Government powers under a Federal Constitution : constitutional law in Australia 9780455238999, 0455238995

Table of contents :
Preface
Contents
Table of Cases
Table of Statutes
PART A CONSTITUTIONAL CONCEPTS AND THEIR HISTORY
1
The Significance of Constitutions and Constitutional Law
2
Sources of Constitutional Ideas
3
The Colonisation of Australia and the Development of Six Self-­governing Colonies
4
Federation and the Drafting of the Commonwealth Constitution
5
Australian Independence — From the Sovereignty of the UK Parliament to the Sovereignty of the People
PART B
GENERAL PRINCIPLES OF CONSTITUTIONAL LAW AND LITIGATION
6
The Constitution as Supreme Law, and an Outline of its Provisions
7
Constitutional Litigation
8
General Principles of Interpretation of the Commonwealth Constitution
PART C
GENERAL CONSTITUTIONAL DOCTRINES APPLYING TO COMMONWEALTH AND STATES
9
The Executive Branch — Governors, Ministers, Executive Councils and Cabinets
10
Sources of Executive Power
11
Limits on Executive Power; Parliamentary Control of Finance and the Rule of Law
12
General Rules as to the Extent of Legislative Power — Four Non-limits
13
Partial Protection of Human Rights by Interpretive Techniques and Quasi-Constitutional Doctrines
14
The Constitutional Freedom of Political Discussion
PART D
THE COMMONWEALTH PARLIAMENT AND ITS POWERS
15
The Choice of Members by the People
16
The Law-making Process
17
Sources and Interpretation of Commonwealth Powers
18
Business-Regulation Powers — Trade and Commerce, Corporations, Other Powers
19
Nation State Powers — Internal Regulation of Government, External Affairs, Defence, Internal Security, Immigration and Aliens
20
Social Powers — Marriage and Divorce; Pensions, Benefits and Health Services; People of Any “Race”
21
The Commonwealth’s Financial Powers — Tax, Grants to the States, and Spending Money
22
A Power, and a Limit on Powers — Acquisition of Property on Just Terms
23
“Federal” Limitations on Commonwealth Power
24
Express, but Weak, Protection of Human Rights by the Constitution
25
Federal Judicial Power I: Judicial Power Cannot be Given to Bodies that are not Courts
26
Federal Judicial Power II: Limits on Parliament’s Power to Give Non-Judicial Powers to Courts and to Regulate their Proceedings
PART E
CONSTITUTIONAL LAW AND THE STATES
27
“Internal” Constitutional Law of the States — A General Power to Make Laws, Subject to “Manner and Form” Provisions
28
General Effects of the Commonwealth Constitution on State Powers — Concurrent Powers, Exclusive Powers and Prohibitions
29
State Laws Not to Impose Customs or Excise Duties
30
Freedom of Interstate Trade, Commerce and Intercourse
31
Discrimination against Out-of-State Residents Prohibited
32
Inconsistency with Laws of the Commonwealth
33
Commonwealth and State Legislative Powers over Each Other, and Their Limits — Intergovernmental Immunities
34
Independence of State and Territory Courts and Judges
35
A Final Note on the States, and the Drive for More Uniform Laws
PART F
THE TERRITORIES
36
Commonwealth Power Over the Territories, and the Powers of the Self-governing Territories
PART G
POSSIBLE CHANGES TO THE FEDERATION
37
New States, and Changing the Boundaries of States
38
Formal Alteration of the Constitution — the Record So Far and Current Issues
Index

Citation preview

Government Powers under a Federal Constitution Constitutional Law in Australia

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Thomson Reuters (Professional) Australia Limited 19 Harris Street Pyrmont NSW 2009 Tel: (02) 8587 7000 Fax: (02) 8587 7100 [email protected] legal.thomsonreuters.com.au For all customer inquiries please ring 1300 304 195 (for calls within Australia only) INTERNATIONAL AGENTS & DISTRIBUTORS

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NORTH AMERICA Thomson Reuters Eagan United States of America

ASIA PACIFIC Thomson Reuters Sydney Australia

LATIN AMERICA Thomson Reuters São Paulo Brazil

EUROPE Thomson Reuters London United Kingdom

5/01/2017 11:23 am

Government Powers under a Federal Constitution Constitutional Law in Australia

John Pyke BSc (Hons) (Syd), LLB (UNSW), LLM (Syd) 

LAWBOOK CO. 2017

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Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW National Library of Australia Cataloguing-in-Publication entry

A Catalogue-in-Publication entry is available upon request from the National Library of Australia



ISBN 978 045 5238999

© Thomson Reuters (Professional) Australia Limited 2017 This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. All Commonwealth legislative material is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. For reproduction or publication beyond that permitted by the Copyright Act 1968 (Cth), permission should be sought in writing from the current Commonwealth Government agency with the relevant policy responsibility.

This edition is up to date as of 1 December 2016. Editor: Puddingburn Publishing Services Pty Ltd Product Developer: Lucas Frederick Publisher: Robert Wilson Printed by Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info: www.pefc.org

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Preface I suppose the best description of what I have tried to write here is a “critical textbook”. Certainly it is in the first place a textbook, in that I expect most of the readers will be students formally studying Constitutional Law, and my first aim has been to explain the law as it is, as comprehensively as necessary and as accurately as possible. However, there is a danger in emphasising the law as it is — as Kris Shaffer says, “Nothing enshrines an idea quite like printing it in a textbook”.1 I have known lawyers who react with a degree of shock to any new development in the law, not because they think it is bad as against some higher principles but just because it is different from what they were taught by some revered teacher, or from what they read in some authoritative textbook, years ago while they were still capable of absorbing new ideas. Most of my readers may be students now, but in future years they will be lawyers or even politicians and judges, and I do not want my description of the law as it is in late 2016 — however accurate it may be — to fossilise into their view of the law as it ought to remain for all eternity. So I have also emphasised that our understanding, and the High Court’s understanding, of the effects of the Commonwealth Constitution have changed and may continue to change in the future. In places I have made suggestions as to how I think the law will develop, in a few places I have made suggestions as to how I think it should develop, and in the final chapter I have made a bold suggestion or two as to how the text of the Constitution could or should be amended. However, I hope I have made the division between statements of the law as it is, predictions of the law as it possibly will become, and my opinions as to the law as I think it should become, absolutely clear. There are, of course, some values underpinning Constitutional Law which we would like to think of as eternal — constitutionalism, the rule of law, and representative democracy. The most interesting change that has occurred in the 40 years since I studied law is that these values have recently been given greater weight by the High Court in cases interpreting the Constitution. The old fight about whether the Commonwealth’s legislative powers should be limited to preserve States’ “rights” has been settled (as Quick and Garran predicted it would be),2 and the interest for the future lies in seeing how far 1 Kris Shaffer; “The Critical Textbook”, at http://www.digitalpedagogylab.com/hybridped/critical-textbook/. 2 See 17.70.

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Preface

the new emphases on things like the freedom of political communication and the Kable doctrine can be developed. Mention of the Kable doctrine reminds us of the fact that the Constitution fundamentally limits the powers of the Commonwealth and the States, in different ways but in almost equal measure. The way this book is divided into Parts is intended to reflect that fact, and to remind readers that there is no such thing as a “sovereign” legislature in this country. Instead, there is a national supreme law, which we, the sovereign people, can change if we want to (subject to the quibbles spelled out in 5.90). I hope that readers will find the book interesting, informative and provocative in the sense that it provokes them to think. I would like to thank David Barker for first suggesting that I might like to write a book on this topic, rather than just ranting on the Web and then for suggesting to Robert Wilson that Thomson Reuters might like to publish it. Pip Findlay and her staff at Puddingburn Publishing Services deserve thanks and congratulations for editing and indexing the book under fairly tight time constraints. And — far from least — I must thank my wife Jennie for having supported me in many ways over 41 years, and, by her lively interest in everything and by her dietary guidance, helping to keep me young(ish) even as I grow older. John Pyke December 2016

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Contents Prefacev Table of Cases xix Table of Statutes xxxvii

PART A

Constitutional Concepts and Their History

1

Chapter 1

The Significance of Constitutions and Constitutional Law

2

1.1

Constitutions: the source of government power and of enforceable limits on that power

2

1.2

The constitutionalist mind-set

4

1.3

Practical applications of constitutional law — not just a game for Crown lawyers

4

The law as it is and the law as it might become

8

1.4

Chapter 2

Chapter 3

Sources of Constitutional Ideas

11

2.1

Context and overview

11

2.2

Lofty principles from classical times

11

2.3

English constitutional history

13

2.4

Revolutionary concepts — a written Constitution and judicial review of legislation

24

2.5

The Swiss idea — popular control of the amending process

28

2.6

Democracy — an Ancient Greek idea brought to perfection in the colonies

28

Further Reading

30

The Colonisation of Australia and the Development of Six Self-­governing Colonies

31

3.1

Context and overview

31

3.2

The right to colonise, as stated and practised by Europeans

31 vii

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3.3

The foundation and early development of the colonies — Governors, Legislative Councils and Supreme Courts 3.4 Responsible government — an idea whose time had come 3.5 Features of the colonial Constitutions 3.6 The “CLV Act” — theoretical subordination but substantial independence confirmed Issue for Discussion Further Reading

Chapter 4

44 47 47

Federation and the Drafting of the Commonwealth Constitution 49 4.1 4.2 4.3 4.4

Context and overview From the earliest suggestions to Parkes’s Tenterfield speech The first Constitutional Convention, 1891 Federation Leagues, the Corowa resolution and the Premiers’ Plan 4.5 Australasian Federal Convention 1897–98 4.6 Referendums and Sir George Reid’s tactics of bluff/blackmail 4.7 Enactment in London Further Reading

Chapter 5

36 38 40

Australian Independence — From the Sovereignty of the UK Parliament to the Sovereignty of the People 5.1 5.2 5.3

49 49 51 52 53 54 55 56

57

Context and overview Australia’s evolution to independence Why is the Constitution binding now, and who is the sovereign? 5.4 Other constitutional consequences of independence — modern attitudes replace colonial presumptions Further Reading

57 57

PART B

General Principles of Constitutional Law and Litigation

75

Chapter 6

The Constitution as Supreme Law, and an Outline of its Provisions

76

6.1 6.2 6.3

Chapter 7

Method of amendment The Constitution as supreme law (the source, above which no stream can rise) A tour of the Constitution; basic structure and features

67 72 72

76 77 78

Constitutional Litigation

85

7.1 7.2

85 85

Context and overview Jurisdiction to interpret the Constitution

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7.3 The need for a “matter” 7.4 Standing 7.5 The names of parties — do governments have legal personality? 7.6 Remedies 7.7 When to seek a remedy — Court’s reluctance to interfere in the parliamentary process 7.8 Costs

Chapter 8

General Principles of Interpretation of the Commonwealth Constitution

87 88 91 92 93 94

95

8.1 Context and overview 95 8.2 A statute but something more than a statute 95 8.3 The force of precedent 98 8.4 Can the meanings of words change?  100 8.5 Implications from text and structure  103 8.6 Severance, reading down, and interpretation to save validity 104 8.7 Political, and yet not political  108 Issue for Discussion 111 Further Reading  111

PART C

General Constitutional Doctrines Applying to Commonwealth and States

113

Chapter 9

The Executive Branch — Governors, Ministers, Executive Councils and Cabinets

114

9.1 Context and overview of Part C 9.2 The “dignified parts of the Constitution” transplanted to Australia 9.3 The “efficient parts” also transplanted; Governors receiving “advice” that they must take 9.4 Need for Ministers to be Members of Parliament; Ministerial responsibility 9.5 Collective decision-making or dictation by the Prime Minister/ Premier? 9.6 Governor’s role as part of Parliament; questions relating to assent 9.7 The Governor as the watchdog of responsible government — the reserve powers 9.8 A note on terminology — Crown, government, public service, instrumentalities Further Reading

114 115 116 121 123 124 127 135 136 ix

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Chapter 10

Chapter 11

Chapter 12

Chapter 13

Sources of Executive Power

137

10.1 Context and overview 10.2 “Vesting” of power in the executive governments, and the nature of executive power 10.3 A direct, and broader, source of Commonwealth executive power in s 61? 10.4 Division of power between Commonwealth and State executives Issue for Discussion Further Reading

137

140 143 145 145

Limits on Executive Power; Parliamentary Control of Finance and the Rule of Law

147

11.1 Context and outline 11.2 Parliamentary control of taxation and spending 11.3 Subjection of the executive to control by law — the rule of law Further Reading

147 147 151 168

General Rules as to the Extent of Legislative Power — Four Non-limits

169

12.1 Context and overview 12.2 Delegated legislation 12.3 Retrospective laws 12.4 Extraterritorial laws 12.5 Laws that breach doctrines of international law Further Reading

169 170 175 177 188 191

Partial Protection of Human Rights by Interpretive Techniques and Quasi-Constitutional Doctrines

193

13.1 Context and outline 13.2 Protection of human rights expressed in or implied from the Constitution 13.3 Rights recognised at common law — a “quasi-constitutional”, “common law Bill of Rights”? 13.4 Quasi-constitutional Human Rights Acts or Charters — compromises between rights and the powers of parliaments Further Reading

Chapter 14

137

193 194 196 200 202

The Constitutional Freedom of Political Discussion

203

14.1 Context and overview 14.2 The implication discovered

203 204

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14.3 14.4 14.5 14.6 14.7

Extension to the law of defamation, and doubts Lange: the freedom, and the qualification, confirmed Application for the benefit of individuals Further explorations of the pursuit of legitimate purposes McCloy — equality of opportunity to participate and a proportionality test introduced 14.8 Application in specific situations 14.9 Unexplored or partially-explored issues Issue for Discussion Further Reading

205 207 209 212

PART D

The Commonwealth Parliament and Its Powers

225

Chapter 15

The Choice of Members by the People

227

15.1 Context and overview 15.2 A constitutional framework, leaving the details to be prescribed by statute 15.3 Frequency and accuracy of reapportionment between States 15.4 Representation of Territories 15.5 Recent recognition of a prima facie right to vote 15.6 No recognition yet of one vote one value — but not too much divergence 15.7 Constitutional restrictions on the right to be elected as a Member 15.8 Courts’ reluctance to interfere in the electoral process or retrospectively invalidate elections Issues for Discussion Further Reading

227

The Law-making Process

251

16.1 Context and overview 16.2 The normal legislative process (Commonwealth and States) 16.3 Special rules for the passage of Commonwealth financial legislation 16.4 The resolution of deadlocks in the Commonwealth Parliament Issues for Discussion Further Reading

251 251

Sources and Interpretation of Commonwealth Powers

265

17.1 Context and outline 17.2 A parliament of enumerated (and therefore limited) powers

265 265

Chapter 16

Chapter 17



214 216 219 223 224

227 231 233 235 240 242 247 248 249

253 256 263 263

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Chapter 18

17.3 Interpretation of grants of power and limits on powers 17.4 A last resort; referral of power by the States Further Reading

266 274 276

Business-Regulation Powers — Trade and Commerce, Corporations, Other Powers

277

18.1 Context and overview 18.2 Commonwealth’s techniques for relying on several powers in one Act 18.3 Laws with respect to trade and commerce with other countries and among the States 18.4 Laws with respect to foreign corporations, and trading and financial corporations formed within the limits of the Commonwealth 18.5 Laws with respect to postal, telephonic, telegraphic and other like services 18.6 Regulating money and the banking industry 18.7 Insurance 18.8 Miscellaneous business-related powers 18.9 A once-much-used power, now not used at all — the prevention and settlement of industrial disputes 18.10 Conclusion

Chapter 19

Chapter 20

277 278 280

285 294 295 296 297 298 299

Nation State Powers — Internal Regulation of Government, External Affairs, Defence, Internal Security, Immigration and Aliens

301

19.1 Context and overview 19.2 Power over the Public Service and “instrumentalities” 19.3 Laws with respect to external affairs 19.4 Laws with respect to defence and national security 19.5 Laws with respect to immigration, emigration and aliens Issues for Discussion Further Reading

301 301 302 309 316 321 321

Social Powers — Marriage and Divorce; Pensions, Benefits and Health Services; People of Any “Race”

323

20.1 Context and overview 20.2 Marriage and divorce and matrimonial causes 20.3 Various pensions and benefits and the provision of health services 20.4 Special laws for the people of any “race” Further Reading

323 324 328 331 337

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Chapter 21

The Commonwealth’s Financial Powers — Tax, Grants to the States, and Spending Money 21.1 Context and overview 21.2 General introduction to sections of the Constitution dealing with taxation 21.3 The Commonwealth’s taxation power 21.4 Technicalities — the drafting of, and procedures for passing, Commonwealth tax laws 21.5 Link between taxation and spending — the Consolidated Revenue Fund 21.6 Grants to the States 21.7 The Commonwealth’s power to make contracts and spend its own money 21.8 A case study in the exploitation of Commonwealth financial dominance — universities Further Reading

Chapter 22

Chapter 23

A Power, and a Limit on Powers — Acquisition of Property on Just Terms

339 339 339 340 345 352 353 356 364 365

367

22.1 Context and overview 22.2 Twofold nature of the paragraph — power and limitation 22.3 “… for any purpose in respect of which the Parliament has power to pass laws” 22.4 Property 22.5 Just terms 22.6 Which acquisitions are subject to the paragraph? 22.7 Side-stepping the effect of the paragraph; a “Historic Shipwrecks” clause Further Reading

367 368

“Federal” Limitations on Commonwealth Power

387

23.1 Context and overview 23.2 Laws of revenue or trade and commerce not to discriminate between States or parts of States 23.3 Commonwealth laws not to abridge States’ “rights” to waters of rivers 23.4 Theoretical application of freedom of interstate trade and commerce, and non-discrimination on basis of State residence 23.5 Freedom of interstate intercourse Further Reading

387

369 370 372 375 384 385

388 393 394 395 395 xiii

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Chapter 24

Chapter 25

Express, but Weak, Protection of Human Rights by the Constitution

397

24.1 Context and overview 24.2 The apparent right to vote, if on a State roll 24.3 Jury trial 24.4 Freedom to practise (or not practise) religion Issue for Discussion Further Reading

397 397 398 402 407 407

Federal Judicial Power I: Judicial Power Cannot be Given to Bodies that are not Courts

409

25.1 Context and overview 25.2 The basic definition — Chapter III courts 25.3 Federal judicial power not to be exercised by bodies that are not Chapter III courts Further Reading

Chapter 26

Federal Judicial Power II: Limits on Parliament’s Power to Give Non-Judicial Powers to Courts and to Regulate their Proceedings 26.1 26.2 26.3 26.4 26.5



409 410 411 426

427

Context and overview Limits on the jurisdiction of Chapter III courts and judges Appellate jurisdiction of the High Court Vesting of federal jurisdiction in the State courts General power to regulate judicial proceedings — and its limits 26.6 Setting minimum sentences 26.7 Parliament’s power to change the law during litigation, or to retrospectively validate invalid decisions Further Reading

427 427 436 437

PART E

Constitutional Law and the States

443

Chapter 27

“Internal” Constitutional Law of the States — A General Power to Make Laws, Subject to “Manner and Form” Provisions

444

27.1 Context and overview 27.2 The State Constitution Acts — summary of contents 27.3 States’ legislative powers are “plenary and ample” (subject to the Commonwealth Constitution and to binding “manner and form” provisions)

438 439 440 440

444 445

449

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27.4 Limited power to make laws which bind later parliaments; why only some manner and form provisions are binding 27.5 Conditions under which a “manner and form” provision is binding 27.6 Judicial enforcement of manner and form provisions 27.7 Unstated considerations; democratic theory Issues for Discussion Further Reading

Chapter 28

General Effects of the Commonwealth Constitution on State powers — Concurrent Powers, Exclusive Powers and Prohibitions 28.1 28.2 28.3 28.4 28.5

Chapter 29

Chapter 30

Chapter 31



458 459 464 466 467 468

469

Context and overview General binding effect of the Constitution on the States Commonwealth exclusive powers, other than s 90 Commonwealth powers said to be exclusive by implication Shrinking concurrent powers, and lack of easily-describable “exclusive” State powers 28.6 Other limits on State powers (a preview of Chapters 29–34) Further Reading

469 469 471 475

State Laws Not to Impose Customs or Excise Duties

481

29.1 Context and overview 29.2 The easy parts — customs duties and bounties 29.3 The more difficult phrase — duties of excise Issues for Discussion Further Reading

481 482 483 493 494

Freedom of Interstate Trade, Commerce and Intercourse

495

30.1 Context and overview 30.2 The elements: trade and commerce, intercourse, and “among the States” 30.3 Freedom from what? 30.4 Freedom of interstate intercourse Issue for Discussion Further Reading

495 496 499 512 513 513

Discrimination against Out-of-State Residents Prohibited

515

31.1 Context and overview 31.2 Range of application

515 515

476 479 480

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31.3 31.4 31.5 31.6 31.7

Chapter 32



Terms of the section What disabilities or discriminations are prohibited? Effect of breach of the section Reasonably necessary, or strictly necessary, exceptions Need for the discrimination to be connected with current residence in another State 31.8 Distinctions between non-discrimination sections (92, 99 and 117) Issues for Discussion Further Reading

516 517 519 520

Inconsistency with Laws of the Commonwealth

525

522 523 524 524

32.1 Context and overview 525 32.2 The need for two inconsistent, and otherwise valid, laws526 32.3 Forms of “direct” inconsistency  527 32.4 Commonwealth law “covering the field” 532 32.5 Subjective and unpredictable nature of inconsistency decisions 539 32.6 Invalid “to the extent of the inconsistency” 540 Issues for Discussion 540 Further Reading 541

Chapter 33

Chapter 34

Commonwealth and State Legislative Powers over Each Other, and Their Limits — Intergovernmental Immunities

543

33.1 Context and overview 33.2 An express immunity — Commonwealth and States not to tax each other’s property 33.3 The early history of implied intergovernmental immunities, very briefly 33.4 The modern doctrine of implied immunities Issues for Discussion Further Reading

543

Independence of State and Territory Courts and Judges

555

34.1 Context and overview 34.2 The impact of the Commonwealth Constitution on State courts — first statement 34.3 A period of consolidation and second thoughts 34.4 Application to the tenure of State and Territory judges 34.5 The dog regains its bark — cases on criminal gangs 34.6 Jurisdiction of State industrial tribunals

555

544 546 548 553 553

555 557 559 561 564

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34.7 Other criminal laws — extending sentences, forfeiture again, and “paperless arrests” 34.8 Can courts be given novel powers? Declaring Acts to be inconsistent with human rights principles 34.9 Two conclusions — uncertainty of application of the Kable test, and asymmetry of separation of powers in the States Issues for Discussion Further Reading

569 570 571

A Final Note on the States, and the Drive for More Uniform Laws

573

35.1 Context and overview 35.2 States’ financial dependence 35.3 The continuing functions of the States 35.4 Continuing pressure for uniform laws, and the States’ response Further Reading

573 573 575 576 581

PART F

The Territories

583

Chapter 36

Commonwealth Power Over the Territories, and the Powers of the Self-governing Territories

584

Chapter 35

36.1 36.2 36.3 36.4



565 568

Context and overview Acquisition of territories by the Commonwealth The Commonwealth’s legislative power under s 122 Extra-territorial Commonwealth laws under the Territories power, and their effects on State laws 36.5 “Constitutions” of the self-governing Territories — the Self-Government Acts 36.6 “State-like” limits on the powers of the self-governing Territories 36.7 Do the limits on Commonwealth power apply to laws made (by the Commonwealth or the Territories) under the Territories power? 36.8 Norfolk Island — a Territory treated almost as part of a State Issues for Discussion Further Reading

584 584 587

PART G

Possible Changes to the Federation

599

Chapter 37

New States, and Changing the Boundaries of States

600

37.1 Context and overview 37.2 Admitting new States and/or changing the boundaries of existing ones — a hotch-potch of sections

600

588 589 590

592 596 597 598

600 xvii

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37.3 The imposition of terms and conditions 37.4 The only semi-live issues — North Queensland and the Northern Territory 37.5 Calls for the process to be made easier Further Reading

Chapter 38

Formal Alteration of the Constitution — the Record So Far and Current Issues 38.1 Context and overview: a Constitution that can be changed but isn’t often changed 38.2 Section 128 — the referendum with the double majority 38.3 The history of proposed alterations — tendency for change to be rejected, and suggested reasons and remedies 38.4 Recent and current issues Further Reading

602 603 604 604

605 605 606 607 610 623

Index625

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Table of Cases A A v Hayden [1984] HCA 67; (1984) 156 CLR 532..........................................................................[11.160], [33.60] A-G (Qld) v Lawrence [2013] QCA 364; [2014] 2 Qd R 504.........................................................................[34.70] AMS v AIF [1999] HCA 26; (1999) 199 CLR 160........................................................... [30.140], [30.170], [32.80] APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322...................................................................................................................[14.100], [30.170] Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510..................................................[11.130], [26.120] Actors & Announcers Equity Association v Fontana Films Pty Ltd [1982] HCA 23; (1982) 150 CLR 169....................................................................................................... [17.30], [18.90], [18.120] Adelaide Company of Jehovah’s Witnesses Incorporated v Commonwealth [1943] HCA 12; (1943) 67 CLR 116 (Jehovah’s Witnesses case)............................................ [13.60], [19.100], [24.70], [24.80], [24.100], [24.110] Aid/Watch Incorporated v Commissioner of Taxation [2010] HCA 42; (2010) 241 CLR 539..................[14.110] Air Caledonie International v Commonwealth [1988] HCA 61; (1988) 165 CLR 462.................[21.80], [21.100] Airlines of NSW Pty Ltd v New South Wales (No 1) [1964] HCA 2; (1964) 113 CLR 1..............................[32.20] Airlines of NSW Pty Ltd v New South Wales (No 2) [1965] HCA 3; (1965) 113 CLR 54........... [18.70], [32.110], [32.140] Airservices Australia v Canadian Airlines [1999] HCA 62; (1999) 202 CLR 133............ [21.80], [22.120], [24.30] Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562.............................................................[12.160], [25.60] Alcock v Fergie (1867) 4 WW & A’B (L) 285...................................................................................................[11.40] Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth [1987] HCA 6; (1987) 162 CLR 271.......................................................................................................................[20.70], [20.80] Allders International Pty Ltd v Commissioner of State Revenue [1996] HCA 58; (1996) 186 CLR 630.........[28.50] Alqudsi v The Queen [2016] HCA 24; (2016) 332 ALR 20............................................................................[24.50] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers’ case) [1920] HCA 54; (1920) 28 CLR 129........................................ [8.20]–[8.50], [10.50], [17.40], [17.70], [18.10], [18.90], [18.190], [33.10], [33.50], [33.70] Anderson v Commonwealth [1932] HCA 2; (1932) 47 CLR 50......................................................................[7.40] Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; (1980) 142 CLR 237......................................................................................................... [1.40], [32.10], [32.130] Arnold v Minister Administering the Water Management Act 2000 [2010] HCA 3; (2010) 240 CLR 242.....................................................................................................................................[23.60] Ashbury v Ellis [1893] AC 339.........................................................................................................................[12.70] Attorney-General v De Keyser’s Royal Hotel Ltd [1920] UKHL 1; [1920] AC 508.....................[11.100], [11.110] Attorney-General v Wilts United Dairies Ltd (1921) 37 TLR 884..................................................................[11.30] Attorney-General (Canada) v Cain [1906] AC 542.........................................................................................[10.30] Attorney-General (Cth); Ex rel Mckinlay v Commonwealth [1975] HCA 53; (1975) 135 CLR 1...............................................................................[6.70], [15.30]–[15.70], [15.120], [27.100] Attorney-General (Cth) v Ah Sheung [1906] HCA 44; (1906) 4 CLR 949..................................................[19.160] Attorney-General (Cth) v Alinta Limited [2008] HCA 2; (2008) 233 CLR 542..........................................[25.100]

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Attorney-General (Cth) v Colonial Sugar Refining Company Limited [1913] UKPCHCA 4; (1913) 17 CLR 644 (Royal Commissions case)..........................................................................................[17.20] Attorney-General (Cth) v Schmidt [1961] HCA 21; (1961) 105 CLR 361....................................[22.20], [22.120] Attorney-General (Cth) v T & G Mutual Life Society Ltd [1978] HCA 24; (1978) 144 CLR 161..................[5.50] Attorney-General (Cth) v The Queen [1957] UKPCHCA 1; (1957) 95 CLR 529.........................................[26.50] Attorney-General (NSW); Ex rel McKellar v Commonwealth [1977] HCA 1; (1977) 139 CLR 527.......................................................................................................................[15.20]–[15.40] Attorney-General (NSW); Ex rel Tooth & Co Ltd v Brewery Employees’ Union of NSW [1908] HCA 94; (1908) 6 CLR 469 (Union Label case)...............................................................[17.40], [20.50] Attorney-General (NSW) v Butterworth & Co (Australia) Ltd (1937) 38 SR (NSW) 195...........................[10.20] Attorney-General (NSW) v Collector of Customs (NSW) (Steel Rails case) [1908] HCA 28; (1908) 5 CLR 818...........................................................................................................................[33.30], [33.50] Attorney-General (NSW) v Homebush Flour Mills Ltd [1937] HCA 3; (1937) 56 CLR 390.......................[22.80] Attorney-General (NSW) v Stocks & Holdings (Constructors) Pty Ltd [1970] HCA 58; (1970) 124 CLR 262.....................................................................................................................................[28.20] Attorney General (NSW) v Trethowan (1931) 44 CLR 394.............................. [1.40], [27.90], [27.140], [27.150], [27.160], [27.170], [27.180] Attorney-General (NT) v Chaffey [2007] HCA 34; (2007) 231 CLR 651......................................[22.50], [22.150] Attorney-General (NT) v Emmerson [2014] HCA 13; (2014) 307 ALR 174................................................[34.70] Attorney-General (Ontario) v Attorney-General (Canada) [1912] AC 571....................................................[8.20] Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; (2013) 249 CLR 1 (Street Preachers case).................................................................................................................................[14.60] Attorney-General (Vic); Ex rel Black v Commonwealth [1981] HCA 2; (1981) 146 CLR 559 (DOGS case).................................................................................................. [21.160], [24.80], [24.90], [36.140] Attorney-General (Vic); Ex rel Dale v Commonwealth [1945] HCA 30; (1945) 71 CLR 237 (Pharmaceutical Benefits case)................................................... [20.60], [21.190], [21.200] Attorney-General (Vic) (Ex rel Victorian Chamber of Manufactures) v Commonwealth [1935] HCA 31; (1935) 52 CLR 533.........................................................................................................[19.120] Attorney-General (Vic) v Commonwealth [1962] HCA 37; (1962) 107 CLR 529 (Marriage Act case)......................................................................................................................................[20.20] Attorney-General (WA) v Australian National Airlines Commission [1976] HCA 66; (1976) 138 CLR 492 (Western Australia Airlines)............................................. [8.60], [17.30], [18.70], [36.60] Attorney-General (WA) v Marquet [2003] HCA 67; (2003) 217 CLR 545............. [1.40], [5.70], [9.70], [27.130], [27.140], [27.160], [27.170], [27.180], [27.190], [38.60] Auckland Harbour Board v the King [1924] AC 518........................................................................[11.40], [11.50] Austin v Commonwealth [2003] HCA 3; (2003) 215 CLR 185......................................................................[33.70] Australian Agricultural Company v Federated Engine-Drivers & Firemen’s Association of Australasia [1913] HCA 41; (1913) 17 CLR 261..........................................................................................[8.30] Australian & International Insurances Ltd v Workers’ Compensation Commission (NSW) [1972] HCA 30; (1972) 125 CLR 470...................................................................................................................[32.140] Australian Apple & Pear Marketing Board v Tonking [1942] HCA 37; (1942) 66 CLR 77.............[22.50], [22.60] Australian Building Construction Employees’ & Builders Labourers’ Federation v Commonwealth [1986] HCA 47; (1986) 161 CLR 88 (BLF case).............................................[26.140], [34.30] Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 1; (1992) 104 ALR 389..................[18.150] Australian Capital Television Pty Ltd & New South Wales v Commonwealth [1992] HCA 45; (1992) 177 CLR 106..................................................... [5.80], [5.90], [8.50], [14.20]–[14.50], [14.90], [27.100] Australian Coastal Shipping Commission v O’Reilly [1962] HCA 8; (1962) 107 CLR 46 (Coastal Shipping case)................................................................................... [18.60], [19.20], [32.40], [32.140] Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7; (2015) 255 CLR 352..............................................................................................[25.80] Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1 (Communist Party case)..................................................................... [6.20], [6.50], [11.150], [11.160], [17.20], [19.100], [19.120], [19.130], [25.50]

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Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2007] HCA 38; (2007) 232 CLR 1...........................................................................................................................[9.160], [11.90] Australian Education Union, Re; Ex p Victoria [1995] HCA 71; (1995) 184 CLR 188 (AEU)........[18.190], [33.70] Australian Health Insurance Association Limited v Esso Australia Limited [1993] FCA 376; (1993) 116 ALR 253...................................................................................................................................[18.170] Australian Mutual Provident Society v Goulden [1986] HCA 24; (1986) 160 CLR 330..............................[32.70] Australian National Airways Pty Ltd v Commonwealth (No 1) [1945] HCA 41; (1945) 71 CLR 29 (Airlines Nationalisation case)............................. [8.20], [13.60], [17.30], [18.40], [18.60], [36.90] Australian Steamships Ltd v Malcolm [1914] HCA 73; (1914) 19 CLR 298...............................................[12.130] Australian Tape Manufacturers Association Ltd v Commonwealth [1993] HCA 10; (1993) 176 CLR 480 (Tape Manufacturers case).......................................................................[21.80], [21.100] Australian Workers’ Union of Employees v Etheridge Shire Council [2008] FCA 1268; (2008) 171 FCR 102.......................................................................................................................[1.50], [18.130] Australian Workers’ Union of Employees, Queensland v Queensland [2012] QCA 353; [2014] 1 Qd R 257...................................................................................................................................................[34.60] B Baker v Carr 369 US 186 (1962).......................................................................................................................[15.70] Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513..............................................................................[34.30] Bank of NSW v Commonwealth [1948] HCA 7; (1948) 76 CLR 1 (Bank Nationalisation case).............................................................................. [18.40], [22.20], [22.60], [23.30] Barley Marketing Board (NSW) v Norman [1990] HCA 50; (1990) 171 CLR 182....................................[30.110] Barton v Commonwealth [1974] HCA 20; (1974) 131 CLR 477....................... [5.60], [10.20], [11.100], [11.110] Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334.......................................................[26.120] Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247.......................................................................................................................[7.40] Bath v Alston Holdings Pty Ltd [1988] HCA 27; (1988) 165 CLR 411........................................................[30.120] Baxter v Ah Way [1909] HCA 30; (1909) 8 CLR 626.......................................................... [12.40], [17.50], [18.60] Baxter v Commissioners of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087......................................[33.50] Bayside City Council v Telstra Corp Ltd [2004] HCA 19; (2004) 216 CLR 595............................[18.150], [32.40] Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; (2004) 219 CLR 486.....................................................................................................................[25.60] Bennett v Commonwealth [2007] HCA 18; (2007) 231 CLR 91....................................................................[36.50] Bennett v President, Human Rights and Equal Opportunity Commission [2003] FCA 1433; (2003) 134 FCR 334.....................................................................................................................................[14.50] Berwick Ltd v Gray [1976] HCA 12; (1976) 133 CLR 603.............................................................................[36.50] Betfair Pty Ltd v Racing New South Wales [2012] HCA 12; (2012) 249 CLR 217 ........ [30.130], [30.140], [30.160] Betfair Pty Ltd v Western Australia [2008] HCA 11; (2008) 234 CLR 418...................... [30.10], [30.50], [30.130] Bevelon Investments Pty Ltd v Melbourne City Council [1976] HCA 49; (1976) 135 CLR 530.................[28.50] Bignold v Dickson (1991) 23 NSWLR 683....................................................................................................[27.180] Bistricic v Rokov [1976] HCA 54; (1976) 135 CLR 552.......................................................................[5.60], [5.80] Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics [1971] USSC 133; 403 US 388 (1971).........................................................................................................................[7.60], [14.170] Blackley v Devondale Cream (Vic) Pty Ltd [1968] HCA 2; (1968) 117 CLR 253.........................[32.70], [32.160] Blankard v Galdy (1693) Holt KB 341; 90 ER 1089..........................................................................................[3.20] Bolton v Madsen [1963] HCA 16; (1963) 110 CLR 264...................................... [29.50], [29.60], [29.70], [29.80], [29.100], [29.110], [29.120] Bond Corporation Pty Limited v Thiess Contractors Pty Ltd [1987] FCA 56; (1987) 14 FCR 215.............[30.40] Bonser v la Macchia [1969] HCA 31; (1969) 122 CLR 177..............................................................................[5.60] Botany Municipal Council v Federal Airports Corporation [1992] HCA 52; (1992) 175 CLR 453.............[32.40] Bourke v State Bank of NSW [1990] HCA 29; (1990) 170 CLR 276.............................................[17.40], [18.160] Bowles v Bank of England [1913] 1 Ch 57......................................................................................................[11.30]

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Bradley v Commonwealth [1973] HCA 34; (1973) 128 CLR 557..................................................[12.150], [19.80] Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41 at 137...........................................................[36.60] Bribery Commissioner v Ranasinghe [1964] UKPC 20; [1965] AC 172..................... [27.130], [27.170], [27.190] British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; (2003) 217 CLR 30...........................................................................................................................[7.60], [11.70] British Imperial Oil Co Ltd v Federal Commissioner of Taxation [1925] HCA 4; (1925) 35 CLR 422.......................................................................................................................................[25.80] British Imperial Oil Co Ltd v Federal Commissioner of Taxation (1926) 38 CLR 153; [1931] AC 275; (1930) 44 CLR 530.............................................................................................................[26.80] British Medical Association v Commonwealth [1949] HCA 44; (1949) 79 CLR 201 (BMA case or Pharmaceutical Benefits case)................................................................. [20.70], [20.80], [22.50] Broken Hill South Ltd v Commissioner of Taxation (NSW) [1937] HCA 4; (1937) 56 CLR 337...............[12.90] Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1......................................................[11.80], [11.90] Brown v Lizars [1905] HCA 24; (1905) 2 CLR 837.......................................................................................[12.150] Brown v The Queen [1986] HCA 11; (1986) 160 CLR 171..............................................................[24.50], [28.20] Brownlee v The Queen [2001] HCA 36; (2001) 207 CLR 278...........................................................[8.40], [24.50] Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78.....................................................[12.120] Browns Transport Pty Ltd v Kropp [1958] HCA 49; (1958) 100 CLR 117..................................................[29.100] Buchanan v Commonwealth [1913] HCA 29; (1913) 16 CLR 315................................................................[36.90] Building Construction Employees & Builders Labourers’ Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372 (BLF case)........................... [26.140], [27.50], [27.70] Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1964] UKHL 6; [1965] AC 75.................................................................................................................. [10.20], [11.100], [22.70] Burns v Ransley [1949] HCA 45; (1949) 79 CLR 101.....................................................................[10.50], [19.130] Burton v Honan [1952] HCA 30; (1952) 86 CLR 169..................................................................................[22.120] Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268......................................................[32.160] Buzzacott v Gray [1999] FCA 1525..................................................................................................................[38.30] Byrnes v The Queen [1999] HCA 38; (1999) 199 CLR 1..............................................................................[27.120] C CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514.....................................................................................................................[10.40], [11.110] Campbell v Hall (1770) 1 Comp 204.................................................................................................................[3.20] Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) [1992] HCA 51; (1992) 177 CLR 248........................................................................................ [29.10], [29.70], [29.120], [36.50], [36.80], [36.110], [36.140] Capital TV & Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591...................................[36.130] Carlton Cricket & Football Social Club v Joseph [1970] VR 487; [1970] VicRp 65........................................[7.50] Carter v Egg & Egg Pulp Marketing Board (Vic) [1942] HCA 30; (1942) 66 CLR 557 (Carter’s case)..............................................................................................................................[28.90], [28.100] Castlemaine Tooheys Ltd v South Australia [1990] HCA 1; (1990) 169 CLR 436......................................[30.130] Ceil Comfort Insulation v ARM Equipment Finance (2001) 159 FLR 310....................... [31.40], [31.50], [31.70] Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541..............................................................[8.40], [24.50] Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248............................................................................[24.40] China Ocean Shipping Co v South Australia [1979] HCA 57; (1979) 145 CLR 172..........................[4.70], [5.80] Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1............................................................................................. [25.40], [25.50], [25.60] Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) [1983] HCA 40; (1983) 154 CLR 120 (Scientology case) .....................................................................................................[24.70] City of Collingwood v Victoria [1993] 2 VR 66............................................................................................[27.170] City of Essendon v Criterion Theatres Ltd [1947] HCA 15; (1947) 74 CLR 1................................[33.30], [33.60] Clarke v Commissioner of Taxation [2009] HCA 3; (2009) 236 CLR 573....................................................[33.70] Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214............................................... [27.90], [27.140], [27.180] Clough v Leahy [1904] HCA 38; (1904) 2 CLR 139......................................................................................[11.160]

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Clunies Ross v Commonwealth [1984] HCA 65; (1984) 155 CLR 193.........................................................[22.30] Clyde Engineering Co Ltd v Cowburn [1926] HCA 6; (1926) 37 CLR 466..... [32.70], [32.100], [32.130], [32.160] Clydesdale v Hughes [1934] HCA 38; (1934) 51 CLR 518...........................................................................[27.170] Cobb & Co Ltd v Kropp [1967] 1 AC 141.......................................................................................................[12.30] Cockle v Isaksen [1957] HCA 85; (1957) 99 CLR 155..................................................................................[26.100] Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427................................................................[13.70], [13.80] Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360........................................... [1.40], [8.30], [23.70], [29.80], [30.90]–[30.130], [30.150], [30.170] Coleman v P [2001] QCA 539; [2002] 2 Qd R 620.........................................................................................[14.50] Coleman v Power [2004] HCA 39; (2004) 220 CLR 1..................................... [1.40], [7.20], [7.60], [8.60], [8.70], [14.50], [14.80], [14.90], [14.120] Coleman v Sellars [2000] QCA 465; [2001] 2 Qd R 565.................................................................................[14.50] Colina, Re; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386................................................................[24.40] Collins v Charles Marshall Pty Ltd [1955] HCA 44; (1955) 92 CLR 529.....................................[26.100], [32.130] Colonel Aird, Re; Ex p Alpert [2004] HCA 44; (2004) 220 CLR 308.............................................[19.120], [25.90] Colvin v Bradley Brothers Pty Ltd [1943] HCA 41; (1943) 68 CLR 151.......................................................[32.50] Combe v Combe [1951] 2 KB 215.................................................................................................................[14.170] Combet v Commonwealth [2005] HCA 61; (2005) 224 CLR 494.................................................................[11.50] Cominos v Cominos [1972] HCA 54; (1972) 127 CLR 588...........................................................................[26.90] Commercial Radio Coffs Harbour v Fuller [1986] HCA 42; (1986) 161 CLR 47.......................................[32.140] Commissioner for Prices & Consumer Affairs (SA) v Charles Moore (Aust) Ltd [1977] HCA 38; (1977) 139 CLR 449.....................................................................................................................[24.20] Commissioner of Stamp Duties (NSW) v Millar [1932] HCA 63; (1932) 48 CLR 618................................[12.90] Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2015) 250 CLR 503.....................................................................................................................................[12.60] Commissioner of Taxes v Parks [1933] St R Qd 306........................................................... [31.40], [31.50], [31.70] Commonwealth v Australian Capital Territory [2013] HCA 55; (2013) 250 CLR 441 (Same-sex Marriage case).............................................................................................. [20.50], [32.110], [36.80] Commonwealth v Australian Commonwealth Shipping Board [1926] HCA 39; (1926) 39 CLR 1...........[19.120] Commonwealth v Bank of NSW [1949] UKPCHCA 1; (1949) 79 CLR 497 (Bank Nationalisation case)............................................................................................ [18.40], [30.80], [30.90] Commonwealth v Bogle [1953] HCA 10; (1953) 89 CLR 229.......................................................................[33.60] Commonwealth v Cigamatic Pty Ltd (in liq) [1962] HCA 40; (1962) 108 CLR 372....................................[33.60] Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd [1922] HCA 62; (1922) 31 CLR 421 (Wool Tops case)...........................................................................................[10.50], [11.30] Commonwealth v Evans Deakin Industries (1986) 161 CLR 254..................................................................[11.70] Commonwealth v Hospital Contribution Fund [1982] HCA 13; (1982) 150 CLR 49...................[8.30], [26.110] Commonwealth v Huon Transport Pty Ltd [1945] HCA 5; (1945) 70 CLR 293........................... [22.20], [22.50], [22.60], [22.80] Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471....................................................[11.70], [22.50] Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1......................................................[22.100] Commonwealth v Queensland [1920] HCA 79; (1920) 29 CLR 1.................................................................[32.40] Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 (Tasmanian Dam case)......................................................................... [1.40], [8.30], [18.130], [19.40]–[19.80], [20.100], [20.120], [22.140], [23.60], [33.70] Commonwealth v Western Australia (Defence Lands case) [1999] HCA 5; (1999) 196 CLR 392...............[32.80] Commonwealth v WMC Resources Ltd [1998] HCA 8; (1998) 194 CLR 1................................................[22.150] Commonwealth Aluminium Corporation Limited v Attorney-General for Queensland [1976] Qd R 231....................................................................................................................................................[27.140] Commonwealth Oil Refineries v South Australia (1926) 38 CLR 408.............................................[29.20], [29.40] Communications, etc, Union v Queensland Rail [2015] HCA 11; (2015) 256 CLR 171............................[18.140] Computer Edge Pty Ltd v Apple Computer Inc [1986] HCA 19; (1986) 161 CLR 171..............................[22.130] Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38...................................................................[34.50]

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Conroy v Carter [1968] HCA 39; (1968) 118 CLR 90....................................................................................[23.40] Cooper v Commissioner of Income Tax (Cooper’s case) [1907] HCA 27; (1907) 4 CLR 1304...................[27.80] Cooper v Stuart (1889) 14 App Cas 286............................................................................................................[3.30] Coorey, Ex parte [1944] NSW St Rep 60.......................................................................................................[26.130] Cormack v Cope [1974] HCA 28; (1974) 131 CLR 432....................................................... [1.40], [15.20], [16.60] Cox v Tomat [1972] HCA 10; (1972) 126 CLR 105........................................................................................[12.90] Cram, Re; Ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29; (1987) 163 CLR 140.................[25.70] Criminal Proceeds Confiscation Act 2002, Re [2003] QCA 24; [2004] 1 Qd R 40..........................[34.30], [34.70] Crittenden v Anderson (1950, unreported, noted at (1977) 51 ALJ 171)....................................[15.100], [24.120] Croft v Dunphy [1935] AC 156........................................................................................................................[12.70] Croome v Tasmania [1997] HCA 5; (1997) 191 CLR 119................................................................................[7.40] Cunliffe v Commonwealth [1994] HCA 44; (1994) 182 CLR 272.................................................................[14.30] Cunningham v Commonwealth [2016] HCA 39; (2016) 335 ALR 363.......................................[22.150], [22.160] D DPP v Smith [1960] AC 290...............................................................................................................................[5.50] Dalgarno v Hannah [1903] HCA 1; (1903) 1 CLR 1.........................................................................................[6.20] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543.........................................................................................................[13.70] David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353...........[7.60] Davies and Jones v Western Australia [1904] HCA 46; (1904) 2 CLR 29......................................[31.70], [31.110] Davis v Commonwealth [1988] HCA 63; (1988) 166 CLR 79 (Bicentennial case)........................... [10.20], [10.50], [13.60], [17.50], [18.180], [21.190]–[21.220], [36.60] Day v Australian Electoral Officer for the State of South Australia [2016] HCA 20; (2016) 331 ALR 386.....................................................................................................................................[15.20] Deakin v Webb [1904] HCA 57; (1904) 1 CLR 585........................................................................................[33.50] Dean v Attorney-General (Qld) [1971] St R Qd 391......................................................................................[12.30] D’Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91.............................................................. [6.20], [8.50], [33.50] Dennis Hotels Pty Ltd v Victoria [1960] HCA 10; (1960) 104 CLR 529............. [29.10], [29.30], [29.60], [29.70], [29.80], [29.90], [29.120] Department of Health & Community Services v JWB & SMB [1992] HCA 15; (1992) 175 CLR 218 (Marion’s case)..........................................................................................................[20.30] Deputy Federal Commissioner of Taxation v State Bank of NSW [1992] HCA 6; (1992) 174 CLR 219.......................................................................................................................[33.30], [33.40] Deputy Federal Commissioner of Taxation v Truhold Benefit Pty Ltd [1985] HCA 36; (1985) 158 CLR 678.....................................................................................................................................[21.50] Deputy Federal Commissioner of Taxation v W R Moran Pty Ltd [1939] HCA 27; (1939) 61 CLR 735 (Flour Tax case).............................................................................................[23.20], [23.30] Dickenson’s Arcade Pty Ltd v Tasmania [1974] HCA 9; (1974) 130 CLR 177................................[29.60], [29.70] Dickson v The Queen [2010] HCA 30; (2010) 241 CLR 491...........................................................[32.60], [35.30] Dignan v Australian Steamships Pty Ltd [1931] HCA 19; (1931) 45 CLR 188................. [12.20], [12.40], [23.50] Dingjan, Re; Ex p Wagner [1995] HCA 16; (1995) 183 CLR 323.....................................................[8.60], [18.120] Director of Public Prosecutions, Re; Ex p Lawler [1994] HCA 10; (1994) 179 CLR 270............... [17.40], [22.20], [22.120] Donoghue v Stevenson [1932] AC 562............................................................................................................[25.70] Dougherty v Dougherty [1987] HCA 33; (1987) 163 CLR 278.....................................................................[20.40] Dr Bonham’s Case, Re (1610) 8 Co Rep 107a; (1610) 77 ER 638.....................................................................[2.90] Duncan v Independent Commission Against Corruption [2015] HCA 32; (2015) 256 CLR 83...[12.60], [34.30] Duncan v New South Wales [2015] HCA 13; (2015) 255 CLR 388.................................................[27.70], [34.90] Duncan v Theodore [1917] HCA 38; (1917) 23 CLR 510............................................................................[11.150] Durham Holdings Pty Ltd v New South Wales [2001] HCA 7; (2001) 205 CLR 399............................................................................................................... [22.110], [27.120], [27.190] Dymond, Re [1959] HCA 22; (1959) 101 CLR 11........................................................................................[21.110]

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E E, Re v Australian Red Cross Society [1991] FCA 20; (1991) 27 FCR 310...................................................[18.130] Eastern Extension Australasia & China Telegraph Co Ltd v Federal Commissioner of Taxation [1923] HCA 62; (1923) 33 CLR 426.........................................................................................[6.20] Eastgate v Rozzoli (1990) 20 NSWLR 188.........................................................................................................[7.70] Eastman v The Queen [2000] HCA 29; 203 CLR 1...........................................................................................[8.40] Egan v Willis [1998] HCA 71; (1998) 195 CLR 424........................................................................................[25.90] Elliott v Commonwealth [1936] HCA 7; (1936) 54 CLR 657............................................ [12.40], [23.20], [23.50] Entick v Carrington (1765) 95 ER 807...................................................................... [2.70], [2.90], [10.20], [11.60] Evans v New South Wales [2008] FCAFC 130; (2008) 250 ALR 33 (World Youth Day case).....................[14.120] Evda Nominees Pty Ltd v Victoria [1984] HCA 18; (1984) 154 CLR 311.....................................................[29.70] Everson v Board of Education 330 US 1 (1947)..............................................................................................[24.90] F F, Re; Ex p F [1986] HCA 41; (1986) 161 CLR 376.........................................................................................[20.30] FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342.........................................................[11.150] Fairfax v Federal Commissioner of Taxation [1965] HCA 64; (1965) 114 CLR 1......................... [17.30], [17.40], [18.60], [21.40] Farbenfabriken Bayer Aktiengesellschaft v Bayer Pharma Pty Ltd [1959] HCA 32; (1959) 101 CLR 65.........[26.80] Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575......................................................[34.30] Farey v Burvett [1916] HCA 36; (1916) 21 CLR 433....................................................................................[19.100] Federal Capital Commission v Laristan Building and Investment Co Pty Ltd [1929] HCA 36; (1929) 42 CLR 582.....................................................................................................................................[36.130] Federal Commissioner of Taxation v Clyne [1958] HCA 10; (1958) 100 CLR 246......................[22.120], [23.50] Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153......................................[25.80] Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd [1940] HCA 13; (1940) 63 CLR 278.........................................................................................................................[10.50], [33.60] Federated Amalgamated Government Railway & Tramway Service Association v New South Wales Railway Traffic Employees Association (Railway Servants’ case) [1906] HCA 94; (1906) 4 CLR 488.........................................................................................................................[33.50] Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570................................................................................[18.130] Field v Clark 143 US 649 (1892)......................................................................................................................[12.20] Fisher v The Queen (1901) 26 VLR 781...........................................................................................................[11.40] Fittock v The Queen [2003] HCA 19; (2003) 217 CLR 508...........................................................................[24.50] Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45.......................................................................................................................[11.140], [34.40] Forsyth v Commissioner of Stamp Duties [1966] HCA 5; (1966) 114 CLR 194........................................[32.140] Fortescue Metals Group Ltd v Commonwealth [2013] HCA 34; (2013) 250 CLR 548................................[23.40] Fox v Robbins [1909] HCA 81; (1909) 8 CLR 115..........................................................................................[30.90] Fraser Henleins Pty Ltd v Cody [1945] HCA 49; (1945) 70 CLR 100..........................................................[26.130] Free v Kelly (No 2) [1996] HCA 42; (1996) 185 CLR 296............................................................................[15.100] Frost v Stevenson [1937] HCA 41; (1937) 58 CLR 528..................................................................................[36.40] G Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370; (2015) 331 ALR 644................................[14.160] General Practitioners Society v Commonwealth [1980] HCA 30; (1980) 145 CLR 532..............................[20.80] Georgiadis v Australian & Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297.....................................................................................................................[22.50], [22.150] Gibbons v Ogden 22 US 1 (1824)....................................................................................................................[32.10] Giris Pty Ltd v Federal Commissioner of Taxation [1969] HCA 5; (1969) 119 CLR 365.............................[21.50] Goldfarb v Virginia State Bar (1975) Trade Cases 60,355...............................................................................[30.40] Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1.....................................................................................[27.80]

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Goryl v Greyhound Australia Pty Ltd [1994] HCA 18; (1994) 179 CLR 463..............................................[31.100] Gosford Meats Pty Ltd v New South Wales [1985] HCA 5; (1985) 155 CLR 368.........................[29.70], [29.120] Governor, Goulburn Correctional Centre, Re; Ex p Eastman [1999] HCA 44; (1999) 200 CLR 322.....................................................................................................................[36.30], [36.110] Grace Bible Church v Reedman (1984) 36 SASR 376...................................................................................[27.120] Grace Bros Pty Ltd v Commonwealth [1946] HCA 11; (1946) 72 CLR 269.....................................[1.40], [22.60] Graham v Paterson [1950] HCA 9; (1950) 81 CLR 1......................................................................................[17.80] Grain Pool of WA v Commonwealth [2000] HCA 14; 202 CLR 479...............................................[8.40], [18.180] Grannall v Marrickville Margarine Pty Ltd [1955] HCA 6; (1955) 93 CLR 55.............................................[30.20] Grant v Sir Charles Gould [1792] Eng R 3085; (1792) 126 ER 434.............................................................[19.130] Grasstree Poultry Enterprises Pty Ltd v Bycroft [1969] HCA 57; (1969) 119 CLR 390................................[23.30] Gratwick v Johnson [1945] HCA 7; (1945) 70 CLR 1........................................ [7.20], [19.100], [23.80], [30.170] Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348........................... [26.50], [26.60], [34.20], [34.60], [34.90] Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532............................................................................................................. [8.60], [8.70], [34.50] H H A Bachrach Pty Ltd v Queensland [1998] HCA 54; (1998) 195 CLR 547.................................................[34.30] HC Sleigh Ltd v South Australia [1977] HCA 2; (1977) 136 CLR 475............................................[29.60], [29.70] Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465.................. [1.40], [8.30], [29.30], [29.80], [29.100] Harding v Federal Commissioner of Taxation [1917] HCA 13; (1917) 23 CLR 119..................................[21.120] Harper v Minister for Sea Fisheries (1989) 168 CLR 314...............................................................................[29.30] Harper v Victoria (1966) 114 CLR 361............................................................................................................[29.30] Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84........................................................ [1.50], [25.40], [25.120] Haskins v Commonwealth [2011] HCA 28; (2011) 244 CLR 22...................................................................[25.90] Health Insurance Commission v Peverill [1994] HCA 8; (1994) 179 CLR 226..........................................[22.150] Heiner v Scott [1914] HCA 82; (1914) 19 CLR 381..........................................................................................[6.20] Hematite Petroleum Pty Ltd v Victoria [1983] HCA 23; (1983) 151 CLR 599.............................. [21.60], [29.70], [29.100], [29.120] Henry v Boehm [1973] HCA 32; (1973) 128 CLR 482......................... [31.20], [31.50], [31.70], [31.80], [31.110] Herald & Weekly Times Ltd v Commonwealth [1966] HCA 78; (1966) 115 CLR 418...............................[18.150] Higgins v Commonwealth [1998] FCA 39; (1998) 79 FCR 528.....................................................................[20.70] Hodge v The Queen (1883) 9 App Cas 117............... [12.30], [12.60], [12.70], [27.10], [27.50], [27.60], [38.100] Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506....................................................................................[14.100] Horta v Commonwealth [1994] HCA 32; (1994) 181 CLR 183...................................................................[12.150] Hospital Provident Fund Pty Ltd v Victoria [1953] HCA 8; (1953) 87 CLR 1..............................................[30.60] Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330.............. [8.30], [17.40], [18.20], [18.70], [18.90], [18.100], [18.200], [25.30], [25.40], [25.80], [28.100] Hughes v Western Australian Cricket Association Inc [1986] FCA 357; (1986) 19 FCR 10.......................[18.130] Hughes & Vale Pty Ltd v Gair [1954] HCA 73; (1954) 90 CLR 203.................................................[7.70], [27.180] Hughes and Vale Pty Ltd v New South Wales [1954] UKPCHCA 5; (1954) 93 CLR 1...............................[30.140] Hume v Palmer [1926] HCA 50; (1926) 38 CLR 441.....................................................................[32.60], [32.100] Hyde v Hyde (1866) LR 1 P&D 130.................................................................................................................[20.50] I ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140............[22.110], [22.150] Illawarra District County Council v Wickham [1959] HCA 18; (1959) 101 CLR 467...............[19.110], [32.160] Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1.........................................................................................................................[11.120], [12.60] Insurance Commissioner v Associated Dominions Assurance Society Pty Ltd [1953] HCA 94; (1953) 89 CLR 78.......................................................................................................................[18.170]

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International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319.......................................................................................................[34.50], [34.70] J JT International SA v Commonwealth [2012] HCA 43; (2012) 250 CLR 1..................................[22.50], [22.150] JW Hampton Jr & Co v United States 276 US 394 (1928)..............................................................................[12.20] Jacobsen v Rogers [1995] HCA 6; (1995) 182 CLR 572..................................................................................[33.70] James v Commonwealth [1928] HCA 45; (1928) 41 CLR 442.......................................................................[23.40] James v Commonwealth [1939] HCA 9; (1939) 62 CLR 339...........................................................................[7.60] James v Cowan (1930) 43 CLR 386................................................................................................................[11.150] Jarman, Re; Ex p Cook (No 1) [1997] HCA 13; (1997) 188 CLR 595..........................................................[11.120] John v Federal Commissioner of Taxation [1989] HCA 5; (1989) 166 CLR 417............................................[8.30] John Cooke & Co Pty Ltd v Commonwealth (1924) 34 CLR 269 at 282.......................................................[22.80] John Fairfax & Sons Ltd v New South Wales [1927] HCA 3; (1927) 39 CLR 139.........................................[29.40] John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81...................................................................[18.150] Johnson v Kent [1975] HCA 4; (1975) 132 CLR 164 (Black Mountain Tower case)....................................[10.20] Johnston Fear & Kingham & Offset Printing Company Pty Ltd v Commonwealth [1943] HCA 18; (1943) 67 CLR 314.........................................................................................................[22.50], [22.60] Jolley v Mainka [1933] HCA 43; (1933) 49 CLR 242......................................................................................[36.40] Jones v Commonwealth [1963] HCA 43; (1963) 109 CLR 475......................................................................[22.30] Jones v Commonwealth (No 2) [1965] HCA 6; (1965) 112 CLR 206................................ [1.40], [18.150], [22.30] Joseph v Colonial Treasurer (NSW) [1918] HCA 30; (1918) 25 CLR 32.......................................................[28.90] Judiciary Act & Navigation Acts, Re [1921] HCA 20; (1921) 29 CLR 257.......................................................[7.30] Jumbunna Coal Mine v Victorian Coal Miners’ Association [1908] HCA 95; (1908) 6 CLR 309..................[8.20] K K-Generation Pty Limited v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501.........................[34.50] Kable v Director of Public Prosecutions for NSW [1996] HCA 24; (1996) 189 CLR 51...................................................... [1.40], [6.50], [8.70], [12.60], [25.20], [26.130], [27.70], [34.20]–[34.70], [34.90], [36.70], [36.80], [36.120] Karlsson v Sorbello [1998] ACTSC 139; (1998) 148 FLR 374......................................................................[18.150] Kartinyeri v Commonwealth [1998] HCA 22; (1995) 195 CLR 337.............. [20.100], [20.120], [22.60], [22.150] King v Burrell (1840) 12 Ad & El 460; (1840) 113 ER 886................................................................................[8.20] King v Jones [1972] HCA 44; (1972) 128 CLR 221.............................................................................[8.40], [24.20] King v Yurisich [2005] FCA 1277.....................................................................................................................[30.40] Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264.........................................................[24.40], [24.50] Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531......... [11.140], [12.60], [34.10] Kirmani v Captain Cook Cruises Pty Ltd (No 1) [1985] HCA 8; (1985) 159 CLR 351..................................[5.80] Kirmani v Captain Cook Cruises Pty Ltd (No 2) [1985] HCA 27; (1985) 159 CLR 461................................[5.50] Kitano v Commonwealth [1975] UKPCHCA 2; (1975) 132 CLR 231.............................................................[5.50] Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168............ [7.50], [11.90], [19.40], [19.50], [19.80], [20.100], [27.110], [28.20], [32.10], [33.70] Kotsis v Kotsis [1970] HCA 61; (1970) 122 CLR 69............................................................................[8.30], [34.20] Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 (Stolen Generations case)......... [14.140], [36.120], [36.140], [24.80], [25.60] Krygger v Williams [1912] HCA 65; (1912) 15 CLR 366..............................................................................[24.110] Ku-Ring-Gai Co-Operative Building Society (No 12) Ltd, Re [1978] FCA 50; (1978) 36 FLR 134...........[18.130] Kuczborski v Queensland [2014] HCA 46; (2014) 254 CLR 51.........................................................[7.40], [34.50] L Lake Macquarie Shire Council v Aberdare County Council [1970] HCA 32; (1970) 123 CLR 327............[24.20] Laker Airways Ltd v Department of Trade [1976] EWCA Civ 10; [1977] QB 643......................[11.100], [11.110]

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Lamb v Cockatoo Docks & Engineering Co Pty Ltd [1961] SR (NSW) 459...............................................[32.160] Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132....................................................... [36.60], [36.90], [36.140] Lane v Morrison [2009] HCA 29; (2009) 239 CLR 230......................................................................[9.40], [25.90] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520............................................. [7.60], [14.40], [14.60], [14.80], [14.100]–[14.120], [14.170] Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302.....................................[14.30]–[14.50], [14.150] Le Mesurier v Connor [1929] HCA 41; (1929) 42 CLR 481.........................................................................[26.110] Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196.......................[13.80], [38.80] Lee Fay v Vincent [1908] HCA 70; (1908) 7 CLR 389.................................................... [27.110], [31.20], [31.110] Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579.......................................................................[14.40], [14.50] Li Chia Hsing v Rankin [1978] HCA 56; (1978) 141 CLR 182......................................................................[24.40] Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1............................................................................... [19.170], [25.50], [25.60], [34.20], [34.70] Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485........................................................[12.110], [12.120] Lloyd v Wallach [1915] HCA 60; (1915) 20 CLR 299...................................................................[19.100], [19.120] Lo Pak, Ex p (1888) 9 NSWR 221..................................................................................................................[11.110] Logan Downs Pty Ltd v Queensland [1977] HCA 3; (1977) 137 CLR 59.....................................................[29.50] Loubie, Re [1986] 1 Qd R 272................................................................................................ [7.20], [31.50], [31.70] Lower Mainland Dairy Products Sales Adjustment Committee v Crystal Dairy Limited (British Columbia) [1932] UKPC 70; [1933] AC 168...............................................................................[21.80] Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333........................................................ [21.30], [21.80], [25.70] M M G Kailis Pty Ltd v Western Australia [1974] HCA 10; (1974) 130 CLR 245..............................................[29.70] Mabo v Queensland [1988] HCA 69; (1989) 166 CLR 186 (Mabo No 1).....................................[27.110], [32.40] Mabo v Queensland [1992] HCA 23; (1992) 175 CLR 1.................................................... [3.30], [20.100], [38.50] McCawley, Re [1918] St R Qd 62.....................................................................................................................[27.80] McCawley v The King [1920] UKPCHCA 1; (1920) 28 CLR 106..................................................................[27.80] McCawley v The Queen [1918] HCA 55; (1918) 26 CLR 9............................................................................[27.80] McClintock v Commonwealth [1947] HCA 39; (1947) 75 CLR 1.................................................................[22.90] McCloy v New South Wales [2015] HCA 34; (2015) 325 ALR 1.......................................[14.10], [14.50]–[14.70], [14.120], [14.170], [15.70] McClure v Australian Electoral Commission [1999] HCA 31; (1999) 73 ALJR 1086; 163 ALR 734..........[14.170] MacCormick v Federal Commissioner of Taxation [1984] HCA 20; (1984) 158 CLR 622..........................[21.50] McCulloch v Maryland 17 US 316 (1819).......................................................................................................[32.10] McDonald v Cain [1953] VLR 411................................................................................................................[27.180] McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140........................... [5.30], [5.80], [5.90], [8.40], [15.50], [15.70], [27.100], [27.190] McLean, Ex p [1930] HCA 12; (1930) 43 CLR 472........................... [32.20], [32.60], [32.100], [32.130], [32.160] Macleod v Attorney-General (NSW) [1891] AC 455......................................................................[12.70], [12.130] McWaters v Day [1989] HCA 59; (1989) 168 CLR 289..................................................................[32.60], [32.120] Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381.....................................................[26.130], [32.50] Magrath v Commonwealth [1944] HCA 14; (1944) 69 CLR 156................................................................[22.120] Mansell v Beck [1956] HCA 70; (1956) 95 CLR 550.......................................................................................[30.50] Marbury v Madison 5 US (1 Cranch) 137............................................................. [2.120], [6.20], [11.70], [19.120] Marbury v Madison [1803] USSC 12; (1803) 1 Cr 137 (2 Law Ed 118)..........................................................[6.20] Marcus Clark & Co Ltd v Commonwealth [1952] HCA 50; (1952) 87 CLR 177 (Capital Issues case).....[19.120] Maritime Union of Australia, Re; Ex p CSL Pacific Shipping Inc [2003] HCA 43; (2003) 214 CLR 397....[18.60] Matthews v Chicory Marketing Board (Vic) [1938] HCA 38; (1938) 60 CLR 263........... [21.80], [29.30], [29.50] Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261..................................................................................[12.50] Melbourne Corporation v Barry [1922] HCA 56; (1922) 31 CLR 174............................................[13.70], [14.20] Melbourne Corporation v Commonwealth (State Banking case) [1947] HCA 26; (1947) 74 CLR 31............................................................................... [17.30], [17.40], [33.60], [33.70]

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Mellifont v Attorney-General (Qld) [1991] HCA 53; (1991) 173 CLR 289................................................[26.100] Merchant Service Guild of Australasia v Commonwealth Steamship Owners’ Association (No 3) [1920] HCA 67; (1920) 28 CLR 495.........................................................................................................[12.130] Meyer v Poynton [1920] HCA 36; (1920) 27 CLR 436.................................................................................[19.170] Mikasa (NSW) Pty Ltd v Festival Stores [1972] HCA 69; (1972) 127 CLR 617............ [18.110], [25.40], [30.130] Milicevic v Campbell [1975] HCA 20; (1975) 132 CLR 307........................................................................[26.120] Milk Board (NSW) v Metropolitan Cream Pty Ltd [1939] HCA 28; (1939) 62 CLR 116..........................[30.130] Miller v Miller [1978] HCA 44; (1978) 141 CLR 269...................................................................................[32.110] Miller v TCN Channel Nine Pty Ltd [1986] HCA 60; (1986) 161 CLR 556................................................[30.140] Minister for Home & Territories v Teesdale Smith [1924] HCA 41; (1924) 35 CLR 120...............................[7.30] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273......................[12.150] Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex p Ame [2005] HCA 36; (2005) 222 CLR 439.....................................................................................................................................[36.50] Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji [2004] HCA 38; (2004) 219 CLR 664.....................................................................................................................................[25.60] Minister of Immigration and Ethnic Affairs v Lebanese Moslem Association [1987] FCA 49; (1987) 17 FCR 373.....................................................................................................................................[24.110] Minister of State for the Army v Dalziel (1944) 68 CLR 261.............................................. [22.20], [22.50], [22.60] Minister of State for the Navy v Rae [1945] HCA 6; (1945) 70 CLR 339......................................................[22.60] Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; (2002) 211 CLR 1.................................................[12.110] Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1......................... [13.100], [32.120], [34.80], [35.30] Monis v The Queen; Droudis v The Queen [2013] HCA 4; (2013) 249 CLR 92..........................................[14.60] Morgan v Commonwealth [1947] HCA 6; (1947) 74 CLR 421.......................................................[23.30], [23.60] Mowen v Queensland State Government [2011] QSC 12................................................................................[7.50] Muldowney v South Australia [1996] HCA 52; (1996) 186 CLR 352..............................[14.30]–[14.50], [14.150] Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181.............. [14.40], [14.140], [14.150], [14.170] Municipal Council of Sydney v The Commonwealth [1904] HCA 50; (1904) 1 CLR 208...........................[21.60] Murphy v Electoral Commissioner [2016] HCA 36; (2016) 334 ALR 369....................................................[15.60] Murphyores Inc Pty Ltd v Commonwealth [1976] HCA 20; (1976) 136 CLR 1............... [1.40], [11.150], [18.60] Mutual Pools & Staff Pty Ltd v Commonwealth (No 2) [1994] HCA 9; (1994) 179 CLR 155...................................................................................................................[22.120], [22.130] Mutual Pools & Staff Pty Ltd v Federal Commissioner of Taxation [1992] HCA 4; (1992) 173 CLR 450...................................................................................................................................[21.120] N NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48; (2004) 219 CLR 90.........................................................................................................................[9.160], [11.90] Namah v Pato [2016] PGSC 13........................................................................................................................[25.60] National Association for the Advancement of Colored People v Alabama 357 US 449 (1958)..................[14.140] Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 (Nationwide News).................................................................... [1.40], [5.80], [13.60], [14.20], [14.30], [14.50] Nelson v Fish [1990] FCA 28; (1990) 21 FCR 430..........................................................................................[24.90] Nelungaloo Pty Ltd v Commonwealth [1947] HCA 58; (1947) 75 CLR 495................................[22.60], [26.140] New South Wales v Bardolph [1934] HCA 74; (1934) 52 CLR 455...............................................[11.40], [21.220] New South Wales v Commonwealth [1908] HCA 68; (1908) 7 CLR 179 (Surplus Revenue case)..............................................................................................................................[21.150] New South Wales v Commonwealth [1915] HCA 17; (1915) 20 CLR 54 (Wheat case)......... [25.20], [25.30], [25.40] New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337 (Seas and Submerged Lands case)............................................................... [1.40], [5.20], [5.60], [6.50], [8.80], [12.80], [12.90], [12.130], [12.140] New South Wales v Commonwealth [1983] HCA 8; (1983) 151 CLR 302 (Hospital Benefits case).............................................................................................................................[32.140]

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New South Wales v Commonwealth [1990] HCA 2; (1990) 169 CLR 482 (Corporations Act/Incorporation case)....................................................................................................[18.110] New South Wales v Commonwealth [2006] HCA 52; (2006) 229 CLR 1 (Work Choices case)..................................................................... [1.40], [8.30], [8.40], [8.80], [17.30], [18.20], [18.100], [18.110], [18.130], [28.100], [32.10], [32.110] New South Wales v Commonwealth (No 1) [1932] HCA 7; (1932) 46 CLR 155..........................................[9.140] New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118...................................................................[34.20] New York Times Co v Sullivan [1964] USSC 41; 376 US 254 (1964).............................................................[14.30] Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513......... [22.20], [22.40], [22.150] Ng v The Queen [2003] HCA 20; (2003) 217 CLR 521..................................................................................[24.50] Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173.......................................... [26.70], [26.110], [26.120], [26.130], [34.50], [34.90] Nile v Wood [1987] HCA 62; (1987) 167 CLR 133.......................................................................................[15.100] Nintendo Co Ltd v Centronics Systems Pty Ltd [1994] HCA 27; (1994) 181 CLR 134....................................................................................................... [8.40], [18.180], [22.130] Nolan, Re; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460..................................................................[25.90] Nolan v Minister for Immigration & Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178..................................................................................................... [19.170], [31.30], [31.100] North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41; (2015) 256 CLR 569.....................................................................................................[34.70], [36.120] North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; (2004) 218 CLR 146....................................................................................... [34.40], [36.80], [36.110], [36.120] North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW [1975] HCA 45; (1975) 134 CLR 559.....................................................................................................................................[30.90] Northern Suburbs General Cemetery Reserve Trust v Commonwealth [1993] HCA 12; (1993) 176 CLR 555 (Training Levy case)..................................................................................[21.40], [21.140] Northern Territory v GPAO [1999] HCA 8; (1999) 196 CLR 553.................................................................[36.80] O O’Donoghue v Ireland [2008] HCA 14; (2008) 234 CLR 599........................................................................[26.60] Osborne v Commonwealth [1911] HCA 19; (1911) 12 CLR 321..................................................................[16.40] O’Sullivan v Noarlunga Meat Ltd [1954] HCA 29; (1954) 92 CLR 565............................. [1.40], [18.70], [32.10], [32.20], [32.110], [32.130] O’Sullivan v Noarlunga Meat Ltd (No 2) [1956] HCA 9; (1956) 94 CLR 367..............................................[32.20] P P v P [1994] HCA 20; (1994) 181 CLR 583; 120 ALR 545..............................................................................[20.30] P J Magennis Pty Ltd v Commonwealth [1949] HCA 66; (1949) 80 CLR 382............................................[22.110] PS Bus Co Ltd v Ceylon Transport Board (1958) 61 NLR 491.....................................................................[15.120] Pacific Coal, Re; Ex p Construction, Forestry, Mining and Energy Union [2000] HCA 34; (2000) 203 CLR 346.....................................................................................................................[18.90], [18.100] Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1; [1968] AC 997...........................[11.150] Paliflex Pty Ltd v Chief Commissioner of State Revenue (NSW) [2003] HCA 65; (2003) 219 CLR 325............[28.50] Pape v Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1 (Pape or the Tax Bonus case)..................................................................................................[7.40], [7.80], [21.190]–[21.210] Parker v The Queen (1963) 111 CLR 610..........................................................................................................[5.50] Parton v Milk Board (Vic) (1949) 80 CLR 229..................................... [29.30], [29.50], [29.70], [29.80], [29.120] Paterson v O’Brien [1978] HCA 2; (1978) 138 CLR 276................................................................................[36.30] Patterson, Re; Ex p Taylor [2001] HCA 51; (2001) 207 CLR 391.................................................................[19.170] Peanut Board v Rockhampton Harbour Board [1933] HCA 11; (1933) 48 CLR 266.................................[30.110] Pearce v Florenca [1976] HCA 26; (1976) 135 CLR 507.................................................................................[12.90] Permanent Trustee Australia Limited v Commissioner of State Revenue (Vic) [2004] HCA 53; (2004) 220 CLR 388................................... [1.40], [21.110], [23.20], [23.40], [23.50], [28.50]

