate chapters in the book deal with the process of constitutionmaking for the Commonwealth of Australia, important constitutional concepts, the executive, legislature and judicial branches of government, and the different heads of legislative power of the Commonwealth Parliament. Following this, issues of federalism are considered. The last part of the book is directed to studying express individual rights in the Commonwealth Constitution, and implied rights and freedoms. Conceptual themes related to various areas of the study of constitutional law are presented in leading essay type questions, and assumed fact situations are presented in problem-type questions where students are expected to locate relevant constitutional law issues and apply their skills in reaching expected conclusions. In addition to sample answers, guidelines for answering the questions and problems are incorporated in an answer plan, and feedback is provided in the form of examiner's comments. Guidelines alerting students to possible errors in answering the questions are also included. This new edition of the book incorporates new materials as well as updating previous materials with the most recent judicial decisions and commentary. Compared to the previous edition, there are some changes

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LNQA Constitutional Law

in the structure and contents of the materials for study. There is a new chapter on the freedom of interstate trade and another on implied rights and freedoms. Recent decisions of the High Court in all relevant topics are incorporated in this current edition. Like the third edition, this latest edition of the book includes a separate chapter on hypothetical fact situations incorporating multiple constitutional issues in a single problem question.

In writing this new edition of the book, I have had the pleasure of working with Serena Cubie, the commissioning editor. Her advice on submitting separate chapters for proofs within an agreed time schedule assisted in the timely preparation of the manuscript. Rochelle Ransom, content development editor, was very helpful during the progress of preparing the draft chapters; she was very patient and understanding when unforeseen circumstances prevented timely delivery of the various chapters of the manuscript. I am thankful to her on this count. Thanks also to Catherine Britton for her helpful suggestions in the editing process. My thanks to Dalia for her support and encouragement during the preparation process of this new edition of the book. Imtiaz Omar Sydney May 2015

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Table of Cases References are to paragraphs A A-G (WA) v Australian National Airlines Commission (1976) 138 CLR 492 .... 8-1, 8-7 Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169 .... 10-1, 10-13, 10-15-10-19, 10-24 Adelaide Company of Jehovah's Witnesses Inc v Commonwealth (1943) 67 CLR 116 .... 15-1 AG (NSW) v Brewery Employees' Union of NSW (1908) 6 CLR 469 .... 14-1 AG (NSW) v Collector of Customs (1908) 5 CLR 818 .... 14-1 Air Caledonie International v Commonwealth (1988) 165 CLR 462 .... 6-1, 6-3, 6-6, 6-18, 11-21, 17-12 Airlines of NSW Pty Ltd v NSW (No 2) (1965) 113 CLR 54 (Second Airlines case) .... 8-1, 8-5, 17-17 Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133 .... 15-1, 15-15 Al-Kateb v Godwin (2004) 219 CLR 562 .... 3-1, 3-13-3-20 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 (Engineers' case) .... 7-3, 14-1-14-3, 14-6-14-7, 14-9, 14-15-14-19, 17-22, 17-26-17-28 Andrews v Howell (1941) 65 CLR 255 .... 12-10

Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 (Wardley's case) .... 13-1, 13-2 APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 332 .... 13-1, 13-4, 13-17, 17-24 Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975) 135 CLR 1 .... 5-1, 5-12, 5-15-5-16,5-18,5-21 Attorney-General (NT) v Chaffey (2007) 231 CLR 651 .... 15-1, 15-15 Attorney-General (Vic); Ex rel Black v Commonwealth (1981) 146 CLR 559 (DOGS case) .... 6-1, 6-33, 6-37,6-40, 15-1 Attorney-General (Victoria) v Commonwealth (1935) 52 CLR 533 .... 12-12 Austin v Commonwealth (2003) 215 CLR 185 .... 14-1, 14-5, 14-8, 14-17, 17-26 Australian Boot Trade Employees Federation v Whybrow & Co (1910) 10 CLR 266 .... 13-1, 13-3 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 .... 5-14, 5-19, 5-21, 15-17, 16-1, 16-3, 16-4, 16-9, 16-15 Australian Communist Party v Commonwealth (1951) 83 CLR 1 (Communist Party case) .... 1-22, 2-1, 2-9, 2-10, 12-1, 12.5-12.6, 12-12, 12-15-12.21 Australian Mutual Provident Society v Goulden (1986) 160 CLR 330 .... 13-1, 13-4, 13-16, 17-24

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Table of Cases

LNQA Constitutional Law Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29 (ANA case) .... 8-1, 8-6, 8-9, 8-10,8-15-8-16 Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR480 .... 6-1, 6-3, 6-6,6-18, 11-21, 17-12 B

Bank of New South Wales v Commonwealth (1948) 76 CLR 1 (Bank Nationalisation case) .... 9-4, 9-10, 15-1, 15-13 Barley Marketing Board (NSW) v Norman (1990) 17i CLR 182 .... 9-1, 9-14-9-15 Barton v Commonwealth (1974) 131 CLR 477 .... 4-1, 4-9, 4-14 Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411 .... 9-1, 9-6, 9-12, 9-15,9-17,9-23,9-26, 17-1, 17-18 Betfair Pty Ltd v Racing New South Wales (2010) 189 CLR 356 .... 9-19 Betfair Pty Ltd v Racing New South Wales (2012) HCA 12 .... 9-17, 9-19,9-21,9-23,9-25, 17-18 Betfair Pty Ltd v Western Australia (2008) 234 CLR 418 .... 9-1, 9-17-9-21,9-23,9-26, 17-18 Bistricic v Rokov (1976) 135 CLR 552 .... 1-13 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 .... 3-1, 3-8-3-9 Brown v The Queen (1986) 160 CLR 171 .... 15-1

c Cameron v Deputy Federal Commissioner of Taxation (1923) 32 CLR 68 .... 6-20 Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 .... 9-1, 9-6, 9-13, 9-17, 9-23, 9-27, 17-18 Chaplin v Commissioner of Taxes (1911) 12 CLR 375 .... 14-1 Cheatle v The Queen (1993) 177 CLR 541 .... 15-1

China Ocean Shipping Co v South Australia (1979) 145 CLR 172 .... 1-13 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 .... 3-1, 3-8, 3-15, 3-32 Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) (1983) 154 CLR 120 .... 15-1 Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 (Cowburn's case) .... 13-1, 13-3, 13-17, 17-24 Cole v Whitfield (1988) 165 CLR 360 .... 8-15, 9-1, 9-3, 9-5-9-9, 9-11, 9-15-9-17,9-19,9-23,9-25, 17-15, 17-18, 17-20 Coleman v Power (2004) 220 CLR 1 .... 16-1, 16-15, 16-18 Commissioner of Taxation v Clyne (1958) 100 CLR 246 .... 6-20 Commonwealth and COR v South Australia (1926) 38 CLR 408 (Petrol case) .... 7-1, 7-4 Commonwealth v Bank of New South Wales (1949) 79 CLR 497 .... 9-1, 9-4,9-10,9-23,9-24 Commonwealth v Cigamatic Pty Ltd (1962) 108 CLR 372 (Cigamatic case) .... 14-1, 14-8, 14-10, 14-13 Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31CLR421 .... 4-1, 4-10 Commonwealth v Mewett (1997) 191 CLR 471 .... 15-1, 15-16 Commonwealth v NSW (1906) 3 CLR 807 .... 14-1 Commonwealth v Queensland (1975) 134 CLR 298 (Queen of Queensland case) .... 3-25 Commonwealth v Tasmania (1983) 158 CLR 1 (Tasmanian Dam case) .... 10-1, 10-12, 11-1, 11-4, 11-8, 11-11, 11-15, 11-18, 17-1, 17-14-17-15 Commonwealth v Western Australia (1999) 196 CLR 392 (Mining Act case) .... 13-1, 13-4, 13-17, 17-24 Cormack v Cope (1974) 131 CLR 432 .... 5-1, 5-32

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Croome v Tasmania (1997) 191 CLR 119 .... 3-25 Crowe v Commonwealth (1935) 54 CLR 69 .... 8-1, 8-3, 8-20, 8-22 D

D'Emden v Pedder (1904) 1 CLR 91 .... 14-1 Davies and Jones v Western Australia (1904) 2 CLR 29 .... 15-1 Davis v Commonwealth (1988) 166 CLR 79 .... 4-1, 4-9, 4-11, 4-12, 4-14,4-16-4-17,4-23, 17-5 Dawson v Commonwealth (1946) 73 CLR 157 .... 12-14 Deakin v Webb (1904) 1 CLR 585 .... 14-1 Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529 .... 7-1, 7-7-7-9, 7-11, 7-13-7-16, 7-24, 17-917-10 Deputy Federal Commissioner of Taxation v Truhold Benefit Pty Ltd (1985) 158 CLR 678 .... 6-3 Deputy Federal Commissioner of Taxation v WR Moran Pty Ltd (1939) 61 CLR 735 .... 6-1, 6-31, 6-39 Dickenson's Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 .... 7-1, 7-7, 7-9-7-11, 7-16, 7-24, 17-9 E

Elliott v Commonwealth (1936) 54 CLR 657 .... 6-22, 11-21 Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311 .... 7-1, 7-9 Ex parte McLean (1930) 43 CLR 472 .... 8-21, 13-1-13-2, 13-17, 17-24

F Fairfax v Commissioner of Taxation (1965) 114 CLR 1 .... 6-1, 6-11, 6-14 Farey v Burvett (1916) 21 CLR 433 .... 4-10, 12-11 Federal Amalgamated Government Railway and Tramway Service Association v NSW Railway Traffic Employees Association (1906) 4 CLR 488 .... 14-1

Federated Saw Mill Employees etc Employees' Association of Australasia v James Moore & Sons Pty Ltd (1909) 8 CLR 465 (Woodworkers case) .... 13-1, 13-3 Fencott v Muller (1983) 152 CLR 570 .... 10-1, 10-10, 10-24 Free v Kelly (1996) 185 CLR 296 .... 5-1, 5-25, 5-27 G

Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 .... 15-1, 15-16 Gory! v Greyhound Australia Pty Ltd (1994) 179 CLR 463 .... 15-1 Grollo v Palmer (1995) 184 CLR 348 .... 3-1, 3-11 H

Ha v New South Wales (1997) 189 CLR 465 .... 7-1-7-2, 7-5, 7-7-7-8, 7-12, 7-14-7-15, 7-17-7-21, 7-24, 17-9, 17-13 Harper v Minister for Sea Fisheries (1989) 168 CLR 314 .... 7-22 Harper v Victoria (1996) 114 CLR 361 .... 6-3 Harris v Caladine (1991) 172 CLR 84 .... 3-1, 3-11 HC Sleigh Ltd v South Australia (1977) 136 CLR 475 .... 7-1, 7-9 Health Insurance Commission v Peverill (1994) 179 CLR 226 .... 15-1, 15-15, 15-16 Hematite Petroleum Pty Ltd v Victoria (1983) 151CLR599 .... 17-9 Henry v Boehm (1973) 128 CLR 482 .... 15-1 Hilton v Wells (1985) 157 CLR 57 .... 3-1, 3-11 Horta v Commonwealth (1994) 181 CLR 183 .... 11-1 Hoskins v Commonwealth (2011) 244 CLR 22 .... 3-1, 3-11 Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 .... 3-1, 3-8, 10-1-10-4, 10-6, 10-8, 14-1

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Table of Cases

LNQA Constitutional Law ICM Agriculture v The Commonwealth (2009) 240 CLR 140 .... 6-1 ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51 .... 6-32, 6-38 Illawarra District County Council v Wickham (1959) 101 CLR 467 .... 12-14 In Re Webster (1975) 132 CLR 270 .... 5-26

J James v Commonwealth (1936) 55 CLR 1 .... 9-4 James v Commonwealth [1936] AC 578 .... 1-22 James v Cowan (1930) 43 CLR 386 .... 9-4 JT International SA v Commonwealth [2012] HCA 43 .... 15-1, 15-14 K

Kahle v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 .... 3-15 Katsuno v The Queen (1999) 199 CLR 40 .... 15-1 Kingswell v The Queen (1985) 159 CLR 264 .... 15-1 Kirmani v Captain Cook Cruises Pty Ltd (No 1) (1985) 159 CLR 351 .... 1-13 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 .... 11-1, 11-4, 11-11, 11-18-11.19, 17-14-17-16 Kruger v Commonwealth (1997) 190 CLR 1 (Stolen Generations case) .... 3-15, 15-1 Krygger v Williams (1912) 15 CLR 366 .... 15-1 L

Lane v Morrison (2009) 239 CLR 230 .... 3-1 Lane v Morrison [2009] HCA 29 .... 3-11 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 .... 16-1, 16-6, 16-15, 16-20

Langer v Commonwealth (1996) 186 CLR 302 .... 16-1, 16-9, 16-12 Levy v Victoria (1997) 189 CLR 579 .... 16-1, 16-15-16-16 Lloyd v Wallach (1915) 20 CLR 299 .... 12-11 Luton v Lessels (2002) 210 CLR 333 .... 3-11

Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 .... 8-1, 8-3, 11-21, 17-17, 17-20 Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 .... 4-19 Mutual Pools & Staff Pty Ltd v Federal Commissioner of Taxation (1992) 173 CLR 450 .... 6-1, 6-7, 17-12

M

Mabo v Queensland (No 2) (1992) 175 CLR 1 .... 1-3 MacCormick v FCT (1984) 158 CLR 622 .... 6-1, 6-3, 7-22 Marbury v Madison 5 US 137 (1803) .... 2-1, 2-6, 2-9-2-11, 2-14 Marcus Clarke & Co Ltd v Commonwealth (1952) 87 CLR 177 .... 12-12 Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263 .... 6-1, 6-3, 7-1, 7-4, 7-22 McGinty v Western Australia (1996) 186 CLR 140 .... 5-1, 5-12, 5-15-5-16,5-18,5-20-5-21, 16-1, 16-9-16-10 Melbourne Corporation v Commonwealth (1947) 74 CLR 31 (State Banking case) .... 6-27, 6-29, 14-1, 14-5, 14-17, 17-26 Mellifont v Attorney-General (Queensland) (1991) 173 CL 289 .... 3-25 Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Association (No 3) (1920) 28 CLR 495 .... 2-1, 2-16 Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji (2004) 219 CLR 664 .... 3-19 Minister of State for the Army v Dalziel (1944) 68 CLR 261 .... 15-1, 15-13 Momcilovic v The Queen [2011] HCA 34 .... 13-1, 13-4 Monis v The Queen [2013] HCA 4 .... 16-1, 16-15, 16-18 Mulholland v Australian Electoral Commission (2004) 220 CLR 181 .... 16-1, 16-9, 16-12

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N Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 .... 5-19, 5-21, 16-1, 16-3, 16-9, 16-15 New South Wales v Commonwealth (1915) 20 CLR 54 (Wheat case) .... 3-9, 3-30 New South Wales v Commonwealth (1975) 135 CLR 337 (Seas and Submerged Lands case) .... 2-1, 2-14,2-18, 11-1, 11-3 New South Wales v Commonwealth (1983) 151 CLR 302 (Hospital Benefits case) .... 13-1, 13-4, 13-17, 17-24 New South Wales v Commonwealth (1990) 169 CLR 482 (Incorporation case) .... 10-25 New South Wales v Commonwealth (2006) 229 CLR 1 (Work Choices case) .... 10-1, 10-13, 10-15, 10-18-10-19 Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 .... 15-1, 15-17 Nicholas v Commonwealth (2011) 244 CLR 66 .... 3-1, 3-11 Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181CLR134 .... 15-1, 15-15 Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555 .... 6-1, 6-3, 6-11,6-14,6-15, 11-21 0

O'Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 .... 8-1, 8-3, 8-18,8-21, 11-21, 17-1, 17-17, 17-20

Osborne v Commonwealth (1911) 12 CLR 321 .... 6-1, 6-11, 6-13 p

Pape v Commissioner of Taxation [2009] HCA 23 .... 4-1, 4-9, 4-11-4-15,4-18,4-20-4-25, 17-5 Parton v Milk Board (Vic) (1949) 80 CLR 229 .... 6-1, 6-3, 7-1-7-2, 7-5, 7-8, 7-10, 7-12, 7-16, 7-22-7-23 Pearce v Florenca (1976) 135 CLR 507 .... 2-1, 2-19 Permanent Trustee Australia Ltd v Commissioner for State Revenue (Vic) (2004) 220 CLR 388 (Mirror Taxes case) .... 6-1, 6-6, 6-7, 6-19, 17-12, 17-13 Peterswald v Bartley (1904) 1 CLR 497 .... 7-1, 7-3, 7-8, 7-15, 14-1 Philip Morris v Commissioner of Business Franchises (Vic) (1989) 167 CLR 399 .... 7-1, 7-7, 7-9, 7-11, 7-16, 7-24, 17-9 Pirrie v Mcfarlane (1925) 36 CLR 170 .... 14-9 PJ Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382 .... 6-1, 6-32, 6-38 Polyukhovich v Commonwealth (1991) 172 CLR 501 .... 11-1 Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340 .... 2-20 Pye v Renshaw (1951) 84 CLR 58 .... 6-1, 6-32, 6-38

Q Queensland v Commonwealth (1989) 167 CLR 232 (Tropical Rainforests case) .... 11-1, 11-4, 11-8, 11-18 Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 .... 14-1, 14-5, 14-17, 17-26 R R v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd (1977) 136 CLR 235 .... 10-24

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LNQA Constitutional Law R v Barger (1908) 6 CLR 41 .... 6-1, 6-11, 6-14, 14-1 R v Burgess; Ex parte Henry (1936) 55 CLR 608 .... 1-22, 11-1, 11-4, 11-6, 11-13, 11-18, 11-20-1121 R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 .... 13-1, 13-4 R v Federal Court of Australia; Ex parte Western Australian National Football League (1979) 143 CLR 190 (Adamson's case) .... 10-1, 10-10, 10-23, 17-9, 17-11, 17-13, 17-23 R v Foster; Ex parte Rural Bank of New South Wales (1949) 79 CLR 43 .... 12-14 R v Hughes (2000) 202 CLR 535 .... 11-1 R v Kirby: Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 (Boilermakers case) .... 3-1, 3-7,3-8,3-10 R v Pearson; Ex parte Sipka (1983) 152 CLR 254 .... 5-1, 5-9-5-11, 5-14 R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1 .... 3-1, 3-11 R v Sharkey (1949) 79 CLR 121 .... 11-1 R v Sutton (1908) 5 CLR 789 .... 14-1 R v Trade Practices Tribunal; Ex parte St George County Council (1974) 130 CLR 533 .... 10-1, 10-10, 10-23, 17-11, 17-23 R v University of Sydney; Ex parte Drummond (1943) 67 CLR 95 .... 12-11 Re Australian Education Union and Australian Nursing Federation; Ex parte Victoria (1995) 184 CLR 188 (AEU case) .... 14-1, 14-5, 17-26 Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 .... 10-11, 10-15, 10-17, 10-19 Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270 .... 15-1, 15-15

Re Judiciary and Navigation Acts (1921) 29 CLR 257 (Advisory Opinions case) .... 3-20, 3-24 Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 .... 3-25 Re Residential Tenancies Tribunal of New South Wales; Ex parte Defence Housing Authority (1997) 190 CLR 410 .... 14-8, 14-9, 14-11-14-14 Re Tracy; Ex Parte Ryan (1989) 166 CLR 518 .... 3-1, 3-11 Re Webster (1975) 132 CLR 270 .... 5-1 Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 .... 3-19 Real Estate Institute of New South Wales v Blair (1946) 73 CLR 213 .... 12-14 Redfern v Dunlop Rubber Australia Ltd (1964) 110 CLR 194 .... 8-1, 8-4, 8-18 Richardson v Forestry Commission (1988) 164 CLR 261 .... 11-1, 11-4, 11-8, 11-18 Roach v Electoral Commissioner (2007) 233 CLR 162 .... 5-9-5-12, 5-14, 16-1, 16-9, 16-11 Roberts v Bass (2002) 212 CLR 1 .... 16-1, 16-9, 16-12 Rowe v Electoral Commissioner (2010) 241CLR1 .... 16-1 Rowe v Electoral Commissioner [2010] HCA 46 .... 5-1, 5-9-5-10, 5-13, 5-14, 16-9, 16-11 Roy Morgan Research Pty Ltd v Commissioner of Taxation (2011) 244 CLR 97 .... 6-1, 6-3

s Silk Brothers Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1 .... 12-11 Smith v ANL Ltd (2000) 204 CLR 493 .... 15-1, 15-16 South Australia v Commonwealth (1942) 65 CLR 373 (First Uniform Tax case) .... 6-1, 6-24, 6-25, 6-31, 6-39, 12-11

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Table of Cases Sportsbet Pty Ltd v New South Wales [2012] HCA 13 .... 9-1, 9-17, 9-20,9-21,9-23,9-25,9-28, 17-18 State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329 (Second Fringe Benefits Tax case) .... 6-1, 6-7, 6-19, 17-12 State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282 .... 10-1, 10-10, 10-11, 10-23, 17-11, 17-13, 17-23 Stenhouse v Coleman (1944) 69 CLR 457 .... 12-1, 12-4, 12-6, 12-10 Stephens v Western Australian Newspapers Ltd (1994) 182 CLR 211 .... 16-1, 16-5 Street v Queensland Bar Association (1989) 168 CLR 461 .... 15-1 Strickland v Roda Concrete Pipes Ltd (1971) 124 CLR 468 (Concrete Pipes case) .... 10-1-10-5, 10-9, 10-15, 10-19, 10-22, 17-23, 17-28 Sue v Hill (1999) 199 CLR 462 .... 5-1, 5-24,5-27 Sweedman v Transport Accident Commission (2006) 226 CLR 362 .... 15-1 Swift Australian Co (Pty) Ltd v BoydParkinson (1962) 108 CLR 189 .... 8-4, 8-19, 8-21 Sykes v Cleary (1992) 176 CLR 77 .... 5-1, 5-24, 5-25, 5-27, 5-28 T

Telstra Corporation Ltd v Worthing (1997) 197 CLR 61 .... 13-1, 13-4, 13-16, 17-24 Teori Tau v Commonwealth (1969) 119 CLR 564 .... 15-1, 15-17 Theophanous v Commonwealth of Australia (2006) 225 CLR 101 .... 15-1, 15-15 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 .... 16-1, 16-5 Thomas v Mowbray (2007) 233 CLR 307 .... 12-1, 12.4, 12-5, 12-13

u Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 .... 2-1, 2-19 University of Wollongong v Metwally (1984) 158 CLR 447 (Metwally's case) .... 13-1, 13-4, 13-6-13-8, 13-10, 13-11, 13-13, 13-18, 17-25, 17-28

v Victoria v Commonwealth (1926) 38 CLR 399 (Federal Roads case) .... 6-1, 6-24, 6-31, 6-39 Victoria v Commonwealth (1957) 99 CLR 575 (Second Uniform Tax case) .... 6-1, 6-24, 6-26, 6-27, 6-31, 6-34,6-39 Victoria v Commonwealth (1971) 122 CLR 353 (Payroll Tax case) .... 6-1, 6-3, 7-22, 14-6, 14-17 Victoria v Commonwealth (1975) 134 CLR 81 (PMA case) .... 5-1, 5-31 Victoria v Commonwealth (1996) 187 CLR 416 (Industrial Relations case) .... 11-1, 11-5, 11-6, 11-8, 11-9, 11-15, 11-19, 17-14, 17-16, 17-20 Victoria v Commonwealth and Hayden (1975) 134 CLR 338 (AAP case) .... 4-1, 4-8, 4-9, 4-11--4-14, 4-16, 4-23, 17-1, 17-5 Victorian Chamber of Manufactures v Commonwealth (1943) 67 CLR 413 (Industrial Lighting case) .... 12-11 Victorian Chamber of Manufactures v Commonwealth (1943) 67 CLR 335 (Prices Regulations case) .... 12-11 Victorian Chamber of Manufactures v Commonwealth (1943) 67 CLR 347 (Women's Employment case) .... 12-11 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 .... 3-29, 17-19, 17-20 Viskauskas v Niland (1983) 153 CLR 280 .... 13-1, 13-9

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w W & A McArthur Ltd v Queensland (1920) 28 CLR 530 .... 9-1, 9-4, 9-10,9-23,9-24 Waterside Workers' Federation v JW Alexander Ltd (1918) 25 CLR 434 .... 3-4, 3-9, 3-30 Wenn v Attorney General (Victoria) (1948) 77 CLR 84 .... 12-14 Western Australia v Commonwealth (1975) 134 CLR 201 (First Territorial Senators case) .... 5-1-5-8, 17-4 Western Australia v Commonwealth (1995) 183 CLR 373 (Native Title case) .... 14-6 Williams v Commonwealth (No 1) (2012] HCA 23 .... 4-1, 4-9-4-14, 4-22-4-25, 17-5-17-6

Williams v Commonwealth (2014] HCA 23 .... 4-1, 4-9, 4-10, 4-12-4-14,4-22-4-25, 15-1 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 .... 3-1, 3-11 WR Moran Pty Ltd v Deputy Commissioner of Taxation for New South Wales (1940] AC 838 .... 6-35 Wurridjal v Commonwealth (2009) 237 CLR 309 .... 15-1, 15-17

x

References are to paragraphs COMMONWEALTH

XYZ v Commonwealth (2006) 227

-xviii-

Table of Statutes

CLR 532 .... 11-1

Air Navigation Act 1920 .... 17-17 Air Navigation Regulations .... 8-9, 8-16 r 198 .... 8-5, 17-17 r 199 .... 8-5, 17-17 Appropriation Act (No 1) 1974-75 .... 4-13 Australia Act 1986 .... 1-12-1-16, 2-19,3-3,5-24 Australian Industries Preservation Act 1906 .... 10-2, 10-8 s 4 .... 8-18 s 5 .... 10-3 s 8 .... 10-3 Australian National Airlines Act 1945 .... 8-6, 8-7, 8-9, 8-13, 8-16 s 19(1) .... 8-11 s 46 .... 8-11, 8-14 s 47 .... 8-11 s48 .... 8-11 s 49 .... 8-11 Banking Act 1945 .... 14-17 s 48 .... 14-5 Banking Act 1947 .... 15-13 s 46 .... 9-4, 9-10 Bill for the Australian Bill of Rights Act 1985 .... 15-23 Broadcasting Act 1919 s 95C .... 16-4 s 95D .... 16-4 Child Support (Assessment Act) 1989 .... 3-11 Circuit Layouts Act 1989 .. .. 15-15 Civil Aviation Act 1988 .... 15-15 Coastal Waters (State Powers) Act 1980 .... 2-20, 2-21 Coastal Waters (State Title) Act 1980 .... 2-20, 2-21

Commerce (Meat Export) Regulations .... 8-3, 8-18-8-19, 17-17 Commerce (Trade Descriptions) Act 1905 .... 8-3, 8-18, 17-17 Commonwealth Arbitration Act 2011 .... 14-16 Commonwealth Bank Act 1945 .... 14-5, 14-17 Commonwealth Conciliation and Arbitration Act 1926 .... 3-10 Commonwealth Constitution .... 1-1, 1-9, 1-11 Ch III .... 3-7-3-9, 3-11, 3-12, 3-14-3-15,3-18,3-19,3-26, 3-30,3-32,3-34 s 1 .... 5-1 s 2 .... 5-1 s 5 .... 4-3 s 7 .... 5-1, 5-4, 5-6, 5-8-5-10, 5-12-5-15,5-19, 16-4, 16-11, 17-4 s 24 .... 5-1, 5-3-5-4, 5-6, 5-9, 5-10,5-19,5-21, 16-4, 16-10, 16-11, 17-4 s 28 .... 17-3, 17-8 s 32 .... 4-3 s 41 .... 5-1, 5-9, 5-11, 5-14, 5-15 s 44 .... 5-1, 5-22, 5-23, 5-28 s 44(i) .. .. 5-24, 5-27 s 44(iv) .... 5-25 s 44(v) .. .. 5-26 s 51 .... 6-24 s 51(i) .... 2-1, 2-17, 4-15, 4-19, 8-1-8-5,8-7-8-11, 8-15-8-18, 8-20,8-23, 10-1, 12-4, 14-17, 17-1, 17-15, 17-17, 17-20, 17-21 s 51(ii) .... 4-15, 4-19-4-20, 6-1, 6-4, 6-8,6-14, 6-17,6-20,

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LNQA Constitutional Law 6-21,6-25, 6-29-6-32,6-35, 7-1-7-2, 7-21, 11-21, 12-4, 14-6 s 5l(iii) .... 7-1 s 5l(v) .... 12-4 s 5l(vi) .... 8-12, 12-1-12-2, 12-5-12-10, 12-13-12-14 s 51(vii) .... 12-4 s 51(xiii) .... 8-12, 12-4 s 51(xix) .... 3-18 s 51(xvii) .... 8-12, 12-4 s 5l(xx) .... 2-1, 2-17, 4-13, 10-1-10-26, 17-1, 17-8-17-9, 17-11, 17-21, 17-23-17-24, 17-27-17-28 s 51(xxiiiA) .... 4-13 s 51(xxvi) .... 1-22, 8-12 s 5l(xxix) .... 2-1, 2-17-2-18, 2-21,4-15,4-19, 11-1-11-4, 11-6-11-9, 11-11-11-13, 11-16-11-18, 11-20-11-23, 17-1, 17-15-17-16 s 51(xxx) .... 2-17 s 51(xxxi) .... 6-1, 6-29-6-32, 6-34, 15-1, 15-11-15-19, 15-25, 16-1 s 51(xxxii) .... 12-2 s 5l(xxxiv) .... 12-4 s 5l(xxxix) .... 4-11, 4-15, 4-17-4-21,4-23, 12-11, 17-1 s 51(xxxv) .... 2-16, 5-19, 14-3, 14-16, 14-18, 16-3 s 51(xxxviii) .... 1-16, 2-20 s 52(ii) .... 14-11 s 53 .... 5-1, 6-1, 6-5, 6-11 s 54 .... 5-1, 6-1, 6-5, 6-11, 17-6, 17-8 s 55 .... 5-1, 6-1, 6-5-6-7, 6-11, 6-16, 11-21, 17-8, 17-9 s 56 .... 5-1, 6-1, 6-5, 6-11 s 57 .... 4-2, 4-3, 5-1, 5-29-5-31, 5-33,5-34 s 58 .... 4-3 s 61 .... 1-15, 4-1, 4-8-4-26, 17-1, 17-7, 17-8 s 62 .... 4-1 s 64 .... 4-1-4-3, 4-5 s 67 .... 4-3 s 69 .... 12-2 s 71 .... 2-8, 3-3, 3-4, 3-8-3-10, 3-30

s 72 .... 3-4, 3-10, 3-30, 4-3 s 72(ii) .... 3-4 s 73 .... 2-8, 3-3, 3-25 s 74 .... 3-3, 3-25, 9-4 s 75 .... 2-8, 3-3, 3-21, 3-22, 3-24, 3-25 s 76 .... 2-8, 3-3, 3-21, 3-22, 3-24, 3-25 s 76(i) .... 3-25 s 77 .... 3-24, 3-25 s 80 .... 15-1, 15-3, 15-11, 15-25, 16-1 s 81 .... 4-13, 4-15, 4-18, 4-20, 4-21,4-25, 17-1, 17-6 s 83 .... 4-13, 4-15, 4-18, 4-20, 4-21,4-25,4-26, 17-6 s 90 .... 6-4, 6-8, 7-1-7-3, 7-8-7-11, 7-18, 7-19, 7-21, 7-26, 17-8-17-10 s 92 .... 1-22, 8-1-8-2, 8-9-8-11, 8-14, 8-16,9-1-9-12, 9-14-9-19,9-21-9-26, 9-28-9-29, 17-14, 17-15, 17-18, 17-21 s 96 .... 4-24, 6-1, 6-23, 6-24, 6-28-6-35, 7-19 s 99 .... 6-1, 6-4, 6-9, 6-17, 6-20, 6-21,6-25,6-30,6-31,6-35, 8-1, 8-9, 8-16, 8-22, 11-21, 17-21 s 109 .... 2-21, 3-25, 8-16-8-17, 8-21, 8-23,9-22, 13-1-13-3, 13-5-13-7, 13-9-13-13, 13-15, 13-17-13-19, 17-1, 17-21, 17-24, 17-25, 17-27, 17-28 s 114 .... 12-2 s 116 .... 6-1, 6-29-6-30, 6-33, 15-1, 15-11, 15-25, 16-1 s 117 .... 15-1, 15-11, 15-25, 16-1 s 119 .... 12-2 s 122 .... 5-3-5-8, 15-17, 17-4 s 128 .... 1-13-1-14, 1-18-1-20, 1-22, 1-24, 1-25,5-19, 17-3 Commonwealth Electoral Act 1918 .... 5-11-5-12, 5-15, 5-17, 16-11 s 240 .... 16-12, 16-17 s 270(2) .... 16-17 s 329A .... 16-12, 16-17 Commonwealth Employees' Rehabilitation and Compensation Act 1988 .... 15-15