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Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation [1948] HCA 24; (1948) 77 CLR 1..............................................................................................[22.120] Peterswald v Bartley [1904] HCA 21; (1904) 1 CLR 497....................................... [6.20], [29.30], [29.40], [29.50], [29.70], [29.110], [29.120] Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457.....................................................................................................................[26.40], [29.120] Phillips v Eyre (1870) LR 6 QB 1......................................................................................................................[3.120] Pidoto v Victoria [1943] HCA 37; (1943) 68 CLR 87.........................................................................[8.60], [17.40] Pioneer Express Pty Ltd v Hotchkiss [1958] HCA 45; (1958) 101 CLR 536....................................[28.40], [36.60] Piro v W Foster & Co (1943) 68 CLR 313.........................................................................................................[5.50] Pirrie v McFarlane [1925] HCA 30; (1925) 36 CLR 170.................................................................................[33.60] Plaintiff M47/2012 v Director General of Security [2012] HCA 46; (2012) 251 CLR 1...............................[25.60] Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 327 ALR 369; (2016) 257 CLR 42........................................................ [10.40], [12.60], [25.50], [25.60] Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144.....................................................................................................................................[25.60] Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251 CLR 322.....................................................................................................................[25.60] Plaintiff S156-2013 v Minister for Immigration and Border Protection [2014] HCA 22; (2014) 254 CLR 28.....................................................................................................................................[19.170] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476...............................[11.120], [11.140] Plenty v Dillon (1991) 171 CLR 635..................................................................................................[13.70], [13.80] Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60........................................................................[12.150] Pollentine v Bleijie [2014] HCA 30; (2014) 253 CLR 629...............................................................................[34.70] Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501 (War Crimes Act case)..................................................................... [12.60], [12.130], [12.140], [19.80], [25.50] Port Macdonnell Professional Fishermen’s Association Inc v South Australia [1989] HCA 49; (1989) 168 CLR 340 (Rock Lobsters case).................................................... [5.70], [12.110], [12.120] Porter v The Queen; Ex p Chin Man Yee [1926] HCA 9; (1926) 37 CLR 432.............................................[36.130] Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277....................................................................[13.70], [19.160] Poulton v Commonwealth [1953] HCA 101; (1953) 89 CLR 540.................................................................[22.80] Powell v Apollo Candle Co Ltd (1885) 10 App Cas 282........................ [12.30], [27.10], [27.50], [27.60], [38.100] Precision Data Holdings Ltd v Wills [1991] HCA 58; (1991) 173 CLR 167................................................[25.100] Proclamations, Case of (1611) 12 Co Rep 74....................................................................................................[2.60] Prohibitions del Roy (1607) 12 Co Rep 64........................................................................................................[2.60] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355....................[27.140] Province of Bombay v Municipal Corporation of Bombay [1947] AC 58....................................................[11.80] Public Service Association and Professional Officers’ Association Amalgamated of NSW v Director of Public Employment [2012] HCA 58; (2012) 250 CLR 343 (PSA/POA)...............................[34.60] Pye v Renshaw [1951] HCA 8; (1951) 84 CLR 58.............................................................................[7.40], [22.110] Q Queanbeyan City Council v ACTEW Corporation Ltd [2011] HCA 40; (2011) 244 CLR 530....................[29.30] Queen Victoria Memorial Hospital v Thornton [1953] HCA 11; (1953) 87 CLR 144 (Thorton’s case).........[26.80] Queensland v Commonwealth [1977] HCA 60; (1977) 139 CLR 585...............................................[8.30], [15.40] Queensland v Commonwealth (Fringe Benefits case) [1987] HCA 2; (1987) 162 CLR 74..........................[33.30] Queensland Electricity Commission v Commonwealth [1985] HCA 56; (1985) 159 CLR 192.................... 33.70] Queensland Nickel Pty Ltd v Commonwealth [2015] HCA 12; (2015) 255 CLR 252..................................[23.40] Quickenden v O’Connor [2001] FCA 303; (2001) 109 FCR 243.................................................................[18.130] R R v Archdall and Roskruge; Ex parte Carrigan [1928] HCA 18; (1928) 41 CLR 128....................................[24.40] R v Austin; Ex parte Farmers & Graziers Co-operative Co Ltd [1964] HCA 48; (1964) 112 CLR 619........[25.70]

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R v Australian Industrial Court; Ex p CLM Holdings Pty Ltd [1977] HCA 6; (1977) 136 CLR 235........................................................................... [17.50], [18.20], [18.60], [18.80], [18.120] R v Bamford (1901) 1 SR (NSW) 337..............................................................................................................[28.50] R v Bernasconi [1915] HCA 13; (1915) 19 CLR 629.......................................................[36.90]–[36.110], [36.140] R v Brislan; Ex p Williams [1935] HCA 78; (1935) 54 CLR 262..................................................................[18.150] R v Burah (1878) 3 App Cas 889.................... [8.20], [12.20]–[12.40], [12.70], [27.10], [27.50], [27.60], [38.100] R v Burgess; Ex p Henry [1936] HCA 52; (1936) 55 CLR 608...........................................[18.70], [19.40]–[19.70] R v Commonwealth Court of Conciliation & Arbitration; Ex p Victoria [1942] HCA 39; (1942) 66 CLR 488.....................................................................................................................................[19.100] R v Connare; Ex p Wawn [1939] HCA 18; (1939) 61 CLR 596......................................................................[30.50] R v Credit Tribunal; Ex parte General Motors Acceptance Corporation [1977] HCA 34; (1977) 137 CLR 545...................................................................................................................................[32.120] R v Davison [1954] HCA 46; (1954) 90 CLR 353...........................................................................[25.40], [25.120] R v Duncan; Ex p Australian Iron & Steel Pty Ltd [1983] HCA 29; (1983) 158 CLR 535............................[35.50] R v Federal Court of Australia; Ex p WA National Football League [1979] HCA 6; (1979) 143 CLR 190 (Adamson’s case).........................................................................................[1.50], [18.130] R v Federal Court of Bankruptcy; Ex p Lowenstein [1938] HCA 10; (1938) 59 CLR 556............[18.180], [24.40] R v Foster; Ex p Eastern & Australian Steamship Co Ltd [1959] HCA 10; (1959) 103 CLR 256................[12.130] R v Foster; Ex p Rural Bank of New South Wales [1949] HCA 16; (1949) 79 CLR 43...............................[19.110] R v Halton; Ex p AUS Student Travel Pty Ltd [1978] HCA 26; (1978) 138 CLR 201....................................[18.60] R v Hampden (1637) 3 St Tr 825........................................................................................................................[2.60] R v Hickman; Ex p Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598..................................[11.120]–[11.140] R v Holmes (1988) 93 FLR 405........................................................................................................................[28.50] R v Hughes [2000] HCA 22; (2002) 202 CLR 535..........................................................................................[35.50] R v Humby; Ex parte Rooney [1973] HCA 63; (1973) 129 CLR 231...........................................................[26.140] R v Joske; Ex parte Australian Building Construction Employees & Builders’ Labourers’ Federation [1974] HCA 8; (1974) 130 CLR 87............................................................................[26.50], [26.90] R v Kidman [1915] HCA 58; (1915) 20 CLR 425..............................................................................[12.50], [12.60] R v Kirby; Ex p Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254 (Boilermakers’ case).............................................. [18.190], [25.40], [26.50], [26.60], [26.90], [34.60], [34.90] R v Licensing Court of Brisbane; Ex p Daniell [1920] HCA 24; (1920) 28 CLR 23......................................[32.40] R v LK; R v RK [2010] HCA 17; (2010) 241 CLR 177....................................................................................[24.50] R v Loewenthal; Ex p Blacklock [1974] HCA 36; (1974) 131 CLR 338............. [19.20], [28.50], [32.60], [32.110] R v MacFarlane; Ex p O’Flanagan and O’Kelly [1923] HCA 39; (1923) 32 CLR 518 (Irish Envoys case).....................................................................................................................................[19.160] R v Pearson; Ex parte Sipka [1983] HCA 6; (1983) 152 CLR 254..................................................................[24.20] R v Phillips [1970] HCA 50; (1970) 125 CLR 93.............................................................................................[28.50] R v Poole; Ex p Henry (No 2) [1939] HCA 19; (1939) 61 CLR 634..................................... [8.70], [19.40], [19.60] R v Porter (2001) 53 NSWLR 354....................................................................................................................[28.50] R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex p Australian National Airways Pty Ltd [1964] HCA 15; (1964) 113 CLR 207............................................................................................[17.80] R v Quinn; Ex parte Consolidated Food Corporation [1977] HCA 62; (1977) 138 CLR 1..........[25.110], [26.80] R v Richards; Ex parte Fitzpatrick & Browne [1955] HCA 36; (1955) 92 CLR 157......................................[25.90] R v Secretary of State for the Home Department; Ex p Simms [2000] 2 AC 115..........................................[13.70] R v Sharkey [1949] HCA 46; (1949) 79 CLR 121............................................................................[10.50], [19.130] R v Small Claims Tribunal; Ex p Gibson [1973] Qd R 490.............................................................................[23.40] R v Smithers; Ex p Benson [1912] HCA 96; (1912) 16 CLR 99....................................................[30.160], [30.170] R v Spicer; Ex parte Australian Builders’ Labourers’ Federation [1957] HCA 81; (1957) 100 CLR 277..........[26.90] R v Toohey; Ex p Northern Land Council [1981] HCA 74; (1981) 151 CLR 170.......................................[11.150] R v Trade Practices Tribunal; Ex p St George County Council [1974] HCA 7; (1974) 130 CLR 533.....................................................................................................................[18.40], [18.130] R v Trade Practices Tribunal; Ex p Tasmanian Breweries [1970] HCA 8; (1970) 123 CLR 361 (Tasmanian Breweries case)................................ [1.40], [25.40], [25.70], [25.80], [25.90]

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R v University of Sydney; Ex p Drummond [1943] HCA 11; (1943) 67 CLR 95........................................[19.100] R v White; Ex parte Byrnes [1963] HCA 58; (1963) 109 CLR 665...............................................................[25.110] R v Winneke; Ex parte Gallagher [1982] HCA 77; (1982) 152 CLR 211.....................................................[32.140] R v Wright; Ex p Waterside Workers’ Federation of Australia [1955] HCA 35; (1955) 93 CLR 528............[18.60] Ranger Uranium Mines Pty Ltd, Re; Ex parte Federated Miscellaneous Workers’ Union of Australia [1987] HCA 63; (1987) 163 CLR 656.........................................................................................[25.70] Raptis & Son v South Australia [1977] HCA 36; (1977) 138 CLR 346..........................................................[12.90] Rederiaktiebolaget Amphitrite v The King [1921] 3 KB 500........................................................................[27.140] Redfern v Dunlop Rubber Australia Ltd [1964] HCA 9; (1964) 110 CLR 194..............................................[18.70] Refugee Review Tribunal, Re; Ex p Aala [2000] HCA 57; (2000) 204 CLR 82...............................................[11.60] Registrar of the Accident Compensation Tribunal v Federal Commis­sioner of Taxation [1993] HCA 69; (1993) 178 CLR 145.....................................................................................................................[33.30] Reid v Sinderberry [1944] HCA 15; (1944) 68 CLR 504..............................................................................[19.100] Resch v Federal Commissioner of Taxation [1942] HCA 2; (1942) 66 CLR 198........................................[21.120] Residential Tenancies Tribunal of New South Wales and Henderson, Re; Ex p Defence Housing Authority (Defence Housing case) [1997] HCA 36; (1997) 190 CLR 410.................... [1.40], [10.30], [11.90], [19.20], [28.60], [33.60] Reynolds v Sims 377 US 562 (1964)................................................................................................................[15.70] Richard Foreman & Sons Pty Ltd, Re; Uther v Federal Commissioner of Taxation [1947] HCA 45; (1947) 74 CLR 508.........................................................................................................[10.50], [33.60] Richardson v Forestry Commission [1988] HCA 10; (1988) 164 CLR 261 (Lemonthyme Forest case).............................................................................................. [19.50], [19.60], [33.70] Roach v Electoral Commissioner [2007] HCA 43; (2007) 233 CLR 162.............. [1.40], [8.80], [14.150], [15.30], [15.50]–[15.70], [15.90], [27.100] Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1.........................................................................................[14.40] Robinson v Western Australian Museum [1977] HCA 46; (1977) 138 CLR 283..............................[5.80], [12.90] Robtelmes v Brenan [1906] HCA 58; (1906) 4 CLR 395.................................................... [6.20], [11.110], [20.90] Roche v Kronheimer [1921] HCA 25; (1921) 29 CLR 329.............................................................................[12.40] Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515........................................................................[26.120] Rola Company (Australia) Pty Ltd v Commonwealth [1944] HCA 17; (1944) 69 CLR 185........................[25.70] Rowe v Electoral Commissioner [2010] HCA 46; (2010) 243 CLR 1................... [1.40], [8.80], [14.60], [14.150], [15.30], [15.60], [15.70], [27.100] Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491 (Tampa case).....................[10.20]–[10.40], [11.110] Ruddock v Vadarlis (No 2) [2001] FCA 1825; (2001) 115 FCR 229............................................................[11.160] Russell v Russell [1976] HCA 23; (1976) 134 CLR 495....................................................... [1.50], [20.30], [26.110] S SS Kalibia, Owners of the v Wilson [1910] HCA 77; (1910) 11 CLR 689............................................[8.60], [8.70] SGH Ltd v Commissioner of Taxation [2002] HCA 18; (2002) 210 CLR 51................................................[33.40] Saffron v The Queen [1953] HCA 51; (1953) 88 CLR 523...........................................................................[26.100] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1.................................................................................[11.150] Seamen’s Union of Australia v Utah Development Co [1978] HCA 46; (1978) 144 CLR 120........................................................................................... [8.30], [18.60], [29.20], [30.150] Semayne’s case (1604) 5 Co Rep 91..................................................................................................................[13.70] Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; (2003) 218 CLR 28............................................................................................................. [1.50], [8.40], [19.170] Shell Company of Australia Limited v Federal Commissioner of Taxation [1930] UKPCHCA 1; (1930) 44 CLR 530..............................................................................................................[25.80] Silbert v DPP (WA) [2004] HCA 9; (2004) 217 CLR 181.................................................................[34.30], [34.70] Silk Bros Pty Ltd v State Electricity Commission of Victoria [1943] HCA 2; (1943) 67 CLR 1.......[19.100], [25.40] Simpson v Attorney-General [1955] NZLR 271...............................................................................[9.70], [15.120] Singh v Commonwealth [2004] HCA 43; (2004) 222 CLR 322 (Singh’s case)........ [8.40], [8.80], [19.170], [25.60] Smith v ANL Ltd [2000] HCA 58; (2000) 204 CLR 493.................................................................................[22.50]

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Smith Kline & French Laboratories (Aust) Ltd v Commonwealth [1991] HCA 43; (1991) 173 CLR 194...................................................................................................................................[26.100] South Australia v Commonwealth [1942] HCA 14; (1942) 65 CLR 373 (First Uniform Tax case)................................................... [19.100], [21.60], [21.160], [23.30], [29.50], [33.70] South Australia v Commonwealth [1962] HCA 10; (1962) 108 CLR 130...................................................[27.140] South Australia v Commonwealth [1992] HCA 7; (1992) 174 CLR 235.......................................................[33.30] South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1........................................... [14.140], [34.50], [34.90] South Australia v Victoria [1914] AC 283........................................................................................................[12.80] Sportsbet Pty Ltd v New South Wales [2012] HCA 13; (2012) 249 CLR 298 (Sportsbet).............................................................................[30.70], [30.120]–[30.140], [30.160] Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226.................................... [15.40], [36.90], [36.110], [36.130] State Chamber of Commerce & Industry v Commonwealth [1987] HCA 38; (1987) 163 CLR 329 (FBT case).................................................................................... [21.40], [21.50], [21.120] State Superannuation Board v Trade Practices Commission [1982] HCA 72; (1982) 150 CLR 282.......................................................................................................................[7.50], [18.130] Stenhouse v Coleman [1944] HCA 36; (1944) 69 CLR 457...........................................................[17.50], [19.100] Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211.....................................[14.30] Stevenson v The Queen (1865) 2 WW&A’B (L) 143.......................................................................................[11.30] Stock Motor Ploughs Ltd v Forsyth [1932] HCA 40; (1932) 48 CLR 128...................................................[32.140] Storey v Lane [1981] HCA 47; (1981) 147 CLR 549.....................................................................................[18.180] Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461........ [8.30], [23.40], [30.10], [30.60], [31.20], [31.40]–[31.110] Strickland v Rocla Concrete Pipes Ltd [1971] HCA 40; (1971) 124 CLR 468 (Concrete Pipes)........................................................................................ [1.40], [1.50], [8.30], [18.20], [18.90] Sue v Hill [1999] HCA 30; (1999) 199 CLR 462................................................... [5.70], [15.90], [15.100], [26.90] Suntory (Aust) Pty Ltd v Commissioner of Taxation [2009] FCAFC 80; (2009) 177 FCR 140...................[11.30] Svikart v Stewart [1994] HCA 62; (1994) 181 CLR 548.................................................................................[28.50] Swan v Downes (1978) 34 FLR 36......................................................................... [1.50], [18.80], [18.200], [35.60] Sweedman v Transport Accident Commission [2006] HCA 8; (2006) 226 CLR 362..................[31.100], [31.110] Sweeney v Fitzhardinge (1906) 4 CLR 716......................................................................................................[23.30] Swift Australian Co Pty Ltd v Boyd Parkinson [1962] HCA 41; (1962) 108 CLR 189................................[32.130] Sydney Harbour Trust Commissioners v Ryan (1911) 13 CLR 358; (1911) 18 ALR 357; [1911] HCA 64.............................................................................................................................................[11.80] Sydney Municipal Council v Commonwealth [1904] HCA 50; (1904) 1 CLR 208.......................................[33.30] Sykes v Australian Electoral Commission [1993] HCA 36; (1993) 115 ALR 645........................................[15.100] Sykes v Cleary [1992] HCA 32; (1992) 107 ALR 577....................................................................[15.100], [15.110] Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77......................................................................[15.100], [15.110] T T A Robinson & Sons Pty Ltd v Haylor [1957] HCA 76; (1957) 97 CLR 177.............................................[32.130] TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; (2013) 251 CLR 533...................................................................................................................................[26.120] Tajjour v New South Wales [2014] HCA 35; (2014) 254 CLR 508................. [12.160], [14.100], [14.140], [34.50] Talga Ltd v MBC International Ltd [1976] HCA 22; (1976) 133 CLR 622....................................................[26.90] Tasmania v Commonwealth [1904] HCA 11; (1904) 1 CLR 32.......................................................................[8.20] Tasmania v Victoria [1935] HCA 4; (1935) 52 CLR 157.................................................................................[30.90] Taylor v Attorney-General (Qld) [1917] HCA 45; (1917) 23 CLR 457 (Taylor’s case).................................[27.90] Telstra Corporation Ltd v Worthing [1999] HCA 12; (1999) 197 CLR 61......................................[32.40], [32.70] Teori Tau v Commonwealth [1969] HCA 62; (1969) 119 CLR 564 (Panguna Mine case)...........[22.40], [36.100] The Initiative and Referendum Act, Re [1919] AC 935.................................................................................[27.140] Theophanous v Commonwealth [2006] HCA 18; (2006) 225 CLR 101......................................................[22.120] Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104................ [5.80], [8.40], [14.30] Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307.............. [19.80], [19.130], [26.70], [26.120], [28.100]

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Tonking v Australian Apple & Pear Marketing Board (1942) 16 ALJR 21.....................................................[22.60] Toowoomba Foundry Pty Ltd v The Commonwealth [1945] HCA 15; (1945) 71 CLR 545..........................[7.40] Toy v Musgrove [1888] VicLawRp 81; (1888) 14 VLR 349...........................................................................[11.110] Tracey, Re; Ex p Ryan [1989] HCA 12; (1989) 166 CLR 518............................ [19.120], [19.130], [24.40], [25.90] Trade Practices Commission v Tooth & Co Ltd [1979] HCA 47; (1979) 142 CLR 397................. [22.80], [22.90], [22.120], [22.140] Truth About Motorways v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591.......................................................................................................................[7.40] Tyler, Re; Ex parte Foley [1994] HCA 25; (1994) 181 CLR 18.............................................. [8.30], [24.40], [25.90] U US v Fisher (1805) 2 Cranch 358, 390.............................................................................................................[13.70] Union Steamship Company of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1........................................................................................... [12.110], [12.120], [27.50], [27.70] Union Steamship Company of New Zealand Ltd v Commonwealth [1925] HCA 23; (1925) 36 CLR 130.........................................................................................................................................[5.30] Unions New South Wales v New South Wales [2013] HCA 58; (2013) 252 CLR 530...................................[14.60] University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447................................[32.10], [32.120] Uther v Federal Commissioner of Taxation [1947] HCA 45; (1947) 74 CLR 508..........................[10.50], [33.60] V Vacuum Oil Company Pty Ltd v Queensland (No 1) [1934] HCA 5; (1934) 51 CLR 108.........................[30.150] Victoria v Australian Building Construction Employees’ & Builders Labourers’ Federation [1982] HCA 31; (1982) 152 CLR 25...........................................................................................................[35.50] Victoria v Commonwealth [1926] HCA 48; (1926) 38 CLR 399.................................................................[21.160] Victoria v Commonwealth [1937] HCA 82; (1937) 58 CLR 618 (The Kakariki)..........................................[32.80] Victoria v Commonwealth [1957] HCA 54; (1957) 99 CLR 575 (Second Uniform Tax case)....................[21.60], [21.160], [32.140] Victoria v Commonwealth [1971] HCA 16; (1971) 122 CLR 353 (Payroll Tax case).......... [17.70], [33.10], [33.70] Victoria v Commonwealth [1975] HCA 39; (1975) 134 CLR 81 (PMA case).............................. [15.120], [16.40], [16.70], [27.150] Victoria v Commonwealth [1975] HCA 52; (1975) 134 CLR 338 (AAP case)..............[11.40], [21.190]–[21.210] Victoria v Commonwealth [1996] HCA 56; (1996) 187 CLR 416 (Industrial Relations Act case)......................................................................................[18.190], [19.50]–[19.70] Victorian Chamber of Manufactures v Commonwealth [1943] HCA 19; (1943) 67 CLR 335..................[19.100] Victorian Chamber of Manufactures v Commonwealth [1943] HCA 21; (1943) 67 CLR 347..................[19.100] Victorian Chamber of Manufactures v Commonwealth [1943] HCA 22; (1943) 67 CLR 413 (Industrial Lighting case)............................................................................................................[19.100], [25.40] Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs [2001] FCA 1297; (2001) 110 FCR 452.................................................................[11.110] Victorian Stevedoring & General Contracting Company Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73............................................................................................................... [6.20], [12.40], [23.50] Viro v The Queen [1978] HCA 9; (1978) 141 CLR 88....................................................................................[27.80] Viskauskas v Niland [1983] HCA 15; (1983) 153 CLR 280............................................ [32.10], [32.110], [32.120] Vitzdamm-Jones v Vitzdamm-Jones (1981) 148 CLR 383...............................................................................[1.50] W W & A McArthur Ltd v Queensland [1920] HCA 77; (1920) 28 CLR 530....................... [18.40], [18.50], [18.80], [30.60], [30.90] W H Blakeley & Co Pty Ltd v Commonwealth [1953] HCA 12; (1953) 87 CLR 501.....................[22.20], [22.30] Waghorn v Waghorn (1942) 65 CLR 289..........................................................................................................[5.50] Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181.............................................[14.140], [34.50] Wakim, Re; Ex p McNally [1999] HCA 27; (1999) 198 CLR 511.....................................................[26.40], [35.50]

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Wallace & Co, Ex p (1892) 13 LR(NSW)(L) 1.................................................................................................[11.30] Walsh v Cannon [2008] VCAT 962..................................................................................................................[30.40] Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387............................................[14.170] Ward v The Queen [1980] HCA 11; (1980) 142 CLR 308..............................................................[12.80], [12.120] Waterhouse v Minister of the Arts and Territories [1993] FCA 548; (1993) 43 FCR 175; 119 ALR 89.........[22.140] Waterside Workers’ Federation of Australia v J W Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434 (J W Alexander case)........................... [18.190], [25.30], [25.40], [25.70], [26.50], [34.90] Webster, Re [1975] HCA 22; (1975) 132 CLR 270........................................................................................[15.100] Welker v Hewett [1969] HCA 53; (1969) 120 CLR 503..................................................................................[12.90] Wenn v Attorney-General (Victoria) [1948] HCA 13; (1948) 77 CLR 84................... [19.110], [32.110], [32.160] Wesberry v Sanders 376 US 1 (1963)...............................................................................................................[15.70] West v Commissioner of Taxation (NSW) [1937] HCA 26; (1937) 56 CLR 657........... [8.50], [32.110], [32.120], [33.50], [33.60] West Lakes Ltd v South Australia (1980) 25 SASR 389.....................................................................[9.80], [27.140] Western Australia v Chamberlain Industries Pty Ltd [1970] HCA 5; (1970) 121 CLR 1..............................[29.70] Western Australia v Commonwealth [1975] HCA 46; (1975) 134 CLR 201 (Territorial Senators case)................................................................................................. [9.70], [15.40], [16.60] Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373 (Native Title Act case).................................................................................... [16.40], [20.100], [20.110], [32.40] Western Australia v Hamersley Iron Pty Ltd (No 1) [1969] HCA 42; (1969) 120 CLR 42...........................[29.70] Western Australia v Wilsmore [1982] HCA 19; (1982) 149 CLR 79............................................[27.160], [27.170] White v Director of Military Prosecutions [2007] HCA 29; (2007) 231 CLR 570..........................[24.40], [25.90] Wickard v Filburn 317 US 111 (1942).............................................................................................................[18.70] Williams v Commonwealth (No 1) [2012] HCA 23; (2012) 248 CLR 156..................................... [7.40], [21.210], [21.220], [38.100] Williams v Commonwealth of Australia (No 2) [2014] HCA 23; (2014) 252 CLR 416....................................... [18.100], [20.70], [21.190], [21.210], [21.220], [35.20], [38.100] Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (Hindmarsh Island Bridge case) [1996] HCA 18; (1996) 189 CLR 1.............................................................................................................[26.60] Wong v Commonwealth of Australia [2009] HCA 3; (2009) 236 CLR 573...................................................[20.80] Wood, Re [1988] HCA 22; (1988) 167 CLR 145...........................................................................................[15.110] Worthing v Rowell & Muston Pty Ltd [1970] HCA 19; (1970) 123 CLR 89...................................[28.30], [28.50] Wotton v Queensland [2012] HCA 2; (2012) 246 CLR 1.............................................................................[14.120] Wurridjal v Commonwealth [2009] HCA 2; (2009) 237 CLR 309 (NT Intervention case).................................................... [22.40]–[22.60], [22.160], [36.90], [36.100], [36.140] Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) [1955] HCA 72; (1955) 93 CLR 376.......................................................................................................................................[9.160] X X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92......................................[13.70], [13.80] XYZ v Commonwealth [2006] HCA 25; (2006) 227 CLR 532.......................................................[12.140], [19.80] Y Yates, Re; Ex p Walsh and Johnson [1925] HCA 53; (1925) 37 CLR 36.......................................[19.150], [19.160]

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Table of Statutes COMMONWEALTH A New Tax System (Goods and Services Tax Imposition — Customs) Act 1999 s 3 [21.120]

Australian Citizenship Act 1948 [19.140], [19.170] s 10(2) [8.40] Australian Citizenship Act 2007 [19.140] s 34 [19.170]

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 [20.100], [20.120]

Australian Citizenship Amendment Act 1984 [19.170]

Acts Interpretation Act 1901 s 5 [12.50] s 15A [8.60], [8.70] s 15AB [24.20] s 46 [8.60]

Australian Citizenship Amendment (Allegiance to Australia) Act 2015 s 33AA [19.170]

Acts Interpretation Act 1903 s 10 [12.40] Aged Care Act 1997 [35.20] Appropriation Act (No 1) 2005–2006 [11.50]

Australian Colonies Act 1862 [36.30] Australian Consumer Law s 36 [18.80] Australian Crime Commission Act 2002 [13.70] Australian Industries Preservation Act 1906 [18.20], [18.70]

Australia Act 1986 [8.40] s 2 [12.110], [12.120] s 2(1) [12.100], [12.110] s 6 [27.130], [37.30] s 11 [27.80] s 16 [37.30]

Australian Notes Act 1910 s 6 [28.80]

Australian Bicentennial Authority Act 1980 s 10 [21.200]

Beverage Container Act 1975 [30.130]

Australia (Request and Consent) Act 1985 [5.70] Australian Capital Territory (Self-Government) Act 1988 [36.30], [36.50] s 22 [36.70] s 23 [36.80] s 23(1)(a) [22.110] s 26 [27.190], [28.40], [36.70] s 28 [32.10], [32.110], [36.80] s 39 [36.70] s 40 [36.70] s 58 [36.70] s 69 [30.70], [36.80]

Bank Notes Tax Act 1910 [21.40] Banking Act 1945 [33.70] Bankruptcy Act 1966 [1.50], [18.180] Bills of Exchange Act [32.140] Broadcasting Act 1942 Pt IIID [14.20] Christmas Island Act 1958 [36.40] Circuit Layouts Act 1989 [22.130] Coal Industry Act 1946 [35.50] Coastal Waters (State Powers) Act 1980 [5.70] s 5 [12.100] s 5(2) [12.100], [12.110] s 5(3) [12.100] s 109 [12.100]

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Coastal Waters (State Title) Act 1980 s 4 [12.100] s 4(2) [12.100] Cocos (Keeling) Islands Act 1955 [36.40] Coinage Act 1909 s 5 [28.80] Commerce (Meat Export) Regulations [18.70], [32.110] Common Informers (Parliamentary Disqualifications) Act 1975 [15.110] Commonwealth Electoral Act 1902 [15.90] Commonwealth Electoral Act 1918 [15.30], [15.70] s 9 [15.20] ss 46–48 [15.20] s 59 [15.20] s 66 [15.20] s 93 [15.20] s 163 [15.20], [15.80] s 239 [15.20] s 240 [14.30], [15.20] s 269 [15.20] s 272 [15.20] s 273 [15.20] s 274 [15.20] Commonwealth Electoral Act (No 2) 1973 [16.60] Commonwealth Inscribed Stock Act 1911 [32.40] Commonwealth of Australia Constitution Act Ch I [10.30], [26.50] Ch II [10.30], [26.50], [28.60] Ch III [10.30], [11.130], [11.140], [13.40], [26.10], [26.50], [34.20], [34.30], [34.50], [35.50], [36.90], [36.120] Ch V [28.20] Ch VI [37.20] cl 2 [6.30] cl 3 [4.70] cl 4 [6.30] cl 5 [6.30], [28.2], [32.10], [33.10] cl 7 [6.30] cl 9 [6.30], [6.50], [38.60] s 1 [5.70], [6.60], [12.40], [15.20], [16.20] s 2 [5.60] s 3 [5.70], [6.40] s 5 [9.40], [9.70], [9.140]

s 7 [5.70], [6.70], [8.50], [9.10], [13.50], [14.20]–[14.40], [14.150], [15.20], [15.40]–[15.70], [19.170], [23.10], [27.100], [37.30] s 8 [15.20], [15.50], [15.60], [19.170] s 9 [5.90], [6.30], [15.20] s 10 [4.70], [33.70] s 11 [5.70], [17.30] s 13 [16.50] s 15 [15.110] s 16 [15.20] s 23 [15.40], [16.20] s 24 [6.70], [8.50], [9.10], [13.50], [14.20]–[14.40], [14.150], [15.20]–[15.70], [15.120], [19.170], [23.10], [27.100], [37.30] s 24(2) [32.110] s 25 [27.110], [38.50] s 26 [4.60], [6.40] s 27 [15.20] s 28 [9.70], [9.140], [15.120] s 29 [15.20], [15.120] ss 29–31 [15.20] s 30 [6.40], [15.20], [15.50]–[15.70], [19.170] s 31 [4.70], [6.40], [15.20], [15.50] s 32 [15.120], [21.140] s 33 [15.110], [21.140] s 33(a) [21.140] s 34 [6.40], [15.20] s 40 [7.20], [16.20] s 41 [8.40], [13.30], [24.10], [24.20] s 44 [15.20], [15.80]–[15.100] s 44(i) [15.100], [24.120] s 44(ii) [15.100] s 44(iii) [15.80], [15.100] s 44(iv) [2.70], [15.80], [15.100] s 44(v) [15.100] s 45 [15.80], [15.110] s 45(iii) [15.100] s 46 [15.110] s 47 [15.90] s 48 [22.150] s 49 [15.20], [25.90] s 50 [16.20] s 51 [3.90], [4.30], [8.20], [17.20], [17.30]–[17.50], [18.10], [18.40], [18.70], [18.110], [18.180], [19.10], [19.20], [19.100], [19.140], [20.20], [20.60], [21.190], [22.10], [22.20], [22.40], [22.120], [28.60], [28.90], [28.100], [36.50], [36.60], [36.90] s 51(i) [5.30], [8.60], [12.40], [12.130], [17.40], [18.20]–[18.40], [18.70], [18.90], [18.130], [23.30], [23.60], [23.70], [28.100], [30.20], [30.80], [30.100], [30.160], [32.110], [36.60], [38.120]

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s 51(ii) [17.30], [21.10]–[21.30], [21.60], [23.10]–[23.40], [29.10], [29.80], [32.140] s 51(iii) [23.10], [23.20], [28.110], [29.10] s 51(iv) [28.90] s 51(v) [8.40], [18.150], [28.100] s 51(vi) [19.90], [19.130], [25.90] s 51(x) [12.80] s 51(xii) [18.160], [28.80] s 51(xiii) [17.40], [18.160], [28.80] s 51(xiv) [18.170] s 51(xvii) [1.50], [21.60] s 51(xviii) [8.40], [17.40], [18.180] s 51(xix) [5.110], [10.30], [11.110], [12.150], [19.140], [19.150], [19.170], [28.90] s 51(xx) [17.40], [18.20], [18.40], [18.90]–[18.140], [18.160], [18.200] s 51(xxi) [17.40], [20.20], [20.30], [20.50] s 51(xxii) [1.50], [17.40], [20.20], [20.30] s 51(xxiii) [19.110], [20.70], [21.200] s 51(xxiiiA) [19.110], [20.10], [20.70], [20.80], [21.190], [21.200], [21.230], [38.110] s 51(xxvi) [20.90], [20.100]–[20.120], [38.50] s 51(xxvii) [11.110], [19.140], [19.150] s 51(xxviii) [11.110] s 51(xxix) [12.130], [19.30], [19.50], [19.70], [28.50], [30.130] s 51(xxxi) [13.30], [17.40], [18.150], [20.70], [22.10]–[22.30], [22.50], [22.60], [22.80], [22.100]–[22.160], [28.50], [28.100], [36.30], [36.80]–[36.100] s 51 (xxxiiiA) [10.20] s 51(xxxv) [12.130], [13.60], [17.40], [18.190], [19.50], [33.50] s 51(xxxvi) [5.70], [6.40], [15.20], [15.50], [15.60], [22.150], [28.90] s 51(xxxvii) [17.80], [18.110], [18.140], [35.50] s 51(xxxviii) [5.20], [5.70], [12.100], [12.110], [27.130], [37.30] s 51(xxxix) [10.50], [11.70], [12.50], [17.40], [17.50], [19.20], [19.130], [21.190], [21.200], [26.10], [26.120], [28.60], [28.90] s 51(26) [20.100] s 52 [17.20], [17.30], [28.30], [28.100], [36.50], [36.60] s 52(i) [19.20], [23.20], [23.40], [28.40], [28.50], [28.100], [36.30] s 52(ii) [6.40], [19.20], [28.60] s 53 [9.140], [16.30], [16.40], [21.70] ss 53–55 [27.40] s 54 [16.30], [16.40], [21.70] s 55 [16.40], [21.20], [21.70], [21.80], [21.100]–[21.130], [28.50], [36.90] s 56 [16.40]

s 57 [3.80], [4.60], [9.40], [16.20], [16.40]–[16.70] s 58 [9.40], [9.70] s 59 [9.40] s 61 [5.20], [6.60], [9.20], [10.20]–[10.50], [11.100], [11.110], [12.40], [17.50], [19.130], [21.190], [21.200], [28.60] ss 62–63 [9.20] s 63 [9.40] s 64 [6.60], [9.40], [9.50], [19.20] s 68 [9.40] s 69 [6.40], [19.20], [28.60] s 70 [6.40] s 71 [6.60], [12.40], [25.20], [25.30], [25.40], [34.10], [34.20] s 72 [19.120], [25.20], [25.30], [25.90], [34.40], [36.70], [36.110], [36.130] s 73 [6.20], [11.140], [26.100], [36.130] s 73(ii) [22.60], [34.20] s 74 [4.70] s 75 [7.20], [7.30], [11.70], [26.20], [26.30], [26.40], [36.130] s 75(iii) [7.40], [22.60] s 75(iv) [34.80] s 75(v) [5.110], [7.20], [7.40], [11.60], [11.120]–[11.140], [21.50], [22.60] s 76 [7.20], [7.30], [14.30], [26.20], [26.30], [26.40], [36.130] s 76(i) [6.20], [7.40] s 76(ii) [7.130], [15.90] s 77 [7.30], [11.130], [25.20], [26.30], [26.40], [26.110], [34.10], [34.20] s 77(i) [11.130], [17.50] s 77(iii) [34.20] s 78 [11.70] s 78A [7.20] s 78B [7.20] s 80 [6.70], [13.30], [24.10], [24.30], [24.40], [24.50], [27.120], [28.20], [32.60], [36.90], [36.110] s 81 [21.140], [21.190], [21.230] s 83 [6.60], [11.20], [11.40], [21.10], [21.140], [21.190] s 84 [6.40] s 85 [6.40] s 87 [4.60], [21.150], [29.10] s 88 [4.30], [23.10], [23.20] s 89 [21.150], [29.10] s 90 [4.30], [6.20], [6.50], [21.10], [21.20], [21.120], [21.170], [28.30], [28.110], [29.10], [29.20], [29.40], [29.80], [29.90], [29.120], [30.10], [30.120], [32.10], [35.20], [36.80], [38.110] s 91 [29.20]

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Commonwealth of Australia Constitution Act continued s 92 [4.30], [6.50], [17.60], [18.40], [18.50], [18.160], [19.100], [23.70], [23.80], [28.40], [28.110], [30.10], [30.20]–[30.70], [30.100], [30.110], [30.130]–[30.170], [31.10], [31.120], [35.50], [36.60], [36.80], [38.120] s 93 [15.80], [21.150] ss 93–97 [29.10] s 93(8AA) [15.50] s 94 [21.150] s 96 [4.60], [21.10], [21.150], [21.160], [21.180], [21.210]–[21.230], [23.30], [24.90], [28.100], [35.20], [38.100] s 97 [6.40] s 98 [23.60] s 99 [17.60], [21.20], [21.40], [21.160], [23.10]–[23.40], [23.60], [28.50], [30.100], [31.120] s 100 [17.70], [23.60] s 101 [25.30] s 102 [30.100] s 103 [25.30] s 106 [6.50], [27.10], [27.20], [27.30], [27.100], [28.20], [37.30] ss 106–108 [32.10] s 107 [6.50], [17.70], [27.10], [27.30], [27.60], [28.20], [28.100], [37.30] s 108 [28.20], [28.50] s 109 [5.70], [6.50], [7.40], [17.70], [21.60], [28.10], [28.40], [28.100], [28.110], [30.70], [31.20], [32.10], [32.20], [32.60], [32.100], [32.110], [32.120], [32.140], [32.160], [33.60], [33.70], [35.10], [35.50], [36.60], [36.80], [36.150] s 111 [36.30], [37.20], [37.40] s 114 [21.20], [23.10], [28.70], [28.90], [28.110], [33.20], [33.40] s 115 [28.80] s 116 [6.70], [13.30], [15.100], [21.160], [24.10], [24.60], [24.70], [24.80], [24.90], [24.100], [24.110], [24.120], [27.120], [36.90], [36.140], [37.20] s 117 [6.50], [6.70], [7.20], [17.60], [23.70], [28.110], [30.10], [30.160], [30.170], [31.10], [31.20], [31.80], [31.100]–[31.120] s 119 [19.130], [28.70] s 121 [15.40], [36.50], [37.20], [37.30] s 122 [8.70], [15.20], [15.40], [22.40], [28.40], [30.70], [36.20], [36.30], [36.50], [36.60], [36.90]–[36.150], [37.20] s 123 [19.170], [36.30], [37.20], [37.40], [38.20]

ss 123–124 [6.10] s 124 [37.20], [37.40], [38.20] s 125 [4.60], [36.30], [36.50], [37.40] s 127 [20.120] s 128 [4.50], [5.80], [5.90], [6.10], [6.70], [9.40], [9.70], [9.80], [19.170], [38.10], [38.20], [38.30], [38.40] s 221(1)(a) [21.60] s 329 [32.80] Commonwealth Places (Application of Laws) Act 1970 [19.20], [28.50], [36.30] s 4 [28.50] s 4(5) [28.50] Commonwealth Places (Mirror Taxes) Act 1998 [21.110], [21.120], [23.40], [28.50] Communist Party Dissolution Act 1950 [6.20], [19.120] Companies Act [18.110] Competition and Consumer Act 2010 [1.50], [7.20], [18.20], [18.140], [35.60], [38.120] Pt IV [25.100] s 6 [18.200] s 18 [18.200] s 131 [18.200], [35.60] Sch (ACL) [18.200] Conciliation and Arbitration Act 1904 [25.30], [32.20], [32.130], [33.50], [33.70] Constitution Alteration (Aboriginals) Act 1967 [20.100] Copyright Act 1968 [18.180], [21.80], [22.130] Corporations Act 1989 [18.110], [35.60] s 731 [25.100] s 733 [25.100] Corporations Act 2001 [18.110], [18.180] Corporations (Commonwealth Powers) Act 2001 [18.110] Crimes Act 1914 [12.50], [32.140] s 4G [24.40] s 50BA [12.140] s 70 [14.130] Crimes at Sea Act 1998 [35.60] Criminal Code [12.140], [19.80], [19.130], [26.70], [35.60] Pt 9.1 [32.120] Div 104 [26.70] s 300.4 [32.120]

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Criminal Proceeds Confiscation Act 2002 s 30 [34.30] Currency Act 1965 s 16 [18.160], [28.80] Customs Act 1901 [12.40], [17.50] s 226 [11.30]

Higher Education Funding Act 1988 [21.230] Higher Education Support Act 2003 [21.230], [35.20] Hindmarsh Island Bridge Act 1997 [20.120] Historic Shipwrecks Act 1976 s 21 [22.160]

Defence Act 1903 [12.150], [19.120], [33.60] Pt IIIA [19.130] s 8 [9.40] s 9 [9.40] s 9A [9.40]

Human Rights (Parliamentary Scrutiny) Act 2011 [13.100]

Defence Force Discipline Act 1982 [32.120]

Income Tax Acts [21.160]

Defence Preparations Act 1951 [19.120]

Industrial Relations Act 1988 [14.20], [18.120], [19.70]

Designs Act 2003 [18.180] Dried Fruits Act 1928 [23.40] Electoral Act [7.70] Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 [15.50] Excise Act 1901 s 114 [11.30] Fair Work Act 2009 [18.190] s 14 [18.20] s 14(2)(a)(ii) [18.140] Family Law Act 1975 [1.50], [20.30], [20.40], [25.120], [30.170] s 97 [26.110] Federal Aid Roads Act 1926 [21.160] Federal Court Act 1976 s 19 [26.30] Financial Agreements Enforcement Act 1932 [9.140] Financial Framework (Supplementary Powers) Act 1997 [21.220] Financial Management and Accountability Act 1997 s 32B [21.210], [21.220] Fisheries Act 1952 [12.90] Great Barrier Reef Marine Park Act 1975 [12.100] Health Insurance Act 1973 [16.60], [20.80] High Court of Australia Act 1979 [25.20] s 14 [36.30]

Immigration Restriction Act 1901 [19.140], [20.90]

International Arbitration Act 1974 [26.120] Interstate Road Transport Act 1985 [35.60] Jervis Bay Territory Acceptance Act 1915 [36.30] Judiciary Act 1903 [7.30], [22.150], [25.20] s 23(2)(a) [14.60] s 30 [6.20], [7.20] s 35 [26.100] s 39 [7.20] s 39B [7.20] s 40 [7.20] s 44 [26.30] s 55B(3) [17.50] s 64 [11.70], [33.60] s 68 [24.50] s 79 [32.10], [36.80] Jurisdiction of Courts (Cross-Vesting) Act 1987 [26.30], [26.40], [26.110] Lands Acquisition Act 1906 [22.30], [22.60] Lands Acquisition Act 1955 [22.30], [22.60] Lands Acquisition Act 1989 [10.20], [22.30], [22.50], [22.60], [22.80] Legislation Act 2003 ss 38–42 [12.20] Life Insurance Act 1945 [32.70], [32.140] Limitation Act [11.70] Maritime Powers Act 2013 [10.40] Marriage Act 1961 [20.20], [20.50], [24.90], [36.80] Matrimonial Causes Act 1959 [20.20], [20.30] Meat Export Control Act 1935 [18.70]

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Migration Act 1958 [1.50], [10.40], [11.110], [12.150], [14.30], [15.20], [19.140], [19.170], [21.100], [25.60], [26.130] s 38A [21.80] s 54R [25.50] s 198AHA [25.60] ss 201–203 [19.170] s 474 [11.120] s 474(1) [11.120] s 476 [11.130] s 476(1) [11.130] s 476(3) [11.130] Migration Amendment Act 1983 [19.170] Mining Act 1978 reg 51(1) [32.80]

Northern Territory (Administration) Act 1910 [36.60] Northern Territory (Self-Government) Act 1978 [36.30], [36.50] s 6 [36.70] s 32 [36.70] s 45 [36.70] s 49 [30.70], [30.140], [32.80], [36.80] s 50 [22.50], [22.110], [34.70], [36.80] s 50(xxxi) [34.70] s 50A [36.80] Pacific Island Labourers Act 1901 [20.90] Papua Act 1905 [36.40] Papua New Guinea Independence Act 1975 [36.50]

Mirror Taxes Act [23.40]

Parliament Act 1911 [9.140], [11.30]

Mutual Recognition Act 1992 [31.80]

Parliament Act 1974 s 3 [36.30]

National Health Act 1953 [18.170], [20.80], [35.20] National Measurement Act 1960 [18.180] National Parks and Wildlife Conservation Act 1975 [22.20], [22.40] National Security (Aliens Service) Regulations [12.50] National Security (Land Transport) Regulations [7.20]

Parliamentary Privileges Act 1987 [25.90] Patents Act 1990 [18.180] Petroleum and Minerals Authority Act (the PMA Act) [16.60], [16.70] Petroleum (Submerged Lands) Act 1982 [35.60] Police Powers Act s 35(1) [7.60]

National Transport Commission Act 2003 [35.60]

Privy Council (Appeals from the High Court) Act 1975 [9.40] s 74 [5.50]

Nationality and Citizenship Act 1948 [5.50], [19.140], [19.170]

Privy Council (Limitation of Appeals) Act 1968 [5.50]

Native Title Act 1993 [16.40], [20.100], [20.120], [32.40] Nauru Independence Act 1967 [36.50]

Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Act 2014 [21.220]

Navigation Act 1912 [7.30]

Public Service Act 1999 [19.20]

Norfolk Island Act 1913 [36.40]

Public Service Regulations 1999 reg 2.1 [14.130] reg 7(13) [14.50]

Norfolk Island Act 1979 [36.50] s 16A [36.150] s 17(3) [36.150] s 18 [36.150] s 18A [36.150] s 19A [36.150] s 77 [36.150] Norfolk Island Legislation Amendment Act 2015 [36.150] Northern Territory Acceptance Act 1910 [36.30]

Racial Discrimination Act 1975 [19.40], [20.100], [27.100], [33.70] Pt II [32.110] s 6 [32.110] s 9 [32.110] s 10 [32.40] Re-establishment and Employment Act 1945 [32.110] s 27(4) [26.80]

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Referendum (Machinery Provisions) Act 1984 [38.10] s 11 [38.40] Representation Act 1973 [16.60] Representation Act 1983 [15.20], [15.120] s 3 [15.30], [15.40] s 4 [15.30] Reserve Bank Act 1959 s 56 [18.160], [28.80] Safety, Rehabilitation and Compensation Act 1988 [32.70] Sea Fisheries Regulations reg 31(1)(d) [30.100] Seamen’s Compensation Act 1909 [8.60] Seamen’s Compensation Act 1911 [12.130] Seas and Submerged Lands Act 1973 [12.80], [12.90], [12.130] Seat of Government Acceptance Act 1909 [36.30] Senate (Representation of Territories) Act 1973 [15.40], [16.60] Social Security Act 1991 [10.20], [15.100] Social Security (Administration) Act 1999 s 123ZN [11.40] State Grants (Universities) Act 1951 [21.230]

Trade Practices Act 1974 [1.50], [7.40], [18.20], [18.90] Pt 5 [35.60] s 58 [18.80] s 75 [32.120] Trade Practices Act 1975 [18.130] s 45D [17.30] Transport Act 1928 [23.50] Transport Workers Act 1928 [12.40] Vagrants Act s 7(1)(d) [7.60] War Crimes Act 1945 [19.80] s 198AHA [12.60] Water Act 2007 [23.60] Workplace Relations Act 1996 [1.50], [18.20], [18.100], [18.190] s 16 [32.110] Workplace Relations Act 2006 [18.120], [18.140] World Heritage Properties Conservation Act 1983 [19.80] s 8 [20.100] s 11 [20.100] Australian Capital Territory

Statute of Westminster (Adoption) Act 1942 [5.40], [5.60], [12.130]

Companies Ordinance 1962 [35.60]

Student Assistance Act 1973 [10.20]

Electoral Act 1992 [36.70]

Tax Bonus for Working Australians Act (No 2) 2009 [7.40], [21.200]

Human Rights Act 2004 s 9 [13.90] s 28 [13.90] s 30 [13.90] s 32 [13.90] ss 37–38 [13.90] s 40B [13.90]

Telecommunications Act 1997 [32.40] Telephonic Communications (Interception) Act 1960 [32.110] Territories Legislation Amendment Act 2016 [36.150] Tobacco Plain Packaging Act 2011 [22.150]

Marriage Equality (Same Sex) Act 2013 [20.50], [36.80]

Trade Marks Act 1995 [18.180]

Mutual Recognition Act 1992 [31.80]

Trade Practices Act 1965 [1.50], [25.80] s 6(2) [18.20] s 6(3) [18.20] s 7 [18.20] s 49(1)(b) [25.100] s 50(1) [25.100]

Proportional Representation (Hare-Clark) Entrenchment Act 1994 [36.70] Supreme Court Act 1933 [36.70] Utilities (Network Facilities Tax) Act 2006 [29.30]

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New South Wales Anti-Discrimination Act 1977 [32.70], [32.110] Builders Labourers Federation (Special Provisions) Act 1986 s 3 [26.140] Claimants Relief Act 1857 [11.70] Clean Waters Act 1970 [12.120] Coal Acquisition Act 1981 [27.120] Coal Industry Act 1946 [35.50] Community Protection Act 1994 s 5 [34.20] s 7 [34.20] Companies Act 1961 [35.60] Constitution Act 1855 [3.60], [3.70], [3.80], [8.10], [9.10] s 37 [3.100] s 38 [3.110] s 39 [3.110] s 40 [3.90] Constitution Act 1902 [27.20] s 2 [38.50] s 2(3) [38.50] s 5 [27.30] s 5A [27.30], [27.90] s 5B [27.30], [27.90], [27.140] s 7A [27.30], [27.90], [27.150], [27.170], [27.180] s 7A(1)(b) [27.150] s 7B [27.30], [27.170], [27.190] s 9A [9.20] s 35B [9.20] ss 39–45 [27.40] s 51 [38.100] s 53 [27.170] Co-operatives (Adoption of National Law) Act 2012 [35.60] Crimes Act 1990 s 93X [14.100] Criminal Assets Recovery Act 1990 [34.50]

Industrial Relations Act 1996 s 146C(1) [34.60] s 151A [34.60] s 179 [11.140] s 356 [34.60] Industrial Relations (Commonwealth Powers) Act 2009 [18.190] Influx of Criminals Prevention Act 1903 [30.170] Interpretation Act 1987 s 31 [14.100] Listening Devices Act 1969 [32.110] Local Government Act 1993 [36.150] ss 218A–218F [38.100] s 220 [7.50], [18.140] s 255 [38.100] Mutual Recognition Act 1992 [31.80] Property (Relationships) Act 1984 [20.40] Racial Discrimination Act 1975 [11.90] Racing Administration Act 1998 [30.130] Residential Tenancies Act 1987 [33.60] cl 5 [11.90] Sunday Entertainment Act 1966 [24.100] Workers’ Compensation Act 1926 [12.110] Workers Compensation Act 1987 [32.70] World Youth Day Act 2006 [14.120] Norfolk Island Local Government Act 1993 [36.150] Norfolk Island Applied Laws Ordinance 2016 [36.150] Northern Territory

Election Funding, Expenditure and Disclosures Act 1981 (EFED Act) [14.70] s 95G(7) [14.60] s 96D [14.60]

Community Welfare Act 1975 [36.80]

Heavy Vehicle (Adoption of National Law) Act 2013 s 8 [35.60] s 730 [35.60]

Magistrates Act 1977 [34.40]

Companies Ordinance 1963 [35.60] Electoral Act [36.70]

Misuse of Drugs Act [34.70] Mutual Recognition Act 1992 [31.80]

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Police Administration Act s 133AB [34.70] Rights of the Terminally Ill Act 1995 [36.80] Supreme Court Act [36.70] Queensland Acts Interpretation Act 1954 s 9 [8.70], [14.50] s 15A [12.50]

Criminal Code s 85 [14.130] s 669A [26.100] s 669A(2) [26.100] Criminal Law Amendment Act 1945 s 18 [34.70] s 18(1) [34.70] s 18(3) [34.70] s 18(5) [34.70] Criminal Organisation Act 2009 [34.50]

Central Queensland Coal Associates Agreement Act 1968 [29.20]

Dangerous Prisoners (Sexual Offenders) Act 2003 [34.30], [34.70]

Commonwealth Powers (De Facto Relationships) Act 2003 [20.40]

Heavy Vehicle National Law Act 2012 s 17 [35.60]

Commonwealth Powers (Family Law — Children) Act 1990 [20.30]

Imperial Acts Application Act 1984 Sch 1, item 1 [2.40]

Companies Act 1961 [35.60]

Industrial Arbitration Act 1916 [27.80]

Constitution Act 1867 [3.60], [3.70], [3.100], [8.10], [9.10], [9.20], [27.20] s 2 [27.30] s 9 [3.90] s 15 [27.80] s 17 [27.80] s 53 [27.30]

Industrial Relations Act 1999 [34.60]

Constitution Act Amendment Act 1890 [27.20] Constitution Act Amendment Act 1922 [27.90] Constitution Act Amendment Act 1934 [12.30], [27.20] s 3 [27.30] s 4 [27.30] Constitution of Queensland 2001 [27.20], [38.50] s 3A [38.50] s 19I [27.30] s 29(1) [9.20] s 33 [35.60] s 41 [10.20] s 42 [9.20] s 48 [9.20] s 51 [10.20] ss 61–63 [27.40] ss 64–66 [27.40] s 65 [11.20] s 66 [11.20] s 70 [38.100] s 78 [27.30], [38.100]

Legislative Standards Act 1992 s 3(g) [12.50] s 4(4) [12.20] Liquor Act 1912 [32.40] Motor Vehicles Insurance Act 1936 s 20 [31.100] Mutual Recognition Act 1992 [31.80] Parliamentary Bills Referendums Act 1908 [27.90] Police Powers and Responsibilities Act 2000 s 332 [13.80] Public Sector Ethics Act 1994 [14.130] Queensland Coast Islands Declaratory Act 1985 [32.40] Right to Information Act 2009 [14.130] State Transport Facilities Act 1946 [12.30] Traffic Act 1949 [32.120] Transport Operations (Road Use Management — Road Rules) Regulation 1999 s 306 [11.90] Vagrants, Gaming and Other Offences Act 1931 s 7 [8.70], [14.50] s 7A [14.50] Vicious Lawless Association Disestablishment Act 2013 (VLAD Act) s 7 [34.50]

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South Australia Claimants Relief Act [11.70] Companies Act 1962 [35.60] Constitution Act 1856 [3.60], [3.70], [3.100], [8.10], [9.10], [9.20] s 34 [3.90] Constitution Act 1934 [27.20] s 5 [27.30] s 8 [27.30] s 10A [27.30] s 41 [27.30] ss 60–64 [27.40] ss 61–62 [27.40] s 64A [27.30], [38.100] s 64A(3) [38.100] s 66(1) [9.50] ss 74–75 [27.40] s 88 [27.30] Fisheries Act 1971 [12.90] Justice Legislation (Miscellaneous Provisions) Act 1992 [13.80] Metropolitan and Export Abattoirs Act 1936 [32.110] s 52a [32.110] Mutual Recognition Act 1992 [31.80] Serious and Organised Crime (Control) Act 2008 s 14 [34.50] Tasmania Companies Act 1962 [35.60] Constitution Act 1855 [3.60], [3.70], [3.90], [3.100], [8.10], [9.10], [9.20] Constitution Act 1934 [27.20] s 23 [27.150] ss 36–40 [27.40] s 37 [27.40] ss 39–41 [27.40] s 41A [27.30], [27.150] s 45A [38.100] s 46 [27.150] Crown Redress Act 1859 [11.70] Mutual Recognition Act 1992 [31.80] Supreme Court (Judges’ Independence) Act 1857 s 1 [27.40]

Victoria Charter of Human Rights and Responsibilities Act 2006 (CHRRA) s 7 [13.90] ss 8–27 [13.90] ss 28–30 [13.90] s 32 [13.90], [34.80] s 36 [13.90], [34.80] s 38 [13.90] Constitution Act 1855 [3.60], [3.70], [8.10], [9.10], [9.20] s 41A [27.30] s 45 [3.100] s 60 [3.90], [28.180] Constitution Act 1975 [27.20] s 18 [27.170] s 18(1B) [27.30], [27.170], [38.100] s 18(2) [27.30], [27.180] s 18(2AA) [27.170] s 18(2AA)–(2A) [27.30] s 18(2A) [27.170] s 51 [9.50] s 62 [27.40] ss 62–65 [27.40] s 65 [27.30] ss 65AS–65G [27.30] s 74A [38.100] s 74B [38.100] s 87AAB [27.170] ss 87AAA–87AAJ [27.40] s 87E [9.80] Discharged Servicemen’s Preference Act 1943 [32.160] Equal Opportunity Act 1977 [32.130] Evidence Act 1958 [32.140] Mutual Recognition Act 1992 [31.80] Stamps Act 1958 [28.50] Supreme Court Act 1986 [12.110] Uniform Companies Act 1961 [35.60] Western Australia Aboriginal Heritage Act 1972 [11.80] Aborigines Act 1905 [3.120] Betting Control Act 1954 [30.130] Companies Act 1961 [35.60]

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Constitution Act 1889 [27.20] s 2 [27.30] s 46 [27.40] s 55 [27.40] ss 64–72 [27.40] s 73 [27.30], [27.160] s 73(1) [27.160] s 73(2) [27.100] Constitution Act 1890 [3.60], [3.70], [8.10], [9.10], [9.20] s 2 [3.90] s 70 [3.90], [3.120] s 73 [3.90] Constitution Acts Amendment Act 1899 [3.60], [27.20] s 46(3) [16.30] Corruption and Crime Commission Act 2003 s 76 [8.70] s 76(1) [8.70] s 76(2) [8.70] Electoral Act 1907 s 16H [27.100] s 16M [27.30] Electoral Amendment and Repeal Act 2005 [27.190]

FRANCE Constitution of 1793 [2.140] NEW ZEALAND Constitution Act 1852 [15.120], [38.60] Constitution Act 1986 s 26 [38.60] New Zealand Bill of Rights Act 1990 (NZBORA) s 3 [13.90] s 6 [13.90] s 7 [13.90] SWITZERLAND Swiss Constitution [2.130] UNITED KINGDOM Act of Settlement 1701 [3.110], [15.100], [25.20], [25.40], [38.80] art 3, cl 6 [2.70] art 3, cl 7 [2.70] Act of Supremacy 1534 [2.60] Australia Act 1986 [5.70], [5.80]

Electoral Distribution Act 1947 [27.140], [27.160], [27.190] s 13 [27.130]

Australian Constitution Act (No 1) 1842 (5&6 Vict, c 76) (New South Wales Constitution Act 1842) [3.50]

Family Court Act 1975 [30.170] Interpretation Act 1984 s 7 [8.70]

Australian Constitution Act (No 2) 1850 (13&14 Vict, c 59) (Australian Colonies Government Act 1850) [3.60] s 14 [3.90] s 32 [3.50], [3.90]

Land (Titles and Traditional Usage) Act 1993 [32.40]

Australian Courts Act 1828 (9 Geo IV c 83) [3.50]

Mutual Recognition Act 1992 [31.80]

Bill of Rights 1688 [2.40], [2.110] art 1 [2.60] art 4 [2.60] art 6 [2.60]

Family Court Act 1997 [32.80]

OVERSEAS STATUTES AND REGULATIONS CANADA British North American Act 1867 [33.20] Canadian Constitution Act 1867 s 91 [17.20] Charter of Rights and Freedoms s 1 [13.90] s 15(1) [38.90] s 33 [13.90] Customs Act [12.70]

Colonial Laws Validity Act 1865 (CLV Act) [4.70], [5.20], [5.40], [5.50], [5.70], [27.10], [27.20], [27.30], [27.90] s 2 [3.120] s 3 [3.120] s 5 [3.120], [27.20], [27.130] Common Informers Act 1951 [15.110] Defence Act 1842 [11.100] Electors of Knights of the Shore Act 1432 [2.30]

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Federal Council of Australasia Act 1885 [4.20], [4.30], [6.30] Human Rights Act 1998 [2.120], [34.80] s 4 [13.90] s 6 [13.90] s 19 [13.90] Imperial Act (1 Geo II c 1) s 22 [3.20] Magna Carta Act 1297 cl 1 [2.40] cl 9 [2.40] cl 12 [240] cl 15 [240] cl 29 [240] cl 39 [2.40] cl 40 [240] Merchant Shipping Act 1894 [5.30], [5.60], [5.80] Parliament Act 1911 [16.30] Parliamentary Elections Act 1868 [15.90] Privy Council (Appeals from the High Court) Act 1975 [4.70] Reform Act of 1832 [2.80], [2.140] Septennial Act 1716 [2.90] Short Titles Act 1892 [3.20] Short Titles Act 1896 [3.20] South Australia Colonisation Act (4&5 Will IV c 95) [3.30] Statute of Proclamations 1539 [12.20] Statute of Westminster 1931 [5.60], [9.130], [12.130] s 2 [5.40] s 3 [12.70] s 4 [5.40] Sunday Observance Act 1780 [24.100]

UNITED STATES Bill of Rights [38.80] United States Constitution [2.130], [4.30], [6.50], [9.10], [24.90], [33.20] Art I, Sec 8 [2.110] Art 1, s 8, cl 3 [18.70] Art 1, s 9, cl 3 [12.50] Art I, Sec 9, Cl 8 [2.110] Art I, Sec 10, Cl 1 [2.110], [12.50] Art IV, s 2 [2.110], [31.20] Art V [2.110] Art VI, CL 2 [32.10] 1st Amendment [14.100], [14.140] 10th Amendment [2.110] 14th Amendment [2.110], [14.140] INTERNATIONAL Charter of the United Nations art 2 [32.110] art 5 [32.110] art 6 [32.110] art 25 [19.80] art 103 [19.80] Convention Relating to the Status of Refugees [38.80] European Convention on Human Rights (EConHR) art 14 [38.90] art 15 [13.90], [38.80] International Covenant on Civil and Political Rights (ICCPR) [12.60], [38.80] art 2, cl 2 [38.80] art 2(1) [38.90] art 4 [13.90] art 15 [12.50] art 22 [34.50] International Covenant on Economic, Social and Cultural Rights (ICESCR) [13.90]

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Chapter

PART A CONSTITUTIONAL CONCEPTS AND THEIR HISTORY Chapter 1. The Significance of Constitutions and Constitutional Law Chapter 2. Sources of Constitutional Ideas Chapter 3. T he Colonisation of Australia and the Development of Six Self-­governing Colonies Chapter 4. F ederation and the Creation of the Commonwealth Constitution Chapter 5. Independence — From the Sovereignty of the UK Parliament to the Sovereignty of the People

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CHAPTER 1

The Significance of Constitutions and Constitutional Law

1.1 Constitutions: the source of government power and of enforceable limits on that power [1.10] A constitution is the set of rules that: ■ ■ ■

gives form and existence to an organisation (“constitutes” it), gives power to some body to govern the organisation, and may impose limits on the power of the governing body.

Even if the constitution does not impose express limits, the governing body may find that some of its actions are not authorised by the constitution, and can be challenged because they were ultra vires, beyond its powers. The above paragraph is true of the constitutions of corporations, clubs, societies and political parties as well as the constitutions of nations and sub-­national units, but this book is about the constitutions of national and sub-­national governments, specifically in Australia. In that case the governing body is simply called the “government” — the parliament, the executive government, and the judiciary. In a sense all nations have a constitution, though in some countries the only rule may be that the dictator or absolute monarch can issue any command and everyone else must obey it. However, modern democracies such as Australia have constitutions that perform the functions described in the first paragraph — they set up the organs of government, give them powers, and impose limits on those powers. Such a nation is described as having “constitutional government” — in this sense “constitutional” implies a government of limited powers. The principle that the powers of a government should be limited is referred to as constitutionalism. 2

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Chapter 1 The Significance of Constitutions and Constitutional Law

[1.20] As Hans Kelsen wrote: Since the constitution is the basis of the national legal order, it sometimes appears desirable to give it a more stable character than ordinary laws. Hence, a change in the constitution is made more difficult than the enactment or amendment of ordinary laws. Such a constitution is called a rigid, stationary, or inelastic constitution, in contradistinction to a flexible, moveable, or elastic one, which may be altered in the same way as ordinary laws.1

It may seem surprising that a nation can be recognised, and praised, as having constitutional government when it fits into Kelsen’s second class and has a “flexible, moveable or elastic” constitution — but the United Kingdom is in that position. By a combination of statutes and common law doctrines, it became established during the eighteenth century that the powers of the executive government were limited by law and it was seen as the very model of a “constitutional” State — see Chapter 2. The doctrine that the executive government has to obey the law and gets its powers only from the law is known as the rule of law — see 2.20 and 2.70. When the United Kingdom set up colonies in Australia, this pattern — a flexible constitution but acknowledgment of the rule of law — was transferred to the colonies, although the colonial parliaments were given the power to make their constitutions at least partly rigid: see Chapter 3. This situation still applies in the States: see Chapter 27. However, when the colonies federated, forming the Commonwealth of Australia, a “rigid or inelastic” constitutional document was adopted — the Constitution of the Commonwealth of Australia, referred to in this book simply as the Constitution, with a capital “C”. The Constitution set up the institutions of the new Commonwealth, or federal, government, imposed express limits on the powers of this new government and imposed limits, that had not existed before, on the State governments. It also gave the Commonwealth Parliament a list of topics on which it could make laws, which implied another limit — that it cannot make laws on matters that cannot be fitted into the list. Most of the above limits are limits on the power of the parliaments to enact legislation, though there are some limits on executive power that can be regarded as matters of constitutional law. The most basic of these limits is the rule that the executive cannot exercise coercive powers against people unless it has a clear legal source of power, ie, the rule of law. Challenges to the executive on the ground that it has no legal power to do things, or has not complied with the legal criteria for doing things, are mostly based on the remedies of administrative law — but the existence of these remedies is guaranteed by basic principles of constitutional law. The constitutional doctrines limiting executive power, and the fact that the availability of administrative-­law remedies is guaranteed by constitutional principles, are discussed in Chapter 11. The rest of the book is about the rules limiting legislative power — the fact that, under our written supreme law, Parliaments cannot enact just any laws that gain the support of a majority of members. For one reason or another — sometimes for quite technical reasons, sometimes because of matters of high liberal-­democratic principle 1 Hans Kelsen, General Theory of Law and State, trans Anders Wedberg, Harvard U P, 1945, p 259.

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Part A Constitutional Concepts and Their History

that are embodied in the Constitution — the validity of supposed laws enacted by a Parliament can be challenged and possibly declared invalid.

1.2 The constitutionalist mind-set [1.30] As Sir Owen Dixon explained, the introduction of the Commonwealth Constitution created a need for something of a change of mind-­set among Australian lawyers: [U]ntil lawyers became accustomed to the workings of a federal system, the conception of parliamentary supremacy over the law dominated their thoughts. The rival conception of the supremacy of the law over the legislature is the foundation of federalism. Under that system, men quickly depart from the tacit assumption to which a unitary system is apt to lead that an Act of Parliament is from its very nature conclusive. They become accustomed to question the existence of power and to examine the legality of its exercise.2

Starting to study constitutional law may produce a similar need in students for a realignment of the mind. In a typical first-­year law course, students learn that the sources of law are common law and statutes. In most subjects, one takes it for granted that statutes are valid and the problem is to interpret them and apply them to the facts. Some students get so used to this that they find the idea that the validity of a statute may be challenged — that a court may rule that a democratically elected parliament lacked power to enact a particular Act — somewhere between counter-­intuitive and shocking. (Some politicians and their advisers are shocked by this too.) However, this idea is an even more important feature of our legal system than, say, the doctrine of precedent or the specific rules of tort and contract law that students have generally learned before coming to the study of constitutional law. In a course on constitutional law the student needs to focus on the likelihood that the supposed Acts of Parliament (real ones or hypothetical ones) under discussion are in fact nullities — not valid Acts at all. This is part of living in a nation where the supreme law is a rigid, power-­limiting, Constitution, and the principles of constitutionalism and the rule of law are enforced by the judicial system.

1.3 Practical applications of constitutional law — not just a game for Crown lawyers [1.40] There seems to be a widespread belief among law students and even practising lawyers that constitutional litigation is simply a game played between the Crown Law Offices of the Commonwealth and States, or between lawyers for the political parties, and is of little relevance to ordinary lawyers. Indeed a few of the leading cases are 2 Sir Owen Dixon, “The Law and the Constitution”, in Jesting Pilate, Law Book Co Ltd, 1965, 38 at 50.

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between Commonwealth and State, or between political parties, but many, many more are brought by private “persons” (ie individuals or corporations), represented by lawyers in private practice, to defend their financial interests, their freedom of action in the business sphere, or their civil liberties against invasion by either the Commonwealth or a State. Examples of both kinds follow. ■

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Since the most immediately obvious feature of the Constitution is the division of legislative powers between the Commonwealth and the States, some, but not many, of the leading constitutional cases over the last 107 years have indeed been between the Commonwealth and one or more of the States — often, but not always, between a Commonwealth government led by one major party and a State government led by the rival party. Three very prominent ones in the last 40 years have been the Seas and Submerged Lands case (New South Wales v Commonwealth (1975) 135 CLR 337), the Franklin Dam case (Commonwealth v Tasmania (1983) 158 CLR 1) and the Work Choices case (New South Wales v Commonwealth (2006) 229 CLR 1): see Chapters 18 and 19. Some few cases are quite directly between members of the major parties; for example, the cases about the joint sitting of the Commonwealth Parliament (Cormack v Cope (1974) 131 CLR 432, Chapter 16), or about State Constitutional matters which were protected by “manner and form” provisions, such as the abolition of an “upper” House (Attorney General (NSW) v Trethowan (1931) 44 CLR 394), or the changing of electoral districting rules (Attorney-­General (WA) v Marquet (2003) 217 CLR 545 — both in Chapter 27). However, most cases about the extent of Commonwealth legislative powers are not brought by a State resisting an encroachment into its supposed powers but by private parties arguing that they should not have to obey a Commonwealth law because its enactment was beyond Commonwealth power;3 eg, Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468, or Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR, both discussed in Chapter 18. The topic of inconsistency of Commonwealth and State laws (Chapter 32) sounds like one area where you might expect to find the Crown Law Offices fighting each other, but in fact nearly all cases involve a private party trying to avoid being regulated by a State law (eg, O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565) or two private parties arguing about which law regulates their relationship (eg Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237). Although most of the cases about Commonwealth–State immunities (Chapter 33) are, as one might expect, brought by an agency of one government against the other

3 Michael Stokes has argued that the Constitution should not be seen as creating private rights, and that, in particular, there is no good reason for allowing individuals to enforce the federal balance, which would “receive adequate protection as long as States are able to enforce the limits on Commonwealth power”; see “Is the Constitution a Social Contract?” (1990) 12 Adel LR 249 at 261. However, he is a lone voice on this issue; all other commentators seem to take it for granted that anyone affected by a law that is allegedly beyond power should have a right to challenge it.

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level of government, one leading case was brought by private home-­owners against a Commonwealth agency, arguing that the agency should be bound by a State residential tenancy law — see Re Residential Tenancies Tribunal of New South Wales; Ex parte Defence Housing Authority (1997) 190 CLR 410 in that Chapter. Some of the cases in the above groups, in which the laws are being challenged not because they are bad law but because the wrong parliament has made them, may still show constitutional challenges to be something of a game — this time a game for corporations. Some of them can even give the impression that constitutional law can be used as the last defence of the law-­breaker. However, as well as dividing power, the Constitution also protects rights; some of these rights are commercial rights such as the freedom of interstate trade, while others are individual rights such as the right to jury trial or the right to vote. The following cases show laws being challenged for breaches of these rights; here constitutional law cease to look like mere game-­playing. ■

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Many of the express limits on Commonwealth or State powers are intended to perfect the nation’s status as a customs union, so cases about Commonwealth laws discriminating between the States (Permanent Trustee Australia Limited v Commissioner of State Revenue (2004) 220 CLR 388, Chapter 23), freedom of interstate trade (Cole v Whitfield (1988) 165 CLR 360, Chapter 30) and the imposition of an excise duty by the States (Ha v New South Wales (1997) 189 CLR 465, Chapter 29) are brought by private traders; Cases alleging acquisition of property, not on just terms (Chapter 22), are brought by companies (Grace Bros Pty Ltd v Commonwealth (1946) 72 CLR 269) or by individuals (Jones v Commonwealth (No 2) (1965) 112 CLR 206) in furtherance of their financial interests; Cases alleging breaches of separation of powers (Chapters 25 and 34) are, similarly, brought in the name of companies (R v Trade Practices Tribunal; Ex parte Tasmanian Breweries (1970) 123 CLR 361) or individuals (Kable v Director of Public Prosecutions for NSW (1996) 189 CLR 51) asserting their right to be dealt with by a properly-­ constituted tribunal; The early cases about the implied freedom of political communication (Chapter 14) were all brought by media corporations (eg, Nationwide News Pty Ltd v Wills (1992) 177 CLR 1), but a later one was brought by a persistent individual agitator for free speech (Coleman v Power (2004) 220 CLR 1); and finally Recent cases have involved arguments by disfranchised persons asserting their right to vote against laws that prevented them from enrolling (Roach v Electoral Commissioner (2007) 233 CLR 162; Rowe v Electoral Commissioner (2010) 243 CLR 1 — see Chapter 15).

[1.50] Even in cases where the validity of an Act is not under challenge, phrases and concepts from the Constitution can be crucial. One method used by Commonwealth drafters to ensure that their Acts are within power is to use words lifted from the Constitutional text. 6

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Therefore what seems like perfectly ordinary litigation about the application of statutes can involve some “applied constitutional law”. Typical cases include: ■

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Litigation under the Trade Practices Act 1974 ((R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190) or the Workplace Relations Act 1996 (Australian Workers’ Union v Etheridge Shire Council (2008) 171 FCR 102), where the validity of the Act has already been established and the argument is about whether one of the parties is a “trading or financial corporation” — see Chapter 18; Other cases involving the Trade Practices Act 1974, where the argument this time was about whether a particular sale had been made in “trade and commerce among the States” (Swan v Downes (1978) 34 FLR 36 — see Chapter 18); and Cases about the deportation of aliens (“non-­citizens” as they were referred to in the Migration Act 1958), where the issue is whether a particular person is an alien (Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 — see Chapter 19).4

When you later read the details of the cases briefly mentioned above, you will find that in many of them, the law was held to be perfectly constitutional. In some cases indeed, the challengers probably knew that their case was close to hopeless, but the litigation represented a form of political protest against the passage of a law: the poor and powerless demonstrate in the streets; the rich and powerful, and State governments, demonstrate in the High Court of Australia. However, in many of the other cases, the law was held to be invalid — sometimes at the suit of the rich and powerful, sometimes at the suit of (or in the course of the defence of) ordinary people, even “battlers”. Whether a lawyer is working for a government, a political party or for business clients, or as a civil-­liberties advocate, constitutional issues can arise. The Constitution and notions of constitutionalism and the rule of law underpin everything that lawyers do. Issues involving them arise frequently in some practices, but they can pop up quite unexpectedly in a file in even the most apparently “un-­constitutional” lawyer’s practice. Even if no constitutional matters arise directly in a lawyer’s practice, the law affecting that lawyer’s clients is constantly being affected by decisions in matters fought out by other lawyers. For example: ■

The decision in Rocla Concrete Pipes, above, not only confirmed that the Trade Practices Act 1965 bound the Rocla company but also all other trading corporations, further, it paved the way for the more comprehensive Trade Practices Act 1974, which has now become the Competition and Consumer Act 2010. When that was first enacted, there were minor challenges to some of its provisions but lawyers were able to advise clients that they should start complying with it because the Concrete Pipes decision had, in effect, prospectively validated it;

4 The names of the statutes involved in every one of the cases in these dot-­points have since been amended. The short titles are quoted here as they were referred to in the litigation.

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When the Parliament decided to simplify the Family Law Act 1975 by giving power to Registrars to issue uncontested divorce decrees, several thousand divorces had been granted by Registrars before the validity of the provision was challenged in Harris v Caladine (1991) 172 CLR 84. It was presumably with great relief that the parties to those divorces and their lawyers heard that the provision had been declared valid.

Even where the validity of an Act has not been challenged, it is knowledge of constitutional law that tells a lawyer that, for example, the Bankruptcy Act 1966 should be taken seriously because it is a Commonwealth Act obviously enacted under a relevant head of power (s 51(xvii), laws with respect to bankruptcy and insolvency). Referring to the Family Law Act 1975 again, there were many challenges to specific provisions of the Act dealing with procedural aspects (Russell v Russell (1976) 134 CLR 495) and with the power to grant custody of ex-­nuptial children (Vitzdamm-­Jones v Vitzdamm-­Jones (1981) 148 CLR 383), but it was clear from the start that the principal provisions of the Act were valid, as it was a law “with respect to … divorce and matrimonial causes” (s 51(xxii)). As in all areas of law, some things are obvious and others are debateable, at least until the High Court has settled them. (Sometimes they even remain debateable after they are apparently settled — see 8.30.)

1.4 The law as it is and the law as it might become [1.60] This book is, in the main, an exposition of the doctrines of Australian constitutional law as they are. As a textbook, this is as it should be (it also helps that I happen to think that recent trends in the High Court’s interpretation of most features of the Constitution are about right; you will find no whinging about the broad interpretation of Commonwealth powers here, though you may find hints that I think the States should have greater financial powers). However, as well as learning the law as it is, students who are going to be the practitioners (or even the politicians) of the future should also be prepared for the law to change and to play a part in arguing for or against those changes. In constitutional law, like other subjects, there are still areas where the direction of further development of the law seems open. In at least two areas — ss 80 and 90 — there has been a long-­term history of Justices persuasively dissenting from the dominant doctrine, and an eventual reversal is not impossible. These topics will be fully treated in the text, and Issues For Discussion will be posed to tease out the possible arguments. On the other hand, one form of challenge to current orthodoxy which a lawyer will need to discourage clients from trying to raise is the “everything is invalid” sort of argument earnestly advocated (on websites with lots of CAPITALS and underlining and colour and ALL THREE TOGETHER) by people who want to avoid paying their perfectly valid taxes, family maintenance, council rates or parking fines: for examples of a couple of these arguments see sections 27.60 and 28.80. Even after that caution, in a nation ruled by the principles of constitutionalism the question “Is this law actually valid?” is always worth asking, even if it can be answered 8

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quickly with a “yes”. It is hoped that this book will help lawyers to recognise live issues where they arise and, on the other hand, to recognise when an Act is clearly valid and had better just be complied with. Even when the Act is valid, of course, there will still be issues of whether, on its proper interpretation, it applies to the facts and whether the facts as alleged can be proved. But here we have moved beyond constitutional law, and into the areas of statutory interpretation and evidence. Cross-­references: See the discussion of constitutional litigation, especially the problems of standing and costs, in Chapter 7.

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CHAPTER 2

Sources of Constitutional Ideas

2.1 Context and overview [2.10] Australia has been inhabited for at least 40,000 years but the ideas that underpin our constitutional and legal systems were brought here by British colonists starting with the settlement of Sydney in 1788. (The source of the idea that it was permissible to plant settlers on someone else’s land, which would now be seen as a gross breach of international law, will be considered in Chapter 3.) Although most of the colonies started off as penal settlements, after transportation ceased, they all developed self-­governing systems modelled on the British ideas of “responsible government” and “Parliamentary sovereignty”. However, when the people of the colonies decided to federate they had to take some ideas from other sources. The idea of a federal system with powers divided between the central government and the States was taken from the United States of America, and the idea that amendments to the Constitution must be approved by a vote of the people was taken from the Swiss Constitution. In this Chapter the sources of these ideas will be explored in more detail. The importation of the English principles, with a locally-­added emphasis on democracy, will be discussed in Chapter 3, and the adoption of the American and Swiss ideas will be noted in Chapter 4.

2.2 Lofty principles from classical times [2.20] Throughout most of history, in most parts of the world, the people who have held office as Kings or Queens, or Pharaohs, Shahs, Sultans or Emperors, have managed to bluff their subjects into accepting two principles: 11

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1. that the eldest son, or eldest daughter in the absence of a son, or at least some close relative, should succeed to the office on the death of the incumbent; and 2. that the King/Queen/Emperor/etc should have absolute power; indeed this is why they have been known as “rulers”. However, there have been exceptions. For parts of their history, Rome and some of the city-­states of Greece were democracies, of a kind — as long as you ignore the exclusion of women from public life and the fact that freemen were outnumbered by slaves. Though clearly a flawed example of a democracy, ancient Athenian democracy left us a few great slogans. In The Peloponnesian War, Thucydides reports the funeral oration given by Pericles at the end of the first year of the war (431BC). Rather than praising the heroism of those who had died, he reminded the audience what they had been fighting for — Athenian democracy: Our constitution does not copy the laws of neighbouring states; we are rather a pattern to others than imitators ourselves. Its administration favours the many instead of the few; this is why it is called a democracy. If we look to the laws, they afford equal justice to all in their private differences; if to social standing, advancement in public life falls to reputation for capacity, class considerations not being allowed to interfere with merit; nor again does poverty bar the way, if a man is able to serve the state, he is not hindered by the obscurity of his condition. … our ordinary citizens, though occupied with the pursuits of industry, are still fair judges of public matters; … and, instead of looking on discussion as a stumbling block in the way of action, we think it an indispensable preliminary to any wise action at all.1

He finished the speech with the claim that Athens was the “school of Hellas”; one might say in retrospect that it was the school of the world. Athens won the war, and the following century saw the flourishing of philosophy in that city, with its three great figures: Socrates, Plato and Aristotle. Socrates (who had fought in the war) and Plato were quite viciously anti-­democratic, but Aristotle tried to be more objective. In his Politics he left us three influential ideas. One was that man is a “political animal”. In a literal sense, this means that the fullest development of humanity was to live in a polis, the city-­state familiar to him and other Greeks. But it can be interpreted more broadly to mean that it is natural for us to live under government, in what the English writers of the seventeenth century called “civil society”. A second was that the best form of government was one that contained a mixture of the forms of monarchy, oligarchy and democracy — later much quoted by writers praising the English Constitution. The third was his suggestion that there is something better than any of the three forms just mentioned — rule by law: … it is thought to be just that among equals every one be ruled as well as rule, and therefore that all should have their turn. We thus arrive at law; for an order of succession implies law. And the rule of the law, it is argued, is preferable to that of any individual. On the same 1 The Peloponnesian War, Book II, Ch VI.

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principle, even if it be better for certain individuals to govern, they should be made only guardians and ministers of the law … he who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men.2

He does not actually say that the kind of law that would best control the passions of the rulers would be a constitution, but it is an inference that may come easily to the modern mind. (He did write about The Athenian Constitution, but it was more of a historical and descriptive account than an argument as to how a constitution should work.) Rome was a republic for a while, but like the English much later they tended to work out mechanisms for government rather than theorising about them. Once the Republic was supplanted by the Empire, there was next to no talk of rulers being subjected to the law. In the Codex, written in the Emperor Justinian’s name, there is a passage that declaims: “It is a statement worthy of the majesty of a reigning prince for him to profess to be subject to the laws; for Our authority is dependent upon that of the law.” That is, it was just a matter of appearance — though a good Emperor would submit to the laws and a cunning one would profess to be bound by them, there was no legal procedure (other than assassination) for bringing a bad one to account. The actual legal doctrine taught by the jurists, beginning with Ulpian (170–223), was Princeps legibus solutus est (“The leader is set loose from the laws”, ie, is above the laws). The idea of democracy was buried away in the works of Thucydides and the idea of the rule of law in the works of Aristotle, and Emperors and Kings got on with the business of subjecting their subjects.

2.3 English constitutional history “Anglo-Saxon liberty” and the Magna Carta [2.30] Writing in about 98AD, when Rome had been under an Emperor for 125 years, Tacitus wrote about the Germanic tribes and reported (perhaps with a touch of envy?) that they held tribal gatherings to discuss important matters and the leaders would “gain attention rather from their ability to persuade, than their authority to command”.3 Though Germany itself ended up being ruled by a Kaiser (a word derived from the Latin Caesar), the old Germanic spirit held on in the northwest of Europe and the offshore islands. Popular assemblies known as Things were responsible for the laws (they still survive in the Allthing of Iceland and the Tynwald of the Isle of Man). There may have been Kings as well, but they were sometimes elected by the Thing, and sometimes had to give way to the decisions of the Thing. In Anglo-­Saxon England the equivalents of the Things were known as moots or folkmoots at the local level, and at the national level 2 Politics, Book III, Ch 16. 3 Tacitus, A Treatise on the Situation, Manners and Inhabitants of Germany, para 11.

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there was the Witenagemot (meeting of wise men) who advised the King, elected Kings (they usually elected the eldest son, but occasionally exercised the right to pick another member of the family) and occasionally may have deposed a King. This may not have been modern democracy or limited government, but in the seventeenth century it was idealised as a period of “Anglo-­Saxon liberty” to be contrasted with the imposition of the “Norman yoke” after the defeat of the last Anglo-­Saxon king by William the Conqueror in 1066. Whether or not it was the Anglo-­Saxon spirit, something kept stirring in the minds of the English after 1066. When Henry I was crowned in 1100, after a period of oppressive rule by his brother William Rufus, he issued a “Charter of Liberties” in which he promised to return to the laws of King Edward, his pious grandfather known as “the Confessor”. However, the family tendency to govern oppressively flared up again in his great-­grandson John, and in 1215 the barons were only persuaded not to rebel against him when he agreed to sign the Magna Carta,4 or Great Charter, in which he promised not to encroach upon a long list of the “liberties” of the free men of the kingdom. He then ignored the charter, resumed fighting with the barons, and died in the following year! A modified version of the Charter, with more clauses, was issued on behalf of the young Henry III in 1217 and another version, with less clauses, in his own name in 1225. In the century after the Charter, the English Parliament was founded — first by Simon de Montfort in a period when he had usurped government from Henry III, and then on a permanent basis by Edward I. In 1295 Edward summoned each county to return two knights, each borough to elect two “burgesses” (freemen of the borough) and each city to elect two citizens; this became the standard pattern until the Reform Acts of the nineteenth century. One of the first things the “Model Parliament” did was to re-­enact the Charter in the form that we now know as an Act of Parliament — something signed by the King on the advice and with the consent of the Parliament — in 1297. For the next couple of centuries it became routine that Parliament would demand that each succeeding King should re-­confirm the promises of the Charter (a footnote in the English Statutes at Large lists 32 confirmations). The most memorable was an Act of 1368 (42 Edw III c 3) which introduced the phrase “due process of law” to history: [T]hat no man of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of law.

From about this time5 the commoners and the lords started sitting in two separate “houses” or chambers — the House of Commons and the House of Lords — and it became accepted that both Houses must consent to a proposed law (a “Bill”) before it could be presented to the king for assent. This is the origin of the notion of a “bicameral” (two-­chambered) parliament that has been copied around the world. Of course the 4 The Latin name is sometimes given as Magna Charta. When searching, search for both spellings. 5 The best that historians can ascertain is “mid-­fourteenth century”.

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“commoners” were only the richer and more influential ones. In 1430 an Act was passed6 in which the recitals complained that elections had been “crowded by many persons of low estate”, and restricted the franchise for county elections to men who held property capable of generating a rental income of 40 shillings a year. The franchise in the boroughs varied from almost-­complete democracy for the males to appointment by the corporation (council) of the borough.

The real effect of Magna Carta [2.40] There is a lot of romantic exaggeration of the effect of Magna Carta as the “foundation of our liberties”, but in legal history it is more like a statement of claim than a binding deed of settlement. It is certainly not a supreme constitutional document that invalidates later contrary laws. Most of the specific liberties guaranteed by the Charters — things like “castle-­guard” and the prohibition of “fish-­weirs” — seem irrelevant or meaningless now. Most of the detailed clauses7 have been repealed in the United Kingdom,8 and the Imperial Acts Application Acts of most States9 only provide for the continuation of the “judgement of one’s peers” clause cited below — with the limited effect also explained below. Indeed, a few clauses did state principles that have endured. In the original version, clause 12 was a promise that “No scutage nor aid shall be imposed on our kingdom, unless by common counsel of our kingdom”, and clause 15 proposed a mechanism for obtaining the common counsel. These are taken as an early statement of the principle that taxes are only collected with the consent of the people as represented in Parliament. There is only the faintest echo of these clauses in the 1297 version, but the idea became part of the principles insisted on by Parliament and sometimes resisted by Kings until codified, as enforceable law, in the Bill of Rights in 1688. The other famous clauses were originally clauses 39 and 40, which became clause 29 of the 1297 version: No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

However, this did not work as a guarantee of jury trial for all alleged offences; people called “keepers of the peace” or “wardens of the peace” were appointed from among the landed gentry from 1195 and given the name Justices of the Peace by Act of Parliament 6 8 Hen 6, c 7, consolidated two years later into the Electors of Knights of the Shire Act 1432, 10 Hen 6, c 2. 7 The Latin word for the numbered paragraphs of a legal document was capitum, which is generally translated as “chapter”, or sometimes as “heads” as in “heads of agreement”. As they are too short to be regarded as chapters in our usage, I have called them clauses. In a modern Act, they would be sections. 8 Only clauses 1, 9 and 39 now appear in the consolidated version of the Magna Carta Act 1297. 9 For example, Imperial Acts Application Act 1984 (Qld), Schedule 1, item 1. Note the reference to “ch 29”, ie, in the language used here, clause 29.

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in 1361. These Justices could conduct summary trials for alleged misdemeanours (minor offences) as well as arraignments (now called committals) for more severe charges. There is no record of anyone successfully challenging a summary trial as a breach of Magna Carta; it was already being taken for granted that the Parliament could amend any earlier law, no matter how “fundamental” the earlier law had seemed to be. Nothing in Magna Carta was a lasting guarantee; the fact that Parliaments kept on insisting that later Kings should reaffirm it was proof enough of that. Its significance, and the significance of the later confirmations, was simply that the Kings of England acknowledged — when forced to — that their powers were limited and that their subjects had certain basic rights. It was the beginning of the rule of law, but Parliaments had to keep fighting to establish the rule of law for four more centuries.

The separation of powers in early practice [2.50] The King’s promises to observe due process were made more plausible — or harder to avoid — by the fact that a regular system of courts had been established. In the century or so after the Conquest, the King and his court — the curia regis — had generally administered the nation and decided disputes between private parties while travelling around the land. By 1190 it seems that three separate Courts, in the sense of courts of law, had emerged and were differentiated from the royal court. These were the Court of Common Pleas, the Court of King’s Bench and the Court of Exchequer, all administering the same body of “common law” but with, originally, specialist jurisdictions. One of the articles of Magna Carta provided that “Common Pleas shall not follow our court about, but shall be held in some fixed place” — apparently litigants felt it was easier to seek justice in London than to track the court down to wherever the King was that week. A little later (roughly 1345) the Lord Chancellor’s office became separated from the curia regis and evolved into the Court of Chancery, administering the separate and more flexible doctrines of Equity. The full history of these four courts and the battles between them for jurisdiction can be read in an English Legal History text, but their existence had a few constitutional consequences: ■

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While the main remedies given by the common laws courts were damages and recovery of possession of land, the Court of Chancery developed more flexible remedies including injunctions and declarations. These are still the most common remedies sought in constitutional litigation. Their origin in Equity means that there is some discretion as to awarding them and formulating their terms. As the courts invented new forms of writs, partly to “steal” jurisdiction from each other and partly to find better ways of doing justice, they developed the “great writ” of habeas corpus — a command to bring a named person before the court. At first, this was most probably used as the equivalent of a modern summons, simply to ensure that a relevant witness was before the court, and later to take cases over from the jurisdiction of lower courts or from rival superior courts, but by Tudor times (1485 on) it was commonly issued in a form that said, essentially, “whereas you have

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the person (habeas corpus) of X in your custody, bring him/her to court and show cause why he/she should not be released”. That is, the courts had used it to assume the power to test the validity of imprisonment and to order the release of victims of arbitrary imprisonment. The combination of Kingly promises of due process, the existence of law courts structurally separated from the King’s Court, and the availability of habeas corpus, added up to a semi-­guarantee that the courts would protect subjects from oppression by the executive. The conversion of this semi-­guarantee into a real guarantee will be studied in the following section.

Seventeenth century — legal limits on executive power [2.60] In medieval Europe, Kings were held to be subject to the law of God, but in the sixteenth century they made stronger claims to absolute power. In 1576 Jean Bodin, a loyal servant of the King of France who was hoping for promotion, wrote Six Livres de la République in which he claimed that a sovereign ruler must have “the highest power over citizens and subjects unrestrained by laws” (emphasis added). In England, the Tudors (Henry VII, Henry VIII, Edward VII, Mary I and Elizabeth I) may have exercised arbitrary rule at times, but they knew it was necessary to pay lip-­service to the ancient liberties of the English. The influence of Parliament even increased under Henry VIII because he relied heavily on Parliament’s support to pursue his projects such as declaring England a protestant nation with himself as the head of the church (Act of Supremacy 1534), and dissolving the monasteries. However, when Elizabeth I died childless and the throne passed to the young James VI of Scotland in 1603, he was not only a remarkably distant relation to inherit the throne (the grandson of her first cousin) but brought an alien philosophy — Bodin’s idea of the divine right of Kings — to England. During his reign as James I of England, the strife was legal rather than physical. On two occasions “cases” about the extent of the King’s power were heard in the courts. These were actually more like debates between the King and the judges than ordinary law cases, but they were presided over by Coke CJ and duly reported as cases in his own Law Reports: ■

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Prohibitions del Roy (1607) 12 Co Rep 64: Coke held that “The King in his own person cannot adjudge any case, either criminal or betwixt party and party; but it ought to be determined and adjudged in some Court of Justice, according to the law and custom of England.” Case of Proclamations (1611) 12 Co Rep 74: in consultation with the other Chief Justices, Coke ruled specifically that “the King by his proclamation cannot create any offence which was not an offence before”, and more generally as to prerogative powers (special powers held by the monarch and not exercisable by ordinary people), that “the King hath no prerogative but that which the law of the land allows him”.

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The King seems to have accepted these rulings, but he dismissed Coke in 1616. His son, Charles I, bullied the judges into agreeing that he had the power to levy “ship money” taxes without consent of Parliament in R v Hampden (1637) 3 St Tr 825, but civil war broke out in 1642 and he was captured and executed in 1649. England was a republic, styled “the Commonwealth”, until 1660, when the monarchy was restored. However, Charles II and James II (both sons of Charles I) kept claiming more power than the members of Parliament were prepared to concede, and in 1688 Parliament invited William of Orange and his wife Mary (James’s daughter) to replace James, in a coup which quickly became known as the “Glorious Revolution”. All through the Civil War and in the period leading up to the Revolution, people had been publishing books and pamphlets arguing the case, on the one hand, of monarchy and, on the other hand, of the ancient rights of Englishmen or even more radical theories of democracy, limited government, written constitutions and the separation of powers. However, the leaders of the Revolution simply wanted to reinstate the principles that they thought were already part of the English system of government (its “constitution”, as they saw it). Therefore, as the price for William and Mary taking over the throne, they demanded their assent to the Bill of Rights (not finally signed until 1689, but cited as the Bill of Rights 1688). It provides: 1. That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal; 2. That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal; 3. That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious; 4. That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal; 5. That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal; 6. That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law; 7. That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law; 8. That election of members of Parliament ought to be free; 9. That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament; 10. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; 11. That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders; 12. That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void; 13. And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.

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It should be very carefully noted that, although the Bill gave its name to later special laws that limited the powers of legislatures, there is nothing in the Bill of Rights that purports to limit the powers of the Parliament. Each “article” (originally un-­numbered, but now referred to by the numbers shown above), is limiting only the monarch’s prerogative power. Some articles (1, 4 and 6) specifically say that Parliament can make laws. Others have exactly the same effect — the King cannot limit the right to bear arms, but Parliament can; the King cannot regulate the presentation of petitions to Parliament, but Parliament can; the King cannot instruct the judges as to the level of bail and fines to be imposed, but Parliament can; the King cannot keep a standing army by exercise of the prerogative, but Parliament can authorise a permanent defence force, and regulate its size by controlling the budget. The general principles, and most of the details, of the Bill of Rights are still law in Britain and in Commonwealth countries (though in most places jurors in cases of high treason no longer have to be freeholders). The Bill in fact transferred sovereign power in England (and in Scotland, when the two parliaments united in 1707) from the monarch to Parliament, although the full effects of that took a century or more to become apparent. It is probably from this time that we can also say that Coke’s rulings in Proclamations and Prohibitions del Roy, which may have been seen as mere opinions until then, were accepted as clear statements of the law of England.

Eighteenth century — judicial independence and the rule of law [2.70] In 1688 William had agreed to the inclusion of principles in the Bill of Rights only where he conceded that they had long been claimed as part of English law, but had rejected attempts to impose new limits on his power. However, he was so keen to have the Act of Settlement enacted in 1701, to guarantee that his successors must be protestants, that he agreed to the inclusion in the Act of some extra limitations, in effect a “Bill of Rights Part 2”. The two provisions that are of current importance are clauses 6 and 7 of Article 3, sometimes cited as “Articles 6 and 7”: 6. That no person who has an office, or place of profit, under the King, or receives a pension from the Crown, shall be capable of serving as a member of the House of Commons. 7. That … Judges’ Commissions be made quamdui se bene gesserint [for so long as he/she conducts himself/herself well], and their salaries ascertained and established; but upon the address of both Houses of Parliament it may be lawful to remove them.

The first of these was intended to guarantee the independence of MPs by ensuring that their principal loyalty to “the country” would not be overridden by financial dependence on the Crown. It has been substantially copied into the Commonwealth Constitution as para 44(iv) and, as we will see in Chapter 15, can cause trouble in modern conditions. Clause 7 ensures the independence of the judiciary; no longer would a King be able to dismiss a judge as James had dismissed Coke. Judges’ tenure was now in the hands of the new sovereign, Parliament. Parliament was also taking control in another way. Because Parliament now controlled 19

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the spending of money by the government, real executive power was being transferred from the King or Queen to the leaders of Parliament. Even William III — a King who still acted as the real commander-­in-­chief of his own army — had been told to his face by Lord Rochester that “princes must not only hear good advice, but must take it”,10 and developments in the next few reigns showed this advice being turned into constitutional doctrine. Robert Walpole was the first person to be recognised as the Prime Minister, from about 1721. The meetings of the Ministers, chaired by the Prime Minister, became known as Cabinet meetings, after the small ante-­room in which they met to decide what advice they would give the King (“cabinet” is Middle French for a small room). In the following century there were a few occasions on which a King tried to appoint a personal favourite as Prime Minister, but increasingly it became clear that the job must be given to the person who could command a majority in Parliament, especially in the House of Commons, that the King’s “advisers” were really making the decisions, and that the monarch’s role was to accept the advice. The effect of judicial independence was demonstrated later in the century in the case of Entick v Carrington (1765) 95 ER 807. Entick was a radical journalist campaigning against the government of the day. Carrington and some other “King’s Messengers” had forced their way into Entick’s house and seized his papers, pursuant to a warrant issued by the Secretary of State. Entick sued, not in some special constitutional cause of action, but in trespass. The defendants pleaded that their actions were authorised by the warrant, and that similar warrants had been used for a century or more without challenge. The Court dismissed that argument, saying, “If it is law, it will be found in our books. If it is not to be found there, it is not law.” That passage is now seen as standing for the proposition that the executive can only exercise coercive power against people if the power is expressly granted by law. That is, it is now seen as the leading case on the rule of law. Aristotle’s old theory had been given legal force. A few years earlier, Charles de Montesquieu had published L’Espirit des Lois (The Spirit of Laws, 1748) in which he claimed that the spirit of English law was the preservation of liberty, and that it did this by observing a strict separation of government powers. Judicial power was exercised by an independent judiciary, legislative power by the Parliament, and executive power — which, he said, needed to be vested in one man for efficiency’s sake — was, he said, exercised by the King. It is not clear whether he had not observed English ways closely enough, or just could not resist a bit of theoretical model-­building, but of course this was not quite right. But it was close — the King’s power to decide cases had been devolved to the judiciary, his power to make laws had been devolved to Parliament, his power to make executive decisions had largely been devolved to Ministers in Parliament and was still diminishing, the judiciary was independent, and the executive was subject to the rule of law. England was not yet a liberal paradise — the right to vote in the counties was still limited to the “40-­shilling freeholders” and the borough representation bore no correlation to the population of towns and cities, trade unionists and Catholics were subject to suppression and oppression, 10 See Brian W Hill, The Growth of Parliamentary Parties 1689–1742, Allen & Unwin, 1976, p 86.

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and the English were busy colonising other people’s lands overseas — but a middle-­ class dissenter like Entick certainly had more freedom in England than in the European monarchies and possibly more than anywhere else in the world.

Nineteenth century — Cabinet, or responsible, government and parliamentary sovereignty [2.80] In the early nineteenth century, the new industrial cities were given representation and the restrictions on the right to vote were relaxed — a little — by the “Great” Reform Act of 1832. Though Parliament still represented less than 20 per cent of the people, its claim to represent the people now seemed more legitimate, and from the accession of Queen Victoria in 1837 onwards it became unthinkable that she should commission anyone as Prime Minister who did not have the support (the “confidence”, in parliamentary language) of the House of Commons. The British did not seem to realise what they had done — when the Canadians asked for “responsible government” in 1848 the British had to ask them to explain the term. The Canadians replied that it meant a system like the British system, where: 1. though executive power is exercised in the name of the Queen, neither she nor the Governor-­General exercise real power, but always accept the “advice” of the Ministers; and 2. the Ministers, led by a Prime Minister, must have the support of the majority of the more numerous and democratically-­elected House of the parliament, ie, they are responsible to Parliament,11 not to the monarch. The phrase more commonly used in Britain for the system is “cabinet government”. In 1867 Walter Bagehot published his book, The English Constitution, in which he described cabinet government as the “efficient secret” of the constitution. The central theme of the book was that the “English” (British, actually!) system of government had a “dignified part” and an “efficient part”. Hidden behind all the dignified talk of “Her Majesty’s Government”, the use of royal seals on documents and the appointment of Judges and military officers by royal commission, the efficient part was government by cabinet, which Bagehot described as “a committee of Parliament”. The House of Commons acted just as much as an electoral college as the official electoral college in the United States, and the Prime Minister was just as much an “elective first magistrate” as the President of the USA. Bagehot claimed that the “efficient secret” was that instead of the separation of powers that Montesquieu had 11 Recently the two major parties in the UK have adopted rules under which the party members have a say in the choice of party leader, which sounds marvellously democratic but is the source of potential problems. If a serious split between the membership and the parliamentary party develops (and one is threatening in the British Labour Party at the time of writing) a party will not be seen as capable of governing the nation. The point of Cabinet government remains the same as it was in 1720 — that to be able to govern, the party’s leaders must be supported by a majority of the members of the House, so that they can pass their legislative program in general and money Bills in particular.

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MONTESQUIEU’S IDEAL (CLOSE TO THE REALITY OF THE US CONSTITUTION) Legislature

Executive

Judiciary

New laws

Executive decisions

Judicial decisions

RESPONSIBLE GOVERNMENT IN BRITAIN SINCE 1721 Queen

Parliament

Ministers Agenda setting ‘Upper’ House

Appointment of judges

Public service

‘Lower’ House

New Laws

The Courts

Executive decisions

Dismissal of judges Judicial decisions

Majority support

(Note, the dashed line shows a theoretical power not exercised since 1830)

Figure 2.1: A comparison of the separation of powers according to Montesquieu with the reality of cabinet government in Britain claimed to observe, there was a “nearly complete fusion of the executive and legislative powers”. This was hardly a secret to anyone who was familiar with government, but it did demonstrate how much the system had developed since 1688. [2.90] The other principle that had developed was the sovereignty of Parliament. No Parliament since the Model Parliament had ever thought that it was bound by “fundamental” laws — even Magna Carta, as we saw above, could be amended or overridden by a later Act. Before the revolution, Coke CJ had indeed claimed in Dr Bonham’s case (1610) that “in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void”, but it is hard to find a case where that had happened. Parliament led the Civil War against Charles I and the Glorious Revolution against James II, and inherited exactly what the Kings had claimed — absolute power. Twice, in the Acts of Union with Scotland (1706) and then with Ireland (1800), Parliament declared that certain provisions about religion would apply “in all time coming” or would remain “in full force for ever” — and each time they repealed these provisions when they seemed inappropriate to later conditions. Most remarkably, in 1716 a Parliament elected under 22

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an Act providing for three-­year terms extended not only the terms of later Parliaments but its own term by the Septennial Act 1716. So when Professor A V Dicey wrote An Introduction to the Study of the Law of The Constitution in 1885 he declared that the constitution of Britain had two principal features — the sovereignty of Parliament and the rule of law. He summed up the former by saying that Parliament had “the right to make or unmake any law whatever”, and offered the above three examples as proof. His version of the rule of law was idiosyncratically English: after claiming, uncontroversially enough, that it meant: the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and equality before the law, or the equal subjection of all classes to the ordinary law of the land,

he added the claim that, as part of the rule of law, the rights of Britons were protected by the ordinary law applied in ordinary courts. The book is remarkable for its lack of case citations, but here he obviously had Entick v Carrington, above, in mind — the fact that a citizen could assert his rights by suing government officers in the tort of trespass “proved” to Dicey that Britain did not need an American or European-­style Constitution that limited the powers of Parliament. The book is also remarkable for the fact that it seems to claim that the executive has no prerogative powers and for ignoring the then-­wide immunity of the “Crown” (the executive government) from statutes and from law suits. Like Montesquieu, he was presenting an idealised model of the British system rather than describing it with perfect accuracy. Dicey conceded that the sovereignty of Parliament and the rule of law “may appear to stand in opposition to each other, or to be at best only counterbalancing forces”, but claimed they actually reinforced each other. This claim may have had some validity when no party could rely on the unquestioned support of the majority of the House of Commons, but when the two-­party system became more entrenched — a process that was already happening when Dicey wrote The Law of the Constitution — a government that found its powers limited by law could readily have the law changed. In fact, in a later book, Law and Opinion in England in the Nineteenth Century (1905), Dicey thoroughly disapproved of some of the more collectivist laws that Parliament had recently enacted in the exercise of its sovereignty, which, he said, was “an instrument well adapted for the establishment of democratic despotism”. [Oddly, he takes no credit in this later book for having made the sovereignty of Parliament well-­known, but attributes it to Blackstone and Bentham!] For the late-­Victorian lawyers who drafted the Commonwealth Constitution and became the leading federal politicians for the Commonwealth’s first few decades, the principles stated by Bagehot and Dicey — cabinet, or responsible, government, the sovereignty of parliament and the rule of law — were a strong part of their heritage. They still have a dominant influence on State politicians and their legal advisers, who tend to emphasise the sovereignty of Parliament while paying less attention to the rule of law. But there were three other strands of thought contributing to the development of the Commonwealth Constitution. 23

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2.4 Revolutionary concepts — a written Constitution and judicial review of legislation Origins in the English Revolution [2.100] As mentioned above at 2.60, a “pamphlet war” was fought out in parallel with the shooting version of the Civil War. Many new and democratic theories were offered. In An Arrow Against All Tyrants, Richard Overton argued that just as “by nature no man may abuse, beat, torment, or afflict himself, so by nature no man may give that power to another” — ie, if we see power as a gift of those who are governed, there are limits on how much power can be given. In the search for a basis on which to settle the Civil War, a group called the Levellers drew up an “Agreement of the People” which incorporated many of the limitations contained in Magna Carta and the Petition of Right, and many others besides, and was intended to be superior to laws made by the Parliament. In its terms it forbade any Member of Parliament “to render up, or give, or take away any of the foundations of common right, liberty, and safety contained in this Agreement.” It was not adopted. Sir Henry Vane suggested, in A Healing Question, that the way to bring about the establishment of fundamental constitutions was through a “General Council, or Convention, of faithful, honest, and discerning men, chosen for that purpose by the free consent of the whole body of adherents to this cause”. It may have been an echo of this idea that had led the meeting of MPs and Lords that invited William and Mary to take the throne in 1688 to style themselves the “Convention Parliament”; certainly the idea of special Conventions to draft fundamental constitutions was later adopted in both America and Australia. John Milton, better known as a poet, weighed in with an essay on The Tenure of Kings and Magistrates, in which he argued that it was the right of a people to change their leaders “as oft as they shall judge it for the best” whether or not the leader had been a tyrant, “merely by the liberty and right of freeborn men to be governed as seems to them best”. Most famously, John Locke wrote his Second Treatise on Civil Government, probably written before the Glorious Revolution, but published in 1690, when it was safer to do so. In this he argued that people form societies in order to protect their “property” (which, in his usage, included “life” and “liberty” as well as property in the material sense — “estate”). He argued that we give governments just sufficient power to defend that “property” (as broadly defined), and that we have a right to rebel against an unjust government. He spelled out a number of areas that government had no power to touch, and outlined a rudimentary version of the theory of separation of powers, later expounded in more detail by Montesquieu.

Adoption in America after the Revolution [2.110] When the American colonies rebelled against British rule in 1776, they were not rejecting all things British — they claimed to be rebelling against the King and his “evil advisers” in the cause of re-­establishing government under the true principles of 24

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English law, including the principle that Montesquieu claimed to have seen at work in England — the separation of powers. However, they also picked up some of the ideas about limited government that had been floated in England in the 1640s but not adopted there. While their War of Independence was still in progress, many of the former colonies (now calling themselves “States”) made new Constitutions for themselves, several of which included ideas such as written Constitutions, Bills of Rights, and a strict separation of powers. Unlike the English Bill of Rights, which only bound the executive government, these Bills of Rights limited the powers of the new States’ legislatures. The Constitution of Massachusetts (1780) added an idea based on Aristotle’s reference to the rule of law. After prescribing the separation of powers, the Constitution gave the reason: “to the end it may be a government of laws and not of men”. Some of the State Constitutions were originally ratified by a popular referendum. In Massachusetts, even though only people with a certain amount of property could vote for representatives, all males were allowed to vote on the ratification of the Constitution. From early in the War of Independence till 1789, the States were joined by “Articles of Confederation” which established a fairly weak Congress. Dissatisfaction with the Articles led in 1787 to the election of a Constitutional Convention to revise the Articles, but instead the delegates drafted a new Constitution, which came into effect in 1789 following ratification by nine of the States. Following Montesquieu’s theory, the Constitution provided for a strict separation of powers; indeed the Convention followed Montesquieu so far as to provide for a one-­man Executive, to be called the President, despite the misgivings of those who felt that they were re-­instituting a monarchy. The English precedent of a bicameral legislature was followed, but since titles of nobility were prohibited by the Constitution (Art I, Sec 9, Clause 8 and Art I, Sec 10, Clause 1) the “upper” House was not named after the House of Lords but after the ancient Roman institution, the Senate. Delegates from the less populous States were anxious to preserve the “rights” (by which they meant the powers and status) of the States as much as possible, so America became a federation, with a number of specified powers granted to the new federal Congress by Art I sec 8, and the States impliedly left free to make laws on the residue. (This implication was later confirmed by the 10th Amendment.) Concern for the less-­ populous States also affected the constitution of the Congress — under the “Great Compromise”, State representation in the House of Representatives is proportional to populations, whereas in the Senate each State has equal representation. The President is elected by an electoral college, in which each State has a number of members equal to the total number of members of the House of Representatives and the Senate — so there is a slight extra weighting for the less-­populous States. Having been drafted by delegates elected by the people, on a State-­by-­State basis, the Constitution was ratified by State Conventions elected by the people, again on a State-­by-­State basis. Article V provides that amendments will be ratified by the legislatures of three quarters of the States — which are of course elected, more or less fairly, by the people — and there is an alternative, never used, for the use of elected conventions, but a direct vote of the people, 25

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as the people of the United States, plays no part in the system. Although the words of enactment say that “We the people of the United States … do ordain and establish this Constitution”, the people always speak through their elected representatives. Principles of federalism, and equality of the States rather than equality of the people, overrode any idea of direct democracy. However, the first use of the amendment procedure was a manifestation of “people power”. At some of the ratification conventions, the delegates protested that the Constitution did not include a Bill of Rights. The proponents of ratification promised that if the Constitution was ratified they would make sure that the addition of a Bill of Rights was among the early business of the new Congress. In its first session the Congress duly proposed 12 further “declaratory and restrictive clauses”, and ten of them were ratified by the States.12 They are now known collectively as the Bill of Rights. For the next 75 years, they only bound the federal government, but since the passage of the 14th amendment the Supreme Court has, gradually, held that most of the Bill also applies to the States. The supremacy of the Constitution (together with treaties made under the authority of the United States!) over the law of the land was expressed in Art IV, s 2. Although the Constitution did not quite spell out the logical conclusion that a law inconsistent with the Constitution could be invalid, that seemed to be the obvious consequence. Alexander Hamilton had made it clear that he expected that consequence in No 78 of the “Federalist Papers” (a series of articles published in pro-­ratification newspapers during the debate on ratification): No legislative act … contrary to the Constitution can be valid. To deny this would be to affirm that … the representatives of the people are superior to the people themselves … The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.

[2.120] In 1803 the United States Supreme Court applied Hamilton’s reasoning in Marbury v Madison 5 US (1 Cranch) 137. The actual issue in the case was whether an 12 They became effective, on being ratified by the eleventh State, on 15th December 1791. One of the other proposals — Congressional salaries not to be increased during their term of office — was finally ratified 200 years later, as the 27th Amendment! See Richard E Labunski, James Madison and the Struggle for the Bill of Rights, Oxford U P, 2006; Pauline Maier, Ratification: The People Debate the Constitution, 1787–1788, Simon and Schuster, 2010.

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Act of Congress could give the Court additional original jurisdiction, and the holding on that issue — that it could not — makes it seem like the Court is very humbly refusing jurisdiction. But to decide that point it had to exercise a much greater jurisdiction — the power to hold that an Act of Congress, repugnant to the Constitution, is invalid and can be disregarded by everyone. It reasoned thus: That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments. The powers of the [United States] legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?… Those … who controvert the principle, that the Constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. … That it thus reduces to nothing, what we have deemed the greatest improvement on political institutions, a written constitution, would, of itself, be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction.

In English law the concept of “judicial review” is well known, but it is a concept of administrative law — the superior courts can review the validity of decisions made by lower courts or executive officers. For an English court to declare that an Act of Parliament is invalid is unthinkable; even under the Human Rights Act 1998 the strongest thing the courts can do is to declare that a law is incompatible with the rights established by the European Convention, and leave it to the executive government and Parliament to decide whether that is so embarrassing that they must amend the law. However, Marbury v Madison established that under a written constitution which declares itself to be the supreme law of the land, judicial review can also extend to reviewing the validity of Acts of the legislature. Though the drafters of our Constitution had not lived under such a system, they had all, apparently, read Lord Bryce’s text The American Commonwealth and were familiar with the Marbury v Madison principle. 27

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2.5 The Swiss idea — popular control of the amending process [2.130] We have seen above that the sovereignty of the people over the United States Constitution is always expressed through their elected representatives. However, a precedent for more direct involvement of the people was available in the Swiss Constitution. Switzerland had been a loose federation (a “confederation”) for centuries but had changed to a more centralised, yet still federal, structure, influenced by the United States Constitution, in 1848. As the new constitution was intended to resolve differences which had resulted in a brief, if one-­sided, civil war, a consensus approach was proposed for its ratification. A referendum was proposed in which a “double majority” was required — ie, it had to be approved, and was approved, by a majority of the voters overall and a majority of the voters in a majority of the cantons. The double majority requirement, which reflects a compromise between federalism and the sovereignty of the people, was applied to future proposals for constitutional change in the revised constitution of 1874 and has remained in the Swiss Constitution ever since, through several revisions. This was also known to the Australian drafters and, as we shall see in Chapter 4, was incorporated into the Commonwealth Constitution.

2.6 Democracy — an Ancient Greek idea brought to perfection in the colonies [2.140] There have been references to the representation of “the people” in the sections above, but for a long time this did not mean all the people, or even all the adult citizens. In England the House of Commons was always supposed to have represented the people, but as Edmund Morgan has pointed out it was a paradoxical and fictitious form of “representation”; the fact that each member represented a geographical area was enough to support the fiction that they represented the people of that area, as if all the people of a district had the same interests.13 In reality the members represented the gentry. The educated classes, who were the wealthier classes, regarded the idea that the “lower orders” should have the vote with horror. During the wars of the 1640s, the only people who had advocated the vote for everyone (at least, for all men) had been the “Diggers” — and they had also advocated the abolition of private property. Marchmont Needham responded by alleging that an extended right to vote would result in “unlearned, ignorant persons, neither of Learning nor Fortune, being put in Authority” and that this would lead to “licentiousness, mischief, mere Anarchy and Confusion”. This attitude continued, among those who already had the right to vote, into the nineteenth century. Educated people all knew their Greek history, and instead of regarding Athenian democracy (such as it was) as a great achievement, they knew it primarily as the institution that had first ordered the execution of the admirals who had

13 Edmund Morgan, Inventing the People, WW Norton & Co, 1988.

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failed to rescue drowning sailors after the battle of Arginusae and later ordered the death of those who had mounted the case against the admirals, and had then had ordered the death of Socrates for “corrupting the youth and denying the gods of the city”. Democracy was seen as a threat to property rights and as promoting demagoguery and vindictive injustice. However, attitudes started to change in the late eighteenth century. After the French Revolution, the Constitution of 1793 established universal suffrage, though for males only. In Britain, the upper-­class reaction to the Reign of Terror postponed the extension of the right to vote, but a generation later it was extended from essentially the upper middle class to most of the middle class by the “Great” Reform Act of 1832, and radicals like James Mill and Jeremy Bentham argued for even further extension. This of course was passionately disputed by defenders of the status quo.14 Mill’s son, J S Mill, and his wife went further and argued for votes for women.15 In Australia, people did not bother to theorise so much; they demanded action. When WC Wentworth and friends proposed a hereditary upper house for New South Wales, Daniel Deniehy derided it as a “bunyip aristocracy”;16 the idea was dropped. In the 1850s and 60s, all adult male British subjects achieved the right to vote in the self-­governing colonies, though residence requirements disqualified many itinerant workers and “swaggies”. A campaign for women’s voting rights had started up in the 1890s, led by the Women’s Christian Temperance Union but aided by separate Women’s Suffrage Leagues. Some male politicians supported the campaign, and even those who opposed it grudgingly admitted that votes for women seemed inevitable. New Zealand extended voting rights to women in 1893, South Australia in 1894 and Western Australia in 1899, just in time for them to vote in the referendum adopting the Constitution.17 In South Australia, even a few indigenous people with a fixed address in the “settled” areas had the vote, though it was taken away after federation. The idea of Parliaments elected by all the adult people was well and truly in the air by the time of the Constitutional Conventions, and this one was a home-­ grown idea. (In contrast, the United Kingdom did not give the vote to all men until 1918 and all women until 1928; although we “colonists” copied many British institutions we taught them about democracy in return.)

14 See Jack Lively & J C Rees (eds), Utilitarian Logic and Politics: James Mill’s “Essay on Government”, Macaulay’s Critique, and the Ensuing Debate, Clarendon Press, 1978. 15 Mrs John Stuart Mill (ie Harriet Mill), The Enfranchisement of Women, Westminster & Foreign Quarterly Review. July 1851, p 27; J S Mill, The Subjection of Women, Longmans, Green, Reader & Dyer, London 1869. It is generally understood that Harriet co-­authored the latter work. 16 See Sally Warhaft (ed), Well May We Say ..: The Speeches That Made Australia, text publishing, 2nd ed, 2014, p 383. 17 See William Pember Reeves, State Experiments in Australia and New Zealand, Cambridge U P, 2011 (reprint of 1902 original).

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FURTHER READING Walter Bagehot, The English Constitution, 1867, various reprints Richard Beeman, Plain, Honest Men: The Making of the American Constitution, Random House 2008 (also in a Kindle edition) AH Birch, Representative and Responsible Government, Allen & Unwin, 1964 Sir Owen Dixon, “Two Constitutions Compared” (1942) 28 ABA Jnl 733; reprinted in Jesting Pilate, Law Book Co, 1965, p 100 Alexander Hamilton, James Madison & John Jay, The Federalist Papers, many editions Frederick W Maitland, The Constitutional History of England, Camb UP, 1908, various reprints

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CHAPTER 3

The Colonisation of Australia and the Development of Six Self-­governing Colonies

3.1 Context and overview [3.10] The previous chapter tracks the history of the concepts which are reflected in modern constitutional practice and in the Commonwealth Constitution. In this Chapter, we first backtrack a little and study the establishment of very undemocratic governments in the Australian colonies, but then note the slow development of constitutional systems and governments which were highly advanced democracies by the standards of the nineteenth century.

3.2 The right to colonise, as stated and practised by Europeans [3.20] From the late fifteenth-­century onwards, European powers colonised nearly all of the rest of the world. Under modern international law, this “planting” of colonies would now be seen as a series of unlawful invasions, but under the international law that was recognised by the European powers at the time — ie, the international law that was being developed among themselves with no consultation with the rest of the world — the colonies were recognised as the lawful possessions of the colonisers. Though the “conquered/settled” distinction noted below is generally referred to in discussions of “the law of colonisation” as if it is the whole of that law, there is a prior issue — why was it lawful to colonise at all? Even the early theorists of human rights (Francisco de Vittoria (1483–1546?), Gabriel Vasquez (1549?–1604), and Franciscus Suarez (1548–1617)) all managed to find some justification for Christian nations to send missionaries to heathens and to plant trading-­posts in their lands, and to reply with force if the heathens tried to expel the missionaries and traders. Colonising practice 31

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went rather beyond this — the European explorers would “plant the flag”, claim the land as a possession of their King, Queen or Prince, possibly enter into a one-­sided treaty with some of the locals, enforce the claim by force of arms, and protect the missionaries, all according to the theory. And then they would exploit the country for its mineral or agricultural wealth — because they could. Once the Spanish and Portuguese had started the process, getting an empire was a matter of “keeping up with the Joneses” (in this case, the Habsburgs and Braganzas) for other European nations. France, Germany, England, the Netherlands and Belgium all established overseas colonial empires, and Russia expanded its boundaries across Siberia.1 Given that nothing except defeat by another European power was going to stop the Europeans establishing colonies, the question was what legal system would apply in a colony. In theory, as stated by both continental Europeans and the English, there were two alternatives. As stated by Holt CJ for the Court in Blankard v Galdy (1693) Holt KB 341; 90 ER 1089, they were as follows: lst, In case of an uninhabited country newly found out by English subjects, all laws in force in England are in force there ; so it seemed to be agreed. 2dly, Jamaica being conquered [from the Spanish, who had colonized it first], and not pleaded to be parcel of the kingdom of England, but part of the possessions and revenue of the Crown of England, the laws of England did not take place there, until declared so by the conqueror or his successors.

The focus on whether all the detailed laws of England applied rather obscures the central constitutional doctrine: that it was absolutely taken for granted that the United Kingdom Parliament had power, as the Parliament of the Empire — the “Imperial” Parliament — to make laws for these faraway places. Even the rule about conquered colonies was qualified by the phrase “until declared so”, and indeed the effect of the Blankard v Galdy decision was disputed in other decisions about Jamaica2 and in 1728 an Imperial Act3 confirmed the reception of English law. The overriding rule was that the Parliament could make laws authorising the creation of colonies and laws regulating how they were to be governed, in general outline or in the most detailed particulars, whether they were conquered, ceded or settled. We will meet examples of such laws applying the Australia through the rest of this Chapter. As to supposed tidy dichotomy between the reception of English law or the continuation of the previous law, a study of practice reveals a most untidy application of the theory. England had started its colonial adventures — its keeping up with the 1 The feeling that to be great, a nation must have colonies persisted into the twentieth century — in a last, pathetic, outbreak of keeping up with the Habsburgs, Italy invaded Abyssinia (Ethiopia) in 1936 and briefly ruled it as a colony. 2 Campbell v Hall (1770) 1 Comp 204. 3 1 Geo II c 1, s 22. Note that until the 1870s British Acts did not have short titles and are properly cited, as here, by “regnal year” and “chapter” number; the short titles used below were either given by the Short Titles Acts 1892 and 1896, or have been conventionally used by historians.

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Habsburgs — a century later than Spain and Portugal. Between 1607 and 1733, the English established the 13 colonies that later became the United States of America, as well as other colonies in the Caribbean. [After 1701 the colonising power was Great Britain, but English, Scots and Irish colonists still took English law with them.] The rule about conquered colonies was indeed applied where England took a colony over from an earlier European coloniser. In Ceylon and South Africa, taken from the Dutch in 1795 and 1803 respectively, much of the Roman-­Dutch law still remains, and in Quebec civil matters are regulated by French-­style civil law. In possibly the only case of colonisation of genuinely unoccupied land, Bermuda, the settlement rule was of course applied. The untidiness occurs in all of the colonies that were founded by the British in lands occupied by non-­Europeans. In most of these colonies, there was no one instantaneous act of conquest; a settlement would be founded on the coast, and English, Scots and Irish settlers would slowly spread inland — conquest by infiltration, one might call it. In some places, the English/British entered into a treaty with the previous inhabitants or their rulers. In others, the locals watched the slow infiltration of the British and tried to stop it by force when it was too late. Some of the treaties were honoured, and some were not. In many places, some elements of the local “personal law” were left undisturbed while the English lived under their own law. As a broad generalisation, how much indigenous law and land title was left in place tended to depend on whether the locals had things that the English could recognise as “civilisation” — cities, princes, palaces, armies and agriculture.4 Shortly before the colonisation of Australia, the significance of agriculture, or cultivation, was emphasised in the work of Emmerich de Vattel. In The Law of Nations (1760) he wrote: The cultivation of the soil [is] an obligation imposed by nature on mankind. Every nation is then obliged by the law of nature to cultivate the land that has fallen to its share; and it has no right to enlarge its boundaries, or have recourse to the assistance of other nations, but in proportion as the land in its possession is incapable of furnishing it with necessaries.

From this he concluded that the “industrious and closely confined” nations could take possession of a part of the lands of those who lived only by hunting and their flocks or where there were only “erratic nations with a scanty population” in a vast country. [3.30] William Blackstone started giving the lectures that became the Commentaries on the Laws of England in 1758, and published the first volume in 1765, so it seems likely that he was influenced by Vattel when he wrote the following passage: Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desart and uncultivated, and peopling them from 4 See Stuart Banner, Possessing the Pacific; Land, Settlers, and Indigenous People from Australia to Alaska, Harvard UP, 2007. In An Australian Legal History (Law Book Co, 1982), Alex Castles makes the point, on p 15, that it was “the Crown” (the executive government) that made the decision as to whether to treat a territory as conquered or settled (or, though he does not say so, as something in between).

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the mother country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties … [I]t has been held, [citing Blankard v Galdy] that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject, are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law, as is applicable to their own situation and the condition of an infant colony … But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the ancient laws of the country remain, unless such as are against the law of God, as in the case of an infidel country.

Note the use of “uninhabited” and “desart and uncultivated” as equivalent terms, and the omission of Vattel’s qualification that the colonisers could take only part of the country. The use of this language gave the government an even better excuse than before to plant colonies in a land like Australia, which was relatively sparsely settled and was not under cultivation, at least in a way that was recognisable to European eyes.5 Soon after Blackstone’s work was published, Britain managed to alienate the American colonists (ie, the free ones) by taxing them without allowing representation in the Parliament and by forbidding expansion of settlement into the “Indian lands”, and they rebelled in 1776 (and, as a distinct later phase of the revolution, they developed the federal constitution noted in Chapter 2). Before independence, Britain had not only allowed the American colonists to import African slaves (again, following Spain’s example), but had also sent at least 50,000 (possibly as many as 120,000) British convicts there. Now the British government had its gaols and prison hulks overflowing, and needed somewhere else to send its convicts. Fortunately, Captain Cook had recently explored the east coast of Australia. One of his homesick sailors had remarked that the coast somewhere north of Cape Howe reminded him of south Wales, so Cook, allowing nostalgia to override geographic discrimination, named the whole east coast New South Wales. Cook reported that Australia was very sparsely populated, and that “the Natives know nothing of Cultivation”. Just the place for the British to plant some new colonies, according to the theories of the 1780s! Therefore when colonial Governors were sent out first to New South Wales and later to the other directly-­founded colonies, South Australia and Western Australia, they were not instructed to make treaties with the indigenous people, or to negotiate for the purchase of a part of their lands, as Vattel would have suggested. They were instructed to take possession of the land in the name of the King or Queen, and to then grant or sell estates in the land to appropriate settlers, who would then hold feudal-­sounding “estates in fee simple”, or lesser estates like leases, from the King or Queen, just as in Britain. Those who actually discussed matters with Aboriginals after settlement reported that they had a relationship with the land quite like that of the British — as to the lack of cultivation one said “they live on it and enjoy the pleasures of the chase as do the rich 5 But for an account of the way in which the prior occupants had managed the land, see Bill Gammage, The Biggest Estate on Earth; How Aborigines made Australia, Allen & Unwin, 2011.

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of our nation”.6 However when the British planned one more colony, in South Australia, the Letters Patent issued under the South Australia Colonisation Act7 stated that the area “consists of waste and unoccupied lands which are supposed to be fit for the purposes of colonization” in virtually the same breath as they declared that “that nothing in these our Letters Patent contained shall affect or be construed to affect the rights of any Aboriginal Natives of the said Province to the actual occupation or enjoyment in their own Persons or in the Persons of their Descendants of any Lands therein now actually occupied or enjoyed by such Natives”.8 How these were to be reconciled nobody said — presumably the Aboriginal Natives were expected to do as Joseph Banks had predicted, and “speedily abandon the Country to the New Comers”. Then in Cooper v Stuart (1889) 14 App Cas 286, the Privy Council held that New South Wales had been “practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions” and that therefore the law of England had “become from the outset the law of the colony”.9 Since the case arose from a dispute between two white men about land in the eastern suburbs of Sydney, and involved an issue about how much of the law about the enforceability of covenants was applicable in the colony, it is perhaps understandable that no Aboriginals were invited to intervene, and no evidence about their relationship with the land was admitted. However, it was an oddly casual way to have any latent dispute about the mode of settlement, and possible indigenous claims to recognition of prior occupation and ownership, authoritatively dismissed, at least for the next 103 years. It might be suggested that the issue of the mode of colonisation is irrelevant to a text on constitutional law. Constitutional law is the study of the powers of courts and legislatures and executive governments. As noted above, the dominant rule, regardless of type of colony, was that the Imperial parliament could impose whatever laws and legal system it chose on a colony, so we might have the same constitutional set-­up even if Australia had been, admittedly, conquered. The point is, however, that we might not have. If the settlement of Australia had been less dismissive of the presence and the rights of the indigenous people, some of the rules about their rights may well have come to embodied in constitutional documents, or to be seen as constitutional in a less formal sense. (As indeed the decision in Mabo v Queensland [1992] HCA 23; (1992) 175 CLR 1 can be seen as changing the way that Australian law and society are “constituted”, in a broad sense, though it is not generally thought of as a “constitutional” case.)10 The organs of government would probably still be much as they currently are, but there might have been some differences in their make-­up and their powers might well have been different. 6 George Robinson, Protector of Aborigines, quoted in Banner, n 4 above. 7 4 & 5 Will IV c 95. 8 See http://foundingdocs.gov.au/item-­sdid-­38.html. Nearly all of the Acts and documents relating to colonisation are available on this site. 9 Cooper v Stuart (1889) 14 App Cas 286. 10 One significant exception to the latter proposition is the Chief Justice; see French CJ, “Native Title — A Constitutional Shift?”, at http://www.highcourt.gov.au/speeches/frenchcj/frenchcj24mar09.pdf.

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There might even have been Territories with an indigenous majority, as there is one in Canada. However, things did not happen that way. So the rest of this Chapter will discuss the white settlement of Australia, the imposition of a British-­style of government on the colonies and the eventual formation of the Commonwealth of Australia, with, as is usual, the presence of the indigenous people consigned to the background — because that is the way it happened. Whether the prior occupation of the land by, and the current status of, the indigenous people should now be more formally recognised in the Constitution is, however, the subject of debate at the time of writing and will be discussed in the final chapter.

3.3 The foundation and early development of the colonies — Governors, Legislative Councils and Supreme Courts [3.40] Though the rights of the prior inhabitants were ignored, there were certain expectations about the rights of British settlers. Counsel’s opinion provided to the Secretary of State in 1818 first recited the usual rule that the law of England was in force in “settled” colonies to the extent that it was applicable, and then added: [T]he invariable usage in all such cases has been to require the Governor to convene an Assembly elected by the freeholders within the colony; and thus the colonists have lived under the constitution of England, varied only so as to meet the new circumstances under which they have been placed …11

However, “New South Wales”, which originally meant all of the continent to the east of longitude 135°E, was started as a penal settlement, so it took some time for the “invariable usage” to be followed. The original penal settlement was basically a gaol ruled by a military dictator, albeit a dictator who was well-­intentioned and responsible to a far-­away government that expected basic standards to be observed. In the absence of any legislative body, it was assumed that the statutes of England applied as long as they were “applicable to [the colonists’] situation and the condition of an infant colony”, and for the immediate needs of the colony the Governor-­cum-­chief gaoler-­ cum-­military commander could issue General Orders and ordinances. [Some doubt has been expressed about the validity of this practice; Jeremy Bentham labelled the colony an “immense [and] uninspectable Bastile” and thought the whole setup was unconstitutional,12 but in English law “unconstitutional” was merely a term of disapproval on idealistic grounds — laws could not be declared invalid on that ground.]13 11 Quoted in R D Lumb, The Constitutions of the Australian States, 5th ed, 1991, UQP, p 8. Part 1 of any of the five editions of this text has a much more detailed, colony by colony, account of the story told very briefly here. 12 A Plea for the Constitution, 1803 (often cited as A Plea for the Constitution of New South Wales). 13 Legal historians have since argued that the prerogative powers of the King were sufficient to fill in the gaps in statutory power — see the summary of the debate in R D Lumb, n 11 above, pp 4–6.

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In time, other penal settlements and free-­settler colonies were established, each under its own Governor. Tasmania was separated from New South Wales in 1825. Settlements in Brisbane and Melbourne led to the recognition of a “Moreton Bay District” and a “Port Phillip District” within the greater New South Wales. Western Australia and South Australia were formed as separate colonies from the start, so that by 1826 all of the continent was claimed by Britain. From 1825 on, the four Governors were generally instructed to appoint Legislative Councils to advise them in the making of laws, though the advice did not have to be followed, and the laws they made could not be “repugnant” to the law of England. [3.50] It was during this early stage that each colony acquired a Supreme Court. The Supreme Court of New South Wales was established by Imperial Letters Patent (known as the Third Charter of Justice) in 1823. A First Charter of Justice was issued for Tasmania in 1823, and a second in 1831. South Australia was deemed to have Supreme Court from the beginning in 1826, and Western Australia created its own by statute in 1861. The Port Phillip and Moreton Bay Districts had resident judges of the Supreme Court of New South Wales before separation, so the setting up of separate colonial Supreme Courts for Victoria and Queensland followed upon separation in 1850 and 1859 respectively. As the colonies were assumed to have been uninhabited, or at least “desart and uncultivated”, the law applied by these Courts was, in Blackstone’s words cited above, “so much of the English law as is applicable to … the condition of an infant colony”. But English law changes as statutes are enacted, so did the law of the colonies keep changing automatically following the passage of laws at Westminster? By the time of the colonisation of Australia, the theory applied within the Colonial Office and by colonial judges was that the common law and statutes of England as of some “reception” date were received into the law of the colony, so far as they were applicable to the situation of the colony. However, there was a dispute about the appropriate “reception” date for a place like New South Wales that had been founded as a gaol and only slowly evolved into a normal colony, so a reception date was prescribed for New South Wales (still including Victoria and Queensland) and newly-­separated Tasmania by the United Kingdom Parliament, when it passed the Australian Courts Act 1828.14 This provided that applicable English Acts were received up to the date of passing of the Act, ie, 25 July 1828. For Western Australia and South Australia, the reception dates are taken to be the dates of proclamation of the colonies — 18 June 1829 and 28 December 1836 respectively. From the above dates on, new laws passed in the United Kingdom Parliament and intended to apply only to England no longer applied in the respective colonies as part of the “received” law. This did not yet mean that colonial Governors and Councils could change the received law; even under the two Australian Constitution Acts discussed below they could make laws “provided always that no such law shall be repugnant to the law of England”, and clearly Acts that were intended to apply to a colony, or to the Empire generally, still did so. Until self-­government arrived, the colonies were still very colonial. 14 9 Geo IV c 83.

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Then in 1842 the Australian Constitutions Act (No 1) 184215 provided that the New South Wales Legislative Council would be expanded in size and that two-­thirds of its members should be elected, though only by males with a certain amount of property. The Governor was still the real executive leader and still had a real power to refuse assent to legislation (a power that had not been exercised by a monarch in England since 1703). The Council had control over the appropriation of some revenue while the Governor had control over other revenues, and local legislation still could not be “repugnant” to the law of England, but it was a step towards democracy. This Governor-­with-­partly-­elected-­ Council model was generally extended to the other colonies (except Western Australia, which had to wait until the number of free settlers increased) by the Australian Constitutions Act (No 2) 1850,16 which also provided for the separation of Victoria and the possible future separation of Queensland. Section 32 of the 1850 Act also made it clear that the partly-­elected-­Council model was intended to exist as a brief transitional step to self-­government — the Councils were authorised to draft Constitutional amendments providing for a bicameral Parliament with an elected “lower” House. This carried implications that are spelled out in the next section.

3.4 Responsible government — an idea whose time had come [3.60] In the 1840s and early 1850s, developments in Canada and New Zealand had forced the Colonial Office to adopt a more “hands-­off ” approach to colonial government. Some of the Canadian maritime provinces had had fully-­ elected assemblies since the 1750s or 1770s, but the Governor had still had control of day-­ by-­day administration and the budget, and a power of veto over proposed laws. This caused conflict — the elected leaders of the legislature claimed that they had a popular mandate but the law was on the side of the Governor. After the American Revolution, the British had been wary of giving too much independence to its colonies in case they too might seek independence. However, that did not stop the colonists in both Upper and Lower Canada (Ontario and Quebec) from staging rebellions in 1837–8. After the British had put down the rebellions (and cleverly deported some of the leaders to New South Wales so they could spread their subversive ideas) they appointed Lord Durham to report on the causes of the discontent. His Report, in 1839, suggested that the best way to keep colonists loyal was to give them not less, but more, independence. The Report is now widely referred to as “a sort of Magna Carta for representative self-­government”.17 However, for the first few years after the union of Quebec and Ontario into the Province of Canada (another, much less inspired, recommendation of Lord Durham), the old conflicts between a representative assembly, aspiring to control the government, 15 5 & 6 Vict, c 76; cited in some sources as the New South Wales Constitution Act 1842. 16 13 & 14 Vict, c 59; cited in some sources as the Australian Colonies Government Act 1850. 17 Original source unknown. It appears on many websites, most of which cite at least one of the others.

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and a near-­autocratic Governor applied there as well as in the maritime provinces. There was a series of deadlocks over ordinary Bills and, most importantly, appropriation Bills, during which the Canadians pressed their demand for “responsible government” (and, as seen above in 2.80, had to explain to the British what they meant by the phrase). Eventually the British accepted their demands; in November 1846 Earl Grey, the Colonial Secretary, wrote to the Lieutenant-­Governor of Canada saying that he should make it clear “that any transfer of political power from the hands of one party in the province to those of another is the result not of an act of yours but of the wishes of the people”18 [as manifested in the Assembly]. From then on the various Canadian Governors appointed Ministers and members of the Executive Council according to their support in the “lower” house and acted on their “advice”, though it was accepted until the 1930s that in rare cases the Colonial Office might instruct them to uphold the interests of the Empire over the wishes of local politicians. A similar stand-­off between an elected assembly and an old-­style Governor occurred in New Zealand between 1854 and 1856, with a similar “surrender” by the Governor in early 1856. It had become the norm that on achieving a certain stage of economic development, a colony (one with a white-­settler majority, anyway) would be allowed to have responsible government. So the Australian Constitutions Act (No 2) 1850 set the scene for responsible government in all the Australian colonies. As noted above, after it had made the provisions for separation of colonies and for the institution of partly-­elected Legislative Councils, it provided that each of those Councils could amend its own Constitution to provide for a bicameral (two Houses) legislature. There was no express mention of a transition to responsible government, but the Canadians and New Zealanders had won that battle for us in advance; it was assumed (at least by 1855 if it had not been quite clear in 1850) that responsible government would come with bicameralism. Though the colonies were trusted to draft their own constitutions, the section provided that any such Bill would be reserved for Her Majesty’s pleasure and laid before both Houses of the UK Parliament for 30 days before assent could be given (which meant that the British government would have time to advise HM whether to assent or not). However, the “Home” government took only technical objections and forced only minor amendments, and the Constitution Acts of New South Wales, Victoria, Tasmania (renamed from Van Diemen’s Land in early 1855) and South Australia all commenced to operate in 1855–6.19 Queensland was separated from New South Wales in 1859, and given a close copy of the New South Wales Constitution by Order in Council; the Parliament re-­enacted it (with minor amendments) as the Constitution Act 1867 (Qld). Western Australia had to wait a while longer (convicts had been sent there from 1850 18 Constitutional Documents of Canada, p 496 (available on the web at http://www.canadiana.org/ view/9_03428/0523). 19 Constitution Act 1855 (NSW), Constitution Act 1855 (Tas), Constitution Act 1855 (Vic), Constitution Act 1856 (SA). Technically the New South Wales and Victorian ones, and later the Constitution Act 1890 (WA) were enacted as Schedules to Imperial Acts, whereas the South Australian and Tasmania ones were enactments of their own Parliaments. The significant thing is that they were all enacted by the authority of the UK Parliament, whether directly or indirectly.

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Colony

First British settlement

Foundation, or separation from NSW

Partly-­elected Legislative council

Commencement of Constitution Act with bicameral Parliament

First meeting of Legislative Assembly/ House of Assembly

New South Wales

18 Jan 1788 (Kurnell)

26 Jan 1788 (Sydney Cove)

1843

16 July 1855

22 May 1856

Tasmania

South 1803 North 1806

12 Dec 1825 (separation)

1851

24 Oct 1855

2 Dec 1856

Queensland

1824

6 June 1859 (separation)

1843, as part of NSW

6 June 1859*

22 May 1860

Western Australia

1826 (Albany)

18 June 1829 (foundation)

1870

21 Oct 1890

30 Dec 1890

Victoria

Brief one in 1803–4, then 1834

1 July 1851 (separation)

1843 as part of NSW; its own in 1851

23 Nov 1855

25 Nov 1856

South Australia

28 Dec 1836

28 Dec 1836 (foundation)

1851

25 Oct 1856

22 April 1857

Figure 3.1 F ormation of the Australian colonies and the transition to responsible government * Queensland’s first effective “constitution” was the Order in Council of this date

to 1868, at the colonists’ request, and the population and economy grew slowly) but it achieved a two-­thirds–elected Council in 1870, and a bicameral Parliament and responsible government in 1890. Western Australia then created a complication which has persisted to the present day by supplementing the Constitution Act 1890 with further provisions in a Constitution Act Amendment Act 1899.

3.5 Features of the colonial Constitutions [3.70] The post-­1855 Constitution Acts20 of the colonies had some minor differences, but many common features. The common features will be emphasised below, with some references to the differences. Since each colony already had a Governor, appointed by Commission and given Royal Instructions, and a Supreme Court, the Constitution 20 To be cited in footnotes below simply as CA (State) [Year].

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Acts were, and largely still are, mostly about the re-­constitution of the legislatures, with incidental references to the powers of the Governor and the tenure of Supreme Court judges. (We will see below that the Commonwealth Constitution is quite different — it deals with the creation of, and the grant of powers to, each of the arms of government at some length.) Although all of the Constitution Acts except the two Western Australian ones have been replaced by later Acts, the later ones preserve many of the features of the originals, so although the anti-­democratic Councils have been reformed, the rest of what follows still describes the current State constitutions.

Bicameral parliaments [3.80] The obvious difference between the new parliaments and the old Councils was the addition of a new, more democratically-­elected house, called the House of Assembly in South Australia and Tasmania and the Legislative Assembly in the other colonies. Laws were to be made by the Assembly, the Council and the Governor — ie, a Bill had to be passed by both Houses and receive royal assent from the Governor (subject to “reservation” requirements discussed in the next section). The Assemblies were elected by male residents, with at first a small property qualification which was removed in most cases in the first few years under the Parliaments’ power to amend their Constitutions (see next section). However, a residential qualification remained, which disfranchised itinerant workers (of whom there were many in the nineteenth century) and vagrants, and even in colonies where indigenous men were theoretically eligible to enrol (eg, South Australia) not many found it possible to do so. The Legislative Councils were another story. The new Constitutions had been drafted by the old Legislative Councils, which consisted of prosperous men from the pastoral, professional and business interests in the colonies. They were concerned to create an “upper” house that would exercise a “wise and conservative control upon the otherwise unfettered democratic tendency of the Lower House”.21 Two different mechanisms were adopted. In New South Wales, the old pattern of the Governor nominating members for life was continued. Seen by its promoters as a conservative device, this had the weakness that, once the convention was adopted that the Governor would nominate members on the Premier’s advice, it became possible for a government facing opposition in the Council to swamp (or “stack”) the Council with new members to ensure the passage of legislation. Queensland copied the appointed-­members pattern from New South Wales (as the New South Wales Constitution Statute 1855 had directed), and in 1922 the Council was swamped with a “suicide squad” who voted the Council out of existence. The more complicated story of the reform of the New South Wales Legislative Council will be told in Chapter 27. In the other States, the drafters opted for another conservative mechanism — a property qualification for voters and a higher property qualification for candidates; as Waugh says, “in modern terms” the Victorian drafters “created a house of millionaires”.22 21 John Waugh, “Framing the First Victorian Constitution, 1853–5” (1997) 23 Mon ULR 331 at 344. 22 Waugh, above n 21, p 348.

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The weakness in the property qualification rules was of course inflation; even in the case of Victoria, where a member needed to own property worth 5000 pounds, and a voter property worth 1000 pounds or to be paying 300 pounds per year on a three-­year lease, the right to vote or be a candidate for the Council eventually fell within the reach of working-­class people. However, this took a long time to happen; for many decades there were conflicts between the Houses over reformist legislation. Some of the Constitution Acts had provisions “entrenching” the rules about the Councils (see next section). There was originally no provision for the resolution of deadlocks in any of the colonial Constitutions, though some were added later (see Chapter 27). The State politicians who drafted the Commonwealth Constitution were acutely aware of the possibility of deadlock from their own experiences and therefore included s 57 in the Constitution.

General legislative power [3.90] Each of the parliaments was given a general power to make laws for the respective colony. The power given by the two Australian Constitution Acts to the old Legislative Councils had been “to make laws for the peace, welfare and good government of the colony”, and this phrase was copied into the new Constitutions of New South Wales, Queensland and South Australia. The Victorian drafters simply said “a power to make laws in and for the said colony in all cases whatsoever”. The Tasmanian drafters neglected to include any such phrase, leading some23 to describe it as incomplete. If legislative power is not to be inferred from the fact that it is a Parliament (the distinguishing feature of a Parliament is that it makes laws, after all), it can be seen as being carried over from the authorisation in the Australian Constitutions Act (No 2) 1850, ss 14 and 32. By the time the Western Australian Constitution Act was being drafted, the emphasis in grants of law-­making power had shifted from welfare to order, so its power was (and is) “to make laws for the peace, order and good government” of the colony/State24 (compare the Commonwealth Constitution, s 51). As we will see in Chapter 27, this is a general power, unlimited by topic, unreviewable as to whether the laws actually are for the peace, etc, of the State, and, despite early doubts, extending to the making of extraterritorial laws. In case it was not clear that such a wide power extended to amending the Constitution under which the parliament had been elected, each of the Constitutions except that of Tasmania spelled that out. However, some provisions were “entrenched”. This is not a particularly technical term — it is simply a metaphor for saying they were made harder than usual to amend by requiring that amendments had to be passed in a special way (later known as a special “manner or form”). The most common provisions to be entrenched were those defining the constitution of the Houses themselves. In New South Wales, such laws had to be passed by two-­thirds of the members of the Assembly and a majority in the Council,25 and in 23 For example, Lumb, n 11 above, p 34. 24 CA 1890 (WA) s 2. 25 CA 1855 (NSW) s 40.

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South Australia26 a two-­thirds majority in both Houses. In Victoria they needed an absolute majority (ie, a majority of all the members, not just those present for the vote) in both Houses.27 In Queensland, the restriction applied only to laws making the Council elective; any such law would require a two-­thirds majority in both Houses.28 In many cases, such Bills also had to be reserved for Her Majesty’s assent, sometimes after a minimum period of tabling in the British Parliament. In Western Australia, there were no special requirements for changing the constitution of the Houses (they were added later), but laws to change the financial provisions, including the unique s 70 discussed below, had to be reserved.29

Executive power, parliamentary control of finance and responsible government [3.100] As noted above, the Constitution Acts said nothing about the creation of the Governor’s office or granting executive power to the Governor — that was all assumed. Read without knowledge of the development of responsible government, they could even look as if the Governor still did the governing. All, for example, provided that no tax or appropriation Bill could be passed unless it had been recommended by the Governor; the real effect of this will be discussed below. The sections that made it clear that power had now been passed to whoever controlled the majority in the “lower” House were of two types. There were provisions for parliamentary control of government finance; that all revenue was to be paid into a consolidated revenue fund, to be appropriated for the Public Service of the Colony,30 and that Bills for appropriating any part of the revenue must originate in the Assembly. Victoria added that such Bills could be rejected but not amended by the Council. As noted in 2.70, this is the means by which Parliament took control of government in Britain. The other “giveaway” was in the sections that referred to the appointment of public servants. Section 37 of the Constitution Act 1855 (NSW) was typical: 37. The Appointment to all Public Offices under the Government of the Colony … shall be vested in the Governor, with the Advice of the Executive Council, with the Exception of the Appointments of the Officers liable to retire from Office on political Grounds …, which Appointments shall be vested in the Governor alone.

Decoded, this means, first, that ordinary public servants were officially appointed by a document signed by the Governor “advised” by the Executive Council, but that in fact he was merely ratifying a decision made by the Cabinet or a public service body. The mysterious “Officers liable to retire from Office on political Grounds” were the Ministers — and the “political grounds” on which they were liable to retire were that 26 27 28 29 30

CA 1856 (SA) s 34. CA 1855 (Vic) s 60. CA 1867 (Qld) s 9. CA 1890 (WA) s 73. For example, CA 1855 (Vic) s 45.

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their party had lost an election, or that they had lost the confidence of the Assembly, or their party, mid-­term. The need, noted above, for a Governor’s message recommending an appropriation was not intended to keep the Governor in charge; in fact it kept the Ministers, who advised the Governor to send the message, in charge of spending. This sets up a system of dual control of spending — spending without Parliamentary appropriation is unlawful, but the Parliament cannot appropriate money without a recommendation from the executive. Since it is the executive that takes the blame for budget blow-­outs, it cannot be forced by, say, a temporary alliance of the Opposition and independents to spend money for purposes of which it does not approve. Although the idea that the government was now responsible to the Assembly was expressed opaquely, everyone who knew of British practice since 1720 or who had heard of Earl Grey’s despatch to the Lieutenant-­Governor of Canada, knew what the new Constitution really meant. The Ministers ran the government and the Governor was a figurehead or rubber stamp, except in governmental crises, when he became extremely important. We will consider the Governor’s, or Governor-­General’s, role in a crisis in Chapter 9.

Tenure of the judiciary [3.110] The Constitution Acts also did not have provisions saying “There shall be a Supreme Court”, because in each case there already was a Supreme Court. What they did was to confirm that the principle of the Act of Settlement 1701 now applied to the Supreme Courts. For example, the Constitution Act 1855 (NSW) provided: 38. The Commissions of the present Judges of the Supreme Court of the said Colony, and of all future Judges thereof, shall be, continue, and remain in full force during their good Behaviour … 39. It shall be lawful, nevertheless, for Her Majesty, Her Heirs or Successors, to remove any such Judge or Judges upon the Address of both Houses of the Legislature of this Colony.