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Table of Statutes Commonwealth Franchise Act 1902 .... 5-11 Commonwealth Places (Mirror Taxes) Act 1998 s 6(2) .... 6-7, 6-19 Communist Party Dissolution Act 1950 .... 1-22, 2-10, 12-6, 12-20, 12-22 s 4 .... 12-17 s 5 .... 12-17 s7 .... 12-17 s 9 .... 12-17 s 10 .... 12-17 Conciliation and Arbitration Act 1904 .... 14-16-14-17 s 12 .... 3-30 Conciliation and Arbitration (Electrical Industry) Act 1985 .... 14-17 Constitution Alteration (Aboriginals) 1967 .... 1-22 Constitution Alteration (Post-war Reconstruction and Democratic Rights) Bill .... 15-22 Constitution Alteration (Referendums) 1977 .... 1-22 Constitution Alteration (Retirement of Judges) 1977 .... 1-22 Constitution Alteration (Rights and Freedoms) Bill 1988 .... 15-22 Constitution Alteration (Senate Casual Vacancies) 1977 .... 1-22 Constitution Alteration (Senate Elections) 1906 .... 1-22 Constitution Alteration (Social Services) 1946 .... 1-22 Constitution Alteration (State Debts) 1909 .... 1-22 Constitution Alteration (State Debts) 1928 .... 1-22 Constitutional Alteration (Establishment of Republic) Bill 1999 .... 1-1 cl 60 .... 1-29 Constitutional Alteration (Preamble) Bill 1999 .... 1-1, 1-29 Constitutional Convention (Election) Act 1997 .... 1-28 Copyright Act 1968 .... 6-6, 6-18 Copyright Amendment Act 1989 s 135ZZP .... 6-6, 6-18, 17-12 Crimes Act 1914 .... 15-15

Crimes (Superannuation Benefits) Act 1989 .... 15-15 Criminal Code s 300.4 .... 13-4 s 421.12 .... 16-18 Customs Act 1901 .... 8-3, 8-18, 17-17 Customs (Prohibited Export) Regulations .... 8-3, 17-17 Defence Act 1903 .... 12-12, 13-4, 13-17 Defence Housing Authority Act 1987 s 5(1) .... 14-11 s7 .... 14-11 s 31(1) .... 14-11 s 31(2) .... 14-11 Defence Legislation Amendment Act 2006 .... 3-11 Defence Preparations Act 1951 .... 12-12 Defence Preparations (Capital Issues) Regulations 1951 .... 12-12 Dried Fruits Export Control Act 1924 .... 8-20, 8-22 Electoral and Referendum Amendment (Electoral and Other Measures) Act 2006 .... 16-11 Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004 .... 5-12, 5-14, 16-11 Electoral and Referendum (Electoral and other Measures) Act 2006 .... 5-13 Electoral and Referendum (Electoral Integrity and Other Measures) Act 2006 .... 5-12, 5-14, 16-11 Excise Tariff Act 1906 s 2 .... 6-12 Federal Aid Roads Act 1926 .... 6-24 Financial Management and Accountability Act 1997 .... 4-25 s44 .... 4-11 s 32B .... 4-13 Fisheries Management Act 1991 .... 15-15 Fringe Benefits Tax Act 1986 .... 6-7, 6-19, 17-12 Fringe Benefits Tax (Application to the Commonwealth) Act 1986 .... 6-7, 6-9,6-19, 17-12

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LNQA Constitutional Law Fringe Benefits Tax Assessment Act 1986 .... 6-7, 6-19, 17-12 High Court of Australia Act 1979 .... 3-4 Human Rights Bill 1973 .... 15-23 Immigration Appeals Regulations .... 3-27 Income Tax Act 1942 .... 6-25 Income Tax and Social Services Assessment Act 1936 s 79A .... 6-20 Income Tax and Social Services Contribution Assessment Act 1936 .... 6-27 s 23 .... 6-14 Income Tax Assessment Act 1915 .... 6-20 Income Tax Assessment Act 1942 .... 6-25 Income Tax Regulations 1917 .... 6-20 Income Tax (War-time Arrangements) Act 1942 .... 6-25 Industrial Relations Act 1988 s 127A .... 10-17 s 127B .... 10-17 s 127C(l)(b) .... 10-17 s 299(1)(d)(ii) .... 16-3 Industrial Relations Amendment Act (No 2) 1994 .. .. 11-9-11-10, 17-16 Industrial Relations Reform Act 1993 .... 11-9-11-10, 17-16 s 170BC(3)(b) .... 11-13 Interstate Commission Act 1912 .... 3-30 Pt V .... 3-9 Judiciary Act 1903 .... 3-4, 3-21 Pt XII .... 3-23, 3-26 s 40 .... 3-3 s 53 .... 16-18 s 64 .... 14-11 s 89 .... 3-23 s 90 .... 3-23 s 93 .... 3-23 Land Tax Act 1910 .... 6-13 Life Insurance Act 1945 .... 13-4 Migration Act 1958 .... 3-14-3-15, 3-19 s 189 .... 3-16-3-17 s 196 .... 3-16-3-17 s 198 .... 3-16-3-17

s 34A .... 6-3, 6-6, 6-18, 17-12 s 54R .... 3-32 Migration Act Amendment Act 1987 .... 6-6 National Health Act 1953 .... 13-4, 13-17 National Security Act 1939 .... 12-11 Native Title Act 1993 .... 14-6 Navigation Act 1912 .... 3-23, 3-26 Parliamentary Contributory Superannuation Act 1948 .... 15-15 Payroll Tax Act 1941 .... 14-6 Payroll Tax Assessment Act 1941 .... 14-6 Petroleum and Minerals Authority Act 1973 .... 5-31 Political Broadcasts and Political Disclosures Act 1991 .... 16-4 Privy Council (Appeals from the High Court) Act 1968 .... 3-3 Privy Council (Limitation of Appeals) Act 1968 .... 3-3 Racial Discrimination Act 1975 .... 3-9, 11-4, 13-4, 13-7, 13-12, 13-18, 15-25 Referendum Legislation Amendment Act 1999 .... 1-21 Referendum (Machinery Provisions) Act 1984 s 11(4) .... 1-21 s 45 .... 1-21 Sales Tax Act (No 1) 1930 .... 6-7 Sales Tax Assessment Act (No 1) 1930 s 3(1C) .... 6-7, 17-12 Seas and Submerged Lands Act 1973 .... 2-18, 11-1 s 16 .... 2-19, 2-21 Senate (Representation of Territories) Act 1973 .... 5-2, 5-7-5-8, 17-4 s 4 .... 5-3 s 7(2) .... 5-3 Sex Discrimination Act 1984 .... 3-25, 15-25, 17-16 s 6A .... 13-9-13-10, 17-25 States Grants (Income Tax Reimbursement) Act 1942 .... 6-25, 6-27 States Grants (Tax Reimbursement) Act 1946 .... 6-25

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Table of Statutes Statute of Westminster Adoption Act 1942 .... 1-15-1-16 Superannuation (Resolution of Complaints) Act 1993 .... 13-4 Tax Bonus for Working Australians Act (No 2) 2009 .... 4-11, 4-13, 4-15-4-21,4-25 Telecommunication Act 1975 .... 13-4 Telecommunication (Interception) Act 1979 s 20 .... 3-11 Tobacco Plain Packaging Act 2011 .... 15-1, 15-14 Trade Practices Act 1965 s 35 .... 10-4 s 41 .... 10-4 s 42 .... 10-4 s 43 .... 10-4 Trade Practices Act 1974 .... 10-10, 10-23, 17-11 s 45D(l)(b)(i) .... 10-16 s 75(1) .... 13-4 s 82 .... 10-24 Training Guarantee Act 1990 .... 6-3, 6-14 Training Guarantee (Administration) Act 1990 .... 6-14 Transport Workers Act 1928 .... 17-19 s 3 .... 3-29 Voting Age Act 2014 .... 5-30 War Crimes Act 1942 .... 11-1 War Precautions Act 1914 s 4 .... 12-11 War Precautions Regulations 1915 r 55 .... 12-11 War Service Land Settlement Agreements Act 1945 .... 6-32 Waterside Workers Regulations .... 17-19 Wheat Industry Assistance Act 1938 .... 6-31 Women's Employment Act 1942 ... . 12-11 Workplace Relations Act 1996 s 4 .... 10-18 s 6(l)(a) .... 10-18 Workplace Relations Amendment (Work Choices) Act 2005 .... 10-18 World Heritage Properties Conservation Act1983 s 10 .... 10-12

AUSTRALIAN CAPITAL TERRITORY

Human Rights Act 2004 .... 15-7, 15-20

NEW SOUTH WALES

Anti-Discrimination Act 1977 .... 13-4, 13-7, 13-12, 13-18, 17-25 Pt II .... 13-9-13-10 s 19 .... 13-9 Business Franchise Licences (Tobacco) Act 1987 .... 7-17-7-18, 17-10 Companies Act 1936 .... 14-10 Constitution Act 1855 .... 1-1, 1-4 Health Insurance Levies Act 1982 .... 13-4, 13-17 Legal Profession Amendment (Personal Injury Advertising) Regulation .... 13-4 Marketing of Primary Products Act 1983 .... 9-14 Racing Administration Act 1988 .... 9-20 s 33 .... 9-19 Residential Tenancies Act 1987 s 24(4) .... 14-11 s 59(5)(c) .... 14-11 State Trading Act 2004 .... 17-28 Workers Compensation Act 1926 .... 13-4 Workers Compensation Act 1987 .... 13-4

NORTHERN TERRITORY

Aboriginals Ordinance 1918 s 16 .... 3-15 Northern Territory (Self Government) Act 1978 s 49 .... 9-22 Racing and Betting Act s 90 .... 9-20 Work Health Act 1986 .... 15-15

QUEENSLAND

Constitution Act 1859 .... 1-1, 1-4 Mining Act 1968 .... 17-17 Poultry Industry Act 1946 .... 8-19 Vagrants, Gaming and Other Provisions Act 1931 s 7(1)(d) .... 16-18

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Table of Statutes

LNQA Constitutional Law SOUTH AUSTRALIA

Beverage Container Act 1975 .... 9-13, 9-27 Beverage Container Act Amendment Act 1986 .... 9-27 Constitution Act 1855 .... 1-1, 1-4

TASMANIA

Constitution Act 1855 .... 1-1, 1-4 Fisheries Act 1959 .... 7-22, 9-5, 9-25, 17-18 Sea Fisheries Regulations 1962 .... 9-5, 9-25, 17-18 Tobacco Act 1972 .... 7-10

VICTORIA

Business Franchise (Tobacco) Act 1974 .... 7-11, 9-6, 9-12 s lO(l)(c) .... 9-26 s lO(l)(d) .... 9-26 Charter of Human Rights and Responsibilities Act 2006 .... 15-7, 15-20 Conservation, Forest and Lands Act 1987 .... 16-16 Constitution Act 1855 .... 1-1, 1-4 Constitution Act 1975 .... 16-16 Drugs, Poisons and Controlled Substances Act 1981 .... 13-4 Equal Opportunity Act 1977 s 18(2)(b) .... 13-3 Hospital Benefits (Levy) Act 1982 .... 13-4, 13-17 Licensing Act 1928 .... 17-10 s 19(1)(a) .... 7-9 s 19(1)(b) .... 7-9 Wildlife Act 1975 .... 16-16 Wildlife (Game) (Hunting Season) Regulations r 5 .... 16-16

Constitution Act 1890 .... 1-1, 1-4 Mining Act 1978 .... 13-4, 13-17

UNITED KINGDOM

Act of Union with Ireland 1800 .... 2-1 Australia Act 1986 .... 1-12-1-15, 2-19,3-3,5-24 Australian Constitutions Act 1842 (No 1) .... 1-1, 1-4 Australian Constitutions Act 1850 (No 2) .... 1-1, 1-4 Australian Courts Act 1828 .... 1-1, 1-3 Bill of Rights 1688 .... 15-7, 15-10 Colonial Laws Validity Act 1865 .... 1-12, 1-15, 2-22 Commonwealth of Australia Constitution Act 1900 .... 1-1, 1-11 Federal Council of Australasia Act 18 85 .... 1-5 Magna Carta 1215 .... 15-7, 15-10 Statute of Westminster Act 1931 .... 1-12, 1-14-1-16, 2-1, 2-14, 2-22 s 3 .... 2-16

International Convention on Economic, Social and Cultural Rights 1966 .... 15-26 International Convention on the Elimination of All Forms of Racial Discrimination 1965 .... 15-6, 17-16

International Covenant on Civil and Political Rights 1966 .... 15-6, 15-22-15-23, 15-26 International Covenant on Economic, Social and Cultural Rights 1966 .... 15-6 Universal Declaration of Human Rights 1948 .... 15-6

CANADA

Bill of Rights 1960 .... 15-7 Charter of Rights and Freedoms s 1 .... 15-22 Constitution Act 1982 .... 15-7

NEW ZEALAND

Bill of Rights Act 1990 .... 15-7 UNITED STATES OF AMERICA

Bill of Rights .... 15-7

INTERNATIONAL WESTERN AUSTRALIA

Betting and Racing Legislation Amendment Act 2006 .... 9-18 Betting Control Act 1954 s 24(1AA) .... 9-18 s 24D(i) .... 9-18 s 27D(l) .... 9-18 Constitution Act 1889 .... 5-20

Convention on the Elimination of All Forms of Discrimination Against Women 1979 .... 15-6 Convention on the Rights of the Child 1989 .... 15-6 Convention relating to the Status of Refugees 1951 .... 3-16 Convention relating to the Status of Stateless Persons 1954 .... 3-16 -xxiv-

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Chapter 1

Introduction to the Commonwealth Constitution Key Issues 1-1 Chapter 1 is directed to examine the historical context of the Australian constitutional system and review the constitution-making process for the Commonwealth of Australia. It also considers the required process of amending the Constitution and the efficacy of the procedure to bring about constitutional change. In 1999 a constitutional referendum vote was held for the purpose of establishing a republic in Australia; the referendum was unsuccessful. This is discussed in the last section of this chapter. The English colonisation of Australia proceeded on the basis that Australia was uninhabited, terra nullius ('land of no-one'). The application in Australia of all English laws in force at that time was therefore legitimised. The Australian Courts Act 1828 (UK) established that the laws of England in force at that date applied to the colony of New South Wales, as were applicable to conditions there. The first constitutional document in colonial Australia was the Australian Constitutions Act 1842 (No 1) (UK). The Australian Constitutions Act 1842, for the first time since colonisation, took some steps towards representative government in Australia. There were some shortcomings of this Act, and to address these the Imperial Parliament passed the Australian Constitutions Act 1850 (No 2) (UK); this was done following a report by a committee of the Privy Council in 1849. The Australian Constitutions Act 1850 (No 2) (UK) gave to the Australian colonies the power to draw up their own Constitution Bills. These were later passed by the UK Parliament and became the Constitution Acts of the respective colonies. The New South Wales, Victorian, South Australian and Tasmanian Constitution Acts were enacted in 1855, the Queensland Constitution Act was enacted in 1859, and the Western Australian Constitution Act was enacted in 1890. In 1891, a convention of the colonies was held in Sydney to deliberate on the establishment of a federation of the colonies. This convention -1-

LNQA Constitutional Law

approved the framing of a federal Constitution and set guidelines for its contents. A draft Constitution was accordingly prepared. In 1897 and 1898, new conventions, comprising of popularly elected delegates from the various colonies, took part in the final deliberations on the draft of the federal Constitution. The final Constitution Bill was approved by the convention in 1898 and submitted to referenda in the colonies. The Constitution Bill was then passed by the Imperial Parliament as the Commonwealth of Australia Constitution Act 1900, received royal assent on 9 July 1900, and the Commonwealth of Australia was proclaimed to come into existence on 1 January 1901. Since federation and the coming into force of the Commonwealth Constitution, Australia has been a constitutional monarchy. In 1993, the Commonwealth Government established the Republic Advisory Committee (RAC). In its report, the RAC concluded that the establishment of a republic in Australia would require constitutional changes directed to terminate the Queen's role as Head of State, and the establishment of the office of a new Australian Head of State. In 1998, a Constitutional Convention was convened to resolve whether Australia should become a republic and what model of republic should be chosen. On the first question, there was substantial majority support that Australia should become a republic. On the second issue, the convention considered various models of appointment of the republican Head of State, and opted for the 'Bi-Partisan Appointment of the President Model'. The convention also recommended that a new preamble be added to the Constitution. Subsequent to the recommendations of the Constitutional Convention, the Constitution Alteration (Establishment of Republic) Bill 1999 and the Constitution Alteration (Preamble) Bill 1999 were passed by parliament. But, at the referendum on 6 November 1999, Australians voted 'no' to both proposals. Before tackling the following questions, please check you are familiar with these issues: ./

the growth of the federal movement and the reasons for a federation;

Introduction to the Commonwealth Constitution

'\ Question 1 Examine the basis of colonial government in Australia and discuss the process of constitution-making for the federal Commonwealth of Australia. Time allowed: 60 minutes

Answer Plan The answer to this question is structured along three themes- the colonial context of the introduction of laws of England in Australia, the legislative framework establishing representative and responsible government, and the process of adopting the Commonwealth Constitution. In the first part of the answer, the rationale for the introduction of English laws in Australia is explored, in terms of legal theory. A brief critique of the application of this theory is also included in this part of the answer. The second part of the answer examines the constitutional documents that established representative and responsible government in the colonies in Australia. The final part then discusses the constitution-making process for the Commonwealth of Australia.

Answer (i)

Introduction

1-2 Australia's constitutional system has evolved from the initial introduction of English laws to the 'settled colony' to finally adopting the Commonwealth Constitution as the basis for a federated nation. The progress to this final result involved, first, the establishment of representative government, then responsible government, and the drawing up of governing constitutional documents for each of the colonies. Beginning in the mid-18 80s, interaction among the colonies, and a series of conventions of representatives of the various colonies, culminated in the adoption of the Commonwealth Constitution and the establishment of a federal polity in Australia.

The colonial context of the introduction of f nglish laws in Australia

the process of constitution-making for the Commonwealth of Australia;

(ii)

./

the impact of the Statute of Westminster and the Australia Act on Australian nationhood;

./

the procedure for amending the Constitution and its effectiveness; and

./

efforts to achieve a republic in Australia .

1-3 The English colonisation of Australia proceeded on the basis that Australia was uninhabited, terra nullius ('land of no-one'). According to legal interpretation current during those times, an uninhabited land occupied by English settlers would legitimise the application of all English laws in force at that time. The Australian Courts Act 1828 (UK) passed by the UK Parliament established that the laws of England in force at that date applied to the colony of New South Wales, as were applicable to conditions there. The proposition that Australia has been a 'settled'

-2-

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LNQA Constitutional Law

Introduction to the Commonwealth Constitution

colony, and that legal title to all land in Australia became vested in the Crown upon settlement, has now been repudiated by the High Court in Mabo v Queensland (No 2) (1992) 175 CLR 1.

New Zealand were not represented. The Federal Council of Australasia Act made provisions for an executive body and a legislature. This was the first major step towards co-operation among the colonies, and an indication of awareness of nationalism among the majority of native-born Australians. The council was, however, not very effective, principally because New South Wales, as the largest colony, was not involved with these council bodies.

(iii)

Representative and responsible government in the colonies

1-4 The first constitutional document in colonial Australia was the Australian Constitutions Act 1842 (No 1) (UK). The Australian Constitutions Act 1842, for the first time since colonisation, took some steps towards representative government in Australia. It established, in New South Wales, a Legislative Council of elected and appointed members but did not prescribe that the executive would be responsible to the legislature. In order to address the shortcomings of the Australian Constitutions Act 1842, the UK Parliament passed the Australian Constitutions Act 1850 (No 2) (UK). Under the provisions of the Australian Constitutions Act 1850, the powers of the Legislative Councils of the various Australian colonies were not greatly extended beyond those given by the previous Constitutions Act 1842. However, these Legislative Councils were authorised, under the Australian Constitutions Act 1850, to alter the structure of their legislatures from unicameral to bicameral houses. The Australian Constitutions Act 1850 (No 2) (UK) gave to the Australian colonies the power to draw up their own constitutional documents. Accordingly, Constitution Bills were passed in the various colonies, which, with or without amendments, were passed by the UK Parliament and received royal assent. These were the Constitution Act 1855 (Vic), Constitution Act 1855 (NSW), Constitution Act 1855 (Tas), Constitution Act 1856 (SA), Constitution Act 1867 (Qld) and the Constitution Act 1889 (WA). These Constitution Acts established responsible government in the colonies.

(iv)

Beginnings of the federal movement

1-5 Even as the governing constitutional documents were being adopted for each of the separate colonies in Australia, there was a need felt to establish some sort of a general assembly or a central legislative authority to deliberate and legislate on matters of common interest to the colonies. Among those matters of common concern were expansion of trade over colonial boundaries, tariffs and defence. The need was also felt for guidelines for interaction between the Australasian colonies and the South Pacific islands. With these objectives in sight, a convention of the Australian colonies was held in Sydney in 1883. This convention recommended that the UK Parliament establish a federal authority in Australia with limited powers. This was done two years later by the adoption of the Federal Council of Australasia Act 1885 (UK).

This Federal Council of Australasia Act of Australia that comprised nominated Tasmania, Queensland, Western Australia the council later but only for an interim -4-

established the Federal Council representatives from Victoria, and Fiji. South Australia joined period. New South Wales and

(v)

Sydney Convention of 1891

1-6 In 1890, New South Wales joined the federal movement. In the same year a conference of the colonies, the National Australasian Council, was held for discussing the federal option and to pave the way for the holding of a formal national convention in 1891. The 1891 convention was held in Sydney and comprised of seven representatives appointed by the legislatures of the respective colonies. This Sydney Convention of 1891 passed resolutions embodying principles on which the future federation would be based. Among those principles were the following:

• The powers, privileges and territorial rights of existing colonies would remain the same except as may be agreed upon as necessary and incidental to the power and authority of the new federal government. • Trade and intercourse between the federating colonies, whether by land carriage or coastal navigation, shall be absolutely free. • The power and authority to impose customs and excise duties and to offer bounties shall lie exclusively with the federal government and parliament, subject to the distribution of revenues from these sources as may be agreed upon. • The naval and military defence of Australia shall be entrusted to federal forces under one command. The convention also approved the framing of a federal Constitution and set guidelines for the framing of the Constitution. The guidelines spelt out the nature of the three organs of the future federal government. There was to be a bicameral parliament comprising the House of Representatives and the Senate. The federal executive was to be headed by the GovernorGeneral, who would have appointed advisers. The judicial power of the federation was to be reposed in a High Court of Appeal. A drafting committee accordingly prepared a draft Constitution Bill. The Constitution Bill was then considered and adopted by the convention. Before concluding its session, the convention recommended that the parliaments of the colonies take steps for adoption of the Constitution Bill by the people of the respective colonies, and the passage of the Bill by the UK Parliament. However, because of internal policies and political developments in the colonies, no meaningful steps in this regard were taken. (vi)

Conventions of 1897 and 1898

The Sydney Convention of 1891, which deliberated on a federal arrangement, was comprised of representatives appointed by the 1-7

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LNQA Constitutional Law

parliament of each of the colonies. In 1893, the Australian Natives Association adopted a plan for constituting a new convention with popularly elected delegates from the colonies. In 1895, this plan was approved at the Premiers' Conference. Accordingly, popularly elected delegates from the various colonies took part in the final deliberations on the federal Constitution in the Adelaide, Sydney and Melbourne Conventions in 1897 and 1898. Deliberations in these conventions and the work of the new drafting committee were based on the Constitution Bill drafted in the 1891 Sydney Convention. The final Constitution Bill, which incorporated some amendments suggested by the parliaments of the colonies relating to financial arrangements in the federation, was approved by the Melbourne Convention in March 1898.

(vii)

Referenda and enactment of the Constitution Bill

1-8 According to the plan adopted by the Australian Natives Association in 1893 and approved by the Premiers' Conference in 1895, the final Constitution Bill adopted by the convention was to be submitted to the electors at a referendum. According to this plan, if the Constitution Bill was approved in referenda in three or more colonies, it would be submitted to the UK Parliament for enactment. In the first round of referenda, the Bill was passed by majorities in Victoria, Tasmania and South Australia. In order to secure a majority in New South Wales, some amendments were made to the draft Bill with the approval of the Premiers' Conference. In the next round of referenda, the revised Constitution Bill was approved in New South Wales, Victoria, South Australia and Tasmania in June 1899, and later in Queensland. The Bill was passed by the UK Parliament and received royal assent on 9 July 1900, to come into force by proclamation at a later date. Western Australia subsequently approved the Bill and the Western Australian Parliament requested that it be included as an original state. The Commonwealth of Australia was finally proclaimed to come into existence on 1 January 1901.

(viii)

Introduction to the Commonwealth Constitution

Examiner's Comments 1-10 In the first part of the answer, it is important to highlight two things: first, to briefly identify the rationale for the introduction of English laws in Australia and, second, to identify the transition from 'representative' to 'responsible' government. These have been done very well in this answer.

In the second part of the answer, the reasons for federation and the actual process of constitution-making are adequately covered. The difference in the composition between the Sydney Convention of 1891 and the latter Constitutional Conventions of 1897-98 was that the latter was comprised of popularly elected delegates. This has been correctly pointed out. The brief discussion of the final stages in the adoption of the Constitution is sufficient.

fr-~ Keep in Mind This is a broad question. It involves a discussion of the legal instruments of government in colonial Australia, the reasons for the growth of the federal movement and the process of constitution-making for the Commonwealth. The constitution-making process should form the greater part of the answer, as has been done here. It is important to identify the various stages of constitution-making and structure the answer accordingly. It is equally useful to highlight the composition of the various conventions. The last phase of the enactment of the Commonwealth Constitution by the UK Parliament should be mentioned briefly in the answer.

' Question 2 Discuss the issues relating to the timing of Australia's independence and the attainment of full sovereignty. Is establishment of a republican form of government necessary for asserting full independence? Time allowed: 60 minutes

Conclusion

1-9 The Commonwealth Constitution, framed by popularly elected delegates in the Constitutional Conventions in the 1890s, and enacted by the UK Parliament, is an organic document. It provides the parameters of law-making and other activities by governmental agencies. The Constitution set up a federal structure for division of powers between the Commonwealth and the states. At the same time, it also entrenched a system of responsible government.

Answer Plan

Since coming into effect in 1901, there have been very few formal changes to the Commonwealth Constitution by amendment. Rather, progressive judicial interpretation of the constitutional provisions has ensured that the Constitution is responsive to changing times.

This question involves an examination of the circumstances of the enactment of the Commonwealth Constitution by the UK Parliament, and the impact of both pre- and post-colonial legal instruments on Australia. Analysis and application of constitutional theory and practice are also involved. The answer discusses these issues with reference to several views on the timing of attainment of full sovereignty by Australia. Comments of Justice Lionel Murphy in a number of High Court decisions are considered briefly. The scholarly views of two noted Constitutional

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Introduction to the Commonwealth Constitution

LNQA Constitutional Law

Law commentators, Geoffrey Lindell and George Winterton, are highlighted in more detail. The answer expresses a preference for the views of Winterton. On the question of a republic, it is stressed that establishment of a republic in Australia may be desirable as a symbolic gesture of sovereign nationhood.

Answer (i)

Introduction

1-11 The Commonwealth Constitution was drafted by popularly elected delegates to the Constitutional Conventions of 1897-98. The Constitutional Bill was accepted by the people of the various colonies through referenda, and then enacted by the UK Parliament as the Commonwealth of Australia Constitution Act 1900. While Australia has been independent from Britain for many years, the question has often arisen to when independence can be dated. Connected with this question is the issue of why, in terms of legal theory, the Commonwealth Constitution is supreme and binding. These questions have principally arisen because the Constitution was adopted as an Act of the UK Parliament. (ii)

Commonwealth Constitution, Statute of Westminster and Australia Act

1-12 Since the Commonwealth of Australia Constitution Act 1900 was passed by the UK Parliament, it was assumed that the Colonial Laws Validity Act 1865 (UK) (CLVA) - the Act that invalidated colonial legislation repugnant to British legislation applying to the colony by paramount force ('doctrine of repugnancy') - was still applicable. It was also assumed that the UK Parliament could legislate for Australia. By this interpretation, Australia was not 'independent' at 1900 but a 'self-government colony' within the British Empire. The Statute of Westminster Act 1931 (UK) repealed the 'doctrine of repugnancy' enacted by the CLVA in so far as it affected the Commonwealth, and authorised the Commonwealth to enact 'extraterritorial' laws, and to alter or repeal British statutes applicable to Australia by paramount force. By this statute, it was also enacted that the UK Parliament would not legislate for Australia except by request and consent. Despite this development, the states in Australia 'legally' remained British colonies until the enactment of the Australia Act(s) 1986 (Cth) and (UK). The Australia Act fully terminated the UK Parliament's power to legislate for Australia, at both federal and state levels, and enacted that states could pass 'exterritorial' laws. This sequence of events has led most commentators to conclude that Australia attained independence through an evolutionary process. There have also been some assertions that Australia became fully independent in 1901, the date of commencement of the Commonwealth Constitution, after its passage in the UK Parliament and getting royal assent. -8-

(iii)

Independence and sovereignty in 1901

1-13 The view that Australia achieved full independence and sovereignty in 1901 was asserted by Justice Murphy in a number of dissenting opinions in the High Court. In China Ocean Shipping Co v South Australia (1979) 145 CLR 172, several years before the adoption of the Australia Act(s) 1986 (Cth) and (UK), Justice Murphy explained that the authority of the UK Parliament to legislate for Australia terminated in 1901 upon the coming into force of the Commonwealth Constitution. The fundamental basis of this assertion was the nature of the amending power given to the Australian people by s 128 of the Commonwealth Constitution: [The Constitution) is capable of amendment by the procedure which involves the Australian people, without reference to the United Kingdom. Since 1901, it could have been amended expressly to exclude (or enable Parliament to exclude) the operation of any United Kingdom Act ... The view that the Colonial Laws Validity Act and other Imperial Acts applied notwithstanding the Constitution logically requires reading into s 128 a limitation that the section does not permit any constitutional alteration inconsistent with those Imperial Acts ... {at 236-37) Justice Murphy expressed similar views in his dissenting opinions in Kirmani v Captain Cook Cruises Pty Ltd (No 1) (1985) 159 CLR 351 at 383 and Bistricic v Rokov (1976) 135 CLR 552 at 567. This radical exposition of the time of Australia's attainment of full independence and sovereignty has not, however, been shared by most other High Court justices and commentators. The conventional approach has been that independence and sovereignty was evolutionary.