That is, apart from the somewhat more democratic Parliaments, the Constitution Acts set up a replica of the British system of government in the colonies. The colonial governments were still subservient to the “Imperial” Parliament and government, but as the next section shows the amount of real interference by the “Home” authorities steadily decreased after the 1850s.

3.6 The “CLV Act” — theoretical subordination but substantial independence confirmed [3.120] The grants of legislative power to the bicameral parliaments (3.80, above) did not contain the reservation in the earlier grants (3.40, above) that new laws could not be 44

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repugnant to the law of England. It therefore seemed that the colonial parliaments could now make laws that were so repugnant, unless they conflicted with an “Imperial” law that expressly, or by necessary implication, applied to a colony or colonies or generally to the Empire. Despite apparent general agreement in the Colonial Office and the British Law Officers that the above principle was correct, there were doubters. The principal doubter was Justice Boothby of the South Australian Supreme Court, of whose judgments it was said “there seemed to be no limit to the laws declared invalid through careless drafting or repugnancy”.31 In response to pleas from the South Australian government, the British parliament passed the Colonial Laws Validity Act 1865 (“the CLV Act”). As far as colonial powers were concerned, it had a negative section: 2. Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or … to any order or regulation made under authority of such Act … shall be read subject to such Act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.

and a positive section: 3. No colonial law shall be or be deemed to have been void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of Parliament, order, or regulation as aforesaid.

Reading the two sections together, s 3 was saying that a colonial law would be invalid if and only if it was repugnant to one of the laws mentioned in s 2 — that is, those that “extended” to the colony. Willes J held in Phillips v Eyre (1870) LR 6 QB 1 that this applied to those statutes (or orders made under them) that were “applicable to the colony by express words or necessary intendment”. Though there was quite a number of such Acts, the general threat to colonial powers posed by Boothby J’s decisions was negated, and the Act was, for a time, seen as a “charter of colonial independence”. Some specific controls remained. Section 5 of the Act confirmed that the general grant of power to a representative colonial legislature extended to laws “respecting the constitution, powers, and procedure of such legislature” but then added a proviso: … provided that such laws [ie, those respecting the constitution, powers, and procedure of the legislature] shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, order in council, or colonial law for the time being in force in the said colony.

As noted in 3.90 above, many of the new Constitution Acts required that laws affecting the constitution of the Assembly and/or Council must be passed in a special “manner or form”. Some of those requirements involved special majorities and some involved reservation of Bills for the Queen’s assent. In the twentieth century, drafters who wanted to 31 Castles, n 4 above, p 408.

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“entrench” provisions in State Constitutions learned to fully exploit the possibilities of s 5, but the nineteenth-­century restrictions were less entrenched than they looked — the clauses imposing the need for the special majorities were not themselves protected by the same special requirement (what we would now call “double entrenchment”). By the time of the Conventions to draft the Commonwealth Constitution, the Victorian Premier, Duncan Gillies, was able to report that: … although at one time there was a provision that amendments could only be made by a clear majority of both branches of the legislature, this having been once amended amendments now come under the ordinary law of legislation, which merely requires a simple majority.32

In fact, as we shall see in Chapter 27, the more effective source of entrenchment of the anti-­democratic Councils was the self-­interest of their members and the lack of a deadlock-­resolution mechanism; a House invented to give veto rights over legislation to the wealthy may not generally be expected to approve a Bill reforming itself. As to the requirements for reservation, the Premier observed: All [the Parliaments] have to do is to repeal that portion of the Constitution Act which requires an alteration of that section to be reserved for her Majesty’s assent. Once repeal that section, and you do away with everything.

In London, the Colonial Office had been showing a more permissive attitude to the colonials; when Bills were reserved for the Queen’s assent, hardly any objections were raised, even if the Bill was removing the requirement for reservation in future cases. The Constitution Act 1890 (WA) had had a unique provision in s 70, reserving one per cent of the revenue for the benefit of the Aboriginal inhabitants of the colony. Though this clause had been included at the insistence of the Imperial government, reflecting a belated “imperial concern for the welfare of the indigenous inhabitants of the colony in the face of the deprivations caused by white settlement”,33 when the clause was repealed by the Aborigines Act 1905 (WA), it received assent in London. By the 1890s, it seemed that the colonial Parliaments could enact anything they wanted to; at the Federation Conference in 1890 Sir Samuel Griffith (then Premier of Queensland) claimed that the colonies “have been accustomed for so long to self-­ government that we have become practically almost sovereign states, a great deal more sovereign states, though not in name, than the separate States of America”.34 And then the colonies federated. 32 National Australasian Convention, Debates, 18 March 1891. 33 Peter Johnston, “Waiting For The Other Shoe To Fall: The Unresolved Issues in Yougarla v Western Australia”, conference paper at http://www.gtcentre.unsw.edu.au/sites/gtcentre.unsw.edu.au/files/ mdocs/87_PeterJohnston.pdf. 34 Australasian Federation Conference, Debates, 10 February 1890.

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ISSUE FOR DISCUSSION (This one is a long-­term project, not to be attempted in a week.) Read Banner, Possessing the Pacific, and ask yourself, assuming the British were going to colonise Australia anyway, whether the approach of regarding the continent as “practically unoccupied, without settled inhabitants or settled law” was the only possible one, knowing of settlement practices elsewhere. What other approaches to indigenous land ownership and recognition of indigenous law could have been taken?

FURTHER READING Stuart Banner, Possessing the Pacific; Land, Settlers, and Indigenous People from Australia to Alaska, Harvard UP, 2007 Alex Castles, An Australian Legal History, Law Book Co, 1982 RD Lumb, The Constitutions of the Australian States, 5th ed, UQP, 1991

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CHAPTER 4

Federation and the Drafting of the Commonwealth Constitution

4.1 Context and overview [4.10] Chapter 3 told how the Australian colonies were founded and eventually granted self-­government and, as they saw it, virtual independence. In this Chapter, we study the process by which they federated so that they could better promote mutual interests like foreign affairs and defence, and reduce tariff barriers and trade discrimination within the country. The Constitution was drafted at Constitutional Conventions, the first in 1891 consisting of delegates appointed by the colonial parliaments but the second in 1897–8 consisting mostly of directly-­elected delegates, after calls for a more democratic process to be followed. The Constitution produced an amalgam of all of the influences discussed in Chapter 2 — a separation of powers limited by the principle of responsible government, references to direct choice of politicians by the people and a federal division of powers, all embodied in a written document intended to be supreme law and amendable by the Swiss referendum method.

4.2 From the earliest suggestions to Parkes’s Tenterfield speech [4.20] Even before the six colonies had achieved responsible government, politicians were starting to realise that there were disadvantages in having the continent divided into six colonies. The disadvantages fell into two groups: economic dislocation of the colonies and the difficulties of organising the defence of the continent against potential aggression from whoever was Britain’s enemy at the time (the Russians in some decades, the French in others). As early as 1846–7, Earl Grey and Governor Fitzroy exchanged ideas 49

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about a central parliament to deal with such matters as inter-­colonial customs duties, postal services and communications. Only a shadow of this idea was implemented — from 1850 to 1861 the Governor of New South Wales was called the Governor-­General as a token to the idea of co-­ordination between the colonies, but had no actual power over the other Governors. From 1863 on, the Premiers held regular inter-­colonial conferences. At the 1867 conference, Henry Parkes proposed that there should be “some federal bond of connection” but by the time that a Bill for the establishment of a Federal Council was agreed to at the 1883 conference, Parkes and the New South Wales government had lost interest in the idea. The Imperial Parliament enacted the Federal Council of Australasia Act 1885, creating a Council with two representatives from each of the colonies that chose to join, but New South Wales did not participate, and South Australia did so only briefly. It had power it to make laws binding the member colonies on a few topics that now seem relatively trivial. It did, however, enact a few laws on the service of process and enforcement of judgments which improved cooperation among the court systems of the colonies other than New South Wales. At the same time there was a resounding demonstration of the need for better coordination of decisions on inter-­ colonial matters — when the eastern colonies were joined by railway lines (Sydney–Melbourne 1883, Melbourne–Adelaide 1887 and Sydney–Brisbane 1888) there were breaks of gauge in both the Sydney–Melbourne and Sydney–Brisbane lines, because the colonies had adopted different gauges. In 1889, the need for coordinated defence was also emphasised. The 1887 inter-­ colonial conference had recommended that the British government should send an officer to inspect the forces of the Australian colonies and to advise on their organisation. Major-­General Edwards reported in 1889 that the defence forces should be better organised and that this was quite impossible without a federation of the forces of the different colonies. He admonished them: Organise. Federate. Not only is great waste of money involved in the disconnected way in which you are going to work, but a fatal waste of strength. Divided as you are; acting independently of each other as you insist upon doing, you run the risk of falling an easy prey to an invader.

On 24 October 1889, shortly after reading Edwards’s report, Parkes (by now, Sir Henry) made a speech at Tenterfield in which he called for a federal army and a uniform railway gauge, and noted that this would require “a distinct executive and a distinct parliamentary power, a government for the whole of Australia, and it meant a Parliament of two Houses, a house of commons and a senate, which would legislate on these great subjects”. He and Sir James Service of Victoria called a special Premiers’ Conference, the Australasian Federation Conference, in Melbourne in 1890 and the Premiers agreed to convene a national conference to consider and report upon an adequate scheme for a Federal Constitution. 50

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4.3 The first Constitutional Convention, 1891 [4.30] The National Australasian Convention was held in Sydney in March and April 1891. Seven delegates were chosen by the parliaments of each of the Australian colonies, and four came from New Zealand. Andrew Inglis Clark of Tasmania had circulated a draft of a possible federal constitution in advance, and Charles Cameron Kingston of South Australia had circulated some additional sections. The Convention assumed from the start that its job was to draft a Bill for a Constitution, to be enacted by the Imperial Parliament. It appointed three committees to consider separate aspects of the constitution, and one of them appointed a drafting sub-­committee headed by Sir Samuel Griffith of Queensland, and including Clark, Kingston and Edmund Barton of New South Wales. Then the whole Convention debated the draft clause by clause, as if they were sitting in a Parliament and debating the details of a Bill in “committee of the whole”,1 and a Record of Debates was published as had become usual for the Parliaments.2 Since the big political issue of the time, on which the colonies had opposing policies, was tariff policy — whether to allow free trade or to protect local industry by high customs tariffs — Sir James Service had said in Melbourne in 1890 that this would be the “lion in the path” that might prevent the colonies from reaching agreement. In fact, the delegates quickly agreed that internal tariffs must be abolished, that customs duties on imports into Australia would be uniform, and that the level of those duties — and thus the level of protection of Australian industry as a whole — would be determined by whoever won a majority in Parliament. [That is, they agreed on the forerunners of the present ss 88, 90 and 92.] It was also quickly agreed, on the model of the United States Congress, that the colonies would be renamed as States and that there would be two Houses of Parliament — one with membership proportional to the population of the States and a Senate with equal numbers of senators from each States. They also adopted Chapters, modelled on the US Constitution, assigning legislative, executive and judicial power respectively to the Parliament and a new federal executive and judiciary. A list of topics on which the new parliament could make laws was included; precedents consulted included the federal systems of Canada and America and the Federal Council of Australasia Act 1885. The nearest thing to a real “lion in the path” was the debate about the respective powers of these two houses, but that was settled on the Victorian model; most money Bills should originate in the Representatives and the Senate could not amend them. Its power to reject them was unstated but assumed, and for the moment no provision was made for the resolution of deadlocks between the Houses. All in all, the Bill that ensued was rather similar to the eventual Constitution. The eight Chapters and their names were already in their final form, there were a few less powers given to the Commonwealth Parliament than in the final s 51, and there was, as stated, no 1 See 16.20 and Figure 16.1 for the routine procedure for the passage of a Bill through Parliament. The “committee” stage is now called the Consideration in Detail stage in several parliaments. 2 They are now available on the web at http://www.aph.gov.au/About_Parliament/Senate/Powers_ practice_n_procedures/records_of_the_Australasian_Federal_Conventions_of_the_1890s.htm.

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deadlock provision. The major difference was a tendency to rely on indirect rather than direct democracy; while the House of Representatives was to be chosen by the people, the Senators for each State were to be chosen by the Parliament of that State, and future amendments of the Constitution were to be approved by Conventions elected for that purpose in each State; the Swiss “double majority” rule applied, but the people were not to vote directly. The Convention duly approved it and forwarded it to the colonial Parliaments, who were expected to do something with it — but exactly what was to be done was not specified. The colonial Parliaments did nothing. The others were waiting for New South Wales to take the lead and, it, distracted by drought, depression, strikes and the usual alternation of power between parties and Premiers, led the way in doing nothing. Quick and Garran also claimed that the draft failed to gain popular acceptance due to “… a vague feeling of distrust of the Constitution, as the work of a body somewhat conservative in composition, only indirectly representative of the people, and entrusted with no very definite or detailed mandate even by the parliaments which created it”.3

4.4 Federation Leagues, the Corowa resolution and the Premiers’ Plan [4.40] However, other groups kept the pressure up. In Victoria the Australian Natives Association (a friendly society of Australian-­born descendants of immigrants, not indigenous people) organised public meetings. Then in 1893 the Australian Federation Leagues were founded. Though inspired by politicians, especially by Edmund Barton, then Speaker of the NSW Legislative Assembly, they were intended to demonstrate the support of ordinary people for federation. There were particularly strong branches in the towns along the Murray River, where the payment of customs duties on the movement of goods was a constant nuisance, and it was the Corowa branch that hosted a conference to urge that something should be done. On 1 August 1893 the conference unanimously adopted the following resolution, moved by Dr John Quick: That in the opinion of this Conference the Legislature of each Australasian colony should pass an Act providing for the election of representatives to attend a statutory convention or congress to consider and adopt a bill to establish a Federal Constitution for Australia and upon the adoption of such a bill or measure it be submitted by some process of referendum to the verdict of each colony.

It is not clear whether Quick had been reading the English writers from the time of the Civil War, but there are clear echoes of Sir Henry Vane’s idea (see 2.100) here — that even though the elected representatives would almost inevitably be politicians, as a body specifically elected to draft a Constitution they should bring a longer view to issues than they would if they were simply sitting in a normal legislature. Many of the same faces would appear in the 1897–98 Convention as had been there in 1891, but they would have a greater democratic legitimacy.4 3 Quick and Garran, The Annotated Constitution of the Commonwealth of Australia, at p 144. 4 For a more sceptical (almost conspiratorial) analysis of this, see Stuart Macintyre, “Corowa and the Voice of the People” (1998), from the Senate Papers on Parliament series, at http://www.aph.gov.au/binaries/ senate/pubs/pops/pop32/c01.pdf

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The “Corowa Plan” was adopted by the Premiers at their next Premiers Conference in 1895, whereupon it became known as the “Premiers’ Plan”. Another element was added — there should be an adjournment of the Convention once it had agreed on a draft, so that people, and especially the Parliaments, could submit comments on the draft for the consideration of the Convention on its resumption. Queensland (where Sir Samuel Griffith had removed himself from active politics by becoming Chief Justice) was preoccupied with internal matters and played no part, but the four south-­eastern colonies passed enabling legislation and held elections for delegates, and Western Australia belatedly sent a delegation chosen by Parliament.

4.5 Australasian Federal Convention 1897–98 [4.50] The Convention met for three long sessions, in March–May 1897 in Adelaide, September 1897 in Sydney, and finally in the grand, but tin-­roofed and therefore hot, Exhibition Building in Melbourne from January–March 1898. Again, it engaged in exhaustive clause-­by-­clause debate of the Bill, and again the Debates were published.5 A few powers were added to the Commonwealth’s list (notably insurance, old age and invalid pensions, industrial conciliation and arbitration, and the “people of any race” power) and a deadlocks provision was inserted. Consistently with the spirit of the Corowa resolution, Senate elections were now to be done by direct vote of the electors, and ratification of proposed constitutional alterations was to be done by referendum on the Swiss model, requiring a majority of electors overall and a majority in a majority of the States. The first elections were to be carried out under existing colonial laws (which would mean that women would vote only in South Australia and Western Australia), but the new Commonwealth Parliament would have power to make its own laws for subsequent elections, and it was taken for granted that they would be uniform for the nation6 and generally accepted that they would include voting rights for women.7 The combination of these features led Prof W Harrison Moore to write that a central feature of the Constitution was “the prevalence of the democratic principle”.8 Whereas the people of the United States were to “act at second-­hand” (choosing the President via an electoral college, and ratifying amendments via State legislatures or conventions), the Constitution of 5 And are also available on the Senate web site at http://www.aph.gov.au/About_Parliament/Senate/ Powers_practice_n_procedures/records_of_the_Australasian_Federal_Conventions_of_the_1890s.htm The volume for the Adelaide Session was titled the debates of the National Australasian Convention, the same as in 1891, but the title for the other two sessions is the Australasian Federal Convention. 6 This assumption is reflected in the fourth paragraph of s 128. 7 For the concise version of the story of women’s rights in the Constitution, see “Half the Nation”, Ch 8 of Helen Irving, To Constitute a Nation, Cambridge UP, 1997. For much more detail, see Helen Irving (ed), A Woman’s Constitution? Gender & History in the Australian Commonwealth, Cambridge UP, 1999. 8 W Harrison Moore, The Constitution of the Commonwealth of Australia, 2nd ed, 1910, reprinted by Legal Books 1997, p 612.

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the Commonwealth, he said, “bears every mark of confidence in the capacity of the people to undertake every function of government”.9

4.6 Referendums and Sir George Reid’s tactics of bluff/blackmail [4.60] In furtherance of the Corowa Plan, the next step was for the text to be approved by referendums in each of the colonies. However, Sir George Reid, Premier of New South Wales, was not entirely happy with the draft. At a public meeting, he spoke about the Bill for nearly two hours before saying that he could not recommend voting either way — earning himself the nickname of “Yes–No” Reid. The State Parliament amended the enabling Act to provide that New South Wales would not be deemed to have approved the Bill unless there were 80,000 “Yes” votes. In June 1898, the four south-­eastern States held referendums, and the Bill was approved by a majority in all four States, but by an insufficient majority in New South Wales. Correspondence between Reid and the other Premiers followed and they had a closed meeting (often referred to as the “secret Premiers’ Conference” which simply means the press and public were not admitted; they were well aware that it was happening) in Melbourne in January–February 1899. At the “secret” conference, the Premiers agreed to some changes to the Bill. The original s 57 deadlock provision had provided that a Bill would have to be approved by a 3/5ths majority in a joint sitting; this was reduced to an absolute majority. In the financial provisions, s 87, which guaranteed that the States could have three-­quarters of the customs revenue,10 was limited to the first ten years of the Commonwealth, and an express provision, s 96, was inserted which provided that the Commonwealth could make grants to the States “on such terms and conditions as the Parliament thinks fit” (for the effect of that, see Chapter 21). The section about the national capital had said that it should be where Parliament decided; to ensure that it would not remain in Melbourne, the section (now s 125) was amended to provide that it must be within New South Wales but more than 100 miles (160 km) from Sydney. The Queensland Parliament would be allowed to divide the State into divisions for Senate elections (which it has never chosen to do), and a constitutional amendment could not affect the boundaries of a State unless that State voted in favour in the referendum. All in all, the amendments made the Bill a little more centralist, a little more directly democratic, and a little more favourable to the interests of New South Wales and Queensland. Reid had got what he wanted; instead of “Yes–No” Reid he should be known as “Yes, but only on my terms” Reid. The various Parliaments now enacted enabling Acts for another round of referendums. New South Wales withdrew its requirement for a minimum number of “Yes” votes; a majority would suffice. The referendums were held in the south-­eastern States from April to July 1899 and in Queensland in September. The Bill was approved by large majorities 9 Harrison Moore, n 8 above, p 613. 10 Having been moved by Premier Braddon of Tasmania, this was referred to as the Braddon clause, or by its detractors like Reid as the “Braddon blot”.

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in all States, though the Brisbane area voted against it for fear of what free interstate trade might do to their infant manufacturing industry. Western Australia held a referendum in July 1900, after the Bill had been approved by the UK Parliament; hence the omission of Western Australia from the first recital and the alternative provisions of s 26 depending on whether Western Australia was an Original State. [Despite the oft-­repeated tale that the goldfields’ vote was crucial, the rest of the State in fact voted for federation by a narrow majority, although the huge majority on the goldfields certainly sealed the deal.]

4.7 Enactment in London [4.70] The Bill as approved in the five States that had voted was forwarded to the Imperial government, to be presented to the Parliament for enactment. As it was known that the Colonial Office would have reservations about some of the clauses, a delegation consisting of Barton, Kingston, Alfred Deakin, James Dickson and Sir Philip Fysh went to London to negotiate with them. The British insisted on one amendment; s 74 as drafted had allowed for appeals to the Privy Council on constitutional matters only when “the public interests of some part of Her Majesty’s Dominions, other than the Commonwealth or a State” were involved, which the British thought was too narrow. It was changed so that constitutional matters would be generally appellable, except for appeals as to the “limits inter se” of the constitutional powers of the Commonwealth and the States, or of any two States. The High Court could give leave to appeal to the Council on these matters (and, in theory, still can), but it has only done so once and has made it clear that it will not do so again. The negotiators were satisfied with this; the Council would not be able to override the High Court’s interpretation of the most crucial aspects of the Constitution — and besides, the provision for appeals in other matters (including other constitutional matters) was qualified by a provision that the Parliament could make laws “limiting” the matters in which leave to appeal might be given. Eventually, by the Privy Council (Appeals from the High Court) Act 1975, appeals were limited by time, thus terminating them. The amended section turned out to give Australia more, not less, autonomy. The other matter that involved some negotiation was the question whether the “covering clauses” should include a provision expressly stating that the Commonwealth would be a colony within the meaning of the Colonial Laws Validity Act 1865. The delegates replied that the Commonwealth was clearly a colony, and insisted that there was no need to spell it out. By doing so, they avoided having something put in writing that could later stand in the way of Australia’s evolution to independence.11 In the end, then, the Bill was mainly drafted by a mainly-­directly-­elected Convention, but had six sections altered by the Premiers in response to Sir George Reid’s tactical game, one section was altered in response to British demands, and all but that section had 11 See China Ocean Shipping Co v South Australia [1979] HCA 57; (1979) 145 CLR 172, per Stephen J at 210. With respect, his Honour seems to miss the fact that the delegates may have been “protesting too much” in order to avoid having colonial status spelled out in a too-­permanent form.

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been approved by referendums in all six colonies. It was not quite done as the Corowa resolution had anticipated, but it came close. In that final form, the Bill was enacted by the Imperial Parliament and received assent on 9 July 1900, as the Commonwealth of Australia Constitution Act 1900 (Imp). Pursuant to covering clause 3, Queen Victoria proclaimed, on 19 September 1900, that the Commonwealth would be established and the Constitution would take effect on 1 January 1901. Lord Hopetoun, a popular former Governor of Victoria, was appointed as Governor-­General on 29 October 1900 and arrived in Sydney, sick with typhoid fever, on 15 December. As no federal elections were to be held until March, his first duty was to appoint an interim government to take office on federation day. At first he asked Sir William Lyne, Premier of the “senior” colony, New South Wales, to form a government, but it became clear that he did not have support among the other senior politicians so Hopetoun had to commission Sir Edmund Barton, acknowledged leader of the federation movement.12 On 1 January 1901, among extravagant celebrations,13 Barton and other leaders of the federal movement were sworn in as the first Ministers. The first elections were held on 29 and 30 March, under the various State electoral systems as provided in ss 10 and 31 of the Constitution, and the Parliament opened on 9 May 1901 in Melbourne. Of the 50 delegates to the 1897–98 Convention, 26 abandoned State politics for the more exciting federal sphere; 17 were elected to the House of Representatives and nine to the Senate. Those who were, frankly, second-­rate stayed behind in State politics.14 It was the beginning of Commonwealth dominance of the federation. Cross-­references: For an outline of the basic features of the Constitution and its status as supreme law, see Chapter 6. Most of the rest of the book is, of course, about its interpretation.

FURTHER READING J A La Nauze, The Making of the Australian Constitution, Melb UP, 1972 Helen Irving, To Constitute a Nation; a Cultural History of Australia’s Constitution, Camb UP, 1997 John Quick and Robert R Garran, The Annotated Constitution of the Australian Commonwealth, Legal Books reprint, 1976 Peter Heerey, “Andrew Inglis Clark: the Man and His Legacy” (2009) 83 ALJ 199 Michael Kirby, “Deakin: Popular Sovereignty and the True Foundation of the Australian Constitution” (1996) 3 Deakin LR 129 12 See JA La Nauze, The Hopetoun Blunder: The Appointment of the First Prime Minister of Australia, December 1900, Melb UP, 1957. 13 A web search for a term like “Australia federation arches images” will show how totally overboard the city authorities went with ceremonial arches, each one fancier than the last. 14 Two exceptions should be noted: Bernhard Wise made a mark on NSW politics as Attorney-­General for a few more years, and Sir Alexander Peacock stayed in the Victorian Parliament until 1933, serving as Premier three times and finally becoming the Speaker.

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CHAPTER 5

Australian Independence — From the Sovereignty of the UK Parliament to the Sovereignty of the People

5.1 Context and overview [5.10] Having considered the drafting of the Commonwealth Constitution, culminating in its enactment as a statute of the British Parliament, in Chapter 4, this Chapter studies the series of enactments and legal cases that culminated in the recognition by all parties of our complete independence in 1986. The fact that this development has called for a reconsideration of the source of binding authority of the Constitution is considered; it is now accepted that the Constitution is the supreme law because it was approved, and amendments are approved, by the people of Australia, or simply because it is the document which enabled the creation of our current institutions of government. This paves the way for the study in Chapters 6–8 of the acceptance of the Constitution as the binding supreme law of the land, how it is enforced, and the principles of its interpretation.

5.2 Australia’s evolution to independence The drafters’ intent — a potentially independent nation [5.20] Although the drafters of the Commonwealth Constitution took it for granted that the proper body with power to enact the Constitution into law was the Imperial Parliament, they were also careful to draft it with one eye on the possibility that one 57

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day Australia would be an independent nation. The Commonwealth was given unqualified power over defence and external affairs, powers not given to dependent “Crown” colonies. Paragraph (xxxviii) was included in s 51, giving the Commonwealth power to make laws with respect to: [T]he exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia.

Sir Samuel Griffith explained that the point of this was to ensure that “there should be no necessity to refer to the British Parliament to do anything for Australia, either in changing a constitution or in anything else”.1 It may have been accepted that the Imperial Parliament could make laws for the colonies, but the drafters wanted to make it absolutely unnecessary in future. In their negotiations with the Colonial Office (4.70), the delegates conceded that the Privy Council could hear appeals on constitutional matters, but extracted a concession that the power to grant leave to appeal could be “limited” by law. Deakin reported that after the British negotiators left them, he, Barton and Kingston “danced hand in hand” in jubilation. By conceding that, of course, the Commonwealth would be a colony subject to the Colonial Laws Validity Act 1865 (4.70) they won just as significant a victory; they avoided having colonial status stated in writing in a document that would be difficult to amend. Though the phrase “British Commonwealth” had not yet been invented, it seems fairly clear that the drafters could foresee something very like the future relationship between Britain and the Commonwealth countries. Years later, this was recognised by the Justices of the High Court. As Stephen J said in the Seas and Submerged Lands case, “That the Commonwealth was, by the Constitution, endowed with a capacity fitting it to take its place as a nation state cannot be doubted.”2 Barwick CJ filled in some details: Whilst the new Commonwealth was upon its creation the Australian colony within the Empire, … the progression from colony to independent nation was an inevitable progression, clearly adumbrated by the grant of such powers as the power with respect to defence and external affairs. Section 61, in enabling the Governor-­General as in truth a Viceroy to exercise the executive power of the Commonwealth, underlines the prospect of independent nationhood which the enactment of the Constitution provided.

It just took a while for the potential to be realised.

1 Griffith, Australasian National Convention, Debates, Sydney, 1891, p 490. 2 New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337 at 444 per Stephen J and 373 per Barwick CJ.

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Original status — a colony with internal sovereignty [5.30] Whatever the long-­term intentions of the drafters, they were aware that in the short-­term they were creating a colony, and this was put into practice by both court decisions and executive practice. The British Parliament soon gave up enacting laws that specifically applied to Australia, but there were still some nineteenth-­century British laws that had been expressed to apply throughout the Empire (“Imperial” Acts), and the High Court still applied the old doctrine that an Australian laws could be invalid for “repugnancy” with those laws. In Union Steamship Company of New Zealand Ltd v Commonwealth [1925] HCA 23; (1925) 36 CLR 130, the Court held that even the grant of power to make laws with respect to “trade and commerce with other countries” (para 51(i)) did not empower the Commonwealth to make a law that was inconsistent with the Merchant Shipping Act 1894 (Imp). As to executive practice, until the 1930s, the Governor-­General was always an English aristocrat, who acted as a diplomatic representative of the British government (to put it less kindly, an Imperial spy sent to watch over the colonials). Australia appointed its first High Commissioner to London in 1910, but still communicated with the British government via the Governor-­General. Britain did not appoint a High Commissioner to Australia until 1936. Australia had no overseas diplomatic representatives apart from the London post; Australians travelling abroad travelled on a British passport and sought the assistance of the British Ambassador or Consul when necessary. When Britain declared war on Germany in 1914, the Prime Minister declared “… when the Empire is at war, so also is Australia”. When the war ended, Ministers from the major colonies attended the peace talks and signed the Treaty of Versailles, but the form was significant; the top signatures were those of United Kingdom Ministers on behalf of the whole Empire, with, as Hudson and Sharp put it, “the signatures of dominion leaders somewhat redundantly added in parenthesis”.3 However, even during this early period there was one sign of Australian independence. Political scientists distinguish between “internal” and “external” aspects of sovereignty. As Heywood explains, whereas: … external sovereignty refers to the state’s place in the international order and therefore to its sovereign independence in relation to other states … internal sovereignty refers to the internal affairs of the state and the location of supreme power within it. An internal sovereign is therefore a political body that possesses ultimate, final and independent authority.4

For a country to be fully independent, it needs both aspects — but to exercise internal sovereignty while still lacking the other is a first step, and it is arguable that Australia took that first step very early in the twentieth century. The great British scholar of constitutions, Lord Bryce, asserted that, in a country governed by a Constitution which limits the 3 WJ Hudson and MP Sharp, Australian Independence; Colony to Reluctant Kingdom, MUP, 1988, p 57. 4 Andrew Heywood, Political Theory; an Introduction, 3rd ed, Palgrave Macmillan, 2004.

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power of the legislature or legislatures, the sovereign is the body which can amend the Constitution5 — and that body in Australia is the Parliament (at least the House of Representatives) and the double majority of the people. For the first two decades of federation, it may have been assumed that the UK Parliament could also amend the Constitution without Australian consent, and for a couple more decades it may have been assumed that they could do so at Australia’s request, but that was never done, and was never likely to happen. The power of Australians to amend their own Constitution was, in practice, exclusive from the beginning, and the theory that the UK Parliament could do it became more implausible with each passing decade. The local amending authority first used its power in December 1906, to amend the beginning and end dates of Senate terms. Even if the people’s involvement in the drafting of the Constitution fails to quite count as an exercise of sovereignty, from 1906 on it is clear that the legal sovereignty of the Representatives and people has been exercised. It has been reinforced since then every time there has been a referendum. If the people (by double majority) vote “Yes” they have authored a new piece of the Constitution; if they vote “No” they have confirmed that they are content enough with the Constitution as approved by earlier manifestations of the people. Internal sovereignty, at least, has been exercised by Australians since very soon after federation.

External sovereignty — the Statute of Westminster and its eventual adoption by Australia [5.40] The contribution of forces from the colonies during World War I fostered a greater desire to be treated as equals by the governments of Canada, Ireland and South Africa, and a greater willingness in Britain to concede equality. At the conclusion of the Imperial Conference of 1926 the leaders endorsed the Report of the Inter-­Imperial Relations Committee, or Balfour Declaration, which stated that the Dominions, as they were now to be called, were: [A]utonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.

As to the position of the Governors-­General, the report stated: It is an essential consequence of the equality of status existing among the members of the British Commonwealth of Nations that the Governor-­General of a Dominion is the representative of the Crown, holding in all essential respects the same position in relation to the administration of public affairs in the Dominion as is held by His Majesty the King in Great Britain, and that he is not the representative or agent of His Majesty’s Government in Great Britain or of any Department of that Government. 5 Studies in History and Jurisprudence (1901), cited by Gummow J in McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at [38].

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It seemed to us to follow that the practice whereby the Governor-­General of a Dominion is the formal official channel of communication between His Majesty’s Government in Great Britain and His Governments in the Dominions might be regarded as no longer wholly in accordance with the constitutional position of the Governor-­General. It was thought that the recognised official channel of communication should be, in future, between Government and Government direct.

The Committee had felt that the question of the status of Imperial legislation needed further consideration. After a further Imperial Conference in 1930, the text of an Act renouncing imperial power was negotiated. It was enacted as the Statute of Westminster 1931. Section 2 provided that the Colonial Laws Validity Act 1865 no longer applied to laws made by the Parliament of a Dominion, and s 4 provided that no future British law would apply to a Dominion “unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof ”. However, there was a faction in Australia, led by the Attorney-­General, JG Latham (later Latham CJ of the High Court), that feared the weakening of the Empire more than they welcomed independence. These people stirred up fears that the Commonwealth would somehow gain more power over the States if Westminster’s power over Australia was lessened,6 so the Statute had two extraordinary provisions applying to Australia: it did not apply to the States, and the main provisions would not apply to Australia until the Commonwealth Parliament adopted them. In the early years of World War II, there was a rather sudden development of independence in Australia. Concerned that the British weren’t sufficiently looking after Australian interests, the government decided to appoint “Ministers” (effectively ambassadors) to Japan and the United States and a High Commissioner to Canada in 1939, and the first appointments were made in 1940. (The Minister to Japan, Latham CJ on leave from the High Court, was recalled to Australia before Japan entered the war.) Although the attitude in 1939 had been “if England is at war, Australia is at war”, Australia issued its own declaration of war on Japan, independently of Britain, in December 1941. On 18–23 February there was the “cablegram war” in which Churchill asked that the 7th Division, returning in convoy from North Africa, should be diverted to Burma, Curtin insisted that it should return to Australia, and Churchill gave in. Having been offered independence by the Statute of Westminster, Australia was now starting to behave like an independent nation. Finally, prompted by concerns that wartime shipping regulations might be inconsistent with Imperial laws, the Parliament passed the Statute of Westminster Adoption Act 1942. It commenced on 9 October 1942 and made the adoption of the Statute retrospective to the outbreak of war on 3 September 1939. It was suggested by Hudson and Sharp that Australia has been independent since the commencement of the Statute of Westminster, on the grounds that the United Kingdom Parliament had given us the power to determine our own future from that date on. With

6 For the States’ opposition to the enactment of the Statute, and JG Latham’s part in stirring it up, see Hudson and Sharp, n 3 above, at 119–21.

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respect, this is not persuasive; it was an offer of independence which was emphatically not accepted for 11 years. They also, however, note that the 1939 decision to appoint Ministers and the separate declaration of war in 1941 are evidence that Australian independence was “acted on and accepted by the international community”.7 It is submitted that this is in fact an appropriate formulation for testing whether a nation is independent,8 and that therefore, Australia achieved executive, legislative and diplomatic independence over a range of dates from late 1939 to 1942. It was, however, still a funny kind of independence.

1941–1986 — The contradictory continent [5.50] Australian independence was a funny kind of independence in three ways: for a short time Australians still carried British passports since there was no such thing as separate Australian citizenship; judicial decisions (except for “inter se” matters) were still subject to appeal to the Privy Council; and the States were still, in some sort of sense, colonies. The lack of a separate Australian citizenship did not last long; after agreement in principle at the British Commonwealth Conference on Nationality and Citizenship in 1947,9 a series of Citizenship Acts were passed in Britain and the Dominions in 1948. The official concept of Australian citizenship was created by the Nationality and Citizenship Act 1948, which commenced, with appropriate symbolism, on Australia Day 1949. (Even so, non-­Australian British subjects and Irish people were not regarded as “aliens” until the 1980s — for the change in the interpretation of “alien”, see 8.40 and 19.170.) As to the court system, Australian courts were not only bound by Privy Council decisions, but for a while the High Court Justices, fed a diet of Dicey at law school, even said that the Court should follow House of Lords decisions10 and English Court of Appeal decisions,11 for the sake of uniform law. The decision of the House of Lords in DPP v Smith [1960] AC 290 changed that. In Parker v The Queen (1963) 111 CLR 610, Dixon CJ, with the approval of the rest of the court, said: Hitherto I have thought that we ought to follow decisions of the House of Lords, at the expense of our own opinions and cases decided here, but having carefully studied Smith’s 7 Hudson and Sharp, n 3 above, at 136. 8 This formulation also finds some support in the writings of Hans Kelsen. Although he generally suggests that the grundnorm is simply a hypothetical norm that we have to presuppose to give the legal order a logical base (a grund), there is a passage in General Theory of Law and State (p 368) in which he says, “If, however, we take into account international law, we find that this hypothetical norm can be derived from a positive norm of this legal order: the principle of effectiveness”. That is, when other nations give diplomatic recognition to a state, it can be confident of its existence as a state with its own legal order! 9 For once, the move to modernise relations was not led only by Canada and South Africa — Mr Calwell, as Minister for Immigration, had played a part too. See David Dutton, Citizenship in Australia: A Guide to Commonwealth Government Records, National Archives of Australia, 2000, Ch 2, at http://guides.naa.gov. au/citizenship/chapter2/index.aspx (viewed Nov 2016). 10 Piro v W Foster & Co (1943) 68 CLR 313. 11 Waghorn v Waghorn (1942) 65 CLR 289.

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case I think that we cannot adhere to that view or policy. There are propositions laid down in the judgment which I believe to be misconceived and wrong … and … which I could never bring myself to accept.

In response to representations made by his Honour to the government, Parliament enacted the Privy Council (Limitation of Appeals) Act 1968, which terminated appeals from the High Court to the Privy Council on federal matters. Ironically, appeals on matters like Parker’s case, which involved a point of common law and a State statute, were still allowed, but seven years later all appeals from the High Court to the Privy Council were terminated by the Privy Council (Appeals from the High Court) Act 1975. The 1968 Act was held by the Privy Council to be a valid “limitation” of appeals under s 74 in Kitano v Commonwealth [1975] UKPCHCA 2; (1975) 132 CLR 231, and the 1975 Act was held valid, as limitation by time, by the High Court in Attorney-­General (Cth) v T & G Mutual Life Society Ltd [1978] HCA 24; (1978) 144 CLR 161. The provision that appeals on “inter se” matters could go to the Privy Council if the High Court granted a certificate was described as “obsolete” in Kirmani v Captain Cook Cruises Pty Ltd (No 2) [1985] HCA 27; (1985) 159 CLR 461. The abolition of appeals from the High Court meant that in matters commencing in State courts involving only common law or State statutes, there were two alternative avenues of appeal, to the High Court or the Privy Council, and the party that lost in the highest State court could choose between them. Such an anomaly could not be allowed to last. There were other anomalies affecting the States. They were, in theory, subject to Imperial laws including the Colonial Laws Validity Act 1865 — though the United Kingdom Parliament did not impose any new laws upon them — and the British government assumed the power to advise her Majesty on the suitability of nominations for State Governors. Anne Twomey has said that “although it is scarcely comprehensible to have an independent sovereign nation which is a federation comprised of polities that remain subordinate to another nation … this is what occurred and cannot be denied because of its peculiarity or offensiveness to modern sensibilities”.12 Certainly, as she demonstrates, it was assumed by the State and Commonwealth Parliaments and by the British government to be so, and they behaved accordingly. With respect, it remains possible to assert that it was not only peculiar and offensive but logically inconsistent with Australia’s national sovereignty, and to suggest that in an appropriate case the High Court should have said so, but no appropriate case arose and it is all in the past now.

Judicial recognition of Australian independence [5.60] In the 1960s and 1970s, the Court had started to made it clear that it recognised that Australia was independent. In Bonser v la Macchia [1969] HCA 31; (1969) 122 CLR 177 Barwick CJ said, at 189, “At some point at or since the passage of the Statute of Westminster (Imp) in 1931 … Australia did become an independent nation state” — and 12 Anne Twomey, The Constitution of New South Wales, Federation Press, 2004.

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therefore took over control of the territorial sea from the Imperial authorities. In Barton v Commonwealth [1974] HCA 20; (1974) 131 CLR 477, a case about the Commonwealth government’s power to request the extradition of fugitives from foreign countries, Mason J said at 498, “[t]he Constitution established the Commonwealth of Australia as a political entity and brought it into existence as a member of the community of nations”, and Jacobs J said at 505, “[i]t is in my opinion within the executive power of the Australian Government as the government of a sovereign state to communicate in such terms as it thinks fit with the Government of Brazil unless by legislation the power of making such a communication is taken away from it.” Although s 2 of the Constitution provide that the Governor-­General exercises “such powers and functions of the Queen as her Majesty may be pleased to assign to him”, the decision in Barton made it fairly clear that with Australia’s emergence as an independent state, the Governor-­General in fact has the same powers within the Commonwealth’s sphere of government in Australia as the Queen has in Britain. In 1984, the Queen issued new Letters Patent in relation to the Governor-­General’s office, containing no specific royal instructions, in recognition of this fact. (The fact that the Governor-­General exercises almost no powers except on the advice of Ministers is discussed in Chapter 9, and the division of “prerogative” powers between the Governor-­General and the State Governors — ie, between the Commonwealth and State governments — is discussed in Chapter 10.) Then in New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337 (the Seas and Submerged Lands case, another case about control of the territorial sea and continental shelf), all Justices held that Australia was now a sovereign state. Three Justices (McTiernan J at 375, Stephen J at 445 and Murphy J at 501) simply said it was a present fact; as McTiernan J put it, “Australia is a state in the eye of international law.” The other four said at least something about when the transition to independence had happened. After noting that the Constitution had given Australia “the prospect of independent nationhood” (above, in 5.20) Barwick CJ said, at 373 “That prospect in due course matured, aided in that behalf by the Balfour Declaration and the Statute of Westminster and its adoption”. Gibbs J, at 408, said that Australia had remained a colony “until after the First World War — probably at least until after the Imperial Conference of 1926”. Mason J at 469 said “[w]hether [the Commonwealth’s acceptance as an international persona] was achieved on federation or at some time before the Balfour Declaration, the Statute of Westminster 1931 and the Statute of Westminster (Adoption) Act 1942 (Cth), is not of present importance”. Jacobs J at 498 said “[l]egal recognition [of independence] came through the Statute of Westminster 1931 and its later adoption by Australia”. Even after the Seas and Submerged Lands case, the High Court seemed reluctant to draw the conclusion that Australia, even at the federal level, was completely free from the possibility of subjection to British laws. In Bistricic v Rokov [1976] HCA 54; (1976) 135 CLR 552, an old, and now quite inappropriate, limit on damages in shipping cases imposed by the Merchant Shipping Act 1894 (Imp) was held to apply in Australia, even though the limit had been increased in England. The High Court reached this result simply by saying that there was no suggestion that the British Parliament had intended 64

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the amendment to apply to Australia. Apart from Murphy J,13 the judges did not address the question as to whether the British Parliament could still amend laws that applied in Australia. For a while, traditionalist lawyers and politicians continued to say that, despite the passage of the Statute of Westminster, the British Parliament could, “in theory”, still make laws for Australia and could even amend the Constitution. However, emboldened by the fact that the High Court had at last recognised Australia’s sovereignty, and under pressure to get rid of the absurdity of two parallel final courts of appeal, the States and the Commonwealth at last started to work together to remove the last vestiges of colonialism. It only took another sunspot cycle for them to agree.

The two Australia Acts 1986 [5.70] After 11 years of negotiation,14 the Commonwealth and States agreed on a package of laws. The States would each enact a law requesting, and consenting to, the enactment of two Commonwealth laws. One of the Commonwealth laws would be the Australia Act 1986 (Cth), enacted under para 51(xxxvi), which as noted in 5.20, had been designed to ensure that there would be no need to ask the British Parliament for help in tidying up our constitutional arrangements. As doubts had been raised about the effectiveness and scope of that paragraph, the other Commonwealth law was the Australia (Request and Consent) Act 1985 which requested, and consented to, the enactment of a British version of the Australia Act 1986, identical but for differences in the enacting words and the commencement provision. All of this chain of Acts was duly enacted through 1985, and the Queen signed the proclamation of commencement in Canberra on 3 March 1986. The High Court has since held that the doubts about para 51(xxxviii) were erroneous, and that the Commonwealth version of the Act is quite sufficient by itself (see below). However, the concurrent passage of the British version preserved the “comity” of British and Australian laws; it made it clear that it was not just that Australia was unilaterally denouncing any remaining British pretensions to sovereignty over Australia, Britain was renouncing them too. The British renunciation is seen most clearly in s 1: Termination of power of Parliament of United Kingdom to legislate for Australia No Act of the Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to the Commonwealth, to a State or to a Territory as part of the law of the Commonwealth, of the State or of the Territory.

Section 3 repealed the Colonial Laws Validity Act 1865 in respect of the States, s 7 provided that the Queen would be advised as to a State (especially as to the appointment of a Governor) only by the Premier of the State, and s 11 terminated appeals to the Privy 13 Murphy J held that Australia had become independent at federation and that Imperial Acts had then simply ceased to apply. This was so far to the opposite extreme from the standard doctrine that it failed to attract any significant support. 14 Described in all its detail in Anne Twomey, The Chameleon Crown; the Queen and Her Australian Governors, Federation Press, 2006.

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Council. Other provisions dealing with extra-­territorial legislative power and “manner and form” provisions will be discussed in Chapter 27. All anomalies were all abolished — Australia was now independent, at both federal and state level, without any qualifications. The reservations as to the use of para 51(xxxviii), noted above, were dismissed by the High Court within a few years. In Port Macdonnell Professional Fishermen’s Association Inc v South Australia [1989] HCA 49; (1989) 168 CLR 340, the validity of the Coastal Waters (State Powers) Act 1980, also enacted by the referral procedure under that paragraph, was at issue. It had been argued that the words “the exercise within the Commonwealth” meant that laws under the paragraph could not have extra-­territorial operation, but in a joint judgment their honours said: The primary subject to which par (xxxviii) was addressed was the perceived need to ensure that legislative powers necessary for the purposes of the new nation could be exercised locally notwithstanding that, prior to federation, they were beyond the competence of local legislatures. In that context, there is no valid reason why the words “within the Commonwealth” should be given a more constrictive operation than that which flows from their ordinary grammatical construction. On that ordinary grammatical construction, the words refer to the location of the exercise of legislative power of the designated kind and not to the area of operation of the laws made by the exercise of such power.

As to the fact that the paragraph was being used to give the States powers they may have previously lacked, their Honours said: … it is clear that one of the functions which par (xxxviii) was intended to serve was that of plugging gaps which might otherwise exist in the overall plenitude of the legislative powers exercisable by Commonwealth and State Parliaments under the Constitution. … That being so, par (xxxviii) can properly be seen as representing both actual and potential enhancement of State legislative powers — actual in that it confers, by implication, power upon the Parliament of a State to participate in the legislative process which the paragraph requires, namely request (or concurrence) by a State Parliament and enactment by the Commonwealth Parliament; potential in that the State Parliaments are potential recipients of legislative power under a law made pursuant to the paragraph.

The above dicta made it pretty clear that the Commonwealth version of the Australia Act 1986 was valid. In Sue v Hill [1999] HCA 30; (1999) 199 CLR 462, Gleeson CJ, Gummow and Hayne JJ observed, at [61]: The Australia Act was enacted before s 51(xxxviii) had been construed in Port MacDonnell Professional Fishermen’s Assn Inc v South Australia. Apparently out of a perceived need for abundant caution, legislation of the Westminster Parliament was sought and passed as the [Australia Act 1986 (UK)].

The validity of the Australia Act was not challenged in Attorney-­General (WA) v Marquet [2003] HCA 67; (2003) 217 CLR 545, but it was necessary to discuss its effect. Before doing so, Gleeson CJ, Gummow, Hayne and Heydon JJ first observed at [66]–[67]: 66

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… constitutional norms, whatever may be their historical origins, are now to be traced to Australian sources. … … in 1986, pursuant to a reference of power under s 51(xxxviii) of the Constitution, the federal Parliament enacted the Australia Act in order, as its long title said, “to bring constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation”. The Australia Act, too, is to be traced to its Australian source — the Constitution of the Commonwealth. The Australia Act takes its force and effect from the reference of power to the federal Parliament, made under s 51(xxxviii), and the operation that the Act is to be given as a law of the Commonwealth in relation to State law by s 109 of the Constitution.

It therefore seems that no recourse to the existence of the British version of the Act is needed to solve Australian problems, but it may be comforting to know that there is no Act on the books of the former Imperial power still claiming to be able to impose laws on Australia.

5.3 Why is the Constitution binding now, and who is the sovereign? General acceptance of a local source of authority and the sovereignty of the people [5.80] Despite the involvement of the people in the drafting and ratification of the Constitution, in the early years of federation it was taken for granted that the Constitution was binding because it was enacted by the British Parliament, and that Parliament had sovereign power over the whole Empire. As Dixon CJ said in a law journal article: It is not a supreme law purporting to obtain its force from the direct expression of a people’s inherent authority to constitute a government. It is a statute of the British Parliament enacted in the exercise of its legal sovereignty over the law everywhere in the King’s dominions.15

However, as Australia became more independent, and as even English writers like HLA Hart suggested that the rule of recognition in an ex-­colony could shift from the sovereignty of Parliament to a locally-­based rule,16 this theory started to seem antiquated. In Bistricic v Rokov (1976) 135 CLR 552, Murphy J stated that: “The original authority for our Constitution was the United Kingdom Parliament, but the existing authority is its continuing acceptance by the Australian people.” He repeated this “heresy” in Robinson v Western Australian Museum [1977] HCA 46; (1977) 138 CLR 283, China Ocean Shipping Co v South Australia [1979] HCA 57; (1979) 145 CLR 172 and Kirmani v Captain Cook Cruises Pty Ltd (No 1) [1985] HCA 8; (1985) 159 CLR 351. In the latter case, the majority found, by 15 Sir Owen Dixon, The Law and the Constitution (1935) 51 LQR 590 at 597. 16 HLA Hart, The Concept of Law, Clarendon Law Series (OUP), 1961, at 117.

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applying what Deane J called “traditional legal theory”, that the Commonwealth Parliament had had power to at last repeal the Merchant Shipping Act 1894, but his Honour added: It may, however, be necessary at some future time to consider whether traditional legal theory can properly be regarded as providing an adequate explanation of the process which culminated in the acquisition by Australia of full “independence and Sovereignty”.

After a few years, some judges started stating an alternative theory. In Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 (“ACTV”) Mason CJ said, at [37]: Despite its initial character as a statute of the Imperial Parliament, the Constitution brought into existence a system of representative government for Australia in which the elected representatives exercise sovereign power on behalf of the Australian people. Hence, the prescribed procedure for amendment of the Constitution hinges upon a referendum at which the proposed amendment is approved by a majority of electors and a majority of electors in a majority of the States (s 128). And, most recently, the Australia Act 1986 (UK) marked the end of the legal sovereignty of the Imperial Parliament and recognized that ultimate sovereignty resided in the Australian people.

None of the other judgments in ACTV, or in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 (“News”) , decided at the same time, went so far, but in their reasons for finding that the Constitution protected the freedom of political debate nearly all Justices emphasised the role of the people under s 128, and Deane and Toohey JJ said, in News at [20], that “the legislative, executive or judicial powers of government … are ultimately derived from the people themselves”. In Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, Deane J stated, at [13], that the Constitution’s present legitimacy “lies exclusively in the original adoption (by referenda) and subsequent maintenance (by acquiescence) of its provisions by the people”. In McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, McHugh J said at [22], “[s]ince the passing of the Australia Act (UK) in 1986, notwithstanding some considerable theoretical difficulties, the political and legal sovereignty of Australia now resides in the people of Australia” (and he cited Mason CJ’s remarks in ACTV, above). Before his appointment as Chief Justice, French J, as he then was, compared the situation to the cosmological theory that at the Big Bang all the physical forces were unified and only separated out as the universe expanded. So, he suggested: [O]ne might say that the exercise of legal sovereignty by the British Parliament in passing the Constitution Act was so closely connected with and dependent upon the consent of the people of the colonies, as they were understood at that time, that [the people’s] authority was, from the outset, a principle informing the Constitution and becoming more pronounced as Australia’s legal independence from Britain evolved.17 17 Justice RS French, “The Constitution and the People”, in Robert French, Geoffrey Lindell and Cheryl Saunders, (eds), Reflections on the Australian Constitution, Federation Press, 2003.

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Though there has been no case in which a majority has agreed that the Constitution is binding because of its source in the sovereignty of the people, it now seems to have the support of most, and possibly all, of the High Court.

Qualifications to the local source of authority/sovereignty of the people theory [5.90] However, the idea of the sovereignty of the people needs to be qualified in two ways. First, even as McHugh J, in McGinty, accepted Masons CJ’s earlier dictum from ACTV, he emphasised that “the instrument by which the Australian people have consented to be governed” is “a statute enacted by the Imperial Parliament … containing the terms of the Constitution”. That is, the Constitution is still, in form, s 9 of the Commonwealth of Australia Constitution Act 1900 (Imp); in 70 years of effective independence and 40 years since our independence was recognised by the High Court, we have done nothing (because our “leaders” in Parliament have proposed nothing) to replace the British preamble, enacting words and covering clauses with an American-­style declaration that, “We the People do ordain and establish this Constitution”. The influence on the interpretation of the Constitution of the fact that it is part of a British statute will be discussed in the next chapter. Secondly, nothing is decided by a simple majority vote of the people, or even of the adult citizens. As Gummow J pointed out in McGinty, above at [66]–[68]: In Australia, [the] ultimate authority, to change the Constitution itself, is reposed by s 128 in a combination of a majority of all the electors and a majority of the electors in a majority of States. But the initiative to place before the electors any proposed change is vested in the Parliament and a particular mechanism is provided in s 128 to resolve disagreement between the Houses as to the passage of a proposed law for the alteration of the Constitution. Special provision is made in the final paragraph of s 128 in respect of proposed alterations (i) diminishing the proportionate representation of any State in either House, or the minimum number of representatives of a State in the House of Representatives, (ii) altering the limits of a State, or (iii) “in any manner” affecting the provisions of the Constitution in relation to a State. In such cases, the proposed law effecting the change is not to become law unless approved by the majority of electors voting in the State concerned. It is to be observed that, in significant respects, s 128 does not provide for an equality of voting power at referendums. A negative power, in other words a power to reject changes, may be exercised by a minority of the total electors of the Commonwealth if that minority is geographically distributed such as to constitute a majority in a majority of States. Again, the electors in a particular State must approve a proposed law affecting that State in the ways outlined above. Thus, a majority of electors in that one State may resist a change otherwise approved by a majority of electors in a majority of States. In both cases the value of each elector’s vote is not equal in the sense for which the plaintiffs contend. Broad statements as to the repositioning of “sovereignty” in “the people” of Australia, if they are to be given legal rather than popular or political meaning, must be understood in the light of the federal considerations contained in s 128.

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It is suggested, with respect, that this is correct. If we accept, with Gummow J and Lord Bryce, that the legal sovereign is the body that can amend the Constitution, then this is, as explained in 6.10, (the majority in the House of Representatives) + (the majority of all the electors) + (the majority of the electors in a majority of the States). However, since the members of the House of Representatives are elected by the people, to say as a political slogan that the people are sovereign is correct in a general sense, as long as we remember, when stricter legal analysis is required, that “the people” needs to be expanded into the formula stated above. That suggests another limitation that needs to be applied if the word “sovereignty” is to be used at all in a modern democracy. As used by earlier writers, a sovereign was one person with ongoing, day-­by-­day, supreme power, who issued commands which everyone else continually and habitually obeyed, on threat of punishment. If the people are sovereign in a modern democracy, their power is only exercised occasionally. A realistic account would be as shown in Figure 5.1 — in day-­to-­day life, the Parliament, and the Ministers who sit in the Parliament, make the rules and we are expected to obey them. Once every two-­and-­a-­half to three years, we the people (ie, the adult, enrolled, non-­ disqualified citizens) exercise our political sovereignty by voting for a new Parliament, possibly resulting in a change of government. More rarely, when an alteration to the Constitution is proposed by at least the House of Representatives, we the people exercise our share in legal sovereignty by approving or disapproving the proposal. The power to command is not just exercised from the top down in a “chain of command”; it goes round in a circle or two.

The Constitution

Commonwealth Parliament

State Parliaments

Elections

Constitution Alteration Bill

Referendum

Laws

The People Voters Minors, Aliens etc

Figure 5.1: The circles of command in a constitutional democracy 70

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Does the source of authority even matter? [5.100] It could even be suggested that all the above talk of sources of legitimacy and discussion of “who is the sovereign” is outside the field of discourse of law, or at least of what the Austrian legal philosopher Hans Kelsen would have called “legal science”. According to Kelsen,18 if you are a legal scientist, practising the “pure science of law”, you assess whether: ■ ■ ■

a regulation is valid by checking that it is validly promulgated under an Act, then an Act is valid by checking that it is validly enacted under the Constitution, the current Constitution is valid by checking that it was validly amended under the terms of an earlier Constitution

and for completeness you have to assume that the original Constitution was valid by assuming that it is derived from a “basic norm” (grundnorm) that essentially says “the legal system is to be obeyed”. The grundnorm is not derived from anything; it is a presupposition that anyone working in the system must presuppose, but a condition of making the presupposition is that one does a brief reality check — are the norms of the system “by and large” (im grossen und ganzen), effective? (Or, as suggested in footnote 8 above, you check that your legal order is recognised by other legal orders.) The “legal scientist” — who is an obedient, unquestioning sort of person who values order and regularity above abstract justice19 — does not ask whether the system is legitimate against some set of moral or political norms; it is enough that it works and keeps the peace. The Australian legal system under the Constitution passes this test pretty well. The Constitution set up the organs of the federal government and changed the role of the previous colonial governments over a century ago. The Commonwealth Parliament and executive and the federal courts, especially the High Court, simply would not be there without it, and without its acceptance by everyone who participates in the system, from the Prime Minister and High Court judges to voters. It has been amended a few times under its own amendment provision, so its validity depends on the assumption of validity of the original Constitution. Now that we have got rid of the niggling idea that “in theory” the British Parliament could amend or repeal it, that may be, to the Kelsenian “legal scientist”, enough. However, those of us who believe that even a lawyer should ask questions about political legitimacy can feel some reassurance from the fact that the Constitution also has a legitimate basis in democratic theory.

18 Hans Kelsen, General Theory of Law and State, 1946, p 46; Pure Theory of Law, pp 208–14. Extracted in many of the standard Jurisprudence texts, eg, Howard Davies & David Holcroft, Jurisprudence; Texts and Commentary, Butterworths, 1991. 19 Lon Fuller noted, in (1958) Yale LJ 631, at 632 that just once, in an untranslated German paper, Kelsen himself admitted “that his whole system might well rest on an emotional preference for the ideal of order over that of justice”.

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As to understanding the interpretation of the Constitution, the approach of a “legal scientist” is quite sufficient to explain much of Australian Constitutional law, such as the “stream cannot rise above its source” (see 6.20) doctrine and the need for the Commonwealth to have a “head” of power (see 17.20). But since the High Court began to recognise the Australian and popular basis of the Constitution, it has been more ready to find implied principles like the freedom of political discussion (Chapter 14) and a presumption in favour of universal voting rights (Chapter 15). One could possibly imply them from the text even by simply reading it as a section of a British Act, but the implied principles clamour for recognition more loudly on the assumption that this is a document with its source in the approval of the people. In the end, it seems that arguments about the source of authority and the sovereignty of the people do matter, and even a “legal scientist” should take note of them.

5.4 Other constitutional consequences of independence — modern attitudes replace colonial presumptions [5.110] There are other ways in which a greater confidence in our independent nationhood affected Australian law and the interpretation of constitutional terms. They are discussed later in the book as follows: ■

■

■

■

the meaning of “aliens” in para 51(xix) has changed to mean anyone who is not an Australian citizen instead of anyone who is not a British subject — see 8.40 and 19.170; similarly, citizens of other Commonwealth nations are now regarded as citizens of a “foreign power” and are thus ineligible for election to the Commonwealth Parliament — see 15.100; the traditional British use of the phrase “the Crown” to refer to the whole of the operations of government, rather than just the offices of the Queen, a Governor or the Governor-­General, has been discouraged — see 9.60; and the High Court now tells us that the writs referred to in para 75(v) (mandamus and prohibition), once referred to as “prerogative writs”, should be known as the “constitutional writs” to emphasise their source in the Constitution rather than their English origins — see 11.60 (fn 4).

FURTHER READING WJ Hudson and MP Sharp, Australian Independence; Colony to Reluctant Kingdom, MUP, 1988 Anne Twomey, The Chameleon Crown; the Queen and Her Australian Governors, Federation Press, 2006 72

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Justice Robert S French, “The Constitution and the People”, in Robert French, Geoffrey Lindell and Cheryl Saunders (eds), Reflections on the Australian Constitution, Federation Press, 2003 George Winterton, “The Acquisition of Independence”, Ch 3 of French et al, above Geoffrey Lindell, “Further Reflections on the Date of the Acquisition of Australia’s Independence”, Ch 4 of French et al, above R D Lumb, “Fundamental Law and the Processes of Constitutional Change in Australia” (1978) 9 Fed L Rev 148 Geoffrey Lindell, “Why is Australia’s Constitution Binding?: the Reasons in 1900 and Now, and the Effect of Independence” (1986) 16 Fed L Rev 29

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PART B GENERAL PRINCIPLES OF CONSTITUTIONAL LAW AND LITIGATION Chapter 6. T he Constitution as Supreme Law, and an Outline of its Provisions Chapter 7. Constitutional Litigation Chapter 8. G  eneral Principles of Interpretation of the Commonwealth Constitution

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The Constitution as Supreme Law, and an Outline of its Provisions For readers who have not previously read the whole 11,000 words of the Constitution, this would be a good time to start examining it, noting the features discussed in the following sections.

6.1 Method of amendment [6.10] As noted in 4.50, the drafters adopted the Swiss requirement for amendments (“alterations”, in the language of s 128) to be approved by a double majority at a referendum. However, under s 128 only the Parliament can propose an alteration. An alteration Bill can be passed by both Houses, or if it is passed by one House but rejected by the other, it can be passed by the first House again after three months, and then the Governor-General “may” put it to a referendum. Since it is generally agreed that the Governor-General’s power here is to be exercised on the “advice” of the Cabinet, this means in practice that a Bill passed twice by the House of Representatives will be put to a referendum, but if a Bill has been passed twice by the Senate but rejected in the Representatives, Cabinet is unlikely to recommend to the Governor-General that a referendum should be held. Thus, in practice the amending authority is (majority in the House of Representatives) + (majority of all the electors) + (majority of the electors in a majority of the States). It is because the Constitution cannot be amended (and an inconvenient High Court decision therefore avoided) by an ordinary Act of Parliament that it is a supreme law, with the consequences spelled out below, and which resonate through the rest of the book. There is a special protection for the interests of the States in the fourth paragraph of s 128. A proposed alteration that reduces the proportionate representation of any State, or reduces the minimum number of representatives (which in practice affects only Tasmania) or which would directly alter the limits of a State (ie, without going through 76

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the procedure prescribed in ss 123–124) must, in addition to the general rules above, be approved by a majority in the affected State.

6.2 The Constitution as supreme law (the source, above which no stream can rise) [6.20]The Constitution provided in para 76(i) that the High Court could be given jurisdiction over “any matter arising under the Constitution or involving its interpretation”, and when the High Court was established by the Judiciary Act 1903 (Cth) that jurisdiction was duly conferred by s 30. The first case to be decided, Dalgarno v Hannah [1903] HCA 1; (1903) 1 CLR 1, involved an examination of the High Court’s own powers under s 73 of the Constitution. The first challenges to the validity of State laws occurred in 1904 in D’Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91, where a State law was held not to apply to a Commonwealth officer, and Peterswald v Bartley [1904] HCA 21; (1904) 1 CLR 497, where the State law was held to be invalid under s 90. The validity of a Commonwealth law was challenged (unsuccessfully) in Robtelmes v Brenan [1906] HCA 58; (1906) 4 CLR 395. In all these early cases there was no discussion of the Court’s power to declare laws invalid; it was taken for granted that the Constitution was a supreme law and that any purported Act of Parliament, executive action, or judicial action inconsistent with the Constitution would be invalid. Then, in a number of cases dealing with supposed grants of executive power by legislation (Heiner v Scott [1914] HCA 82; (1914) 19 CLR 381 and Eastern Extension Australasia & China Telegraph Co Ltd v Federal Commissioner of Taxation [1923] HCA 62; (1923) 33 CLR 426) and with the binding force of industrial awards (Victorian Stevedoring & General Contracting Company Pty Ltd v Dignan [1931] HCA 34 (1931) 46 CLR 73), the Court introduced the metaphor “the stream cannot rise above (or ‘higher than’) its source”. It took until 1951 for the court to make an express statement of its adoption of the Marbury v Madison principle. Australian Communist Party v Commonwealth (Communist Party case) [1951] HCA 5; (1951) 83 CLR 1 involved the Party’s challenge to the Communist Party Dissolution Act 1950. The Act included a number of recitals (the “whereas” parts), that declared, as Dixon J summarised them: The fifth says that the [Communist Party] engages in activities designed to bring about the overthrow or dislocation of the established system of government of Australia and the attainment of economic, industrial or political ends by force, violence, intimidation or fraudulent practices. The sixth recital contains a statement that the body is an integral part of the world communist revolutionary movement which, put shortly, engages in espionage, sabotage, treasonable or subversive activities and activities like those imputed in the previous recital … the eighth recites, in effect, that activities or operations of or encouraged by the Australian Communist Party and by its officers, members and others, being communists, are designed to cause by means of strikes and stoppages of work, and have so caused, dislocation, disruption or retardation of production or work in vital industries.

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If the Act had provided that a body or person who was proved to have engaged in the recited activities was liable to dissolution or penalties, it would most probably have been valid under at least the “preservation of the Constitution” power discussed in Chapter 19 — but it simply recited them as matters of fact. By 6:1 the Court declared the Act invalid. Dixon J’s reasons, based on the rule of law, for reaching this conclusion are discussed at 11.150. Fullagar J referred to the “stream cannot rise higher than its source” metaphor and then reasoned, at [18]–[19]: It is only because the legislative power of the Commonwealth Parliament is limited by an instrument emanating from a superior authority that [a question of validity] arises in the case of the Commonwealth Parliament. If the great case of Marbury v Madison [1803] USSC 12; (1803) 1 Cr 137 (2 Law Ed 118) had pronounced a different view, it might perhaps not arise even in the case of the Commonwealth Parliament; and there are those, even to-day, who disapprove of the doctrine of Marbury v Madison … But in our system the principle of Marbury v Madison [1803] USSC 12; (1803) 1 Cr 137 (2 Law Ed 118) is accepted as axiomatic, modified in varying degree in various cases (but never excluded) by the respect which the judicial organ must accord to opinions of the legislative and executive organs. … How, if at all, is the position affected by the recitals contained in the preamble? In the case of a legislature of limited powers, can such recitals be used to bring within power a privilegium [a special law] which cannot be related by anything that appears on its face to any power of that legislature? One thing seems very clear to me, and that is that no declaration containing allegations in favour of, or against, the object of the privilegium could be conclusive for or against that object … Parliament cannot recite itself into a field the gates of which are locked against it by superior law.

When his Honour referred to the Constitution as “an instrument emanating from a superior authority” in this 1951 case, the superior authority in his mind was, presumably, the UK Parliament. However, as discussed in Chapter 5, especially 5.80, the superior authority would now be seen as the people of Australia.

6.3 A tour of the Constitution; basic structure and features The Imperial preliminaries: Preamble, enacting words and “covering clauses” [6.30]Though the Constitution was drafted by Australians and ratified by referendum by Australians, it had been designed from the start to be enacted by the Imperial Parliament. So the Constitution was drafted as a part of an Imperial Act — not appended as a Schedule or Attachment as one might expect, but simply included as, in form, the content of section 9. The earlier sections had been referred to as the “covering clauses” during the debates (following parliamentary practice in which the things which become sections of an Act are referred to as clauses of a Bill until they are enacted), and the phrase 78

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is still used, slightly incorrectly, as a convenient way of distinguishing the preliminary sections of the Imperial Act from the sections in the main body of the Constitution. Most of the covering clauses are purely transitional, or facilitative (for example, “it shall be lawful for the Queen to proclaim”, “the Commonwealth shall be established”, “the Federal Council of Australia Act 1885 is hereby repealed”) but some have a permanent effect. Clause 2 provides that provisions referring to the Queen (Queen Victoria, at the time of drafting) apply to Her heirs and successors in the sovereignty of the United Kingdom. Clause 7 provides some definitions of “the Commonwealth”, “the States”, and “original States” — whose meanings would all be pretty obvious anyway. Clause 5 provides that the Constitution, and Commonwealth Acts, shall be binding on “the courts, judges and people of every State and every part of the Commonwealth”. The same effect would probably follow even without the clause, simply because the institutions of government would not exist without the Constitution, as discussed in 5.100. Many contributors to the republic debate in 1999 referred to all of the preliminary material as “the preamble” or “the covering clauses”, but technically the preliminary material consists of three elements: a preamble (“whereas the people of the colonies … have agreed”), the standard British enacting words (“be it therefore enacted …”), then the eight numbered covering clauses culminating in section, or “clause”, 9, which implements the Constitution. The republic debate was also somewhat bedevilled by the suggestion that we could not add a new preamble because it would conflict with the existing one.1 However, the existing one is not, in fact, a preamble to the Constitution itself; it is a preamble to the Imperial Act, basically saying “We in Westminster have enacted this because the people of the colonies have asked us to”. Likewise, the enacting words do not enact the Constitution specifically; they enact the Act. The closest thing to words of enactment of the Constitution are the words in clauses 4 (“the Constitution of the Commonwealth shall take effect, on and after the day appointed [under clause 3]”) and 9 (“The Constitution of the Commonwealth shall be as follows:”). Since it is now accepted that Australia is an independent nation (see Chapter 5), and that the formerly-Imperial Parliament cannot interfere with the Constitution that it enacted for us, these words can now be seen as words of grant; the Constitution is ours, and, under the s 128 procedure, we can do anything we like with it. (If we do add a proper “We the people” type of preamble at some stage, it would make sense to also restate the definitions and the supreme law clause within the body of the Constitution; then it would be even more clear that it stands by itself, independently of its enactment by the once-Imperial Parliament.)

Transitional, permanent and dual-role sections [6.40]The Constitution is generally drafted in clear and straightforward language, except for the fact that the traditional deferential language — Bagehot’s “dignified part” of the 1 For example, George Winterton and Mark McKenna, “Two Preambles is Stretching the Mateship”, The Australian, 22 April 1999, p 13.

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Constitution, as noted in 2.80 — is used to describe executive power. (Helen Irving’s claim2 that the Constitution “does not mean what it says” and “does not say what it means” is particularly true in this respect.) This is discussed in Chapter 9. Otherwise, reading it as a “how things work now” guide is made harder than it should be because, while most of it is declaring how things are to be run permanently, there are many transitional sections that applied only for the first few years, and some sections that combine a transitional provision with a grant of power to the Parliament to change things in the future. There is a transitional section (s 26) dealing with the membership of the first Parliament, a few (para 52(ii) and ss 69, 70, 84 and 85) dealing with the transfer of selected departments of the colonial public service to the Commonwealth, and fully a quarter of the sections of Chapter 4, Finance and Trade, deal with the procedure by which the Commonwealth was to take over customs revenue but pay some of it back to the States to save them from financial disaster while they found new sources of revenue. This all makes fascinating reading as a manual of “how to get a federation started”, but for those who do not want such a manual it is now just constitutional clutter. Then there are the sections that have a dual, transitional-plus-permanent role. There are some 20 of these sections, featuring the phrase “until the Parliament otherwise provides”. The first example (and one of the least obscure) is s 3, which says that the Governor-General shall be paid a salary “which, until the Parliament otherwise provides, shall be ten thousand pounds”. Clearly enough, this is doing two things — providing an interim level of salary until the Parliament decides to change it, and giving the Parliament the power to change the amount. In case the implied grant of power to make the change was not blindingly obvious, the drafters included para 51(xxxvi) — a power to make laws “with respect to matters in respect of which this Constitution makes provision until the Parliament otherwise provides”. Another example is s 97, which provides that colonial/ State audit laws are to apply to the receipt and expenditure of money by the Commonwealth until the Parliament otherwise provides. Clearly the Commonwealth is being given power to enact its own audit laws; one might expect a provision that there must be laws providing for audit, but it was assumed that Parliament would enact something. In a few of these sections, the transitional provision dominates the text so much that the fact that there is a permanent effect can be almost obscured. Even an intelligent beginner could well read ss 30, 31 and 34 without noticing that, as well as making provisions for the conduct of the first elections, they are granting the Parliament significant powers over electoral law. They will be discussed in Chapter 15.

Limits on the legislative powers of the Commonwealth and the States — Federal division of powers [6.50]The Constitution “divides power” between the Commonwealth and States — which means it imposes limits on both. It gives the Commonwealth Parliament a list of legislative topics, and leaves the residue to the States. This means that the Commonwealth is 2 Helen Irving, Five Things to Know About the Australian Constitution, Camb UP, 2004, chs 1 and 2.

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described as a government of limited powers; as discussed in Chapter 17, the Commonwealth Parliament has to have a “head of power” before it can enact a valid law, and this means that there is much case law, to be discussed in Chapters 18–21, on whether Commonwealth laws are valid. However, as also shown in Chapter 17, the grants of power are interpreted broadly and the Commonwealth can make laws in a very wide field. There are also some prohibitions that apply specifically to the Commonwealth, discussed in Chapters 22–24. The emphasis on the Commonwealth being a government of limited powers may suggest that the States have an easy time of it under the Constitution. However, it causes at least as much trouble for the States as it does for the Commonwealth. As noted in Chapter 3, Sir Samuel Griffith claimed in 1890 that the colonies “have become practically almost sovereign states”. And then the colonies federated, changed their name from colonies to the more important-sounding “States” — and ceased at that moment to be anything like sovereign states! Though ss 106 and 107 provide that their pre-federation Constitutions and their powers “continue”, each section makes it clear that the continuation is subject to the Constitution, and the Constitution reduces their powers substantially. Some legislative powers are granted exclusively to the Commonwealth; since these powers include the power to impose customs and excise duties (s 90), previously the main source of revenue of the colonies, the States were born poor. The Commonwealth’s other legislative powers may be concurrent with continued State powers, but in the case of inconsistency between them the Commonwealth law prevails (s 109). In order to ensure the economic and social unity of the new nation, s 92 provided that trade, commerce and intercourse between the States should be free and s 117 prohibits discrimination against persons on the basis of their State of residence; these prohibitions limit the States much more than they affect the Commonwealth. The States are also affected by the inferences more recently drawn from the Constitution, of an implied freedom of political communication and the need for the State judiciaries to remain independent and impartial. All of these limits on State powers will be discussed in Part E. Though Fullagar J was discussing Commonwealth legislative authority in the above quote from the Communist Party case, it is clear that the principle applying to the States is no different. Their own Constitution Acts indeed predated the Commonwealth Constitution, which did not change the general doctrines of constitutional law affecting State parliaments (discussed in Chapter 27) or the internal structure of State governments (subject to the recent development of the Kable doctrine, discussed in Chapter 34). However, as mentioned above, the Constitution took much power away from the States. It is to no avail for the States’ lawyers to argue, as they have sometimes done, that they are “senior” to the Commonwealth; as Barwick CJ explained in New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337 at p 372: The Australian Constitution was an Act of the Imperial Parliament. Covering cl 9 gave effect to the agreement of the people of the Australian colonies to unite in one indissoluble union. It conformed to the wishes of those people by enacting a federal constitution. A new colonial polity was brought into existence … On the passage of the Imperial Act, those

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colonies ceased to be such and became States forming part of the new Commonwealth. As States, they owe their existence to the Constitution which, by ss 106 and 107, provides their constitutions and powers referentially to the constitutions and powers which the former colonies enjoyed, including the power of alteration of those constitutions. Those constitutions and powers were to continue by virtue of the Constitution of the Commonwealth. But those constitutions and the powers of the States were subjected to the Australian Constitution. They were not the same as they had been before federation. The constitutions were continued “subject to this Constitution”. (emphasis added)

That is, when they breach provisions of the Commonwealth Constitution, the States, just as much as the Commonwealth, are liable to have their supposed laws declared invalid by the High Court. In short, there is no such thing as a sovereign legislature in Australia; the Constitution created a nation in which the powers of all legislatures are limited and the laws they enact are subject to judicial review of their validity. The States do have their own Constitutions, generally called Constitution Acts, but they do not generally have supreme law status. For this reason, the discussion of litigation and principles of interpretation in Chapters 7 and 8 deal only with the Commonwealth Constitution — the supreme and binding Constitution of the nation, which limits the powers of the Commonwealth and the States. (The rare occasions on which State Parliaments are also bound by the State Constitution Acts will be discussed in 27.130–27.170.)

Internal structures of the Commonwealth and State governments — partial separation of powers [6.60] As well as dividing power “vertically”, between the Commonwealth and States, the Constitution also divides it “horizontally” within the Commonwealth, between the legislature, the executive and the judiciary. Sections 1, 61 and 71 — the first sections of Chapters 1, 2 and 3 — vest the legislative, executive, and judicial power of the Commonwealth respectively in the Parliament, the executive government and the judiciary. This could seem to imply a strict separation of the three powers along the lines proclaimed by Montesquieu, but any such implication is clearly prevented by the presence of s 64 which requires that the Ministers must be members of one or other of the Houses of Parliament (subject to a period of three months after appointment, in which they might seek election). Taken together with the requirement for parliamentary appropriation before money can be lawfully spent (s 83), this enforces responsible government; see Chapter 11. However, at the Commonwealth level, judicial power is strictly separated (subject to some exceptions and qualifications); judicial power is vested in the federal courts and cannot be exercised by anyone else, nor can the courts exercise non-judicial power if it is incompatible with their main role (see Chapters 25 and 26). Although the Constitution does not expressly mention the internal distribution of powers within the States, it does mention the existence of State courts and provides that they may exercise federal judicial power. The High Court has inferred from this a principle that State (and Territory) courts 82

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cannot be given a task that would be incompatible with their institutional integrity as courts. Thus, part of the separation of powers doctrine applies within the States and Territories, although (so far, at least) it seems that a State or Territory Parliament could exercise judicial power itself or vest it in something other than a court; see Chapter 34.

Absence of a Bill of Rights, but a “democratic theme” and protection of a few specific rights [6.70] Although one prominent member of the Constitutional Conventions, Andrew Inglis Clark, was a keen student of American Constitutional Law and in favour of a Bill of Rights, the other delegates were not so keen. In particular, Clark suggested an “equal protection of the law” clause that should bind the States. The other delegates were aghast; the rights of citizens, they argued, were sufficiently protected by our system of representative and responsible government. Of course, they were nearly all colonial politicians with ministerial experience; you might think they took it as a personal insult to suggest that people like them would ever use their influence over the backbench to enact an oppressive law. Besides, there was a perceived problem with cheap Asian labour and the delegates wanted to be able to discriminate against Asian workers and indeed to be able to send them back where they came from. As Sir John Forrest put it, “It is of no use for us to shut our eyes to the fact that there is a great feeling all over Australia against the introduction of coloured persons. It goes without saying that we do not like to talk about it, but still it is so.”3 So watered-down versions of some of Clark’s clauses were eventually included: s 80 guarantees jury trial but only for indictable offences against Commonwealth laws and s 116 gives four particular guarantees of religious freedom but only applies to the Commonwealth and does not, as in America, provide for a general separation of Church and State. The only one of his proposals that survived as a limit on State powers is in s 117 which, as noted above, prohibits discrimination against persons on the basis of their State of residence. As we shall see in Chapter 31, for a long time that was interpreted so as to have no effect at all, but now has some significant effects on State laws. Two things partly make up for the absence of a Bill of Rights. One is the separation of powers, mentioned in the previous section. Judges interpret statutes and one important principle of that interpretation is a presumption that a legislature will not abrogate established rights without clearly expressing its intention to do so: see Chapter 13. Judges, of course, also interpret the Constitution, and the fact that they have tenure makes them less susceptible to pressure from the government to interpret in an “executive-minded” way. The other is the fact that the drafters emphasised, in ss 7 and 24, that the Senate and House of Representatives were to be “directly chosen by the people” and also, in response to the Corowa Resolution (see 4.40), provided in s 128 for constitutional amendments to 3 Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 1898 at 666. See also Andrew Byrnes, Hilary Charlesworth and Gabrielle McKinnon, Bills of Rights in Australia: History, Politics and Law (UNSW Press, 2009) at 25; George Williams, Human Rights under the Australian Constitution (Oxford UP, 1999) at 37–42.

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be ratified by a vote of “the electors”. As noted at 4.50, Professor Harrison Moore was so struck by these features that he wrote that a central feature of the Constitution was “the prevalence of the democratic principle”. Until 1992 the presence of these democratic features had little effect on the interpretation of the Constitution (except in dissents by Murphy J, who referred to it as the democratic theme of the Constitution),4 but since then the High Court has made inferences from “directly chosen by the people” that have produced a string of cases on the freedom of political discussion (Chapter 14) and cases on the right to vote (see Chapter 15). Cross-references: As the above discussion makes clear, most of this book is about the effects of the Commonwealth Constitution. It should be noted, however, that some of our constitutional law principles are derived from the common law relating to parliament and governments. These are discussed in Chapters 9–13 and 27. As to the aspects of the Constitution discussed above, limits on Commonwealth legislative power are discussed generally in Part D, the effect of the Constitution on the States in Part E, and the effect of the “democratic principle” in Chapters 14 and 15.

4 For example, Attorney-General (Cth) (Ex rel Mckinlay) v Commonwealth [1975] HCA 53; (1975) 135 CLR 1 at 71–2.

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CHAPTER 7

Constitutional Litigation

7.1 Context and overview [7.10] The previous chapters have explained the history of the Constitution, and the concepts it embodies. All the later chapters, except Chapter 27 which deals with the States’ own Constitutions, will explain the way the interpretation of “the” Constitution (ie, the Commonwealth Constitution) has affected government powers and the validity of legislation in Australia. In this chapter, we consider the principles of constitutional litigation, in particular the rules about jurisdiction, the need for a litigious “matter” and standing to sue, and remedies.

7.2 Jurisdiction to interpret the Constitution [7.20] Oddly, the Constitution does not directly give the High Court jurisdiction over constitutional matters by s 75. However, s 76 empowers the Parliament to confer “additional” jurisdiction on the Court in a list of matters including “matters … (ii) arising under this Constitution or involving its interpretation”. The Parliament took up this invitation in s 30 of the Judiciary Act 1903. The Act also extends the constitutional jurisdiction, by s 39, to “the several Courts of the States” and, by s 39B, to the Federal Court or Magistrate’s Court or Court of Petty Sessions. There are, however, some procedures to be followed. When a constitutional issue arises, the court must not proceed until notice of the matter has been given to the Attorneys-­General of the Commonwealth and States and they have had a reasonable time to consider whether they wish to intervene (s 78B). Under s 78A, each of the Attorneys has a right to intervene, and under s 40 they have a right to apply for the case to be removed to the High Court, whereupon it will automatically be removed. Parties other than an Attorney-General have a right to apply for the matter to be removed, at

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any stage, to the High Court, but must show cause; the High Court will hold a special s 40 hearing.1 Putting those provisions together, constitutional matters can follow a number of paths. Where a government or a well-funded organisation believes that a law is invalid, they can take a pre-emptive strike against the law, once it has commenced, by seeking a declaration of invalidity in the original jurisdiction of the High Court, or indeed, since a declaration is an equitable remedy, in any court of equitable jurisdiction. A good number of cases start this way. On the other hand, many challenges only arise when a party is sued or prosecuted under a law, and on seeking legal advice, they realise that there may be a constitutional defence. One example is Gratwick v Johnson [1945] HCA 7; (1945) 70 CLR 1, where Dulcie Johnson was charged with the heinous offence of travelling by rail from South Australia to Western Australia without a permit under the Restriction of Interstate Passenger Transport Order made under the war-time National Security (Land Transport) Regulations. She argued in a summary trial before a magistrate that the regulations and order were invalid as an infringement of the freedom of interstate “intercourse” (travel), and the magistrate accepted the argument and dismissed the charge. The complainant appealed to the Western Australian Supreme Court, but at that stage, the Commonwealth asked for the matter to be removed to the High Court. Removal was automatic under the Judiciary Act s 40, and the High Court unanimously confirmed the magistrate’s decision and dismissed the appeal. In Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, on the other hand, the defendant was convicted of several offences in a Magistrate’s Court, and then had to take appeals to the Queensland Court of Appeal and (by special leave) to the High Court to have the convictions on the two main charges overturned (but see below for his conviction for resisting arrest). Not every significant case is taken to the High Court; Re Loubie [1986] 1 Qd R 272 (on s 117, see Chapter 31) is one example of a decision by a Supreme Court Justice that made a point that is significant enough to be mentioned in textbooks but was not appealed by the State. In addition, where a party is dissatisfied with the decision of an executive officer or a quasi-judicial body, it is possible to seek a supervisory writ2 from the High Court under para 75(v). These are the cases that are reported as R v (a tribunal or member); Ex parte (the complainant), or more recently Re (the tribunal or member); Ex parte (the complainant).3 Many such cases merely involve points of administrative law, but some 1 Note that these complexities only apply to matters “arising under [the] Constitution or involving its interpretation”. Subject to a few exceptions not relevant here, ss 39 and 39B also give all State and federal courts jurisdiction over all other “federal” matters involving the interpretation of laws made by the Commonwealth Parliament. Indeed all federal criminal offences (except cartel conduct under the Competition and Consumer Act 2010) are prosecuted in the State systems. The giving notice and removal provisions in ss 40 and 78B do not apply to them unless a constitutional issue arises. 2 These are the writs of prohibition, mandamus and certiorari, originally known as “prerogative writs”, which the High Court now says should be called “constitutional writs”. See 11.60 and 11.120 for a brief note on their history. 3 The complainant in these constitutional or administrative law challenges is often referred to as “the prosecutor” in the judgments; this can be confusing, especially in a case where this “prosecutor” had originally been the defendant in a criminal matter where the other party was the prosecutor.

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of them include arguments that the law applied by the tribunal, or the actual creation of the tribunal, was unconstitutional. You will meet quite a few cases cited this way in Chapter 25.

7.3 The need for a “matter” [7.30] Section 75 lists five kinds of “matter” over which the High Court (once it was created by Act of Parliament) was automatically to have original jurisdiction and s 76 lists four more kinds, as to which the Parliament could make laws conferring “additional” original jurisdiction. Section 77 then provides that the Parliament can make laws defining the jurisdiction of other federal courts or vesting jurisdiction in State courts “with respect to any of the matters mentioned in the last two sections”. The nine listed kinds of “matter” therefore, define the totality of federal jurisdiction (though once a matter is within jurisdiction, a federal court can hear “attached” claims as an “accrued” part of its jurisdiction, as discussed in 26.40). “Matter” has a technical, limiting, meaning, as explained in Re Judiciary Act & Navigation Acts [1921] HCA 20; (1921) 29 CLR 257. The Judiciary Act 1903 then provided that the Governor-General could refer a question as to the validity of an Act of Parliament to the Court, and he had asked for an opinion on the Navigation Act 1912. Victoria objected that this “advisory” jurisdiction was beyond power. Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ held: [W]e do not think that the word “matter” in s 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained … But it cannot authorize this Court to make a declaration of the law divorced from any attempt to administer that law … All [the] opinions [in State of South Australia v State of Victoria] indicate that 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 inhibited by law. … we can find nothing in Chapter 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.

Another phrase used in later cases (starting with Isaacs and Starke JJ in Minister for Home & Territories v Teesdale Smith [1924] HCA 41; (1924) 35 CLR 120) is that a matter must involve a “justiciable controversy”. Although the reasons given above for limiting “matter” seem purely definitional, almost pedantic, there are also policy issues here. The Judiciary Act included provisions designed to ensure, to some extent, that both sides of the argument would be heard — the Attorneys-General of the States could be represented at the hearing, the Court could direct that notice of the litigation should be 87

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given to other persons, who were entitled to appear or be represented at the hearing, and the Court could request counsel to argue in favour of any interest which was not represented. However, these are no guarantee that all arguments for or against the validity of the Act will be presented as cogently as possible. To ensure that an issue is fully argued it helps if the “right or duty of [some] body or person [is] involved”.

7.4 Standing [7.40] The traditional approach to locus standi, or standing (ie, the right to initiate a lawsuit) in constitutional law was the same as in administrative law or public nuisance, namely that the plaintiff must be vindicating a private right, or in a case where the law affects public rights, that the plaintiff was “more particularly affected than other people”: Anderson v Commonwealth [1932] HCA 2; (1932) 47 CLR 50. The test was not applied too strictly where commercial interests, even of a largish group, were affected; as Latham CJ said in Toowoomba Foundry Pty Ltd v The Commonwealth [1945] HCA 15; (1945) 71 CLR 545 at 570, “It is now, I think, too late to contend that a person who is, or in the immediate future probably will be, affected in his person or property by Commonwealth legislation alleged to be unconstitutional has not a cause of action in this Court for a declaration that the legislation is invalid”. It was also generally taken for granted that the States, or their Attorneys-General, had standing to challenge Commonwealth laws that affected the distribution of powers under the Constitution or the rights of residents of the States. However, where an individual sought standing as a taxpayer and consumer to challenge a Commonwealth–State agreement (Anderson, above) he was held to lack standing. Even the standing of a landowner threatened with resumption of his land was doubted when his argument was that the Commonwealth and State had an allegedly invalid understanding as to how money, granted by the Commonwealth to the State, would be spent (Pye v Renshaw [1951] HCA 8; (1951) 84 CLR 58). Private parties could, however, take advantage of the Attorneys’-General standing if they could persuade one of them to take action “at the relation of ” the applicant; by this means they obtained standing indirectly, but were still liable for costs if the action failed. We will see examples of a couple of these “relator actions”,4 relating to the apportionment of electorates between the States, in 15.30. Recent decisions have liberalised the standing requirement to a degree. In Croome v Tasmania [1997] HCA 5; (1997) 191 CLR 119, the plaintiff and his partner, rather than waiting to be prosecuted under a Tasmanian law and then mounting a constitutional defence, sought a declaration that the law was now invalid because of inconsistency with 4 There is much quaint terminology attached to these actions; the Attorney-General issues a “fiat” (Latin for “let it be done”) to the plaintiff, who is known as the “relator”, and the action is reported as Attorney-­ General for A, Ex rel (at the relation of) [Relator] v B, where A is a State or the Commonwealth and B may well also be a body politic. For a general discussion of such actions, not specifically relating to their use in constitutional law, see Geoffrey Flick, “Relator Actions: The Injunction and the Enforcement of Public Rights” (1978) 5 MonULR 133.

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a recent Commonwealth law. The State conceded that they had standing but disputed that there was a “matter”. Brennan CJ, Dawson and Toohey JJ treated “matter” and “standing” as separate although over-lapping issues, but Gaudron, McHugh and Gummow JJ said: During the course of argument it became apparent that the attempted severance in this case between questions going to the standing of the plaintiffs and those directed to the constitutional requirement of the exercise of federal jurisdiction with respect to a “matter” was conceptually awkward, if not impossible … Where the issue is whether federal jurisdiction has been invoked with respect to a “matter”, questions of “standing” are subsumed within that issue … Their Honours in In re Judiciary and Navigation Acts are not to be taken as lending support to the notion that, where the law of a State imposes a duty upon the citizen attended by liability to prosecution and punishment under the criminal law, and the citizen asserts that, by operation of s 109 of the Constitution, the law of the State is invalid, there can be no immediate right, duty or liability to be established by determination of this Court, in an action for declaratory relief by the citizen against the State, unless the Executive Government of the State has, at least, invoked legal process against the particular citizen to enforce the criminal law. [Emphasis added, to draw attention to the double negative.]

The plaintiffs had standing and there was a “matter”. (Having lost on the issue of standing, the government presented a repeal Bill to Parliament without waiting for the substantive issue to be decided.) In the following year, in Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247, Gaudron, Gummow and Kirby JJ cited Croome in remarking, at [37], “in federal jurisdiction, questions of “standing”, when they arise, are subsumed within the constitutional requirement of a “matter”. Truth About Motorways v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591 involved a statutory grant of standing to “any person”’ to enforce provisions of the Trade Practices Act 1974. The Court unanimously rejected Macquarie’s submission that this was not valid, all Justices holding, in effect, that although the Court’s jurisdiction is limited to “matters”, by granting standing to a person Parliament can authorise that person to create a matter. In the words of Gleeson CJ and McHugh J: What is sought to be established by the determination of a court is a violation by the respondent of a statutory norm of conduct, and the existence of a duty or liability. The court is not invited “to make a declaration of the law divorced from any attempt to administer that law”. Such a subject matter is justiciable in character. Parliament, by conferring standing upon any person to invoke the jurisdiction of the court has, at the one time, created the potential for a justiciable controversy and conferred jurisdiction to determine the controversy. This is a common feature of legislation.

In Pape v Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1, Pape (a lecturer in constitutional law!) challenged the validity of the tax bonus paid under the Tax 89

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Bonus for Working Australians Act (No 2) 2009. His only interest, apart from justifying his notion of the proper distribution of powers under the Constitution, was that he stood to receive a small payment that he claimed he was not entitled to. The substantive grounds of the challenge are discussed in Chapter 21, but as to standing, Gummow, Crennan and Bell JJ held at [151]–[155]: The controversy between the parties comprises several heads of “matter” within the original jurisdiction of this Court. Section 75(iii), s 75(v), and s 76(i) … are engaged. It is now well established that in federal jurisdiction, questions of “standing” to seek equitable remedies such as those of declaration and injunction are subsumed within the constitutional requirement of a “matter”. This important point appears to have been insufficiently appreciated in some of the submissions upon Question 1. The defendants submit that the plaintiff has standing to challenge the payment of the tax bonus to him but “does not have standing to challenge the validity of the payment of tax bonus to anyone else” … This and other submissions to like effect should be rejected. They proceed from erroneous assumptions as to the nature and incidents in the present case of the adjudication of matters arising under the Constitution or involving its interpretation, and thus give insufficient weight to the place of the rule of law in the scheme of the Constitution.

Hayne and Kiefel JJ, at [273] expressly agreed with the above reasons, and French CJ expressed similar reasons at [50]–[52]. It therefore seemed that the separate requirement for a plaintiff to have an “interest” or to be “more particularly affected” had at last disappeared. However, in Williams v Commonwealth [2012] HCA 23; (2012) 248 CLR 156, the question of the plaintiff’s standing was, as in old times, discussed as a separate issue. It was held that he did have standing, at least as to a period when his family was affected by the contracts he was challenging, and that was enough to effectively canvass the validity of the policy authorising the contracts (see 21.210 for discussion of the substantive issue). Then in Kuczborski v Queensland [2014] HCA 46; (2014) 254 CLR 51 it was held that the plaintiff did have standing to challenge laws which prohibited him, as a member of a declared criminal organisation, from engaging in what would otherwise be perfectly lawful conduct. However, he did not have standing to challenge other laws which imposed more severe penalties on gang members if they should commit offences; the offences would be offences whether or not the amended laws were valid, and only the penalty would be different. As Hayne J explained it at [98]–[99], there could be no matter, and therefore no standing: … unless there is some immediate right, duty or liability to be established by the determination of the Court … Because he does not say that he will engage in [the prohibited] conduct, the plaintiff does not show that he is a person who is now, or in the immediate future probably will be, affected, whether in his person or his property, by the relevant provisions.

Standing indeed seems to have been subsumed into “matter”, but whether there is a “matter” may still be the stumbling block. Some hypothetical cases, it seems, are more hypothetical than others. 90

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7.5 The names of parties — do governments have legal personality? [7.50] In private law, some organisations are “legal persons” or “legal entities” and some are not. A corporation or incorporated association is a “legal person”, which means it has “perpetual succession” (it remains the same “person” while shareholders and officebearers come and go), and can hold and deal in property and sue and be sued in its own name. An unincorporated association has none of those properties; it can only “own” assets through trustees and if someone wants to sue it for breach of contract, it can be difficult to work out which, if any, of the office-bearers are the appropriate defendants: see, eg, Carlton Cricket & Football Social Club v Joseph [1970] VR 487; [1970] VicRp 65. Similarly, when suing a government, one has to know the rules about who or what can be sued under what name. It is accepted that the Commonwealth and each of the States (in old-fashioned language, “the Crown in right of ” the Commonwealth or State) is a legal person; note how often their names appear in the names of the leading cases. (So many times, in fact, that we have to refer, eg, to one or other of the many “Victoria v The Commonwealth” cases by descriptive names such as the Roads Aid case or the AAP case.) To allege that an Act enacted by a Parliament is invalid, one sues the Commonwealth or the State, and/or a Minister,5 but not the Parliament. Perhaps oddly, although the abstraction “the State” is a legal entity, the slightly more concrete thing “the Government” of a State is not; for one of many trivial examples where this had to be pointed out see Mowen v Queensland State Government [2011] QSC 12 at [4]. Certainly Departments are not legal persons; this is not so odd, since new ones appear and disappear and responsibilities and staff are constantly shuffled between them. Instead of suing a Department, one should sue the Minister in his/her own name or as “Minister for X”, or the CEO (Secretary or Director-General) of the Department. However, when people name a Department as defendant, judges sometimes overlook this minor solecism while making it clear that their orders are not directed to the Department in general but to the CEO. One the other hand, when a law sets up a government “instrumentality” — a board, agency, commission, etc — it usually contains a section giving the body legal personality. For a case where such bodies were on both sides, see State Superannuation Board v Trade Practices Commission [1982] HCA 72; (1982) 150 CLR 282. Local government bodies have traditionally been given corporate status, though the Local Government Act 1993 (NSW) has tried a new tactic in declaring by s 220 that a council in New South Wales is a “body politic … with the legal capacity and powers of an individual” and not “a body corporate (including a corporation)”. (For the apparent motivation for, and probable effect of this, see 18.140.)

5 John Koowarta’s legal advisers cunningly named the Premier of Queensland as first defendant and added the State lower down the list. This meant that the Premier went down in legal history as the losing party in a case reported as Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168, instead of it just being reported as another case involving the State.

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7.6 Remedies [7.60] The main remedy for a plaintiff in a constitutional action is a declaration of invalidity. This means that the “law” is treated as being void ab initio, as never having been a law at all. (This may refer to a whole Act or only to one or more sections; see “severance” in 8.60.) For someone using the unconstitutionality of a law as a defence, the “remedy” is simply to have the prosecutor’s or plaintiff ’s action dismissed, sometimes accompanied by an express official declaration of invalidity but otherwise accompanied by what amounts to an implicit “declaration” in the judges’ reasons. As noted in 7.20, parties who are challenging a decision made by a tribunal or executive officer on the ground that the Act authorising the decision was invalid will often seek a writ of prohibition or one of the other supervisory writs (formerly known as “prerogative writs”). If prohibition is granted (“the writ is made absolute”) the tribunal is told to stop proceeding with the matter. If certiorari is granted, the tribunal’s decision is made void (“quashed’). If mandamus is granted, the tribunal is ordered to continue under the valid parts of the law, as properly interpreted. Where a party has been arrested for breaching a law which turns out to have been invalid, or not to have applied to the circumstances, whether a conviction for resisting arrest can be upheld depends on some fine points. In Coleman v Power, above, while four Justices overruled Coleman’s conviction on an “insulting words” charge, their reasons differed. As discussed in 8.70, Gummow, Hayne and Kirby JJ held that the Act, though valid, did not apply to Coleman’s actions. Gummow and Hayne JJ therefore held at [203]–[204]: At the time of the appellant’s arrest, s 35(1) of the Police Powers Act provided that it was lawful for a police officer, without warrant, to arrest a person the officer “reasonably suspects has committed or is committing an offence” … Section 7(1)(d) of the Vagrants Act being a valid enactment (albeit one which bears a construction narrower than that given to it by the Court of Appeal) the question about the lawfulness of the appellant’s arrest for an offence against that section falls away. The appellant’s contentions in this regard were predicated on this Court holding that s 7(1)(d) was invalid, and for the reasons given earlier that is not the conclusion to which we come. The appellant did not contend that in the circumstances of this case, if s 7(1)(d) were valid, the arresting officers could not reasonably have suspected that he was then committing an offence under s 7(1)(d) of the Act and that his arrest was necessary to prevent repetition of the offence.

Kirby J expressed a similar argument. McHugh J, however, held that the section under which Coleman had been convicted was invalid, and therefore his arrest was unlawful and he was entitled to resist (at [140]): … a person cannot have a reasonable suspicion that an offence has been committed under an enactment that does not exist. It is not reasonable to believe or suspect that a law exists when it does not. Ignorance of the law is ordinarily not an excuse for what is otherwise unlawful conduct. Fictional though it may be, everyone is presumed to know the law.

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Since the other three Justices held that Coleman’s conviction on the substantive charges was correct, his conviction for resisting arrest was confirmed. Where parties have committed actions in reliance on an invalid statute, they may turn out in retrospect to have committed a tort or a breach of contract; for example, conversion of wrongfully seized goods in James v Commonwealth [1939] HCA 9; (1939) 62 CLR 339. Where a tax or other charge is found to have been invalidly imposed, it used to be the law that unless it was clearly paid “under protest”, it was paid under a mistake of law and was therefore not recoverable, but since the High Court rejected the distinction between mistake of law and mistake of fact in David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353, it has allowed recovery of invalidly imposed taxes: British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; (2003) 217 CLR 30. There is, however, no recognition of an independent right of recovery for a tort of “breach of constitutional rights” as in the United States (eg, Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics 403 US 388 (1971)), though Kirby J argued persuasively that it should be recognised in British American at [118]–[136]. However, the Court has insisted that the common law must be developed so that it is consistent with the Constitution; for example, in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, it modified the defences to the tort of defamation to be more consistent with the Constitutionally-implied freedom of political speech. This may take some of the sting out of the lack of a direct “constitutional tort”.

7.7 When to seek a remedy — Court’s reluctance to interfere in the parliamentary process [7.70] Parties fearful that a proposed law will affect their interests have sometimes tried to enjoin6 Ministers from presenting a Bill to the Parliament (Eastgate v Rozzoli (1990) 20 NSWLR 188) or presenting a Bill for assent (Hughes & Vale Pty Ltd v Gair [1954] HCA 73; (1954) 90 CLR 203). In general, the courts recognise that as part of the ancient law and customs of parliament,7 parliaments are free to regulate their own proceedings. In both of the cases above, no injunction issued. The time for someone whose rights or duties will be affected by a new law to bring a challenge to the law is after assent, when the Bill has become an Act. If the challenger fears that it will be charged an invalid tax, it can pay it under protest and recover it when the Act is declared invalid. The exception to the above principle is when a section of an Act spells out some specific rules that regulate the parliamentary process in more detail than usual. For example, a “manner and form” provision, that says that certain kinds of Bill “shall not be presented to the Governor” unless certain steps have been taken, is enforceable. See 27.130–27.170 for further discussion. 6 The verb meaning “to seek an injunction” is “enjoin”, not “injunct”. 7 So ancient that the Latin phrase is often used: Lex et consuetudo Parliamenti.

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Similar issues arise when courts are asked to interfere with the double dissolution and joint sitting process in the Commonwealth Parliament. Here the courts are equally reluctant to interfere, though they will assess the validity of an Act supposedly passed by that process after the event: see 16.70. For a somewhat different reason — the necessity to allow elections to be held regularly to maintain the democratic legitimacy of the parliament — the courts will not take lastminute steps to prevent the conduct of an election on technical grounds, but will rule that sections of the relevant Electoral Act are invalid, trusting that the government and parliament will remedy the defect before the next election: see 15.120.

7.8 Costs [7.80] The usual rule in all litigation is that “costs follow the event”; that is, whoever wins the litigation gets a costs order against the losing party. This generally applies in constitutional cases, even though there are arguments that, where the validity of legislation or government action is at issue, it is in the public interest that a person who mounts a reasonably arguable challenge to the government should not be penalised by costs if the argument fails. Occasionally the government whose law or action is under challenge agrees in advance not to seek costs, as in Pape v Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1.8 Where the decision is left to the Court, as a study by Keyser shows, “the indemnity rules are almost invariably applied, but when they do not the exceptions are seldom and unpredictable, and are narrowly fact-specific”.9 He argues that “people should not be expected to pay the costs of government to ensure that the rule of law is realised”.10 In light of the comments by Gummow, Crennan and Bell JJ in Pape, above, that a narrow argument about standing gives “insufficient weight to the place of the rule of law in the scheme of the Constitution”, his argument about costs may be given greater recognition in future — or not.

8 There is a theory that the Crown (ie the government) is supposed to act — or used to act, in some long-ago Golden Age — as a “model litigant”, but if one searches for the phrase in most judgment databases, one finds only cases where judges grumble about the fact that the Crown has not behaved according to that standard. Perhaps the occasions where the Crown agrees not to seek costs are an attempt to make amends. 9 Patrick Keyser, “A Battle and a Gamble: the Spectre of an Adverse Costs Order in Constitutional Litigation’ (2010) 22 Bond LR 82. (See also the following two articles in the Journal.) 10 Keyser, above 9, at 11.

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CHAPTER 8

General Principles of Interpretation of the Commonwealth Constitution

8.1 Context and overview [8.10] We saw in Chapter 6 that the Commonwealth Constitution is the supreme law of the land, which limits the powers of the Commonwealth and all State parliaments, and that a law contrary to the Constitution can be declared invalid by any court (though the major cases are heard in the High Court, either in its original jurisdiction or on appeal). This Chapter discusses the principles that the High Court has laid down for interpreting the Commonwealth Constitution, and the ways in which they are both similar to and different from the ordinary principles of statutory interpretation. The more specific principles relating to the interpretation of the Commonwealth Parliament’s powers are discussed in Chapter 17. (Some of the cases noted in this chapter in fact involve the scope of Commonwealth powers, but they are discussed here because they make general points about interpretation.) Since the Constitution Acts of the States do not have supreme law status, they are subject to the ordinary principles of statutory interpretation including the rule that a later inconsistent law will impliedly amend them — except for the arcane case law on “manner and form” provisions discussed in Chapter 27.

8.2 A statute but something more than a statute [8.20] The Constitution, as noted in Chapter 4, was enacted as part of an Imperial Act. Even if that is a less dominant consideration than it was once was, it was drafted by colonial lawyer–politicians and the details were debated in a process deliberately similar to parliamentary debate. They expected that it would be interpreted according to the 95

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standard principles of legal interpretation. From the earliest cases, the High Court emphasised both that the ordinary rules of statutory construction should be applied to the Constitution, and also that it was not an ordinary statute. In Tasmania v Commonwealth [1904] HCA 11; (1904) 1 CLR 32, Griffith CJ remarked: It is said that the ordinary rules for construing Acts of Parliament do not apply to the Constitution. That proposition may be true in one sense, viz, that the Constitution is not a code going into minute details of the means by which the federation is to be carried into effect by the sovereign power created by it. There are many powers necessary to that end which are conferred — and one would expect them to be conferred — by necessary implication rather than in express words. It is, however, always a question of construction, whether we are called upon to construe the terms of a section, or to decide whether powers are necessarily to be implied in addition to those which are expressed. The same rules of interpretation apply that apply to any other written document.

The “normal” construction aspect was emphasised in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers’ case) [1920] HCA 54; (1920) 28 CLR 129. Despite Griffith CJ’s words above, in a series of cases, he and Barton and O’Connor JJ had imposed some very strong limits on the powers of the Commonwealth and the States, supposedly implied from the nature of federation. Commonwealth powers were limited by an implication that some powers (one in particular — the power to make laws with respect to trade within the State) were reserved to the States, and both the Commonwealth and States were limited by a doctrine of implied inter-governmental immunities. In the Engineers’ case [1920] HCA 54; (1920) 28 CLR 129, the majority of the Court rejected these implications (though, as we will see in Chapter 33 a modified version of Commonwealth–State immunities has survived), and held that State industrial enterprises could be made subject to a Commonwealth industrial award. As to the general construction point, Knox CJ, Isaacs, Rich and Starke JJ held: The settled rules of construction which we have to apply have been very distinctly enunciated by the highest tribunals of the Empire. … With respect to the interpretation of a written Constitution, the Privy Council has in several cases laid down principles which should be observed by Courts of law, and these principles have been stated in the clearest terms. In R v Burah Lord Selborne, in speaking of the case where a question arises as to whether any given legislation exceeds the power granted, says: The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any

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Court of Justice to inquire further, or to enlarge constructively those conditions and restrictions. In Attorney-General for Ontario v Attorney-General for Canada Lord Loreburn LC, for the Judicial Committee, said: In the interpretation of a completely self-governing Constitution founded upon a written organic instrument, such as the British North America Act, if the text is explicit the text is conclusive, alike in what it directs and what it forbids. When the text is ambiguous, as, for example, when the words establishing two mutually exclusive jurisdictions are wide enough to bring a particular power within either, recourse must be had to the context and scheme of the Act.

Higgins J held: The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable. Words limiting the power are not to be read into the statute if it can be construed without a limitation (per Bowen LJ in R v Liverpool Justices: and see King v Burrell). The Parliament is given a power here to make any law which, as it thinks, may conduce to the peace, order and good government of Australia on the subject of pl xxxv, “subject to this Constitution ”. There is no limitation to the power in the words of the placitum;1 and unless the limitation can be found elsewhere in the Constitution, it does not exist at all.

On the other hand, the Court has kept reminding us (and itself) that the Constitution is no ordinary statute. As O’Connor J held in Jumbunna Coal Mine v Victorian Coal Miners’ Association [1908] HCA 95; (1908) 6 CLR 309 at 367–8: … it must always be remembered we are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of our community must involve. For that reason, where the question is whether the Constitution has used an expression in the wider or the narrower sense, the Court should, in my opinion, always lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose. 1 The early judges referred to the paragraphs of s 51 as “placita”, singular “placitum”. Placitum, Latin for “that which pleases” had picked up an extraordinary range of meanings in mediaeval law, from “plea” to “judgment” to “pact” or “convention”. The nearest to the High Court’s usage was for an item in a list of privileges granted at the pleasure of a King or Pope. With respect to Griffith CJ, who started it all, to use placitum for an item in a list of grants of legislative power is the most extraordinary usage of all. In normal parts-of-statutes terminology, the things should be called paragraphs!

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Similarly, in Australian National Airways Pty Ltd v Commonwealth (No 1) (Airlines Nationalisation case) [1945] HCA 41; (1945) 71 CLR 29, Dixon J said: [I]t is a Constitution we are interpreting, an instrument of government meant to endure and conferring powers expressed in general propositions wide enough to be capable of flexible application to changing circumstances.

See further on this, “Can the meaning of words change? ” at 8.40 below.

8.3 The force of precedent [8.30] While all other courts in Australia are bound to apply the ratio of a decision of the High Court, the High Court is not bound to follow its own precedents. It first said so in Australian Agricultural Company v Federated Engine-Drivers & Firemen’s Association of Australasia [1913] HCA 41; (1913) 17 CLR 261. Isaacs J, convinced that an earlier decision in which he had dissented was wrong, said: The oath of a Justice of this Court is “to do right to all manner of people according to law.” Our sworn loyalty is to the law itself, and to the organic law of the Constitution first of all. If, then, we find the law to be plainly in conflict with what we or any of our predecessors erroneously thought it to be, we have, as I conceive, no right to choose between giving effect to the law, and maintaining an incorrect interpretation. It is not, in my opinion, better that the Court should be persistently wrong than that it should be ultimately right. Whatever else may be said with respect to the reconsideration of former decisions — and it is unnecessary here to consider the principles upon which the Court should act in particular cases — so much at least emerges as is undoubtedly beyond challenge, that where a former decision is clearly wrong, and there are no circumstances countervailing the primary duty of giving effect to the law as the Court finds it, the real opinion of the Court should be expressed.

As to what the “countervailing circumstances” mentioned by his Honour might be, Gibbs CJ said in Commonwealth v Hospital Contribution Fund [1982] HCA 13; (1982) 150 CLR 49 at 56–8: In the present case there are a number of circumstances that have led me to the conclusion that we should reconsider the correctness of Kotsis v Kotsis and Knight v Knight. It should be unnecessary to say that I am not about to recite a list of grounds any one of which, standing alone, would provide a justification for overruling an earlier decision. All the circumstances have to be considered, but for obvious reasons it is convenient to refer to some of them separately. In the first place, the decisions do not rest upon a principle that has been carefully worked out in a succession of cases. … Secondly, there is an important difference between the reasoning of Barwick CJ and that of the other justices who constituted the majority in Kotsis v Kotsis … Thirdly, the decisions in Kotsis v Kotsis and Knight v Knight achieve no useful result, but on the contrary lead to considerable inconvenience

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… Finally, a very important circumstance that led Stephen J and myself in Queensland v The Commonwealth [1977] HCA 60; (1977) 139 CLR 585 to refuse to overrule an earlier decision with which we disagreed was that the decision had been acted upon [and here] the States have acted upon the decisions only for the purpose of endeavouring to circumvent them. No one will be adversely affected if the decisions are overruled.

Five other justices, with Brennan J dissenting, agreed that the earlier cases should be overruled, and Stephen and Aickin JJ expressed agreement (at 59 and 66) with Gibbs J’s reasons, above. In John v Federal Commissioner of Taxation [1989] HCA 5; (1989) 166 CLR 417, a joint decision of five justices considered and applied Gibbs J’s factors when deciding to overrule a line of earlier cases. The above principles apply whether or not the case involves the interpretation of the Constitution. If the Court is prepared to overrule its earlier decisions in non-­ constitutional cases (eg, both Australian Agricultural Company and John, above), the reasons for being prepared to do so apply even more strongly in constitutional cases, as McHugh J explained in Re Tyler; Ex Parte Foley [1994] HCA 25; (1994) 181 CLR 18 (a case on the powers of courts-martial): This Court is not bound by its previous decisions but, in the absence of special circumstances, its longstanding practice is to follow its own decisions. However, the present case involves the interpretation and application of provisions of the Constitution. The doctrine of precedent is not as rigid in relation to decisions on the Constitution as it is in relation to decisions under the general law. A decision by the Court on a statute or the doctrines of the common law or equity can be changed by the legislatures. A decision by the Court on the Constitution can be changed only by referendum or by the Court overruling the decision …

His Honour then cited Isaacs J’s remark, above, about the Court’s first duty being to the law and to the Constitution first of all. However, he also cited Gibbs J’s reasons for not overruling, expressed in Queensland v The Commonwealth and cited above, and decided that he should follow the earlier court-martial cases even though he had dissented in one of them. There have been other occasions where the Court has followed an earlier decision although some of the majority justices thought it was wrong (eg, Queensland v The Commonwealth mentioned above), but others where earlier decisions, or whole lines of earlier decisions, have been overruled. Some of the most notable latter cases, all discussed elsewhere in the book, are the Engineers case (above), Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360 (Chapter 30), Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461 (Chapter 31), and Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465 (Chapter 29). In other cases, the effect of an earlier decision has been eroded more slowly; eg, the corporations power, having been given a restrictive reading in Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330 was expanded considerably in Strickland v Rocla Concrete Pipes Ltd [1971] HCA 40; (1971) 124 CLR 468, somewhat more in Seamen’s Union of Australia v Utah 99

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Development Co [1978] HCA 46; (1978) 144 CLR 120 and Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1, and finally given its full literal meaning in New South Wales v Commonwealth [2006] HCA 52; (2006) 229 CLR 1 (the Work Choices case). In the rest of the book, only a brief summary will be given of the “pre-history” of the relevant sections before focussing on the modern law but readers should be aware that each of these areas has a history of judicial changes of mind, and that if it has happened in the past it could happen again.

8.4 Can the meanings of words change? [8.40] The Constitution was drafted in the 1890s and technology, Australia’s relationships with other countries, and social attitudes have all changed. Can the meaning of the words in the Constitution change? The drafters frequently made it clear that they were aware that the High Court would have the final say on the meaning of the words, and the leading members seemed not to expect interpretation to be too narrow or literal. Mr Symon spoke favourably of the “elasticity” of the Constitution,2 and Mr O’Connor anticipated that clauses would be interpreted “in the broadest way”.3 When debating appeals to the Privy Council, Dr Quick was in favour because he expected a “liberal and judicious interpretation” while Mr Isaacs was against because he feared a “narrow” interpretation from their Lordships in England.4 Soon after the commencement of the Constitution, Clark, not only the author of the first draft (see Chapter 4) but the author of one of the first textbooks, wrote: [T]he social conditions and the political exigencies of the succeeding generations of every civilized and progressive community will inevitably produce new governmental problems to which the language of the Constitution must be applied, and hence it must be read and construed, not as containing a declaration of the will and intentions of men long since dead, and who cannot have anticipated the problems that would arise for solution by future generations, but as declaring the will and intentions of the present inheritors and possessors of sovereign power, who maintain the Constitution and have the power to alter it, and who are in the immediate presence of the problems to be solved. It is they who enforce the provisions of the Constitution and make a living force of that which would otherwise be a silent and lifeless document. Every community of men is governed by the present possessors of sovereignty and not by the commands of men who have ceased to exist.5

The High Court has indeed favoured a “broad” or “flexible” interpretation of the words (see the quotes above at the end of 8.20) but there has nevertheless been a tension between judges favouring an “originalist” approach, in which the original intent of the 2 3 4 5

Convention Debates, 10th March 1898. Debates, 12th March 1898. Both on 12th March 1898. AI Clark, Studies in Australian Constitutional Law, Charles F Maxwell, 1901, p 20.

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drafters, or perhaps the electors who approved the constitution, should prevail, and those tending to a “progressivist” approach. Of course, the original subjective intent, and understanding of what they had done, differed between the individual drafters. The first five Justices of the High Court had all been among the leading members of the Conventions,6 and Griffith CJ and Barton and O’Connor JJ, the first three Justices to be appointed, thought they had created a system of “dual sovereignty” with the federal government’s powers severely limited by implications, while the next two justices to be appointed — Isaacs and Higgins JJ — thought this was utterly wrong, dissented in several cases, and, after the retirement of the first three Justices, managed to overturn the earlier doctrines in the Engineers case. So to find the original intent we must follow the advice of Higgins J in the Engineers case, “that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean?” (See the context and citation above.) But the question remains, should it be what the language meant then, or what it means now? There have been few extreme proponents of “originalism” apart from Callinan J; see his dissent in the Work Choices case [2006] HCA 52; (2006) 229 CLR 1 at [835]–[854]. On the other hand, a few judges have recently advocated a “living force” approach; eg Deane J in Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 168 (in which he cites the Clark text, cited above), Toohey J in McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 200, and Kirby J in Eastman v The Queen [2000] HCA 29; 203 CLR 1 at [242]. However, as with all debates about theory in law, although one side or the other can be expressed quite heatedly in individual judgments or academic articles, the majority decisions tend to steer a rather pragmatic course between the two extremes, sometimes favouring one theory and sometimes the other. In cases on the right to trial by jury, strange distinctions have been drawn. In 1900, juries were all male and required a unanimous verdict of 12 men; in Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541 it was held that the maleness was not an essential characteristic but that unanimity was, and still is, while in Brownlee v The Queen [2001] HCA 36; (2001) 207 CLR 278, it was accepted that the number can be reduced below 12 as long as the remaining members are unanimous. It is particularly in cases where technology or Australia’s place in international affairs has changed that a progressive approach has commanded majority support. The extension of the telecommunications power to radio and television, sometimes cited as an example of liberal interpretation, is not that at all, because para 51(v) was expressed to include “telephonic, telegraphic and other like services”, precisely because the drafters had been alerted to the work of Hertz and Marconi in the 1890s, and knew that radio was on the way. Though they may not have anticipated the wireless transmission of moving pictures, an expansion of Commonwealth power to include new forms of technology was clearly intended. However, one clear triumph of a progressive approach is in the 6 La Nauze suggests that the real “framers” were not the 84 delegates of 1891 and 1897–8, but a leading seven — Clark, the first five High Court Justices and Symon — and “a few others”; The Making of the Australian Constitution, MUP, 1972, p 275. At pp 278–9 he elaborates on the “few others”.

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accommodation of para 51(xviii) — “copyrights, patents of invention and designs, and trade marks” — to include laws for the protection of circuit layouts (Nintendo Co Ltd v Centronics Systems Pty Ltd [1994] HCA 27; (1994) 181 CLR 134) and plant variety rights (Grain Pool of WA v Commonwealth [2000] HCA 14; 202 CLR 479). As our relationship with the rest of the world has changed from colony to independent nation (see Chapter 5), so has the interpretation of the “aliens” power changed. Originally it excluded any subject of the Queen and therefore did not include Britons, but now citizens of Britain and other Commonwealth countries are aliens until they seek naturalisation as Australians. For a while there was divergence on the Court as to whether Britons who had arrived in the period 1949–86, when Australia’s sense of self-identity was still evolving, could be deported as aliens (see 19.170). The Parliament, of course, cannot change the meaning of a word in the Constitution, but all Justices in the “aliens” cases accepted the fact that the changes made to citizenship and voting laws between 1949 and the 1980s, and the passage of the Australia Act 1986, could be evidence of a change occurring in the real world. In the last of the cases, Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; (2003) 218 CLR 28, Kirby J, one of the minority who held that the change had not occurred until 1986, noted at [106] that the last of the legislative amendments in 1987 “did not cause the constitutional change. But it reflected and evidenced the fact that, by then, the change had occurred” (emphasis in original). The majority held that it had occurred in 1949 when the Australian Citizenship Act 1948 had commenced — again, not just because Parliament had passed the Act but because “political realities informed the relevant body of law” (per Gleeson CJ, Gummow and Hayne JJ at [12]). More remarkably, in Singh v Commonwealth [2004] HCA 43; (2004) 222 CLR 322, the majority of the Court accepted that s 10(2) of the Citizenship Act had validly changed the definition of citizen. Although anyone born in Australia was previously accepted as a citizen (unless born to an invader in a part of the country under enemy occupation!), the subsection had been amended in 1986 to provide that if both of a child’s parents were not lawful permanent residents, the child only became a citizen once he or she had been resident here for his or her first ten years. McHugh and Callinan JJ, dissenting, held that the meaning of “alien” in 1900 had been someone not born in the country and that was beyond parliamentary power to change. The majority, however, held that there had been enough divergence in international practice since 1900 so that there was no one “right” meaning. Parliament could choose between the ius soli (right based on birth) and ius sanguinis (right based on blood, ie parentage) in defining citizenship. In some of the above cases, some of the Justices have referred to the theory that the “connotation” must remain the same as it was in 1900, but the “denotation” can change (eg, Kirby and Callinan JJ in Shaw; Kirby J, very critically, in Grain Pool). These terms were used in the nineteenth century philosophical usage, differently from and almost the opposite of current usage, where connotation meant the essential core of meaning and denotation meant the range of things to which the word could apply (the range of things signified by the signifier, in the language of more modern semanticists). Not only is this language archaic and confusing to modern readers, it is doubtful that it really 102

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helps the analysis of hard cases. What it does is it gives the judges a tool to justify what their hunch as to the right outcome has told them. For example, in King v Jones [1972] HCA 44; (1972) 128 CLR 221, the Court held that since “adult” meant a person aged 21 in 1900, that was still its meaning in s 41 of the Constitution because that was part of its connotation in 1900. One could equally plausibly argue that the connotation at any time was “any person given the rights of an adult in a particular society at a particular time”, and that in 1900 it was only the denotation that happened by historical circumstances to be limited to persons over 21.

8.5 Implications from text and structure [8.50] As noted at 8.20 above, the first three Justices of the High Court based many decisions on the doctrines of reserved State powers and implied inter-governmental immunities, which were “exploded” in the Engineers case. These implications were made, not from any particular words or phrases in the text, but from the Justices’ vision of what the federation was intended to be — that each of the Commonwealth and the States “is, within the ambit of its authority, a sovereign State, subject only to the restrictions imposed by the Imperial connection and to the provisions of the Constitution, either expressed or necessarily implied”: D’Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91 per Griffith CJ. The joint judgment in the Engineers case held at 141 that his Honour and his colleagues had gone altogether too far in finding “necessary” implications and that the earlier judgments: … are sometimes at variance with the natural meaning of the text of the Constitution; some are irreconcilable with others, and some are individually rested on reasons not founded on the words of the Constitution or on any recognized principle of the common law underlying the expressed terms of the Constitution, but on implication drawn from what is called the principle of “necessity”, that being itself referable to no more definite standard than the personal opinion of the Judge who declares it.

However, this did not mean that no implications could be drawn. In West v Commissioner of Taxation (NSW) [1937] HCA 26; (1937) 56 CLR 657, Dixon J said: Since the Engineers’ Case a notion seems to have gained currency that in interpreting the Constitution no implications can be made. Such a method of construction would defeat the intention of any instrument, but of all instruments a written constitution seems the last to which it could be applied. I do not think that the judgment of the majority of the court in the Engineers’ Case meant to propound such a doctrine.

His Honour foreshadowed the development of a doctrine that State laws could not discriminate against the Commonwealth. As we will see in Chapter 33, a modified doctrine of Commonwealth–State immunities (not general immunity, but immunity from laws directly curtailing the exercise of their powers) has since been developed. 103

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In Australian Capital Television Pty Ltd & New South Wales v Commonwealth [1992] HCA 45; (1992) 177 CLR 106, Mason CJ cited Sir Owen’s remarks, above, and continued at [27]–[30]: In conformity with this approach, the Court has drawn implications from the federal structure prohibiting the Commonwealth from exercising its legislative and executive powers in such a way as to impose upon a State some special disability or burden unless the relevant power authorized that imposition or in such a way as to threaten the continued existence of a State as an independent entity or its capacity to function as such. But there is no reason to limit the process of constitutional implication to that particular source. Of course, any implication must be securely based. Thus, it has been said that “ordinary principles of construction are applied so as to discover in the actual terms of the instrument their expressed or necessarily implied meaning”. It may not be right to say that no implication will be made unless it is necessary. In cases where the implication is sought to be derived from the actual terms of the Constitution it may be sufficient that the relevant intention is manifested according to the accepted principles of interpretation. However, where the implication is structural rather than textual it is no doubt correct to say that the term sought to be implied must be logically or practically necessary for the preservation of the integrity of that structure. It is essential to keep steadily in mind the critical difference between an implication and an unexpressed assumption upon which the framers proceeded in drafting the Constitution. The former is a term or concept which inheres in the instrument and as such operates as part of the instrument, whereas an assumption stands outside the instrument. Thus, the founders assumed that the Senate would protect the States but in the result it did not do so. On the other hand, the principle of responsible government — the system of government by which the executive is responsible to the legislature — is not merely an assumption upon which the actual provisions are based; it is an integral element in the Constitution.

The Court then proceeded to infer the implied freedom of political communication, discussed in Chapter 14, reasoning that without access to information the choice required by the words “directly chosen by the people” in ss 7 and 24 is not a proper choice. More recently, inferences about the importance of the right to vote have been drawn from the same sections; these are discussed in Chapter 15. Mason J’s dictum in [30] of the above extract is frequently referred to as the Justices explore the limits of these implications.

8.6 Severance, reading down, and interpretation to save validity [8.60] Statutes can be unconstitutional, or alleged to be unconstitutional, in varying ways and to varying degrees. In rare situations, the whole of a statute could turn out to be pursuing an unconstitutional aim, though most statutes that are challenged on constitutional grounds have a mixture of valid and invalid parts. This raises an issue of whether the invalid parts can be severed from the rest, or interpreted more narrowly 104

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(“read down”) so as to be valid. The role of this argument in litigation tactics varies; sometimes, as in R v Poole below, it is in the government’s interest to argue “yes the law is rather too broad, but it still applies to the challenger”, and sometimes, as in Coleman v Power above, it is in the challenger’s interest to argue “the law may well be valid in other cases but it doesn’t validly apply to me”. Sometimes severance results in a “draw”, as in Western Australia Airlines, below, where the law applied to some of the airline’s services but not to others. An early example, decided under general law principles, is provided by Owners of the SS Kalibia v Wilson [1910] HCA 77; (1910) 11 CLR 689. The Seamen’s Compensation Act 1909 (Cth) declared that it applied to a ship if it took on board passengers or cargo “at any port in a State … to be carried to and landed or delivered at any port in the same State … or another State” (emphasis added). Clearly the Act would have been an exercise of the “trade and commerce among the States” power in para 51(i) if it only referred to delivery in another State, but the application to delivery from one port to another in the same State took the Act outside Commonwealth power. When it was challenged, it was held wholly invalid. As to the argument that the extra words could be severed, Griffith CJ held that “the Court would be in effect making a new law if it gave effect to the Statute as a law intended to apply to part only of the class”. Higgins J dissented, saying “There is no difficulty in disentangling the Act so far as it is ultra vires from the Act so far as it is intra vires”. In 1930, s 15A was added to the Acts Interpretation Act 1901, to try to avoid awkward outcomes like SS Kalibia. It provides: 15A. Construction of Acts to be subject to Constitution Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power.

There is a similar provision about Commonwealth regulations in s 46 of the same Act, and all States now have similar provisions in their Acts Interpretation Acts. They may sound like somewhat arrogant commands by the Parliament to the courts, but they can be taken as declarations by Parliament that where it is possible for a court to save a provision from invalidity by severing words or reading them down, the Parliament is to be taken to have intended to enact the resulting law. This is more or less the way the Court have treated them, as the extract from Pidoto, below, shows. In a case where the addition of an invalid part, section, or phrase within a section has caused the problem, the Act can be saved from invalidity by striking out the offending words (as Higgins J would have done in SS Kalibia). Where words have been used that are too broad, the court must decide whether it can read the words down, or as Dixon J described it in R v Poole; Ex parte Henry (No 2) [1939] HCA 19; (1939) 61 CLR 634, treat them as having “a distributive operation”. In either case, the court must be persuaded that it is not actually performing a legislative function; it can effectively create 105

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a somewhat redacted version of the original Act but it must not create something significantly different from what the legislature intended. The concern that they might be performing a legislative function affects the judges particularly when they are asked to read words down, or to treat them “distributively”. As Latham CJ said in Pidoto v Victoria [1943] HCA 37; (1943) 68 CLR 87: Where the law itself indicates a standard or test which may be applied for the purpose of limiting, and thereby preserving the validity of, the law, the case is different. Thus where a law is clearly made with the intention of exercising the power to make laws with respect to trade and commerce, it is not difficult to read it down so as to limit its application to interState and foreign trade and commerce, with which alone the Commonwealth Parliament has power to deal (Constitution, s 51 (i)). In such a case the subject matter of the legislation itself is such as to provide a test for limiting the law by construction so as to treat it as applying only to that part of a definite subject matter which is within power and with which Parliament clearly intended to deal so far as it could lawfully do so. … in my opinion the provisions of the Acts Interpretation Act have provided a rule of construction and not a rule of law. The words of the sections expressly refer to the manner in which laws are to be construed. In the case of separable words and expressions, the application of the sections does not raise as many difficulties as in the case of general words and expressions. If a law is stated to apply to cases A, B and C in express terms and the application of the law to B and C is beyond power, then the law may validly apply to A unless the striking out of the provisions with respect to B and C results in the law having a different policy or operation in relation to A. In other cases, where there are not separate words, but where there are general words or expressions which apply both to cases within power and to cases beyond power, then if an intention of Parliament that there should be a partial operation of the law based upon some particular standard criterion or test can be discovered from the terms of the law itself or from the nature of the subject matter with which the law deals, it can be read down so as to give valid operation of a partial character. In such a case also it would be necessary to consider whether such reading down would alter the policy or operation of the statute with respect to the cases which, after the reading down, would still remain within its terms. But if a law can be reduced to validity by adopting any one or more of a number of several possible limitations, and no reason based upon the law itself can be stated for selecting one limitation rather than another, the law should be held to be invalid. In such a case the law cannot be saved by the Acts Interpretation Act.

In the outcome, some industrial regulations made under the defence power (in its expanded wartime state; see Chapter 19) were held valid but others were invalid in so far as they applied to State employees because two alternative bases for reading down had been suggested, and, as Latham CJ held, “there is no reason for choosing one limitation rather than the other”. His Honour’s reference to the ease of reading down laws with respect to trade and commerce is illustrated by R v Poole; Ex parte Henry, above, where Dixon J read “aerodrome” to mean one from which interstate or overseas flights took place, and 106

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Attorney-General (WA) v Australian National Airlines Commission [1976] HCA 66; (1976) 138 CLR 492 (Western Australia Airlines) where a Commonwealth licensing provision beyond the 51(i) power was held to be valid with respect only to flights to or within the territories under the less-restricted s 122 territories power. On the other hand in Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323, a law protecting people who held sub-contracts with contractors who had contracts with corporations — obviously fairly remotely connected with the corporations power! — was held to be invalid by a narrow majority. Even though, as the majority conceded, the section would apply to some circumstances in which there would be a sufficient connection with the power, they held that they could not read it down. As Dawson J said, “[i]t is one thing to give that which remains the operation which it was always intended to have. It is another thing to give it a different operation as a result of severing the invalid from the valid”. [8.70] There is another principle, somewhat independent of s 15A, that can save laws from invalidity. This is the principle referred to by Kirby J in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 as the “interpretive principle of constitutional conformity”. In effect, it means that the Court should interpret a statute before considering its constitutional validity, and that in doing so it can, so to speak, anticipate the arguments about validity and relate those arguments back into the interpretation, so as to favour a constitutional interpretation if possible. This has been adverted to by Justices since the earliest days of the court, but it has been given greater prominence recently. In Coleman v Power, four Justices agreed that if section 7 of the Vagrants, Gaming and Other Offences Act 1931 (Qld) applied to Coleman’s conduct (introducing a policeman to the assembled crowd as a “corrupt copper”) then it would be invalid as limiting the freedom of political discussion, discussed in Chapter 14. Gummow, Kirby and Hayne JJ held that the prohibition of “insulting words” in the section, the aim of which was to preserve order in public places, applied only where the words were likely to provoke a violent reaction, and police are trained not to react violently when provoked. Gummow and Hayne JJ explained at [182] that they reached this conclusion first “even without regard to constitutional considerations” but then noted at [194] that the conclusions were reinforced by the principles of freedom of political communication. They noted at [199] that if the section could not be construed that way then it would be unconstitutional. Kirby J arrived at the same interpretation by appealing to the Queensland equivalent of s 15A (s 9 of the Acts Interpretation Act 1954 (Qld)) and common law principles but first explained at [227] that this was necessary because otherwise s 7 would be incompatible with the Constitution”. McHugh J found the general reading down of s 7 unconvincing, arguing (with respect, persuasively) that the history of the section showed that the Parliament had meant the section to apply even when a violent reaction was not provoked. He therefore applied s 9 and read the section down, guided by the constitutional freedom, so as not to apply to penalise insulting words “uttered in discussing or raising matters concerning politics and government in or near public places” (at [109]). Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 involved a challenge to s 76 of the Corruption and Crime Commission Act 2003 (WA). Earlier sections provided that the Commissioner of Police could order 107

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fortifications around premises to be demolished. Section 76 provided for judicial review of the orders by the Supreme Court, but subs (2) provided: The Commissioner of Police may identify any information provided to the court for the purposes of the review as confidential if its disclosure might prejudice the operations of the Commissioner of Police, and information so identified is for the court’s use only and is not to be disclosed to any other person, whether or not a party to the proceedings, or publicly disclosed in any way.

If read to its full effect, this seemed to interfere with the independence of the Court in breach of the Kable doctrine discussed in Chapter 34. However, the majority read it so as to be valid. Gummow, Hayne, Heydon and Kiefel JJ held that the review power granted by s 76(1) included the power to review the Commissioner’s claim that the disclosure of the information could be prejudicial, and that the words “or publicly disclosed in any way” “should not be read as an attempted legislative direction as to the manner of the outcome of any review application made under s 76”. They explained at [44] that “the words are no more than an attempt at exhortation and an effort to focus attention by the Court to the prejudicial effect disclosure may have”. Therefore the Club’s challenge was dismissed, though it got the benefit of a kind of advisory opinion, advising the Supreme Court that it did not have to take the Commissioner’s declarations at face value and that, with due discretion, it could even say something about them in its reasons. Note that the joint judgment contains no reference to the equivalent of s 15A (Interpretation Act 1984 (WA) s 7); according to their Honours, they were simply construing an Act according to the normal principles. It is evident that this approach goes much further than simply reading a provision “distributively” and holding that it applies to some parts of the distribution and not to others. Sometimes it may be described not so much as “favouring” a constitutional interpretation, as it was described above, but forcing one. Kirby J dissented in Gypsy Jokers, saying at [84]: “If I could adopt the narrower view of s 76(2) of the Act, I would. However, in my opinion, it is artificial.” Even with the assistance of this extra “weapon” in the armoury of validation, of course, some statutes cannot be saved; as we will see in Chapter 34, a number of subsequent laws directed at bikie gangs have been invalidated. Whether a law that seems invalid at first glance will be saved by severance, reading down or interpretation remains one of the more unpredictable areas of constitutional law.

8.7 Political, and yet not political [8.80] In his speech on his swearing-in as Chief Justice,7 Sir Owen Dixon said: It is not sufficiently recognised that the Court’s sole function [in constitutional cases] is to interpret a constitutional description of power or restraint upon power and say whether a 7 (1952) 85 CLR xi at xiv.

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given measure falls on one side of a line … or on the other, and that it has nothing to do with the merits or demerits of the measure. Such a function has led us all I think to believe that close adherence to legal reasoning is the only way to maintain the confidence of all parties in federal conflicts. It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no safer guide to judicial decisions in great conflict than strict and complete legalism.

By literalism, clearly Sir Owen did not mean a pedantic legalism; this was the same judge who had insisted on the necessity of drawing implications to give the Constitution life. The insistence above on not deciding the merits or demerits is the key; he was saying that a Justice can rule a law unconstitutional even if he or she thinks it is a desirable law, or constitutional even if it is a bad law. The decision is not political. Yet clearly the High Court has an important role in adjudicating in political conflicts. Some of the most bitter constitutional battles occur when the Labor Party is in power federally and some or all of the States have Liberal Party governments (as in the Whitlam years), or vice versa (as in the time of the Work Choices case). Clearly the decisions have political effects; a government is or is not able to implement a part of its policy. So, are the decisions political or not? The crudest sense in which one could say that constitutional decisions were political would be if one could confidently assume that a judge who has been appointed by a particular government would favour that government’s political line in all of his or her decisions. This theory, if anyone ever believed it, was given the lie when Callinan J, appointed after the Deputy Prime Minister had promised to appoint a “capital C Conservative”, ruled the Howard government’s Work Choices legislation invalid.8 Few, if any, Justices have been crudely political in that sense. Yet the Court is political in another sense. Judges come to the court with presuppositions about the proper interpretation of the Constitution, not so much party-political biases but political in the sense that they are presuppositions about the way the nation — the polity — should be organised (which is the original and broader meaning of political). The big battle ground has been in regards to the interpretation of the balance, or imbalance, of Commonwealth and State powers. The first five Justices, as we have seen, differed over this. Although Dixon CJ is held up as the great defender of the Constitution by the traditionalists in the Samuel Griffith Society, in fact he did more to advance the cause of central power than any other early judge except Isaacs J, with his decisions on inconsistency (discussed in Chapter 32), excise (Chapter 29), and implied immunities of the Commonwealth (Chapter 33). This is not inconsistent with his emphasis on “strict and complete legalism”; it is just that when he looked at the law called the Constitution he saw a law that set up a strong central government. For a period in the 1970s, during and after the Whitlam government, there was a regular split on the Court between those favouring a broad interpretation of the corporations and external affairs powers and those favouring a narrow interpretation. They 8 New South Wales v Commonwealth [2006] HCA 52; (2006) 229 CLR 1.

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were not all on the court at the same time, but the “centralists” were McTiernan, Mason, Jacobs, Murphy and Brennan JJ and the “States–righters” were Gibbs, Dawson, Aickin and Wilson JJ. Barwick CJ was nationalistic in cases like the Seas and Submerged Lands case, but joined the States–righters on the scope of the corporations power. Stephen J tended to agree with Gibbs J but was slightly more centralist and often drew fine distinctions that did not seem important to the others. After most of the older States–righters had left the bench, Callinan J took up the cause, and Kirby J then joined him in Work Choices, defending both the role of the States and the arbitration system which had been such a central part of Australian life for a century. More recently, we have seen differences in presuppositions about the balance between implied democratic rights and the power, or “right”, of the Parliament to make laws about the electoral system. In Roach v Electoral Commissioner and Rowe v Electoral Commissioner, discussed in Chapter 15, a consistent split occurred with Hayne and Heydon J dissenting in both, joined by Kiefel J in the latter case. This does not mean the dissenters are anti-democratic; they just have different presuppositions about the role of voters and parliament in a democracy. There is much more that could be said about the political role of the court and the presuppositions of the judges; a couple of books are referred to in the Further Reading section. The point of the short survey presented here is simply to sensitise readers to the facts that: ■

■ ■

highly-legally-educated judges can differ in their interpretation of the apparently plain words of the Constitution, and there is often something to be said for both sides of the argument (for a particularly frank discussion of the difficulty of deciding an evenly-balanced case, see Kirby J’s judgment in Singh v The Commonwealth, cited above in 8.40) once you have read many cases you will find patterns in some Justices’ decisions and be able to identify their presuppositions, but it will seldom be as simple as “this Justice was appointed by X Party and therefore he/ she will find their legislation valid”.

Further, you will find that sometimes the decision of a Justice will not fit into the pattern you have come to expect because they do listen to the arguments and try to decide each issue on its merits. Cross-references: The more specific rules of, or approaches to, the interpretation of the legislative powers of the Commonwealth Parliament are discussed in Chapter 17. There are a few sections of the Constitution that prohibit discrimination between the States in certain kinds of laws; for decades the High Court saw “discrimination” as any difference in treatment, but recently it has been considering the purpose of each prohibition and considering whether the different treatment is imposed for an improper reason. We will meet examples of this kind of approach in Chapters 23, 30 and 31, and a suggestion that a similar approach should be taken to “special laws for the people of any race” in Chapter 20. 110

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ISSUE FOR DISCUSSION Consider any of the cases mentioned in 8.60 and 8.70 on severance, reading down and interpretation to save validity. If the Act is declared invalid, all the people to whom it could validly apply are relieved of legal obligations simply because some litigant persuaded the High Court that the drafters had been careless. On the other hand, if parts are severed, or it is read down or “interpreted”, an Act which is not wholly effective may stay on the statute book but only someone who has read the case law will know how it should be read. Which is the best, or the least bad, alternative?

FURTHER READING Brian Galligan, Politics of the High Court: A Study of the Judicial Branch of government in Australia, UQP, 1987 Peter Hanks, “The Political Dimension of Constitutional Adjudication” (1987) 10 UNSWLJ 141 David Hume, “The Rule of Law in Reading Down: Good Law for the ‘Bad Man’” (2014) 37 MULR 620 Jeremy Kirk, “Constitutional Interpretation and a Theory of Evolutionary Originalism” (1999) 27 Fed L Rev 323 Michael Kirby, “Constitutional Interpretation and Original Intent: A Form of Ancestor Worship?” (2000) 24 MULR 1 Michael Kirby, “Judicial Activism: Power Without Responsibility? No, Appropriate Activism Conforming to Duty” (2006) 30 MULR 576 David Solomon, The Political High Court: How the High Court Shapes Politics, Allen & Unwin, 1999

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PART C GENERAL CONSTITUTIONAL DOCTRINES APPLYING TO COMMONWEALTH AND STATES Chapter 9. The Executive Branch — Governors, Ministers, Executive Councils and Cabinets Chapter 10. Sources of Executive Power Chapter 11. Limits on Executive Power; Parliamentary Control of Finance and the Rule of Law Chapter 12. General Rules as to the extent of Legislative Power — Four Non-limits Chapter 13. Partial Protection of Human Rights by Interpretive Techniques and Quasi-Constitutional Doctrines Chapter 14. The Constitutional Freedom of Political Discussion

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The Executive Branch — Governors, Ministers, Executive Councils and Cabinets

9.1 Context and overview of Part C [9.10] Before turning to the study of the effects of our written Constitutions that apply specifically to the legislative powers of the Commonwealth (Part D) and the States (Part E), we should first consider some of the doctrines that affect the exercise of executive and legislative power, and apply more or less equally to the Commonwealth and States. Most of these doctrines have their source in common law, in historic English statutes and parliamentary practice, or in provisions of the Constitution and Constitution Acts that were drafted to reflect those historic developments. This Chapter considers the nature of executive government; in particular the fact that we have references in constitutional documents to executive power being vested in a Governor-General and Governors, but that such power is really exercised by Ministers who have majority support in at least the “lower” House of the relevant Parliament. Then the nature of executive power and its subjection to the rule of law will be discussed in Chapters 10–11. The following three chapters will then deal with general doctrines about legislative powers (again, “general” in that they apply to the Commonwealth and the States alike). Chapter 12 will introduce the general doctrines about legislative power that preserve faint echoes of the English notion of parliamentary sovereignty — that, to the surprise of those who have heard more about the US Constitution than the Australian one, there are no limits on the powers of parliaments (Commonwealth or State) to delegate powers, pass retrospective laws or pass laws that breach the doctrines of international law, and only very faint limits on the powers to make extra-territorial laws. Chapter 13 114

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will then explore the way in which doctrines of the common law have qualified the Chapter 12 doctrines by applying a principle of interpretation under which it is presumed that parliaments do not intend to trample upon individuals’ rights unless they make that intention clear. It will also refer briefly to statutory Human Rights Acts which, in some jurisdictions, attempt to codify and reinforce that principle of interpretation. Chapter 14 will take note of the more recent line of cases which has provided the strongest rights-related qualification to the principles introduced in Chapter 12 — cases in which the Court has taken the words “directly chosen by the people” in ss 7 and 24 of the Constitution to mean that people must have an informed choice, leading to an implied freedom of political debate and discussion which extends to State politics as well as to Commonwealth. The further implications about voting rights, also drawn from these words, which apply only to the conduct of Commonwealth elections, will be discussed in Chapter 15, in Part D.

9.2 The “dignified parts of the Constitution” transplanted to Australia [9.20] In this Chapter, “Governor” will be used to include both the Governor-General and State Governors, to avoid having to say “Governor-General or Governor” repeatedly. “Constitutions”, without qualification, will mean the Commonwealth Constitution and the State Constitution Acts. The colonial Constitution Acts and then the Commonwealth Constitution were drafted under the influence of the British tradition in which only the “dignified part” of the Constitution is referred to in official documents. When the colonial Constitution Acts were being drafted in the 1850s, even though Bagehot had not yet written about the “efficient secret” (2.80), everybody who participated in government knew that the dignified language was in fact a dignified lie. Nevertheless, the old forms were still used; it would have seemed quite disrespectful to write “executive power is exercised by the Public Service under the direction of the Ministers in Cabinet, who must be appointed on the basis that they have the support of the majority of Members of the Legislative Assembly — and the Queen is a figurehead”. The Governors were appointed by British Orders in Council or Letters Patent, and the Constitution Acts of the 1850s said that they were to be advised by Ministers, and everyone was supposed to know how that worked. This did not change in the next 40 years; the Commonwealth Constitution says that executive power is “vested in the Queen and is exercisable by the Governor-General” (s 61), who is “advised” by a Federal Executive Council (ss 62–63). Section 64 says that the Governor may appoint officers to administer Departments of State of the Commonwealth, and that these officers are both Members of the Executive Council and Ministers. Cabinet, and a Prime Minister, are not mentioned. The State Constitution Acts tended until recently to assume the existence of a Governor; the semi-modernised ones now say things like “there shall continue to be a Governor” (Constitution Act 1902 (NSW), s 9A) or “there must be a Governor” (Constitution of Queensland 2001, s 29(1)). They do not expressly “vest” executive power in the 115

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Governor for fear that sections vesting the three types of power in the three branches might led to inferences of an enforceable separation of powers; it is still simply assumed that a Governor governs. Most of them refer to the existence of an Executive Council which “advises” the Governor (eg, Constitution Act 1902 (NSW), s 35B). The Constitution of Queensland 2001 provides that there must be both “an Executive Council for the State” (s 48) and “a Cabinet consisting of the Premier and a number of other Ministers …” which “is collectively responsible to the Parliament” (s 42), without explaining that these two bodies consist in practice of exactly the same people. Dignity in drafting persists, even though it promotes obscurantism.

9.3 The “efficient parts” also transplanted; Governors receiving “advice” that they must take [9.30] In fact, all Australian jurisdictions operate under the “conventions” of responsible government. As noted in Chapter 2, this means that neither the powers of the Governors nor Ministers are as absolute as they might seem. Executive power is exercised by the public service under the direction of the Ministers in Cabinet, and the Governors must appoint Ministers who have the support of the majority of Members of the “lower” House. After most elections it quickly becomes apparent that a party or coalition of parties has a majority in the “lower” House. The leader of that party or coalition will expect to be appointed as Prime Minister or Premier, and will nominate other Ministers (sometimes, depending on the party rules, chosen by the leader personally, and sometimes elected in the party room). The Governor will then appoint them as Ministers; the Governor is therefore a figurehead whose main task is to appoint a Ministry, and then to sign official documents on the “advice” of the Ministers — merely, as Queen Victoria said grumpily of her own role, “a machine for registering the results of general elections”.1 If a governing party loses confidence in its leader mid-term and elects a new one, then the leader will resign as Premier or Prime Minister and the Governor will appoint the new one. People who have complained, “I voted for Kevin Rudd/Julia Gillard/Tony Abbott as Prime Minister”, and that the voters’ will has been ignored by a change of Prime Minister, are missing the point. We do not elect a President for a fixed term (no matter how “presidential” election campaigns may have become); we elect Members of the House of Representatives and we are supposed to know that whoever is to become Prime Minister will need to have the personal skills to maintain the support of the majority of those Members. Even if some of the voters do not know it, it is the only way the system can work. As long as there is a Ministry under some leader who retains the confidence of the “lower” House, and the Ministry is not accused of gross illegality and can obtain “supply”, the Governor will accept their “advice” on all matters. The exceptional cases where a Governor may consider using the “reserve” powers are considered below at 9.90–9.150 — but it is important to note that they are very exceptional cases. 1 John P Mackintosh, The British Cabinet, 3rd ed, Stevens & Sons/Methuen, 1977, p 19.

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The word “conventions” is in quotation marks above because, as explained in the sections on English and colonial history, the core convention — that the Ministers must be chosen because they are supported by a majority in the “lower” House — is backed up by solid law; a government that cannot get a budget through the Parliament cannot lawfully spend money and therefore cannot govern. The case law on this will be noted in Chapter 11, but note that the cases are on peripheral issues — there are simply no cases on a government trying to spend money when it has failed to get its budget through the “lower” House because no government has ever tried. Whether a government should resign if it cannot persuade the “upper” House to pass its budget as well was the big issue in the 1975 crisis, which will be discussed in 9.140. When Ministers are sworn in, they are also sworn in as Members of the Executive Council. In most jurisdictions, appointments to the Executive Council are nominally for life, but once people cease to be Ministers they are simply not invited to meetings anymore. The Ministers, or some of the more senior ones, also meet as another body known as Cabinet. Where Cabinet consists of only some of the Ministers, the other Ministers are referred to as the “outer Ministry”. Cabinet is where the policy decisions are made and government-sponsored legislation is approved. Decisions that need to be formally made by the “Governor in Council”, because the Constitution or a statute says so, are then taken to the Executive Council meeting where the Governor signs the formal documents. The quorum for a meeting of the Executive Council is two Ministers plus the Governor in most jurisdictions, and it is almost unknown for more to attend — the real decisions have been made in the Cabinet Room, and just enough Ministers attend the Executive Council meeting to ensure that it is valid. Once a matter is before the Executive Council, Governors with legal training and a forceful personality have been reported to cross-examine the Ministers as to whether everything has been done according to the rules, and paperwork may sometimes be sent away to be re-done properly. Some Governors will even point out the dangers of a proposed policy to the Ministers; as Bagehot said of the Queen (see Chapter 2), the Governors have “the right to be consulted, the right to encourage, the right to warn”. Sir Paul Hasluck claimed that in his five years as Governor-General under three different Prime Ministers, “there were four or five occasions on which a major issue arose in Executive Council and, as a result of discussion in the Council, a government eventually acted more wisely than was at first proposed”2. However, as noted already, in the end the Governor will sign what he or she is asked to sign. Sir Paul also claimed that the Governor-General acts as “a watchdog over the Constitution and laws for the nation as a whole”3, which can sound like a serious overstatement unless one interprets the “watchdog” as one that has the capacity to growl rather softly but not to bite; it is the High Court that fulfils the role of watchdog or guardian over the Constitution. As the 2 Sir Paul Hasluck, “The Office of Governor-General” (Queale Memorial Lecture), Melb UP, 1979, p 30; also available on the Governor-General’s website at http://www.gg.gov.au/sites/default/files/files/ Queale%20Memorial%20Lecture.pdf. 3 Hasluck, n 2 above, p 16.