(iv)

Three phases in constitutional evolution

1-14 In 'Why is Australia's Constitution Binding? The Reasons in 1900 and Now, and the Effect oflndependence' (1986) 16 Federal Law Review 29, Geoffrey Lindell examines two historical explanations of the binding nature of the Commonwealth Constitution. The first explanation relates to the point of time when the Constitution was first adopted in 1900 and continued to be fully operative until 1931, and then partially up to 1986 when the Australia Act(s) 1986 (Cth) and (UK) were passed. Of the period 1900-31, Lindell asserts that, although the legal status of the Commonwealth Constitution was derived from a British Imperial Act, the political legitimacy of the Constitution was based on the statement in the preamble: Whatever the legal position, ... [the words in the preamble] draw attention to the political reason for its enactment, the document having been in large measure approved by the people of Australia ... The importance of the role played by the Australian people was to be further underlined by the ability given to them to amend the Constitution in accordance with proposals initiated by the Federal parliament under s 128 [of the Constitution]. {p 30) -9-

LNQA Constitutional Law

Introduction to the Commonwealth Constitution

Lindell points out that, since 1900, Australia has undergone an evolutionary process of achieving full independence. The first legal step in this regard was the Statute of Westminster 1931 (UK), by which the Commonwealth Parliament acquired the power to alter or repeal British statutes that applied to Australia by paramount power. The process of independence and full sovereignty, according to Lindell, came about with the passage of the Australia Act(s) 1986 (Cth) and (UK). The achievement of full independence and sovereignty was thus evolutionary, and no specific date can be determined.

passed. Winterton contends that, despite the late adoption and the political policy considerations of a retrospective effect only to 1939, the provisions of the Statute of Westminster 1931 (UK) repealing the CLVA, and the declaration of the Commonwealth Parliament's capacity to enact all kinds of laws, on adoption of the 1931 statute, were sufficient to confer independence and sovereignty to Australia.

(v)

Executive and legislative independence

1-15 While it may be true that the process of independence and sovereignty of Australia was evolutionary, the debate can also be followed by discussing the interlinked dates of executive and legislative independence of Australia from Britain. The process of gaining executive independence from Britain by the dominions of Australia, Canada, New Zealand and others started during the deliberations and declarations at the 1926 and 1930 Imperial Conferences. At these conferences it was acknowledged that Britain and the dominions were equal in status and in no way subordinate to one another in any aspect of domestic or external affairs; they were united only by common allegiance to the Crown. It was also resolved that Governors-General would be appointed, and removed from office, by the monarch on advice of the dominion ministers.

From the very beginning, s 61 of the Commonwealth Constitution vested executive power in the monarch and was made exercisable by the Governor-General. However, at least until 1930, the powers vested in the monarch were exercised on the advice of the British Government. This practice changed in 1930 when Sir Isaac Isaacs was finally appointed as Governor-General on the advice of the Australian Prime Minister, after initial refusal by King George V. Thus: Dominion independence in Australia in the exercise of executive power was fully achieved by 1930, a year before the enactment of the Statute of Westminster . . . [I]t was achieved by the simple device of changing the constitutional convention or practice as to who would give effective advice to the 'Crown' ... Not a word of the Constitution has been changed ... [A]ll that has been altered are the Queen's advisers ... Britain, Australia, Canada and New Zealand have enjoyed a 'personal union' of Crowns, not a shared monarchy, since 1931 ... (G Winterton, 'The Acquisition of Independence', in R French, G Lindell and C Saunders (eds), Reflections of the Australian Constitution, Sydney, Federation Press, 2003, p 36)

With regard to 'legislative independence', the issues arising in the Australian context, but not in the other dominions, have tended to centre on the late adoption of the Statute of Westminster 1931 (UK) in Australia by the Statute of Westminster Adoption Act 1942 (Cth). This latter Act was made retrospective to 1939, the outbreak of the Second World War - not, however, to 1931 when the UK statute was -10-

The Statute of Westminster 1931 (UK) did not, however, free the states in Australia from the operation of the 'doctrine of repugnancy' laid down by the Colonial Laws Validity Act 1865 (UK) (CLVA); there were also other limitations. The final break with the colonial link of the Australian states with Britain came with the adoption of the Australia Act(s) 1986 (Cth) and (UK). By this reasoning, Australia 'manifestly' became independent in 1986 at both Commonwealth and state levels. Despite this analysis, Winterton suggests that the 'effective' date of Australia's independence is 19 31.

(vi)

An "effective' date of independence

1-16 Winterton refutes arguments that Australia's independence should be determined at some point in time subsequent to the passage of the Statute of Westminster 1931 (UK) and the adoption of the UK statute by the Statute of Westminster Adoption Act 1942 (Cth). Noting other authorities, and reiterating the impact of the long title of the Commonwealth version of the Australia Act 1986 (Cth), to the effect that Australia already was 'sovereign' and 'independent', Winterton observes: Although resulting from a process of evolution, Australia's 'independence ... can be dated from the enactment of the Statute of Westminster in December 1931. From that date, the removal of all vestiges of colonialism lay within Australian hands, either through Commonwealth legislation, as in the Statute of Westminster Adoption Act 1942 or by joint legislation by Commonwealth and State Parliaments, as in the Australia Act 1986 {Cth} enacted pursuant to s 5l(xxxviii) of the Constitution ... Hence Australia's constitutional destiny lay entirely in Australian hands from 1931. The fact that Australia declined to assert its independence by voluntarily retaining the vestiges of colonialism does not detract from its effective independence ... As has been rightly observed, 'independence given is not ... inferior to independence taken' ... {pp 42-3)

(vii)

Conclusion: Australian independence, symbolism and a republic

1-17 It cannot be doubted that Australia has long been independent in the exercise of its executive and legislative powers under the Commonwealth Constitution. The further question that has often arisen in recent times is whether establishment of a republic, in place of the monarchical form of government, with the Queen as Head of State, is desirable. In this regard, it has been observed by Winterton: Although Australia has long been independent, it will not be constitutionally free-standing while it depends upon the United Kingdom for its Head -11-

LNQA Constitutional Law

of State ... Hence the long process whereby Australia achieved, first, autonomy and then independence will not be complete until Australia becomes a republic. (p 50)

p

Examiner's Com men ts This question poses important theoretical issues. It encompasses examination of the concepts of legal and popular sovereignty, the impact of imperial instruments on constitutional process, and constitutional interpretation in Australia with reference not only to the Commonwealth Constitution but also to two crucial Acts of the UK Parliament enacted since the adoption of the Commonwealth Constitution. The answer adequately discusses the impact of these legal instruments in the constitutional, political and historical context of Australia. It is well structured, and the discussion is both analytical and critical. Because the answer gives preference to one of the three explanations, more space is devoted to this view; this is correct. Despite some of the complications of constitutional interpretation in the preferred explanation, the conclusion is persuasive. The issue of a republic is not discussed in much detail. This is a good approach in view of the breadth of the question. 1-18

fir~ Keep in Mind The question asked is to review the differing views on the timing of Australia's independence and attainment of full sovereignty. It is important to present these views keeping in mind the relative degrees of their persuasive impact. The views should be presented in light of the contexts of the differing views. It would be erroneous to indicate a preference to one view at the beginning before discussing all the main arguments of the authors of these approaches. The answer should conclude with a preference for one of the main approaches in terms of constitutional theory and practice. To this effect the answer should be analytical and critical. Although a preference for one or the other view is expected in the answer, it is best to articulate that choice in the way done in the conclusion to the answer. The question also has some political dimensions, especially in regard to the question of a republic. Care should be taken to formulate the answer dispassionately in terms of constitutional law.

,,;..f(

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Introduction to the Commonwealth Constitution

Answer Plan

The answer to this question involves an examination of the provisions of s 128 of the Constitution. This includes a discussion of the initiation of constitutional reform proposals in the Commonwealth Parliament, their passage as Bills and then the holding of referenda. The details of these steps are discussed in the substantive part of the answer. The second part of the answer considers the recurrent failure of constitutional amendment proposals at referenda. This part also highlights some successful and unsuccessful referenda relating to individual rights, parliamentary and federal government, and the republic. Various proposals for reform of the amendment procedure ins 128 of the Constitution are then examined in the third part of the answer.

Answer (i)

Introduction

1-19 According to s 128, the Commonwealth Constitution can be amended only by a law passed by the Commonwealth Parliament and approved by a majority of electors throughout Australia, and a majority of electors in a majority of the states. This amendment procedure has proved to be very difficult to effect constitutional change. This is indicated by a review of the unsuccessful results of referenda. Some of the issues involved in the unsuccessful referenda concerned individual rights; others were directed to more efficacious parliamentary government and the question of a republic. Some of the few successful referenda did, however, resolve some crucial issues. In view of this record of failure of constitutional amendments, there have been some proposals for constitutional reform.

(ii)

Procedure for amendment

1-20 For a constitutional amendment to be successful, a proposed law for the alteration of the Constitution must primarily go through the following stages:

• It should be passed by an absolute majority of both houses of the Commonwealth Parliament. • It should be passed by a majority of the voters nationally, and by a majority of voters in a majority of the states voting at a referendum. The time period of submitting a proposed law for alteration of the Constitution after its passage in parliament is not less than two months and not more than six months.

Question 3 Examine the procedure for amending the Commonwealth Constitution and the effectiveness in bringing about constitutional change through this procedure.

Time allowed: 60 minutes -12-

Section 128 also provides that, in case of a disagreement between the two houses, the Governor-General can still submit the proposed law to the voters where the law has been passed by the originating house twice by absolute majority. The second passage of the proposed law in -13-

LNQA Constitutional Law

Introduction to the Commonwealth Constitution

the originating house must be three months after the other house has rejected or failed to pass the proposed law or passed the proposed law with any amendment unacceptable to the originating house. There are certain safeguards for the states ins 128. It is provided that any proposed law which seeks to diminish the proportionate representation of any state in either house of parliament, or the minimum number of representatives of a state in either house of parliament, must be approved by the majority of electors in that state. It is additionally provided that any alteration of the limits of any state must also be approved by the majority of electors in that state.

and four-year maximum terms in both houses of parliament (1988). The referendum for establishing a republic form of government, and a change to the preamble to the Commonwealth Constitution, was the most contested one in recent times, and was neither carried nationally nor in any state. Among the successful amendments, the referendum in 1967 directed to enfranchisement of Aboriginals, and enabling the Commonwealth Parliament to make special laws for Aboriginal people, has been significant in terms of rights of individuals. Referenda for entrenching individual rights applicable to all individuals, such as equality of voting power, religious freedom at both Commonwealth and state levels, and guarantees of jury trial were not successful in 1988.

(iii)

Referendum (Machinery Provisions) Act

1-21 A referendum for altering the Constitution is held in accordance with the procedure set out in the Referendum (Machinery Provisions) Act 1984 (Cth). Bys 45 of the Act, voting is compulsory for all electors. The Electoral Commissioner is required by s 11 of the Act to distribute to each elector, not later than 14 days before the referendum, a pamphlet containing arguments for and against the proposed law. Each of these arguments must be no more than 2000 words and must be authorised by a majority of those members who voted for the proposed law. By s 11 (4 ), the Commonwealth is prohibited from spending money in respect of the presentation of the opposing arguments except incidental costs. However, an exception was made in 1999 by the Referendum Legislation Amendment Act 1999 (Cth) for the republic referendum.

(iv)

Effectiveness

of s 128 in bringing about constitutional change

1-22 Since federation, s 128 has not been very effective in bringing about desired constitutional change. Of 44 proposed laws to change the Constitution that were put to a referendum vote, only eight were successful. These are:

1. 2. 3. 4. 5. 6. 7. 8.

Constitution Alteration Constitution Alteration Constitution Alteration Constitution Alteration Constitution Alteration Constitution Alteration Constitution Alteration Constitution Alteration

(Senate Elections) 1906; (State Debts) 1909; (State Debts) 1928; (Social Services) 1946; (Aboriginals) 1967; (Senate Casual Vacancies) 1977; (Retirement of Judges) 1977; and (Referendums) 1977.

Interestingly, there were three referenda to override the effect of High Court decisions. These cases were R v Burgess; Ex parte Henry (1936) 55 CLR 608, fames v Commonwealth [1936] AC 578 and Australian Communist Party v Commonwealth (1951) 83 CLR 1 (Communist Party case) that respectively held that the Commonwealth did not have any power over air navigation and aircraft, and that the Commonwealth was not free from the strictures of s 92 of the Constitution in respect of marketing laws, and for overriding the decision in the Communist Party case. The referenda held in 1937 to overcome the effect of the first two decisions were unsuccessful. In the Communist Party case, the High Court ruled that the Communist Party Dissolution Act 1950 (Cth) was unconstitutional. In a referendum in 1951, an effort was taken to overcome the effect of this decision by reinstating the Act, and giving to the Commonwealth power to combat 'communism'. The referendum was unsuccessful. The following comments sum up the impact of some of the referenda until 1988: Many proposals for change have been put to a referendum on more than one occasion. For example, there have been five separate attempts to extend the corporations power in section 51 of the Constitution, and six attempts to extend the Commonwealth's power over employment. There have been four attempts to amend the Constitution to ensure that elections for the Senate and the House of Representatives are held at the same time. None of these referendums was successful ... The referendum which gained the highest level of overall public support was the 1967 proposal to remove the section which prevented 'aboriginal natives' from being counted in the national census. The same proposal also removed the words 'other than the Aboriginal race in any State' from section 51(xxvi). Ninety per cent of the electorate supported this change.

By the last mentioned referendum, s 128 itself was amended to enable voters in the Northern Territory and the Australian Capital Territory to vote in referenda. Some important amendment proposals relating to parliamentary government at Commonwealth level, and issues of federalism, have not been successful. Among these are three efforts for simultaneous elections for the House of Representatives and the Senate (1974, 1977, 1984), breaking the nexus between the numbers of the House of Representatives and of the Senate (1967),

[Until 1988, the] ... proposal with the least electoral support was the 'rights and freedoms' question put in the ... referendums of 1988 which gained only 31 per cent of votes in favour of the amendment. (House of Representatives Standing Committee on Legal and Constitutional Affairs, Constitutional Change, AGPS, Canberra, 1997, p 59)

-14-

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LNQA Constitutional Law

Introduction to the Commonwealth Constitution

Regarding the poor record of constitutional change through referenda, the following remarks of a range of commentators are worth noting:

The commission, by majority, recommended against the initiation of referenda by electors because of the operation of the principles of responsible and representative government in Australia. The commission observed:

There has been a good deal of criticism of Australia's record on constitutional change by referendum. A certain orthodoxy has it that Australia is a frozen continent. Geoff Sawer wrote in that vein and coined the phrase 'the frozen continent' ... LF Crisp ... wrote that many people have been short-sighted as changes to the Commonwealth Constitution have been persistently dashed by mindless partisanship and general apathy and ignorance ... Don Aitkin ... analysed referendums and concluded: 'The story of the referendum in Australian politics is on the whole a dismaying one' .... Dean Jaensch ... says that the Constitution is stable to the point of inertia and that there is a need to create a new legal skeleton upon which the Australian body politic might grow ... (B Galligan, quoted in M Coper & G Williams (eds), Power, Parliament and the People, Federation Press, Sydney, 1997, p 9)

These comments indicate there are various reasons that have been offered for the lack of success in passing proposed laws for changing the Constitution through referenda. Among these are lack of consensus between major political parties on policy issues, Commonwealth-state differences on amending the Constitution, and lack of political awareness on the part of voters. (v)

Proposals for reform of the referendum process constitutional change

of

1-23 In its report in 1988, the Constitutional Commission examined several proposals for reform of the referendum process of constitutional change. Among these proposals are referenda initiated by state parliaments, referenda initiated by commissions or conventions, and referenda initiated by electors. With regard to the first proposal the commission recommended that: . . . the Constitution be altered to allow constitutional referendums to be initiated not only by the Federal Parliament but also by State Parliaments. A proposal to alter the Constitution would be required to come from Parliaments of not fewer than half the States. There should be an additional requirement that the State Parliaments concerned represent a majority of Australians overall. (Final Report of the Constitutional Commission, Vol 2, Australian Government Publishing Service, Canberra, 1988, p 856)

Three main arguments were advanced in submissions before the commission in support of electors' initiative in holding referenda for constitutional change. These were: (a) It would reduce voter apathy and alienation from the political process by giving electors a direct role in determining the shape of constitutional change. (b) It would lead to more acceptance of constitutional change and a wider range of alterations being proposed .... (c) It would play a useful educative role. (p 866) -16-

Under the present system, any proposal to alter the Constitution must first be deliberated in Parliament, with due regard for the proposal's consistency with the existing and foreshadowed legislation of the Government of the day. With the electors' initiative it is not inconceivable that a proposal for altering the Constitution could be put to referendum which, if passed, would undermine a vital part of the Government's platform thus compromising its authority. (p 868) (vi)

Conclusion

1-24 The procedure for amending the Commonwealth Constitution is elaborately set out in s 128 of the Constitution. The conditions that must be fulfilled for an amendment to the Constitution to be successful are twofold. First, the proposed law must be passed by absolute majorities in both houses of parliament and, second, passed by the people at a referendum in which there must be a majority of voters nationally and a majority of voters in a majority of states voting in favour of it. Because of these rigid requirements and also because of practical factors, referenda have not been very successful in Australia.

Examiner's Comments 1-25 This question is directed to an examination of the provisions of s 128 of the Constitution and its effectiveness in bringing about constitutional change. The implications of the provisions of s 128 have been well identified and discussed. The legislation that contains provisions for the holding of referenda has been correctly identified. The brief discussion of some of the important successful and unsuccessful referenda is an important aspect of the answer. With regard to the effectiveness of s 128 in bringing about constitutional change, the practical position has been clearly stated and reasons for failed referenda have been adequately highlighted. Although the issue of reform of the amending procedure is not specifically mentioned in the question, it is a good idea to have a discussion of proposed changes in view of the perceived ineffectiveness of the referenda.

!/Ii~ Keep in Mind This question asks you to examine the provisions of s 128 relevant to bringing about a constitutional amendment. Accordingly, all the provisions are to be examined. It is not enough to discuss only those provisions that have been used in the past but also those which have not been used. While discussing the effectiveness of the process of amending the Constitution, it is important to highlight and briefly discuss some of the successful as well as unsuccessful referenda. However, it would be beyond the scope of the answer to discuss all of the referenda that have been held so far. -17-

LNQA Constitutional Law

Introduction to the Commonwealth Constitution

In discussing the proposals for changes to the amending mechanism, it is important not just to list the proposals but to discuss them in some detail.

With regard to the appointment of a republican Head of State, the RAC suggested four main methods:

.:..'fr Question 4 What steps were taken by successive governments in the 1990s on the question of an Australian republic? In this regard, discuss the background proposals, the constitutional machinery put into effect for holding the 1999 referendum on the republic issue, and the result of the referendum. Time allowed: 60 minutes

+

1. 2. 3. 4.

appointment by the Prime Minister; appointment by parliament; popular election; and appointment by electoral college.

With regard to the first option, the RAC said: Leaving the appointment of the head of state to the Government of [the] day is the option which most closely reflects the current practice ... [However,] the process of appointment may be viewed as a partisan one if left to the Prime Minister alone. (Report of the Republic Advisory Committee, Vol 1, Australian Government Publishing Service, Canberra, 1993, p 2) On the second option, the RAC observed:

Answer Plan The answer to this question involves an examination of the initiatives taken by two successive governments since 1993 to establish a republic in Australia, the deliberations of the Constitutional Convention in 1998 and the ensuing referendum that eventually failed. Accordingly, the proposals of the Republic Advisory Committee are discussed, and the establishment of the Constitutional Convention and its recommendations are examined. The framing of the proposed laws for the alteration of the Constitution to establish a republic is then discussed. The last part of the answer discusses the holding of the referendum and its result.

Answer (i)

Introduction

1-26 A republic is a state where all powers of government are exercised by persons who are directly or indirectly elected, and thus ultimately derive their authority from the people. Unlike a monarchy, no public office in a republic is hereditary. Australia is a monarchy, not a republic. The Queen is the Head of State of Australia. The establishment of a republic would entail the substitution of the current hereditary Head of State with a non-hereditary one who would be elected, directly or indirectly, by the Australian people. This change requires alteration of the Commonwealth Constitution through a referendum. The first step towards inauguration of a republic in Australia was taken by establishing a Republic Advisory Committee in 1993 to report on the mm1mum constitutional changes required to bring about a republic.

(ii)

Republic Advisory Committee's recommendations

1-27 In its report, the Republic Advisory Committee (RAC) concluded that all that was required to make Australia completely republican was to remove the monarch; no other constitutional change was required. -18-

Involving the people in the appointment process through their parliamentary representatives is a democratic process and, depending on the particular method selected, can ensure that the person selected has the support of all major parties. Moreover, it would, through the Senate, reflect the federal nature of the Commonwealth. (pp 2-3) The RAC highlighted the advantages of a joint sitting of the two houses of parliament in the appointment process: A joint sitting of the Houses would be in keeping with the importance of the occasion and could provide a symbol of unity appropriate for the appointment of a head of state who would represent the nation as a whole. (p 3) The RAC was also approving of a single nomination in the appointment process and a two-thirds majority vote. A single nomination by the Government would have the advantage of avoiding parliamentary discussion on the relative merits of the candidates which could be seen as divisive and detrimental to the office. Moreover, if a two-thirds majority were required, prior consultation with other parties could be expected. (p 3) Regarding the third option of appointment of the Head of State by popular election, the RAC said: The head of state could be elected by the people in a direct election. The argument in favour of such a method is that it is entirely democratic and would give Australians a direct voice in the process. (p 4) But in such a case: ... the Constitution should be amended so as clearly to define and delimit the powers of the head of state so that the Australian people know precisely the powers and duties of the head of state that they are being called upon to elect. (p 4) With regard to appointment of the Head of State by an electoral college, the RAC observed of its prospects and pitfalls as follows: It would be possible to design a special body with representatives drawn from the Commonwealth, State and Territory Parliaments with the task -19-

LNQA Constitutional Law

Introduction to the Commonwealth Constitution

of electing the head of state. Reaching a consensus in the community as to which groups or individuals should participate in such an electoral college would, to say the least, not be a straightforward task. (p 5)

Having taken into account the report of the Committee, the Prime Minister shall present a single nomination for the office of President seconded by the Leader of the Opposition, for approval by a Joint Sitting of both Houses of the Federal Parliament. A two-thirds majority will be required to approve the nomination. (p 45)

The government of the day responded to the RAC recommendations by opting for the following model of electing the republican Head of State: We therefore propose, as the Republic Advisory Committee suggested, that the Head of State be elected by two-thirds majority vote in a joint sitting of both Houses of the Commonwealth Parliament on the nomination of the Prime Minister and the Cabinet. Such a joint sitting would be a unique occasion, bringing together all the political parties, and both Houses of Parliament, in a spirit of bi-partisanship and cooperation. (Prime Minister Paul Keating, An Australian Republic: The Way Forward, Australian Government Publishing Service, Canberra, 7 June 1995, p 11) The election loss of the Labor Party to the Liberal-National Party Coalition in March 1996 witnessed a new phase for the establishment of a republic in Australia.

(iii)

The Constitutional Convention

In keeping with its election pledge, the Coalition government established the Constitutional Convention to debate the question of establishing a republic in Australia. The convention was comprised of 152 delegates, 76 of whom were elected under the Constitutional Convention (Election) Act 1997 (Cth). The rest were appointed by the Commonwealth Government and included 40 representatives of the Commonwealth, state and territory parliaments. 1-28

Among the questions at the convention were, first, whether Australia should become a republic and, second, which republic model should be put to the voters to consider against the current system of government. On the first question, the convention voted overwhelmingly that Australia should in principle become a republic. On the second question, the convention debated various models and adopted the Bipartisan Model of appointment of a Head of State in a republican setup: Three categories of model for a possible Australian republic were before the Convention. They were: direct election, parliamentary election by a special majority and appointment by a special council following Prime Ministerial nomination. While there was significant support for models in each of these categories, following an exhaustive balloting process the Bipartisan Appointment of the President . . . was endorsed by a majority of delegates who voted for or against the motion. (Report of the Constitutional Convention, Vol 1, Australian Government Publishing Service, Canberra, 1998, p 42) By the Bipartisan Model, any person was enabled to nominate an individual to be president. The names of the nominees were then to be considered by a committee established by parliament. The procedure after that would be as follows: -20-

The Constitutional Convention also resolved that the Constitution should include a new preamble.

(iv)

Constitution Alteration Bills

1-29 In accordance with the recommendations of the Constitutional Convention, the Commonwealth Parliament drew up two constitutional alteration proposals - the Constitution Alteration (Establishment of Republic) Bill 1999 and the Constitution Alteration (Preamble) Bill 1999. These were passed by both houses of parliament. The Constitution Alteration (Establishment of Republic) Bill 1999 was directed to implement the Bipartisan Appointment of President Model recommended by the Constitutional Convention. Clause 60 of the Constitution Alteration (Establishment of Republic) Bill 1999 read:

After considering the report of a committee established and operating as the Parliament provides to invite and consider nominations for appointment as President, the Prime Minister may, in a joint sitting of the members of the Senate and the House of Representatives, move that a named Australian citizen be chosen as the President. If the Prime Minister's motion is seconded by the leader of the Opposition in the House of Representatives, and affirmed by a two-thirds majority of the total number of the members of the Senate and the House of Representatives, the named Australian is chosen as the President ...

The referendum and the reasons for its failure 1-30 The referendum was held on 6 November 1999. Voters were (v)

asked to vote 'yes' or 'no' to two proposed laws: • 'A PROPOSED LAW: To alter the Constitution to establish the Commonwealth of Australia as a republic with the Queen and the Governor-General being replaced by a President appointed by a twothirds majority of the members of the Commonwealth Parliament'; and • 'A PROPOSED LAW: To alter the Constitution to insert a preamble'. By large majorities Australians voted 'no' to both proposals. The referendum was not carried nationally or in any state. The result was not totally unexpected. Opinion polls in the weeks preceding the referendum showed the 'no' case leading and support for the 'yes' case declining.

(vi)

Conclusion

1-31 Although Australia is an independent country, its legal identity is that of a constitutional monarchy. It is still dependent upon the United Kingdom for its Head of State. Establishment of a republic may be a symbolic move to asserting full independence and sovereignty. -21-

LNQA Constitutional Law

Despite the defeat of the proposal for an Australian republic at the 1999 referendum vote, discussions and debate on a republican system of government have not abated. These have focused on the ways and means to create better awareness and understanding, on the part of the Australian people, of the Australian system of government, engaging the people in an informed debate on the relevant issues and a different process of holding a referendum vote on the question. In this regard, a 2004 report of the Senate Legal and Constitutional References Committee included the following findings:

Introduction to the Commonwealth Constitution

tfti ~ Keep in Mind In answering this question, care should be taken to include only the relevant information in the various stages of the efforts to establish a republic in Australia. It is possible to go at detailed length to present the recommendations of the Republic Advisory Committee and the deliberations of the Constitutional Convention, but those would be beyond the scope of the question in the pre.sent circumstances. _Care s_hould also be taken to present the information m a balanced and dispassionate way regardless of your inclinations for or against the republic.

The Committee also received a considerable amount of evidence of a general lack of understanding in the Australian community of the Australian Constitution and system of government ... The Committee therefore considers that there is a need for an ongoing and extensive information and education programme to ensure Australians can make an informed choice in relation to constitutional reform, including the options that may be put to them relating to an Australian republic. (Senate Legal and Constitutional References Committee, The Road to a Republic, 2004, p 133)

In view of these findings, the committee suggested a varied process of holding referenda for constitutional change, including an amendment to establish a republic in Australia. The Committee is in favour of a three-stage consultative process, involving two plebiscites and a drafting convention, followed by the fourth and final stage of a constitutional referendum to amend the Constitution ... The Committee believes it is essential that the first step in the process should be to seek from Australians their view on the fundamental question of whether Australia should become a republic. (p 136)

In these findings and recommendations, the committee relied on a considerable amount of evidence, and the information and analysis are quite significant. These need to be seriously considered in the ongoing and future debates on a republican change.

p

Examiner's Comments 1-32 The objective of the question is to seek an account of the steps that led to the holding of the referendum on the inauguration of a republic in Australia. In terms of this objective, the answer is well formulated. It discusses the relevant recommendations of the Republic Advisory Committee, the establishment of the Constitutional Convention and its consideration of the principal questions, the framing of the proposed laws, and the holding of the referendum. All the relevant information in this regard is presented in a structured way. The conclusion dwells on the reasons for the failure of the referendum. Although this is not strictly part of the question, it is advisable to include these comments.

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Chapter 2

Constitutional Concepts Key Issues 2-1 In this chapter some constitutional concepts that are integral to the study of constitutional law are examined. Among the concepts and doctrines which are crucial to a sound understanding of the theory and practice of constitutional law are:

• parliamentary sovereignty; • judicial review; and • extraterritoriality. As a constitutional concept, 'parliamentary sovereignty' means the supremacy of parliament to enact legislation to the exclusion of the other organs of government. In the nineteenth century, the expression was used by some theorists to describe the unlimited competence of the British Parliament. Dicey was a forceful protagonist of this explanation of parliamentary sovereignty in Britain. Dicey's views have been disputed by other writers. Despite this, however, his views on parliamentary sovereignty continue to exert some influence. In Australia, Dicey's concept of parliamentary sovereignty is inapplicable. Two of the principal reasons for this are specific powers of the Commonwealth Parliament established by the Constitution, and the practice of judicial review of laws passed by Commonwealth Parliament. The ideal of constitutional supremacy is more appropriate in describing the Commonwealth constitutional system. The notion of judicial review is related to the concept of judicial power, and its separation from the legislative and executive powers. The separation of judicial power is part of the doctrine of separation of powers. In its pure form, the doctrine of separation of powers requires that governmental powers be distributed among the legislature, the executive, and the judiciary. Although it has never really been put into practice in this form, the doctrine has evolved since ancient times as a theoretical basis for ensuring constitutional ism or limited government. The system of government established by the Commonwealth Constitution combines the American model of separation of powers with British-style responsible government. In practice, the doctrine of separation of powers does not prevent the Commonwealth Parliament from delegating subordinate law-making powers to the executive. -25-

LNQA Constitutional Law

Constitutional Concepts

Unlike the relaxation in the application of the separation of powers principle between the legislature and the executive, judicial power is considered a distinct category, and a strict distinction is drawn between the federal judicial power and other powers of the Commonwealth. The concept of judicial power generally, and its relation to the High Court of Australia, is essential in considering the powers and responsibilities of the High Court under the Commonwealth Constitution. An allied concept is jurisdiction which enables the High Court to exercise its judicial power in specific ways. Specific items of the High Court's jurisdiction are enumerated by the Commonwealth Constitution.

Before tackling the following questions, please check you are familiar with the following issues:

Linked with the concepts of judicial power and jurisdiction is the notion of judicial review. Generally speaking, judicial review is review or scrutiny of a governmental action in a judicial forum - that is, the court. In the Australian constitutional system judicial review by the High Court has been acknowledged from the earliest days of the federation. However, the exercise of judicial review by the High Court, especially with regard to legislation passed by the Commonwealth Parliament, has been controversial at times. One major reason for this controversy is that nowhere in the Commonwealth Constitution is it specifically mentioned that the High Court has the power to engage in judicial review. This power has, rather, been logically deduced from the basic theoretical premises of limited government, the intention of the framers of the Commonwealth Constitution, the scheme of the Constitution, the status of the High Court as the final court of appeal, and the judicial power and jurisdiction conferred on the High Court by the Constitution. In this regard reference has often been made to the United States Supreme Court decision in Marbury v Madison 5 US 137 (1803) and the High Court decision in Australian Communist Party v Commonwealth (1951) 83 CLR 1 (Communist Party case). Extraterritoriality is a feature of a law that enables it to have an operation outside the territory of the enacting legislature. Several provisions of the Constitution expressly confer extraterritorial legislative powers on the Commonwealth Parliament. Among these are s 51(i) relating to overseas trade and commerce, s 51(xx) relating to fisheries in Australian waters beyond territorial limits and s 51(xxix) on external affairs. Commonwealth extraterritoriality, before and after the Statute of Westminster 1931 (UK), has been judicially explained in several cases including Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Association (No 3) (1920) 28 CLR 495 and New South Wales v Commonwealth (1975) 135 CLR 337 (Seas and Submerged Lands case). The implications of state extraterritorial powers in light of these cases were examined by the High Court in, among others, Pearce v Florenca (1976) 135 CLR 507 and Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1. -26-

•

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doctrine of parliamentary sovereignty/constitutional supremacy;

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concepts of judicial power, jurisdiction and judicial review;

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distinction between judicial power and judicial review;

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rationale and principles for the High Court's assumption of judicial review under the Constitution;

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constitutional context of Commonwealth extraterritoriality; and

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extraterritorial powers of state parliaments.