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discussion in 9.90–9.150 below will show, the Governors can suddenly become tremendously important in a time of parliamentary deadlock or crisis; but then they become the enforcer, not of all constitutional principles, but specifically of the principles of responsible government. If a government is persisting in illegal conduct after a High Court ruling on validity, then a Governor may act as the watchdog, and dismiss the government — but this has happened just once in our modern history (see 9.140).

An apparent distinction in grants of executive powers [9.40] In the Commonwealth Constitution the drafters went to some apparent trouble to express some powers as being vested in the “Governor-General in Council” (which, as s 63 explains, means the Governor-General acting with the advice of the Federal Executive Council) and others as simply being vested in the “Governor”. For examples of the latter approach, see ss 5, 57, 58, 64, 68 and 128. There might seem to be a logical inference that in exercising the latter powers the Governor-General can act at his or her discretion, but it is accepted that many of these powers can only be exercised on “advice”. It seems that once again it was a matter of the drafters being polite; where powers were regarded in Britain as being still part of the prerogative rather than having been absorbed into the Crown’s statutory functions (a process which will be discussed in Chapter 10), the drafters described them as powers of the Governor-General. As Quick and Garran explained in their discussion of s 5: [T]he words “in Council” [if added after “Governor-General”] would have been an invasion of the royal prerogative … The words would moreover have been mere surplusage; nothing would have been gained, since parliamentary government has well established the principle that the Crown can perform no executive act, except on the advice of some minister responsible to Parliament.4

Reading that literally, the authors seem to be denying the existence of any reserve power exercisable at Royal or vice-Regal discretion; this goes too far. We shall consider just which powers might, despite Quick and Garran’s statement, be reserve powers in 9.90–9.150 below, but some discussion of the specific powers apparently given to the Governor-General may be in order. Section 5 provides that the Governor-General “may” appoint times for the sessions of Parliament, and prorogue the Parliament and dissolve the House of Representatives. “Prorogation” is a suspension of sittings (an officially-imposed adjournment), after which a new “session” must begin, complete with an official opening. It used to be done yearly, meaning that each Parliament consisted of three sessions, but recently the normal pattern is that the Houses merely vote to adjourn from time to time, so the one “session” continues for the duration of the Parliament. Deviations from the normal pattern still occur, for example when the Queen toured Australia and the Prime Minister wanted the pomp and ceremony of a Royal opening of Parliament (1974 and 1977), or in April 2016 4 Quick & Garran, The Annotated Constitution of the Commonwealth of Australia, 1901, p 406.

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when the Prime Minister wanted to force the Senate to resume sitting so that it would consider a disputed Bill5. As the examples show, prorogation is usually done on the advice of a Prime Minister, though it may be that in extreme cases the Governor-General has a “reserve” power to impose one or reject the Prime Minister’s request for one: see 9.150. “Dissolution” of the House of Representatives has always been done so far on the advice of a Prime Minister (even if the Governor-General has to sack the Prime Minister and appoint a new one, just to get that advice, as in 1975), and there are those who argue that it can only be done this way. This will be discussed below. Section 57 provides that when the Houses are in disagreement about a Bill, the Governor-General “may” dissolve both Houses and if the disagreement continues, “may” convene a joint sitting. (The case law on s 57 will be discussed in Chapter 16). Section 128 provides that where one House has passed a proposed constitutional alteration twice, the Governor-General “may submit” the proposal to the electors. It is generally agreed that these powers should only be exercised on advice (though in 1975 a double dissolution was advised by a Prime Minister appointed on the express condition that he would do so). This is unfortunate in the case of s 128, because it means that an alteration proposed by the Senate but opposed by the government and the House of Representatives is unlikely to be put to a vote. Since “the people” cannot directly propose an alteration, it would better promote their control over the Constitution if they were allowed to vote on proposals made by either of the Houses that they have elected. There would be a practical difficulty, however. Despite the wording of s 128 the GovernorGeneral cannot “submit” a proposal to the electors; he or she can proclaim that it should be done, but in the case of a Bill twice passed by the Senate but not by the House of Representatives, the administrative machinery would have to be put in train by a government probably opposed to the proposed alteration. Section 58 provides that when a proposed law (a Bill) is presented to the GovernorGeneral “he shall declare, according to his discretion … that he assents … or that he withholds assent or that he reserves the law for the Queen’s pleasure”. Since Australian Governors-General ceased to be agents of the Colonial Office in the 1930s, the idea of reservation has become obsolete. The giving or withholding of assent is clearly now, if it was not from the beginning, subject to the principle of responsible government, but there is a theoretical question — if the Parliament enacts a Bill that, in the end, the government is unhappy with, should the Governor-General accept the advice of the Ministers or the Parliament? This is discussed below at 9.70–9.80. The second paragraph of s 59 provides that the Governor-General may send a bill back to the House in which it originated, with a message recommending amendments. There are similar provisions in the Standing Orders of several State Parliaments. Although this seems as if it gives the Governor-General some special power to intervene in the drafting of Bills, it is actually there so that if the government spots some flaw in the drafting at 5 See Damon Muller, “So you’ve been prorogued; Common questions answered”, at http://www.aph. gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2016/March/ Proroguing_Parliament. In the 2016 case, the Parliament was prorogued on a Friday and summoned to sit again on the following Monday.

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the last moment, they can use the Governor-General’s message as a device for briefly reopening the debate and having an amendment approved. It was used, for example, for the Privy Council (Appeals from the High Court Act) 1975; as originally passed the Bill allowed an appeal “in a proceeding that was commenced in court” before the commencement date. At the last minute some alert person asked, “commenced in which court — the court of first instance or the High Court?”, so a Governor-General’s message was sent to Parliament recommending that the words be changed to “commenced in a court” — problem solved! Section 64 provides that the Governor-General “may” appoint Ministers, and that they shall hold office during his or her pleasure. As explained above, the central feature of responsible government is that the Prime Minister and the Ministry as a whole holds office at the pleasure of the majority of the House of Representatives. Each Minister holds office at the pleasure of the party room or the Prime Minister. Normally Prime Ministers resign when they lose the House’s or the party’s support, and Ministers resign when the Prime Minister tells them to, but the Governor-General has the power to dismiss them should that not happen. Apart from all the ceremonial functions, this is the Governor-General’s (and a State Governor’s) main constitutional role — as the “policeperson” of the principle of responsible government. Finally, s 68 provides that “the command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General”. Taken literally, this might suggest that the Governor-General is some sort of super-Field-Marshall who personally commands the Army and Navy, if not the Air Force, in time of war. However, the drafters well knew that no British monarch had personally led the army to war since William III, and expected that this section would also be read subject to the tradition of respons­ ible government. Quick and Garran commented that the command in chief is “one of the oldest and most honoured prerogatives of the Crown, but it is now exercised in a constitutional manner”,6 that is, “with the advice of his Ministry having the confidence of Parliament”. The drafters of the Defence Act 1903 have tried to clarify the situation; ss 8, 9 and 9A respectively provide that: ■ ■

■

the Minister (of Defence) shall have the “general control and administration” of the Defence Force; the Chief of Defence Force shall “command” the Force and the service chief of each arm (Navy, Army and Air Force) shall command that arm — but this is “subject to s 68 of the Constitution”; and the Secretary of the Department and the Chief of Defence Force shall “jointly have the administration”, except for command matters.

This may be less than crystal clear, but the overall effect is clear enough; the Cabinet decides on the general disposition of the forces, and trusts the Chiefs to get the tactics 6 This passage is quoted by French CJ and Gummow J in Lane v Morrison [2009] HCA 29; (2009) 239 CLR 230 at [57].

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right and the Governor-General has nothing to do with it. When the Australian government wanted the 7th Division returned to Australia, the “cablegram war” referred to in Chapter 5 was not between the Governor-General and the Queen, it was between the two Prime Ministers. In the words of a learned commentator, “the Governor-General is in effect no more than a glorified Patron of the Defence Forces”.7 There are similar drafting distinctions between “Governor” and “Governor in Council” in the State Constitution Acts, though of course there is no reference to military command. They are equally meaningless; whether power is granted to a Governor in Council or apparently to the Governor alone, it is to be exercised on advice of the Council or the relevant Minister — except in a parliamentary crisis.

9.4 Need for Ministers to be Members of Parliament; Ministerial responsibility [9.50] In the section above, the need for the government to have the support of the majority of the “lower” House is mentioned. This is a part of the notion of respons­ ible government — the Ministry is responsible to the House for its very existence. But there is another day-to-day aspect of responsibility; the Ministers are expected to be Members of Parliament. In Britain and in some States this is not a written rule; in theory, the Members could express their confidence in some charismatic leader who is not even a Member of Parliament, or in a Ministry that included non-Members, but it is most unlikely to happen. In Britain, there is an easy way to comply with the rule — if a Prime Minister wants to appoint some outside expert as a Minister, he or she recommends them for a life peerage, and they become a Member of the House of Lords. In South Australia,8 Victoria9 and the Commonwealth,10 the Constitutions provide that no Minister shall hold office for longer than three months unless “he” is or becomes a Member of Parliament. In the Commonwealth’s case, this was originally necessary to validate the offices of the first Ministers, who were appointed before Federation Day and served until the first election in March 1901.11 In the States other than South Australia and Victoria, it is not stated as an express requirement but there are hints in the Constitution Acts that it is expected; there are provisions which generally disqualify 7 “Current topics”, (1979) 53 ALJ 804. A former Governor-General, Sir Ninian Stephen, thinks this might be too strong; see his address to graduates of the Joint Services Staff College reproduced at http://www. gg.gov.au/about-governor-general/governor-general-commander-chief. 8 Constitution Act 1934 (SA), s 66(1). 9 Constitution Act 1975 (Vic), s 51. 10 Constitution, s 64, third paragraph. 11 In fact one of them tragically died after only 10 days in office, making a reshuffle necessary. Another chose not to stand for election to the new Parliament. Otherwise Barton chose well — all his Ministers were duly elected to the Parliament and remained Ministers until 1903.

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persons who hold an “office of profit under the Crown” (in Queensland, “paid public appointment”) from membership of Parliament, but they then exempt Ministers, hinting that Ministers are indeed expected to be Members. The point of requiring or expecting the Ministers to be in Parliament is to enforce Ministerial responsibility. On the day-to-day level, Ministers can be called to account for their administration by facing question time and parliamentary committees. Ministers are the ones who present Bills to the Parliament relating to the matters administered by their Departments. There was also once a tradition that Ministers take individual responsibility for administrative errors or wrongdoing in their Departments by resigning, but this expectation is less strong these days, as Departments are so large that Ministers cannot be expected to know of everything happening in them. A Minister is still expected to resign for covering up Departmental errors or otherwise misleading Parliament, but this will sometimes depend on whether the Premier or Prime Minister thinks that the party can survive the scandal without demanding a Ministerial resignation. This is not strictly a matter of constitutional law, but rather a matter of political and parliamentary practice so case histories will not be discussed here, but can be found in the standard works on political practice.12 It is also clear that, while a government must resign after the passage of a motion of no confidence in the leader or the government, a motion of no confidence in a specific Minister will have no necessary effect unless the House is prepared to back it up with a broader no confidence motion.13 As well as the responsibility of individual Ministers for their, or their Departments’, failings, there is also alleged to be a doctrine of collective responsibility that says that once the majority in Cabinet has reached a decision, all Ministers should loyally support it. Though this can be dressed up in the language of constitutional principle (“Her Majesty’s advisers must not be seen to be divided”) it is in reality a maxim of political survival,14 and has sometimes been breached when a government decides that accepting dissent is the lesser of two evils; Prime Ministers in Britain and New Zealand, and a Premier of South Australia have given Ministers the right to publicly disagree with Cabinet decisions, when that was the only way they could form a stable Ministry.15 This is therefore quite clearly not a matter of constitutional law, and indeed its existence as a convention is debatable even as a matter of political principle or practice. Readers should refer to texts on politics or parliamentary practice for further details. 12 See, eg, Elaine Thompson & Greg Tillotsen, “Caught in the Act; the Smoking Gun View of Ministerial Responsibility” (1999) 58 AJPA 48–57. 13 See Members’ Ethics and Parliamentary Privileges Committee (now the Ethics Committee), Queensland Legislative Assembly, Report on a matter of privilege: Alleged Contempt by the Attorney-General for failing to resign his Ministerial Office following a vote of no confidence in him by the Legislative Assembly. 14 See, eg, Philip Joseph, Constitutional and Administrative Law in New Zealand, Brooker, 2007, p 285. 15 Gareth Griffith, Minority Governments in Australia 1989–2009: Accords, Charters and Agreements, NSW Parliamentary Library Research Service, 2010.

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Cabinet

Parliament (especially ‘lower’ House)

Agenda Setting

Premier All available Cabinet Ministers

Executive Council

Decisions needing to be given legal force

Governor 2 Ministers (or 3 with 1 presiding)

General policy guidelines

Proclamations, statutory instruments, appointments etc

Public Service departments

General public

Note: this diagram can be regarded as an expansion of the box labelled “Ministers” in Figures 2.1 and 11.1

Figure 9.1 Twin Bodies — Cabinet and Executive Council

9.5 Collective decision-making or dictation by the Prime Minister/Premier? [9.60] As it evolved in Britain, and as described by Bagehot, Cabinet government meant what it said — in the absence of a statute that made it clear that a particular Minister was to give advice on a particular matter to her Majesty, such advice was normally the prerogative of the Cabinet as a whole; if it could not decide unanimously, a majority vote would prevail. Of course, a Prime Minister with an overbearing personality might always win the vote, but some Prime Ministers, for example, Gladstone, were reputed to be genuine democrats who accepted a majority vote in Cabinet even if their own recommendation had been defeated. However, since those days, the role of the Prime Minister or a State Premier has been aggrandised, so that the decisions of a Prime Minister on matters which used to be decided by Cabinet as a whole are now meekly accepted by the other Ministers. One example is the dissolution of Parliament and the naming of an election date. It was accepted until 1920 in Britain that this would be debated and agreed by the whole Cabinet, but in 1922 the Prime Minister (Bonar Law) made the decision himself, and it has been done that way ever since.16 In Australia, Prime Minister Lyons said as late as 1934 that “the prerogative of deciding the election date rested with the Ministry”17 but, since then, Prime Ministers have assumed that it was theirs alone. Similarly, the recommendation of a new Governor-General used to be considered by the 16 Mackintosh, n 1 above, pp 452–455. 17 The West Australian, 28 June 1934, p 17.

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whole federal Cabinet,18 but since the 1940s the decision has been made by the Prime Minister (and sometimes, as with Prime Minister Whitlam’s choice of Sir John Kerr as Governor-General, has startled his colleagues). Together with the increased focus on the personalities of the party leaders in election campaigns, this has led some commentators to complain that we no longer have Cabinet government, but a de facto presidential system.19 Prime Ministers Gillard and Abbott both made some controversial decisions which they unblushingly described as “captain’s picks”. The pendulum has swung from the one-person rule of a Stuart King, to rule by a “committee of the parliament”, and is swinging, to some degree, back to the one-person rule — but only because Ministers stand back and acquiesce in the decisions made by Premiers and Prime Ministers with big egos.

9.6 Governor’s role as part of Parliament; questions relating to assent Assent after prorogation [9.70] As already noted, one group of a Governor’s powers relate to Parliament; in the case of the Commonwealth, s 5 gives the power to summon, “prorogue” (suspend) and dissolve, s 28 repeats the power to dissolve, and s 58 gives the power to assent (and the apparent power to refuse to assent) to legislation. One problem that has been suggested to exist is whether a Governor can assent to a Bill after the Parliament has been prorogued or dissolved. The alleged problem is, however, based on an attempt to apply British principles to the rather different situation in Australia. Since the very existence of the British Parliament depends on the Members having been summoned by the monarch (even though the duration of the Parliament, frequency of sitting, and other aspects are now regulated by statute), it has always been assumed there that the whole parliamentary process comes to a halt when the Parliament is dissolved (though this, too, could be changed by Act of Parliament). Therefore it is accepted in Britain that the Queen cannot assent to a Bill while Parliament is prorogued or after it has been dissolved. A way has been found around this, so that not too many Bills are just terminated. The Prime Minister generally announces the election date without seeking an immediate dissolution from the Queen. The Parliament is then said to enter a “wash-up” period in which the government and opposition privately negotiate the fate of the Bills remaining on the notice paper and ensure that those that have been agreed to are passed with minimum debate and receive assent before the dissolution.20 This practice and terminology are quite unknown in Australia. We did not inherit all of the Westminster traditions, especially not some of the quainter ones. In Australia, however, it is not unknown for a Bill that has passed through the Parliament 18 See Christopher Cunneen, The King’s Men; Australia’s Governors-General from Hopetoun to Isaacs, Allen & Unwin, 1983. 19 See Christopher Foster, British Government in Crisis, Hart Publishing, 2005, Ch 12. 20 See Martin Bell, “The Parliament’s washup’s a stitch-up”, Guardian, 28 March 2010, available at .

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before a dissolution to be presented for assent after the dissolution.21 If a Bill to alter the Constitution, under s 128 or under a State “manner and form” provision, is to be presented to a referendum on the same day as the general election, it necessarily cannot be presented for assent until after the referendum votes have been counted, which may be several weeks after the dissolution. Commentators aware of the British practice have therefore raised doubts as to whether assent given after prorogation or dissolution can be valid. However, courts in New Zealand and Australia have accepted that the British rule does not apply in the former colonies. There is a historical argument; in the nineteenth century many Bills had to be reserved for the monarch’s assent, and, given the time that that took, it hardly could have been assumed that the Bills would lapse at the next dissolution.22 There is also a more analytic argument; as explained by Gleeson CJ, Gummow, Hayne and Heydon JJ in Attorney-General (WA) v Marquet [2003] HCA 67; (2003) 217 CLR 545 at [85], “when it is said that prorogation wipes the parliamentary slate clean, what is meant is that proceedings then pending in the House that has been prorogued must be begun again” (emphasis in original). Or, as explained by Gibbs and Stephen JJ in Western Australia v Commonwealth [1975] HCA 46; (1975) 134 CLR 201 at 238 and 254 respectively, although prorogation causes any pending Bills to lapse, it does not mean that earlier proceedings have never occurred. Therefore if the proceedings in the two Houses were completed before prorogation, the Governor can assent to the Bill. It would seem that the same logic should apply to dissolution, and to a Constitution alteration approved by the voters after a dissolution.

Whose advice should a Governor rely on as to assent? [9.80] The various constitutions all provide that the respective parliaments consist of the Queen or Governor and the two Houses of Parliament, or in Queensland’s case, the Queen and the Legislative Assembly. It would therefore seem to follow that when assenting to legislation the Governor is simply taking part in the legislative process and should act on the advice of the Houses, conveyed by the Clerks (or by one of the two Clerks acting in the special role of “Clerk of the Parliaments”), rather than acting on advice from the Executive Council or a Minister. In South Australia, assent is formally given by the Executive Council and in Victoria the Clerk of the Parliaments presents Bills to the Governor immediately before an Executive Council meeting, but in other jurisdictions the Clerk of the Parliaments delivers the Bill to Government House for assent and the only routine role played by the executive is that the Attorney-General is required to certify to the Governor that there is no legal objection to the grant of assent. This is usually treated as a formality — a certificate will be provided even when the Bill is arguably unconstitutional, on the basis that it is for the courts, not the Governor, to decide constitutionality. 21 For examples at Commonwealth and State level, see Anne Twomey, The Constitution of New South Wales, Federation Press, 2004, p 227. 22 This argument was crucial in Simpson v Attorney-General [1955] NZLR 271.

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Usually, of course, assent is uncontroversial. Most Bills are passed precisely because they are supported by the government, and even if the government played a role in advising the Governor whether to assent, the advice would be positive. But what if a Bill is passed without the support of the government (which could happen when there is a minority government), or the governing party falls and is replaced by the Opposition before assent, or the government belatedly realises that the Bill has some inconvenient features? Unsurprisingly, most parliamentary officials with legal expertise take the view that Ministers have no right to interfere. They are supported by some judicial dicta; eg, in West Lakes Ltd v South Australia (1980) 25 SASR 389, Zelling J observed at 415 that it “would not be in accordance with constitutional precedent” for Ministers to advise the Governor to refuse assent to a Bill duly passed by both Houses. However, there has been a recent instance where, although a government did not totally oppose an Act, it wanted to delay its commencement. In October 2005, the Racing and Gambling Acts (Amendment) Bill 2005 was passed by both Houses of the Victorian Parliament. It provided for commencement soon after assent, but the government belatedly realised that some “stakeholders” would need time to bring themselves into compliance with the new regime, and so the Premier advised the Governor that assent should be delayed for six weeks. As Kate Murray has argued,23 it would have been more regular for the Governor, on the Premier’s advice, to recommend an amendment to the commencement provision rather than just delaying commencement — but the Governor accepted the Premier’s advice and caused a storm of protest in the Parliament and in the media. It is possible that Victoria is different because s 87E of the Constitution Act 1975 (Vic) provides: Advice to Governor Where the Governor is bound by law or established constitutional convention to act in accordance with advice — (a) the Executive Council shall advise the Governor on the occasions when the Governor is permitted or required by any statute or other instrument to act in Council; and (b) the Premier (or, in the absence of the Premier, the Acting Premier) shall tender advice to the Governor in relation to the exercise of the other powers and functions of the Governor.

John Waugh has argued24 that this leaves no room for occasions when the Governor is to take advice from anyone else — even the Parliament. If that is so, it does not apply in other States and certainly cannot apply to the Commonwealth where the GovernorGeneral’s role in Parliament is stated in a supreme law Constitution. If principle generally dictates that a Governor should take the advice of the Parliament rather than the executive with respect to assent — which is Anne Twomey’s 23 Kate Murray, Royal Assent in Victoria, (2001) ANZACATT course papers at http://www.anzacatt.org. au/parliament/general/anzacatt/anzacatt.nsf/0/505B80874BB16C24CA2573C800834661/$file/Kate%20 Murray%20on%20assent%20in%20Vic.pdf. 24 John Waugh, “Government Control of Royal Assent in Victoria” (2006) 8 Constitutional Law and Policy Review 69.

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conclusion, with slight reservations, at the end of a comprehensive study of the topic25 — the conclusion would apply a fortiori in the case of a Bill to alter the Constitution under s 128, or for which a referendum is necessary under a State “manner and form” provision, which has been approved by the electors. In this case the Governor should take “advice” from the Parliament and the electors; it would be the height of presumption for the government to interfere.

9.7 The Governor as the watchdog of responsible government — the reserve powers [9.90] Just as a Governor has a duty to take the advice given by Ministers, so he or she has a duty, and a power, to ensure that the advice is coming from the right Ministers — those supported by a majority of the Members of the “lower” House, who are therefore able to have their appropriation Bills passed. The formation of government and changes of power within a government are normally implemented without any need for a Governor to make decisions; as noted above the Governor is a “machine to register the results”. However, there are times when things are not so clear-cut, and a Governor has to exercise powers normally held in reserve — the “reserve powers”. These relate to the appointment and dismissal of Prime Ministers or Premiers, the refusal of advice to dissolve Parliament and, possibly, the power to dissolve Parliament without advice. Problems arise semiroutinely when there is a near-deadlock in an election result or when a government loses its majority mid-term. Quite extraordinary problems arise when the government is persisting in illegal conduct, or when the “upper” House refuses supply even though the government still has the confidence of the “lower” House. In the semi-routine cases there are two general, somewhat conflicting, approaches that have been taken by Governors. As a general rule, there is a principle of inertia; someone who has been commissioned as Prime Minister or Premier has the commission until it is withdrawn or returned, and a Governor will be reluctant to exercise the reserve power to withdraw it. Governments have tried to turn this into a hard-and-fast (and self-serving) rule by claiming, even when the appointment of a government is in dispute, that the Governor can only take advice from the current government; in a Tasmanian dispute in 1956, the Premier suggested that by receiving advice from the Opposition the Governor had provided himself “with two sets of advisers”.26 On the other hand, a Governor can say, as Governor-General Munro-Ferguson did in 1918: In the absence of such … indications as are given by a defeat of the Government in Parliament, the Governor-General endeavoured to ascertain what the situation was by seeking information from representatives of all sections of the House with a view to 25 Anne Twomey, “The Refusal or Deferral of Royal Assent” [2006] Public Law 580. 26 The various memoranda from this and many of the following disputes are copiously extracted in the first edition only of Jacob Fajgenbaum and Peter Hanks, Australian Constitutional Law; Cases, Materials and Text, Butterworths, 1972, Ch 4. This is from example (f) at pp 85–91.

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determining where the majority lay, and what prospects there were of forming an alternative Government.27

It is suggested that the Munro-Ferguson approach of sounding out all “sections” is quite proper; the suggestion that a Governor who does this has taken on “two sets of advisers” confuses two principles and two meanings of the word “advice”. The Governor should indeed receive official “advice” (of the kind that is really more than advice; the kind that in Lord Rochester’s words even a prince “must take”) only from a government with the confidence of the majority of the House, but where the question is who does have the confidence of the House, the advice is correctly referred to as advice. Surely in such a case a Governor can seek information and opinions from anyone, as long as nothing is done surreptitiously, and a Governor can surely act on information that is public knowledge, even if someone who is trying to hang on to power is telling him or her the opposite.

A near-deadlock after an election [9.100] It follows from the principle of inertia that if an election results in a near-draw, the existing leader is entitled to keep the commission even if it is almost certain that the government will be defeated at the first sitting of Parliament. This at least is what occurred in South Australia in 1968; the government hung on to office for six weeks after the election, and was defeated on a confidence motion at the first sitting. The government was bound all the time to operate in “caretaker” mode — meaning it should not make new appointments or major policy decisions28 — so, despite the Opposition Leader’s attempts to persuade the Governor to act on the reality of the situation,29 no great damage was done to the public interest. As the one Independent Member had made it clear that he would be supporting a change of government, it may seem petty for the government to have clung to office, but there was perhaps some justification in that they were trying to emphasise the point that they had won a large majority of votes and had only lost office because of the unequal electoral system. More recently, in Tasmania the 2010 election produced an Assembly of 10 Labor members, 10 Liberals and five Greens. The Labor and Liberal leaders had both tried to scare the voters off supporting the Greens by declaring that they would not accept the support of the Greens to form a government, and after the election the Labor Premier, David Bartlett, continued the tactical game by advising the Governor to ask the Leader of the Opposition, Michael Hodgman, whether he could form a government. Even though Hodgman advised that he could do so, the Governor left Bartlett holding the 27 See Fajgenbaum and Hanks, n 26 above. The quote is from example (a) on pp 70–1. 28 For much more detail about this, see Anne Tiernan and Jennifer Menzies, Caretaker Conventions in Australasia; Minding the Shop for Government, ANU E Press, 2007 at http://epress.anu.edu.au/titles/ australia-and-new-zealand-school-of-government-anzsog-2/caretaker_citation/pdf-download. 29 See Fajgenbaum & Hanks, n 26 above. This is example (b) on pp 71–4.

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commission. Labor and the Greens then negotiated a coalition agreement and formed a new government. Anne Twomey has rightly criticised some of the grounds given by the Governor for his decision,30 but the decision itself was surely a sensible one — following the Munro-Ferguson approach above, the Governor was entitled to assess the prospects of either leader being able to form a government, and despite the posturing and tactical games of the leaders, anyone who knew a little about the parties’ policies and personalities could have predicted that the outcome would be a Labor-Green coalition.

A governing party replaces its leader mid-term [9.110] The tremendous advantage of “responsible government” over the American fixed-term presidency is that the leader of the governing party is under constant scrutiny from his or her colleagues and can be replaced by a party room vote if he or she seems to be losing the capacity to lead. This has happened reasonably often in federal politics — Menzies was replaced by Fadden in 1941, Gorton by McMahon in 1971, Hawke by Keating in 1991, Rudd by Gillard in 2010 and back again in 2013, and Abbott by Turnbull in 2015 — and even more often in State politics. Normally, no matter how vicious the infighting has been, the deposed leader will go with apparent grace to Government House to advise that his or her successor should be sworn in. However, an abnormal situation arose in Queensland in late November 1987. The Premier, Sir Joh Bjelke-Petersen, who was facing increasing embarrassment from the revelations of the Fitzgerald Inquiry, asked the Governor, Sir Walter Campbell, to dismiss five Ministers, including the Police Minister, Bill Gunn, who had initiated the Inquiry. Suspecting that Sir Joh may not have support in the party room, Sir Walter stalled, though he did eventually dismiss three of the Ministers. A party meeting voted for Mike Ahern as leader, but Sir Joh did not resign, and some of the advice that Sir Walter received in that time suggested that he should only dismiss Sir Joh if he failed a formal vote of confidence in the Assembly.31 In the event, Sir Joh solved the problem by resigning after five days of stand-off. It is suggested that a more realistic view is that a Governor can act on evidence of lack of confidence from sources other than a vote in the chamber when it is clear evidence — as it was here — and that if the stand-off had continued Sir Walter should have felt compelled to dismiss Sir Joh.

A government resigns on a matter of principle despite having a majority in the House [9.120] In May 1917, WM (“Billy”) Hughes’ Nationalist Party government was re-elected. One of its promises had been to hold a plebiscite (a non-binding referendum) on 30 Anne Twomey, “Appointing the Premier in a Hung Parliament — The Tasmanian Governor’s Choice” (2010) 25(2) Aust Parl Rev 53. 31 “Memorandum from the Solicitor General, 26 November 1987”, in Walter Campbell, Johannes Bjelke Petersen & Michael J Ahern, Copies of Correspondence Relating to the Change-over from the Bjelke-Petersen Government to the Ahern Government in Late 1987, Queensland Government, 1988.

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conscription for overseas war service. The plebiscite was held in December 1917, Hughes having said that he would not continue as Prime Minister if the conscription proposal was defeated. It was defeated, so he resigned. However, since the Parliament had over two years to run and Hughes had a substantial majority, the Governor-General asked him to accept office again.32 He did that, just two days after resigning.

A government loses support mid-term [9.130] When a government loses a vote of no confidence mid-term, it will often want a dissolution and a fresh election whereas the Opposition will expect to form a new government. The best way to achieve the latter is to ensure that the government is defeated on a “constructive” no confidence motion: “[T]his House has no confidence in the government led by A and calls upon His/Her Excellency to commission a government led by B”. However, though common overseas these are relatively little-used in Australia. When two Independents holding the balance of power in the House of Representatives shifted their allegiance to the Opposition in 1941,33 given the fact that we were fighting a war, the Governor-General was reluctant to call an election, and actually summoned the two Independents and obtained a promise from them that they would support John Curtin, until then the Opposition Leader. If Parliament had been dissolved, the election could quite likely have been engaging Australia’s attention on the very weekend that the Japanese attacked Pearl Harbour. The Governor-General and the two Independents had made a wise choice. In less desperate times, there is often a pattern of self-serving behaviour governing the behaviour of the parties — while the government may tender advice from the Premier and Attorney-General saying “Your Excellency, the conventions clearly dictate that you should dissolve Parliament”, the Opposition may advise that they have the numbers to form a government and that the only proper constitutional course is that they should be allowed to do so — but there is no one-size-fits-all “right answer” as to what the Governor should do. Factors that are relevant to the Governor’s decision include: ■

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The need to guarantee “supply” for the public service. In Victoria in 1952,34 Premier McDonald’s first request for a dissolution was refused because the Supply Bill had not been passed. A new government led by Mr Hollway was able to get the Supply Bill enacted but was then itself defeated on a no confidence motion. McDonald was re-commissioned and granted a dissolution. The length of time for which the Parliament has sat. If it has been sitting for at least half the term, a Governor is more likely to dissolve the Parliament at a Premier’s request, as for example in Victoria in 1908.35

32 See Fajgenbaum and Hanks, n 26 above, example (a) at pp 70–1. This is the occasion on which the Governor-General made the statement quoted above, about consulting all “sections” to assess the situation. 33 They did it by supporting a motion that the first item in the Appropriation Bill should be reduced by one pound. The passage of this quaint resolution was traditionally understood to amount to a vote of no confidence. 34 See Fajgenbaum and Hanks, n 26 above, example (e) at pp 84–5. 35 Fajgenbaum and Hanks, n 26 above, example (d) at pp 79–84.

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The likelihood, or unlikelihood, of the formation of a stable government led by the Opposition. This is where the Munro-Ferguson approach of sounding out all “sections” makes sense.

The example of Victoria in 1952 shows that there is a danger that the Governor will be seen as partisan if he or she refuses a dissolution to one party, but grants it soon after to the other, allowing them to go to the election with whatever benefits, if any, come with incumbency. Another example of this was the “King-Byng affair” in Canada in 1926, when the Governor-General, Lord Byng, first refused Prime Minister King a dissolution but granted one soon after to the new Prime Minister, Meighen. This caused a general suspicion of the Governor-General and led to King, when re-elected, leading the campaign for the making of the Balfour declaration and the passage of the Statute of Westminster 1931.36

Extraordinary crises, extraordinary remedies — dismissal of a Premier or Prime Minister in order to appoint one who will advise a dissolution [9.140] There have been two notorious cases in Australia where a Governor has dismissed a Premier or Prime Minister who has had the confidence of the “lower” House, in order to force a general election at which the authority of the Premier or Prime Minister to rule could be confirmed or rejected. The first was the dismissal of Premier Lang by the Governor of New South Wales, Sir Phillip Game, in 1932, and the second was the dismissal of Prime Minister Whitlam by Governor-General Sir John Kerr in 1975. Lang and Game in 1932 Lang had already created controversy in New South Wales with his repeated attempts to abolish the Legislative Council; one of the major cases will be discussed in Chapter 27. This had already caused conservative elements in the State, who apparently thought that the Governor’s role was to defend the established order, to demand that the Governor should stand up to him. Then in 1932, Lang’s government tried to fight the Depression with a strategy that, while it may have had some merit, totally conflicted with the Commonwealth government’s strategy. Lang had repudiated the payment of debts by the State, and the Commonwealth had enacted an Act to override this; the Financial Agreements Enforcement Act 1932, held valid by the High Court in New South Wales v Commonwealth (No 1) [1932] HCA 7; (1932) 46 CLR 155. Lang had withdrawn most of the State’s money from bank accounts and was holding it instead in cash in the Treasury. The press and business organisations issued increasingly strident calls for the Governor to dismiss Lang. When the Commonwealth issued proclamations to enforce its powers under the Enforcement Act, Lang instructed State public servants to disobey them. The Governor warned Lang to withdraw the order, and when Lang refused the Governor dismissed him and installed the Leader of the Opposition as Premier. He of course, 36 Fajgenbaum and Hanks, n 26 above, example (g) at pp 91–2.

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having no majority in the Assembly, advised a dissolution, and defeated Lang at the subsequent election37. The Governor’s stated ground for his action, that Ministers were breaching the law, raises the question as to whether it is the role of the Governor or the courts to police the legality of Ministerial conduct. Neither the legality of the Commonwealth p ­ roclamations nor Lang’s instructions to disobey them had been tested in court. However, Lang had lost a series of cases about the validity of the Enforcement Act and, as Twomey points out, an “infinite regress of litigation” could have followed if Lang, following his past form, continued to act in defiance of court decisions38. An Advisory Committee to the Constitutional Commission, attempting to codify the conventions, suggested in 1987 that a government would have to be “persisting in grossly unlawful or illegal conduct, including a serious breach of the Constitution” before dismissal could be justified. It is arguable that Lang’s conduct met this criterion. The unfortunate consequence was that some observers thought that the Governor had given in to the pressure exerted by conservative groups and their supporters in the press,39 and those groups got the impression that if they called stridently enough and long enough for a Labor leader to be dismissed, a Governor might do their bidding. They clearly remembered this in 1975. Whitlam and Kerr in 1975 Gough Whitlam became Prime Minister in 1972, supported by a majority in the House of Representatives but lacking one in the Senate. In 1974 the Senate, having rejected six of his Bills twice (thus creating “triggers” for a double dissolution, as will be discussed in Chapter 16) blocked the “Supply” Bills (the supplementary appropriations to carry the government over until the budget, then not presented until August). He called the Opposition’s bluff, obtained a double dissolution from the Governor-General, and was re-elected in May 1974 but still without a majority in the Senate. Whitlam became less popular through 1975, partly as a result of external factors (the price of crude oil had been multiplied by four after the Arab counties imposed an embargo in October 1973 and petrol prices and inflation had spiralled in all advanced economies), and partly because of perceptions of disunity and incompetence in the government. When Malcolm Fraser became Opposition Leader in March 1975 he was asked whether the Senate would again block supply and he replied that it would only do so if the government did something “extraordinary and reprehensible”. In early October, a scandal about the government’s attempts to raise a loan from Middle Eastern countries broke, so Fraser announced that he had his “reprehensible circumstances” (he also knew that he was well ahead in opinion polls). The Opposition in the Senate decided to try to force an election, by resolving not to consider the Appropriation Bills until Whitlam called an election. 37 Fajgenbaum and Hanks, n 26 above, example (i) at pp 94–6. For the full story with background and analysis, see Anne Twomey, “The Dismissal of the Lang Government”, in George Winterton (ed), State Constitutional Landmarks, Federation Press, 2006, Ch 5. 38 Twomey, n 37 above, p 158. 39 Cited in Twomey, n 37 above, p 114.

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This time Whitlam, knowing that he was unlikely to win an election, took a stand on principle; it was contrary to convention that the Senators should block supply and they must give in. There was a general presupposition on all sides that if there was to be an election, it should not interfere with the Christmas shopping period; therefore a decision had to be made by 11 November so that an election could be held on 13 December. Whitlam decided to call an election for half the Senate on the latter date — an odd decision which probably would have solved nothing, though there was an outside chance that it would have improved the number of Labor senators for the Territories, who would take their seats immediately after the election.40 When he called on the Governor-General to ask him to issue the writs for the Territorial elections and to advise the State Governors to issue the writs for the State elections, Sir John instead terminated his commission. He commissioned Malcolm Fraser as Prime Minister, the Senate passed the Appropriation Bills (the Labor Senators still being unaware of the dismissal of their government), and the House of Representatives just had time to vote no confidence in Fraser before being dissolved. The Liberals comfortably won the election on 13 December. At least a dozen books have been written canvassing the rights and wrongs of “the Dismissal”, but a few points are worth making here: ■

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The Senate undoubtedly had the power to delay or even refuse supply; apart from the limits in s 53 on initiating or amending certain money Bills, it has “equal power with the House of Representative in respect of all proposed laws”. However, there was a fairly-well recognised convention that the Senate should not do so, for good reasons. The basis of “responsible government” is that the government is responsible to the “lower” House; if an “upper” House also claims a power to reject budgets it creates a possibility of insoluble conflicts. This had been recognised in Britain only 11 years after Australia federated, with the enactment of the Parliament Act 1911 by which the Lords were stripped of their power over money Bills. It is true that the Senate has somewhat more democratic legitimacy than the House of Lords, though it is elected by grossly unequal electorates, but the fact remains — a government cannot be “responsible” to two differently-constituted Houses or instab­ ility must follow. The affair exposed a contradiction in the Constitution between the federal principle and the principle of responsible government. Given that the Senate had refused to vote on supply, Kerr was put into a position where, whatever he decided, at least 40 per cent of the nation would think he had done the wrong thing. However, he was artificially pressured by the closeness of the Christmas season, and perhaps by his own feeling of the importance of his office, into thinking that he must do something on November 11th. There were rumours that some of the Liberal Party Senators were about to waver on that very day; if he had delayed a few days we would have found out if they were true.

40 The validity of the Act creating the senators for the Territories had been confirmed on 10 October; see the Territorial senators case discussed in Chapter 15.

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Kerr has been criticised for not warning Whitlam of his plans, as Sir Phillip Game had warned Lang. This is somewhat understandable, as Whitlam had tactlessly joked only a few weeks earlier that in a showdown it might depend on whether he could get on the phone to the Palace to dismiss Kerr before Kerr could dismiss him. However, it is unrealistic to assume that her Majesty would react instantly to a request to dismiss a Governor-General; she would spend some time seeking advice, during which time the Governor-General could act. If Kerr was influenced by Whitlam’s “threat”, it was an over-reaction. If it had become finally clear that the Senate was not going to pass supply, Sir John would have had to take some action to force an election. Although, in the Commonwealth Constitution, the power to dissolve the House of Representatives is one of those given formally to the Governor-General (twice, by ss 5 and 28), most commentators seem to believe that it is not a reserve power — that is, a Governor needs to act on advice to dissolve a lower House, and therefore that if the Governor has decided that this is necessary he or she should appoint a Premier or Prime Minister who will give that advice.41 In the Lang case, dismissal seems the appropriate remedy for persisting in ignoring Commonwealth laws. But where the problem was a conflict between the two Houses and Whitlam still had the support of the House of Representatives, it surely would have been less of a breach of the general principles of responsible government for the Governor-General to take the responsibility of dissolving the House, leaving the Prime Minister to go to the election without the stigma of having been “such a bad Prime Minister he had to be dismissed”. There is indeed a practical difficulty; although the Governor-General can, on the view suggested here, dissolve the House, the writs for the election have to be issued by the Governor-General in Council, so a Prime Minister who resented having an election forced on him or her could try to stall the conduct of the election. With respect to those who have the different view, it is suggested nevertheless that dissolution should be seen as a reserve power and that if a Governor-General has decided that an impasse can only be resolved by an election, then he or she should exercise the power to dissolve first, and then be ready to dismiss the Prime Minister only if the election machinery is not put into action — and, for the reasons noted above, not be too concerned about a “tit-for-tat” dismissal by the Prime Minister. Finally, a tactical point — if the Opposition had not opposed the Supply Bills in 1974, thereby causing the 1974 election, an election would have been due in late 1975 and they clearly would have won it without bearing the responsibility for causing a “constitutional crisis”. Patience is a virtue, even in opposition.

The affair revealed some gaps and inconsistencies in the Constitution. There have been occasional calls for reforms, such as the reduction of the Senate’s power over 41 For example, Anne Twomey, “Cutting the Gordian Knot: Limiting Rather than Codifying the Powers of a Republican Head of State”, Papers on Parliament No 51 (2009) at http://www.aph.gov.au/~/~/link. aspx?_id=9D277EAC2E5E4C42A80246E77BC79128&_z=z.

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appropriation Bills, a fixed term for the House of Representatives, or a codification of the Governor-General’s powers or of the terms on which a Governor-General can be dismissed.42 However, it took 75 years for the problem, always potentially lurking in the Constitution, to arise, and it seems unlikely that a Senate will be in a hurry to use its legal power over appropriation Bills in such a way again. It is, however, something that will have to be considered, if interest in a republic is ever revived, by those drafting amendments for a republican Constitution.

Is there a Reserve Power to grant or refuse Prorogation? [9.150] As noted at 9.40, the prorogation of Parliament is usually done on the Prime Minister’s advice. In April 2016 the Prime Minister’s request for a prorogation was supported by an opinion from the Attorney-General in which he claimed that “there is no known suggestion that there is a ‘reserve power’ to prorogue and recall Parliament.” As Twomey has pointed out,43 this is probably correct if you read “prorogue and recall” as a composite phrase, but as to prorogation for purposes other than an immediate recall there are many suggestions and indeed precedents to the contrary; the Attorney was “over-egging” his advice. Her conclusion was that where a prorogation is consistent with the responsibility of the government to the Parliament it should be granted, and where it may be inconsistent with that principle the Governor has a discretion to refuse. Indeed this is a sound general principle to guide Governors in the exercise of all their powers.

9.8 A note on terminology — Crown, government, public service, instrumentalities [9.160] Traditionally, the whole government was referred to as “the Crown” and we still have officers with names like Crown Counsel and Crown Solicitor (who is a barrister!). However, the High Court has had to remind lawyers that to speak of all the institutions of government including statutory bodies as “the Crown”, as the British have traditionally done, can lead to confusion. This has been said particularly in cases involving the declining doctrine of so-called “Crown immunity”, which will be discussed in Chapter 11. As long ago as 1955 Kitto J said in Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) [1955] HCA 72; (1955) 93 CLR 376 at 392–3: 42 The oddest feature of the republic proposal put to the vote in 1999 was that the Prime Minister would have had the power to give a notice of dismissal of the President, having instant effect. Thus the moment that the least suspicion arose that the President might be contemplating dismissal of the Prime Minister a “High Noon” scenario would have existed. This would not have been a “minimal” translation of the current rules into a republican constitution; it would have been a turn for the worse. 43 Anne Twomey, “Prorogation: Can it Ever be Regarded as a Reserve Power?” (2016) 27 Public Law Rev 144.

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It is, of course, quite common, where some immunity or advantage is claimed for an individual or a body by reference to a special position which the law accords to the Crown, to speak of the individual or body as being or not being the Crown. This use of language is open to the objection that not only is it for obvious reasons technically inexact but it tends to obscure the real nature of the problem. The Sovereign alone is the Crown.

In NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48; (2004) 219 CLR 90, McHugh ACJ, Gummow, Callinan and Heydon JJ said: [I]t will often be more appropriate to ask whether it was intended that [laws] should regulate the conduct of the members, servants and agents of the executive government of the polity concerned, rather than whether they bind the Crown in one or other of its capacities. (emphasis added)

In Australian Competition and Consumer Commission v Baxter Healthcare [2007] HCA 38; (2007) 232CLR 1, Kirby J made the point at [96] in more general and perhaps blunter terms: In effect, the Commonwealth, the States and the Territories therefore stand apart from the pre-existing governments in Australia, although they relate to each other. They are not, as such, manifestations of the Crown. It is a misdescription to so designate them or to equate them as such.

It therefore seems better to reserve the use of the word “Crown” only for the offices and activities of the Queen and her representatives — the Governor-General and Governors. Though many of the most important decisions of Ministers, or of a Cabinet collectively, are given legal form in the shape of a document issuing from the Executive Council and signed by the Governor, as we will see in Chapter 11 the courts now look behind these decisions and recognise that they are made in reality by a Minister or a public service body. Therefore in the following chapters we refer to “executive power” or “government power” and the “Crown” is only cited in references to old cases or writings where the word is used.

FURTHER READING Ian Ward & Randal G Stewart, Politics One, Palgrave Macmillan, 2010, esp Ch 2 & 3 Patrick Weller, Cabinet Government in Australia 1901–2006, UNSW Press, 2007 George Winterton, “1975: The Dismissal of the Whitlam Government”, in HP Lee and George Winterton (eds), Australian Constitutional Landmarks, Cambridge University Press, 2003, Ch 10 Anne Twomey, “The Dismissal of the Lang Government”, in George Winterton (ed), State Constitutional Landmarks, Federation Press, 2006, Ch 5

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CHAPTER 10

Sources of Executive Power

10.1 Context and overview [10.10] The origins of the idea of the rule of law were discussed in Chapter 2, and in Chapter 9 we saw that executive power, despite the formal language of the constitutions, is exercised not by Governors and the Governor-General but by Ministers and by public servants under their general direction. In this chapter we study the sources of these powers and illustrative examples of the kinds of decisions that the executive government makes. In Chapter 11 we will consider the ways in which the exercise of executive power is controlled by law. We will see that many of the doctrines which gave the executive some immunity from the law have been eroded in the last few decades, and that Dicey’s statements about the rule of law have been transformed from propagandistic exaggerations into reality.

10.2 “Vesting” of power in the executive governments, and the nature of executive power [10.20] As we saw in Chapter 9, the Commonwealth Constitution and the State Constitution Acts all create an executive branch of government consisting of a Governor(-General) and Ministers. Section 61 of the Commonwealth Constitution notionally vests the executive power of the Commonwealth in the Queen but then says it is ­“exercisable” by the Governor-General as the Queens’ representative, meaning in reality the Ministers and the Public Service. It does not define executive power; it assumes that some such power must exist, generally along the lines of the power exercised in the name of the Queen in the United Kingdom, and assigns its exercise to the executive government. It seems to assume that there is some core meaning but then says expressly that the power “extends to the execution and maintenance of this Constitution, and 137

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of the laws of the Commonwealth”. The State Constitution Acts are even vaguer. The most recently redrafted one, the Constitution of Queensland 2001, only mentions that the Governor “administers” the State incidentally in s 41, when mandating that there must be an Acting Governor when the Governor cannot fulfil the role. As noted in Chapter 9, the State Acts do not “vest” executive power in the executive but rather assume that it must exercise it and that we know what it is. It has been said that the scope of executive power is “not amenable to exhaustive definition”1 but its general nature can be described. It is the power exercised by government officers when they “execute” the law, ie, put the law into force in specific cases, or make general decisions on behalf of the State or nation. These cases can range from the high-level decisions such as whether to send the armed forces overseas or how much to give each department in the Budget, or where to build a road, school or hospital, to individual ones such as whether a student is eligible for a student allowance. Basically, every time government officials or bodies say “yes” or “no” to a proposal or application, or every time they order a citizen to do something or refrain from doing something, they are exercising executive power. Where do these powers come from? A decision to grant a student allowance would be based, of course, on a close reading of the criteria of eligibility in the Student Assistance Act 1973 or the Social Security Act 1991. A decision as to where to build a hospital may be implementing guidelines established by statute, or it may just be an exercise of the kind of discretion any board of directors of a corporation would have. In order to put it into effect, the government may have to purchase or “resume” land, it may have to enter into contracts with building companies, and then of course it will have to pay the builders. To resume the land against the will of the owner, the government needs a specific source of power, and all governments in Australia find that in a Lands Acquisition Act or something with a similar title. However, to engage in a voluntary purchase of land and to enter into a contract often needs no specific power, at least at the level of the States, because a government has all the powers of a natural person. This is generally assumed in the older Constitutions, but is spelled out in the Constitution of Queensland 2001, in s 51. At the Commonwealth level, even the “natural person” powers like spending money are limited to the exercise of the powers listed in s 51, plus an incidental power to pursue national purposes (see 21.200). There may be a similar limit on the States, if they should try to venture into an area which is truly exclusive to the Commonwealth (see Chapter 28), though this appears never to have arisen. However, there is a further limitation that does not apply to a natural person. Before the government can spend money, the money must have been “appropriated” by the Parliament. A government is, in fact, rather like a wealthy young heir or heiress in a state of tutelage; there is an awful lot of money in the accounts of the estate but the young person needs the approval of the trustees or guardian before being empowered to spend it. (The history and significance of this principle was mentioned in Chapters 2, 3 and 9, and the case law will be discussed in Chapter 11.) 1 Davis v Commonwealth [1988] HCA 63; (1988) 166 CLR 79 per Brennan J at 107. See also George Winterton, “The Limits and Use of Executive Power by Government” (2003) 31(3) Fed L Rev 421.

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The fact that the government needs a specific source of power when it is taking coercive action against a citizen is the principle established in Entick v Carrington (1765) 95 ER 807, discussed in Chapter 2. As noted there, in answer to a claim that the government had power to issue general warrants, the court held, “If it is law, it will be found in our books. If it not to be found there, it is not law”. What the court did not say was that two different kinds of law about executive power might be found in their books. There might be specific statutes granting power, or there might be earlier court decisions, or authoritative texts such as Bracton, Coke or Blackstone declaring that a certain power was part of the “prerogative” powers of the monarch. “Prerogative” is derived from the Latin meaning for the right to be asked first, but has come to mean any peculiar right or privilege that someone has by virtue of their status. Thus, the prerogatives of the monarch are rights or powers that the monarch has because he or she is the monarch, and that nobody else has.2 Exactly what powers are included in the prerogative is hard to define. As more and more prerogative powers get abrogated or “subsumed” by statute (see Chapter 11), the question of the extent of the prerogative may become less important. Lord Reid remarked in Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1964] UKHL 6; [1965] AC 75 that “[t]he prerogative is really a relic of a past age, not lost by disuse”, but it remains significant, not least in foreign affairs, where it includes the powers to conclude treaties, send and receive ambassadors, declare war and conclude peace. It is also still regarded as the source of the power to confer honours and pardon offenders, though aspects of these activities are regulated by statute. Crown copyright in legislation was held to arise from the prerogative in Attorney-General (NSW) v Butterworth & Co (Australia) Ltd (1937) 38 SR (NSW) 195. Aspects that have been mentioned in recent litigation — mostly concerned with whether the prerogative had been abrogated — include the right to seek extradition of fugitive offenders (Barton v Commonwealth [1974] HCA 20; (1974) 131 CLR 477) and the right to refuse entry into Australia to aliens (Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491). The activities that the executive engages in can be divided into those that are coercive against citizens (and therefore usually detrimental to them) or noncoercive (and generally beneficial). To exercise any coercive power, there must be a statute or a prerogative power (or, possibly, for the Commonwealth, a source in s 61). However, most, if not nearly all, non-coercive actions fall into the category of things that could be done by a natural person and therefore the executive needs no statutory 2 Professor Dicey defined the prerogative as including all the Crown’s non-statutory powers, including those powers that the Crown shared with an ordinary person, and Winterton, n 1 above at fn 43, sees merit in this, arguing, “Is a Crown contract truly analogous to one between private citizens? Is private snooping really analogous to official surveillance?” The terminology may not matter; either executive power comes from statute, the prerogative and the powers of a private citizen, or it comes from statute and the prerogative including the powers of a private citizen However, if “prerogative” does not mean a special privilege, not possessed by the common run of people, it is hard to see what it does mean; perhaps insisting on this will help remind the government that it needs statutory authority if it wants to exercise powers (including Winterton’s examples) in a way that goes to any degree beyond those of an ordinary citizen.

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authority to do them; the doctrine in Entick v Carrington only applies to the exercise of coercive powers. There are, however, three qualifications to this statement. First, as noted above, if the activity involves the spending of money by the executive, it needs an appropriation of the money. Secondly, these days the presumption of executive immunity from statutes has virtually vanished (see 11.80–11.90). So if the activity is regulated by statute, the executive may well have to comply with it, for example, town planning laws (compare Johnson v Kent (the Black Mountain Tower case) [1975] HCA 4; (1975) 132 CLR 164). Thirdly, if the Commonwealth executive is involved, the activity may need to fall under a Commonwealth head of power before the Commonwealth can even engage in noncoercive activities and the spending of money: see the following section and Chapter 21. To return to the case of student allowances, used as an example above, there is a Commonwealth head of power in s 51(xxxiiia), so it would be possible simply to appropriate money to Centrelink to be used for the payment of benefits to students, and to leave the criteria for payments to be set by internal guidelines. However, given the complexities of modern government and the need for transparent criteria, such things are usually regulated by statute, as indeed student allowances — quite a range of different ones — are. Once there is a statute, the executive is bound by it whether it is exercising a coercive power or a beneficial power.

10.3 A direct, and broader, source of Commonwealth executive power in s 61? [10.30] The section above demonstrated that the Commonwealth executive can get coercive power from those aspects of the prerogative that it inherited from the British Crown and from statutes, including statutes based on the incidental power. But there has been a further, startling, suggestion — that s 61 may directly give it power which may go beyond those two sources. In Re Residential Tenancies Tribunal of NSW; Ex parte Defence Housing Authority [1997] HCA 36; (1997) 190 CLR 410, McHugh J said “[u]nder our Constitution, the executive power of the Commonwealth conferred by s 61 involves much more than the common law prerogatives of the Crown”. Then in Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491, French J said, with the concurrence of Beaumont J at [179]–[183]: The use of the “prerogative” to describe such a power may properly acknowledge its historical antecedents but not adequately illuminate its origins in s 61 of the Constitution. … The executive power of the Commonwealth under s 61 cannot be treated as a species of the royal prerogative … While the executive power may derive some of its content by reference to the royal prerogative, it is a power conferred as part of a negotiated federal compact expressed in a written Constitution distributing powers between the three arms of government reflected in Chapters I, II and III of the Constitution and, as to legislative powers, between the polities that comprise the federation.

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Black CJ dissented. In the case, details of which are discussed at 11.110, their Honours held that one of the powers that supposedly comes directly from s 61 is the power to control the entry of aliens into Australia. (In fact no other specific power has been suggested so far.) All Justices cited the words of Lord Atkinson, writing for the Privy Council, in Attorney-General (Canada) v Cain [1906] AC 542: “One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State”. As Black CJ pointed out at [27], that case was decided against a background of doubt about the scope of Canada’s sovereignty vis-à-vis the United Kingdom, and had nothing to do with whether the power of exclusion could be exercised by the executive without legislation, or even contrary to legislation. In Australia, it is clear that there is a Commonwealth legislative power to exclude aliens in para 51(xix); the debate is whether the executive can do it without legislative support. Cain provides no support for either side of that argument. In response to the above dicta in favour of the “s 61 as a direct source” theory, Winterton was emphatically of the view that it was misconceived. In his view: [T]here are strong arguments for employing the prerogative as the yardstick for determining the ambit of Commonwealth executive power. • First, it implements the well-established principle in common law countries that the common law is employed to interpret ambiguous provisions in written instruments, including constitutions and statutes. • Secondly, notwithstanding its uncertainty in marginal cases, the prerogative constitutes a substantial body of principles, rules and precedents, established over hundreds of years, the subject of considerable literature and a heritage shared with comparable nations such as the United Kingdom, Canada and New Zealand. Moreover, many prerogatives — such as the powers to conduct foreign relations, conclude treaties, send and receive ambassadors, declare war and conclude peace, confer honours and pardon offenders — are well-established. • Thirdly, even if occasionally difficult to determine, the prerogative is inherently more certain and offers greater guidance to both government and citizen than vague abstract criteria such as what is an ‘appropriate’ activity for a national government. • Fourthly, since it originated in England under a system of parliamentary supremacy, the prerogative is subject to legislation. Hence, it can be seen as merely an interim measure of executive power until Parliament regulates the subject by legislation. • Finally, it is desirable that executive action be subject to legislation, especially under a system of responsible government: this promotes accountability to Parliament, giving Parliament authority to examine executive action; strengthens the rule of law by subjecting executive action to judicial review … and it enhances democratic government since legislation involves greater democratic input than executive action.3

It is suggested that Winterton’s argument gains further support from the text of s 61. As noted above, the section notionally vests the executive power in the Queen and 3 Winterton, n 1 above, text to fns 101–103 (long paragraph in original broken into dot points).

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(equally notionally) delegates it to the Governor-General. It was noted above that this section does not define executive power. Further, it seems that it does not even create it, but assumes that it exists of necessity, or by virtue of the fact that the new polity is to be under the dominion of the Queen. The fact that there will be a whole new system of laws needing to be executed is recognised in the declaration that the power “extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth”. What, then, does it extend from? Bearing in mind the presuppositions shared by the drafters, it is suggested that it can only extend from the existing non-statutory powers already exercised by the Queen in the United Kingdom and the Australian colonies — that is, the prerogative. It was well-known to the drafters that the prerogative had been increasingly circumscribed by the doctrines referred to in the next Chapter, so it seems unlikely that they intended to free it from its fetters by the words of s 61. [10.40] The issue was revisited, inconclusively, in CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514, another case in which “irregular maritime arrivals” had been intercepted at sea. The government, using powers under the Maritime Powers Act 2013 (Cth), had ordered the navy to try to take the foreign nationals to India, which would not accept them, so they were finally delivered to Christmas Island. The plaintiff sued the Minister for wrongful imprisonment. The majority (French CJ and Crennan, Gageler and Keane JJ) held that the detention on board ship had been authorised by the Act. Their Honours therefore did not need to discuss the executive power point, but two did so. French CJ did not refer to his decision in Ruddock, but briefly confirmed the thrust of it by denying, at [42], that “the prerogative content comprehensively defines the limits of the aspects of executive power to which it relates”. Keane J emphatically affirmed the decision in Ruddock. Having rejected the arguments based on the Act, the dissentients (Hayne and Bell JJ and Kiefel J) of course needed to address the executive power issue. Hayne and Bell JJ decided the issue on separation of powers grounds (see Chapter 25). They held, at [147]–[148], that, whatever source the Commonwealth claimed its power came from, the question was: “Does the executive power of the Commonwealth of itself provide legal authority for an officer of the Commonwealth to detain a person and thus commit a trespass?” They answered “no”. Kiefel J held, at [258]–[286], that whatever the source of a power to exclude aliens it had been displaced or abrogated by the long history of relevant legislation, under the principle discussed in 11.110. Both of these approaches (which, with respect, have a much longer provenance in the precedents than the idea of s 61 as a separate source) would mean that the executive can do no more by appealing to s 61 than it can by relying on the history of the prerogative powers. In yet another immigration case, Plaintiff M68-2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 327 ALR 369, one of the questions stated was whether the Commonwealth had had power to enter into a Memorandum of Understanding (MOU) with the government of Nauru under which “irregular arrivals” were sent to Nauru. The question was phrased with respect to power under s 61, but a section 142

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specifically authorising the actions had been inserted into the Migration Act 1958 (Cth), and was expressly given retrospective effect (which is perfectly valid — see 13.70). That was enough to answer the question. Gageler J, however, gave a lengthy analysis of executive power in his judgment, in the course of which he said at [134]–[135]: … the essential difference [is] between an act done in the execution of a prerogative executive power and an act done in the execution of a non-prerogative executive capacity. An act done in the execution of a prerogative executive power is an act which is capable of interfering with legal rights of others. An act done in the execution of a nonprerogative executive capacity, in contrast, involves nothing more than the utilisation of a bare capacity or permission, which can also be described as ability to act or as a “faculty”. Such effects as the act might have on legal rights or juridical relations result not from the act being uniquely that of the Executive Government but from the application to the act of the same substantive law as would be applicable in respect of the act had it been done by any other actor.

That clearly amounts to another rejection of the idea that the executive obtains any additional coercive power from s 61. The issue is not yet closed but the more persuasive authorities seem to be against the “s 61 as source” idea and in favour of both the creation and regulation of executive powers by statute, with a limited role for the prerogative.

10.4 Division of power between Commonwealth and State executives [10.50] As far as the administration of statutes is concerned, of course each jurisdiction has its own statutes and the relevant executive administers them. As to prerogative powers, it is clear that the Commonwealth executive inherited the common law prerogatives of the government as they were known in Britain, at least in so far as they were relevant to the central government in a federation. As the majority judgment in the Engineers’ case pointed out, “the Constitution must be … read … naturally in the light of the circumstances in which it was made, with knowledge of the combined fabric of the common law, and the statute law which preceded it”, and certainly part of the fabric of the common law was that the executive government had prerogative powers. One example that is referred to several times in the case law is the ancient (and thoroughly unfair!) prerogative that Crown debts are paid in priority to all other debts of equal degree: see Uther v Federal Commissioner of Taxation [1947] HCA 45; (1947) 74 CLR 508 and the earlier cases cited at footnotes 1, 2 and 3 of that case. As to which prerogative powers are relevant to the central government, Isaacs J pointed out in Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (the Wool Tops case) [1922] HCA 62; (1922) 31 CLR 421, at 437–9, that s 61 confers on the Commonwealth all the prerogative powers of the Crown except those that are necessarily exercisable by the States under the allocation of responsibilities made by the Constitution 143

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and those denied by the Constitution itself. More elaborately, Evatt J suggested, first in his doctoral thesis and then in Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd [1940] HCA 13; (1940) 63 CLR 278, that the prerogative powers fall into three main classes: ■

■

■

In the first place, there are many royal prerogatives by virtue of which the King or his representative … is entitled to act, eg, to declare war, to make peace. Such prerogatives may be said to be executive in character, and, for want of a better phrase, they may be described as “executive prerogatives”. In the second place, the Crown is, by virtue of its common law prerogatives, entitled to the benefit of certain preferences, immunities and exceptions which are denied to the subject. Illustration of such prerogatives are the right of the King to be paid by a debtor before all other creditors, and the rule that the King is immune from the processes of his courts. In the third place, there are certain royal prerogatives which partake of the nature of property, eg, the right to escheats, the prerogative right in relation to royal metals, the right to treasure trove, and the ownership of the foreshore and of the bed of the ocean within territorial limits. This third group may be described as constituting the proprietary rights of the King enjoyed by virtue of the prerogative. (emphasis and dot points added)

He suggested that the Commonwealth had necessarily taken over the first group (which, with respect, could better be classed as the external prerogatives) while the proprietary rights remained with the States. The preferences and immunities were enjoyed by both the Commonwealth and the States — which can lead to disputes over which one has preference ahead of the other, mentioned in Chapter 33. The Commonwealth Parliament can make laws in furtherance of executive power under the incidental, or executory, power in para 51(xxxix). In conjunction with the final words of s 61, this gives a power to make laws incidental to the execution and maintenance of the Constitution. This was held in Burns v Ransley [1949] HCA 45; (1949) 79 CLR 101 and R v Sharkey [1949] HCA 46; (1949) 79 CLR 121 to support laws prohibiting sedition — a national security power. The national security power will be discussed further in Chapter 19. The combination of s 61 and para 51(xxxix) also supports the spending of money on matters of national significance, sometimes described as the “nationhood” power: see Davis v Commonwealth [1988] HCA 63; (1988) 166 CLR 79 and other cases discussed in 21.190–21.200. Indeed it was held that the executive power alone allowed the executive to establish a body to celebrate the Bicentenary in 1988; then the incidental legislative power was used to make supplementary provisions, including an appropriation. However, as we will see in 17.50, legislation based on this power must be proportionate to the achievement of the claimed national purpose, and therefore in Davis only part of the legislation was valid. 144

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Cross-references: For the ways in which the exercise of legislative power is limited by Constitutional doctrines, see Chapter 11. The existence of a national security power, possibly derived from s 61, is noted in Chapter 19 and the “nationhood” spending power in Chapter 21. The fact that an executive power granted by statute is limited by the need for compliance with the statute is the main topic of Administrative Law.

ISSUE FOR DISCUSSION Read Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491. Which of the judgments seems to you to be most consistent with the principles and judicial approaches discussed in the following chapter?

FURTHER READING Nicholas Condylis, “Debating the Nature and Ambit of the Commonwealth’s Nonstatutory Executive Power” (2015) 39 MULR 385 George Winterton, “The Limits and Use of Executive Power by Government” (2003) 31 Fed L Rev 421 and other articles in that issue of the Federal Law Review, a special issue on executive power

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CHAPTER 11

Limits on Executive Power; Parliamentary Control of Finance and the Rule of Law

11.1 Context and outline [11.10] In the previous two chapters, we first saw that the executive must be led by those Members of Parliament who have the support of the majority of the lower House, and then that the legal powers of the executive are partly inherited from the old royal prerogative and partly granted by statute. We saw that the State executives also have all the powers of a natural person, while the full range of powers of the Commonwealth executive is still subject to some dispute. In this Chapter, we consider the legal limits that are placed on the powers of the executives. We will see that the government’s power to spend money is still theoretically subject to the need for an appropriation by Parliament, but Parliaments have been allowed to attach such vague conditions that this rule has been reduced to a mere limit being placed on a Department’s total spending. One the other hand, we will see that the various immunities or presumptions of immunity that used to benefit the executive have been eroded, so that the claim that the executive is subject to the rule of law is now more accurate than in, say, the nineteenth century. In Chapter 21, we will revisit the Commonwealth’s power to spend money and find that it is limited to spending on purposes that fall under the Commonwealth’s legislative power (and matters genuinely incidental to that power), to a stricter degree than was previously thought.

11.2 Parliamentary control of taxation and spending [11.20] As already mentioned in Chapters 2, 3 and 9, the “conventions” of responsible government are underpinned by the legal requirement, first stated in article 4 of the 147

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Bill of Rights 1688, that an executive government must have the approval of Parliament before it can impose a new tax or spend any money. Although the Constitution of Queensland includes both parts of the rule in ss 65 and 66, most Australian Constitutions state only the spending side of the rule; for example, s 83 of the Commonwealth Constitution provides: “No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law”. However, the taxing side is clearly regarded as part of the common law, as shown below.

Taxation without authorisation by Parliament [11.30] As to tax, both Stevenson v The Queen (1865) 2 WW&A’B (L) 143 (Victorian Supreme Court) and Bowles v Bank of England [1913] 1 Ch 57 involve situations where the “lower” House had passed a tax bill, and the government started to collect the tax before the bill had passed the “upper” House (or in the Bowles case, without waiting for the one month to pass before which the bill could become law under the Parliament Act 1911). In each case, the court held that the collection of the tax was illegal. As well as the taxation point, the cases are also authority for the more general point that the law can only be changed by an Act passed by both Houses and given the royal assent; a resolution of one House may be binding within that House but can have no wider effect. In Attorney-General v Wilts United Dairies Ltd (1921) 37 TLR 884, a wartime official called the Food Controller had been given the power to regulate milk sales. In return for giving the dairy company a licence, he required the company to pay a fee of twopence per gallon of milk that it purchased. The Court of Appeal noted that Parliament could have authorised the Controller to charge a fee, but it had not. Executive imposition of the fee, even though the company had initially agreed to pay it, was a breach of the Bill of Rights. The decision was confirmed on appeal by the House of Lords, reported very tersely at 38 TLR 781. There is a High Court case, Commonwealth v Colonial Combing, Spinning & Weaving Co Ltd (the Wool Tops case) [1922] HCA 62; (1922) 31 CLR 421 in which most of the Justices regarded the main issue as relating to the Commonwealth’s power to enter into contracts. However, the purported contracts were very odd contracts, rather like those in the Wilts Dairies case, above, under which the government took a share of profits in return for granting a licence, so the main ground on which Isaacs and Starke JJ ruled them invalid was that they were imposing a tax. The effect of these cases is somewhat reduced by the fact that tax laws, like all other laws, can be declared to have retrospective effect. Governments often take advantage of this by announcing a tax and starting to collect it immediately, confident that it will be validated eventually. There is a justification for this, in policy if not in strict constitutional principle, especially in respect of customs duties and sales taxes, as opportunities for speculation and evasion would be opened up if there were a long delay between the announcement of a new or increased tax and the start of its collection. This was recognised in Ex parte Wallace & Co (1892) 13 LR(NSW)(L) 1, where Darley CJ at 9–10 acknowledged that merchants challenging the Collector of Customs in such 148

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circumstances might have a strict legal right but that granting a remedy would “prove mischievous and be opposed to well-established policy”. The Acts imposing customs and excise duties now provide that if a new tariff or a tariff alteration has been proposed in Parliament, no proceeding challenging anything done in protection of the revenue can be commenced before the close of the session of Parliament or before the expiration of 12 months (whichever first happens): see Customs Act 1901 (Cth) s 226 and Excise Act 1901 s 114. In 2009, after the Senate had rejected a proposed excise increase on canned pre-mixed drinks (“alcopops”), a distiller sought a declaration that the collection of the tax was unlawful, but the Federal Court accepted the arguments stated in Wallace and stayed the proceedings until the 12 months from the tabling of the proposal had expired: see Suntory (Aust) Pty Ltd v Commissioner of Taxation [2009] FCAFC 80; (2009) 177 FCR 140. The amending legislation was eventually passed.

Spending without a relevant appropriation [11.40] It is clear that it is unlawful for a government to spend money without any appropriation. Further, if an appropriation puts conditions on the spending of a sum, the conditions must be complied with. This is illustrated by Auckland Harbour Board v the King [1924] AC 518. An Act of the New Zealand Parliament had authorised the Minister of Railways to pay the Harbour Board £7500 when they granted a certain lease to a third party. The Minister paid the money even though the Board had not granted the lease. When the Railway Department realised the mistake, it set the amount off against another payment it had to make to the Harbour Board, which sued and, having lost in the New Zealand courts, appealed to the Privy Council. Their Lordships held that the appropriation was “only operative if the condition was actually satisfied” and the payment was therefore illegal. In answer to an argument that the transaction could not be reopened because it had been approved by the Auditor-General, their Lordships said: … it has been a principle of the British Constitution now for more than two centuries, a principle which their Lordships understand to have been inherited in the constitution of New Zealand with the same stringency, that no money can be taken out of the Consolidated Fund into which the revenues of the State have been paid, excepting under a distinct authorization from Parliament itself. The days are long gone by in which the Crown, or its servants, apart from Parliament, could give such an authorisation or ratify an improper payment. Any payment out of the Consolidated Fund made without Parliamentary authority is simply illegal and ultra vires, and may be recovered by the Government if it can, as here, be traced.

However, appropriations are not usually earmarked for such specific purposes or subjected to such specific conditions. In parliamentary and government practice, there are two types of appropriations: annual and “special” or permanent. The Government’s annual budget is presented as an Appropriation Act (two separate ones in the case of the 149

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Commonwealth, for reasons explained in Chapter 16). However, much1 government spending is now authorised by permanent appropriations in the Acts authorising the payment of, for example, social welfare benefits or establishing specific bodies or programs. “Special” appropriations are no longer “special” as in unusual, though they are for a specific program or purpose. There is an old Victorian case, Alcock v Fergie (1867) 4 WW & A’B (L) 285, in which it was said at 318 that a special appropriation “ought to be of a sum certain, for some definite specific object, the value of which Parliament can estimate and in consideration of which it is prepared to forego its privilege of an annual vote and appropriation, after full discussion”. However, in Fisher v The Queen (1901) 26 VLR 781, Madden CJ said at 781, “there is nothing ultra vires or even unwise in providing that when moneys of a definite kind, not at present ascertainable, can be and shall be ascertained later, the consolidated revenue shall be specially appropriated to meet them”. This was endorsed by Evatt J in New South Wales v Bardolph [1934] HCA 74; (1934) 52 CLR 455 at 480,2 and is certainly in line with current practice. For example, s 123ZN of the Social Security (Administration) Act 1999 (Cth) provides “(1) The Consolidated Revenue Fund is appropriated to the extent necessary for the purposes of …” and then lists eight ongoing purposes. At annual budget time, Parliament is advised of the past year’s estimated spending on social welfare and all the other permanently-appropriated matters, along with the following year’s estimates.3 This, it seems to be agreed, is sufficiently in line with the purpose of the Bill of Rights and of s 83 — Parliament knows how the executive is spending its money, and approves. Annual appropriations were once somewhat more specific in that they named a recipient or a program. For example, the appropriation whose validity was challenged in Victoria v Commonwealth (AAP case) [1975] HCA 52; (1975) 134 CLR 338 (see Chapter 21), provided: 4. Australian Assistance Plan 01. Grants to Regional Councils for Social Development 02. Development and evaluation expenses  Total

$5,620,000 350,000 $5,970,000

[11.50] However in the 1999–2000 budget, the Commonwealth Government changed from “output appropriations” to “outcome appropriations”. In theory, this places “greater emphasis on performance in the public sector” — see footnotes 6 and 7 in Combet’s case, below — but in practice it allows the Government to insert a few sloganistically-phrased objectives, sometimes so vague that the degree of their achievement is totally unmeasurable, instead of anything at all concrete. Auditors can check that the authorised amounts 1 Up to three-quarters of all Commonwealth spending according to this Finance Department website: http://www.finance.gov.au/budget/budget-process/appropriation-bills.html. 2 Evatt J decided Bardolph at first instance. On appeal, the Full Court disagreed with one point he had made but appear not to have disagreed with his endorsement of the dictum from Fisher. 3 For an example from the 2015 budget, see the Special Appropriations Table at http://www.budget.gov. au/2015-16/content/bp4/html/bp4_part_01-sapt.htm

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have not been exceeded, but even if the objectives are expressed in terms that are quantifiable, they would have to rely on general social research rather than traditional auditing to be able to say whether the objectives had been met. For example, in the appropriation for the Department of Employment and Workplace Relations in the Appropriation Act (No 1) 2005–2006 (Cth), there appeared: Outcome 1 — Efficient and effective labour market assistance Outcome 2 — Higher productivity, higher pay workplaces Outcome 3 — Increased workforce participation

Each item had two sums against it labelled “departmental outputs” and “administered expenses”, and a total. In July 2005, the Government started using some of this money to pay for an advertising campaign to promote its proposed “Work Choices” laws. In Combet v Commonwealth [2005] HCA 61; (2005) 224 CLR 494, Combet challenged the validity of this expenditure on the basis that it was not authorised by the Appropriation Act. The majority of the High Court dismissed the challenge, saying at [136] that as a matter of interpretation of the Act “the question for decision is not whether the advertising expenditure answers one or more of the stipulated outcomes but whether it is applied for departmental expenditure” — which it was. As to the more general issue of the constitutionality of the Appropriation Act, their Honours noted: It is for the Parliament to identify the degree of specificity with which the purpose of an appropriation is identified … What is apparent from consideration of past practice is that at least since the mid-1980s the chief means of limiting expenditures made by departments of State that has been adopted in annual appropriation Acts has been to specify the amount that may be spent rather than further define the purposes or activities for which it may be spent. There is, therefore, nothing in the relevant constitutional framework or in past parliamentary practices which suggests some construction of the Appropriation Act (No 1) 2005–2006 different from the construction required by its text.

That is, while a Government is supported by a majority in Parliament, it can express appropriations as specifically or as vaguely-verging-on-mystically, as it likes, and the fact that the Parliament has passed the Act authorises the Government to spend the money in any way that can plausibly be forced under one of the headings in the Act. Although Auckland Harbour Board is still sound law, its strictures have been effectively avoided. However, as we shall see in Chapter 21, appropriations by the Commonwealth Parliament do have to have some connection either with a head of power or the implied “national purposes” power.