'' Question 1 Evaluate the contemporary relevance of AV Dicey's formulation of the rule of parliamentary sovereignty, the distinction between parliamentary sovereignty and the legislative supremacy of parliament, and the application of these concepts in the Australian constitutional system. Time allowed: 60 minutes

+

Answer Plan

In the introductory part of the answer, the concept of parliamentary sovereignty is discussed. The historical ongm of the concept is examined and its evolutionary interpretation is considered. This part of the answer also includes a brief note on the differing views on the concept of parliamentary sovereignty. Dicey's views on parliamentary sovereignty are then examined. In view of some of the historical and legal complexities associated with Dicey's theory, his views are presented in an itemised form. Both the 'positive' and 'negative' aspects of Dicey's theory are examined, and his conclusion noted.

The critique of Dicey's theory is then discussed with reference to commentary that takes into account a number of views challenging the main assumptions of his theory. This critical evaluation of Dicey disputes the application of his theory in a contemporary constitutional system. It is also doubted whether Dicey's theory ever applied to Britain. Having examined Dicey's theory and its critique, the concluding part of the answer discusses why the theory is not applicable to the Commonwealth level of the constitutional system in Australia. The specific powers of the Commonwealth Parliament and the separation of powers principle are highlighted in this regard. -27-

LNQA Constitutional Law

Answer (i)

the Crowns. Third, referring to the precedents of the prolonging of the duration of parliament by legislation, Dicey asserts that:

Introduction

Parliamentary sovereignty is a concept that explains the legislative supremacy of parliament- that is, the supremacy of the parliament to enact legislation to the exclusion of the other organs of government. However, the concept, in theory and practice, has had different connotations over time, principally because of the political and legal changes affecting the powers and privileges of parliament which have taken place over time. In nineteenth-century England, the expression was used by writers to describe the unlimited legislative competence of the British Parliament. The most vigorous advocate of parliamentary sovereignty in late nineteenth-century England was AV Dicey, who based this theory on his own analysis of the historical and practical role of the British Parliament. 2-2

Dicey's views on parliamentary sovereignty have been disputed by subsequent writers on this subject. On a practical level too, politics and government in contemporary times, in Britain and other countries whose constitutional systems derive partially from the British system, do not conform to Dicey's model of parliamentary sovereignty. Despite this, Dicey's views continue to exert significant influence in legal and constitutional theory.

(ii)

Constitutional Concepts

Dicey's theory of parliamentary sovereignty

2-3 The doctrine of parliamentary sovereignty as it related to the law of England was articulated by AV Dicey in the closing decades of the nineteenth century. In An Introduction to the Study of the Law of the Constitution (10th ed, Macmillan & Co, London, 1959), Dicey explains that his conception of parliamentary sovereignty meant that, under the English Constitution, parliament had the right to make or unmake any law whatever. Parliamentary sovereignty also meant that no person or body had the right to override or set aside a law made by parliament. Dicey establishes the principle of parliamentary sovereignty from both its 'positive' and 'negative' aspects. In asserting the 'positive' attributes of parliamentary sovereignty, Dicey quotes from commentators such as Blackstone and Coke. Dicey explains that there are several instances of 'positive' proof of parliamentary sovereignty. First, it is a fact that the Sovereign occupies the throne under an Act of Parliament: The descent of the Crown was varied and finally fixed under the provisions of the Act of Settlement, whereby the Sovereign occupies the throne under a parliamentary title; his claim to reign depends upon and is the result of a statute. (An Introduction to the Study of the Law of the Constitution, p 43)

Parliament is neither the agent of the electors nor in any sense a trustee for its constituents. It is legally the sovereign legislative power in the state ... (p 48)

Fourth, Dicey argues that parliament's interference with private rights is further proof of its supremacy. In this regard, he refers to Acts of Indemnity and observes that: ... such enactments being as it were the legalisation of illegality are the highest exertion and crowning proof of sovereign power. (p 50)

In establishing parliamentary sovereignty from its 'negative' aspects, Dicey likewise advances several arguments. First, he points out that, other than parliament, no other competing legislative power is recognised in England. Second, Dicey refutes the argument that the body of parliamentary electors possess some kind of legislative authority. In this regard, he observes: The sole legal right of electors under the English Constitution is to elect members of parliament. Electors have no legal means of initiating, of sanctioning, or of repealing the legislation of parliament. (p 59)

Third, Dicey denies that judicial legislation may be inconsistent with the supremacy of parliament: English judges do not claim or exercise any power to repeal a Statute, whilst Acts of Parliament may override and constantly do override the law of the judges. Judicial legislation is, in short, subordinate legislation, carried on with the assent and subject to the supervision of Parliament. (pp 60-1)

Having established the absolute sovereignty of parliament from both its positive and negative aspects, and refuting some of the difficulties associated with it, Dicey makes the following conclusion: The doctrine of legislative supremacy of parliament is the very keystone of the law of the constitution. But it is ... a dogma which does not always find ready acceptance ... (p 70)

(iii)

A critique of Dicey's theory

2-4 Dicey's theory has had great impact not only in Britain, which provided the basis for his theory, but in other countries linked historically, politically and constitutionally with Britain. However, his theory has also come under sharp criticism by academic writers both in England and elsewhere. The views of one such commentator are discussed here. In 'Dicey's Dubious Dogma of Parliamentary Sovereignty: A Recent Fray with Freedom of Religion' (1985) 59 AL] 276, G Walker offers a forceful critique of Dicey's theory of parliamentary sovereignty.

Second, Dicey points out that Acts of Parliament - the Act of Union with Scotland 1706 and the Act of Union with Ireland 1800 - have determined the geo-politics of the kingdom, and the amalgamation of

Walker's critique is built around three major arguments. First, that Dicey's thesis is unsupported by practical illustration of his statements. Second, that Dicey's theoretical framework is not borne out by historical antecedents. Third, he argues that Dicey's theory is contradicted by case law and by contemporary developments in judicial interpretation.

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Constitutional Concepts

LNQA Constitutional Law

Examiner's Comments

With reference to his first argument, Walker, quoting other commentators, observes:

2-6 This answer was framed only with reference to Dicey's conclusions with regard to the various aspects of his theory of parliamentary sovereignty. It does not discuss the contexts on which Dicey's conclusions were based. The contexts were better left out in terms of the time frame in which the question is to be answered. The critique of Dicey's theory is discussed only with reference to one academic commentary. This is pointed out in the answer. In a scholarly article on this issue, other views would have to be considered. Some arguments critiquing Dicey's views are, however, included in the concluding part of the answer.

Dicey could not cite a single case in support of his absolutist and unbalanced view of the Constitution, nor could he point to any reference to it in any statute or constitutional instrument. ((1985) 59 AL] 276 at 276)

In connection with his second argument, Walker refers to the writings of a number of noted authors on the historical and political practice in England during the time period on which Dicey based his formulations. Walker points out that these writings contradict the historical basis of Dicey's theory. In this regard, Walker concludes that: [B]y dint of sheer repetition, academic preaching of the absolutist theory of sovereignty has diverted the attention of bench and bar away from the more limited and balanced principle developed by the common lawyers during the seventeenth century. (p 279)

The concluding part of the answer correctly states that Dicey's theory is inapplicable to the Commonwealth level of Australia's constitutional system. The features of Australia's constitutional system on which this conclusion is based are only discussed briefly. Depending on the emphasis of the question, this part of the answer could be a bit more elaborate.

Like his second argument, Walker proves his third contention by referring to several leading cases of the seventeenth and eighteenth centuries, where the courts in England asserted the right to invalidate an Act of Parliament. These cases, and more recent case law, according to Walker, contradict Dicey's theory of parliamentary sovereignty. Having disputed the basis of Dicey's theory, Walker then provides some instances where 'parliamentary sovereignty' is circumscribed in the Commonwealth and state constitutional systems in Australia. These are the separation of powers principle, the enumeration of legislative powers in the constitutional text, concerns for individual freedoms and the procedure for constitutional amendment.

(iv)

Keep in Mind The answer to this question involves the discussion of a theory, its critical evaluation and its application. All of the aspects have to be discussed in the answer. In presenting the answer, it is important to highlight the main propositions of the theory and examine the critique in relation to those propositions. The writing relied upon for the critique is quite forceful. In this regard, the answer should include explanatory remarks while quoting these views. In the conclusion, the application of the doctrine of parliamentary sovereignty in Australia was examined only with reference to the Commonwealth Constitution. This is correctly done because, at the state level in Australia, the application of the doctrine may be different.

Conclusion

2-5 Dicey's theory of parliamentary sovereignty is attractive m its generalisations. However, some of its basic formulations can be rebutted. It did not adequately reflect the historical, political and constitutional practice in Britain at the time his theory was formulated. The relevance of his theory in subsequent times is also questionable. The application of his theory can be controversial in disparate constitutional systems. There is no doubt that, at least at the Commonwealth level in Australia, Dicey's theory of parliamentary sovereignty is inapplicable. There are several reasons for this. First, the powers of the federal parliament are not unlimited; rather they are specifically enumerated in the Commonwealth Constitution. Second, judicial review of laws passed by parliament is recognised and practised. Third, separation of powers is a feature of the constitutional system. In Australia, the constitutional system is best described as one which enshrines the idea of constitutional supremacy. All governmental powers including those of parliament are derived from, and their limits specified by, the Constitution. Any transgression of powers by any organ or functionary of government would be considered to be unconstitutional. -30-

•

' Question 2 Examine the concept of judicial review and the constitutional basis of judicial review of legislation by the High Court of Australia. Time allowed: 60 minutes

+

Answer Plan In answering this question, it is ideal to start off by highlighting the concept and nature of judicial review. This is best done by relating the concept of judicial review to the notions of judicial power and jurisdiction. This task is undertaken in the first part of the answer.

Following this, the general basis of judicial review, notwithstanding the absence of constitutional provisions in this context, is reviewed. In this -31-

LNQA Constitutional Law

Constitutional Concepts

regard, the fundamental rationale for judicial review is examined in the light of the reasoning adopted in the early US Supreme Court decision of Marbury v Madison 5 US 137 (1803).

on the legality of a statute passed by the legislature, the court would be exercising the power of 'judicial review' of legislation.

The debate on the legitimacy of judicial review by the High Court in Australia is then discussed with reference to the views of selected commentators. The concluding part of the answer reviews the opposing viewpoints on the legitimacy of judicial review, and highlights and elaborates some of the arguments in favour of the exercise of judicial review of legislation by the High Court.

Answer (i)

Introduction

2-7 Judicial review of legislation is the practice by which the court reviews the legality or constitutionality of a statute passed by the legislature. In the context of the Commonwealth Constitution, judicial review is the process through which the High Court undertakes examination of the validity of legislation passed by the Commonwealth and state parliaments. The High Court of Australia has always exercised the power of judicial review to examine statutes passed by the legislature. However, the legitimacy of the exercise of judicial review has been controversial. The essential basis of these controversies is that the Commonwealth Constitution does not explicitly vest the High Court with powers of judicial review. The justification of judicial review can, however, be based on the nature of the Commonwealth judicial power, and the various jurisdictions conferred on it by the Constitution. In determining a conceptual basis for the legitimacy of judicial review, it is helpful to examine the justification for and against the exercise of this power advanced in judicial decisions and scholarly commentary. (ii)

Judicial power, jurisdiction and judicial review

2-8 'Judicial power' is the power to adjudicate on controversies relating to the Constitution and the law. By s 71 of the Commonwealth Constitution, the High Court exercises the judicial power of the Commonwealth. Part of the federal judicial power is also exercised by other courts invested with federal jurisdiction.

The High Court, as the primary body for the exercise of the federal judicial power, has both 'original' and 'appellate' jurisdictions. By ss 75 and 76 of the Commonwealth Constitution, the High Court is given original jurisdiction; the appellate jurisdiction of the High Court is provided by s 73 of the Commonwealth Constitution.

If, for example, the High Court, through the process of 'judicial review', finds that an Act of the Commonwealth Parliament, or some specific provision of it, is inconsistent with the Commonwealth Constitution, it will declare that Act or the provision to be invalid. The High Court can also engage in judicial review of the exercise of executive or administrative action. (iii)

Rationale for judicial review under a constitution: Marbury v Madison

2-9 While, since the earliest days of the federation, the High Court has been assumed to have and in practice has been exercising powers of judicial review, it is a fact that the Commonwealth Constitution does not explicitly vest the High Court with powers of judicial review. Like the Commonwealth Constitution, the Constitution of the United States does not explicitly vest powers of judicial review in the US Supreme Court. However, the US Supreme Court assumed judicial review powers early in the then young nation. One early decision of the US Supreme Court, Marbury v Madison 5 US 137 (1803), has often been cited both in the United States and Australia as justifying judicial review of legislation under a constitution.

In Marbury v Madison, Marshall CJ proposed several convincing arguments in support of judicial review. Among his propositions were:

1.

Logic requires that there is judicial review in a governmental system in which the Constitution is the supreme law. 2. It is the province and duty of the court to say what the law is. 3. Since it is the court that applies the rule to particular cases, it must of necessity expound and interpret that rule. 4. If two laws conflict with each other, the court must decide on the extent of operation of each. Since the decision in the case was handed down, Marbury v Madison has been a landmark case cited in support of judicial review in the United States. The rationale of judicial review upheld in this case has also been relied upon in other constitutional systems including Australia. In Australian Communist Party v Commonwealth (Communist Party case) (1951) 83 CLR 1, the principle of judicial review articulated in Marbury v Madison was endorsed as applicable to the power of the High Court under the Commonwealth Constitution.

(iv)

Reiteration of the Marbury v Madison principle: Communist Party case 2-10 In the Communist Party case, the High Court ruled that

Sometimes the court may not have 'jurisdiction' in a particular matter, and thus may not exercise 'judicial power'. But if 'jurisdiction' is assumed, and the exercise of this 'jurisdiction' involves a judicial decision

the Communist Party Dissolution Act 1950 (Cth) passed by the Commonwealth Parliament was unconstitutional. In his judgment in this

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LNQA Constitutional Law

Constitutional Concepts

decision, Fullagar J strongly endorsed the principle of judicial review with reference to the US Supreme Court decision in Marbury v Madison with the following observations:

legislation, Campbell argues that the 'assumption by the High Court of an arguable discretionary power to disallow such legislation is an affront to positivist ideals and a move away from the rule of law' (The Legal Theory of Ethical Positivism, Dartmouth, Aldershot, 1996, p 183).

Such a law as the Communist Party Dissolution Act could clearly be passed by the Parliament of the United Kingdom or of any of the Australian States. It is only because the legislative power of the Commonwealth Parliament is limited by an instrument emanating from a superior authority that it arises in the case of the Commonwealth Parliament ... [l]n our system the principle of Marbury v Madison ... is accepted as axiomatic, modified in varying degrees in various cases (but never excluded) by the respect which the judicial organ must accord to opinions of the legislative and executive organs. (at 262-3)

In his separate judgment in this case, Dixon J related the High Court's power to examine the constitutionality of Commonwealth legislation ('judicial review') to the requirements of the 'rule of law'. The observations of Dixon J in this case, and the reference to the rule of law as a basis of the Commonwealth Constitution, were relied upon in some later decisions of the High Court.

Arguments against exercise of judicial review by the High Court in Australia 2-11 Despite the early assertion of judicial review by the US Supreme Court in Marbury v Madison, there has since then been a lively debate in the United States over the issue of whether or not this power of the court was intended by the framers of the Constitution. Debate has also centred on questions of propriety of judicial review by the court in terms of democratic theory. In Australia, there has been a similar debate among academic commentators. In 'Judicial Review or Government by the High Court' (1966) 5 Sydney Law Review 203, Patrick Lane highlights that judicial review has no express constitutional sanction, and argues that it was introduced by history and sustained by acquiescence of the people and political institutions. Lane is critical about the reliance on the US decision of Marbury v Madison, and on the practice of the Privy Council in support of judicial review by the High Court. But he disputes that historical reasons can be the foundation for the exercise of judicial review by the High Court. In refuting the claim to justify judicial review, Lane emphasises the rule of 'parliamentary sovereignty'. According to him, the exercise of judicial review entailing a declaration of invalidity of legislation 'subjects the avowed sovereignty of Commonwealth Parliament to the High Court'. There has been opposition to the principle of judicial review by the High Court from other perspectives. Tom Campbell, for example, argues that judicial review is against the ideals of positivism, democracy and the rule of law. In the context of upholding implications of freedom of communication by the High Court and invalidating (v)

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Arguments in support of judicial review by the High Court 2-12 In 'Judicial Review in the Australian Federal System: Its Origin and Function' (1979) 10 Federal Law Review 367, Brian Galligan argues in support of the exercise of judicial review by the High Court by relying upon the intention of the framers of the Commonwealth Constitution. (vi)

Analysing the debates in the Constitutional Conventions in the 1890s, Galligan shows that the Australian founding fathers adopted the American formulation of judicial power at the very beginning and then worked out its full implications in later stages of the constitution-making process. He points out that, at the 1890 Melbourne Convention, Alfred Deakin suggested the adoption of an American-style federal judiciary in the future Commonwealth Constitution. Galligan also points out that, in the 1897 Adelaide Convention, all the convention leaders supported strong judicial powers, and all came out strongly in favour of judicial review. Among these leaders were Barton, Downer, O'Conner, Kingston, Isaacs and Higgins, of which four were among the five early justices of the future High Court. The conclusions of the 1897 Adelaide Convention on the need for powers of judicial review by a strong and independent Australian court in the future federation was reaffirmed at the Melbourne Convention the year after. After reviewing these debates, Galligan concludes that judicial review was so fundamental a part of the founders' intentiolll and design that the judiciary sections of the Constitution cannot be fully understood without acknowledging that fact. The founders considered, according to Galligan, that a strong court exercising judicial review of legislative acts was an integral and necessary part of the federal system that they were instituting. A former chief justice of the High Court, Sir Anthony Mason, has also referred to the intention of the framers of the Commonwealth Constitution in support of the High Court's power of judicial review: The High Court of Australia was created with a constitutional role similar to that of the [United States] Supreme Court. Like its United States model, the Constitution makes no specific provision for judicial review for constitutional validity. Yet the framers plainly intended that the Court undertake this function. ('The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience' (1986) 16 Federal Law Review 1at3)

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Constitutional Concepts

LNQA Constitutional Law (vii)

Conclusion

It is true that there are no particular provisions in the Commonwealth Constitution that specifically grant power to the High Court to exercise the power of judicial review of legislation. However, there are strong reasons why the High Court must have such powers. This justification can be based on the framers of the Commonwealth Constitution and the nature of the Australian constitutional system. 2-13

The Australian constitutional system is not based on the rule of parliamentary sovereignty or the allied principle of simple majority rule. The Commonwealth Constitution provides instead for constitutional democracy and limited government by specifying the broad parameters of governmental activity, including the powers of parliament. The High Court provides the basic institutional check on majority rule through the medium of judicial review. The exercise of judicial review by the High Court is therefore both legitimate and justified.

p

Examiner's Comments 2-14 This answer discusses the concepts of judicial power, jurisdiction and judicial review, and their interrelationships in the beginning. This has clearly explained the function of judicial review. In this light the other parts of the answer are easier to follow.

In explaining the basis of judicial review of legislation, there is a brief discussion of the decision of the US Supreme Court in Marbury v Madison. Since this decision was referred to by the High Court of Australia, emphasising the conclusion in that precedent has assisted in focusing the later discussion in the answer. The discussion on the arguments for and against the exercise of judicial review power by the High Court adequately highlights the principal issues in regard to the legitimacy of the judicial review function. Only selected commentary in this regard is quoted and discussed. In view of the scope of the answer, this is acceptable.

This is important in answering constitutional law questions generally, but more important in areas like the one covered by this question. Structuring the answer is important to comprehensively cover the issues posed by the question. Appropriate headings should be used.

~ Question

3

Examine the High Court's decision in New South Wales v Commonwealth (1975) 135 CLR 337 (Seas and Submerged Lands case) with regard to the Commonwealth's sovereignty over territorial waters and the implications for the states.

+Answer Plan The question of Commonwealth extraterritoriality is historically linked to the Statute of Westminster 1931 (UK). Although not specifically asked in the question, the answer includes a brief definition of extraterritoriality and the place of the Statute of Westminster in this regard. Specific extraterritorial legislative powers in the Commonwealth Constitution are then mentioned. Following this, there is an elaborate discussion of the general scope of Commonwealth extraterritoriality in the context of its sovereign powers. This main discussion is framed in the context of the High Court's decision on the challenge to Commonwealth legislation declaring sovereignty over the territorial sea and continental shelf. The issues of state rights, in the context of the Commonwealth's sovereignty over the territorial sea and continental shelf, are discussed from three perspectives. These are: observations of the High Court; specific provisions in the Commonwealth legislation itself; and the offshore constitutional settlement. In conclusion, it is highlighted that these considerations indicate that state rights over the territorial water and seabed are limited only in a case of conflict with a Commonwealth law.

Answer

Keep in Mind

(i)

Introduction

The question asked is quite conceptual. It is important that the High Court's exercise of judicial review of legislation should be explained clearly. In this regard, the absence of any specific provisions in the Commonwealth Constitution should be highlighted and the assumption of this power be related to the constitutional powers of the High Court. The relevance of the US Supreme Court decision in the Australian constitutional context should be explained in outline.

2-15 Generally, legislation enacted by parliament is intended to affect conduct, matters or things within the territory under the authority of that parliament. However, parliament can also assume the power to legislate extraterritorially. Extraterritoriality is a feature of a law that enables it to have an operation outside the territory of the enacting legislature.

In the discussion on the legitimacy of the judicial review function by the High Court, it should be remembered that the issues are quite contentious. In this regard, it is essential to present the divergent views dispassionately and confine the answer to constitutional law arguments.

2-16

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(ii)

Issues of Commonwealth extraterritoriality prior the Statute of Westminster

to

The express grants of legislative power ins 51 of the Commonwealth Constitution include items that are of such a nature as to incorporate the -37-

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power to make laws having an extraterritorial operation. Despite this, issues of Commonwealth extraterritoriality have been controversial until the passing of the Statute of Westminster by the UK Parliament in 1931, and its adoption by the Commonwealth Parliament in 1942. In Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Association (No 3) (1920) 28 CLR 495, for example, the issue was the application of Commonwealth legislation on settlement of industrial disputes, adopted under s 51(xxxv) of the Constitution, to disputes on Australian ships outside Australian waters. The High Court held that the Commonwealth legislation in question applied only within Australian territorial limits. Section 3 of the Statute of Westminster enacted the competence of the Commonwealth Parliament to make extraterritorial laws: It is hereby declared that the Parliament of ... [Australia] has full power to make laws having extra-territorial operation. As a result of the provisions of s 3 of the Statute of Westminster 1931 (UK), the controversy surrounding Commonwealth legislation having an extraterritorial effect has been put to rest. (iii)

Specific extraterritorial legislative powers

2-17 Several provisions of the Commonwealth Constitution expressly confer extraterritorial legislative powers on the federal parliament. Among these are:

• s 51(i) relating to overseas trade and commerce; • s 51(xx) relating to fisheries in Australian waters beyond territorial limits; • s 51(xxix) on external affairs; and • s 51(xxx) on relations of the Commonwealth with islands of the Pacific. Quite apart from these specific extraterritorial legislative powers, the sovereign status of the Commonwealth Parliament empowers it to enact legislation having a more comprehensive extraterritorial effect.

(iv)

Sovereignty and extraterritoriality: New South Wales v Commonwealth (Seas and Submerged Lands case) 2-18 In New South Wales v Commonwealth (1975) 135 CLR 337 (Seas and Submerged Lands case), several issues relating to the rights of the Commonwealth over the territorial sea and the continental shelf came up for determination before the High Court. These issues came up in the form of a challenge by New South Wales to the Seas and Submerged Lands Act 1973 (Cth). This Act was enacted by the Commonwealth Parliament in exercise of its external affairs power under s 51(xxix) of the Constitution to give effect to two international conventions - the Convention on the Territorial Sea and Contiguous Zone and the Convention on the Territorial Shelf. The Seas and Submerged Lands Act was directed to declare and enact:

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Constitutional Concepts

• the sovereignty of the Commonwealth over the territorial sea from the low-water mark to three nautical miles seawards; and • the sovereign rights of the Commonwealth in respect of exploration and exploitation of minerals in the seabed and subsoil of the continental shelf. In the Seas and Submerged Lands case, all six states challenged the validity of the Seas and Submerged Lands Act 1973 (Cth) in theHigh Court. The principal concern of the states was the assertion of Commonwealth sovereignty over the territorial sea. The principal questions that the High Court had to determine were: first, who, as between the Commonwealth and the states, had rights over the territorial sea; and second, who had rights over the continental shelf. The validity of the Seas and Submerged Lands Act depended on the answers to these questions. The majority of the High Court found the Seas and Submerged Lands Act valid. The High Court's decision meant that the Commonwealth had sovereignty over the territorial sea from the low-water mark to three nautical miles seawards, and it also had sovereign rights over the continental shelf. The decision of the High Court on the validity of the Act was based on the Commonwealth's external affairs power in s 51(xxix) of the Constitution. In the course of their judgments, some of the justices explained the nature and scope of the Commonwealth's extraterritorial powers. With regard to the Commonwealth's extraterritorial powers over the territorial sea and continental shelf, Barwick CJ observed: A consequence of creation of the Commonwealth under the Constitution and the grant of the power with respect to external affairs was, in my opinion, to vest in the Commonwealth any proprietary rights and legislative power which the colonies might have had in or in relation to the territorial sea, sea-bed and airspace and continental shelf and incline. (at 374) In a similar vein, Mason J observed: Once it is accepted that the boundaries of the Colonies terminated at lowwater mark there is in my opinion no reason why the Commonwealth's power to make laws with respect to external affairs . . . should not be regarded as conferring upon it a plenary power to legislate upon the topic of the territorial sea ... (at 4 70)

(v)

Commonwealth extraterritoriality and state rights

2-19 Although the overall effect of the Seas and Submerged Lands Act 1973 (Cth) was to establish the sovereignty of the Commonwealth over the territorial sea beyond the low-water mark, the Act was not directed to regulate conduct or activities in those areas. This is made clear in s 16 of the Act which provides that a state law could operate in the territorial sea, as long as it was not inconsistent with the Act or any other Commonwealth law. The effect of s 16 of the Act and the capacity of state parliament to legislate extraterritorially in the -39-

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adjacent territorial sea was explained by Gibbs (1976) 135 CLR 507:

J in Pearce v Florenca

The very fact that the waters are the off-shore waters of the State provides the nexus necessary to render valid a law operating within those waters. There is an intimate connexion between the land territory of a State and its off-shore waters. Those waters have been popularly regarded as the waters of the State, and as vital to its trade. The people of the State have traditionally exploited the resources of the off-shore waters and used them for recreation. The enforcement of the laws of the State would be gravely impeded if a person could escape from the reach of the laws and the authority of the State by going below low-water mark. (at 519) These observations of Gibbs J were quoted with approval in Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1. By the time that this case was decided, the Australia Act(s) 1986 (Cth) and (UK) were passed. The Australia Act recognised the extraterritorial power of states in Australia. However, it was highlighted in this case that state extraterritorial powers were judicially recognised even before 1986.

(vi)

Off-shore constitutional settlement

2-20 In 1980, each state parliament passed legislation requesting the Commonwealth Parliament to act under the provisions of s 51(xxxviii) to extend state legislative powers in relation to coastal waters. The Commonwealth Parliament then passed two Acts - the Coastal Waters (State Powers) Act 1980 (Cth) and the Coastal Waters (State Title) Act 1980 (Cth). The first Act conferred certain legislative powers to the states in adjacent coastal waters. The provisions in this Act with respect to fisheries were considered by the High Court in Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340, and were found valid. By the second Act, the states were vested with ownership of the adjacent seabed subject to some reservations.

(vii)

Conclusion

2-21 Essentially, the Seas and Submerged Lands Act 1973 (Cth) is a declaratory legislation. The Act does not seek to regulate conduct or activities over the territorial sea adjacent to the states. Section 16 of the Act specifically enacts that a state law could operate in the territorial sea, as long as it was not inconsistent with the Act or any other Commonwealth law. This position is most clearly stated in the opinion of Mason J in the Seas and Submerged Lands case:

Constitutional Concepts

With the adoption of the Coastal Waters (State Powers) Act 1980 (Cth) and the Coastal Waters (State Title) Act 1980 (Cth), the rights of the states in the adjacent coastal waters and seabed have become secure.

Examiner's Comments 2-22 The answer correctly commences by defining extraterritoriality and referring to the Statute of Westminster 1931 (UK). Had the answer been to a question on the evolution of extraterritorial legislative powers of the Commonwealth, a review of the impact of the Colonial Laws Validity Act 1865 (UK) would have been in place. This answer is correctly focused on the implications of the Commonwealth legislation in question. The impact of the High Court's decision on the Commonwealth legislation is highlighted only with respect to the questions of Commonwealth and state extraterritoriality. The issue of the external affairs power of the Commonwealth is not discussed in detail. This is the correct approach for this question. In view of the Commonwealth's declaration of sovereignty over the territorial sea and continental shelf, questions of state extraterritoriality over the adjacent waters and seabed are adequately answered from three different perspectives. It is then concluded correctly that state rights in this regard are circumscribed only to the extent of inconsistency with a Commonwealth law.

~ ~ Keep in Mind The question relates to an examination of issues of Commonwealth and state extraterritorial legislative powers in the light of the relevant Commonwealth legislation. In the answer, it is important not to stray beyond this context and write about extraterritoriality in general. Only a reference to the Statute of Westminster 1931 (UK) is sufficient for the purposes of this answer. All aspects of the impact of this declaratory Commonwealth legislation on the states should be explored in the answer. It is not enough just to point to the specific provision in the Commonwealth legislation protecting state rights. The High Court's interpretation of state extraterritoriality in general, and the subsequent off-shore settlement, need to be highlighted.

[The Seas and Submerged Lands Act] cannot, and does not, deny to an Australian State the capacity which it has, in the exercise of its power to legislate for the peace, order and good government of the State, to apply its laws to the territorial sea, its bed and subsoil, but such laws will to the extent of any inconsistency with a valid Commonwealth law enacted under s 51(xxix) or any other head of power, be rendered inoperative by s 109. (at 475) -40-

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Chapter 3

The High Court and Separation of Judicial Power Key Issues 3-1 This chapter considers four major themes. First, the composition and status of the High Court of Australia are studied. Second, the concept of judicial power, and jurisdiction, are examined, and related to the powers and functions of the High Court. Third, the separation of the Commonwealth judicial power is examined in the context of the doctrine of separation of powers. In the last part of this chapter, the question of whether the High Court can give an advisory opinion is examined. In its 'pure form', the doctrine of separation of powers requires that governmental powers be distributed among the legislature, the executive and the judiciary. Although it has never really been put into practice in this form, the doctrine has evolved since ancient times as a theoretical basis for ensuring constitutionalism or limited government. The system of government established by the Commonwealth Constitution combines the American model of separation of powers with British-style responsible government. In practice, the doctrine of separation o powers does not prevent the Commonwealth Parliament from delegating subordinate lawmaking powers to the executive. Judicial power is, however, considered a separate category, and a strict distinction is drawn between the federal judicial power and other powers of the Commonwealth. The concept of the judicial power of the Commonwealth as vested in courts, mentioned in Ch III of the Constitution, was explained in the early decision of the High Court in Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330. Issues related to the principle of separation of the Commonwealth judicial power have been considered by the High Court in a number of cases, including: R v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254; R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1; Hilton v Wells (1985) 157 CLR 57; Re Tracy; Ex Parte Ryan (1989) 166 CLR 518; Harris v Caladine (1991) 172 CLR 84; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; Grollo v Palmer -43-

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(1995) 184 CLR 348; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1; Al-Kateb v Godwin (2004) 219 CLR 562; Lane v Morrison (2009) 239 CLR 230; Hoskins v Commonwealth (2011) 244 CLR 22; and Nicholas v Commonwealth (2011) 244 CLR 66.

a historical context, and an example is provided in connection with the removal from office of a High Court justice.

Before tackling the following questions, please check you are familiar with the following issues: ./

constitutional status of the High Court and its composition;

./

sources of judicial power and jurisdiction of the High Court;

./

doctrine of separation of powers;

./

principle of separation of Commonwealth judicial powers;

./

strict rule of separation of judicial and non-judicial powers of the Commonwealth;

./

exceptions to the rule of strict separation of judicial power of the Commonwealth; and

./

,;.f(

the High Court's jurisdiction and advisory opinions.

Question 1 Discuss the provisions of the Commonwealth Constitution relating to the establishment of the High Court, its powers and functions, and the appointment and security of tenure of High Court justices. Time allowed: 60 minutes

w +• Answer Plan The answer to this question involves identifying a number of provisions of the Commonwealth Constitution relating to the High Court and its judiciary. In the first part of the answer, the locus of the judicial power of the Commonwealth and the multiple jurisdictions of the High Court are explained. The exercise of federal jurisdiction by courts other than the High Court is included in the examination of the Commonwealth judicial power. The discussion on the final and conclusive nature of the High Court's appellate decisions includes a historical reference to the Privy Council. In the second part of the answer, the provisions in the Constitution that relate to appointment of High Court justices and their removal from office are examined. The tenure of High Court justices is noted in -44-

Answer (i) Introduction 3-2 The High Court is the highest court in the judicial hierarchy in Australia. It is the principal forum for the exercise of the judicial power of the Commonwealth. The Commonwealth Constitution grants both original and appellate jurisdictions to the High Court. Among the functions performed by the High Court, one of the most important is the interpretation and enforcement of the Constitution. High Court justices are appointed by the Governor-General in Council. The retirement age for justices of the High Court is 70 years . Once appointed, a justice of the High Court can only be dismissed by the Governor-General in Council upon an address by both houses of parliament in the same session on the ground of proved misbehaviour or incapacity. High Court's constitutional status, powers and jurisdiction 3-3 Section 71 of the Commonwealth Constitution provides that the judicial power of the Commonwealth is vested in the High Court. It is provided by the same section that the federal judicial power can also be exercised by such other federal courts as the Commonwealth Parliament creates, and in other courts as the parliament invests with federal jurisdiction. Other federal courts include the Federal Court of Australia and the Family Court of Australia. The Commonwealth Parliament can also invest state and territory courts with federal jurisdiction. The reason why state and territory courts are enabled to exercise federal jurisdiction is because the Commonwealth Constitution does not provide for a separate system of general federal courts such as the Circuit Court of Appeal and the Federal District Courts in the United States. It should be noted that, although the Constitution permits these other courts to exercise federal jurisdiction that should be exclusively the High Court's, any matter pending in any of these courts can be removed to the High Court at any stage. This removal of causes is provided by s 40 of the Judiciary Act 1903 (Cth). As the primary body for the exercise of the federal judicial power, the High Court has both original and appellate jurisdictions. Bys 75 of the Commonwealth Constitution, the original jurisdiction of the High Court extends to all matters: (ii)

(i) Arising under any treaty; (ii) Affecting consuls or other representatives of other countries; (iii) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; -45-

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(iv) Between States, or between residents of different States, or between a State and a resident of another State;

possibility of direct appeals to the Privy Council from de~isions of ~tate Supreme Courts still existed even after the 1975 Act, with potentially anomalous consequences, that possibility was finally removed by the Australia Act 1986 (Cth) and (UK).

(v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth ...

Additional original jurisdiction of the High Court can be derived from s 76 of the Commonwealth Constitution. These aspects of the High Court's jurisdiction may be conferred by the Commonwealth Parliament, and include matters: • • • •

arising under the Constitution, or involving its interpretation; arising under any laws made by the parliament; of admiralty and maritime jurisdiction; and relating to the same subject-matter claimed under the laws of different states.

The High Court's appellate jurisdiction is entrenched by s 73 of the Commonwealth Constitution. It extends to: • appeals from a single justice of the High Court to a larger bench of the High Court in matters within the High Court's original jurisdiction; • appeals from any federal court or court exercising federal jurisdiction; • appeals from the state Supreme Courts or any other state courts from which appeals could have been taken to the Privy Council; and • appeals from the Inter-State Commission on questions of law. The High Court's judgments in all these appeals are 'final and conclusive'. Originally, s 74 of the Commonwealth Constitution was relied upon to take appeals from decisions of the High Court to the Privy Council. Appeals to the Privy Council, however, could only be on 'inter se' matters, that is - matters between the Commonwealth and the states or between the states themselves. Further, a certificate would have to be taken from the High Court for a Privy Council appeal. The possibility of appeals from High Court decisions was therefore restricted from the beginning. This possibility has almost entirely been eliminated by legislation based on the provisions of s 74 that 'Parliament may make laws limiting the matters in which ... leave [to appeal] may be asked'. The Privy Council (Limitation of Appeals) Act 1968 (Cth) provided that leave to appeal from the High Court to the Privy Council could only be sought where the appeal concerned a purely state matter, arose from a state Supreme Court decision, and the High Court itself had heard the appeal. Later, the Privy Council (Appeals from the High Court) Act 1975 (Cth) provided that leave to appeal to the Privy Council would not be given, unless the decision of the High Court was given in a proceeding that was commenced in a court before the Act came into force. These two Acts have had the effect of abolishing Privy Council appeals. Although the -46-

(iii)

Appointment, tenure and removal from office of High Court justices

3-4 High Court justices are appointed by the Governor-General in Council. Once appointed, justices of the High Court can be dismissed by the Governor-General in Council only upon an address by both houses of parliament in the same session on the ground of pro~ed misbe~avi~mr or incapacity. Until 1977, the provision for tenure of High Court 1usuces in s 72 of the Commonwealth Constitution was interpreted to mean 'life tenure' (for example, in Waterside Workers' Federation v JW Alexander Ltd (1918) 25 CLR 434). By constitutional amendment in 1977, High Court justices now retire at the age of 70 years. There are no provisions in the Commonwealth Constitution specifying qualifications for appointment as a High Court justice, nor does the Constitution incorporate provisions on the selection process and conditions of office of High Court justices. Some provisions relating to these matters can be found in the High Court of Australia Act 1979 (Cth) and the Judiciary Act 1903 (Cth). Section 6 of the High Court of Australia Act, for example, is in these terms:

Where there is a vacancy in an office of Justice, the Attorney-General shall, before an appointment is made to the vacant office, consult with the Attorneys-General of the States in relation to that appointment.

By s 71 of the Constitution, the number of justices comprising the High Court must be at least three, but the same section empowers the Commonwealth Parliament to prescribe otherwise. Since the coming into operation of the Constitution, legislation has prescribed the number of High Court justices to be seven. The provision for removal from office of a High Court justice in s 72(ii) of the Commonwealth Constitution on the ground of 'proved misbehaviour or incapacity' was invoked only once during the life of the Constitution. That was done in 1984-86 when a Senate Committee and later a Parliamentary Commission of Inquiry were asked to investigate allegations of 'misbehaviour' on the part of Justice Lionel Murphy. The first of these committees did not find any 'misbehaviour' on the part of Justice Murphy, while the second committee was wound up as a result of Justice Murphy's death. (iv)

Conclusion

3-5 By virtue of its original and appellate jurisdictions derived from the Commonwealth Constitution, and later legislative development in respect of other powers, the High Court is a national court, a federal court and -47-

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the final court of appeal. In the exercise of its multiple jurisdictions, the High Court interprets and enforces the Commonwealth Constitution, decides conflicts between the Commonwealth and the states, and between the states themselves, and its judgments are final and conclusive. Once appointed, a High Court justice retires at the age of 70 years. A justice of the High Court can only be removed from office on proved misbehaviour or incapacity. The tenure of High Court justices and the procedure for removal of a justice from office are important safeguards for ensuring the independence of the High Court judiciary.

p

Examiner's Comments The answer properly identifies the constitutional provisions relating to the High Court's judicial power and its diverse jurisdictions. The status of the High Court as a constitutional court is adequately emphasised. The brief discussion on the Privy Council has helped to highlight the importance of the High Court as the final court. Although the High Court is the primary body for the exercise of the federal judicial power, the vesting of other courts with federal jurisdiction is correctly incorporated in the answer. The various aspects of the original and appellate jurisdictions of the High Court are properly discussed with reference to the relevant constitutional provisions. 3-6

The discussion on the tenure of High Court justices in the context of constitutional practice and change is sound. The inclusion of an example in relation to the provision for the removal from office of a High Court justice has added weight to the answer. f(;r

~ Keep in Mind This question has to be answered in two broad parts. First, it involves an examination of the judicial power of the High Court and its various jurisdictions. Second, the appointment and tenure of High Court justices is to be discussed. In answering the first part, it should be explained that, although the federal judicial power is primarily exercised by the High Court, other courts invested with federal jurisdiction also exercise this power. In the answer, it is also important to stress the role of the High Court as a national and federal court. It is also equally important to highlight the finality of the High Court's judgments, preferably in the context of the Privy Council's historical role.

The High Court and Separation of Judicial Power

'' Question 2 Explain the concept of Commonwealth judicial power that is exercisable

by courts specified in Ch Ill of the Constitution. Discuss how the High Court has dealt with issues of separation of the Commonwealth judicial power. Time allowed: 60 minutes

f·

Answer Plan Two principal issues need to be discussed in the answer. The first relates to the concept of judicial power and the principle for separation of the Commonwealth judicial power. Second, the techniques of the High Court in distinguishing between judicial and non-judicial powers need to be examined. In the first part of the answer, the nature and concept of judicial power, and the principle of separation of power, are explained in light of judicial observations in this regard. The discussion of the High Court decisions on the principle of separation of the Commonwealth judicial power is based on different aspects of the application of this principle. In the latter parts of the answer, the distinction between the powers and functions exercised by courts and non-judicial tribunals is highlighted. The strict separation of judicial and non-judicial powers and its practical applicability are examined. The qualifications and exceptions to this rule of strict separation are discussed in the light of leading cases. It is concluded that the judicial techniques in this regard have not been very consistent.

...

Answer (i)

Introduction

3-7 The High Court has not laid down a comprehensive definition of judicial power of the Commonwealth that can be exercised only by courts specified in Ch III of the Constitution. Judicial power can only be defined by reference to what courts do, not by reference to the classification of their functions.

In the second part of the answer, it is important to point out the preand post-1977 positions relating to the tenure of office of the High Court justices. The prescribed manner for the removal of a High Court justice should be explained clearly in light of the relevant constitutional prov1s1ons.

In principle, the High Court has consistently upheld that the judicial power of the Commonwealth can only be exercised by Ch III courts, not by any non-judicial tribunal. A strict separation of judicial and nonjudicial functions was upheld in R v Kirby: Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 (Boilermakers' case). Application of this strict separation principle has not been found to be practicable in all situations. In light of this, qualifications and exceptions to this principle

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in the Boilermakers' case were later developed in a number of High Court decisions.

separation of judicial and non-judicial powers upheld by the High Court in R v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254. Later decisions qualified this rule by devising some exceptions to the strict separation rule. For example, the exercise by a specialist tribunal of some aspects of judicial power was held not to infringe the separation of judicial power rule. Likewise, exercise of an administrative function by a member of a court has been permitted under the persona designata rule.

(ii)

Concept of judicial power and the principle of separation of Commonwealth judicial power 3-8 The judicial power of the Commonwealth is vested by and exercised under Ch III (ss 71-80) of the Commonwealth Constitution. Under the provisions of Ch III, the judicial power of the Commonwealth is reposed in the High Court and such other courts as are invested with federal jurisdiction (Ch III courts). In an early case, Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, Griffith CJ highlighted the general nature of judicial power in the following way: I am of the opinion that the words 'judicial power' as used in sec 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to make a binding and authoritative decision (whether subject to appeal or not) is called upon to take action. (at 357)

In later cases, the High Court has acknowledged the difficulties of a comprehensive definition of the concept of judicial power. In Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, for example, Deane, Dawson, Gaudron and McHugh JJ made the following observations in their joint judgment: UJudicial power is the power exercised by courts and can only be defined by reference to what courts do and the way they do it, rather than by recourse to any other classification of functions. But that would be to place reliance upon the elements of history and policy, which when they are legitimate considerations, cannot be conclusive. (at 267)

Because of the imprecise explanation of the nature and attributes of the judicial power, controversies relating to the issues of the separation of judicial power have been decided by the High Court in light of different principles that were considered applicable to the specific circumstances of the cases. Despite the flexibility in applying the principle in light of different circumstances, the High Court has quite firmly asserted that the parliament could not interfere with the judicial process by attempting to direct that judicial power should be exercised in some specific manner. One leading example in this regard is the High Court's decision in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1.

Commonwealth judicial powel/ Ch Ill courts and non-judicial tribunals 3-9 In New South Wales v Commonwealth (1915) 20 CLR 54 (Wheat case), the Interstate Commission Act 1912 (Cth) authorised the Interstate Commission to exercise both judicial and non-judicial powers. Under the provisions of Pt V of the Act, the commission had the same powers, rights and privileges as were vested in the High Court. In a challenge to the validity of these provisions of the Act, the majority of the High Court (Griffith CJ, Isaacs, Powers and Rich JJ) ruled that the Interstate Commission could not be invested with 'judicial power'. In this regard, Griffith CJ observed: (iii)

Section 71 of the Constitution provides that judicial power of the Commonwealth shall be vested in the High Court and in such other federal Courts as the Parliament creates and in such other Courts as it invests with federal jurisdiction ... In my judgment the provisions of s 71 are complete and exclusive, and there cannot be a third class of Courts which are neither federal Courts nor State Courts invested with federal jurisdiction. (at 61-2)

This decision in the Wheat case was followed in Waterside Workers' Federation v JW Alexander Ltd (1918) 25 CLR 434. Here it was ruled that, because of its constitution, the Commonwealth Court of Conciliation and Arbitration could not be deemed a Ch III court. In Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, amendments to the Racial Discrimination Act 1975 (Cth) provided that a 'determination' by the Human Rights and Equal Opportunity Commission (HREOC) was to be registered at the Federal Court Registry. After the expiration of a fixed period during which a 'review' of the 'determination' might or might not be taken up before the High Court, the determination took effect 'as if it was an order of the Federal Court'. The High Court found this registration and enforcement mechanism of a HREOC 'determination' to be invalid since it permitted the exercise of 'judicial power' by a non-judicial body.

(iv)

In the course of decision-making on issues of separation of the Commonwealth judicial power, the High Court has relied upon different tests and formulations. These tests have not always been consistently applied, and exceptions to previous formulations were subsequently made. Difficulties, for example, had arisen in the context of a strict

Strict separation of judicial and non-judicial powers: Boilermakers' case 3-10 In R v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254 (Boilermakers' case), the Commonwealth Conciliation and Arbitration Act 1926 (Cth) authorised the Commonwealth Court of Conciliation and Arbitration (CCCA) to exercise the powers to make

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industrial awards and to enforce those awards. Before the High Court, it was contended that the vesting of both judicial and non-judicial (arbitral) functions in the CCCA was impermissible under the Commonwealth Constitution. The majority of the High Court decided that the CCCA could not validly exercise the judicial power of the Commonwealth. According to Dixon CJ, McTiernan, Fullagar and Kitto JJ:

In Quinn, the power of the Registrar of Trade Marks to remove a trade mark from the register was not considered to be an attribute of the judicial power. Delegation of some part of the judicial powers and functions of the Family Court to its registrars was held valid in Harris v Caladine. In Luton v Lessels (2002) 210 CLR 333, the powers of a Child Support Registrar under the Child Support (Assessment Act) 1989 (Cth) were considered to be non-judicial.

... Ch III [of the Commonwealth Constitution] does not allow the exercise of a jurisdiction which of its very nature belongs to the judicial power of the Commonwealth by a body established for purposes foreign to the judicial power, notwithstanding that it is organized as a court and in a manner which might otherwise satisfy ss 71 and 72, and that Ch III does not allow a combination with judicial power of functions which are not ancillary or incidental to its exercise but are foreign to it. (at 296)

There have been practical problems in abiding by this strict rule of the separation of the Commonwealth judicial power. To overcome these problems, the High Court has had to introduce a significant degree of flexibility in the application of this rule by recognising a range of qualifications and exceptions.

Separation of judicial power principle in aftermath of Boilermakers' case 3-11 In Hilton v Wells (1985) 157 CLR 57, for example, the question (v)

was whether a judge of the Federal Court of Australia could issue a warrant, under s 20 of the Telecommunication (Interception) Act 1979 (Cth), to intercept a telephone conversation. It was argued that the issuing of a warrant involved the exercise of non-judicial power by the Federal Court, which was impermissible according to the decision in the Boilermakers' case. The majority of the High Court, however, justified the exercise of this non-judicial function by a Federal Court judge by characterising the role of the judge as being that of a persona designata. The power exercised was therefore valid and consistent with the decision in the Boilermakers' case. In Grollo v Palmer (1995) 184 CLR 348, the High Court reached a similar conclusion as Hilton v Wells. In Grollo, however, the High Court ruled that the persona designata exception would not apply when a function conferred on a judge was incompatible with his or her judicial function ('incompatibility principle'). In Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, the 'incompatible principle' was further extended.

In Re Tracy, it was decided that the judicial powers of military tribunals were outside Ch III of the Constitution. However, in Lane v Morrison [2009] HCA 29, it has been ruled that the jurisdiction of the newly established Australian Military Court by the Defence Legislation Amendment Act 2006 (Cth) breached the principle of separation of judicial power. The underlying principles of the decision in Lane was followed in Hoskins v Commonwealth (2011) 244 CLR 22 and Nicholas v Commonwealth (2011) 244 CLR 66.

(vi)

Conclusion

The judicial power of the Commonwealth, vested by and exercised under Ch III (ss 71-80) of the Commonwealth Constitution, cannot be defined precisely. Controversies relating to the issues of the separation of judicial power have been decided by the High Court in light of different principles that were considered applicable to the specific circumstances of the cases. 3-12

In the Boilermakers' case, the High Court laid down the rule of strict separation of judicial and non-judicial powers. There have been practical problems in applying this strict rule. To overcome these problems, the High Court has had to introduce a significant degree of flexibility in the application of this rule by recognising a range of qualifications and exceptions. The technique of the High Court in introducing departures from the rigidity of the separation of judicial power rule has, however, not been very consistent. A satisfactory guide in distinguishing between the nature and scope of judicial and non-judicial powers has not therefore evolved from the decisions of the High Court in this area.

Examiner's Comments 3-13 The two decisions of the High Court cited with reference to the nature and scope of the judicial power of the Commonwealth are appropriately chosen. The relevant observations of the justices in these cases that are quoted in the answer adequately highlight the essential features of the judicial power and the reasons for a lack of precise definition in this regard.

More generally, attempts to overcome the rigidity of the Boilermakers' rule have resulted in laying down exceptions to its application. Included in some of the High Court decisions which upheld exceptions and qualifications to the Boilermakers' rule are: R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1; Re Tracy; Ex Parte Ryan (1989) 166 CLR 518; and Harris v Caladine (1991) 172 CLR 84.

The discussion on the principle of separation of the Commonwealth judicial power is appropriately structured in light of the different issues that have arisen in this regard. The exceptions and qualifications to the

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r(;f

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The High Court and Separation of Judicial Power

strict rule of separation of judicial power are adequately discussed in light of the relevant case law. The brief discussion of the cases is justified in view of the expected length of the answer. The statement in the question has been correctly located, and the comments in the introduction to the answer are appropriate. The inclusion of a section on the nature and scope of the separation of the judicial power of the Commonwealth has helped to put the main discussion in the answer in proper perspective.

The unique circumstances of the detainee in this case and the relevant provisions of the migration statute are highlighted before a discussion of the decision itself. The majority and minority opinions in this decision are examined with reference to the principal questions arising in punitive and non-punitive detention and the attraction of Ch III of the Constitution in the differing instances of detention.

(i)

~ Keep in Mind This is a conceptual question and should be answered accordingly. The applicable cases required to explain the concepts of judicial power and the principle of separation of judicial and non-judicial powers should be appropriately identified. In this regard, it is also important to quote the relevant observations of the justices in these cases. The principle of separation of the Commonwealth judicial power has been explored in a range of circumstances. These must be discussed in a structured manner. It is necessary to clearly explain the consequences of a strict rule of separation of judicial and non-judicial powers. The techniques of the High Court in upholding the exceptions and qualifications of this strict rule should be discussed in the context of the relevant cases. Since there are quite a large number of cases in this regard, it is important that the most appropriate ones should be chosen for discussion.

,;.ft Question 3 Examine the views of the majority and minority justices in Al-Kateb v Godwin (2004) 219 CLR 562 on issues of the legality of immigration detention of an alien and the relevance of the principles relating to the separation of the Commonwealth judicial power. Time allowed: 60 minutes

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Answer

Answer Plan Answer to this question requires an examination of the issues relating to detention of an alien under immigration law in light of the High Court's decision in Al-Kateb v Godwin. The nature of immigration detention and its difference to punitive and other kinds of detention are explored in the beginning of the answer. The consequences of the different kinds of detention in terms of the principles in Ch III of the Constitution are also examined in this part of the answer. This is done in light of earlier decisions of the High Court. -54-

Introduction

3-14 The High Court decision in Al-Kateb v Godwin (2004) 219 CLR 562 was principally concerned with the legality of indefinite detention of an unlawful non-citizen under the relevant provisions of the Migration Act 1958 (Cth). In this case the High Court had to determine whether such an instance of detention was 'punitive' or 'non-punitive'. If immigration detention was not punitive in nature, the question that the High Court had to determine was whether judicial power under Ch III of the Commonwealth Constitution was attracted. In Al-Kateb v Godwin, a protection visa was denied to the applicant, but all efforts to remove him from Australia, in accordance with the relevant provisions of the Migration Act, failed. In these circumstances it was contended by the applicant that he was being 'unlawfully detained' and that an order be made for his release. The majority justices of the High Court decided that the applicant's detention was not punitive; it was protective. For the majority, the provisions of the Migration Act authorised protective detention even if an immigration detainee had no prospect of being removed from Australia.

(ii)

Punitive and non-punitive detention

3-15 Issues of punitive detention and other instanc~s of involuntary detention were discussed in a number of cases prior to the High Court's decision in Al-Kateb v Godwin. Included among these cases are Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, Kahle v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 and Kruger v Commonwealth (1997) 190 CLR 1 (Stolen Generations case). In Chu Kheng Lim, the Migration Act 1958 (Cth) was amended to deal with the influx of asylum seekers to Australia by boat. The newly introduced provisions authorised the compulsory detention of certain 'designated persons' - persons who had illegally arrived in Australia by boat during a specified period of time. The validity of these new provisions was challenged as infringing the rule of separation of the Commonwealth judicial power under the Constitution. It was contended that the power of detention under these provisions was essentially punitive in character and could only be exercised by a court exercising judicial function in accordance with Ch III of the Constitution.

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The High Court rejected these arguments. According to Brennan, JJ, with some restrictions, involuntary detention of a citizen for criminal guilt was an instance of the exercise of the judicial power of the Commonwealth:

to remove him to one of several countries in the Middle East failed,

De~i:ie and Dawson

[T]~e. inv_o luntary detention of a citizen in custody by the State is penal or pumt1ve m character and, under our system of government, exists only as a~ 1~c1dent _of the exclusively judicial function of adjudging and punishing cnmmal gmlt. (at 27)

Th_is constitutional immunity attaching to citizens was not, however, applicable to 'aliens'. In this regard, it was observed: In t~is Court, it has been constitutionally recognized that the power of the Parliament to make laws with respect to aliens includes not only the power to ma~e laws providing for the expulsion or deportation of aliens by the Executive but extends to authorizing the Executive to restrain an alien in custody to the extent necessary to make the deportation effective. (at 30-1)

In Kruger v Commonwealth (Stolen Generations case) s 16 of the Aboriginals Ordinance 1918 (NT) empowered the Chief Protector in the Northern Territory to compulsorily detain any Aboriginal person or 'half-caste'. Although there were differing views on some issues raised in t~e case, all justices found that the ostensible purpose in this regard was directed to the welfare of Aboriginals. Detention under the provisions of s 16 of the Ordinance was 'protective', not punitive; the requirements of Ch III of the Constitution were not attracted.

These and other cases decided by the High Court did not resolve all the issues relating to punitive and non-punitive detention and the application of the separation of judicial power principles in Ch III of the Constitution. In Al-Kateb v Godwin, the non-applicability to aliens of protection against detention generally available to citizens was examined in a situation where detention was potentially for an indefinite period.

(iii)

Immigration detention and issues in Al-Kateb v Godwin

3-16 Al-Kateb was a Palestinian who was born and had lived in Kuwait. But because of non-grant of permanent residency or citizenship u~d~r Kuwaiti l_aw to Palestinians, Al-Kateb was a 'stateless' person withm the meanmg of the Convention relating to the Status of Stateless Persons 1954. He arrived in Australia in December 2000 by boat without any passport or Australian visa, and was consequently detained under the provisions_ of s 189 of the Migration Act 1958 (Cth). In January 2001, ~e,appli_ed ~or a protection visa under the Migration Act, citing Australia s obligat10ns under the Convention Relating to the Status of Refugees 1951. This application was refused, and later appeals from this decision _failed_. In these circumstances, ss 196 and 198 of the Migration Act reqmred his removal from Australia as soon as reasonably practicable.

and consequently Al-Kateb's detention was continued, potentially for an indefinite period. In these circumstances, Al-Kateb applied to the Federal Court for a 'declaration of unlawful detention', and an 'order' for his release. A single judge of the Federal Court dismissed Al-Kateb's application on the grounds that all reasonable steps had been taken to remove him, but that his removal from Australia was not reasonably practicable at that time or in the reasonably foreseeable future. Al-Kateb then appealed to the High Court. In the High Court appeal in Al-Kateb v Godwin, the majority justices dismissed Al-Kateb's application for a finding of 'unlawful detention', and an order for release.

Legislative intention and indefinite detention of an alien 3-17 The majority justices in Al-Kateb v Godwin (McHugh, Hayne, (iv)

Callinan and Haydon JJ) ruled that indefinite detention of an alien was permissible under the relevant provisions of the Migration Act 1958 (Cth), although these provisions did not expressly authorise indefinite detention. In the opinion of McHugh J: The words of ss 196 and 198 are unambiguous. They require the indefinite detention of Mr Al-Kateb, notwithstanding that it is unlikely that any country in the foreseeable future will give him entry to that country. The words of the three sections [ss 189, 196 and 198] are too clear to read them as subject to a purposive limitation of an intention not to affect fundamental rights. (at 581)

The majority ruling meant that Al-Ka teb's detention, although potentially for an indefinite period, was authorised by the Migration Act. Contrary to this line of reasoning of the majority, the minority justices (Gleeson CJ, Gummow and Kirby JJ) concluded that the relevant provisions of the Migration Act should not be read as authorising indefinite detention. Detention in the circumstances of Al-Kateb was impermissible and therefore unlawful. With regard to the application of the legislative provisions in the circumstances of Al-Kateb, Gleeson CJ observed: Where what is involved is the interpretation of legislation said to confer upon the executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts. In exercising their judicial fuuction, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights and freedoms in question, and has consciously decided upon abrogation or curtailment. (at 577)

(v)

Exercise of judicial power under Ch Ill of the Constitution and non-punitive immigration detention

Upon denial of a protection visa, Al-Kateb voluntarily wanted to leave Australia, and asked the minister to remove him from Australia either to Kuwait or Gaza in Palestine. The efforts of the Australian Government

3-18 In ruling that Al-Kateb's detention was lawful under the Migration Act, the majority justices considered whether the Act thus

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construed infringed the separation of judicial power under Ch III of the Constitution. In this regard, all the justices held that immigration detention was non-punitive in character, a form of protective detention that did not attract the provisions of Ch III of the Constitution. Their conclusions in this regard were also based on the scope of the aliens power and the immigration power ins 51(xix) and (xxvii) of the Constitution. Of the majority, McHugh J observed: [A] law authorising detention will not be characterised as imposing punishment if its object is purely protective. Ex hypothesi, a law whose object is purely protective will not have a punitive purpose. A law requiring detention of the alien takes its character from the purpose of the detention. As long as the purpose of the detention is to make the alien available for deportation or to prevent an alien from entering Australia or the Australian community, the detention is non-punitive. (at 584)

In his judgment, Hayne J also distinguished between different kinds of detention and decided that, despite the prospect of indefinite detention of an alien, such detention cannot be characterised as punitive. Judicial power under Ch III will therefore not be attracted: First, immigration detention is not detention for an offence. There is now no offence of entering or being found within Australia as a prohibited immigrant ... Secondly, where a non-citizen has entered or attempted to enter Australia without a visa, detention of that person excludes that person from the community which he or she sought to enter. Only in the most general sense would it be said that preventing a non-citizen making landfall in Australia is punitive. Segregating those who make landfall, without permission to do so, is not readily seen as bearing a substantially different character. Yet the argument alleging invalidity would suggest that deprivation of freedom will after a time or in some circumstances become punitive.

The High Court and Separation of Judicial Power

(vi)

Conclusion

In Al-Kateb v Godwin (2004) 219 CLR 562, the indefinite detention of an unlawful non-citizen under the relevant provisions of the Migration Act 1958 (Cth) was found lawful. By recourse to the principles of statutory interpretation, the m~jority justic.es ruled t~at the provisions of the Migration Act authorised protecti~e detent10n even if an immigration detainee had no prospect of bemg removed from Australia. In their rulings, the majority justices distinguished between detention that was punitive and other kinds of involuntary detention. The .for?1er attracted the provisions on judicial power in Ch III of the Constitution. Immigration detention of aliens was non-pm.1iti:e. and thu~ the requirements of the separation of Commonwealth J~dicial pow~r did n.ot apply, even if the detention of an alien was potentially for an mdefimte period. The findings of the majority in Al-Kateb v Godwin were endorsed in other cases of immigration detention. These include the decision in Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji (2004) 219 CLR 664, decided on the same day as Al-Kateb v Godwin, and in Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1. 3-19

Examiner's Comments

[The] coincidence of punitive and non-punitive purposes is not uncommon ... [T]his Court recognised that among the purposes which inform a criminal sentence are not only the punitive purposes of deterrence, retribution and reform, but also what may be seen as the non-punitive purpose of protection of society. Once it is accepted that many forms of detention involve some non-punitive purpose, it follows that a punitive/non-punitive distinction cannot be the basis upon which the Ch III limitations respecting administrative detention are enlivened. (at 612)

3-20 The circumstances in Al-Kateb v Godwin were quite unique. In this regard, the answer rightly summarises the relevant facts and the applicable statutory provisions. In Al-Kateb v Godwin, the issues for determination related to the use of immigration detention powers and the applicability of the rule of separation of Commonwealth judicial power under the provisions of Ch III of the Constitu_tion. The answer adequately identifies these issues. The High Court had addressed issues on immigration and other k~nds of involuntary detention in some earlier cases. Some of the findmgs in the earlier cases were relied upon by the majority and minority justices in Al-Kateb v Godwin. In this regard, the answer inclu.des a brief discussion of those decisions. This has enhanced the quality of the answer. The discussion of some of the majority and minority opinions in the answer has been structured under different headings. The structure is appropriate and the divergent views on the rele:ant i~sues in t~e c~se are easier to follow in light of this structure. The discussion of ma1onty and minority opinions is one reason for the longer length of the .an~wer. ~or the purposes of decreasing the word count of the answer, this discussion can be shortened. The discussion on the earlier decisions can also be edited for the same reason.

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Only if it is said that there is an immunity from detention does it become right to equate detention with punishment that can validly be exacted only in exercise of judicial power. Once it is accepted ... that there can be detention of unlawful non-citizens for some purposes, the argument from the existence of immunity must accept that the immunity is not unqualified ... Neither the bare fact of detention not the effluxion of some predetermined period of time in detention is said to suffice to engage Ch III. (at 650-1)

In disagreeing with these views of the majority justices, Gummow J of the minority ruled that the punitive/non-punitive distinction could not be the basis of examining the applicability of the rule of separation of judicial power under Ch III of the Constitution. Referring to precedents, Gummow J observed:

The High Court and Separation of Judicial Power

LNQA Constitutional Law

fir~ Keep in Mind

Answer

For purposes of the answer, the extraordinary circumstances of this case are important. The facts should be included in a separate brief section. A clear and succinct explanation of the relevant provisions of the applicable statute is also important. The examination of the majority and minority opinions in this case would not be clear in the absence of a discussion in this regard. Since the ruling in this case relied on some earlier decisions of the High Court, references to those cases are essential. This is better done in the beginning of the answer. The issues relating to different kinds of detention and the relevance of the constitutional rule on separation of judicial power should be clearly explained, preferably in the beginning of the answer. The decisions of the majority and minority justices in this case focused on different rules of statutory interpretation. The separate viewpoints should be remembered in highlighting the divergent approaches of the majority and minority opinions in this case. The structure of the answer should reflect the principal questions that arose in this case.