11.3 Subjection of the executive to control by law — the rule of law [11.60] As noted in Chapter 2, Professor Dicey wrote fulsomely and with much exaggeration of the rule of law in the late nineteenth century. It was an idealised picture. In his 151

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time, the old idea that “the Crown can do no wrong” was still persisting, and extended not only to the person of the monarch but to the entire government. Individual officers of government could be subject to the law for unauthorised actions, or for actions purportedly authorised by an invalid writ as in Entick v Carrington, but the government as a whole, and Ministers, were generally immune. Not only could the government not be prosecuted for breach of the criminal law, but it was immune from suit in civil matters unless a petitioner went through the complicated process of obtaining a “petition of right”. Although it had been clear since the Bill of Rights 1688 that its powers could be limited by statute, there was a presumption of statutory interpretation that an Act was not intended to bind the Crown unless it manifested an intention to do so. Administrative law was so much in its infancy that Dicey denied that England had any such thing. In fact the writ of mandamus (“we command”) could issue to any public officer failing to perform a duty, but the other supervisory writs4 now familiar in administrative law — certiorari (roughly, “inform us of your reasons”) and prohibition — could only be issued to officers who exercised a judicial function.5 This included justices of the peace who exercised many minor administrative functions along with their judicial duties, so their administrative functions were reviewable, but the activities of the gents of the Civil Service were beyond judicial control unless they committed an actual tort. Dicey may in fact have performed a service by misrepresenting the law so badly, because his reputation was such that his claim about the rule of law possibly had a normative effect. For one reason or another — among which may have been the memory of Dicey’s claim that England was governed by the rule of law — most of the ways, listed above, in which the executive avoided legal controls have been abolished or eroded practically to nothing.6

Subjection of the executive to being sued in civil actions [11.70] Most of the reforms in legal procedure of the nineteenth century originated in Britain and were then copied in the colonies. However, the subjection of the government to civil actions in tort, contract and the rest originated in the Australian colonies and was not copied in Britain until 1947. In 1853, an Act with the unofficial short title the 4 Originally known as “prerogative writs” but the High Court now insists that at least when they are issued in exercise of the s 75(v) jurisdiction they should be called “constitutional writs”; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82. It is suggested that “supervisory writs” is the best general name for them. 5 See Stephen Gageler, “Administrative law judicial remedies”, in Matthew Groves and H P Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines, CUP, 2007. 6 In this chapter it is assumed that the “rule of law” means only that the executive government is bound by law. Since World War II, legal theorists have also proclaimed that under an effective rule of law there would be limits on the ways in which parliaments could make laws (a “thin” theory), and even limits on the substantive content of laws (a “thick” theory). For a discussion of this, see Charles Sampford, Retrospectivity and the Rule of Law, OUP, 2006.

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Claimants Relief Act was enacted in South Australia,7 followed by a New South Wales Act in 1857 and the Crown Redress Act 1859 in Tasmania. By 1902, all colonies had such an Act. The right to sue the government for common law or equitable claims, and to have the rights of parties in such matters decided, as nearly as possible, as in a suit between subject and subject, is now in the statute law of all States, although it is not “constitutional” in the strong sense of being entrenched in a higher law. Of course, an action against a State government for a refund of money collected in breach of the Commonwealth Constitution is guaranteed under the Constitution; this was confirmed, if confirmation was necessary, in British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; (2003) 217 CLR 30. When the Commonwealth Constitution was being drafted, the drafters included provisions which suggest that they were taking it for granted that the Commonwealth and State governments could be sued routinely. Section 75 includes “matters … (iii) in which the Commonwealth, or a person being sued on behalf of the Commonwealth, is a party” in the original jurisdiction of the High Court, and s 78 gives the Parliament the power to “make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power”. When it enacted the Judiciary Act 1903, Parliament included s 64 with provides: “In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject”. This has been seen as crucial in abolishing governmental immunity, for example, in Commonwealth v Evans Deakin Industries (1986) 161 CLR 254. However, more recently, some Justices have suggested that, even without s 64 above, the continuance of the common law immunity for the Commonwealth would be inconsistent with provisions of the Constitution. In Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471, a case where the Commonwealth argued that Mewett’s tort action was time-barred, Gummow and Kirby reasoned at 548–51: … the acceptance in Australia of the principle in Marbury v Madison as “axiomatic”, placed a fundamental limitation upon any general acceptance in the exercise of federal jurisdiction of the maxim that the Sovereign could do no wrong …

Their Honours discussed cases in which “the Crown” relied on a statutory defence. They observed that, of course, the Crown would not be able to rely on the statute if it was unconstitutional. They continued: [Here] the liability is created by the common law. In respect of that liability, the ­Constitution applies to deny any operation to what otherwise might be doctrines of Crown or executive immunity which might be pleaded in bar to any action to recover judgment for damages in respect of that common law cause of action. 7 See Greg Taylor, “John Baker’s Act: The South Australian Origins of Australian Claims-Against-TheGovernment Legislation” (2004) 27(3) UNSW LJ 736.

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The reasoning of Gummow and Kirby JJ quoted above might seem to suggest that the Commonwealth is subject to some irrepealable common law doctrines, and that it could never change the tort law that applies to itself or enact a Limitation Act applying to such law. Their Honours, however, did go on to say: That still leaves much scope for the exercise of the powers conferred upon the Parliament by s 51(xxxix) in respect of matters “incidental to the execution of any power vested by [the] Constitution … in the Government of the Commonwealth, or in the Federal Judicature”.

Brennan CJ and Gaudron J expressed general agreement with their Honours’ reasons. That is, although the Constitution prevents the old “common law” general immunity from suit from applying, the Commonwealth could enact laws limiting its liability, imposing time limitations or even to “prevent any liability”. We would simply have to hope that any such laws would strike a reasonable balance between the rights of those injured by Commonwealth activities and the Commonwealth’s interest in protecting the Consolidated Revenue.

The presumption of government immunity from statute, and its near disappearance [11.80] Ever since William and Mary consented to be bound by the Bill of Rights, it has been clear that the executive government can be bound by statute; indeed the cases on the displacement of the prerogative discussed below show that whole areas of discretionary power once available to the executive can be regulated by law (though perhaps more readily in Britain than in Australia). However, until 1990 there was a presumption that laws were not intended to bind “the Crown”, meaning the whole executive government, unless such an intention was expressed or clearly implied. (Note that it is in these cases that Justices of the High Court have been particularly alert to remind us that it is in the interests of clarity to refer to “the government” rather than the Crown, unless we actually mean Her Majesty the Queen. See the citations in 9.160.) In the early twentieth century, the approach to this presumption was the same as to most other presumptions of statutory interpretation; it could be rebutted by considering the apparent intention of Parliament, inferred from the full text of the Act and the circumstances of its enactment. However, in Province of Bombay v Municipal Corporation of Bombay [1947] AC 58, the Privy Council stated the test rather more strictly: it must appear “that, at the time when the statute was passed and received the royal sanction, it was apparent from its terms that its beneficent purpose must be wholly frustrated unless the Crown were bound”. Once the Privy Council was removed from the Australian court system, this decision was ripe for reconsideration. The reconsideration occurred in Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1. The Aboriginal Heritage Act 1972 (WA) placed restrictions on activities that would disturb a “sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent”. The Western Australian Development 154

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Corporation proposed to redevelop the old Swan Brewery land, which Bropho claimed to be a sacred site. The Act said nothing about whether it bound the government, though bearing in mind that seven per cent of the land in Western Australia was freehold, 43 per cent was subject to Crown leases or licences and 50 per cent was “vacant Crown land”, its beneficent purpose would have been very close to “wholly frustrated” if it did not bind the government. Nevertheless, the Western Australian Supreme Court held, by majority, that the Act did not bind the Crown. The High Court upheld Bropho’s appeal unanimously. Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said, at [14]–[15]: For so long as “the Crown” encompassed little more than the Sovereign, his or her direct representatives and the basic organs of government, there may well have been convincing reasons for an assumption that a legislative intent that general statutory provisions should bind the Crown and those who represent it would be either stated in express terms or made ‘manifest from the very terms of the statute’. The basis of an assumption to that effect lay in a mixture of considerations: regard for the dignity and majesty of the Crown; concern to ensure that any proposed statutory derogation from the authority of the Crown was made plain in the legislative provisions submitted for the royal assent; and, the general proposition that, since laws are made by rulers for subjects, a general description of those bound by a statute is not to be read as including the Crown … Whatever force such considerations may continue to have in relation to legislative provisions which would deprive the Crown “of any part of (the) ancient prerogative, or of those rights which are … essential to (the) regal capacity” (see per Griffith CJ, Sydney Harbour Trust Commissioners v Ryan, at p 365), they would seem to have little relevance, at least in this country, to the question whether a legislative provision worded in general terms should be read down so that it is inapplicable to the activities of any of the employees of the myriad of governmental commercial and industrial instrumentalities covered by the shield of the Crown.

Their Honours therefore held that the Act bound the Corporation. [11.90] It is worth noting that in argument in Bropho, Brennan J had asked counsel for the State whether the presumption was not contrary to the rule of law, from which it could be inferred that the presumption should not just be weakened but reversed. However, the majority judgment made it clear at [19] that they were not going so far as that. However, subsequent judgments have made it clear that the presumption is, if not quite reversed, particularly easy to rebut. In NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48; (2004) 219 CLR 90, McHugh ACJ, Gummow, Callinan and Heydon JJ referred to “what, since Bropho v Western Australia, is the eclipse of the rule of statutory construction rendering general terms prima facie inapplicable to the Crown itself ”. In Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2007] HCA 38; (2007) 232 CLR 1, the Court rejected the notion that a corporation dealing with the Government could have a “derivative Crown immunity”, noting that earlier cases on the concept had been “overtaken” by the decision in Bropho. 155

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If the presumption has not been reversed, to say that it has been “eclipsed” surely goes close. There are certainly situations where government and its agents need special immunities or privileges; the ability of an emergency vehicle to drive through a red light (with all due care) is an obvious example. If the immunities or privileges are not spelled out in legislation (as the emergency vehicles one is, in most jurisdictions)8 it may be more appropriate in modern times if those arguing for it have to face the onus of overcoming a presumption rather than benefiting from one. It seems from the above cases that we have almost reached that situation, but no decision has quite said that we are there yet. There is also an issue in these cases as to whether a particular agency is “governmental” enough to have the “shield of the Crown”. In view of the High Court’s announcement of the “eclipse” of the presumption of immunity, this is not discussed here, although a similar issue will arise in Chapter 33. In a federation, there is a further potential complication; that is to say, are the officers of the Commonwealth executive subject to State laws and vice versa? In the early days of federation, the High Court applied a doctrine of reciprocal implied immunities, but now it can usually be presumed that the executive officers of each level of government have to obey all the laws that apply in their location. Of course, the Commonwealth has a few advantages here, one of which is that there are no State laws in force in the Australian Capital Territory, where the Commonwealth conducts a large part of its functions. However, where the Commonwealth is conducting activities in a State, its agencies are bound by State law, unless it has “immunised” them by a law that overrides the State law. An example is Re Residential Tenancies Tribunal of NSW and Henderson; Ex parte Defence Housing Authority [1997] HCA 36; (1997) 190 CLR 410 where it was held that the Residential Tenancies Act 1987 (NSW) bound the Commonwealth’s Defence Housing Authority. A further Commonwealth advantage is that its laws generally apply in all the States and, under covering clause 5, are binding on the courts, judges and people of every State. An example of a Commonwealth law binding a State executive is Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 where the Queensland Government had clearly breached the Racial Discrimination Act 1975 (Cth) by refusing to approve a transfer of land to an aboriginal group, pursuant to a Cabinet policy decision. Once it was held that the Act was valid (see Chapter 19), it was taken for granted that it would apply to make the Queensland Government’s decision illegal.9 The remaining immunities, which apply in cases where a law would seriously curtail the functioning of the Commonwealth or a State as elements of the federation, are discussed in Chapter 33. The final, overwhelming, Commonwealth advantage is that even if the State has passed a law to support its executive decisions, a Commonwealth law will override it; this is discussed in Chapter 32. 8 For example, the Transport Operations (Road Use Management — Road Rules) Regulation 1999 (Qld) s 306. 9 However, the Queensland government had already acted to avoid the effect of the decision by declaring the area including the land to be a National Park. The land was eventually transferred in 2012.

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Displacement of prerogative powers by statute [11.100] As part of the rule that the executive is bound by law, it is clear that prerogative powers, and s 61 powers if they are separate and broader, are generally subject to regulation by statute. However, there is sometimes a question of whether an essentially discretionary prerogative power remains in force alongside a regulated and limited statutory one. Here the High Court and Federal Court have been somewhat more “executive minded” than the approach in the above sections might lead one to expect, and certainly more so than the House of Lords. The classic English case is Attorney-General v De Keyser’s Royal Hotel Ltd [1920] UKHL 1; [1920] AC 508. The Hotel, in inner London, had been compulsorily occupied in 1916 to serve as the headquarters of the Royal Flying Corps. When acquiring the property, the government had expressly relied upon the Defence Act 1842 (UK), which provided for compensation, but when the hotel owner asked for compensation the government changed tack (never a good look in litigation!) and argued that it had acquired it under the prerogative, and that there was no need to pay compensation for such acquisitions. The Law Lords doubted the latter claim, suggesting that, even at common law, the power to seize without compensation only applied when property was seized on a battlefield or directly in the face of an enemy advance (confirmed 44 years later in Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1964] UKHL 6; [1965] AC 75), but discussed the case on the assumption that the prerogative did provide for seizure without compensation. They held unanimously that the Act had to be applied. Lord Dunedin said that when a statute empowered the Crown to do something it could do under the prerogative, but subject to conditions, the prerogative was curtailed. Lord Atkinson said the prerogative was abridged, Lord Sumner said the legislature could abate the prerogative, and Lord Moulton said that although the prerogative was “not abrogated”, the intention of the legislature was that the powers should henceforth be exercised under the statute. In what is generally regarded as the leading judgment, Lord Parmoor said the prerogative had been curtailed, and as a general rule said “it may be taken away or abridged by express words [or] by necessary implication”. This approach has more recently been followed in Laker Airways Ltd v Department of Trade [1976] EWCA Civ 10; [1977] QB 643 where an attempt by the Government to rely on the prerogative to cancel Laker’s licence, although there was legislation imposing a right to public hearings in such matters, was described by Roskill LJ as “the Crown, having failed to enter through the front door … [trying to] enter through the back door and in effect achieve the same result”. However, in Barton v Commonwealth [1974] HCA 20; (1974) 131 CLR 477, the High Court set a stricter test for the abridgment of the prerogative. The Court unanimously held that the passage of a statute regulating extradition from countries with whom Australia had an extradition treaty did not abrogate the executive’s power to make an extradition request to non-treaty countries such as Brazil. This may have been the right result even under the De Keyser’s approach; there was really no implication in the Act that it was intended to cover all cases. Barwick J held at 488 that “the rule 157

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that the prerogative … is not displaced except by a clear and unambiguous provision is extremely strong”. Mason J said at 501: [T]he power to seek and obtain the surrender by a foreign state of a fugitive offender is an important power essential to a proper vindication and an effective enforcement of Australian municipal law. It is not to be supposed that Parliament intended to abrogate the power in the absence of a clearly expressed intention to that effect.

Jacobs J said at 508 that “an intention to withdraw or curtail a prerogative power must be clearly shown” and also emphasised that the right to communicate with a foreign state is an “important” prerogative power. [11.110] The matter arose again in the Tampa case, Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491. The MV Tampa had picked up 438 refugees from a sinking vessel, and had taken them to the territorial waters of Christmas Island. The Government prevented them from leaving the ship and was preparing to move them to New Guinea and Nauru. The Victorian Council for Civil Liberties’ solicitor, Eric Vadarlis, sought orders from the Federal Court that the proposed deportation was unlawful. At first instance, in Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs [2001] FCA 1297; (2001) 110 FCR 452, North J held that the refugees were being detained on the Tampa and that neither the Migration Act 1958 (Cth) nor any other law permitted the detention. On appeal to the Full Court, the issue shifted to whether the provisions of the Migration Act 1958 (Cth) abrogated the executive’s power (whether it arose under the prerogative or directly under s 61) to exclude illegally-entering aliens from Australia’s borders. Black CJ held at [29] that, although the Parliament could undoubtedly make laws to exclude aliens, it was, at best, doubtful that a prerogative power to exclude continued to exist at common law. As noted in Chapter 10, he had no doubt that no such power came directly from s 61. The question, then, was if it did exist at all, had it been displaced? His Honour cited De Keysers’ and Laker Airways, above, and Australian cases, and concluded at 37: “These cases show that, where the prerogative is relied on as an alternative source of power to action under a statute, the prerogative will be held to be displaced when the statute covers the subject matter”. After surveying the provisions of the Act, he held: Taken together these provisions provide a comprehensive regime for the control of Australia’s borders and the patrol of the territorial waters in the circumstances such as those that the rescued people were in at the relevant time. The regime could have applied to the rescued people …

Therefore, there was no separate prerogative power. However, having held that the executive power, as directly derived from s 61, did extend to a power to exclude non-citizens (see 10.30), French J, with Beaumont J’s concurrence, first noted at [192] that: 158

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There are legislative powers … which may be seen as central to the expression of Australia’s status and sovereignty as a nation. They include the powers to make laws with respect to naturalisation and aliens (s 51(xix)), immigration and emigration (s 51(xxvii)) and the influx of criminals (s 51(xxviii)). Australia’s status as a sovereign nation is reflected in its power to determine who may come into its territory and who may not and who shall be admitted into the Australian community and who shall not.

And followed at [201]–[202] with: The question is whether the Act operates to abrogate the executive power under s 61 to prevent aliens from entering into Australia … In considering what is the implied intention of the Act and in particular the provisions referred to earlier, it is necessary to have regard not only to the general approach, supported by authority, to the question whether executive power is taken to be abrogated by statute, but also the importance to national sovereignty of the particular power in question … The Act confers power. It does not in the specific area evidence an intention to take it away. The term “intention” of course is a fiction. What must be asked is whether the Act operates in a way that is necessarily inconsistent with the subsistence of the executive power described. It is facultative. Its object is control of entry.

Therefore the executive’s power had not been displaced by the Act and the government’s actions were lawful. Despite arriving at a different result, Black CJ may not have disagreed with the above test. As noted above, he had decided that the asserted power to exclude was “at best doubtful”. As to the clarity with which an intention to displace a prerogative or executive power needs to be expressed, he held at [40]: It can readily be conceded that if a power is well used, well-established and important to the functioning of the executive government, a very clear manifestation of an intention to abrogate will be required. But, similarly, where an asserted power is at best doubtful, and where, if it exists at all, it does so in a field that has been the concern of the Parliament for a very long time, a less stringent view of the intention necessary to abrogate such a power is appropriate.

So their Honours appeared to agree on the proposition that powers “central to the expression of Australia’s sovereignty” can only be displaced by a clear intention, a point already made in Barton. It appears that the test for displacement is stricter, at least in the case of these “powers central to sovereignty”, than in Britain. Since Ruddock v Vadarlis, French J has of course become French CJ of the High Court. In a lecture he gave in early 2010,10 he noted that lawyers and legal academics feel anxiety about executive power, “perhaps informed by a perception that while the judiciary is ‘the least dangerous branch’ of government, it is the executive which is the most dangerous branch”. When the specific issue of the power to exclude aliens 10 Inaugural George Winterton Lecture, “The Executive Power”: http://www.hcourt.gov.au/assets/publications/ speeches/current-justices/frenchcj/frenchcj18feb10.pdf.

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arose again in CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514, the issue of any conflict between a statutory source and a prerogative source was avoided. As noted at 10.40, the majority (including French CJ) held that the Commonwealth had a statutory source and the dissenters held that it lacked any source in the particular circumstances, statutory or non-statutory. Kiefel J, however, cited a long list of authorities11 that made it clear, in her opinion, that even if there had been a prerogative power over aliens long ago, it had been well and truly abrogated by late colonial times and had not been revived by the creation of the Commonwealth. Like the issue as to whether powers are derived directly from s 61, this issue still lacks a majority decision by the High Court but the argument against the existence of any non-statutory power to exclude aliens has a longer provenance.

The constitutionalisation of administrative law remedies [11.120] Probably the most important way in which the rule of law is enforced on a day-to-day basis is by the use of administrative law remedies. The old restrictions on certiorari and prohibition (see 11.60 above) were gradually relaxed, and now the supervisory writs, or modern statutory remedies based on them, are available not only against judicial officers but against executive officers from Ministers down to the lowliest decision-makers.12 Statutory powers granted to Ministers and their public servants are interpreted strictly, especially if the powers are coercive or if they affect the reputation of members of the public; for a recent example see Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1. These developments in administrative law have been assisted in two respects by the development of constitutional doctrines. First, the availability of the remedies is now seen as guaranteed, at both Commonwealth and State level, by the Constitution. Secondly, as we shall see in the next section, they are now available even where the decision has been formally made by a Governor in Council. In the Commonwealth jurisdiction, the picture seems simple — recourse to the remedies is guaranteed by s 75(v); federal jurisdiction includes “matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth”. It does not mention certiorari but if an applicant commences a matter seeking prohibition or an injunction, then certiorari is available as part of the same “matter”: see Re Jarman; Ex parte Cook (No 1) [1997] HCA 13; (1997) 188 CLR 595 (just one of many cases making the point). Despite this, the Parliament (at the instigation of the executive) has frequently enacted laws containing a “privative” (depriving) or “ouster” clause, first creating an 11 Ex parte Lo Pak (1888) 9 NSWR 221 at 237; Toy v Musgrove [1888] VicLawRp 81; (1888) 14 VLR 349; Robtelmes v Brenan [1906] HCA 58; (1906) 4 CLR 395 per Griffith CJ; and Barton v Commonwealth, above, in which Barwick CJ had distinguished asking another country to extradite a fugitive to Australia (within the prerogative) from surrendering or expelling a person from Australia (no prerogative). See CPCF at [266]–[270]. 12 See Gageler, n 5 above, or any administrative law text.

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administrative or “quasi-judicial” body, secondly giving it a defined power to make certain kinds of decisions in certain circumstances, and then declaring that the body’s decisions are not subject to review. The High Court has, naturally, declared repeatedly that if such clauses were intended to be taken at face value, they are unconstitutional, though it can save them from complete invalidity by reading them down to only exempt a decision from review where it “is a bona fide attempt to exercise [the body’s] power, … it relates to the subject matter of the legislation, and … it is reasonably capable of reference to the power given to the body”: R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 per Dixon J. However, the decisions by Hickman and the Board that he chaired were so far beyond the Board’s jurisdiction that they were not saved by the clause. This had the unfortunate effect that the Parliament kept including such clauses in the hope that they would have some effect, whereas a flat declaration that they were unconstitutional may have stopped the practice. As a climax to the practice, the Parliament amended the Migration Act 1958 (Cth) in 2001 to declare that many decisions made under the act were “privative clause decisions” and then the actual privative clause, s 474(1), provided that: A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

When this was challenged in Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476, the High Court, showing extraordinary forbearance in the face of Parliament’s apparent attempt (strictly, the majority of Members’ attempt, at the behest of the executive) to flout the Constitution and the rule of law, did not rule the section flatly invalid but followed the Hickman tradition and treated the issue as one of statutory interpretation. Gaudron, McHugh, Gummow, Kirby and Hayne JJ held at [75] that if s 474 was to be read with its full breadth it “would be in direct conflict with s 75(v) of the Constitution and, thus, invalid”, but went on, at [77], to hold that the section could be read down, and saved from invalidity, because “a decision that involves jurisdictional error is not ‘a decision … made under [the] Act’”. Gleeson CJ and Callinan J generally agreed. Therefore the section was notionally valid but largely ineffective — as interpreted, it was not attempting to prevent review of the kinds of “decisions” that must be reviewable under s 75(v). [11.130] Hickman and Plaintiff S157 show that the High Court cannot be deprived of its judicial review powers under s 75(v), but para 77(i) of the Constitution provides that the Parliament may make laws “defining the jurisdiction [in federal matters] of any federal court other than the High Court” (emphasis added). Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 involved another challenge to a section of the Migration Act 1958 (Cth). Section 476(1) provided that certain decisions of the Refugee Review Tribunal 161

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(RRT) could be reviewed in the Federal Court on certain grounds, including that the decision was an improper exercise of power, but subs (3) excluded some grounds which were in fact some of the major grounds which usually lead to the vacation of a decision in administrative law cases. Clearly, under s 77, the Parliament could choose not to give jurisdiction over a particular matter to the Federal Court at all, but the issue was whether it could grant administrative law jurisdiction but then severely limit the grounds which the Court could consider. The High Court held that the section was valid by a majority of 4:3. Gleeson CJ and McHugh J observed at [26]: Nothing in the terms of s 77 or Ch III of the Constitution requires the Parliament to give a federal court authority to decide every legal right, duty, liability or obligation inherent in a controversy between subjects or between a subject and the Crown merely because it has jurisdiction over some aspect of the controversy. Nor does anything in s 77 or Ch III of the Constitution require a federal court dealing with a legal controversy to have authority to deal with every legal ground that a party wishes to put forward.

Kirby and Callinan JJ agreed. In dissent, Gummow and Hayne JJ held, at [176]: [T]he rights and duties of the parties are not adjudicated in a proceeding under that Part. Only some of the considerations affecting their rights and duties may be agitated and decided and the controversy between them is not quelled by any decision in the proceeding. There is, therefore, no conferring on the Federal Court of jurisdiction over a “matter” arising under a law made by the Parliament, within the meaning of s 77(i) and s 76(ii) of the Constitution.

Gaudron J agreed. Though this issue raises interesting conceptual questions, in the end, its effect is simply to change the distribution of the workload between the High Court and Federal Court; applicants who wish to raise one of the grounds that the Federal Court cannot hear can still resort to the original jurisdiction of the High Court, as indeed Ms Abebe did. The Court went on to consider her application for review of the RRT decision, and dismissed it. Section 476 has since been amended, but it still limits the jurisdiction of the Federal Court, which means that the High Court list is cluttered up with refugee cases that could conveniently be heard by the Federal Court. Inconvenient and absurd, but, by a 4:3 majority, not unconstitutional. [11.140] Paragraph 75(v), of course, does not apply to the State Supreme Courts’ jurisdiction to judicially review the decisions of State administrative bodies or lower courts, and of course, State Parliaments have also tended to play the same game as the Commonwealth Parliament, that is, to create a body, give it an apparently defined jurisdiction, and then to include a privative clause declaring that its decisions could not be reviewed even if it went beyond jurisdiction. Until recently, the courts dealt with these privative clauses by interpreting them restrictively, applying principles like the Hickman principle, above, or the argument, noted in Plaintiff S157 above, that a “decision” made 162

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outside jurisdiction was not a decision at all. However, drafters kept trying to draft more and more watertight privative clauses, such as the one in the Industrial Relations Act 1996 (NSW) s 179: (1) A decision of the Commission (however constituted) is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal. … (4) This section extends to proceedings brought in a court or tribunal in respect of a purported decision of the Commission on an issue of the jurisdiction of the Commission … (emphasis added)

In Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531, Kirk had been prosecuted before the Commission for failing to ensure the safety of an employee who had been killed when an all-terrain vehicle had rolled down a hillside. Even though the employee was in fact the manager of the business, who knew much more about the proper use of the vehicle than Kirk, the offence was one of strict liability and so he was convicted. He sought review in the New South Wales Court of Appeal, but that court held that it was barred from hearing the matter by s 179, above. He appealed to the High Court. The High Court (in a joint judgment of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, with Heydon J concurring)13 held that the Commission had made two errors in the conduct of the case. However, since this was not an appeal directly from the Commission but an appeal from a holding of the Court of Appeal that it did not have the power to grant judicial review, the issue was whether s 179 was in fact effective to oust the Court of Appeal’s jurisdiction. Their Honours held that the effect of privative clauses in State laws is extremely limited. At [94] their Honours referred to Hickman but noted that the question presented by a privative provision was no longer just a matter of interpretation. They noted the effect of para 75(v) in Commonwealth cases and then said at [96]–[97]: In considering State legislation, it is necessary to take account of the requirement of Ch III of the Constitution that there be a body fitting the description “the Supreme Court of a State”, and the constitutional corollary that “it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description” [Their Honours cited Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45, which is discussed in Chapter 34]. At federation, each of the Supreme Courts referred to in s 73 of the Constitution had jurisdiction that included such jurisdiction as the Court of Queen’s Bench had in England. It followed that each had “a general power to issue the writ [of certiorari] to any inferior Court” in the State. … accepted doctrine at the time of federation was that the jurisdiction of the colonial Supreme Courts to grant certiorari for jurisdictional error was not denied by a statutory privative provision. … 13 Heydon J, typically, commenced his very vigorous and readable judgment with “I dissent” but dissented only in so far as he would have ordered costs for Kirk at all stages.

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To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court … would remove from the relevant State Supreme Court one of its defining characteristics.

Their Honours then noted that there is a distinction in administrative law between jurisdictional and non-jurisdictional errors (otherwise described as errors as to jurisdiction and errors committed within jurisdiction) and held: Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.

Somewhat to the surprise of many administrative lawyers, they declared that both the errors made by the Commission were jurisdictional errors (reasoning that no tribunal has jurisdiction to misapply the laws of evidence), and quashed Kirk’s conviction. Therefore, since January 2010, we know that the availability of administrative law remedies is guaranteed by the Constitution, in both the Commonwealth and the State spheres. Though the Court paid lip service to the Hickman principle in Kirk, it remains to be seen whether the Court will continue to approach the problem of privative clauses as an interpretational issue, or whether it will simply and peremptorily rule them ineffective.

Recognition of the realities of responsible government by the courts; extension of administrative law remedies to decisions made by the “dignified part” of government. [11.150] As well as the crack-down on privative clauses, High Court decisions have torn away the mask of the “dignified part” of government, allowing challenges to decisions made in the name of the Governor in Council. In earlier times, governments had been able to avoid legal challenges to decisions by hiding behind the vice-regal mask. In Duncan v Theodore [1917] HCA 38; (1917) 23 CLR 510, Isaacs and Powers JJ said at 544 “in our opinion it is not open to impute mala fides with respect to the issue of a royal proclamation, which is the act of the King by himself or his representative” though their Honours knew full well that the proclamation had been made on the advice of the Treasurer, Mr Theodore. The deference even extended to actions for review of Ministers’ decisions; in James v Cowan (1930) 43 CLR 386, at p 411 Isaacs J said “[y]ou cannot challenge the Minister’s bona fides on the ground of dishonesty at all — that, in my opinion, can never be imputed to the King’s Executive”. Sometimes, indeed, a constitutional remedy could bypass the deficiency in administrative law; in Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 179, for example, the Act itself was held invalid for authorising proclamations that might be beyond Commonwealth power precisely because proclamations under the Act could not be reviewed. All of this has changed. First, decisions made by Ministers were held reviewable in Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1; [1968] AC 997, 164

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followed in Australia in Murphyores Incorporated Pty Ltd v The Commonwealth [1976] HCA 20; (1976) 136 CLR 1. Then in R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, the High Court (Murphy J dissenting on this point) held that a tribunal could review a decision of the Administrator of the Northern Territory (who was taken to be a representative of the Crown, equivalent to a Governor) on the grounds that it had been made for the wrong purpose. (The Administrator had held that certain lands were “town lands” and it was alleged that this had been done to defeat a native title claim.) Gibbs CJ reasoned as follows at 193: [T]hree reasons appear to have been suggested for giving an immunity from review to acts of the Crown. The first is that the Ministers on whose advice the representative of the Crown relies are responsible to Parliament, whose scrutiny is available to check excesses of power. … [However] under modern conditions of responsible government parliament could not always be relied on to check excesses of power by the Crown or its Ministers. The second reason suggested is that the courts should not substitute their views for those of the executive on matters of policy. That is of course true, but it does not mean that the courts cannot ensure that a statutory power is exercised only for the purpose for which it is granted. A third reason suggested is that the counsels of the Crown are secret. However the secrecy of the counsels of the Crown is by no means complete (see Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1) and if evidence is available to show that the Crown acted for an ulterior purpose, it is difficult to see why it should not be acted upon. In my opinion no convincing reason can be suggested for limiting the ordinary power of the courts to inquire whether there has been a proper exercise of a statutory power by giving to the Crown a special immunity from review. If a statutory power is granted to the Crown for one purpose, it is clear that it is not lawfully exercised if it is used for another. The courts have the power and duty to ensure that statutory powers are exercised only in accordance with the law. They can in my opinion inquire whether the Crown has exercised a power granted to it by statute for a purpose which the statute does not authorize.

Then in FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342, the same principle was applied to a decision officially made by the Governor of Victoria, in Council. FAI argued that it had not been given an opportunity to argue against the recommendation to refuse to renew its licence as a workers’ compensation insurer before the decision was rubber-stamped by the Executive Council. With Murphy J again dissenting, the High Court declared that the decision was reviewable and had been void though they held that, as Governor, Winneke should not have been made a party to the proceedings. At 352–5 Gibbs CJ reasoned: It is said that the Governor in Council acts exclusively upon advice, tendered either by Cabinet or by an individual Minister; and that advice is, as the Solicitor-General puts it, political in its nature. … The fact that the legislation selects the Governor in Council as the appropriate body to grant or withhold approval is said to be a clear legislative indication that the decision is one foreclosed to judicial intervention. … [But] in Victorian legislation

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it is the merest commonplace to assign to the Governor in Council the making of a host of routine administrative decisions, involving neither matters of high government policy nor any nice exercises of policy-oriented discretion. … The Governor in Council would … appear in Victoria to be a conventional instrument for the formal making both of subordinate legislation and of a host of routine administrative decisions. His selection as the person entrusted with the granting of approval of an insurer under the Workers’ Compensation Act of itself carries with it no suggestion that any matters of high policy or political significance are in question. … The Victorian scheme of things would not seem at all to conform to the English model described by C K Allen, Law and Orders (1945), p 45, where it is said that generally matters “of special importance or of wide scope are accorded the dignity of Orders in Council”… If no particular significance attaches in Victoria to the selection of the Governor in Council as the appropriate approving body it will be the nature of the decision and its effect upon interested parties that will be decisive of the question raised in these appeals, rather than the fact that the vehicle for the decision is an Order in Council. … I conclude that there was here a duty to observe natural justice and that this is a duty which the courts will enforce.

National security and the rule of law [11.160] The above sections show that, these days, the rule of law is enforced far better than in Dicey’s time, through a variety of legal doctrines. In addition, there are a couple of cases in which the rule of law was appealed to directly. The Communist Party case was mentioned at 6.20, where Fullagar J was quoted as saying that the Parliament cannot recite itself into power. In a passage expressing essentially the same idea, Dixon J appealed to the rule of law. The Commonwealth had argued that the law was valid as a law incidental to the sustaining or carrying on of government, but his Honour held that the “government” referred to was: [G]overnment under the Constitution and that is an instrument framed in accordance with many traditional conceptions, to some of which it [expressly] gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption. In such a system I think that it would be impossible to say of a law of the character described, which depends for its supposed connection with the power upon the conclusion of the legislature concerning the doings and the designs of the bodies or person to be affected and affords no objective test of the applicability of the power, that it is a law upon a matter incidental to the execution and maintenance of the Constitution and the laws of the Commonwealth. Indeed, upon the very matters upon which the question whether the bodies or persons have brought themselves within a possible exercise of the power depends, it may be said that the Act would have the effect of making the conclusion of the legislature final and so the measure of the operation of its own power. (Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 194).

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A v Hayden [1984] HCA 67; (1984) 156 CLR 532 occurred as a result of the “Sheraton raid” in which some Australian Secret Intelligence Service (ASIS) agents carried out a training exercise in the Melbourne Sheraton without informing the hotel operators. The Victoria Police alleged that a number of crimes had been committed and sought the names of the agents from the Commonwealth so the agents (“A” to “K”) sued their Minister, Hayden, to prevent him from releasing their names. They alleged that the release would be in breach of a confidentiality term in their contracts and also that it could compromise national security, though the latter argument was weakened when the Police agreed to keep their names confidential and both the Victorian and Commonwealth Parliaments passed laws to enable courts to do so. Gibbs CJ held that more facts would need to be determined before the names could be released but the other six Justices ruled that the names could be released. Brennan J said: By the Bill of Rights the power to dispense from any statute was abolished. Whatever vestige of the dispensing power then remained, it is no more. The principle, as expressed in the Act of Settlement, is that all officers and Ministers ought to serve the Crown according to the laws. It is expressed more appropriately for the present case by Griffith CJ in Clough v Leahy [1904] HCA 38; (1904) 2 CLR 139, at pp 155–156: “If an act is unlawful — forbidden by law — a person who does it can claim no protection by saying that he acted under the authority of the Crown.” This is no obsolete rule; the principle is fundamental to our law, though it seems sometimes to be forgotten when Executive Governments or their agencies are fettered or frustrated by laws which affect the fulfilment of their policies.

Mason J relied on the public interest in the enforcement of criminal law, but the other Justices in the majority — Murphy, Wilson, Brennan, Deane and Dawson JJ — all referred to the rule of law in their judgments. Deane J added a theological note: the case illustrated “the abiding wisdom of the biblical injunction against putting one’s ‘trust in men in power’ (Psalms 146:3)”. It is noteworthy that both of these cases involved claims by the government or its agents to be defending national security — the usual pretext for neglecting the rule of law — and yet the rule of law trumped the claim. A further reminder of the subjection of government to law came from the decision as to costs in Ruddock v Vadarlis (No 2) [2001] FCA 1825; (2001) 115 FCR 229. Even though, as noted in Chapter 10, the court had upheld the government’s power to refuse to admit the refugees, Black CJ and French J reacted with some scorn to a Commonwealth submission that the litigation was “an interference with an exercise of executive power analogous to a non-justiciable ‘act of State’”. They remarked: The proposition begs the question that the proceedings raised. That question concerned the extent of executive power and whether there was a restraint on the liberty of individuals which was authorised by the power. It is not an interference with the exercise of executive power to determine whether it exists in relation to the subject matter to which it is applied and whether what is done is within its scope.

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Queen Governors Parliament Agenda setting ‘Upper’ House

Appointment of judges

Ministers

‘Lower’ House

Public service Majority support Executive decisions Dismissal of judges

New Laws Constitutional jurisdiction

Courts

Administrative law jurisdiction

Other jurisdictions

Valid laws

Properly-made decisions

Judicial decisions

General public (Note: the role of ministers can beof more fully understood by ‘inserting’ Figure 5.1Australia; into the ‘Ministers’ box above. Figure 11.1: T he exercise government powers in modern responsible government plus judicial review of legislation for constitutionality and of administrative decisions for proper exercise of jurisdiction.

FURTHER READING Nick Gouliatidis, “Privative Clauses: Epic Fail” (2010) 34 MULR 870 Anthony Gray, “Immunity of the Crown from Statute and Suit” (2010) Canb LR 1 Graeme Hill, “Private Law Actions Against the Government (Part 1) — Removing the Government’s Immunity from Suit in Federal Cases” (2006) 30 MULR 716 Lotta Ziegert, “Does the Public Purse have Strings Attached? Combet & Anor v Commonwealth of Australia & Ors” (2006) 28 Syd LR 387

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CHAPTER 12

General Rules as to the Extent of Legislative Power — Four Non-limits

12.1 Context and overview [12.10] The previous three chapters have discussed constitutional doctrines relating to the exercise of executive power. The rest of the book is about the sources of, and limits on, the exercise of legislative power. But first, in this chapter we consider the fact (which comes as a surprise to people who have heard something of international human rights and American constitutional doctrines) that there are no effective limits on the powers of parliaments in Australia to do the following things: ■ ■ ■ ■

to delegate law-making power to the executive government; to make retrospective laws; to make laws that have extraterritorial effect; or to make laws that are inconsistent with international law.

There is indeed, in the last three cases, a presumption of interpretation (now seen as part of the so-called “principle of legality” to be noted in the next chapter) that laws will not be retrospective, act extraterritorially or breach international norms without a clear indication of Parliament’s intention along those lines but if the intention is clear from the Parliament’s words, the law will be interpreted accordingly and will not be invalid. These powers are held by the Commonwealth and the State Parliaments. When Britain granted legislative independence to the colonies, the colonial parliaments received powers that were “as plenary and ample” as the powers of the Parliament at Westminster 169

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(see 12.30 below).1 Then, when the Commonwealth Parliament was created, it was given powers limited to a list of subject-matters, but within the scope of each subject-matter it was, and is, taken for granted that, in the absence of any express limits — or, we would now add, any implied limits — the power is also “plenary”.

12.2 Delegated legislation [12.20] As often as not, an Act of Parliament only deals with major matters and leaves the details to be prescribed by regulation, to be made by the Governor(-General) in Council. Regulations are clearly legislative in nature, and are therefore referred to as “delegated legislation”; they are also referred to as statutory rules or legislative instruments. They used to be drafted entirely within government departments, but it has become more usual for a Parliamentary Counsel’s office — the office that drafts Acts — to be involved in drafting them. Nevertheless, the Parliament plays no direct part in making them, though all jurisdictions provide, somewhere in their laws,2 that regulations must be tabled in Parliament and may be disallowed by a vote of either House, after the event. If a law is made directly by the Parliament, the assent of both Houses is a condition precedent to its coming into being, whereas for regulations, as Rich J explained in Dignan v Australian Steamships Pty Ltd [1931] HCA 19; (1931) 45 CLR 188, “The disallowance is really the expression of dissent by way of condition subsequent to a law”. In each case, the consent of both Houses is necessary and each House has a veto. According to a strict theory of separation of powers, only the legislature would be able to make laws and the executive would play no role apart, perhaps, from proposing laws to the legislature. In the United States, the Supreme Court originally stated such a doctrine (eg, Field v Clark, 143 US 649 (1892)), but has since modified it and allowed delegation as long as the legislation provides an “intelligible principle” to guide the executive: JW Hampton Jr & Co v United States 276 US 394 (1928). However, there has never been any such principle in English law, despite the fact that Montesquieu based his theory of separation of powers on what he thought he had observed in England, and no such principle was received in Australia. There can often be a good reason for leaving the details to be specified by regulation; as the Privy Council said in R v Burah, below, it “is no uncommon thing and in many circumstances, it may be highly convenient”. However, it has been common in the past for a parliament to delegate such broad powers to the executive that the delegation seems to be subverting the very point of having a parliament. At the extreme, an Act may authorise the making of regulations that have effect notwithstanding the provisions of the Act itself or of any other law; such provisions have become known as “Henry VIII clauses” after a clause in the Statute of Proclamations 1539. The inclusion of such clauses 1 As noted below at 12.60, it was thought in the 1890s that the colonies could not make extraterritorial laws, but this doctrine was soon swept away. 2 For example, Legislation Act 2003 (Cth), ss 38–42.

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is now seen as something to be discouraged; for example, the “fundamental legislative principles” that Queensland parliamentary committees should consider when reviewing a Bill include whether the Bill: (a) allows the delegation of legislative power only in appropriate cases and to appropriate persons; and (b) sufficiently subjects the exercise of a delegated legislative power to the scrutiny of the Legislative Assembly; and (c) authorises the amendment of an Act only by another Act.3

However, the constitutionality of broad delegations is a separate question from their desirability. As we shall see below, it is almost impossible for a delegation to be unconstitutional.

Delegated legislation in the colonies/States [12.30] Even in colonial times, colonial legislatures could delegate rule-making power to the executive. There were three cases in the 1870s and 1880s, brought on appeal from different parts of the Empire, in which the Privy Council confirmed this repeatedly. R v Burah (1878) 3 App Cas 889 involved a conviction by some special frontier courts, created by an Act of the Indian legislature. The Act defined their jurisdiction as the Garo Hills but permitted the Lieutenant-Governor to extend their jurisdiction to other frontier districts. He had done so and Burah was convicted of murder in the extended district. The High Court at Calcutta had allowed an appeal, partly on the ground that the Indian legislature, being a delegate of the Imperial Parliament, could not further delegate its legislative power. The Privy Council overturned this, holding that: [T]heir Lordships are of opinion that the doctrine of the majority of the Court is erroneous, and that it rests upon a mistaken view of the powers of the Indian Legislature, and indeed of the nature and principles of legislation. The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself. … Legislation, conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence, is no uncommon thing; and, in many circumstances, it may be highly convenient. The British Statute Book abounds with examples of it; and it cannot be supposed that the Imperial Parliament did not when constituting the Indian Legislature, contemplate this kind of conditional legislation as within the scope of the legislative powers which it from time to time conferred. It certainly used no words to exclude it. 3 Legislative Standards Act 1992 (Qld), s 4(4).

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News of the judgment seems to have spread rather slowly to the other colonies, and in 1883 and 1885 the Privy Council had to confirm the ruling in two more appeals from the colonies (which is odd, because North America had been connected to Europe by submarine telegraph cables since 1866 and Australia had been connected in 1872.) In Hodge v the Queen (1883) 9 App Cas 117, in which an Ontario Act empowered a Board of Commissioners to make regulations imposing conditions on liquor licences, their Lordships described the local legislatures’ powers not just as “plenary” but as having powers “as plenary and ample, within the limits set by [the Constitution] as the Imperial parliament possessed”. They added: It was argued at the bar that a Legislature committing important regulations to agents or delegates effaces itself. That is not so. It retains its powers intact, and can, whenever it pleases, destroy the agency it has created and set up another, or take the matter directly into its own hands. How far it shall seek the aid of subordinate agencies, and how long it shall continue them, are matters for each legislature, and not for courts of law, to decide.

In Powell v Apollo Candle Co Ltd (1885) 10 App Cas 282, where a New South Wales Act enabled new customs duties to be imposed by Order in Council, their Lordships could add nothing new, but quoted long passages from the two earlier judgments. Finally, colonial lawyers and courts seemed to get the message, and there were no further challenges to delegated legislation on the ground that a legislature could not delegate. In Queensland, however, there were two challenges in the 1970s on other grounds. Queensland had abolished its Legislative Council in 1922 and the Constitution Act Amendment Act 1934 (Qld) provided that the Constitution could not be amended “in the direction of ” creating a new second chamber without a referendum. In Cobb & Co Ltd v Kropp [1967] 1 AC 141, the company was challenging the State Transport Facilities Act 1946 (Qld) which gave an extraordinary range of powers to the Commissioner for Transport; he could issue licences and impose fees, amend them, or dispense with them, all at his absolute discretion. The plaintiffs alleged that this was more than delegation; that it was an abdication of legislative power and/or the creation of another legislative body in contravention of the 1934 Act. The Supreme Court had rejected this argument and the Privy Council dismissed the company’s appeal, saying at 155–7: In their Lordships’ opinion the argument wholly fails. It cannot rationally be said that there was any abandonment or abdication of power in favour of a newly created legislative authority. [They cited Burah, Hodge and Powell and continued …] In their Lordships’ view the Queensland Legislature were fully warranted in legislating in the terms of the Transport Acts now being considered. They preserved their own capacity intact and they retained perfect control over the Commissioner for Transport inasmuch as they could at any time repeal the legislation and withdraw such authority and discretion as they had vested in him …

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could “give such directions and prescribe such matters as he should deem necessary or desirable to secure the peace, welfare, order, good government and/or public safety of the state”. In 1971, a state of emergency was declared, not to protect the State from floods or bushfires or a general strike, but to empower the police to crack down on those wishing to protest against the tour by the all-white Springboks rugby team, and to ensure that the Brisbane match could be held at the Showgrounds against the wishes of their administering body. The proclamation and the Act were challenged but held valid in Dean v Attorney-General (Qld) [1971] St R Qd 391. Stable J remarked at 402 that the section appeared “to have been passed in the realisation that from time to time sudden situations may arise with which a deliberative body is not geared to deal”. He noted that the proclamation could be disallowed by Parliament, and held that “on the face of it, this is not the constitution of a second legislative body”.

Commonwealth delegated legislation [12.40] The suggestion that the Parliament cannot delegate legislative power might have a little more plausibility in the case of the Commonwealth, because of ss 1, 61, and 71 of the Constitution which grant legislative, executive, and judicial power to the Parliament, the executive and the judiciary respectively. However, as discussed in Chapter 9, this is not meant to reflect Montesquieu’s exaggerated theory of the separation of powers because s 64 expressly demands that the Ministers must be Members of the Parliament and implies that they must be responsible to it. It follows pretty obviously that the British rather than the American approach to delegated legislation should apply to the Commonwealth, and so the High Court has held. In Baxter v Ah Way [1909] HCA 30; (1909) 8 CLR 626, a section of the Customs Act 1901 (Cth) that allowed the Governor in Council to declare items to be prohibited imports was held valid. Griffith CJ cited R v Burah, above, and suggested it was “too late in the day” to suggest that the legislature could not give a public body the power to make regulations. He went on to explain the policy reasons: [T]he legislature can say that certain goods shall be prohibited, that any goods which it is not desirable to admit into the Commonwealth shall not be imported. And unless the legislature is prepared to lay down at once and for all time, or for so far into the future as they may think fit, a list of prohibited goods, they must have power to make a prohibition depending upon a condition, and that condition may be the coming into existence or the discovery of some fact. The expediency of admitting particular goods into the Commonwealth at a particular time is a question of fact. Whether it is desirable or reasonable that goods in a certain condition should be excluded is another question of fact. And if that fact is to be the condition upon which the liberty to import the goods is to depend, there must be some means of ascertaining that fact, some person with power to ascertain it; and the Governor in Council is the authority appointed to ascertain and declare the fact. That seems to me to follow directly [from] the language of their Lordships of the Privy Council in R v Burah.

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The decision in Baxter was followed in Roche v Kronheimer [1921] HCA 25; (1921) 29 CLR 329 and Victorian Stevedoring & General Contracting Company Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73. In the latter case, Dixon J discussed American authority at some length but observed at 101–2: The existence in Parliament of power to authorize subordinate legislation may be ascribed to a conception of … legislative power which depends less upon juristic analysis and perhaps more upon the history and usages of British legislation and the theories of English law. In English law much weight has been given to the dependence of subordinate legislation for its efficacy, not only on the enactment, but upon the continuing operation of the statute by which it is so authorized. The statute is conceived to be the source of obligation and the expression of the continuing will of the Legislature. Minor consequences of such a doctrine are found in the rule that offences against subordinate regulation are offences against the statute (Willingale v Norris) and the rule that upon the repeal of the statute, the regulation fails (Watson v Winch). Major consequences are suggested by the emphasis laid in Powell’s case and in Hodge’s case upon the retention by the Legislature of the whole of its power of control and of its capacity to take the matter back into its own hands. (citations omitted)

Evatt J theorised that, as a matter of characterisation, there must be an outer limit. He suggested that a law that gave the executive a general power to make regulations “upon the subject of trade and commerce with other countries or among the States” — that is, the entire content of para 51(i) — would not be a law with respect to the defined areas of trade and commerce but a law with respect to legislative power, and held, “On final analysis therefore, the Parliament of the Commonwealth is not competent to ‘abdicate’ its powers of legislation”. With respect, it is not obvious that even this hypothetical law would be any less a law with respect to trade and commerce with other countries or among the States, and any more a law with respect to legislative power, than any other law permitting the making of regulations. The suggestion of an “abdication” is inconsistent with the constant reminders from other judgments that a delegation is not an abdication if the Parliament can take it back. It seems clear that, in any foreseeable case, laws granting a power to make delegated legislation are unlikely to be challenged successfully. The regulations that were the subject of Dignan’s case, above, had been the subject of continuing controversy between the Government of the time and the Senate. The Scullin Government had repeatedly made regulations about the employment of waterside workers under the Transport Workers Act 1928, and the Senate had repeatedly disallowed them, under the tabling and disallowance rules which were then in the Acts Interpretation Act 1903 (Cth) s 10. On one occasion, the Senate itself called for the regulation to be tabled before the Government had tabled it, and immediately proceeded to disallow it. In an earlier Dignan case, Dignan v Australian Steamships Pty Ltd [1931] HCA 19; (1931) 45 CLR 188, the disallowance was held by a 3:2 majority of the High Court to have been effective. After that, the Government waited for the Senate to rise on a Friday before repromulgating the regulation. After a month or two of this, the Senate passed a resolution 174

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calling on the Governor-General, Sir Isaac Isaacs, to refuse to sign further regulations. Sir Isaac (the first Australian Governor-General, who had been the Chief Justice of the High Court until a year before this controversy), sent the Senate a comprehensive reply, pointing out that his duty was “simply to adhere to the normal principle of responsible government by following the advice of the Ministers who are constitutionally assigned to me for the time being”.4 The farce continued until Scullin lost a vote of no confidence in November. The incoming government implemented a different set of regulations, which were themselves challenged, this time by the “wharfies” rather than the employers, in Elliott v Commonwealth [1936] HCA 7; (1936) 54 CLR 657, discussed in Chapter 23. The law of the waterfront kept the Court busy in those days.

12.3 Retrospective laws [12.50] Like laws delegating broad powers, retrospective laws are also regarded as generally undesirable for policy reasons. Many Acts contain a commencement provision from which it can be readily inferred that they are intended to operate after the commencement date. In the absence of a commencement provision, the various Acts Interpretation Acts provide a default rule; in the case of the States, that the Acts commence on the date of assent5 and in the case of the Commonwealth, 28 days after assent.6 There is a presumption of statutory interpretation that an Act is presumed to operate prospectively only unless an intention to apply retrospectively is declared expressly or appears to be a necessary implication.7 Queensland’s fundamental legislative principles include “whether the legislation … does not adversely affect rights and liberties, or impose obligations, retrospectively”.8 However, like broad delegations, retrospective laws have been held to be constitutional in Australia. The first case to decide this was R v Kidman [1915] HCA 58; (1915) 20 CLR 425. When the Crimes Act 1914 (Cth) was enacted, the drafters had not included any offence of conspiring to defraud the Commonwealth. The Act was amended in 1915 to include that offence, and the amendment was deemed to have been in force since the commencement of the principal Act. Kidman and others were charged with defrauding the Commonwealth during the period between the passage of the two Acts, and argued that the Commonwealth had no power to enact retrospective laws. The argument turned 4 His Excellency’s reply is reproduced in full in Jacob Fajgenbaum and Peter Hanks, Australian Constitutional Law: Cases, Materials and Text, Butterworths, 1972, as example (c) at pp 76–9. 5 For example, Acts Interpretation Act 1954 (Qld) s 15A. 6 Acts Interpretation Act 1901 (Cth) s 5. 7 For example, Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 where the extension of a limitation period did not revive actions that had already been time-barred. For details, see Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia, 8th ed, LexisNexis Butterworths, 2014, Ch 10; Alastair MacAdam and Tom Smith, Statutes: Rules & Examples, 3rd ed, Butterworths, 1993, pp 125–7. 8 Legislative Standards Act 1992 (Qld), para 3(g).

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on the scope of the incidental power in para 51(xxxix), and the majority held that it, and indeed all other powers, extended to the passage of retrospective laws. Powers J pointed out that the express prohibition in the United States Constitution of “any Bill of Attainder or ex post facto law”9 seemed to be based on an assumption that without an express prohibition such laws would be valid, and held that only an express prohibition could prevent the Commonwealth from exercising a “plenary” power to enact retrospective laws. Griffith CJ dissented in part, holding that while most heads of power might extend to retrospective laws, “the phrase ‘matter incidental to the execution of a power’ imports, in my opinion, some matter attendant upon its present execution”. However, he held that conspiring to defraud the Crown was a common law offence, and Kidman and his co-conspirators could be charged with that. As noted at 11.30, the broader post-World War II approach to the rule of law regards retrospective lawmaking, at least if relied upon too frequently, as a breach of the rule of law. Article 15 of the International Covenant on Civil and Political Rights (ICCPR) provides that: 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. 2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

[12.60] Some “osmotic effect” from the ICCPR, or from natural law theory in general, had an influence on the next case to be discussed. In Polyukhovich10 v Commonwealth [1991] HCA 32; (1991) 172 CLR 501 (the War Crimes Act case), an argument was raised that had not been addressed in Kidman. The War Crimes Act 1945 (Cth) had been amended (by repealing nearly all provisions and substituting new ones) in 1988 out of a rather belated concern that persons who had committed war crimes in Europe during World War II had been allowed to migrate to Australia and had become Australian citizens or residents. The Act now applied to any Australian resident or citizen who had committed a war crime in Europe between 1 September 1939 and 8 May 1945. Ivan Polyukhovich was charged with having participated in a massacre of Jews in the Ukraine, and challenged the Act on the basis that it breached the separation of judicial power (to be discussed in Chapters 25 and 26) by directing the courts to find that conduct amounted to a crime when, at the time it was committed, it did not. Deane and Gaudron JJ accepted this argument, and Toohey J accepted it in general terms but held that where the “alleged moral transgression is extremely grave, … or where the moral 9 This applies to the federal Congress by Art 1, s 9, clause 3, and to the States by Art 1, s 10, clause 1. 10 A note on pronunciation: the “y” is a consonant, not a vowel.

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transgression is closely analogous to, but does not for some technical reason amount to, legal transgression”, a retrospective law was permissible. Mason CJ and McHugh and Dawson JJ held that a retrospective law did not “direct the courts” to any greater extent than any ordinary law does (for further detail on this point see 25.50), and Brennan J held that the Act was invalid as not having a sufficient connection with Australia (see the following section on extraterritorial laws) and did not discuss the retrospectivity point. That meant that Toohey J’s reasons determined the outcome and, technically, have to be considered in constructing a ratio for the case. However, since Polyukhovic, his Honour’s excursion into fundamental rights has been largely ignored by the Court. Indeed, in so far as it was based on international law, it contradicts the principles discussed below at 12.150. In taxation cases such as Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2015) 250 CLR 503 retrospective laws are routinely given their full effect without any discussion of Kidman or Polyukhovich. Further, in Plaintiff M68-2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 327 ALR 369, as discussed at 10.40, the fact that s 198AHA was retrospective was enough to cure any doubts about the power of the Government to send “maritime arrivals” to Nauru and make agreements with contractors. The doubts about retrospective laws appear to have evaporated. The fact that the State parliaments can also enact retrospective laws had always been taken for granted, though most of the case law was about Commonwealth laws. The application of the doctrine to the States simply seemed to follow from the dictum in Hodge v The Queen, above 12.30, about the “plenary and ample” powers of colonial parliaments. This was recently affirmed in Duncan v Independent Commission Against Corruption [2015] HCA 32; (2015) 256 CLR 83. An earlier case, Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1 had interpreted the powers of the Commission (ICAC) very strictly, and held that it could not investigate conduct which it regarded as corrupt if the conduct affected the efficacy, but not the probity, of the conduct of officials. ICAC’s enabling Act was quickly amended to enable it to investigate the wider range of “corrupt” conduct, and the amendment was made retrospective. The retrospective application of the amendment was held valid, and arguments that it breached the principles of Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 and/or Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531 were rejected, for reasons noted in Chapter 34.

12.4 Extraterritorial laws [12.70] In a world where international law has increasing prominence, it may seem presumptuous for any nation or sub-national unit to think that it can make laws that apply outside of its borders. Yet most nations have always assumed they had the power to do so, and the nation from which we inherited our legal traditions, Britain, certainly did. Every time it enacted a law authorising the formation of a colony or governing 177

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conditions in a colony, it was exercising that power. In theory, because the British courts only knew of one sovereign — the King or Queen of Great Britain — laws made by the British Parliament could even apply in the territory of other independent nations, although it was recognised that Britain could do nothing to enforce them there. The standard silly example is a Westminster law regulating the speed limit in Paris; it would not be recognised in France but if someone who had broken the Westminster-defined speed limit in Paris turned up in England, and witnesses could be found, the English courts would, in theory, recognise the law and allow a prosecution. In Croft v Dunphy [1935] AC 156, the Privy Council recognised that extraterritorial legislation of the Imperial Parliament could in some cases be “in contravention of generally acknowledged principles of international law” but noted that nevertheless it “is binding on and must be enforced by the courts of this country, for in these courts the legislation of the Imperial parliament cannot be challenged as ultra vires”. There is, as with retrospectivity, a presumption that statutes are not intended to apply outside the territory of the enacting jurisdiction, but this can be overcome by an express statement or necessary implication.11 In a federation where people cross borders virtually without noticing it, an overstrict application of the presumption could cause confusion, so, as Pearce and Geddes remark, this presumption “can be fairly readily rebutted if circumstances so demand”.12 There was an early case denying that this principle applied to the colonial Parliaments. In Macleod v Attorney-General (NSW) [1891] AC 455, the Privy Council held at 458 that the jurisdiction of the colonies “is confined to their own territories”. It is, with respect, an odd judgment, because it denies even the power of the Imperial Parliament to legislate extraterritorially; their Lordships seem in their reasons to inflate the presumption against extraterritorial effect into an absolute rule. Only two years later an almost identical Board decided, in Ashbury v Ellis [1893] AC 339, that a law permitting New Zealand courts to authorise service of a writ outside the jurisdiction, or to proceed to judgment without service, was a valid law for the “peace, order and good government” of New Zealand. In 1931, s 3 of the Statute of Westminster provided that: “It is declared and enacted that the parliament of a Dominion has full power to make laws having extraterritorial effect.” As noted in Chapter 5, Australia did not adopt the Statute until 1942, but it applied immediately in Canada. In 1935 the Privy Council held, in Croft v Dunphy [1935] AC 156, that the Canadian Customs Act validly applied offshore. As it had been enacted before the Statute of Westminster 1931 their Lordships reached this conclusion by citing R v Burah and Hodge v the Queen, above 12.30, and by considering the breadth of the Canadian Parliament’s power to make laws for the peace, order and good government of Canada. However, they also noted that, with the passage of the Statute, “the question of the validity of extraterritorial legislation by the Dominion cannot at least arise in the future”. 11 See Pearce and Geddes, n 7 above, pp 219–24; MacAdam and Smith, pp 251–4. 12 Pearce and Geddes, n 7 above, p 223.

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The States and extraterritorial laws, pre-1980 [12.80] Before addressing the extraterritorial powers of the States, there is a preliminary question to be answered: where do their territories end? Rather than being defined in one neat place like the Constitution, the land boundaries are defined in the various Imperial documents separating the other colonies from New South Wales; as noted in Chapter 3, they can generally be found on the web at http://foundingdocs.gov.au/. There are a couple of “wrinkles” in their interpretation: ■

■

The Victoria–South Australia boundary was proclaimed as the line of longitude 141°E but was surveyed and marked out before surveyors were able to measure longitude with the current accuracy. A boundary demarcated with survey pegs, cairns, etc, takes priority over the description in a document, so South Australia has had to put up with the fact that the boundary is about 3 km to the west of 141°E ever since the mistake was discovered (South Australia v Victoria [1914] AC 283). When Victoria was separated from New South Wales, the “whole watercourse” of the Murray was expressly reserved to New South Wales, so the border is the top of the south bank; except when the Murray is running a “banker”, the strip of land between the water’s edge and the top of the bank is in New South Wales (Ward v The Queen [1980] HCA 11; (1980) 142 CLR 308).

The more significant question is where are the sea boundaries? The colonies had assumed that they had sovereignty over the three mile zone that was traditionally recognised as the “territorial sea” at international law, and the drafters of the Constitution seemed to have assumed this when they gave the Commonwealth the power in para 51(x) over “fisheries in Australian waters beyond territorial limits”. However, a striking feature of all of the Imperial documents defining the boundaries is that they refer to the land boundaries as if that is all there is; the definition of the Queensland boundary starts at Point Danger, not three nautical miles out to sea and similarly the Victorian boundary starts at Cape Howe. A partial exception is that the letters patent establishing South Australia expressly included “all and every the Bays and Gulfs thereof ” in the description of the “province”, but even in that case there is no mention of the inclusion of the territorial sea outside the bays and gulfs. When the Commonwealth Parliament enacted the Seas and Submerged Lands Act 1973 (Cth) to give effect to the Convention on the Territorial Sea and Contiguous Zone and the Convention on the Continental Shelf, it not only asserted the right, newly recognised in international law, to control the continental shelf but also assumed that it had power over the sea and the submerged lands back inshore, to the low water mark or to the “closing line” joining the headlands at the opposite sides of bays and the mouths of rivers. The States naturally challenged this, but in New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337 (the Seas and Submerged Lands Act case) the High Court held, Gibbs and Stephen JJ dissenting, that the outer boundaries of the States were indeed the low water marks or the closing lines. 179

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[12.90] As to the States’ power to make laws having effect outside those boundaries, until 1976 the High Court’s decisions on States’ extraterritorial powers showed the same ambivalence as the three Privy Council decisions mentioned above. A liberal test for State power had been stated by Dixon J in Broken Hill South Ltd v Commissioner of Taxation (NSW) [1937] HCA 4; (1937) 56 CLR 337. His Honour stated: The power to make laws for the peace, order and good government of a State does not enable the State Parliament to impose by reference to some act, matter or thing occurring outside the State a liability upon a person unconnected with the State whether by domicil, residence or otherwise. But it is within the competence of the State legislature to make any fact, circumstance, occurrence or thing in or connected with the territory the occasion of the imposition upon any person concerned therein of a liability to taxation or of any other liability. It is also within the competence of the legislature to base the imposition of liability on no more than the relation of the person to the territory. The relation may consist in presence within the territory, residence, domicil, carrying on business there, or even remoter connections. If a connection exists, it is for the legislature to decide how far it should go in the exercise of its powers … No doubt there must be some relevance to the circumstances in the exercise of the power. But it is of no importance upon the question of validity that the liability imposed is, or may be, altogether disproportionate to the territorial connection or that it includes many cases that cannot have been foreseen.

In Broken Hill South, the test was applied by Dixon J and the other Justices except Latham CJ to hold that New South Wales could impose income tax on money received as interest on a mortgage on property in New South Wales, even if the taxpayer was not a resident of New South Wales. However, in an earlier case on State income tax (Commissioner of Stamp Duties (NSW) v Millar [1932] HCA 63; (1932) 48 CLR 618) and a number of cases about the road maintenance taxes imposed on heavy vehicles (Welker v Hewett [1969] HCA 53; (1969) 120 CLR 503 and Cox v Tomat [1972] HCA 10; (1972) 126 CLR 105) where the laws clearly would have satisfied the above test, the majority of the Court held that the law was insufficiently connected with the enacting State. After some decades of confusion, the connection test was emphatically restated in Pearce v Florenca [1976] HCA 26; (1976) 135 CLR 507. After the Court had held in Seas and Submerged Lands that the territory of the States ended at the low water mark, doubts were expressed about the validity of the States’ Fisheries Acts. In Pearce v Florenca, however, these doubts were dismissed. In the leading judgment, Gibbs J cited Dixon J’s connection test from Broken Hill South, and added at 518: [I]t is obviously in the public interest that the test should be liberally applied, and that legislation should be held valid if there is any real connexion — even a remote or general connexion — between the subject matter of the legislation and the State.

As to the particular issue of laws for offshore waters, his Honour added: The principle that legislation enacted by a State and operating outside its territory must be connected in some relevant way with the State if it is to be valid may have been appropriate

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to the so-called dependent and inferior legislatures of colonial times, but its only modern justification is that it may avoid conflicts with other rules of law applicable to the area in which the legislation is intended to operate. In this way the principle may fulfil a useful purpose in providing a touch-stone for the validity of a law enacted by one State and intended to take effect within the territory of another. But no rational purpose is served by holding that a law of a State cannot validly operate within its off-shore waters.

In Raptis & Son v South Australia [1977] HCA 36; (1977) 138 CLR 346, the Court extended the application of the test, holding that the Fisheries Act 1971 (SA) was prima facie valid in the waters of Investigator Strait, well outside the three-mile limit. In this case, the law was inconsistent with the Commonwealth’s Fisheries Act 1952, so the State Act was unenforceable for that reason, but not for lack of extraterritorial power. However, two months later, the Court split over whether a State could regulate access to a historic shipwreck within three miles of the coast. In Robinson v Western Australian Museum [1977] HCA 46; (1977) 138 CLR 283, Gibbs and Mason JJ held that the wreck had sufficient geographical and historical connection with the State while Barwick CJ and Murphy J disagreed. Stephen J held that although Robinson had discovered the wreck and wished to continue diving on it, he did not have standing to challenge the law, and Jacobs J held that the State law was inconsistent with the Commonwealth’s ownership of everything on the sea-bottom, established by the Seas and Submerged Lands Act 1973 (Cth).

The States and extraterritorial laws, since 1986 [12.100] The confusion caused by these cases gave the Commonwealth and States an incentive to work out the “Off-Shore Settlement” under which the Commonwealth enacted the Coastal Waters (State Powers) Act 1980 (Cth) and the Coastal Waters (State Title) Act 1980 (Cth) (CW(SP) Act and CW(ST) Act respectively), and, combined with the confusion caused by two parallel appeal systems, a stronger incentive to agree on the enactment of the Australia Act 1986 (Cth). The fact that all these Acts were enacted under the provisions of para 51(xxxviii), and that the High Court held them to have been validly enacted, was discussed in Chapter 5. The effect of their provisions on the States needs to be discussed here. Section 5 of the CW(SP) Act provides that the legislative powers of the States are extended as if the coastal waters were within the limits of the State, and s 4 of the CW(ST) Act vests the same right and title to the sea-bed and the same rights to the space above the sea-bed (except for areas already occupied by the Commonwealth) as would belong to the State if the sea-bed were within the State. “Coastal waters” are defined as the part of the territorial sea adjacent to a State (s 4(2) limits this to the first three nautical miles of the territorial sea despite the extension of the territorial sea for other purposes to 12 nautical miles in November 1990). State powers are even extended beyond the coastal waters in respect of laws about subterranean mining and coastal works including dredging, and the States can extend their fisheries laws 181

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beyond the coastal waters under Commonwealth–State fisheries agreements (CW(SP) Act, subss 5(2) and (3)). Since the Acts use deeming (“as if ”) language, they do not actually transfer ownership of the three-mile strip to the States; the strip remains under the power of the Commonwealth, and since it is external to Australia, the Commonwealth can make laws for it on any topic at all under the “external matters” aspect of the external affairs power, discussed below, and those laws would prevail over State laws under s 109. The grant of notional title under the CW(ST)Act is also subject to the operation of the Great Barrier Reef Marine Park Act 1975 (Cth). So the State powers and laws made under them are significant, but they are precarious in the old Roman-law sense of the word, meaning “held at the pleasure of another”. The Australia Act 1986 (Cth) also addresses the extraterritorial problem, or purports to. Section 2(1) provides: It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State that have extra-territorial operation.

As soon as this was enacted, academics noticed that it still used the traditional words “for the peace, order and good government of [the] State” and wondered whether it changed anything. Mark Moshinsky suggested that the section now gave the States an unfettered power to make extraterritorial laws,13 while Chris Gilbert argued that the retention of the traditional words means that the States would still have to demonstrate a connection between the law and the interests of the enacting State.14 [12.110] The effect of these Acts was soon explored in litigation. In Union Steamship Company of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1, the company tried to argue that the Workers’ Compensation Act 1926 (NSW) could not apply to an injury suffered by a sailor while working outside New South Wales. In response to a submission by the State that s 2 of the Australia Act meant that the connection test was no longer relevant, the court held, in a joint judgment at [24]: … the nineteenth century decisions [Burah, Hodge and Powell] do not deny that the words “peace, order and good government” may be a source of territorial limitation, however slight that limitation may be. And, as each State Parliament in the Australian federation has power to enact laws for its State, it is appropriate to maintain the need for some territorial limitation in conformity with the terms of the grant, notwithstanding the recent recognition in the constitutional rearrangements for Australia made in 1986 that State Parliaments have power to enact laws having an extraterritorial operation: see Australia Act 1986 (Cth), s 2(1) … That new dispensation … cannot affect territorial limitations of State legislative powers inter se which are expressed or implied in the Constitution. That 13 Mark Moshinsky, “State Extraterritorial Legislation and the Australia Acts 1986” (1987) 61 ALJ 779. 14 Chris Gilbert, “Extraterritorial State Laws and the Australia Acts” (1987) 17 Fed LR 25.

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being so, the new dispensation may do no more than recognize what has already been achieved in the course of judicial decisions. Be this as it may, it is sufficient for present purposes to express our agreement with the comments of Gibbs J. in Pearce (at p 518) where his Honour stated that the requirement for a relevant connection between the circumstances on which the legislation operates and the State should be liberally applied and that even a remote and general connection between the subject-matter of the legislation and the State will suffice. (emphasis added)

Their Honours then applied the connection test, at [25]: The fact that the ship is registered in New South Wales is a sufficient connection with the State to enable the Parliament to apply its laws to the ship and to justify the application to seamen employed on that ship of a statute entitling them as against their employer to workers’ compensation benefits. As a matter of international law the country which offers its flag to a ship has authority to regulate the conditions upon which the ship may sail under it.

Port Macdonnell Professional Fishermen’s Association Inc v South Australia [1989] HCA 49; (1989) 168 CLR 340 (the Rock Lobsters case) involved a challenge by the Fishermen’s Association to a South Australian law, enacted under the procedure mentioned in s 5(2) of the CW(SP) Act, regulating the taking of rock lobsters in an area extending out to the edge of the continental shelf. In another joint judgment, the full High Court held that the law was valid by applying the connection test and noting that the fishery was “a significant source of South Australian trade and employment” and that South Australia was the closest land territory to the fishery. Strictly, that made consideration of the validity of the CW(SP) Act unnecessary, but as noted in Chapter 5, their Honours also considered that issue, swept aside some of the doubts about the scope of para 51(xxxviii) and declared that the CW(SP) Act was an alternative source of validity of the State Act and regulations. Another case where the extraterritorial connection was clearly satisfied was Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485. Lipohar and co-defendants were charged with conspiracy to defraud a South Australian company. All of the conspirators’ actions had been conducted outside South Australia, and some, indeed, outside Australia, but the victim’s legal advisers with respect to the transaction were in Adelaide and the facsimile containing the main misleading statement had been received by them. The offence was a common law offence in South Australia, so the issue was not so much whether any South Australian statute applied to the defendants’ conduct but whether the State’s Supreme Court had jurisdiction. The majority held that in these circumstances, a connection (or nexus) with the State was required, but that it was easily found in the fact that the victim company was incorporated in South Australia; indeed it was a subsidiary of a government-owned corporation, thus the fraud had “real and practical consequences for … the South Australian body politic”. Kirby J dissented, remarking that the States and/or the Commonwealth could enact a statutory solution to the problems of trans-border crime but had not done so sufficiently clearly. 183

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In Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; (2002) 211 CLR 1, Mobil had sold defective aviation gasoline (“av-gas”) and was being sued, in a representative action, in the Victorian Supreme Court. The plaintiffs had brought the action in Victoria, partly because the procedural rules governing representative actions were less onerous in Victoria than in other States, but also because Mobil’s headquarters were in Victoria. Mobil alleged that the part of the Victorian Supreme Court Act 1986 that applied to representative actions law was invalid because it interfered with the relation between the other States’ judicial systems and their people. The majority of the Court held that it was valid; clearly every possible plaintiff could sue Mobil in Victoria, whether or not they could also sue in their home State, because Mobil’s operations were in Victoria. Gaudron, Gummow and Hayne JJ held more generally at [48]: It is clear that legislation of a State parliament “should be held valid if there is any real connexion15 — even a remote or general connexion — between the subject matter of the legislation and the State”. This proposition has now twice been adopted in unanimous judgments of the Court [Union Steamship and Port MacDonnell] and should be regarded as settled. That is not to say, however, that there may not remain some questions first, about what is meant in a particular case by “real connexion” and, secondly, about the resolution of conflict if two States make inconsistent laws.

Callinan J, in dissent, upheld Mobil’s argument. With respect, that was quite unpersuasive in the particular case but if a State law should go so far as to regulate the relations between other States’ judicial systems and their people, it would certainly run into difficulties with the principle discussed in the next section.

Conflict between the laws of two (or more) States [12.120] It will be noted that in Union Steamship, above, their Honours said that s 2 “may do no more than recognise what has already been achieved”, implying that, on the other hand, it might do more. However, the sentences leading up to that phrase suggest that they recognised that there should continue to be some limits, if only to prevent conflicts between the laws of different States. That issue was addressed more specifically in Port MacDonnell. The plaintiffs had focussed much of their argument on a claim that the proclaimed area of the fishery extended into a small area that was closer to Victoria than South Australia. Their Honours found grounds to interpret the proclamation so that it did not do so. They then remarked, at [34]: A problem of greater difficulty would have arisen if the fishery defined by the arrangement had a real connection with two States, each of which enacted a law for the management of the fishery. The Constitution contains no express paramountcy provision similar to s 109 by reference to which conflicts between competing laws of different States are to be resolved. If the second arrangement had been construed as extending to waters on the Victorian side of the line of equidistance, there would obviously have been grounds 15 This is a spelling of “connection” not used since the 19th century by anyone other than very old-fashioned judges.

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for arguing that the Victorian nexus with activities in these waters was as strong as or stronger than the South Australian nexus. As has been seen, however, the second arrangement does not extend into such waters. Where, as here, there is no suggestion of the direct operation of the law of one State in the territory of another, the problem of conflicting State laws arises only if there be laws of two or more States which, by their terms or in their operation, affect the same persons, transactions or relationships. In the present case, there is no competing law of a State other than South Australia purporting to apply to or in relation to the fishery to which the second arrangement applies.