.;..ff Question 4

The basis of this finding in the Advisory Opinions case was that the provisions of ss 75 and 76 of the Constitution require the High Court ~o give judgments only with respect to the subject-matters that_are set ou~ m these sections. Later decisions of the High Court have consistently relied on the ruling and declined to give an opinion in a proceeding that could not be identified as a 'matter' within the meaning of ss 75 and 76 of the Constitution. (ii)

Can the High Court, in the exercise of its powers and functions, give advisory opinions? Discuss this question with reference to the High Court's decision in Re Judiciary and Navigation Acts (1921) 29 CLR 257 (Advisory Opinions case) and its role as a precedent in later cases.

Time allowed: 60 minutes

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(i) Introduction 3-21 The Commonwealth Constitution entrenches a diverse range of jurisdictions exercisable by the High Court. Th~se constitutional provisions also authorise the Commonw~a~th Parliament to make provisions in this regard. In 1910, the Judiciary Act 1903 (Cth) was amended to enable the Governor-General to ask the High Court for advisory opinions on constitutional questions. In the Advisory Opinions case, the High Court decided that the rendering of advisory opinions was not within the scope of the High Court's constitutional powers.

Answer Plan The answer to this question involves an examination of the scope of the jurisdiction of the High Court, and relating this principally to the decision in the Advisory Opinions case. It is also necessary to examine the role of this decision as a precedent in later decisions of the High Court. This is done first by studying the various aspects of the constitutional jurisdiction of the High Court with special emphasis on the terminology used in the Constitution. An analysis of the provisions of the legislation that sought to confer a jurisdiction of the High Court to give advisory opinions is then taken up in the answer. Having made the relevant conclusion about the nature and breadth of the High Court's constitutional jurisdiction, and the applicable provisions of the impugned legislation, the answer looks in detail at the reasoning of the High Court in the Advisory Opinions case. The relevance of the holdings in this decision in later cases of the High Court is then noted. It is concluded that the scope of the High Court's powers entrenched in the Constitution does not include a jurisdiction to render advisory opinions. -60-

Original jurisdiction of the High Court

3-22 The original jurisdiction of the High Court is entrenched in ss 75 and 76 of the Commonwealth Constitution. Section 75 specifies several 'matters' in which the High Court would have original jurisdiction. These matters include where the Commonwealth is a party, where writs are sought against Commonwealth officers, and inter-state disputes. Under s 75, the original jurisdiction of the High Court also extends to 'matters' arising under any treaty and those affecting foreign diplomats. Additional original jurisdiction is conferred on the High Court by s 76 of the Constitution. Jurisdiction in these additional matters, according to s 76, may be conferred by the Commonwealth Parliament. Among those areas in which additional jurisdiction may be conferred on the High Court by an Act of Parliament are two very important subject matters. These relate to matters 'arising under this Constitution, or involving its interpretation', and in matters arising 'under any laws made by the Parliament'. In respect of the first, the Judiciary Act 1903 (Cth) has, bys 30(a), conferred original jurisdiction on the High Court. (iii)

Part XII of the Judiciary Act 1903 (Cth)

3-23 In 1910, the Judiciary Act 1903 (Cth) was amended to include Pt XII titled 'Reference of Constitutional Questions'. Section 88 in Pt XII 'conferred jurisdiction on the High Court to hear and determine questions relating to the validity of any Act of Parliament. It provided: Whenever the Governor-General refers to the High Court for hearing and determination any question of law as to the validity of any Act or enactment of the Parliament the High Court shall have jurisdiction to hear and determine the matter. -61-

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The High Court and Separation of Judicial Power

Section 89 provided that, on any such reference, the matter would be heard by a Full Court. Section 90 required notice of the reference to be given to state Attorneys-General. Under s 93 it was provided that:

the requisite jurisdiction, even in those administrative proceedings with reference to the custody, residence and management of the affairs of infants or lunatics. But we can find nothing in Ch III of the Constitution to lend colour to the view that Parliament can confer power or jurisdiction upon the High Court to determine abstract questions of law without the right or duty of any body or person being involved. (at 266)

The determination of the Court upon the matter shall be final and conclusive and not subject to any appeal.

The provisions of Pt XII of the Judiciary Act 1903 (Cth) were first invoked in 1920 in connection with certain amendments of the Navigation Act 1912 (Cth). These amendments were to come in force on a date to be proclaimed. Before proclamation, the GovernorGeneral referred to the High Court the question of whether the newly introduced provisions of the Navigation Act were valid. Among the parties in the reference proceedings were the Attorneys-General of the Commonwealth, Victoria and Western Australia, and ship owners. The Victorian Attorney-General objected to the High Court's jurisdiction in matters like this. The decision of the High Court on this matter is reported as In re judiciary and Navigation Acts (1921) 29 CLR 257 (Advisory Opinions case).

(iv)

High Court's decision in the Advisory Opinions case

3-24 In the Advisory Opinions case, the fundamental question before the High Court was whether reference proceedings were contemplated among the 'matters' referred to in ss 75 and 76 of the Commonwealth Constitution. To answer this question, the majority of the High Court undertook an examination of ss 75, 76 and 77 of the Constitution, and observed:

Section 75 confers original jurisdiction on the High Court in certain matters, and s 76 enables Parliament to confer original jurisdiction on it in other matters. Section 77 enables Parliament to define the jurisdiction of any other Federal Court with respect to any of the matters mentioned in ss 75 and 76, to invest any Court of the States with Federal jurisdiction in respect of any such matters, and to define the extent to which the jurisdiction of any Federal Court shall be exclusive of that which belongs to or is invested in the Courts of the States. This express statement of the matters in respect of which and the Courts by which the judicial power of the Commonwealth may be exercised is, we think, clearly intended as a delimitation of the whole of the original jurisdiction which may be exercised under the judicial power of the Commonwealth, and as a necessary exclusion of any other exercise of original jurisdiction. (at 264-5)

The majority of the High Court then pointed out that the expression 'matter' in ss 75 and 76 and other provisions of the Constitution meant that in legal proceedings there must be a subject-matter for determination, and some immediate right, duty or liability to be ascertained by the court:

In view of these findings, the conclusion of the majority in the Advisory Opinions case was that the reference proceedings did not involve a 'matter' within the meaning of s 75 ors 76 of the Constitution. There was, according to the majority, no immediate right, duty or liability of any body or person to be determined by the court in the reference proceedings.

(v)

Advisory Opinions case as precedent in later High Court decisions

3-25 The ruling in the Advisory Opinions case, that the High Court's jurisdiction extended only to 'matters' specified in ss 73-77, was consistently upheld in later cases. These decisions include: Commonwealth v Queensland (1975) 134 CLR 298 (Queen of Queensland case); Mellifont v Attorney-General (Queensland) (1991) 173 CL 289; Croome v Tasmania (1997) 191CLR119; and Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372. Of these, the High Court decision in the last mentioned case is discussed here. In Re McBain; Ex parte Australian Catholic Bishops Conference, women undergoing IVF treatment under the Infertility Treatment Act 1995 (Vic) were required to be married or in a de facto relationship. Dr McBain, whose services were sought by a woman, who was neither married nor in a de facto relationship, applied to the Federal Court for a declaration that the Victorian law was inconsistent under s 109 of the Constitution with the Sex Discrimination Act 1984 (Cth). This Commonwealth legislation made it unlawful for a person providing goods and services to discriminate on the basis of a person's marital status. Sundberg J of the Federal Court held the Victorian law invalid for inconsistency with the Commonwealth legislation. In these proceedings, the Australian Catholic Bishops Conference and the Australian Episcopal Conference of the Roman Catholic Church appeared as amici curiae. Although given notice of the proceedings, the Commonwealth Attorney-General did not intervene. There was no appeal to the High Court by any of the parties to the proceedings.

The word 'matter' is used several times in Ch III of the Constitution (ss 73, 74, 75, 76, 77), and always, we think, with the same meaning ... a matter under the judicature provisions of the Constitution must involve some right or privilege or protection given by law, or the prevention, redress or punishment of some act inhabited by law. The adjudication of the Court may be sought in proceedings inter panes or ex parte, or, if the courts had

Later, the Commonwealth Attorney-General and the two Catholic conferences applied to the High Court for a writ of certiorari to quash the decision of the Federal Court. In this regard, the High Court had to resolve whether, under s 76(i) of the Constitution, there was a 'matter' to be determined between the Attorney-General and the two Catholic conferences on the one hand, and Sundberg J and Dr McBain on the other. The majority of the High Court held that there was no 'matter' between the parties to be determined. This conclusion was consistent with the ruling in the Advisory Opinions case.

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In their joint majority judgment in Re McBain; Ex parte Australian Catholic Bishops Conference, Gaudron and Gummow JJ observed:

to the legislation that sought to confer an advisory jurisdiction on the High

Here the Attorney (both as an intervener and on the relation of the Episcopal Conference) seeks to re-open closed litigation and to purge the recrd of the Federal Court of an order which is at odds with an allegedly desirable state of constitutional affairs. The point may be expressed as a reflection of the limits of the judicial power of the Commonwealth or of the absence of any claim by the Attorney-General to a right, title, privilege or immunity under the Constitution which is necessary to give rise to a 'matter' under s 76(i). (at 409-10)

(vi)

Conclusion

3-26 The insertion, in 1920, of Pt XII in the Judiciary Act 1903 (Cth) was the first attempt to confer an advisory jurisdiction on the High Court. Recourse to the provisions of Pt XII was first taken in 1920 in connection with certain amendments of the Navigation Act 1912 (Cth). In that instance the Governor-General asked the High Court for an advisory opinion whether the amended Act, which was to be proclaimed, was valid.

In its decision in the Advisory Opinions case, the High Court ruled that the relevant provisions of Ch III of the Commonwealth Constitution did not envisage an advisory jurisdiction of the High Court. The ruling in the Advisory Opinions case, that the High Court's jurisdiction extended only to 'matters' specified in the relevant sections of Ch III of the Constitution ' was consistently upheld in later cases.

P

Examiner's Comments 3-27 The answer is properly structured along the lines of the question asked. It commences with an examination of the scope of the constitutional jurisdiction of the High Court, followed by a discussion of the new jurisdiction sought to be conferred by an Act of Parliament. The ~nalysis of the High Court decision, and its role as a precedent, which is the focus of the question here, has been facilitated by this preceding discussion. The parts of the reasoning of the High Court that are essential to the question asked here have been correctly identified and highlighted. In the Advisory Opinions case, the High Court insisted that in legal proceedings there must be a contentious 'matter' for determination. The same insistence is evident in later decisions on this issue. Of the later cases, only one is discussed. This is acceptable in light of time limitations.

fir~ Keep in Mind It would be incorrect to approach this question by starting with the decision of the High Court in the Advisory Opinions case. The proper approach would be to start with a discussion of the constitutional jurisdiction of the High Court. Having done that, it is also essential to examine the amendment -64-

Court, and give an account of the attempted use of the amending provisions to invoke the jurisdiction of the High Court.

In addition to the general conclusion reached by the High Court in relation to advisory opinions generally, it is important also to set out the actual decision in the Advisory Opinions case with reference to the matter before it. Although it is important to highlight some of the more important decisions of the High Court that upheld a similar conclusion, it is not possible, given the scope of the answer, to discuss all of these cases. Jn this regard, a discussion of one important case should be sufficient for the purposes of this answer.

~ Question

5

Assume the following situation: In order to deal with the considerable backlog of appeals by unsuccessful applicants for migration under recognised skilled categories and refugee migration, the Commonwealth Parliament passes the Immigration Appeals Act 2019 (Cth) (IAA). This Act establishes a new Commonwealth Department of Migration (COM) with new powers for the minister in charge of the department. Bys 2 of the IAA, the minister is empowered to make Regulations to realise the purposes and objectives of the IAA. For speedy disposal of appeals on unsuccessful applications for refugee status in Australia, and immigration category for skilled migration, the IAA incorporates specific requirements relating to the functioning of the Refugee Appeal Tribunal (RAT) and the Migration Appeal Tribunal (MAT). Under the provisions of s 4 of the IAA, the RAT comprises of five members holding office for seven years. By s 5, the RAT must pass an order within three months of the lodgment of an appeal from an asylum seeker whose application for refugee status has been rejected by the COM. Section 6 makes this order of the RAT final and not subject to any further appeal to the Federal Court. Bys 7, the RAT is prohibited from hearing any appeal from an unsuccessful applicant for refugee status who cannot be deported from Australia because no country is agreeable to receive him/her. Under the provisions of s 8, neither the Federal Court nor the High Court can entertain any petition from such a person on any ground whatsoever. Appeals by unsuccessful applicants in the skilled migration categories are to be heard by the MAT constituted by six members whose term of office is 10 years from the date of appointment. By s 10 of the IAA, the MAT must determine the outcome of an appeal application from an unsuccessful applicant for skilled migration within six months of the institution of the appeal. Under the provisions of s 12 of the IAA, every 'determination' of an appeal application in this regard by the MAT shall be conveyed to the Registry of the Federal Court within two weeks of the 'determination' being made. If the minister or his/her delegate does not -65-

The High Court and Separation of Judicial Power

LNQA Constitutional Law challenge the 'determination' under question within three weeks of its filing in the Federal Court Registry, the 'determination' shall take effect as if it was a decision of the Federal Court. In April 2020 the minister makes a set of Regulations under the IAA. Regulation 33 of the Immigration Appeals Regulations (IAR) reconstitutes the RAT with three members. Fred Harris, a member of the Support Refugee Group intends to initiate proceedings in the High Court for a declaration that the minister cannot pass reg 33 of the IAR. In February 2021, the RAT passes an order rejecting an appeal by Gabriel Gomes, a national of EastTimor, who had applied for refugee status on political grounds. He seeks your opinion on whether s 6 of the IAA is valid. Mohammad Ali is a refugee of Palestinian origin who had lived in Yemen but does not have any nationality. On rejection of his petition by the minister for asylum in Australia, he wants to file an application to the High Court for a declaration thats 8 of the IAA is invalid. Anup Thapa, a Nepalese student with an IT degree from Deakin University, seeks your advice on the validity of s 12 of the IAA. Advise the relevant parties. Time allowed: 60 minutes

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Answer Plan Several issues relating to the separation of legislative and executive powers, and of judicial and non-judicial powers, arise in the facts presented by this problem. These issues are addressed separately in light of relevant principles and High Court decisions.

In the answer, it is concluded that the delegation of legislative power to the executive is permissible under the scheme of separation of powers established by the Commonwealth Constitution. This conclusion is reached in terms of the relevant decision of the High Court. In this problem, three questions arise in regard to the principle of separation of the Commonwealth judicial power from other non-judicial powers. The question whether a power in the nature of judicial power can be exercised by a non-judicial tribunal is answered in the negative. This conclusion stands irrespective of the fact that the exercise of a power by a non-judicial tribunal is enforced through the medium of a Ch III court. It is also concluded in the answer that a legislative direction that a court should exercise its jurisdiction in a specific manner is contrary to the principle of separation of judicial power.

Answer

Judicial power, however, is considered a distinct category, and quite rigid demarcation is drawn between the federal judicial power and other powers of the Commonwealth. In accordance with the principles laid down in the relevant decisions of the High Court, the Commonwealth judicial power can only be exercised by a Ch III court, not by any non-judicial tribunal. The exercise of a power conclusively determining a right or entitlement of a person is a power in the nature of a judicial power; this power cannot be exercised by a non-judicial tribunal.

Enforcement of the finding of a non-judicial tribunal through the medium of a Ch III court has also been found to breach the principle of separation of the Commonwealth judicial power. This principle of separation is also infringed if parliament by legislation purports to require that the jurisdiction of Ch III courts be exercised in a particular manner.

(ii)

Regulation-making power of the minister under the Immigration Appeals Act 3-29 The question of delegation of legislative power to the executive, within -the framework of the separation of legislative and executive powers, recognised by the Commonwealth constitutional system, was examined in Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73. This case concerned a challenge to the validity of s 3 of the Transport Workers Act 1928 (Cth) that authorised the Governor-General to make Regulations with respect to the employment of transport workers. It was also provided by s 3 that the Regulations made under the Act were to have the force of law 'notwithstanding anything in any other Act', other than the Acts Interpretation Acts. Regulation 3 of the Waterside Workers Regulations (WER) provided that transport workers who were members of the Waterside Workers' Federation would be given priority in employment. The-High Court held that the Commonwealth Parliament could delegate a law-making power to the executive. The Commonwealth Parliament could even, according to the High Court, authorise Regulations that overrode Acts of Parliament. Regulation 3 of the WER was therefore valid. In view of this interpretation by the High Court, it can be concluded that the Commonwealth Parliament can, by s 2 of the IAA, delegate Regulation-making power to the minister for purposes of realising the objectives of the IAA. It is legitimate for the minister to make the IAR. Regulation 33 of the IAR that reconstitutes the RAT with three members is therefore lawful. (iii)

(i)

Introduction 3-28 Under the system of government established by the Commonwealth Constitution, there is significant relaxation in the application of the separation of powers principle between the legislature and the executive. -66-

Finality of Refugee Appeal Tribunal's order on appeals and the judicial power of the Commonwealth 3-30 The judicial power of the Commonwealth is vested by and exercised under Ch III (ss 71-80) of the Commonwealth Constitution. -67-

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The High Court has consistently ruled that the judicial power of the Commonwealth can only be exercised by Ch III courts, not by any nonjudicial tribunal. Issues relating to the exercise of powers in the nature of judicial power by a non-judicial tribunal were examined in a number of decisions of the High Court.

has been rejected by the CDM, is final and not subject to any further appeal to the Federal Court. The determination of appeals from asylum seekers by the RAT involves the ascertaining, declaring and enforcing of rights and liabilities of the applicants. This function is in the nature of judicial power. Making such a determination final and conclusive is further evidence of the exercise of judicial power. These powers cannot be entrusted to the RAT because it is a non-judicial tribunal. Additionally, members of the RAT have a term of office of only seven years. This does not conform to the constitutional requirements of security of tenure of persons exercising the judicial power of the Commonwealth. The provisions of ss 4 and 6 of the IAA are therefore invalid.

In New South Wales v Commonwealth (1915) 20 CLR 54 (Wheat case), the Interstate Commission Act 1912 (Cth) authorised the Interstate Commission, constituted by members with a seven-year term of office, to be invested with the same powers, rights and privileges as were vested in the High Court; it could hear and determine complaints, grant any relief or injunction, and penalise disobedience to any of its orders. The majority of the High Court (Griffith CJ, Isaacs, Powers and Rich JJ) ruled that the Interstate Commission, being a non-judicial body, could not be invested with th~ judicial power of the Commonwealth. In this regard, Griffith CJ observed: Section 71 of the Constitution provides that judicial power of the Commonwealth shall be vested in the High Court and in such other federal Courts as the Parliament creates and in such other Courts as it invests with federal jurisdiction ... In my judgment the provisions of s 71 are complete and exclusive, and there cannot be a third class of Courts which are neither federal Courts nor State Courts invested with federal jurisdiction. (at 61-2)

In Waterside Workers' Federation v ]W Alexander Ltd (1918) 25 CLR 434, the Commonwealth Conciliation and Arbitration Act 1904 (Cth) established the Commonwealth Court of Conciliation and Arbitration (CCCA). Bys 12, the CCAA was headed by a 'President', to be appointed 'from among the Justices of the High Court', for a term of seven years. The CCAA was given powers to make industrial awards, and to pass any order for enforcement of an award. Enforcement of an award was considered by the High Court as a power in the nature of judicial power that, by s 71 of the Constitution, could only be exercised by Ch III courts. The High Court held that, since the President of the CCCA did not have guarantee of tenure, applicable to judges of Ch III courts, under s 72 of the Constitution, he or she could not exercise a power in the nature of judicial power under s 71. Under the original provisions of s 72, operative at that time, justices of the High Court and other judges of Ch III courts exercising federal jurisdiction had life tenure in office. In this regard, Isaacs and Rich JJ made the following observations [A]ny law passed under s 71 which says that a Justice so appointed shall be displaced or removed from office in seven years - which is what s 12 of the Arbitration Act says - is contrary to the Constitution, and pro tanto invalid. If that invalidity carries with it inability to exercise the judicial power of the Commonwealth, any enactment purporting to authorise him to do so is invalid. (at 469)

According to the facts of this problem, the RAT comprises of five members holding office for seven years. An order of the RAT rejecting an appeal from an asylum seeker, whose application for refugee status -68-

Registration and enforcement of /determination' of appeal by Migration Appeal Tribunal through the medium of the Federal Court 3-31 In Brandy v Human Rights and Equal Opportunity Commission (iv)

(1995) 183 CLR 245, a 'determination' by the Human Rights and Equal Opportunity Commission (HREOC), on an allegation of racial and other discrimination under the relevant laws, was to be registered at the Federal Court Registry. After the expiration of a fixed period during which a 'review' of the 'determination' might or might not be taken up before the High Court, the determination took effect 'as if it was an order of the Federal Court'. The High Court found that exercise of the HREOC's power to determine an allegation of discrimination was in the nature of judicial power; it could not be exercised by a non-judicial tribunal. The enforcement of a HREOC 'determination' through the medium of the Federal Court did not give it validity. In the fact situation of this problem, a 'determination' by the MAT, in relation to an appeal by an unsuccessful applicant in the skilled migration categories, shall be conveyed to the Registry of the Federal Court. If the minister or his/her delegate does not challenge the 'determination', it shall take effect as if it was a decision of the Federal Court. This registration and enforcement procedure of a determination by the MAT is similar to the mechanism of enforcing a determination of allegation of discrimination by the HREOC in Brandy v Human Rights and Equal Opportunity Commission. As discussed above, the High Court found that mechanism breached the principle of separation of the Commonwealth judicial power. The provisions of s 12 of the IAA are therefore invalid.

(v)

Exclusion of jurisdiction of Federal Court/High Court in respect of asylum seekers considered to be /stateless'

3-32 The validity of provisions in a Commonwealth statute excluding the jurisdiction of a court in certain matters was examined by the High Court in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1. This case related to applications for refugee status by a number of Cambodian nationals who had entered Australia without valid entry -69-

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permits and were detained in custody. Subsequent to orders of the Federal Court relating to their release from custody, the Commonwealth Parliament amended the Migration Act 1958 (Cth) by introducing a category of 'designated person', which fitted the circumstances that the Cambodians were in. The amendments to the Migration Act included the provisions in s 54R prohibiting a court from ordering the release from custody of a 'designated person'. The majority of the High Court ruled that s 54R was invalid since it purported to direct courts as to the manner in which they were to exercise their jurisdiction. According to the facts of this problem, s 7 of the IAA prohibits the RAT from hearing any appeal from an unsuccessful applicant for refugee status who cannot be deported from Australia because no country is agreeable to receive him/her (a 'stateless person'). Since the RAT is a non-judicial tribunal, this prohibition does not interfere with the rule of separation of the Commonwealth judicial power; s 7 of the IAA is therefore valid. The provisions of s 8, that excludes the Federal Court and the High Court from considering any petition from a 'stateless person' denied refugee status on any ground whatsoever, is, however, open to challenge. The non-availability of this jurisdiction interferes with the constitutional jurisdiction of Ch III courts. It allows the Commonwealth Parliament to interfere with the judicial process and breaches the rule of separation of legislative and judicial powers. The provisions of s 8 of the IAA are thus invalid.

the MAT, a non-judicial tribunal, to exercise the judicial power of the Commonwealth. Section 12 is invalid, and it is open to Anup Thapa to challenge its validity in the High Court. The principle of separation of the Commonwealth judicial power does not permit the Commonwealth Parliament, by legislation, to exclude the jurisdiction of a Ch III court that is otherwise available to it under the Constitution. Mohammad Ali is able to seek a declaration from the High Court that s 8 of the IAA is unconstitutional.

(vi)

Conclusion

3-33 This problem concerns several issues relating to the exercise of the judicial power by courts and non-judicial tribunals, and the principle of separation of the Commonwealth judicial power. The question of separation of legislative and executive powers is also raised in this problem. The delegation of legislative powers to the executive by Commonwealth legislation is permissible within the framework of separation of legislative and executive powers recognised by the Constitution. Section 2 of the IAA is valid. Fred Harris of the Support Refugee Group cannot successfully challenge the powers given to the minister in charge of the Commonwealth Department of Migration. An order of the RAT on an appeal by an asylum seeker who is refused immigration cannot be final and conclusive. The power of final determination in the process of ascertaining, declaring and enforcing rights of an asylum seeker can only be exercised by a Ch III court exercising Commonwealth judicial power. Since the RAT is a nonjudicial tribunal, it cannot be entrusted with such a function. In this regard, Gabriel Gomes can successfully challenges 6 of the IAA. Under the provisions of s 12 of the IAA, a 'determination' by the MAT on an appeal by an unsuccessful applicant for immigration is enforced through the medium of the Federal Court. This mechanism allows -70-

Examiner's Comments 3-34 The answer correctly identifies the issues of separation of legislative and executive powers, and the separation of judicial and nonjudicial powers. The relaxation of the separation of powers rule in the executive-legislative relationship is rightly pointed out with reference to case law. The several issues arising in the fact situation of the problem with regard to the rule of separation of judicial and non-judicial powers within the framework of the Commonwealth Constitution are also correctly identified. The invalidity of the finality and conclusiveness of the findings of a non-judicial tribunal is adequately discussed in light of the relevant High Court decisions. The conclusion in the answer - that enforcement of an order of a non-judicial tribunal through the medium of a Ch III court permits the exercise of judicial power by that tribunal - is also correct. The reason the jurisdiction of the High Court cannot be excluded in the circumstances presented in the problem is satisfactorily discussed.

ffl ~ Keep

in Mind

A number of questions need to be addressed in the answer to this problem. These relate to the issue of separation of legislative and executive powers, and several issues concerning the separation of the Commonwealth judicial power. For a complete answer, all of these issues are to be identified, and a conclusion is to be reached on each of the individual issues. According to the fact situation of the problem, separate questions arise relating to the nature of the orders of the two tribunals. These are to be answered separately in light of the relevant case law. The exclusion of jurisdiction of a non-judicial tribunal and of a Ch III court attract different principles of interpretation. Conclusions in this regard are to be reached in light of the relevant principles of separation of the Commonwealth judicial power and the applicable case law.

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Chapter 4

Commonwealth Executive Key Issues 4-1 In Chapter 4, the powers and functions of the Commonwealth executive are considered and the scope of the executive power of the Commonwealth is examined. The Queen is the formal head of the executive government of the Commonwealth of Australia. However, the Queen's powers are exercised by her representatives, the GovernorGeneral of the Commonwealth and the governors of the states.

Section 62 of the Commonwealth Constitution provides for the establishment of the Executive Council. The primary function of the Executive Council is to put into official form the decisions made by a minister or ministers. Often, the decisions formalised in the Executive Council are those of the Cabinet. Several sections of the Commonwealth Constitution provide for the powers and functions of the Governor-General. Ordinarily most of the Governor-General's powers are to be exercised upon 'advice' of his or her ministers. In this regard, some sections specifically require that the Governor-General perform his/her functions on the 'advice' of the Executive Council. A limited number of exceptions are, however, recognised where the Governor-General may exercise a certain degree of discretion in the exercise of his or her powers. In such areas, the Governor-General may act without or contrary to ministerial advice. These powers of the GovernorGeneral are sometimes referred to as 'reserve powers'. Section 64 of the Constitution relating to the appointment of ministers is one such instance. The circumstances in which the Governor-General may exercise his or her reserve power to dismiss a Prime Minister are controversial. Section 61 of the Commonwealth Constitution provides: The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

The scope of this executive power has been a source of controversy. In an earlier phase of decision-making, the High Court gave a restrictive -73-

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interpretation to s 61. This trend is exemplified by Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421. Later, however, the High Court changed its approach and upheld a broad scope of s 61. In Barton v Commonwealth (1974) 131 CLR 477, the scope of the executive power of the Commonwealth was held to include all executive action that is appropriate to the position of the Commonwealth under the Constitution and to the spheres of responsibility vested in it by the Constitution. Following Barton, this new interpretation was explained in more detail in the following High Court decisions: Victoria v Commonwealth and Hayden (1975) 134 CLR 338 (AAP case); Davis v Commonwealth (1988) 166 CLR 79; Pape v Commissioner of Taxation [2009] HCA 23; Williams v Commonwealth (No 1) [2012] HCA 23; and Williams v Commonwealth [2014] HCA 23.

background. Next, the reasons of the Governor-General for dismissing the Prime Minister from office are critically examined.

Before tackling the following questions, check you are familiar with the following issues:

,;..f(

.I

the constitution of the Commonwealth executive;

.I

the powers, functions and responsibilities of the GovernorGeneral;

.I

the nature of the 'reserve powers' of the Governor-General;

.I

the exercise of the 'reserve power' of the Governor-General to dismiss a Prime Minister from office; and

.I

the scope of the executive power of the Commonwealth.

In the light of the analysis of the reasons for dismissal in 1975, it is concluded that a Prime Minister can be dismissed from office for a persistent breach of fundamental constitutional provision, and issues arising from that breach or breaches. Since in the circumstances of 1975 it was only an inability to secure 'supply', it was probably inappropriate for the Governor-General to dismiss the Prime Minister and his government who enjoyed the confidence of the Lower House.

Answer (i)

The Governor-General of Australia is empowered by the Commonwealth Constitution to exercise a range of powers. In the exercise of some of the powers, the Constitution entrenches the requirement of 'advice' to the Governor-General by the Executive Council. Other provisions of the Constitution appear to vest powers in the GovernorGeneral alone. These are commonly referred to as the Governor-General's 'reserve powers'. Two of these 'reserve powers' - the power to appoint and dismiss Ministers of State (s 64) and the power to effect a double dissolution of parliament (s 57) - were used by the Governor-General in 1975 in controversial circumstances. The grounds on which a GovernorGeneral may dismiss a Prime Minister have remained controversial. This is shown by the circumstances surrounding the events leading up to the dismissal of Prime Minister Whitlam by Governor-General Kerr in 1975. 4-2

(ii)

Question 1

Introduction

Powers and functions of the Governor-General

The following are among the powers and functions of the GovernorGeneral of Australia under the Commonwealth Constitution: • s 5 - summoning, prorogation, and dissolution of parliament; • s 32-issuingwrits for general elections ofthe House of Representatives; • s 57 - effecting a double dissolution of parliament; • s 5 8-granting or withholding royal assent to Bills passed by parliament, or returning a Bill to parliament with proposed amendments; and • s 64 - appointing Ministers of State.

4-3

Identify the provisions of the Commonwealth Constitution that deal with the powers and functions of the Governor-General. Can the GovernorGeneral, in exercise of his or her powers under s 64 of the Constitution, dismiss a Prime Minister? Frame an answer to this question in the light of the circumstances resulting in the dismissal of Prime Minister Gough Whitlam by Governor-General John Kerr in 1975. Time allowed: 60 minutes

+

The answer to this question involves an examination of the general powers of the Governor-General under the Commonwealth Constitution, and the requirement of 'advice' of the Executive Council in the exercise of some of these powers. This examination is undertaken in the beginning of the answer. The events leading up to the dismissal from office of the Prime Minister by the Governor-General in 1975 is then discussed in this

Ordinarily most of the Governor-General's powers are to be exercised upon 'advice' of his or her ministers. Several provisions of the Commonwealth Constitution require that the Governor-General performs his/her functions on the 'advice' of the Executive Council. Some of these provisions are: s 32 (issuing writs for a general election of the House of Representatives); s 64 (establishing departments of State); s 67 {appointment of public servants); ands 72 {appointing justices of the High Court). Most of the other functions of the Governor-General are, by convention, likewise exercisable upon 'advice'. A limited number of exceptions

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Answer Plan

LNQA Constitutional Law

Commonwealth Executive

are, however, recognised where the Governor-General may exercise a certain degree of discretion in the exercise of his or her powers. In such areas, the Governor-General may act without or contrary to ministerial advice. These powers of the Governor-General are sometimes referred to as 'reserve powers'. The following are generally accepted as 'reserve powers' of the Governor-General:

and indeed the duty under the Constitution to withdraw his commission as Prime Minister. The position in Australia is quite different from the position in the United Kingdom. Here the confidence of both Houses on supply is necessary to ensure its provision.

• • • •

power to appoint a Prime Minister; power to dismiss a Prime Minister; power to refuse to dissolve parliament; and power to force a dissolution of parliament m extraordinary circumstances.

The circumstances in which the Governor-General may exercise his or her reserve power to dismiss a Prime Minister are controversial. The dismissal of Prime Minister Whitlam by Governor-General Kerr in 1975 provides a good context to examine the propriety of the exercise of the GovernorGeneral's reserve power under s 64 of the Commonwealth Constitution.

(iii)

Events and issues in 1975

4-4 Upon advice of the then ruling government of Prime Minister Whitlam, the Governor-General proclaimed a double dissolution of parliament in April 1974. The reason for the double dissolution was the deferment of Supply Bills in the Senate. After the ensuing elections in which the same government was voted to power, the disagreements between the two houses of parliament did not cease. In October 1975, the Senate deferred Appropriation Bills to force the government to resign and hold new elections. Prime Minister Whitlam did not agree to this, and on 11 November 1975 called on Governor-General Kerr to advise him to issue writs for a half-Senate election. Instead of accepting this advice, the Governor-General informed the Prime Minister that his commission was terminated. The reasons for Governor-General Kerr's action were contained in a letter and an accompanying statement.

(iv)

Governor-General Kerr's reasons for dismissing the Prime Minister

4-5 The Governor-General's letter cited that, in dismissing Prime Minister Whitlam, he was acting under the provisions of s 64 of the Commonwealth Constitution. It also stated that all ministers in the Whitlam government were dismissed. In the statement accompanying his letter, the Governor-General elaborated on the reasons for the Prime Minister's dismissal:

The Governor-General's views were reiterated by Chief Justice Garfield Barwick who had been consulted prior to the dismissal of the Prime Minister. According to Chief Justice Barwick: The Constitution of Australia is a federal Constitution which embodies the principle of Ministerial responsibility. The Parliament consists of two houses, the House of Representatives and the Senate, each popularly elected, and each with the same legislative power, with one exception that the Senate may not originate nor amend a money bill. Two relevant constitutional consequences flow from this structure of the Parliament. First, the Senate has constitutional power to refuse to pass a money bill; it has the power to refuse supply to the government of the day. Secondly, a Prime Minister who cannot ensure supply to the Crown, including funds for carrying on the ordinary services of government must either advise a general election ... or resign. If, being unable to secure supply, he refuses to take either course ... [the Governor-General] has constitutional authority to withdraw his Commission as Prime Minister.

(v)

A critique of the Governor-General's action 4-6 In its report, An Australian Republic: The Options (Canberra, AGPS, 1993 ), the Republic Advisory Committee examined the arguments for and against Governor-General Kerr's action in dismissing Prime Minister Whitlam. After considering the argument of expediency, the committee observed: On another view it was wrong of Kerr to dismiss a government which continued to enjoy the confidence of the House of Representatives, the confidence of the Senate never having been regarded under principles of responsible government as a requirement for remaining in office. The government's refusal to resign might have led to financiahiisaster, but that was a matter for the government to explain to the Parliament and the electors, not a matter for the judgment of the Governor-General. Had the government attempted to stay in office once supply had run out, and in doing so made payments from the Consolidated Revenue Fund without the authority of a parliamentary appropriation, that would have involved a breach of a fundamental constitutional principle ... and might well have justified dismissal; but that point had not been reached and, arguably, until that point was reached there was no sound basis for dismissing the government. Kerr acted while there were still other conceivable options: a political solution to the crisis was still possible and obviously preferable to an exercise of the reserve power. (vol 2, p 262)

(vi)

Conclusion

Because of the federal nature of our Constitution and because of its provisions the Senate undoubtedly has constitutional power to refuse or defer supply to the government. Because of the principles of responsible government a Prime Minister who cannot obtain supply, including money for carrying on the ordinary services of government, must either advise a general election or resign. If he refuses to do this I have the authority

4-7 Reviewing the events of 1975, and analysing the reasons for the exercise of the Governor-General's reserve power, it seems that inability to secure the passage of Supply Bills through the Senate cannot constitute a constitutional ground for dismissing a Prime Minister. The

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Governor-General's grounds for dismissing Prime Minister Whitlam may therefore have been erroneous.

political dimensions, and are of interest to both the constitutional lawyer and the political scientist. The 1975 incident is also of general public interest. In view of these dimensions, it is important to analyse the events and the issues dispassionately, and the contents of the answer in this regard should be confined to constitutional law arguments.

In the Australian constitutional context, the occasion for the exercise of the Governor-General's reserve power to dismiss a Prime Minister can only arise where the Prime Minister has been defeated in the House of Representatives on a vote of no confidence, or where the government persists in unconstitutional conduct.

It is important to examine the scope of the constitutional powers of the Governor-General before attempting to come to a conclusion on whether any of those powers could be used to dismiss a Prime Minister. The conclusion about the justifiability or otherwise of the Governor-General's action must not be subjective; it must be grounded on constitutional analysis.

It has been pointed out that: Where the Lower House passes a simple motion of no confidence in the Prime Minister, the convention is that he or she must either resign ... or advise the Governor-General to dissolve Parliament ... If the incumbent does not take one or the other of these courses, the Governor-General is entitled to dismiss him or her. Even here, however, it has been stressed that dismissal should occur only if all attempts to induce the Prime Minister to do his or her duty have failed ... (vol 2, p 256)

.

' Question 2 Discuss, in light of the following statement, the executive power of the Commonwealth.

Dismissal on the grounds of unconstitutional conduct or illegality may only be exercised where:

[T]here is to be deduced from the existence and character of the Commonwealth as a national government ... a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation ... (Mason Jin Victoria v Commonwealth and Hayden (1975) 134 CLR 338 at 397).

(a) it is clear that the government has 'persisted in breaching a fundamental constitutional provision'; (b) the government has ignored calls from the Governor-General to desist from this conduct; and (c) the contravention is not 'justiciable' ... (p 258)

p

Examiner's Comments 4-8 This question requires a consideration of the powers and functions of the Governor-General under the Commonwealth Constitution, and a critical evaluation of the Governor-General's exercise of them, and of the circumstances surrounding the dismissal of the Prime Minister in 1975. The answer correctly begins by highlighting constitutional provisions relating to the powers of the Governor-General with special reference to those powers which are exercisable on 'advice'.

The events of 1975 are adequately examined in the light of the GovernorGeneral's dismissal of the Prime Minister. The significant issues arising from the event are critically analysed in the light of conventions and commentary. In concluding that the Governor-General's action in 1975 may have been unjustified, the answer incorporates persuasive reasons based on authoritative commentary.

fi?r

Time allowed: 60 minutes

+·

Answer Plan The answer to this question involves, in the first place, the location of the source of the executive power of the Commonwealth in the Constitution, and the scope of this power. The provisions of s 61 are quoted in the beginning of the answer; some brief comments on the early restrictive scope of the executive power are also incorporated in this introductory part of the answer. The answer then discusses the nature and scope of the executive power in light of expansive interpretation of the power by the High Court in three major cases. The observations of Mason J in the first of these cases are explained in the context of that case. Reliance on these premises is examined in the later cases. It is pointed out in the discussion of the latest cases that scope of the executive is circumscribed by specific considerations.

Answer

~ Keep in Mind

(i)

Introduction

The first part of the question is descriptive. Here the most important constitutional provisions relating to the powers and functions of the Governor-General should be identified. The second part of the question has to be answered in both conceptual and practical terms. The events in 1975 which are the focus of the second part of the question have overtly

executive power of the Commonwealth. There has been a debate on the meaning of s 61 of the Constitution and the scope of the executive power

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This observation of Mason J in Victoria v Commonwealth and Hayden (1975) 134 CLR 338 (AAP case) relates to the scope of the

4-9

LNQA Constitutional Law

Commonwealth Executive

of the Commonwealth. In some early cases, the High Court sought to explain Commonwealth executive power under s 61 as only that expressly conferred by the Constitution or legislation. Later, beginning with its decision in Barton v Commonwealth (1974) 131 CLR 477, the High Court upheld a wider scope thats 61 afforded broad powers to the Commonwealth executive. In the AAP case and Davis v Commonwealth (19 8 8) 166 CLR 79, this new interpretation was explained in more detail.

of $5.9 million was appropriated through an Appropriation Act for defraying the expenses of the plan. The State of Victoria challenged the setting up of the AAP by Commonwealth executive policy. The judgments of the majority and minority justices of the High Court in the AAP case are diverse, and it is difficult to get conclusive answers to all the questions involved in the determination of the case. One of the principal questions for the High Court was whether s 61 of the Commonwealth Constitution authorised the executive government to implement a scheme such as the AAP.

In the AAP case, Mason J ruled that the scope of the executive power under s 61 is related to the existence and character of the Commonwealth as a national government, and its capacity to engage in activities suited to the government of a nation. In Pape v Commissioner of Taxation [2009) HCA 23, the High Court adopted a similar view of the scope of s 61, but with certain limitations. The limitations on the scope of the executive power was later explained in more detail by the High Court in Williams v Commonwealth (No 1) [2012] HCA 23 and Williams v Commonwealth [2014] HCA 23. These two decisions concerned challenges to a Commonwealth program unsupported by legislation, and funded in the context of a broad interpretation of the executive power under s 61. The program was found invalid by the High Court.

(ii)

Early restrictive view and evolving expansive view of s 61

4-10 Section 61 of the Commonwealth Constitution is directed to provide for the executive power of the Commonwealth: The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

In some early cases, including Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 and Farey v Burvett (1916) 21 CLR 433, the High Court defined the executive power of the Commonwealth in narrow terms. Since then, opinions of several justices in a number of cases upheld a broader scope of s 61. The overall scope of this expansive view of s 61 was charted out by Mason J in Barton v Commonwealth. This wide scope of the executive power was explained in more detail in subsequent cases including: the AAP case; Davis v Commonwealth; Pape v Commissioner of Taxation; Williams v Commonwealth (No 1) (2012) 248 CLR 156; and Williams v Commonwealth [2014] HCA 23. In the last three cases, the constraints on the scope of s 61 were stressed.

(iii)

"Inherent powers' of a national government

In relation to the scope of s 61, the majority agreed that it was within the executive power of the Commonwealth to set up the AAP. According to Mason J of the majority: [T]here is to be deduced from the existence and character of the Commonwealth as a national government and from the presence of ss 5l(xxxix) and 61 a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation. (at 397)

This broad scope of the executive power under s 61 was, however, left undefined: The functions appropriate and adapted to a national government will vary from time to time. As time unfolds, as circumstances and conditions alter, it will transpire that particular enterprises and activities will be undertaken if they are to be undertaken at all, by the national government. (at 397-8)

The majority decision of the High Court in the AAP case relating to the scope of the Commonwealth executive power was subsequently endorsed in Davis v Commonwealth. In that case, the principal question was whether the executive power of the Commonwealth extended to the commemoration of the bicentenary of British settlement in Australia. In answering this question, Mason CJ, Deane and Gaudron JJ observed: [T]he commemoration of the Bicentenary is pre-eminently the business and the concern of the Commonwealth as the national government and as such falls fairly and squarely within the federal executive power. {at 94)

In Pape v Commissioner of Taxation, the validity of the Tax Bonus for Working Australians Act (No 2) 2009 (Cth) (Tax Bonus Act) was challenged. The Tax Bonus Act provided for a one-off bonus payment to taxpayers as part of a 'fiscal stimulus package' in response to the global financial crisis. The majority of the High Court (French CJ, Gummow, Crennan and Bell JJ) held that the Act was supported by ss 61 and 51(xxxix) of the Commonwealth Constitution. In his judgment, French CJ relied upon the decisions in the AAP case and Davis v Commonwealth to rule that:

In the AAP case, the issue was the legality of an executive policy to set up the Australia Assistance Plan (AAP). By the AAP, a nationwide system of regional councils was set up for planning and implementing a nationally co-ordinated system of social welfare services. A total

The executive power extends, in my opinion, to short-term fiscal measures to meet adverse economic conditions affecting the nation as a whole, where such measures are on their face peculiarly within the capacity and resources of the Commonwealth Government. (at 132)

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But this scope of the executive power is not unlimited and did not extend to all matters relating to the economy of the nation. In this regard, French CJ observed:

In Davis v Commonwealth, Mason CJ, Deane and Gaudron JJ also took into consideration the federal factors in giving effect to the wide scope of the Commonwealth executive power. In Pape v Commissioner of Taxation, French CJ of the majority pointed out that the federal distribution of powers could not be disregarded in the exercise of the executive power of the Commonwealth, and the separate responsibilities of the branches of government.

To say that the executive power extends to the short-term fiscal measures in question in this case does not equate it to a general power to manage the economy. (at 132) The possible limitations highlighted in Pape v Commissioner of Taxation was later explored by the High Court in Williams v Commonwealth (No 1) [2012] HCA 23. In this latter case, the National School Chaplaincy Programme (NSCP) was established by Commonwealth policy under s 61 of the Commonwealth Constitution without any specific legislative authority. A 'Funding Agreement' (FA) between the Commonwealth Department of Education, Science and Training and a school enabled services to be provided by the NSCP. Section 44 of the Financial Management and Accountability Act 1997 (Cth) enabled appropriation of moneys for payments under the FA. The Scripture Union of Queensland (SUQ) that provided chaplaincy services to public schools in Queensland was a beneficiary of the NSCP. The legality of the NSCP was challenged in proceedings before the High Court. The majority in Williams v Commonwealth (No 1) variously held that the establishment of the NSCP was beyond the power of the Commonwealth under s 61 of the Constitution. In their joint opinion, Gumm ow and Bell JJ distinguished the decision in Pape v Commonwealth and the NSCP and held: In Pape, the short-term, extensive and urgent nature of the payments to be made to taxpayers necessitated the use of the federal taxation administrative system to implement the proposal ... However, the States have the legal and practical capacity to provide for a scheme such as the NSCP. The public school system in Queensland ... is the responsibility of that State. Indeed, Queensland maintains its own programme for school chaplains. (at 146) (iv)

Executive power of the Commonwealth and issues of federalism

In the AAP case, Davis v Commonwealth and Pape v Commissioner of Taxation, the High Court considered issues relating to the federal distribution of powers in delineating the scope of the Commonwealth executive power and Mason J pointed out the limitation of the scope of s 61 in terms of the federal distribution of powers: 4-12

(T]he exigencies of 'national government' cannot be invoked to set aside the distribution of powers between Commonwealth and States and between the three branches of government for which this Constitution provides, nor to abrogate constitutional prohibitions. (at 127) In a similar vein, the majority judgments in Williams v Commonwealth (No 1) [2012] HCA 23 also held the executive power of the Commonwealth under s 61 of the Constitution was limited, among other factors, by the federal scheme of government. In subsequent litigation, Williams v Commonwealth [2014] HCA 23, on the same matter in light of amendment of the previous legislation, a similar conclusion was reached. In this regard, French CJ of the majority remarked that the logic of the Commonwealth argument in support of the NSCP denied the 'basal consideration' that the Constitution effected a distribution of powers and functions between the Commonwealth and the states. (v)

Exercise of the executive power and appropriation under ss 81and83 of the Constitution

In the AAP case, the Appropriation Act (No 1) 1974-75 (Cth) that appropriated the money for defraying the expenses of the scheme established by executive policy was challenged as invalid. The nature of the appropriations power under the Constitution and the requirements of ss 81 and 83 were explained to be mandatory but it was held that such legislation may not be subject to judicial review in the same way as other statutes. In this regard, Mason J said: An Appropriation Act ... is something of a rara avis in the world of statutes; its effect is limited ... it does not create right, nor does it impose duties. (at 393) 4-13

It would be inconsistent with the broad division of responsibilities between the Commonwealth and the States achieved by the distribution of legislative powers to concede to ... the executive power a wide operation effecting a radical transformation in what has hitherto been thought to be the Commonwealth's area of responsibility under the Constitution, thereby enabling the Commonwealth to carry out within Australia programs standing outside the acknowledged heads of legislative power merely because these programs can be conveniently formulated and administered by the national government. (at 398)

In Pape v Commissioner of Taxation, the Tax Bonus Act did not contain an appropriation clause; appropriation for the purposes for payment of the tax bonus was made under relevant income tax legislation. In this regard, the applicant in this case contended that the appropriation of money had not been made under s 83; alternatively, the appropriation for this purpose was not for 'the purposes of the Commonwealth'. The Commonwealth on the other hand argued that the appropriation under s 81 was sufficient for expenses for purposes of payment of the tax bonus. The majority did not accept either of these arguments. Although they ruled that there was an appropriation by law and that it was for 'the purposes of the Commonwealth', reliance on the provisions of s 81 alone was not sufficient for the validity of the Tax Bonus Act in this

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respect. The provisions of ss 81 and 83, according to French CJ, provide for parliamentary control of public moneys in areas that are validly permitted under relevant provisions of the Constitution or statutes:

extend to a general power to manage the economy. Concerns of federalism in the exercise of the executive power, underscored in the earlier cases, were further emphasised by the majority justices in Pape v Commissioner of Taxation. In Williams v Commonwealth (No 1) [2012) HCA 23, and in Williams v Commonwealth [2014) HCA 23, federalism was considered to be a bar to the establishment of the National School Chaplaincy Programme (NSCP) in the states by Commonwealth policy under s 61 of the Commonwealth Constitution. In the result, the observations of Mason] in the AAP case in relation to executive capacity of the Commonwealth and its spending powers are now subject to further scrutiny.

The provisions of ss 81 and 83 do not confer a substantive 'spending power' upon the Commonwealth Parliament. They provide for parliamentary control of public moneys and their expenditure. The relevant power to expend public moneys being limited bys 81 to expenditure for 'the purposes of the Commonwealth', must be found elsewhere in the Constitution or statutes made under it. (at 8)

In Williams v Commonwealth (No 1), the majority justices held that spending of moneys by the Commonwealth required a legislative basis in addition to an appropriation Act. Gummow and Bell ]] of the majority pointed out that the provisions of the Financial Management and Accountability Act 1997 (Cth) (FMA Act) were directed to the prudent conduct of financial administration, and did not confer power to spend that which is to be so administered. Hayne and Kiefel JJ further held thats 61 of the Commonwealth Constitution would not support spending of moneys to run the NSCP because even a law on that kind of expenditure would have to be supported either bys 51(xx) ors 51(xxiiiA) of the Constitution. In Williams v Commonwealth [2014] HCA 23, the relevant legislation Financial Management and Accountability Act 1977 (Cth) (FMA Act) was amended with the insertion of a new s 32B that permitted spending of money on 'arrangements or grants' for which the Commonwealth did not have power. In this regard French CJ of the majority observed: [T]o hold that s 32B of the FMA Act is a law with respect to a matter incidental to the execution of the executive power of the Commonwealth (to spend and contract) presupposes what both Pape and Williams (No 1) deny: that the executive power of the Commonwealth extends to any and every form of expenditure of public moneys and the making of any agreement providing for the expenditure of those moneys. (at 87)

(vi)

Conclusion

In Barton v Commonwealth (1974) 131 CLR 4 77, a wide scope of the executive power of the Commonwealth under s 61 of the Constitution was charted out by Mason CJ. This expansive scope of s 61 was later upheld in Victoria v Commonwealth and Hayden (1975) 134 CLR 338 (AAP case) and Davis v Commonwealth (1988) 166 CLR 79 to hold valid the establishment, by executive policy, of a nationwide system of regional councils, and a Commonwealth executive plan to commemorate the bicentenary of British settlement in Australia. In these cases, the majority justices alluded to some limitations of the Commonwealth executive power. 4-14

Examiner's Comments The answer correctly presents the scope of the executive power of the Commonwealth in light of the general comments of Mason ] in the first of the major cases on the scope of the executive power: the AAP case. The context of the specific circumstances in which these comments were made is clearly explained. The reliance on the scope of the executive power of the Commonwealth identified in that case is then examined in the subsequent cases. The scrutiny of this expanse of the executive power in the latter cases is adequately explained. The concerns of federalism and appropriations in the exercise of the Commonwealth's executive power were common in all subsequent cases. However, more emphasis on these factors was upheld in the Pape case, and in the Williams cases federalism was held to be a bar in the establishment of a school chaplaincy program in the states by Commonwealth executive policy, and appropriation in this regard. In the answer, these factors are sufficiently explained. 4-15

The answer does not incorporate a discussion of the minority views in these cases on the limitations of the executive power of the Commonwealth. Although, strictly speaking, an answer along the lines presented here is adequate, time permitting, some brief references to minority views may be included.

~ ~ Keep in Mind

In Pape v Commissioner of Taxation [2009] HCA 23, some of these limitations were highlighted with more clarity. In this case, although payment of a tax bonus to taxpayers under a Commonwealth 'fiscal stimulus package' was held valid as a valid exercise of the executive power under s 61, it was highlighted that the Commonwealth's executive power did not

The answer requires a critical examination of the observations quoted in the question. Accordingly, the context of these observations should be discussed, and the relevance of this conclusion in later cases should be examined. In this regard, the different sets of circumstances in all the relevant cases have to be explained clearly. The extent of the reiteration of the judicial stand quoted in the question in later cases should be discussed in a structured manner. The scope of the Commonwealth's executive power and its possible limitations in light of the federal scheme of government in Australia, and the requirements of valid appropriations under the Constitution, are common themes in all the cases examined here. The last three of these

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cases emphasised closer adherence to these requirements. In the Williams cases, the establishment of a state-based school chaplaincy program was held to be barred in terms of the Commonwealth's executive power, the appropriations power and concerns of federalism. All of these issues in the earlier and later cases should be clearly highlighted and explained.

the decision to offer a 'fiscal stimulus package' was within the capacity of the Commonwealth as national government. This was within the scope of the executive power of the Commonwealth under s 61 of the Constitution. In this regard, French CJ relied upon the observations of various justices in previous decisions on the scope of the executive power, including Victoria v Commonwealth and Hayden (1975) 134 CLR 338 (AAP case) and Davis v Commonwealth (1988) 166 CLR 79. The scope of the executive power does not, however, extend to a general power to manage the economy. According to French CJ:

~tr Question 3 Examine the majority and minority opinions in Pape v Commissioner of Taxation (2009] HCA 23 on the validity of the Tax Bonus for Working Australians Act (No 2) 2009 (Cth). Time allowed: 60 minutes

+

Answer Plan

In Pape v Commissioner of Taxation, Bryan Pape challenged the constitutionality of the Tax Bonus for Working Australians Act (No 2) 2009 (Cth) (Tax Bonus Act) as not being enacted under any express or implied head of legislative power of the Commonwealth Parliament. It was also contended that the payment of a tax bonus under the Tax Bonus Act was not supported by valid appropriation legislation under ss 81 and 83 of the Constitution.

The executive power extends, in my opinion, to short-term fiscal measures to meet adverse economic conditions affecting the nation as a whole, where such measures are on their face peculiarly within the capacity and resources of the Commonwealth Government ... To say that the executive power extends to the short-term fiscal measures in question in this case does not equate it to a general power to manage the economy. (at 132) The full extent of the powers of the Commonwealth Government was not spelt out by French CJ. It was pointed out, however, that the federal distribution of powers could not be disregarded in the exercise of the executive power of the Commonwealth: [T]he exigencies of 'national government' cannot be invoked to set aside the distribution of powers between Commonwealth and States and between the three branches of government for which this Constitution provides, nor to abrogate constitutional prohibitions. (at 127)

The Tax Bonus Act provided for a one-off bonus payment to taxpayers as part of a 'fiscal stimulus package' in response to the global financial crisis. By a 4:3 majority, the High Court upheld the validity of the Act. The majority (French CJ, Gummow, Crennan and Bell JJ) held that the Act was supported by ss 61 and 51(xxxix) of the Commonwealth Constitution. The expenditures made under the· Act were authorised by valid appropriation under ss 81 and 83 of the Constitution.

In their joint judgment upholding the validity of the 'fiscal stimulus package' under ss 61 and 51(xxxix), Gummow, Crennan and Bell JJ characterised the executive power under s 61 as being in the nature of emergency powers in natural disaster situations.

On behalf of the Commonwealth, arguments in support of the Tax Bonus Act were also based on trade and commerce power, the taxation power and the external affairs power in s 51(i), (ii) and (xxix) of the Constitution respectively.

4-17 The minority justices (Hayne, Kiefel and Heydon JJ) rejected the conclusions of the majority that payment of a tax bonus under the 'fiscal stimulus package' could be justified as an exercise of the executive power of the Commonwealth under s 61 of the Constitution. These justices did not dispute the findings of the majority in previous High Court decisions in the AAP case and Davis v Commonwealth on the scope of the executive power in the specific circumstances of those cases, but they relied in part on some observations of Mason J in the AAP case that a broad scope of the executive power may be inconsistent with the Australian federal system of government and the separate responsibilities of the branches of government. In this regard, Hayne and Kiefel JJ observed:

The minority justices (Hayne, Heydon and Kiefel JJ) rejected the arguments of the defendants that the Tax Bonus Act could be valid under s 51(i) ors 51(xxxix). Hayne and Kiefel JJ, however, held that a reading down of relevant provisions of the Act and redefining the bonus entitlements could make the Tax Bonus Act valid as a law under s 51(ii).

Answer

(ii)

Limitations of the executive power of the Commonwealth and invalidity of the Tax Bonus Act: minority views

In his opinion, French CJ of the majority justices held that as a short-term fiscal measure m response to the global financial cns1s,

[T]he ambit of the Commonwealth executive power is to be identified having regard to the whole of the constitutional structure, not only those provisions that deal directly with the subject of executive power. To do otherwise would not read s 61 in the context of the whole Constitution. In particular, identifying the scope of Commonwealth executive power in relation to raising and expenditure of public moneys requires consideration

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(i)

;Tax Bonus Act' and scope of the executive power of the Commonwealth under s 61: majority views

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of more than the respective spheres of exercise of executive power by the Commonwealth and State governments. To confine attention to executive power is to ignore the intersection between executive and legislative power for which s 51(xxxix) expressly provides. (at 337)

these arguments. The validity of the Act in terms of the taxation power under s 51(ii) was, however, considered.

In his separate opinion, Heydon J of the minority also ruled that a 'fiscal stimulus package' was beyond the scope of the executive power of the Commonwealth. Like Hayne and Kiefel lJ, he also relied on qualifications on the scope of the executive power in the context of the federal scheme of government in Australia. In this regard, Heydon J relied on observations made by Mason Jin the AAP case, and ruled that not all activities undertaken by the Commonwealth Government could be justified under s 61 of the Constitution: It would be fallacious, and antithetical to the Constitution which created the federation, with its central and State governments, to ascribe to the central government automatically all powers which, in a non-federal nation, might be thought to be inherent in the fact of nationhood or in the idea of a national government. (at 519)

(iii)

Scope of appropriations under ss 81and83 of the Constitution and validity of appropriation for payment of tax bonus

The applicant in Pape v Commissioner of Taxation contended that money to be paid to taxpayers under the Tax Bonus Act had not been appropriated from the Consolidated Revenue Fund as required by s 83 of the Constitution; it was also argued that, even if there had been an appropriation by law, it was not an appropriation for 'the purposes of the Commonwealth' as required bys 81 of the Constitution. On the other hand, one of the arguments of the Commonwealth was that the Tax Bonus Act could be supported by a combination of ss 81and51(xxxix) of the Constitution. The majority justices held that, in respect of payments under the Tax Bonus Act, there was an appropriation by law, and that it was an appropriation for 'the purposes of the Commonwealth'. However, the Commonwealth argument that the Act could be supported under ss 81 and 51(xxxix) was not accepted. In this regard, French CJ observed: 4-18

[T]he Commonwealth's submission that the Tax Bonus Act can be supported by a combination of ss 81 and 51(xxxix) should not be supported. The requisite power in this case is to be found ins 61 read withs 51(xxxix), conditioned upon the appropriation requirement in s 83 read with the requirement in s 81 that appropriations must be for 'the purposes of the Commonwealth'. (at 112)

(iv)

Validity of Tax Bonus Act under taxation power ins 51 (ii)

The contention of the Commonwealth was that the Tax Bonus Act or parts of it was valid as a law 'with respect to' taxation; it could thus be justified under s 51(ii) of the Constitution. In deciding this question, Hayne and Kiefel 11 considered the applicability of the High Court's previous decision in Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155; in that case it was held that a law regulating and defining rights of refund of certain taxes mistakenly paid to the Commonwealth was a law with respect to taxation. In this regard, Hayne and Kiefel 11 were prepared to read down the relevant provisions of the Act in a manner that provided for payment of a tax bonus to taxpayers related to their taxable income in 2007-08: Read with that operation, the ... [Tax Bonus Act] provides for repayment to certain taxpayers of some or all of the amount the taxpayer was liable to pay for income tax for the last complete income year. With that operation the ... [Tax Bonus Act] is a law with respect to taxation. (at 393)

In their majority opinion, Gummow, Crennan and Bell lJ ruled that the manner in which Hayne and Kiefel lJ suggested a reading down of the relevant provisions of the Tax Bonus Act would result in introduction of a foreign integer in the calculation of tax bonus. The majority opinion of Gummow, Crennan and Bell lJ also found the Tax Bonus Act was different from the statute that was in controversy in Mutual Pools & Staff Pty Ltd v Commonwealth. (v)

Conclusion

4-20 In Pape v Commissioner of Taxation [2009] HCA 23, the majority of the High Court (French CJ, Gummow, Crennan and Bell lJ) held valid the Tax Bonus Act that provided for a one-off bonus payment to taxpayers as part of a 'fiscal stimulus package' in response to the global financial crisis. The majority justices ruled that the Act was supported by ss 61 and 51(xxxix) of the Commonwealth Constitution; the expenditures made under the Act were authorised by valid appropriation under ss 81 and 83 of the Constitution. The minority justices (Hayne, Kiefel and Heydon JJ) rejected these conclusions.

While upholding the validity of the Tax Bonus Act, the majority, however, agreed that the scope of the executive power of the Commonwealth was not unlimited. The executive power did not extend to a general power to manage the economy. Exercise of the executive power under s 61 of the Constitution must be limited by considerations of federalism. The minority justices also agreed with this view.

Since the majority upheld the validity of the Tax Bonus Act under ss 61 and 51(xxxix) of the Constitution, they did not have to consider the Commonwealth's arguments of its validity in terms of the taxation power of the Commonwealth under s 51(ii), or under the trade and commerce power and external affairs power in s 51(i) and (xxix) respectively of the Constitution. The minority justices considered issues of the validity of the Tax Bonus Act under s 51(i) and (xxix) but rejected

Although the minority ruled the Tax Bonus Act invalid as an unjustifiable exercise of the Commonwealth's executive power in s 61 of the Constitution, two of the minority justices (Hayne and Kiefel lJ) suggested that the Act could be valid under s 51(ii) of the Constitution as

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a law with respect to taxation, provided that the scheme of payment of tax bonus under it is redefined.

for promotion of these alternative sources of energy. Pursuant. to ~he conventions, the Liberal Democratic Party (LOP) wants to pass leg1slat1on to achieve the purposes of the conventions. In 2020, the LOP government seeks to implement the un.dertakings under these conventions and introduces the Solar and Wind Power Substitution Bill 2020 (Cth) in the Commonwealth Parliament. Despite strong opposition, this Bill is passed by the House of Representatives, but is overwhelmingly rejected by the Senate. The government then explo.res other ways to partly achieve the objectives of reliance on solar and wind power as alternative sources of energy generation. ln2021, the Commonwealth Government initiates a scheme of establishing centres across Australia for popularising the idea of dependence on solar energy and wind power in urban households and agric.ultural farms in the different states. This scheme, identified as the Alternative Energy Sources Plan (AESP), establishes a Solar and Wind Power Demonstration Cen~re (SWPDC) in each municipal and shire council in all states of Australia. The SWPDCs are to run for a period of 10 years. These SWPDCs are entrusted with the tasks of popularising wind and solar power as alternative sources of energy for . ho~sehol~s in ur~an areas and farms in rural areas, promoting the publication of information on these alternative energy sources, and the holding of conferences and seminars on these issues. An amount of $750 million is appropriated by the Appropriation Act (No 20) 2021 (Cth) for running the programs of the AESP. The Government ofTasmania intends to initiate proceedings in the High Court for a declaration that the appropriation of $750 million for funding the SWPDC's activities is invalid. The Government ofTasmania also plans to seek an injunction from the High Court to restrain the Commonwealth from spending any portion of the appropriated money for the purposes of the AESP. Advise the Government ofTasmania.

Examiner's Comments 4-21 Two of the most important issues for decision by the High Court in Pape v Commissioner of Taxation related to the validity of the Tax Bonus Act under ss 61 and 51(xxxix), and the requirements of appropriation of moneys under ss 81 and 83 of the Constitution. The answer adequately examines these principal issues in light of the majority and minority opinions in this case. The discussion of these issues under separate headings has made the answer better structured and easier to follow.

The analysis of the two majority opinions, and the views of the minority justices on the validity of the Tax Bonus Act in terms of ss 61, 51(xxxix), 81 and 83, evidences a good understanding of the major issues involved. The brief discussion of the views of some of the minority justices on questions of the validity of Act under taxation, trade and commerce, and external affairs powers of the Commonwealth is sufficient for purposes of the answer.

f/fr

~ Keep in Mind In discussing the majority and minority opinions in this case, the relative importance of the several issues should be kept in mind. Accordingly, more space should be allocated to an examination of the validity of the Tax Bonus Act under the executive power of the Commonwealth ins 61 of the Constitution. The relationship of the provisions of this section withs 51(xxxix) of the Constitution should also be explained. Although the issues of validity of the Act in terms of the scope of the Commonwealth's executive power and expenditure for the purposes of the Act are interlinked, the answer is better structured by discussing the issues separately. In regard to appropriation of moneys for the tax bonus scheme, the requirements under both ss &1 and 83 should be explained. Inclusion of a discussion on the validity of the Tax Bonus Act under the taxation power of the Commonwealth is important for a comprehensive answer on all aspects of the arguments in this case. In view of the expected length of the answer, the discussion in this regard should be brief.

.;.tt Question 4

Time allowed: 60 minutes

· Answer Plan The answer to this problem question involves an examination of the nature and scope of the executive power of the Commonwealth, and the appropriation of money for running the expenses of a project establish~d by executive policy. Issues of the federal scheme of government m Australia are also involved in the answer to the question.

Assume the following situation: In 2019, Australia signs the International Convention on Use of Solar Power 2019 and the International Convention on Use of Wind Power 2019. By these conventions, all signatory states are to take effective steps

In the answer, the legitimacy of the AESP by Commonwealth executive policy is examined first. In this regard, the nature . an~ scop~ of the Commonwealth's executive power ins 61 of the Constitution is d1scus~ed and analysed with reference to case law. The fact situation of the quest10n is then related to the conclusions reached in these decisions on the scope

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of s 61. It is concluded that it is within the range of the Commonwealth's executive power to establish the AESP.

In the AAP case, where the legality of the establishment of the Australian Assistance Plan (AAP) by executive policy was in question, Mason J was of the opinion that the Commonwealth Government was enabled to engage in enterprises and activities peculiarly suited to the government of a nation. It was pointed out by Mason J that these functions and activities vary from time to time, and these can only be undertaken by the national government. In Davis v Commonwealth, the question whether the executive power of the Commonwealth extended to the commemoration of the bicentenary of British settlement in Australia was answered in the affirmative. In their joint judgment, Mason CJ, Deane and Gaudron JJ observed that the commemoration of the bicentenary was a matter which fell within the peculiar province of the Commonwealth in its capacity as the national and federal government. In Pape v Commissioner of Taxation [2009] HCA 23, the validity of the legislation for payment of the one-off tax bonus to taxpayers as part of a 'fiscal stimulus package' was challenged. The majority of the High Court held that, since the tax bonus legislation was in response to the global financial crisis, it was supported by ss 61 and 51(xxxix) of the Commonwealth Constitution. In this regard, the decisions in the AAP case and Davis v Commonwealth were relied upon. The majority justices in Pape v Commissioner of Taxation, however, ruled that although the executive power in that case extended to the short-term fiscal measures in question, the executive power could not be interpreted as a general power to manage the economy of the nation. The possible limitations were later articulated in more detail in Williams v Commonwealth (No 1) [2012] HCA 23 and Williams v Commonwealth [2014] HCA 23. In these two cases, a Commonwealth policy for the establishment of a school chaplaincy program in the states, and appropriation in this regard, were held to be invalid.

The concerns of federalism in relation to the establishment of the ~~DCs under the AESP are explored in light of the observations of Justices of the High Court in the relevant decisions. The issue of whether money can be appropriated through the parliamentary process to fund the AESP established by executive policy is also examined. This is done with reference to constitutional provisions and case law. In line with judicial decision on these issues, it is concluded that establishment of the AESP is .not contr~r~ ~o the principles of federalism, and appropriation for fundmg the act1v1t1es of the SWPDCs is valid.

Answer (i)

Introduction

4-22 The executive power of the Commonwealth is entrenched in s 61 of the Constitution. The scope of the Commonwealth's executive power extends to the execution and maintenance of the Constitution and the ~aws of the. Commonwealth. The High Court has tended to give a broad mterpretatton to the scope of this power. However, limitations on its scope have been quite clearly articulated in decisions beginning with Pape v Commissioner of Taxation [2009] HCA 23.

Limitations to the scope of the executive power of the Commonwealth have been explored in light of the issues of federalism and the extent to .wh~ch the appropriation power can be relied upo~ to realise the ob1ect1ves set out in projects initiated by Commonwealth executive policy. In ~ape~ C?mrr:issioner of Taxation [2009] HCA 23 the High Court, while h1ghhghtmg the extent to which the executive power ~nder s ~1 can be relied upon, also laid down some specific limits to its exercise. The possible limitations on the use of federal executive power identified in this case were later used by the High Court in Williams v Commonwealth (No 1) [2012] HCA 23, and Williams v Commonwealth [2014] HCA 23 to hold invalid a Commonwealth policy for the establishment of a school chaplaincy program in the states, and appropriation in this regard.

4-23 The constitutionality of the Alternative Energy Sources Plan (AESP) depends on whether it is within the scope of the executive power ?f the ~ommonwealth under s 61 of the Constitution. In this regard, it is mstruct1ve to consider the findings of the High Court in the following cases: Vict?ria v Commonwealth and Hayden (1975) 134 CLR 338 (AAP case); Davzs_v Commonwealth (1988) 166 CLR 79; Pape v Commissioner of Taxation [2009] HCA 23; Williams v Commonwealth (No 1) [2012] HCA 23; and Williams v Commonwealth [2014] HCA 23.

The AESP is a scheme initiated by the Commonwealth Government under which a Solar and Wind Power Demonstration Centre (SWPDC) is established in municipal and shire councils in all states of Australia. Under the AESP, the SWPDCs are established for popularising the idea of dependence on solar energy and wind power in urban households and agricultural farms. The AESP is undertaken in pursuance of two international conventions and because of the failure of the government to pass legislation in this regard. It cannot be seriously refuted that finding alternative power sources is a major international issue and a task national governments should address meaningfully. This task can be considered an appropriate task to be undertaken by the Commonwealth as a national government. This conclusion can be supported by analogy to the High Court decisions in the AAP case and in Davis v Commonwealth. Further, the SWPDCs are to run for a period of 10 years only. It is thus a short-term measure and can be related to the situation that arose for determination in Pape v Commissioner of Taxation; the rulings in

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(ii)

Validity of the Alternative Energy Sources Plan in terms of the scope of the executive power and its limitations

Commonwealth Executive

LNQA Constitutional Law

Williams v Commonwealth (No 1) [2012] HCA 23 and Williams v Commonwealth [2014] HCA 23 do not apply. (iii)

Initiation of the Alternative Energy Sources Plan by Commonwealth executive policy and issues of federalism

The initiation of the AESP by Commonwealth executive policy and the establishment of SWPDCs in municipal and shire councils in all states of Australia raise issues of the federal scheme of government in Australia. In previous cases, the issue of whether activities undertaken in pursuance of Commonwealth Government policy affect the federal distribution of powers has been identified as a very important factor. 4-24

This issue was raised in the AAP case, and it was argued that some of the services provided by the scheme (AAP's nationwide system of regional councils) did not fall within the acknowledged heads of legislative power of the Commonwealth; these services were provided, or could be provided by, existing state government machinery. While not accepting this argument, and ruling that the AAP was valid because of the overall national character of the scheme, Mason Jin the AAP case observed that the executive power of the Commonwealth should not be interpreted so broadly as to effect a radical transformation of the federal structure of government. In Pape v Commissioner of Taxation, payment of a tax bonus to taxpayers under the 'fiscal stimulus package' sanctioned by Commonwealth executive policy was argued to be inconsistent with the federal system of government in Australia. Although the majority justices did not agree with this contention, they nevertheless emphasised that principles of federalism could not be ignored in the exercise of the Commonwealth's executive power. In this regard, French CJ stressed that exigencies of the Commonwealth Government could not be invoked to set aside the distribution of powers between the Commonwealth and the states.

(iv)

Appropriation of moneys for running programs of the AESP

Section 81 of the Constitution provides for the appropriation of moneys from the Consolidated Revenue Fund for 'the purposes of the Commonwealth'. By s 83, no money can be drawn except under appropriation made by law. The validity of appropriation of moneys for defraying the costs of projects undertaken in pursuance o~ e_xecutive policy. was. cons_id_ered in the AAP case, in Pape v Commissioner of Taxation, m Williams v Commonwealth (No 1) [2012] HCA 23 and in Williams v Commonwealth [2014] HCA 23. In the AAP case, an amount of $5 .9 million was appropriated for running the regional councils established by the AAP. The appropriation for running the AAP scheme was held valid, but the possibility of judicial review of appropriation legislation was not extensively considered. In Pape v Commissioner of Taxation, appropriation for payment of a tax bonus to taxpayers was impugned as not conforming to the requirements of ss 81 and 83 of the Constitution. Unlike the situation in the AAP case, appropriation for payments under the Tax Bonus Act was not made by that law but under the provisions of other tax-related legislation. The question whether that appropriation was validly made under ss 81 and 83 was answered in the affirmative, but it was stressed that appropriations under the provisions of these sections must be for 'the purposes of the Commonwealth'.

4-25

In this problem question, under the Commonwealth Government's AESP, SWPDCs are set up in municipal and shire councils in all states of Australia. Since local councils are set up under state governments, the validity of the AESP may be challenged as infringing the federal scheme of government. In this regard, international concerns of energy substitution, and the need for concerted action by the national governments may be persuasive grounds for upholding the validity of the AESP. Additionally, the SWPDCs are set up for a limited time only. These factors may overcome the arguments of federalism. While energy substitution schemes may also be effected by Commonwealth grants to the states under s 96 of the Constitution, this is a matter of choice by the Commonwealth Government. The same factors of international concern, the need for concerted action and the short-term existence of SWPDCs differentiate the situation from the context of the rulings in Williams v Commonwealth (No 1) [2012] HCA 23 and Williams v Commonwealth [2014] HCA 23.

In Williams v Commonwealth (No 1) [2012] HCA 23, the National School Chaplaincy Programme (NSCP) was established by Commonwealth policy under s 61 of the Commonwealth Constitution without any specific legislative authority. The Financial Management and Accountability Act 1997 (Cth) (FMAA) enabled appropriation of moneys for operating the NSCP. In proceedings before the High Court on the legality of the NSCP, the majority in Williams v Commonwealth (No 1) variously held that the FMAA was directed to the prudent management of the NSCP, and did not confer power to spend money for the operation of the NSCP; the expenditure did not fall within any ordinary and well-recognised functions of the Government of the Commonwealth. This conclusion was reiterated in Williams v Commonwealth [2014] HCA 23. According to the facts of this problem question, the programs of the AESP are to be funded by the Appropriation Act (No 20) 2016 (Cth). The validity of this appropriations legislation can be considered in light of the findings of the High Court justices in the AAP case and in Pape v Commissioner of Taxation. In the discussion above, the AESP is valid as an exercise of the Commonwealth's executive power. Funding of this scheme is covered by the appropriation legislation, and the money appropriated is for 'purpose of the Commonwealth' - fede~al. efforts to popularise the need for energy substitution. The Appropnat10n Act (No 20) 2016 (Cth) is therefore valid.

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(v)

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Conclusion

The Alternative Energy Sources Plan (AESP) is undertaken by the Commonwealth Government under its power ins 61 of the Constitution by relying on two international conventions, and in light of the failure of the government to pass legislation in this regard. Finding alternative power sources of energy is a genuine international issue, and a coordinated effort by national governments is required to address this issue effectively. This task can be appropriately undertaken by the Commonwealth as the national government. The AESP is within the scope of the executive power of the Commonwealth. 4-26

Since local councils are set up under state governments, the establishment of SWPDCs for a limited period of time, under the AESP, in municipal and shire councils in different states of Australia may be a ground for challenge. However, it can be argued that international concerns of energy substitution and the need for concerted action by the national governments may surmount strict adherence to mechanisms of federalism that are normally applicable in relation to the Commonwealth's powers.

Keep in Mind While the issue of the scope of s 61 is apparent from the facts of the problem question, the requirements of federalism and the question of the legality of parliamentary appropriation are also very important for a full answer. It is essential in this regard to base the discussion under separate headings. In the latter decisions of the High Court, the findings in the earlier precedents have been extensively referred to. In the answer, recourse to the findings in the earlier cases should be highlighted. In the latter cases, there has also been more emphasis on issues of federalism. The answer should take this into account. Although the constitutional requirements of valid appropriation are dealt with in more detail in the latter High Court decisions, references in this regard to holdings in the earlier decisions would make the conclusion clearer.

Funds for running the costs of programs of the AESP are appropriated by the Appropriation Act (No 20) 2016 (Cth). Since the appropriation is made under legislation made by the Commonwealth Parliament, it is valid under s 83 of the Constitution. The AESP can be validly undertaken in pursuance of the Commonwealth's executive power under s 61 of the Constitution; appropriation of money for funding this scheme falls within the meaning of 'the purposes of the Commonwealth'. The appropriation therefore meets the requirements of s 81 of the Constitution.

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Examiner's Comments 4-27 Three important issues need to be addressed for a correct conclusion to the problem question: the scope of the Commonwealth's executive power; federal principles of government; and the constitutional requirements for valid appropriation of moneys. All these issues are correctly identified in the answer. The discussion in the answer adequately takes into account the major decisions of the High Court that have dealt with these questions.

Brief recitals of the facts and circumstances in each of the precedents used in support of the conclusions are incorporated in the answer. This has highlighted the similar issues that arose in those cases. The findings in the High Court decisions used in support of the answer have given varying emphasis on the scope of the Commonwealth's executive power. The requirements of federalism have also been emphasised differently in those cases. The answer adequately takes these into account.

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Chapter 5

Commonwealth Parliament Key Issues The contents of this chapter relate to the structure and composition of the Commonwealth Parliament, the scope of its legislative powers and its various legislative procedures. An important part of the study of the Commonwealth Parliament is the nature of the franchise. Discussion on the Commonwealth franchise is also included in this chapter. 5-1

According to s 1 of the Commonwealth Constitution, the legislative power of the Commonwealth is vested in a 'Federal Parliament', comprising of the Queen, a Senate and a House of Representatives. For practical purposes the Queen's powers are exercised by the Governor-General, who by s 2 of the Constitution is the Queen's representative in the Commonwealth. In the bicameral parliamentary system established by the Commonwealth Constitution, the House of Representatives is comprised of members 'directly chosen by the people of the Commonwealth', and the number of such members is approximately twice the number of senators: s 24. Bys 7 of the Constitution, the Senate is composed of an equal number of senators from each state for a period of six years. Since 1973, legislation has provided for two senators each from the Australian Capital Territory and the Northern Territory. This legislation was found valid in Western Australia v Commonwealth (1975) 134 CLR 201 (First Territorial Senators case). Two basic questions about the franchise established by the Commonwealth Parliament have given rise to controversy. First, is the principle of 'one vote one value' implied in the Commonwealth Constitution? Second, does the Constitution guarantee the right to vote? By the principle of 'one vote one value', each vote in a democratic election is expected to have the same weight in determining the outcome of the election. In Attorney-General (Cth}; Ex rel McKinlay v Commonwealth (1975) 135 CLR 1, it was contended that the expression 'directly chosen by the people of the Commonwealth' implied that the principle of 'one vote one value' be followed. The majority of the High Court did not accept this argument. The 'one vote one value' argument was subsequently raised in McGinty v Western Australia (1996) 186 CLR 140, but it was again rejected.

Although it was earlier held in R v Pearson; Ex parte Sipka (1983) 152 CLR 254 that a substantive right to vote could not be derived from -99-

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s 41 of the Constitution, the later decision of the High Court in Roach v Electoral Commissioner (2007) 233 CLR 162 has held that a qualified right to vote can be implied from the provisions of ss 7 and 24 of the Constitution. In Rowe v Electoral Commissioner [2010] HCA 46, the High Court reiterated the principle in Roach v Electoral Commissioner. Legislative procedures are the processes by which parliament passes legislation. The different legislative procedures are the standard procedure, the alternative procedure and special procedures for financial legislation. In the Commonwealth Constitution, provisions for the alternative procedure are found in s 57. The framework of special procedures for financial legislation is found in ss 53-56 of the Constitution. In Cormack v Cope (1974) 131CLR432 and Victoria v Commonwealth (1975) 134 CLR 81 (PMA case), it has been ruled that legislative procedures are justiciable. In the PMA case, the majority of the High Court decided that it was mandatory that all requirements of the alternative procedure in s 57 be fulfilled. There are certain disqualifications of MPs and senators of the Commonwealth Parliament. These are classified in s 44 of the Constitution. These were explored by the High Court in Re Webster (1975) 132 CLR 270, Sykes v Cleary (1992) 176 CLR 77, Free v Kelly (1996) 185 CLR 296 and Sue v Hill (1999) 199 CLR 462.

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Before tackling the following questions, please check you are familiar with the following:

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composition, powers and functions of the House of Representatives;

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representation in the Senate from states and territories;

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right to vote and s 41 of the Commonwealth Constitution;

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representative democracy and the right to vote;

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the principle of 'one vote one value' and implications of s 24 of the Commonwealth Constitution;

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legislative procedures of the Commonwealth Parliament; and

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disqualifications of MPs and senators.

Question 1 Compare and contrast the majority and minority opinions in Western Australia v Commonwealth (1975) 134 CLR 201 (First Territorial Senators case) with regard to the inclusion of senators from the territories in the Senate of the Commonwealth Parliament.

Time allowed: 60 minutes -100-

Answer Plan Several provisions of the Constitution, an Act of Parliament and a major High Court decision need to be examined in the answer to this question. The principle objective of the Act of Parliament providing for senators from the territories is set out first in the answer. The provisions of the Commonwealth Constitution that are attracted on the controversial question of the new senators are then discussed separately and in the context of their interrelationships. This discussion refers to the majority and minority opinion of the High Court in the First Territorial Senators case. In the examination of majority and minority opinions, the issue of democracy and parliamentary representation is highlighted. Comments are also made in the answer on techniques of constitutional interpretation. The answer reiterates the findings of the majority in the First Territorial Senators case, and it is concluded that the principles of democracy require representation from the territories. The conclusion emphasises the need for contextual and progressive constitutional interpretation.

Answer (i)

Introduction

5-2 Until 1973 there was no controversy that members of the Senate could only be senators from the states. The Senate was conceived as a 'States House' with an equal number of senators from each of the states regardless of the disparities of the physical size and populations among the states. In 1973, parliament passed the Senate (Representation of Territories) Act 1973 (Cth). This Act provided for the representation of territories in the Senate. By the provisions of this Act, the Northern Territory and the Australian Capital Territory were to have two senators each. In Western Australia v Commonwealth (1975) 134 CLR 201 (First Territorial Senators case) this Act was challenged before the High Court by Western Australia and New South Wales . (ii)

Constitutional issues in the First Territorial Senators case

5-3 In the First Territorial Senators case the constitutionality of the Senate (Representation of Territories) Act 1973 (Cth) had to be decided in light of the scope and interpretation of ss 7, 24 and 122 of the Constitution. Section 7 of the Constitution provides for the composition of the Senate with senators elected by the people of each state voting as one electorate. It is also provided by s 7 that there should be an equal number of senators from each state, and that senators are to have a term of six years. The provisions of s 24 of the Constitution established the House of Representatives comprising of members directly chosen by the people of the Commonwealth. It is also provided in s 24 that -101 -

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the size of the House of Representatives should be twice the size of the Senate. By s 122 of the Constitution, the Commonwealth Parliament is empowered to legislate for a territory and to allow representation of such territory in either house of parliament to the extent and on such terms as it thinks fit. Section 4 of the Senate (Representation of Territories) Act 1973 (Cth) provided for the inclusion of two senators from both the Australian Capital Territory and the Northern Territory. By s 7(2) of this Act, these senators were to remain in office only until the next general election for the House of Representatives. In the First Territorial Senators case, Western Australia and New South Wales argued before the High Court that, despite the authority of the Commonwealth Parliament to allow representation of a territory in either house of parliament, the ruling provision with respect to the Senate was s 7 of the Constitution. It was urged that s 7 of the Constitution exhaustively defines the composition of the Senate by providing that it 'shall be composed of senators for each state, directly chosen by the people of the State'.

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In arriving at a decision, the majority of the High Court, McTiernan, Mason, Jacobs and Murphy JJ, found the Senate (Representation of Territories) Act 1973 (Cth) valid. The minority justices, Barwick CJ and Gibbs and Stephen JJ, found that s 122 was to be read in the light of the provisions of ss 7 and 24 of the Constitution. In that regard, the Act was invalid.

(iv)

5-5 The majority and minority justices differed in their approaches in regard to representation of the territories in the two houses of parliament. Chief Justice Barwick of the minority was not against representation of the territories in the House of Representatives; any representative from a territory in the Senate could not be treated as a senator or have voting rights. In this regard, Barwick CJ observed: The interpretation which, in my opinion, is the correct interpretation is that s 122 would at most permit the Parliament to allow representation of a Territory in the Senate by a delegate who would not have the right of a senator for a State and who in any case, by whatever name designated, would not be entitled to be treated as a senator for a State or vote on any questions before the Senate. (at 232) In his opinion, Mason J of the majority examined the possibility of allowing representation from the territories only in the House of Representatives. But for him this reasoning was not persuasive: To my mind it is not a convincing answer ... to say that the House stands in a different position from the Senate, that the Territories may be accorded representation by membership in the House but not in the Senate, for s 122 contemplates no such distinction. The power which it confers on Parliament to allow representation of the Territories 'on the terms it thinks fit' applies specifically 'in either House of the Parliament'. (at 271) (v)

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(iii)

Interrelationship of ss 7, 24 and 122 of the Constitution

In his judgment, Mason J of the majority agreed with the arguments of Western Australia and New South Wales thats 122 would have to be read in the light of ss 7 and 24. However, s 122 would also have to be taken into account in considering the scope of ss 7 and 24. In this regard, Mason J observed: 5-4

Just ass 122 requires to be read with Ch I so also account must be taken of s 122 in the interpretation of ss 7 and 24. If they are to be read as limiting the composition of each House for all time to representatives of the States, it follows that the power given to Parliament bys 122 to 'allow representation of such Territory in either House of Parliament to the extent and on the terms which it thinks fit' must be confined to a power to provide for the appointment of representatives of the Territories who are voteless, if not voiceless. (at 269-70) Chief Justice Barwick of the minority denied that ss 7 and 24 should be read in light of the provisions of s 122. For Barwick CJ, this interpretation was to be derived by the wording of these provisions:

Territorial representation in both houses of the Commonwealth Parliament

Section 122 and the prospective possibility of territorial representation in the Commonwealth Parliament

One of the problems that the majority of the High Court in the First Territorial Senators case had to overcome was the absence of any reference to the territories in ss 7 and 24 of the Constitution. Justice Mason held that in interpreting those sections one must take into account the prospective possibility of representation from the--territories in the two houses of parliament: 5-6

The apparent opposition which arises from the reference to representation of the territories in s 122 and the absence of any such reference in ss 7 and 24 is irreconcilable only if it is assumed that Ch I in making provision for the composition of the Senate and the House is necessarily speaking for all time. To my mind this assumption is misconceived. Sections 7 and 24 should be regarded as making provision for the composition of each House which, nevertheless, in the shape of s 122, takes account of the prospective possibility that Parliament might deem it expedient, having regard to the stage which a Territory might reach in the course of its future development, to give it representation in either House by allowing it to elect members of that House. (at 270)

(vi)

Federalism, democracy and representation

Neither s 7 nor s 24 is prefaced with the words 'subject to the Constitution': nor is s 122 prefaced with the words 'notwithstanding any other provision of the Constitution'. Some such qualification might well be expected if it had been intended that the provisions of s 7 or 24 could be displaced or qualified by a law made under s 122. (at 277)

5-7 Implicit in Mason J's opinion for allowing representation of the territories in both houses of the Commonwealth Parliament is the democratic principle of participation and representation. This context

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was highlighted in Murphy J's opinion in upholding the validity of the Senate (Representation of Territories) Act 1973 (Cth): The permanent deprivation of representation by membership in the Senate or the House of Representatives is a serious exclusion from the democratic process. These Houses are our most important political institutions, the principal organs of our democracy; their decisions are vital to every Australian. Their importance to the people of the territories is not less than their importance to the people of the states. It is contrary to the democratic theme of the Constitution that Parliament should not be able to allow representation by membership in either House to territories at the time and on the terms which the Parliament considers appropriate. (at 286) The minority justices insisted that the issues of federalism were crucial in determining the validity of the legislation. In light of this concern, Barwick CJ argued for a restrictive meaning of the expression 'representation' ins 122:

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Some lesser connotation of the word 'representation' must be found to make the Constitution, basically federal in nature, consistent throughout. To fit ... [Ch VI, 'New States', comprising of ss 121-124) into the Constitution as a whole, in my opinion, the expression 'allow representation' must be construed so as to be consonant with and indeed to preserve and not to endanger or destroy an essential feature of federation, namely the maintenance of the Senate as the States House. In other words s 7 is relatively a dominant provision and not subject to the exercise of the power given bys 122. (at 232)

(vii)

••

Conclusion

5-8 The underlying techniques of interpretation of the majority and minority justices have some similarities. The different opinions relied on literal interpretation of the text of the relevant provisions of the Constitution; but the majority and minority justices reached different conclusions by following these interpretative approaches. The underlying theme in the conclusions of the majority, that the federal scheme of the Constitution should be seen in light of the democratic principles of participation and representation, is more persuasive. The Commonwealth Constitution establishes a representative democracy, and individuals from the states or territories should be represented in both houses of parliament. Although, at the time of adoption of the Commonwealth Constitution, s 7 was framed in the way that it is, the future possibility of representation of the territories in both the House of Representatives and the Senate appears to have been included in the provisions of s 122. By the provisions of s 122, parliament is empowered to pass legislation to allow territorial representation in the Commonwealth Parliament. This was done by adoption of the Senate (Representation of Territories) Act 1973 (Cth). The reasoning of the majority in the First Territorial Senators case that this Act was valid is convincing. There should be representation from the territories in both the Senate and the House of Representatives of the Commonwealth Parliament. -104-

Examiner's Comments 5-9 The question asks for an examination of the majority and minority opinions in the First Territorial Senators case. The answer satisfactorily addresses the contentious issues raised in that case. The statute in question and the relevant constitutional provisions are highlighted and discussed prior to the examination of the High Court decision in this case. The questions arising in the case are identified adequately, and the answer is structured with reference to those questions. Aspects of constitutional theory such as federalism, democracy and representation are correctly pointed out with reference to the opinions of the majority and minority justices. The conclusions of the majority and minority justices on the relevant issues are adequately highlighted and contrasted. Some of the justices related their conclusions to additional provisions of the Constitution. The answer, ostensibly for considerations of brevity, does not include a discussion in this regard. This does not detract from the acceptable quality of the answer. The brief references in the conclusion to techniques of interpretation are indicative of a sound grasp of the issues involved in the case.

~ ~ Keep in Mind In answering this question, the contents of the statute and their implications in relation to the relevant constitutional provisions should be discussed in the beginning. That should put the discussion of the case in perspective. The answer must be structured around the issues on which the majority and minority disagreed. Answer to the question requires a comparative analysis of the majority and minority opinions in the case. In this regard, the answer should be analytical, evaluative and critical. Since it is not practicable to examine all of the opinions of the different justices, it is important to choose the most relevant ones for purposes of the answer. It is expected that the answer should indicate a preference for the majority or minority view. Accordingly, this should be a part of the answer. The reasons for adopting one or the other view should also be included in the answer.

• \ Question 2 Discuss with reference to case law whether there is a specific constitutional guarantee of the right to vote or, alternatively, that a right to vote can be implied from relevant provisions of the Commonwealth Constitution. Time allowed: 60 minutes

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Answer Plan

This question is directed to an examination of the issues relating to the right to vote under the provisions of the Commonwealth Constitution. The answer examines the relevant constitutional provisions and the decisions of the High Court that have undertaken an examination of these issues. In this regard, the meaning and scope of the provisions of ss 7, 24 and 41 of the Constitution are considered in light of the two major decisions of the High Court that have dealt with these questions.

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The principal decision of the High Court concerning the use of the provisions of s 41 to base an argument on the right to vote is R v Pearson; Ex parte Sipka (1983) 152 CLR 254. The facts and issues of this case are discussed and the reasoning of the majority of the High Court as to why this section cannot be relied upon for this purpose is explained. The minority opinion in this case is also highlighted. The second part of the answer examines how the majority and minority justices in Roach v Electoral Commissioner (2007) 233 CLR 162 dealt with the issue of a right to vote in light of the provisions of ss 7 and 24 of the Constitution. The majority decision in this case - that a right to vote can be derived from the notion of changing notions of representative government - is discussed in more detail. A brief discussion of a later case that reaffirmed the principles of representative government, Rowe v Electoral Commissioner [2010] HCA 46, is also included.

Answer (i)

Introduction

5-10 The right to vote as a constitutional guarantee entails that this right c~nno~ be denied or subverted by any provision of ordinary legislation,

either m terms of the provision itself or in the application of it. Several decisions of the High Court examined whether the Commonwealth Constitution, by express provision or otherwise, recognises the right to vote. Although it was earlier held in R v Pearson; Ex parte Sipka (1983) 152 CLR 254 that a substantive right to vote could not be derived from s 41 of the Constitution, the later decision of the High Court in Roach v Electoral Commissioner (2007) 233 CLR 162 has held that a qualified right to vote can be implied from the provisions of ss 7 and 24 of the Constitution.

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ruled that the latter statute was invalid. In coming to the decision of invalidity of this legislation, the majority justices concluded that a right to vote can be derived from the principles of representative government established by the Constitution and the requirements of universal adult suffrage. This decision was upheld in Rowe v Electoral Commissioner [2010] HCA 46. (ii) 5-11

Section 41 of the Constitution and a substantive right to vote Section 41 of the Commonwealth Constitution provides:

No adult person who has or acquires a right to vote at elections for the more numerous House of Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.

InR v Pearson; Ex parteSipka (1983) 152 CLR 254, the High Court had to resolve questions relating to the Commonwealth franchise principally with reference to s 41 of the Constitution. This case also involved an interpretation of the Commonwealth Electoral Act 1918 (Cth) that was enacted subsequent to the Commonwealth Franchise Act 1902 (Cth). In Sipka, four persons who were entitled to be enrolled under the Commonwealth Electoral Act 1918 (Cth) and who were entitled to be enrolled as electors for the New South Wales Parliament applied for enrolment on both the Commonwealth and state electoral rolls. These four persons were placed on the electoral roll for New South Wales but their claims for enrolment on the roll of Commonwealth electors were deferred until after the general election scheduled for 5 March 1983. The problem arose because of the sequence of events leading up to the 1983 election. On 3 February 1983 the Prime Minister announced that an election would take place in March. The writs were then hastily issued on 4 February 1983. By the operation of s 43 of th