That is, whether or not satisfaction of a connection, or nexus, test is absolutely necessary to establish that an extraterritorial State law is valid, there certainly appears to be a “stronger nexus” test if the laws of two States both apply, on their face, to the same area or activities.

Given a situation that seems to involve the application of a state law to an event or person outside the state …

Does the NO law apply to a result of the event in the enacting state? YES

It probably applies but … look for a s109 issue

Does it show an intention to apply out of state NO

It doesn’t apply

YES

Was the YES It probably look for a event in the applies s109 issue 3 nautical because of mile coastal the CW (SP) waters Act but … Law may OR not apply, Was it but discuss further Is there a NO possibility YES out to sea, connection that or in between the Australia another topic of, or Act 1986 state? a person abolishes affected by, need for the law and connection the state? test, and …

look for a s109 issue

YES

Does the law YES Apply the of another ‘closer’ state seem to connection’ apply to the test and event or look for a person, s109 issue inconsistently with the first state’s law? NO

The law probably applies but … look for a s109 issue

Figure 12.1 Testing the validity of extraterritorial laws of a State 185

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However, what appears to be a question of the extraterritorial application of a law may turn out not to be one. Provisions of criminal statutes may be drafted so as to attach liability to the act (cause) or the result (effect). This was illustrated in Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78. Pesticide applied by the defendants to their property on the Queensland side of the Barwon River washed into the river and was detected on the New South Wales side in a concentration high enough to breach the Clean Waters Act 1970 (NSW). The New South Wales Court of Appeal held that “a New South Wales Court does have jurisdiction to try a person with a ‘result offence’ where the result is one that occurs, or is likely to occur, in New South Wales, even though the acts bringing about that result took place outside New South Wales” (per Gleeson CJ at 83–4). Thus, a murderer who fires a gun in one State, killing the victim in another (as in Ward v The Queen, above), could be prosecuted in either State if both have drafted their laws carefully. Likewise, the problem of a trans-border fraud as in Lipohar could be simplified by careful drafting of criminal statutes and Acts granting jurisdiction to the State’s courts. Of course, in a case like Brownlie, if the law of Queensland positively authorised its residents to use a certain amount of pesticide on their land, there could be a conflict between the two State laws, and presumably the “stronger nexus” test would apply. Now that the States no longer impose income taxes, and off-shore fisheries are largely regulated by Commonwealth–State agreements, future cases of conflict between State laws may well involve the rivers of the Murray–Darling basin.

The Commonwealth and extraterritorial laws [12.130] Before the adoption of the Statute of Westminster, the High Court recognised that some particular grants of Commonwealth power necessarily included an extraterritorial component; for example, in Australian Steamships Ltd v Malcolm [1914] HCA 73; (1914) 19 CLR 298 the Seamen’s Compensation Act 1911 (Cth) was held to apply to a fatal accident at sea because the voyage was part of “trade and commerce with other countries and among the States” under para 51(i). However, ghostly memories of the Macleod decision (at 12.70) lessened the High Court’s confidence in Australia’s general power to legislate extraterritorially; the industrial arbitration power in para 51(xxxv) was held not to extend to the settlement of industrial disputes over conditions of employment outside Australia in Merchant Service Guild of Australasia v Commonwealth Steamship Owners’ Association (No 3) [1920] HCA 67; (1920) 28 CLR 495. This all changed with the passage of the Statute of Westminster Adoption Act 1942, the decision in the Merchant Service Guild case being reversed in R v Foster; Ex parte Eastern & Australian Steamship Co Ltd [1959] HCA 10; (1959) 103 CLR 256. Moreover, there is one Commonwealth power that of its very nature supports extraterritorial laws — the power to make laws “with respect to external affairs” in para 51(xxix). We will discuss the treaty-implementation side of this power in Chapter 19, but it also has a “matters external to Australia” aspect. In New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337, all Justices except Stephen J, who found it unnecessary 186

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to decide the point, held that the Seas and Submerged Lands Act 1973 (Cth) was valid, at least outside the three-mile limit, because the power extends to “any affair which in its nature is external to the continent of Australia and the island of Tasmania” (per Barwick CJ at 360), or “any person or place outside and any matter or thing done or to be done or prohibited to be done outside the boundaries of the Commonwealth” (per Jacobs J at 497). That seemed to settle the matter, but in the next case elements of a connection test crept in. The facts of Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501 have already been discussed above in 12.60. Obviously, there was not only an issue of retrospectivity but also one of extraterritoriality. Mason CJ and Deane, Dawson, Gaudron and McHugh JJ held that the case involved a straightforward application of the principle from R v Foster and the Seas and Submerged Lands case, above. As Mason CJ said at 530: [I]t is not necessary that the Court should be satisfied that Australia has an interest or concern in the subject-matter of the legislation in order that its validity be sustained. It is enough that Parliament’s judgment is that Australia has an interest or concern. It is inconceivable that the Court could overrule Parliament’s decision on that question.

But then his Honour added, in case anyone could doubt Parliament’s judgment: “That Australia has such an interest or concern in the subject-matter of the legislation here, stemming from Australia’s participation in the Second World War, goes virtually without saying.” Toohey J concurred in a qualified way, saying at 654, “A matter does not qualify as an external affair simply because it exists outside Australia. It must be a matter which the Parliament recognises as touching or concerning Australia in some way”. Having said that, his Honour’s next couple of paragraphs perhaps suggest that Parliament’s decision could be judicially reviewed, before concluding: [T]here is no difficulty in concluding that, in the context of a war in which Australia was directly involved, in which many Australian service personnel and civilians were killed, wounded, imprisoned or ill-treated and which had such significant social, economic and political consequences for this country, an Act purporting to render those who are Australian citizens or residents liable for conduct associated with that war legislates with respect to a matter which is of concern to Australia and to which the public business of the national government relates.

Brennan J dissented. As to the general principle, he held: There must be some nexus, not necessarily substantial, between Australia and the “external affairs” which a law purports to affect before the law is supported by s 51(xxix). … It is, of course, for the Parliament to determine in the first instance whether there is any connection between Australia and a relationship, set of circumstances or field of activity which exists or occurs outside Australia and which a proposed law would purportedly affect, but, if the legislative judgment cannot reasonably be supported, the law will be held to be outside the power conferred by s 51(xxix).

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But as to the specific argument about the Act he held: It is immaterial to liability whether the victims of any such conduct were under the protection of Australian law. … The Act does not prescribe as an element of conduct answering the description of “a war crime” anything which connects Australia with that conduct at the time it was engaged in.

He therefore held that the Act was invalid. (Overall, therefore, it was held valid by 4:3, with Brennan J dissenting as to extraterritoriality and Deane and Gaudron JJ as to retrospectivity.) [12.140] In XYZ v Commonwealth [2006] HCA 25; (2006) 227 CLR 532, the Court again divided, this time over whether the “external matters” power exists at all. Section 50BA of the Crimes Act 1914 (Cth) (which has now been replaced by a group of sections in the Commonwealth Criminal Code) made it an offence for an Australian citizen or resident, while outside Australia, to have sexual intercourse with a person under 16, even if the act was lawful in the country where it occurred. The plaintiff had been committed for trial for alleged breaches of the section, and sought a declaration that it was invalid. The majority (Gleeson CJ and Gummow, Hayne and Crennan JJ) held that the power of the Commonwealth to make laws with respect to external matters was now well established. Gleeson CJ added that “to deny to the Commonwealth Parliament the power for which the defendant contends would expose a substantial weakness in Australia’s capacity to exercise to the full the powers associated with sovereignty”. However, Callinan and Heydon JJ dissented. They adopted an originalist interpretation of “external affairs” and held that to the drafters it had only meant Australia’s relations with other countries, not any matter that was geographically external. Kirby J confessed that the plaintiff ’s arguments had raised a doubt in his mind, which he had not felt previously, about the geographic externality principle, but avoided having to decide that issue by finding that the law was justified as a response to a matter of international concern (this aspect of the external affairs power is discussed in Chapter 19). It can be seen that there have been consistent, though admittedly declining, majorities in favour of the “matters external to Australia” aspect of the external affairs power, unqualified by any notion of a connection test, through the sequence of Seas and Submerged Lands, Polyukhovich and XYZ. However, since the dissents have been on quite different grounds in the two later cases, it can probably be said that this aspect of the power is well established.

12.5 Laws that breach doctrines of international law [12.150] Another consequence of inheriting our legal system from Britain is that Australia has a “dualist” relationship with international law, as opposed to a “monist” approach under which international law and domestic law are fused into one 188

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system.16 This means the rules of international law are not part of the domestic legal system unless they have been specifically adopted by the Parliament of the relevant jurisdiction. This doctrine is slightly mitigated by a presumption of statutory interpretation that in case of ambiguity of a statute, an interpretation consistent with international law should be favoured: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273. However, the cases where the presumption has influenced the interpretation of an Act are relatively few.17 This has applied ever since federation (see Brown v Lizars, below), and it still applies even now when international law has become much more prominent in the consciousness of lawyers. This principle works in two directions. First, an action of the executive government is not valid simply because it is purportedly authorised by international law. This was said as long ago as 1905, by Griffith CJ in Brown v Lizars [1905] HCA 24; (1905) 2 CLR 837: “[I]t is impossible to hold that the liberty of individuals can now be interfered with without the sanction of municipal law”. Since then, it has become clear that the Commonwealth Parliament can enact laws under the external affairs power to “internalise” rules of international law (see 19.40–19.50), but until that is done, the rule in Brown v Lizars applies. It applies even to that most compelling command of international law, a resolution of the United Nations Security Council. In Bradley v Commonwealth [1973] HCA 34; (1973) 128 CLR 557, the Security Council had resolved that member nations should not accord any recognition to officials of the illegal regime in Southern Rhodesia, but the Court held that the resolution, by itself, did not authorise the Postmaster-General to withdraw postal and telephone services from a “Rhodesian Information Centre” operated by Bradley as an agent of the illegal government; no law had been passed to implement the resolution. In the other direction, an Australian law or executive decision is not invalid for the reason that it contradicts a treaty or a principle of international law. In Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60, the High Court held that Speros Polites and another Greek citizen could be conscripted under the Defence Act 1903 (Cth) as extended by the National Security (Aliens Service) Regulations despite a “well-­established rule of international law that aliens cannot be compelled to serve in the military forces of a foreign State in which they happen to be”. In Horta v Commonwealth [1994] HCA 32; (1994) 181 CLR 183, José Ramos-Horta, then merely the leader of a resistance movement,18 argued that a treaty made with Indonesia about petroleum resources off the coast of East Timor was inconsistent with Australia’s obligations under the Charter of the United Nations and three international treaties. The Court held that even if the inconsistency could be established, the making of the treaty and the passage of two Acts to implement it were valid exercises of the external affairs power. 16 See Ivan Shearer, “The Relationship between International Law and Domestic Law”, in Brian Opeskin and Donald Rothwell, eds, International Law and Australian Federalism, MUP, 1997. 17 See Pearce and Geddes, n 7 above, pp 229–30. 18 Since East Timor gained its independence, he has of course served as the Prime Minister from 2006–2007 and the President from 2007–2012.

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Recently, there has been much controversy about the treatment of “irregular maritime arrivals” under the Migration Act 1958 (Cth). It is certainly arguable that the programs designed to discourage more arrivals by treating recent arrivals badly (the “Pacific solution”, “offshore processing”) are in breach of Australia’s obligations under the United Nations Refugee Convention, but this is irrelevant to the issue of the validity of the various amendments to the Act. It is also clear that there is a head of power — the aliens power in para 51(xix) — so challenges to the constitutionality of the amendments have had to focus on the extent of the executive power (Chapters 10 and 11) or allegations of breaches of the separation of powers (Chapter 25). [12.160] The doctrine also applies to State laws. In Tajjour v New South Wales [2014] HCA 35; (2014) 254 CLR 508, the Court unanimously rejected an argument that a consorting law was invalid for being contrary to the International Covenant on Civil and Political Rights. All Justices disposed of the issue briefly; as Gageler J explained at [136], “the argument is based on the flawed premise that international law operates of its own force to limit State legislative power”. While Kirby J was on the bench, he advocated a theory that the Constitution itself should be interpreted in line with the international law of human rights and fundamental freedoms: see Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at [145]–[193]. However, this did not attract support from the other Justices. In particular, McHugh J observed in the same case at [63] that Kirby J’s claim “has been decisively rejected by members of this Court on several occasions. As a matter of constitutional doctrine, it must be regarded as heretical”.19 He did concede at [73] that “[i]t is an enduring — and many would say a just — criticism of Australia that it is now one of the few countries in the Western world that does not have a Bill of Rights”, to the author’s knowledge the first, and so far only, clear statement of that opinion from the High Court bench. But then he confirmed the orthodox view of the role of the Court: “[D]esirable as a Bill of Rights may be, it is not to be inserted into our Constitution by judicial decisions drawing on international instruments that are not even part of the law of this country”. That is where the argument still stands for the moment, and for at least the immediate future. Cross-references: The caution, above, that human rights are not enforceable in Australia just because they are listed in an international treaty is not the end of the story. For doctrines and recent State and Territorial statutes that give some “quasi-constitutional” protection to human rights see the following chapter, and for rights which are stated in the Constitution or implied from its words and structure, and are directly enforceable, 19 The debate was perhaps an unfortunate side issue. Two other Justices, Gleeson CJ and Gummow J, found that the indefinite detention of Al Kateb was unlawful, by interpreting the statute according to the presumption in favour of preserving human rights, discussed in the following Chapter. The arguments of both Kirby and McHugh JJ reveal a passion for human rights; with respect, if they had not been distracted by arguing about constitutional philosophy, they may have been able to agree with Gleeson CJ and Gummow J, thereby forming a majority.

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see Chapters 14, 15, 22 and 24. For other aspects of the external affairs power, including the fact that it can be used to make rights under international treaties enforceable under Australian law if the Parliament chooses to do so, see Chapter 19.

FURTHER READING Peter Goldsworthy, “Ownership of the Territorial Sea and Continental Shelf of Australia” (1976) 50 ALJ 175 Graeme Hill, “Resolving a True Conflict between State Laws: A Minimalist Approach” (2005) 29 MULR 95 Devika Hovell and George Williams, “A Tale of Two Systems: The Use of International Law in Constitutional Interpretation in Australia and South Africa’ (2005) 29 MULR 95 Sarah Murray, “Back to ABC after XYZ: Should we be Concerned About ‘International Concern’?” (2007) 35 Fed L Rev 315 Andrew Palmer and Charles Sampford, “Retrospective Legislation in Australia: Looking Back at the 1980s” (1994) 22 Fed L Rev 217 Katharine G Young, “The World, Through the Judge’s Eye’ (2009) 28 Aust Year Book of International Law 27

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CHAPTER 13

Partial Protection of Human Rights by Interpretive Techniques and Quasi-Constitutional Doctrines

13.1 Context and outline [13.10] We saw in Chapter 2 that the United States has a written Constitution, including a Bill of Rights, that limits the legislative powers of the federal and State legislatures, whereas the United Kingdom’s main constitutional doctrine is the sovereignty of Parliament. We then saw in 6.70 that Australia has adopted a mixture of these principles — a written Constitution without a Bill of Rights but with some minor protections of specific rights and some features, like the independence of the judiciary, that help to protect civil and political rights. In Chapter 12, we noted that parliaments in Australia are perfectly free to pass laws that contravene international law and even the human rights standards accepted in the International Covenants (although the various anti-discrimination Conventions on racial, sex, disability and age discrimination, have been given force in national law under the external affairs power, discussed in Chapter 19). However, the picture is not entirely bleak. In this Chapter, we outline the combined effects of the common law and the Constitution on the power of Parliaments to pass laws affecting human rights in Australia, and the notion that there are some “quasiconstitutional” principles and statutes that can do something to protect human rights. Later chapters will explore the case law dealing with sections of, or implications from, the Constitution that do protect particular human rights in more detail. 193

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13.2 Protection of human rights expressed in or implied from the Constitution [13.20] The Constitution contains a number of specific provisions that protect individual rights directly, though mostly weakly. More importantly, there are some structural features and implications from aspects of the drafting that protect rights indirectly, with much stronger effects. They are listed below. All of them are treated in detail in other chapters, but it may be useful to outline them in one place.

Express, but sometimes weak, references to human rights [13.30] The following are examples of express, but sometimes weak, references to human rights: n

n

n

n

para 51(xxxi) gives the Commonwealth Parliament power to make laws for the acquisition of property, but only if the law provides for the payment of just terms: see Chapter 22; s 41 appears to provide a guarantee of voting rights at the Commonwealth level for anyone enrolled at the State level, but it has been held that it was only intended to apply at the first election, after which the Commonwealth Parliament would make laws as to the franchise: see 24.20. But see now the recent case law on the right to vote, mentioned below and discussed in Chapter 15; s 80 guarantees a right to jury trial for indictable offences against the Commonwealth, the “catch” being that an indictable offence is one where the law provides for a process which leads to trial by a jury, as opposed to a summary trial without a jury: see 24.30; and s 116 provides guarantees of four specific aspects of freedom of religion: see 24.40. Note that none of the above provisions apply to the States in any way: see 27.120.

Independence of the judiciary and its consequences [13.40] Chapter 3 of the Constitution vests the judicial power of the Commonwealth in a federal judiciary consisting of tenured judges, and gives jurisdiction over a number of kinds of “matter” to the courts. Together, these provisions have several consequences for human rights. Those that affect the power of the Commonwealth Parliament are: n

n

in general, disputes that involve the application of law to facts — most importantly, the “adjudgment” and punishment of criminal guilt — can only be finally decided by judicial officers: see 25.40; executive officers can only be given limited powers to detain people without trial, and the Parliament cannot provide that persons cannot appeal against their detention: see 25.50–25.60;

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n n

n

the Parliament cannot enact a law that would amount to a Bill of Attainder or a Bill of Pains and Penalties: see 25.50; although the Parliament can make laws regulating the jurisdiction of courts and regulating the conduct of trials, there are certain features of a fair trial that must remain in place: see 26.120; and the High Court, at least, must continue to have jurisdiction to grant administrative law remedies against federal officers (already discussed in 11.120–11.130).

Since sections in Chapter 3 also provide that federal jurisdiction can be vested in the courts of the States, there are also limits to what State laws can do to the jurisdiction of these courts: n

n

although State Parliaments can pass quite harsh laws interfering with people’s freedom of association, freedom of movement, etc, they cannot try to make these laws seem less harsh by involving the judiciary in ways that would impair the institutional integrity of the court system: see Chapter 34; and the granting of administrative law remedies against State officers is an essential part of the jurisdiction of State Supreme Courts (also discussed in 11.140).

Implications from the words “directly chosen by the people” [13.50] As noted in 6.70, although the drafters did not include a Bill of Rights they took care to emphasise that they were creating a democratic nation, so much so that Professor Moore wrote of “the prevalence of the democratic principle”. The High Court has relied particularly on the words “directly chosen by the people” in ss 7 and 24, and on the fact that constitutional alterations must be endorsed by a majority of the electors, to make the following inferences: n

n n

n

that in order for people to make a real choice, they must be aware of the arguments that may affect this choice, and therefore that discussion of government and politics must be free, unless any restrictions are proportionate to a legitimate purpose that is itself compatible with the implied freedom; and that State political debate is so intertwined with federal debate that the freedom of discussion must apply to State politics as much as to federal politics; and further that to preserve an equality of opportunity to participate in debate, limits on campaign donations, preventing the rich and powerful from having a disproportionate influence, are acceptable (these three points are all discussed in Chapter 14); and that access to the electoral roll (and hence the right to vote) can only be restricted if the restriction is proportionate to a legitimate purpose: see 15.50 and 15.60.

Reluctance to interpret purposive powers to allow suppression of free speech [13.60] Even before the implied freedom of political discussion was announced, the High Court had always been reluctant to uphold laws limiting free speech. Although, 195

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as we will see in Chapter 17, Commonwealth powers are to be interpreted without “importing limitations into the descriptive words of the power”,1 we will also see that there is a “proportionality” requirement where purposive heads of power are concerned, and that this includes the incidental fringe of even the “subject matter” powers. The High Court has used this requirement in a few cases to find that a power does not extend to imposing limits on free speech or other “fundamental” rights. In the Jehovah’s Witnesses case,2 discussed in 19.100, the regulations prohibiting the publication of “any doctrines or principles which were advocated by a [declared] body”, and the holding of meetings by such bodies, were invalid because they were so broad as to have no connection with defence. In the Bicentennial case,3 noted at 17.50, a provision that prohibited the production of goods with certain words on them was held to be “grossly disproportionate” to the purpose of the law. In Nationwide News,4 to be discussed in 14.20, Mason CJ, Dawson and McHugh JJ felt no need to discuss the freedom of political discussion, and instead based their decision on the fact that the control of criticism of the Industrial Relations Commission could only be justified as incidental to para 51(xxxv), and incidental laws have to be reasonably proportionate to the purpose of the legislation, and this one was not. That is, there is a range of techniques for protecting the freedom of speech even without a Bill of Rights. Although the freedom of political discussion, and probably the freedom of association for political purposes, have now been established on an independent basis, this more traditional “lack of a head of power” approach may still have its uses.

13.3 Rights recognised at common law — a “quasi-constitutional”, “common law Bill of Rights”? [13.70] As noted above, the lack of a Bill of Rights does not mean that our “fundamental” or “human” rights have no judicial protection at all in Australia. This applies even to rights that find no protection in the Constitution. Many of the interests that are protected by the law of torts have a “human rights” aspect at their margins. The tort of trespass to land not only protects you from an angry neighbour or someone trying to steal the land, but also ensures that even a sheriff serving a writ has to follow proper procedures (Semayne’s case (1604) 5 Co Rep 91, the source of the cliché that “an Englishman’s home is his castle”.) The concept of the “King’s highway”, where everyone has a right to pass and repass, was seen by Isaacs J, in Melbourne Corporation v Barry [1922] HCA 56; (1922) 31 CLR 174 as the source of a right to march, unless prohibited or regulated by statute. Furthermore, the fact that a statute only permitted the Corporation 1 Australian National Airways Pty Ltd v Commonwealth (No 1) [1945] HCA 41; (1945) 71 CLR 29 per Dixon J. 2 Adelaide Company of Jehovah’s Witnesses Incorporated v Commonwealth [1943] HCA 12; (1943) 67 CLR 116. 3 Davis v Commonwealth [1988] HCA 63; (1988) 166 CLR 79. 4 Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1.

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to “regulate” processions was held to mean that it could not generally prohibit them and then give an officer a totally discretionary power to permit them. These common law rights can generally be overridden by statute, but there is a long tradition of statutory interpretation in the common law world that if there is any ambiguity in a law as to whether it is intended to diminish the rights of “subjects” (whom we would call citizens these days), it is to be interpreted in favour of the “subject”. In Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304, O’Connor J quoted a passage from the English text Maxwell on Statutes, based on an American judgment,5 to the following effect: It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness.

This principle, sometimes known as the “clear statement rule”, has been applied over the years to protect many rights from careless abrogation by sloppily-drafted statutes. It has even been applied in cases where one might think there was an obvious enough inference as to the statutory intent, but it had not been spelled out. For example, in Plenty v Dillon (1991) 171 CLR 635, though an Act authorised the issuance and serving of a summons, it was held that it did not authorise a police officer to enter land in order to perform the service. Similarly, in Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, it was held that a section of an Act that authorised police to use a listening device did not authorise them to enter premises to plant the device. In recent years, Lord Hoffman of the House of Lords (now the Supreme Court of the UK) started to use the European term “the principle of legality” when referring to the presumption against abrogation of rights6 (which is in fact misleading as the European term refers to a much wider bundle of concepts including the rule of law)7. Kirby J then followed his Lordship’s example8 and it is now the term generally used in the High Court. It has been referred to in many constitutional matters, in the course of discussion of whether a provision could be “saved” from unconstitutionality by reading it down (see 8.60), but it also continues to be used in pure statutory interpretation cases. For example, in X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92, provisions of the Australian Crime Commission Act 2002 (Cth) authorising compulsory examination were held not to apply to the examination of someone who had already been charged with an offence related to the matter being examined. 5 US v Fisher (1805) 2 Cranch 358, 390. 6 R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 at 131. 7 See, for example, Cian C Murphy, “The Principle of Legality in Criminal Law Under the ECHR” (2009) 2 European Human Rights Law Review 192, where the author equates the principle to the maxim nullum crimen, noella poena sine lege (only the law can define a crime and prescribe a penalty). In “A Comparison of the Principle of Legality and Section 3 of the Human Rights Act 1998” (2009) 125 LQR 598, Philip Sales refers to the British use of the term as “rather strange”. 8 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at [106].

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[13.80] The principle, or interpretive presumption, has been applied to so many historically recognised rights that several authors have suggested that we now have the benefit of a “common law Bill of Rights”. One of these authors, Spigelman CJ, has listed a number of things that the Parliament is presumed not to intend: n n n n n n n n n n n n n n n n n n

to retrospectively change rights and obligations; to infringe personal liberty; to interfere with freedom of movement; to interfere with freedom of speech; to alter criminal law practices based on the principle of a fair trial; to restrict access to the courts; to permit an appeal from an acquittal; to interfere with the course of justice; to abrogate legal professional privilege; to exclude the right to claim self-incrimination; to extend the scope of a penal statute; to deny procedural fairness to persons affected by the exercise of public power; to give executive immunities a wide application; to interfere with vested property rights; to authorise the commission of a tort; to alienate property without compensation; to disregard common law protection of personal reputation; and to interfere with equality of religion.9

He added that a presumption that the legislature does not intend to discriminate on grounds of gender, race, religion, etc could probably now be added. In a later lecture His Honour went on to say that these principles: … are accurately characterised as quasi-constitutional. Each is a rebuttable presumption of parliamentary intention, but they reflect fundamental assumptions about the relationship between citizen and state. That is why they will not be rebutted without clear parliamentary intent.10

In addition, the presumptions discussed in the previous Chapter — that a law is presumed not to apply retrospectively or extraterritorially or to breach principles of 9 The Hon J J Spigelman, “The Common Law Bill of Rights”, Lecture 1 in Mcpherson Lecture Series Volume 3: On Statutory Interpretation and Human Rights, UQP, 2008. Online at http://papers.ssrn.com/sol3/papers. cfm?abstract_id=1806775. Footnotes, omitted here, referred to at least one case as authority for each of the presumptions. 10 The Hon J J Spigelman, “The Application of Quasi-Constitutional Laws”, Lecture 2 in Mcpherson Lecture Series Volume 3: On Statutory Interpretation and Human Rights, UQP, 2008. Online at http://papers.ssrn. com/sol3/papers.cfm?abstract_id=1806776.

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international law without a clear indication of Parliament’s intention to do so — are now seen as part of the principle.11 Much academic discussion has taken place about the exact nature of the principle: are the judges truly interpreting the intention of parliaments, or is this a judicial usurpation of legislative power? As Meagher has remarked, the principle “can only work legitimately if Parliament has clear and prior notice of the rights and freedoms that it operates to protect”. He doubts this, and therefore suggests that in many cases, “the principle … amounts to the illegitimate judicial remaking of prior legislative decisions on rights”.12 On the other hand, one might argue that members of parliament should be expected to have a clear understanding of citizens’ rights and freedoms under the current law. Certainly the courts explain their approach in terms of having high expectations of parliamentarians; as Gleeson CJ put it in a lecture to parliamentarians and others, it is based on “a working assumption about the legislature’s respect for the law”.13 Lim suggests that, in fact, over the years the presumption has shifted from a factual assumption about Parliament’s probable real intentions to a normative claim that “courts should … prevent legislatures from abrogating rights, otherwise than by clear words, in order to enhance electoral accountability and the political process”.14 In any case, this is only a principle of interpretation, and it only applies where the intention is not “irresistibly” clear. When a court has preserved common law rights by interpretation, it is then easy enough for a parliament to amend the law so as to spell its intention out in clearer words, and in fact this was done after both Plenty’s and Coco’s cases.15 In such cases, the interpretive device creates a loophole that is available to the first party whose lawyer is smart enough to spot it, but then it may well be closed. And the rights-preserving interpretation may be distinguished in similar-but-different cases. In Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196, the Court, analysing a different statute from the one in X7, held by 4:3 that in this case the privilege against self-incrimination had been abrogated. As French CJ remarked at [3]: When the text, context and purpose of a statute permit a choice to be made, the courts will choose that interpretation which avoids or minimises the adverse impact of the statute upon common law rights and freedoms. However, subject to constitutional limits, where a parliament has decided to enact a law which abrogates such a right or freedom, its decision must be respected. 11 Indeed, after seven editions of Pearce and Geddes, Statutory Interpretation in Australia had used the title “Legal Assumptions” for Chapter 5, in the 8th edition (2014) the title has become “Legal Assumptions; Principle of Legality”. 12 Dan Meagher, “The Principle of Legality as Clear Statement Rule: Significance and Problems” (2014) 36 Syd LR 413. 13 The Hon Murray Gleeson, “Legality — Spirit and Principle”, Second Magna Carta Lecture, New South Wales Parliament House, 20 November 2003; http://www.hcourt.gov.au/assets/publications/speeches/ former-justices/gleesoncj/cj_20nov.html. 14 Brendan Lim, “The Normativity of the Principle of Legality” (2013) 37 MULR 374. 15 Justice Legislation (Miscellaneous Provisions) Act 1992 (SA) and Police Powers and Responsibilities Act 2000 (Qld) s 332.

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The principle is important and appears as an issue in an ever-increasing proportion of statutory interpretation cases, and may even be fundamental enough to be accurately called quasi-constitutional, but it provides us with not so much a Bill of Rights, but a Bill of Prima Facie, Rebuttable, Rights.

13.4 Quasi-constitutional Human Rights Acts or Charters — compromises between rights and the powers of parliaments [13.90] Since World War II we have seen, first, the development of international or multinational human rights documents such as the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the European Convention on Human Rights (EConHR, to distinguish it from the related Court which is the ECtHR). Then more and more countries around the world have adopted Bills of Rights — some of them effective, some not16 — and pressure to follow suit has developed in Britain and the settler-dominated (“white”) countries among its former colonies — Canada, Australia and New Zealand. As the influence of Dicey and his doctrine of parliamentary sovereignty (see 2.80) was particularly strong among the legal profession and politicians in these countries, there was opposition to this pressure. Compromises emerged. From 1982 to 1998, Canada, New Zealand and the United Kingdom enacted laws that, compared to the US Bill of Rights, contained “watering-down” provisions. First, Canada adopted a Charter of Rights and Freedoms as part of its constitutional settlement in 1982. It is a constitutional bill of rights in that laws that are inconsistent with it can be declared invalid, but its effect is watered-down in two ways: s 1 provides that all the rights are only guaranteed “subject to such reasonable limits as can be demonstrably justified in a free and democratic society”17 and s 33 provides that a legislature (federal or provincial) may expressly declare that an Act operates notwithstanding certain of the “guarantees”.18 16 See Charles Parkinson, Bills of Rights and Decolonization: The Emergence of Domestic Human Rights Instruments in Britain’s Overseas Territories, OUP, 2007; Helen Stacy, Human Rights for the 21st Century; Sovereignty, Civil Society, Culture, Stanford UP, 2009. 17 Of course it is not unprecedented for rights guarantees to be limited by reasonability provisions; the Fourth Amendment of the US Constitution only protects against “unreasonable” search and seizure, a few specific provisions of the ICCPR contain exceptions for provisions that are necessary “for national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others” and the EConHR has some similar provisions. What is new in the Charter is that the “reasonable limits” clause applies to all the listed rights. 18 This is not entirely new either; Article 4 of the ICCPR provides that, “In time of public emergency which threatens the life of the nation … the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation”, and Article 15 of the EConHR is similar but does not apply to the most fundamental Articles. What is new in the Charter is that it is not limited to times of emergency.

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Then New Zealand introduced, and the United Kingdom copied, the ultimate in watered-down Bills of Rights — statutory, interpretive, Human Rights Acts. The New Zealand Bill of Rights Act 1990 (NZBORA) and the Human Rights Act 1998 (UK) both enact a statutory version of the principle of legality. For example NZBORA s 6 provides that: “Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning”. However, they both emphasise that no court can declare a law to be invalid, though s 4 of the United Kingdom Act empowers the superior courts to make a formal declaration of incompatibility with the convention, which is reported to the Parliament so that it may consider whether to amend the Act. As well as their effect on the interpretation of laws, the New Zealand and United Kingdom Acts also have effects on executive powers and the passage of legislation. In each case, the Attorney-General must provide statements as to whether Bills presented to Parliament are claimed to be compatible with listed rights (NZ, s 3; UK s 19), and there are provisions requiring public authorities to observe the listed rights in the course of their administration (NZ s 7; UK s 6). The New Zealand/United Kingdom approach has been followed in two Australian jurisdictions. The Human Rights Act 2004 (ACT) has the usual list of rights in s 9, a “reasonable limitations” clause in s 28, a compatible interpretation provision in s 30, and a declaration of incompatibility provision with the proviso that it does not affect the validity of the law in s 32. The Charter of Human Rights and Responsibilities Act 2006 (Vic) (CHRRA) lists the rights in ss 8–27, has a “reasonable limits” provision in s 7, a compatible interpretation provision in s 32, and provides for declarations of “inconsistent interpretation” which do not affect validity in s 36. It also adds a Canadian-style express override provision in s 31, achieving a world record in that it includes all three “watering-down” techniques. The two Acts also provide for rights-based scrutiny of new laws (ACT ss 37–38; Vic ss 28–30), and make it clear that public authorities must act consistently with human rights in the course of making administrative decisions (ACT s 40B; Vic s 38). Again, they are Bills of Prima Facie, Rebuttable, Rights. [13.100] In 2009, the National Human Rights Consultation Committee (the “Brennan Committee”) recommended that the Commonwealth Parliament should enact an Act along the lines of the NZ/UK/ACT/Victorian ones. However, the only outcome was the passage of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), which demands that the Member introducing a Bill to Parliament must present a statement of compatibility to the Parliament, and establishes a Parliamentary Joint Committee on Human Rights, with the job of examining Bills that come before the Parliament for compatibility with human rights, and reporting to both Houses of the Parliament on that issue. A committee of the Queensland Parliament has recently recommended something similar for Queensland,19 though the recommendation is couched in such vague and general terms that it is hard to predict just what the outcome will be. 19 See the Report at http://www.parliament.qld.gov.au/documents/tableOffice/TabledPapers/2016/5516T1030. pdf. Despite the limited nature of the recommendation, the Queensland Premier announced on 29 October 2016 that the Government would propose a Bill for a Victorian-style Human Rights Act to the Parliament.

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These developments are worth mentioning here because they may (or may not) be a half-way step towards the introduction of constitutional Bills of Rights, and because the grant of power to the judiciary to declare laws incompatible with the listed rights has raised constitutional issues: see the discussion of Momcilovic v The Queen in 34.80. However, the application of the Victorian and ACT Acts and the operation of the Committee on Human Rights are not matters of constitutional law, so readers are referred to the works listed in the Further Reading. Cross-references were sufficiently discussed in 13.20–13.60, above.

FURTHER READING Principle of legality Hon R S French, Lecture, 4 September 2009, “The Common Law and the Protection of Human Rights”, online at http://www.hcourt.gov.au/assets/publications/speeches/ current-justices/frenchcj/frenchcj4sep09.pdf Alexis Henry-Comley, “The Principle of Legality: An Australian Common Law Bill Of Rights?’ (2013) 15UNDALR 83 Brendan Lim, “The Normativity of the Principle of Legality” (2013) 37 MULR 374 Dan Meagher, “The Principle of Legality as Clear Statement Rule: Significance and Problems” (2014) 36 Syd LR 413 Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia, 8th ed, LexisNexis Australia, 2014, Chapter 5 Hon J J Spigelman AC, “Principle of Legality and the Clear Statement Principle” (2005) 79 Aust LJ 769 Statutory Human Rights Acts and the Federal Joint Committee Andrew Byrnes, Hilary Charlesworth, Gabrielle McKinnon, Bills of Rights in Australia: History, Politics and Law, UNSW Press, 2009 Andrew S Butler and Petra Butler, The New Zealand Bill of Rights Act: A Commentary, LexisNexis NZ Ltd, 2014 Carolyn Evans and Simon Evans, Australian Bills of Rights: The Law of the Victorian Charter and ACT Human Rights Act, LexisNexis Butterworths, 2008 Kris Gledhill, Human Rights Acts; The Mechanisms Compared, Hart Publishing, 2015 Alistair Pound and Kylie Evans, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities, Lawbook Co, 2008 Shawn Rajanayagam, “Does Parliament Do Enough? Evaluating Statements of Compatibility under the Human Rights (Parliamentary Scrutiny) Act” (2015) 38 UNSWLJ 1046

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CHAPTER 14

The Constitutional Freedom of Political Discussion

14.1 Context and overview [14.10] As noted in several places above, the Constitution contains no Bill of Rights and Australian law is not subordinate to the International Covenant on Civil and Political Rights. However, we saw in Chapter 13 that the “presumption of legality” is used in interpreting ordinary statutes, and that “proportionality” can be used to protect basic rights, where it is part of the tradition of interpreting a particular aspect of the Constitution. In addition, it is clear, as Professor Moore pointed out in one of the first texts,1 that the democratic election of Members of Parliament is one of its central features if not the central feature. In this Chapter, we discuss an implication from the words of the Constitution that the Court started to recognise 20 years ago — that in order that the Members can be “directly chosen” by the people, the people must have the capacity to make an informed choice, and therefore that there should be a general freedom of communication about government and political matters, that includes not only communications from the various politicians to the people but also communication among the people. In Chapter 15, we will see that the High Court has also inferred a right of all citizens to vote from the text, and has been quite strict about the ways in which this right can be limited. As this doctrine is still fairly new, the tale of its development is told in chronological order in this chapter. It should be noted, however, that the “test” for validity of a law against the principle discussed here was modified in the latest case, McCloy v New South Wales [2015] HCA 34; (2015) 325 ALR 1 — at least by the majority — over strong protests from three Justices. It is not thought that the application of the new version of the test would change the outcomes of any of the earlier cases, but it should be borne in mind that they were all decided against a less “spelled-out” version of the test. 1 See reference in 4.50.

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14.2 The implication discovered [14.20] Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106 (ACTV) and Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 (Nationwide News) involved the same major issue and were decided on the same day. ACTV involved a challenge to Part IIID of the Broadcasting Act 1942 (Cth), which banned paid political advertising during election periods — for Commonwealth, State and Territory elections — and required broadcasters to make available free time for election advertising by political parties, as allocated by Australian Broadcasting Tribunal. Nationwide News had been prosecuted under a provision of the Industrial Relations Act 1988 (Cth) which made it an offence for any person to use words calculated to bring a member of the Industrial Relations Commission, or the Commission, into disrepute. Both provisions were held invalid. The Court announced that the Constitution contained an implied guarantee of freedom of communication on political matters. Mason CJ’s general remarks in ACTV about constitutional implications were cited at 8.50; as to this particular implication he pointed out that ss 7 and 24 provide for direct choice of Members of Parliament by the people, and went on to explain at [37]: The point is that the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act … Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion.

Gaudron J provided similar reasons in ACTV. Brennan, Deane and Toohey JJ had clearly written their judgments in Nationwide News2 first, so they explained the derivation of the principle there and simply applied it in ACTV. Their Honours’ reasons all referred to the general principles of representative and responsible government, but in ACTV, McHugh J emphasised that the freedom was derived specifically from ss 7 and 24 and suggested at 227 that it applied only to discussion of federal elections. Even Dawson J, who is sometimes reported as having dissented on the point of principle as well as its application, in fact said at [24]: [T]he Constitution provides for a choice and that must mean a true choice … Thus an election in which the electors are denied access to the information necessary for the exercise of a true choice is not the kind of election envisaged by the Constitution.

All Justices emphasised that the freedom was not absolute, but could be restricted by laws that were proportionate, or appropriate and adapted, to a legitimate purpose. 2 Mason CJ, Dawson and McHugh JJ, as noted in 13.60, decided Nationwide News on more traditional grounds, so their reasoning about the implication is in ACTV. Gaudron J explained the implication in ACTV and applied it in both cases.

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In ACTV, the majority held that the advertising restrictions were invalid — not that the Parliament could not regulate electoral advertising at all, but the free time provisions were heavily weighted in favour of currently-represented parties and gave little opportunity for new parties, independent candidates, or other organisations with an interest in the outcome of the election, to respond to the major parties’ arguments. Brennan and Dawson JJ dissented as to the restrictions during Commonwealth election periods, holding that the restrictions were justified and did not have a serious effect on the voters’ right to make a real choice. In Nationwide News, the Court unanimously held that the provision under challenge was invalid; it made criticism of a public institution3 illegal without providing for any of the defences such as truth, fair comment, or mistake of fact that would be available in a defamation case. In ACTV, a 6:1 majority held that the provisions applying to State elections were invalid. Four Justices agreed that the freedom “does not lend itself to subdivision”, as Mason CJ expressed it. He added, at [44]: The consequence is that the implied freedom of communication extends to all matters of public affairs and political discussion, notwithstanding that a particular matter at a given time might appear to have a primary or immediate connection with the affairs of a State, a local authority or a Territory and little or no connection with Commonwealth affairs. Furthermore, there is a continuing inter-relationship between the various tiers of government … That continuing inter-relationship makes it inevitable that matters of local concern have the potential to become matters of national concern.

Brennan and McHugh JJ did not agree that the implied freedom had such a broad scope, but held that in their application to State elections, the sections interfered with the autonomy of the States as expressed in the Melbourne Corporation principle (see 33.70).

14.3 Extension to the law of defamation, and doubts [14.30] Media companies quickly saw the potential of the new principle. In two cases where politicians sued newspapers for defamation, the publishers argued, successfully, that the freedom of communication affected the law of defamation so as to limit their exposure to suits by politicians. Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 was an action by a federal politician, but Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211 involved a State politician. In Theophanous, Mason CJ, Toohey and Gaudron JJ noted that not all American cases on the much more general guarantee of freedom of the press would be relevant, but held that where political comment was involved, the American approach was relevant, and applied a modified form of the principle from New York Times Co v Sullivan [1964] USSC 41; (1964) 376 US 254. They held, at [45], that where a party published something false and defamatory about a public figure: 3 The letter had referred to the “corrupt and compliant ‘judiciary’ of the Soviet-style Commission”.

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… the defendant should be liable in damages unless it can establish that it was unaware of the falsity, that it did not publish recklessly (ie, not caring whether the matter was true or false), and that the publication was reasonable in the sense described.

This provided a somewhat broader defence than the common law defence of qualified privilege. Deane J would have expressed the principle more favourably to a publisher; therefore the formulation in the joint judgment had majority support. In Stephens, the same majority noted that the majority judgments in Nationwide News and ACTV had held that the freedom extended to political discussion at the State level and held that the extended defence therefore applied to an alleged defamation of a State politician. Brennan, Dawson and McHugh JJ dissented in both cases. McHugh J repeated that his decision in ACTV had been based strictly on the words of ss 7 and 24, and therefore rejected any attempt to draw implications from more general concepts of representative government. On the same day, the Court decided Cunliffe v Commonwealth [1994] HCA 44; (1994) 182 CLR 272. The majority (Brennan, Dawson, Toohey and McHugh JJ) held that provisions of the Migration Act 1958 (Cth) prohibiting the giving of migration advice without a licence were valid, because the restriction was not essentially a restriction on political communication. Mason CJ, Deane and Gaudron JJ held that it was, and that it was disproportionate to the need to ensure that migrants only received sound advice. Mason CJ remarked that “non-citizens actually within this country are entitled to invoke the implied freedom of communication, particularly when they are exercising that freedom for the purpose, or in the course, of establishing their status as entrants and refugees or asserting a claim against government or seeking the protection of government”. Two cases on the validity of electoral laws followed. Section 240 of the Commonwealth Electoral Act 1918 (Cth) provides that people “shall mark” all squares on a House of Representatives ballot with consecutive numbers, but for some time the Act also provided that a vote such as 1, 2, 3, 4, 4 or 1, 2, 2 was formal until the repeated number was reached. Albert Langer was advocating that people should show their rejection of the major parties by voting 1, 2, 2 (which became known as a “Langer vote”). A provision was then added that made it an offence to encourage people to vote other than in accordance with the method specified by s 240. In Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302, the majority held that this was “a means of protecting the method which Parliament has selected for the choosing of members”; as Brennan CJ pointed out, the section did not prevent people from informing voters of the state of the law. Dawson J dissented; although, as noted above, he had been more reluctant to infer a wide freedom of communication from ss 7 and 24 than other Justices, he held that this law was “designed to keep from voters information which is required by them to enable them to exercise an informed choice”. In Muldowney v South Australia [1996] HCA 52; (1996) 186 CLR 352, the plaintiff challenged a similar provision in the South Australian law about Legislative Council elections, as well as the provision requiring that voters “shall” number all squares. Both sections were held valid, this time unanimously. As Brennan CJ pointed out, “The mandatory term ‘shall mark’ in s 76 cannot be construed 206

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to impose an enforceable obligation on an elector to mark a ballot paper”; it simply made the vote informal.

14.4 Lange: the freedom, and the qualification, confirmed [14.40] Academic comment4 after Langer and Muldowney expressed the worry that the decisions could be “indicative of a movement within the Court to resile from the principles” it had expressed in ACTV. However, in the next defamation case, Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520,5 the Court confirmed the existence of the implication, and also confirmed that there was a “legitimate purposes” qualification of the freedom. The Court achieved unanimity by agreeing with McHugh J that the source of the implied freedom was the specific reference to the choice of Members by the people in ss 7 and 24 rather than broader concepts of representative and responsible government. At 559–62, the Court held, in a joint judgment, that: Freedom of communication on matters of government and politics is an indispensable incident of the system of representative government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall be “directly chosen by the people” of the Commonwealth and the States, respectively … sections 7, 24 and the related sections … necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. If the freedom is to effectively serve the purpose of ss 7 and 24 and related sections, it cannot be confined to the election period. Most of the matters necessary to enable “the people” to make an informed choice will occur during the period between the holding of one, and the calling of the next, election. If the freedom to receive and disseminate information were confined to election periods, the electors would be deprived of the greater part of the information necessary to make an effective choice at the election.

The Court confirmed the holdings in the earlier cases that the freedom was not absolute, and formulated the following test: First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government … If the first question is answered “yes” and the second is answered “no”, the law is invalid. 4 For example, Anne Twomey, “Free to Choose or Compelled to Lie? — The Rights of Voters after Langer v The Commonwealth” (1996) 24 Fed L Rev 201. 5 Though those who know some German might think this name should be pronounced almost identically to Langer, the plaintiff was David Lange, ex-Prime Minister of New Zealand who pronounces his name as “Longie”.

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As to the scope of the freedom, it not only extended to discussion of Commonwealth and State affairs but: By reason of matters of geography, history, and constitutional and trading arrangements, … the discussion of matters concerning New Zealand may often affect or throw light on government or political matters in Australia. That being so, it may be that further and better particulars can be provided which bring the publications within the expanded defence.

Their Honours added some cautionary notes. They explained: Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power. As Deane J said in Theophanous, they are “a limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a ‘right’ in the strict sense”.

Consistently with that, they held that the Constitution did not support a “constitutional defence” to defamation actions as pleaded by the ABC, but that: The common law of libel and slander could not be developed inconsistently with the Constitution, for the common law’s protection of personal reputation must admit as an exception that qualified freedom to discuss government and politics which is required by the Constitution.

To comply with constitutional requirements, the defence of qualified privilege at common law had to be refined, in cases where public figures allege defamation.6 Since the ABC had pleaded a “constitutional defence”, it technically failed, but it was given a hint as to how to amend the defence. The case went back to the lower courts, never to be heard of again. Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 had been argued concurrently with Lange, and illustrated the application of the “legitimate end” qualification. Laurie Levy had entered a duck-hunting area without a permit, in order to protest against cruelty to ducks. When charged with an offence, he argued that the law breached his freedom of political communication. The Court made some observations about the nature of political communication that could be protected by the doctrine. Toohey and Gummow JJ observed: It may be conceded that television coverage of actual events occurring within the permitted hunting areas … would attract public attention to those protesting the duck 6 The issue of defamation of public figures was revisited in Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1. Bass had successfully sued Roberts for defamation over some election pamphlets produced by Roberts. The issues became somewhat confused as the case went through the appeal process, and partly because of that, it “revealed ongoing uncertainties as to the role of the implied constitutional freedom in defamation matters”. See Helen Chisholm, “‘The Stuff of which Political Debate is Made’: Roberts v Bass” (2003) 31 Fed L Rev 225.

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shooting issues, even if it would portray or stimulate appeals to emotion rather than to reason. The appeal to reason cannot be said to be, or ever to have been, an essential ingredient of political communication or discussion. It must also be accepted that the constitutional freedom is not confined to verbal activity. We recognise that it may extend to conduct where that conduct is a means of communicating a message within the scope of the freedom.

Brennan CJ and McHugh and Kirby JJ made similar remarks. However, all Justices agreed with the State that the law was an appropriate regulation of public safety. In Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181, an officer of the Democratic Labor Party challenged the rule that a party must prove that it has at least 500 members, not being members of another party, to be registered. Registration gave the benefit that the party’s name would appear on the ballot paper next to that of the candidates. The court unanimously held that the law was valid; to summarise some complex reasoning, the ballot paper was a communication between each voter and the Electoral Commission rather than a communication to other voters, and the Parliament was entitled to regulate its form.

14.5 Application for the benefit of individuals [14.50] By 2003, it was clear that the implied freedom existed, but the only parties who had successfully relied on it were media corporations, and “anti-establishment” protesters had failed in Langer, Muldowney and Levy.7 However, in ACTV, Mason CJ had emphasised, at [39], that: Freedom of communication in relation to public affairs and political discussion cannot be confined to communications between elected representatives and candidates for election on the one hand and the electorate on the other. The efficacy of representative government depends also upon free communication on such matters between all persons, groups and other bodies in the community.

Similarly, in Nationwide News, Deane and Toohey JJ had noted at [18] that: The doctrine presupposes an ability of represented and representatives to communicate information, needs, views, explanations and advice. It also presupposes an ability of the people of the Commonwealth as a whole to communicate, among themselves, information and opinions about matters relevant to the exercise and discharge of governmental powers and functions on their behalf.

Clearly the doctrine was capable of protecting an individual campaigner or protester when the right facts arose. Bennett v President, Human Rights and Equal Opportunity 7 Indeed pessimism about the development of the implication was expressed in Diana Sedgwick, “The Implied Freedom of Political Communication: An Empty Promise?” (2003) 7 UWSLR 35.

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Commission [2003] FCA 1433; (2003) 134 FCR 334 was such a case. It was an application for review of a decision of the Commission, rejecting a complaint by Bennett, a Union official, against a direction issued by the Customs Department forbidding him from ventilating issues in the media. The direction was purportedly based on reg 7(13) of the Public Service Regulations, which provided: An APS employee must not, except in the course of his or her duties as an APS employee or with the Agency Head’s express authority, give or disclose, directly or indirectly, any information about public business or anything of which the employee has official knowledge.

Finn J held that the regulation prevented, subject only to its two provisos, communication by public servants to other members of the Australian community and that it was manifestly not appropriate and adapted to “furthering the proper and efficient operation of the Government”. He observed at [82]: The regulation is a relic of an era of government in which the practice of politics and of public administration differed markedly from our own. Its ancestors in their historical setting could probably be characterised reasonably as “command and control” mechanisms considered appropriate to the circumstances prevailing in the infant colonies of this country … Whatever may have been regarded as acceptable a century and a half ago, the vices of excessive secrecy in the conduct of government, its effect on the quality of public debate and, ultimately, on the practice of democracy itself, have more recently been both exposed and addressed in this country and on some number of fronts.

He referred the matter back to the Commission to be decided according to a proper interpretation of the law.8 The next agitator to test the freedom was Patrick Coleman, a law student. First, he was convicted of breaching a Townsville by-law by making a public address in the Flinders Mall in Townsville. In Coleman v Sellars [2000] QCA 465; [2001] 2 Qd R 565 the Queensland Court of Appeal held, Muir J dissenting, that the by-law was valid. Pincus JA claimed that it “leaves available ample means of engaging in such discussion”. By the time the appeal had been heard, Coleman had been arrested again. This time he was distributing pamphlets which contained charges of corruption against several police officers. Constable Power had approached Coleman and asked to see a pamphlet. Coleman pushed Power, and said loudly: “This is Constable Brendan Power, a corrupt police officer”. He was convicted by a magistrate of offences under ss 7 and 7A of the Vagrants, Gaming and Other Offences Act 1931 (Qld) (VGO Act) — using insulting words in a public place, and publishing insulting words respectively. In Coleman v P [2001] QCA 539; [2002] 2 Qd R 620 the Queensland Court of Appeal upheld his appeal on the second charge, reasoning, like the High Court in Nationwide News, that s 7A criminalised 8 The decision apparently caused consternation among those with more rigid minds in the Public Service. See Christopher Erskine, “The Bennett Decision Explained: The Sky Is Not Falling!” (2005) 46 Australian Institute of Administrative Law Forum 15.

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defamation without providing any of the defences usually available in a defamation case, However, with McMurdo P dissenting, his appeal against the first charge was dismissed. He appealed to the High Court. In Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, the majority allowed his appeal, holding that the constitutional freedom extended to discussion of police corruption in a State. As discussed in 8.70, the Court did not hold s 7 flatly unconstitutional. Gummow, Hayne and Kirby JJ were somewhat guided by the constitutional freedom in holding that the Parliament had only intended the section to apply when the words were likely to provoke a violent response and read it down to conform with that intention, whereas McHugh J held that Parliament had clearly had no such intention but that it could be read down under s 9 of the Acts Interpretation Act 1954 (Qld). A majority of the court also accepted that the political communication protected under Lange could include insults. Kirby J said, at [239]: From its earliest history, Australian politics has regularly included insult and emotion, calumny and invective, in its armory of persuasion … Anyone in doubt should listen for an hour or two to the broadcasts that bring debates of the Federal Parliament to the living rooms of the nation.

On the other hand, Heydon J, dissenting, suggested at [324] that: Insulting words are inconsistent with that society and those claims because they are inconsistent with civilised standards. A legislative attempt to increase the standards of civilisation to which citizens must conform in public is legitimate.

A majority of the court also slightly reformulated the test from Lange. With the general agreement of the rest of the Court, McHugh J suggested that in the paragraph quoted above from Lange, “the fulfillment of which” should be replaced by “in a manner which”. As he explained at [92], “it is the manner of achieving the end as much as the end itself that must be compatible with the maintenance of the constitutionally prescribed system of representative and responsible government” (emphasis in original). However, he then added: “Of course, the end itself may be incompatible with the system of representative and responsible government”. This seemed to suggest that there were in fact three elements: n n

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first, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect?; second, if the law effectively burdens that freedom, is the law really pursuing a legitimate end which is compatible with the system of representative government at all?; and then if it is serving such an end, is the law reasonably appropriate and adapted to serve that legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? 211

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The fact that there were three main elements was confirmed by the majority in McCloy v New South Wales. That decision also further refined the third element, as discussed below.

14.6 Further explorations of the pursuit of legitimate purposes [14.60] In the cases that followed, it was generally agreed that the law in question had been passed for a legitimate purpose,9 but there were often divisions on whether the burden on communication was appropriate and adapted to the purpose. AttorneyGeneral (SA) v Corporation of the City of Adelaide (the Street Preachers case) [2013] HCA 3; (2013) 249 CLR 1 involved a challenge by some “expositors of the Gospel” to a council by-law that prohibited “preaching, canvassing and haranguing” on a road without a permit. The Court accepted that in some cases “religious” speech could also be characterised as “political” communication (compare the cases in 14.100) but, by a 5:1 majority (Heydon J dissenting) held that the regulation was appropriate and adapted to the legitimate purpose of preserving public safety and convenience. The majority all emphasised that preaching was not banned totally but could be permitted on application, and there were exceptions for a “Speakers’ Corner” area and for campaigning during an election period. Their Honours observed that in other cases it should be assumed that the authorities would exercise the discretion to grant or withhold a permit conformably with the purpose of the by-law which one might possibly regard as a stern reminder to the authorities rather than an assumption, and also as a hint to practitioners that they should seek administrative review of refusals of permission instead of taking a constitutional case to the courts. (See Hayne J at [141], Crennan and Kiefel JJ at [219].) In another case decided on the same day, Monis v The Queen; Droudis v The Queen [2013] HCA 4; (2013) 249 CLR 92, Man Monis (later the perpetrator of the Martin Place siege) was appealing a conviction for using the postal service in way that “reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive”. Monis had written letters to the families of soldiers killed in Afghanistan in which he first expressed condolences for the deaths, but then went on to attack the government for intervening in Afghanistan and to viciously attack the deceased for their 9 The case which best illustrates the need to see the legitimacy of the purpose as a separate element is the voting rights case Rowe v Electoral Commissioner [2010] HCA 46; (2010) 243 CLR 1, discussed in section 15.5. Although the purported object of the law, to reduce electoral fraud, would be a perfectly legitimate end if the law was actually passed for that purpose, it was clear that this was not the real purpose of the amendment. In Monis v The Queen; Droudis v The Queen [2013] HCA 4; (2013) 249 CLR 92, Hayne J listed, at [129], a number of purposes that had been found legitimate: “… the protection of reputation, the prevention of physical injury, the prevention of violence in public places, the maintenance of a system for the continuing supervision of some sexual offenders who have served their sentences, community safety and crime prevention through humane containment, supervision and rehabilitation of offenders, and the imposition of conditions [a parole board] considers reasonably necessary to ensure good conduct and to stop [a] parolee committing an offence” (citations omitted). As his Honour observed, “These are no more than examples of legitimate objects or ends that have so far been identified in the cases”.

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part in the intervention. All Justices agreed that the section was broad enough so that it could inhibit the freedom of political discussion. French CJ and Hayne J held that it was so broad that it was impossible even to identify a legitimate end, and therefore could not be appropriate to one. Heydon J, in a terse judgment which was his last one before retirement, expressed doubt about the soundness of the whole line of cases establishing the implied freedom, but claimed that on the existing law there was no alternative but to allow the appeal. Crennan, Kiefel and Bell JJ, in a joint judgment, held that “offensive” in the section had to be read in the context of “menacing” and “harassing” and (at [348]) that “the protective purpose of s 471.12 is directed to the misuse of postal services to effect an intrusion of seriously offensive material into a person’s home or workplace”, and the section went “no further than is reasonably necessary to achieve its protective purpose”.10 The Court therefore split 3:3 and, the judgment under appeal being that of a Supreme Court, the appeal was dismissed.11 The fact that the judges had divided along gender lines, in a case where the issue was whether a doctrine appropriate to cases on public discourse should be applied to abusive letters addressed to individuals and posted to private addresses, essentially invading the privacy of the home, did not go unnoticed.12 Unions New South Wales v New South Wales [2013] HCA 58; (2013) 252 CLR 530 involved a challenge to the Election Funding, Expenditure and Disclosures Act 1981 (NSW) (“EFED Act”). Since its original passage, the Act had placed “caps” on the amount of donations that persons could make to political parties, and on the amount that parties could spend on campaigning. In 2012, further provisions had been added. Section 96D prohibited political donations unless they were made by an individual enrolled on the roll of electors, and subs 95G(7) aggregated the amount spent by a party and its “affiliated organisations” for the purposes of the spending cap. Since the only organisations that are formally affiliated with a party are Trade Unions, this was seen as being aimed at the Labor Party and the Unions, and naturally Unions New South Wales challenged the amendments. The Court unanimously held that both amendments were invalid. French CJ, Hayne, Crennan, Kiefel and Bell JJ first confirmed, for the third or fourth time, that the freedom extended to discussion of State political affairs (at [17]–[34]). Their Honours agreed with the State’s submission as to the general purpose of the donation and spending caps — to address the possibility of undue or corrupt influence being exerted (at [51]). However, they held that the challenged provisions did not seem to pursue that purpose. As to the ban on persons other than electors, they remarked that if corporate donations were seen as a greater threat to political integrity, s 96D “in no way expresses or addresses it” (at [55]). As to the aggregation of union expenditure with party expenditure, they observed that it appeared “to assume that the 10 Their Honours also made observations, at [277]–[286], on the need to see the Lange test as involving a series of different enquiries, thus foreshadowing the expanded test in McCloy, below. 11 Judiciary Act 1903 (Cth) s 23(2)(a). 12 Spencer Zifcak, “Judges split on gender lines over tenor of cleric’s letters”, The Australian, 15 March 2013 http://www.theaustralian.com.au/business/legal-affairs/justices-split-on-gender-lines-over-tenor-ofclerics-letters/story-e6frg97x-1226597684532.

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objectives of all expenditure made by the party on the one hand and the organisation on the other are coincident” at [63], which was not necessarily so.13 In a separate judgment, Keane J discussed the difficulties in applying the Lange test at length, but concurred in the result for generally similar reasons to those in the joint judgment.

14.7 McCloy — equality of opportunity to participate and a proportionality test introduced [14.70] The EFED Act also featured in the next major case, McCloy v New South Wales [2015] HCA 34; (2015) 325 ALR 1. Amendments added in 2009 had prohibited the making of donations by, or acceptance of them from, property developers or tobacco, liquor or gambling industry entities. McCloy, a property developer, had challenged both the general caps on donations and the ban on those from property developers. The case resulted in the formulation, by the majority of the Court, of a new version of the “test”, and the introduction of a new emphasis on the need for equality of opportunity to participate in political discussion.

The proportionality test [14.80] As to the test to be applied in these cases, French CJ, Kiefel, Bell And Keane JJ first restated, at [2], the following general proposition derived from Lange and Coleman v Power: The freedom under the Australian Constitution is a qualified limitation on legislative power implied in order to ensure that the people of the Commonwealth may “exercise a free and informed choice as electors”. It is not an absolute freedom. It may be subject to legislative restrictions serving a legitimate purpose compatible with the system of representative government for which the Constitution provides, where the extent of the burden can be justified as suitable, necessary and adequate, having regard to the purpose of those restrictions.

They then stated that the test by which the validity of a law is to be assessed depends upon the answers to the following questions, which they said reflected the questions propounded in Lange as modified in Coleman v Power: 1. Does the law effectively burden the freedom in its terms, operation or effect? If “no”, then the law does not exceed the implied limitation and the enquiry as to validity ends. 2. If “yes” to question 1, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government? This question reflects what is referred to in these reasons as “compatibility testing”. 13 Indeed, in some recent State elections the Electrical Trades Union has campaigned quite vigorously against some aspects of Labor Party policy.

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The answer to that question will be in the affirmative if the purpose of the law and the means adopted are identified and are compatible with the constitutionally prescribed system in the sense that they do not adversely impinge upon the functioning of the system of representative government. If the answer to question 2 is “no”, then the law exceeds the implied limitation and the enquiry as to validity ends. 3. If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object? This question involves what is referred to in these reasons as “proportionality testing” to determine whether the restriction which the provision imposes on the freedom is justified. The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test — these are the enquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses: suitable — as having a rational connection to the purpose of the provision; necessary — in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom; adequate in its balance — a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom. If the measure does not meet these criteria of proportionality testing, then the answer to question 3 will be “no” and the measure will exceed the implied limitation on legislative power. (footnotes omitted)

The other Justices (Gageler, Nettle and Gordon JJ) saw no need to further codify the Lange questions. As Gordon J put it at [311]: The questions stated for the opinion of the Court in this case are able to be answered by reference to the known questions and tools. … The method or structure of reasoning to which the plurality refers … does not avoid the judgments that the two questions require and, as always, it is necessary to explain how and why those judgments are formed.

Donation limits valid as promoting equality of opportunity to participate in political debate [14.90] As to the application of the test or tests, the Court unanimously held that the system of donation caps was valid and, Nettle J dissenting, that the prohibition of donations by and from property developers was also valid. As the joint judgment observed at [45]: 215

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Equality of opportunity to participate in the exercise of political sovereignty is an aspect of the representative democracy guaranteed by our Constitution. In ACTV, the law which was struck down was inimical to equal participation by all the people in the political process and this was fatal to its validity. The risk to equal participation posed by the uncontrolled use of wealth may warrant legislative action to ensure, or even enhance, the practical enjoyment of popular sovereignty.

Their Honours held, surprisingly briefly having formulated such a long test, that the contribution caps satisfied the test. As to the ban on property developers, their Honours noted that there had been no less than eight reports from the Independent Commission Against Corruption and other bodies concerning problematic land development applications, and held that the law was a proportionate response to concerns of corruption which, in any case, did not interfere with the ability of the developers or any person “to communicate with another about matters of politics and government nor to seek access to or to influence politicians in ways other than those involving the payment of substantial sums of money” (at [93]). Gageler and Gordon JJ came to similar conclusions by addressing the Lange “appropriate and adapted” question. Nettle J, dissenting, conceded that there was real concern about potential corruption in connection with land approvals but remarked, at [241]: … to deny one section of donors the ability to make political donations while leaving others free to make them is both a significant restriction of the freedom of the prohibited donors to communicate their ideas about politics or government through the non-verbal means of making political donations and, logically, also a significant relative enhancement of the ability of non-prohibited donors to have their ideas about politics and government prevail.

He observed at [260] that a more appropriate response could be to require immediate disclosure of all donations, in a way that did not discriminate between donors. It seems that, as Gordon J had remarked in [311] cited above, the joint judgment’s method “does not yield in this case an answer any different from that reached by the accepted modes of reasoning”. It remains to be seen in further cases whether the expanded proportionality analysis commands support,14 or indeed whether it will make any significant difference to outcomes.

14.8 Application in specific situations Cases where the restricted communication was not primarily political [14.100] In some cases the challengers have tried to argue as if the implication leads to a general freedom of speech, rather like the US First Amendment. They have been 14 For a learned disquisition on the comparative advantages of a “proportionality” test or an “appropriate and adapted” test, and a tentative suggestion that an “intermediate-level rule” of “principled balancing” might be the solution, see Gageler J’s reasons at [138]–[151].

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reminded that it is restricted to discussions of politics and government policy. In APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322, APLA had tried to argue that restrictions on advertising legal services breached the freedom of political communication. The Court, Kirby J dissenting, held that the communications that were restricted were not about “government or political matters”. McHugh J observed that, read broadly, the restriction could stop the plaintiffs from publishing advertisements protesting about the restrictions themselves, but that it could be read down to avoid that consequence. Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 raised a similar issue. Derryn Hinch challenged his conviction under a law prohibiting the naming of sexual offenders who were being released into the community under extended supervision orders. Clearly direct breaches of the Act would not be about government or political matters, though, as French CJ conceded, at [50]: It may be … that there are occasions on which the use of the offender’s identity is directly relevant to a point to be made about public administration in relation to serious sex offenders generally. On that basis it may be accepted that s 42 has the capacity to burden political communication. Properly construed, however, the section is, in my opinion, reasonably appropriate and adapted to serve a legitimate end [the protection of the community and the rehabilitation of serious sex offenders] in a manner compatible with the maintenance of representative and responsible government provided for in the Constitution.

The other Justices agreed that the appeal should be dismissed. Tajjour v New South Wales [2014] HCA 35; (2014) 254 CLR 508 involved a challenge to s 93X of the Crimes Act 1900 (NSW), which made it offence to habitually consort with convicted offenders after receiving an official warning in relation to each convicted offender. The plaintiffs argued that this infringed the implied freedom of political communication. All Justices agreed that the section did inhibit the freedom, to a degree, as it was possible that on some occasions the offenders might be campaigning, for example, for the law to be repealed. However, Hayne, Crennan, Kiefel and Bell JJ held that the law was appropriate and adapted to the purpose of reducing crime, and that the effect on political discussion would be incidental. As Hayne J remarked at [91], the section: … does not prohibit the expression or dissemination of any political view or any information relevant to the formation of or debate about any political opinion or matter. Rather, the section prohibits some kinds of association between certain persons. It therefore limits the occasions on which political views and information can be formed, expressed or disseminated by or between those persons.

Gageler J read the section down by applying s 31 of the Interpretation Act 1987 (NSW) not to apply to situations where political discussions were occurring and Keane J reached the same result by interpreting the section in its context. Only French CJ held that the section breached the Lange test and could not be read down. 217

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Effect on the law of charitable trusts [14.110] The implied freedom had a “spin-off ” into a seemingly different area of law in Aid/Watch Incorporated v Commissioner of Taxation [2010] HCA 42; (2010) 241 CLR 539. The Commissioner had ruled that Aid/Watch, a group set up to monitor the effectiveness of Australian foreign aid programs, was not a charitable organisation because its aims were “political”. The Court declined to follow English cases that had held that that the law would “stultify itself ” if it were held that “it was for the public benefit that the law itself should be changed”.15 French CJ and Gummow, Hayne, Crennan and Bell JJ cited Lange and remarked at [45] that “[t]he system of law which applies in Australia thus postulates for its operation the very ‘agitation’ for legislative and political changes” that was traditionally seen as “stultifying”. Aid/Watch could claim charitable status.

Interpretation of validity of regulations and administrative decisions in the shadow of constitutional law [14.120] We saw in 8.70 that the High Court is increasingly willing to save laws from invalidity by applying an interpretive presumption of “constitutional conformity”, and that Coleman v Power involved a particularly strong application of this mode or interpretation. There are two related doctrines that apply to subordinate legislation and to administrative decisions. Both have been applied in recent cases where it was alleged that an Act impaired the freedom of political discussion. The first was Evans v New South Wales [2008] FCAFC 130; (2008) 250 ALR 33 (the World Youth Day case). Evans and others, who were planning to protest against the Pope’s visit, argued that regulations under the World Youth Day Act 2006 (NSW) impaired the freedom of political communication. The Full Court of the Federal Court (French, Branson and Stone JJ) held that they did not even need to consider the constitutional principle, and applied “the presumption that it was not the intention of Parliament that regulations would be made under the Act preventing or interfering with the exercise of the fundamental freedom of free speech”. A regulation that prohibited persons from causing “annoyance or inconvenience” was held not to be authorised by the regulations section of the Act, which made the standard provisions for the making of regulations that were “necessary or convenient for the carrying out of the Act”. Another regulation that prohibited the sale or distribution of “stationery” was held to refer to unprinted items that one might buy at a stationer’s, and not to printed items protesting against the Church’s repressive practices and beliefs. In Wotton v Queensland [2012] HCA 2; (2012) 246 CLR 1, Lex Wotton, who had been gaoled for participation in the Palm Island riot that followed the death of an indigenous man in police custody, challenged the imposition of conditions on his parole. The conditions prohibited him from attending a public meeting on the island without approval, and from receiving any payment from the media. The law also prohibited journalists from interviewing a “prisoner” without permission; “prisoner” was defined 15 Tyssen, The Law of Charitable Bequests, 1888.

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to include someone on parole. French CJ and Gummow, Hayne, Crennan and Bell JJ accepted at [26] that the implied freedom extended to “[t]he public discussion of matters relating to Aboriginal and Indigenous affairs, including perceived or alleged injustices” but held that the parole legislation had a legitimate end: “[T]he need to consider community safety and crime prevention through humane containment, supervision and rehabilitation of offenders”. Wotton’s appeal was dismissed, but the joint judgment also accepted a submission at [22] that: … whether a particular application of the statute, by the exercise or refusal to exercise a power or discretion conferred by the statute, is valid is not a question of constitutional law, [but] rather, the question is whether the repository of the power has complied with the statutory limits.

What was left unsaid here, but clearly implied, was that the statutory limits would be read subject to a presumption that the statute would not authorise an administrative body to do anything that breached a constitutional prohibition. It followed at [22] that: … if, on its proper construction, the statute complies with the constitutional limitation, … any complaint respecting the exercise of power thereunder in a given case, such as that in this litigation concerning the conditions attached to the Parole Order, does not raise a constitutional question, as distinct from a question of the exercise of statutory power.

Their Honours observed at [24]: It is no part of this dispute to canvass any question whether conditions (t) and (v) of the Parole Order should not have been included. That would be for agitation in other proceedings, in particular, proceedings under the Judicial Review Act.

That may be seen as a fairly clear hint to the Parole Board, and indeed to the Queensland courts, that they should be assiduous not to impose conditions on parolees that go beyond the legitimate ends of the parole system. The decision in Evans, and the qualifications expressed in Wotton, are perfectly traditional approaches in line with the cases noted at 13.60. However, the existence of the Lange/Coleman principles (now the McCloy principles) must surely act as a constant reminder that the more specific principles must be observed; it can be expected that the principles about the validity of regulations and administrative discretions will continue to be developed in the shadow of the higher principles of constitutional law.

14.9 Unexplored or partially-explored issues Conflict with secrecy requirements? [14.130] Parliaments across the country have enacted Freedom of Information legislation, and Queensland recently toughened its law and renamed it the 219

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Right to Information Act 2009, yet at the same time the Commonwealth and most States have; n

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laws that penalise public servants who reveal information that has come into their possession by virtue of their office; eg Crimes Act 1914 (Cth) s 70, Criminal Code (Qld) s 85; and codes of ethics (mandatory for all public sector bodies, for example, under the Public Sector Ethics Act 1994 (Qld)), that frequently contain a blanket prohibition on disclosing official information.

The Review of the Commonwealth Criminal Law (1991) discussed s 70, above, in its Final Report and observed, at para [25.12]: No distinction is drawn for the purposes of these provisions between information the disclosure of which may cause real harm to the public interest and information the disclosure of which may cause no harm whatsoever to the public interest.

The only amendment that has been made to s 70 since the review was one to remove sexist language. However, the regulation that Finn J criticised in Bennett has now been replaced by one that is drawn in much more balanced language (Public Service Regulations 1999 (Cth), reg 2.1) and that in itself may affect the application of s 70, which applies to information which it is an officer’s “duty not to disclose”. However, many public sector ethics codes (indeed, every single one that the author has seen) still prohibit disclosure in seemingly-absolute terms. Those who draft them should consider Finn J’s judgment and the more modern precedents and redraft accordingly, or they will quite possibly be held to be unconstitutional. There have also been suggestions that some applications of the law of contempt of Parliament may have to be modified in light of the implied freedom of communication.16

Freedom of association? [14.140] In both Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 (the Stolen Generations case) and Mulholland (above 14.40), the plaintiffs argued that their freedom of association had been impaired. In Kruger three Justices,17 and in Mulholland five Justices,18 recognised that freedom of association for purposes of political campaigning must exist as part of the constitutional freedom of political communication, but in each case those Justices held that the challenged law had not breached that freedom. In Mulholland the plaintiff had argued that the requirement that it must provide the 16 Enid Campbell, “Contempt of Parliament and the Implied Freedom of Political Communication” (1999) 10 Public Law Review 196. 17 Toohey J at 91, Gaudron J at 116 and McHugh J at 142. 18 McHugh J at [116]–[119]; Gummow and Hayne JJ at [150] (adopted by Heydon J at [366]); Kirby J at [286]–[291].

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names of 500 members was a breach of freedom of association and the right of privacy. McHugh J pointed out at [117]–[118] that the disclosure of names was “simply a condition of entitlement to registration and continued registration as a political party for the purposes of the Act”19 and in any event the names would not become available to the general public. The freedom of association can also gain some indirect protection from the traditional doctrines of constitutional law. As discussed in 34.50, the actual ground of South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1 was that the law was “enlisting” the judiciary as an accomplice in the implementation of executive decisions. However, a significant factor in the reasons was that the particular executive decision that was to be implemented by the Court would interfere with the freedom of association: see French CJ at [3] and [31], Hayne J at [213]–[216]. This is consistent with the approach to characterisation of Commonwealth laws noted above at 13.60. However, it cannot be taken too far; apart from the freedom to associate for the purpose of political campaigning, there is no general freedom of association in the Constitution. In Tajjour, above, and Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181, it was argued that consorting laws applied to members of declared criminal gangs were a breach of the freedom of association. The plaintiffs were reminded that “[a]ny freedom of association implied by the Constitution would exist only as a corollary to the implied freedom of political communication” (Wainohu at 230, [112]) and since the laws involved no breach of that primary freedom, there could be no breach of the derivative one.

Right to a full and informed choice when voting [14.150] It may be noticed that several of the cases discussed in this Chapter — Langer, Muldowney and Mulholland — were at least as much about the actual rules of conduct of elections as about the right of parties and the people to communicate with each other. They were argued, without much plausibility, as cases about political communication because the direct derivation of the right to vote from the same sections — ss 7 and 24 — had not yet been announced by the High Court. It may be that since the decisions in Roach v Electoral Commissioner [2007] HCA 43; (2007) 233 CLR 162 and Rowe v Electoral Commissioner [2010] HCA 46; (2010) 243 CLR 1 (to be discussed in 15.50 and 15.60), arguments in future cases of this type may be focussed as much on the right of the voters to actually make a choice as on the right to have that choice informed by public debate (and they will therefore belong in Chapter 15 rather than this Chapter). 19 This can be contrasted with National Association for the Advancement of Colored People v Alabama 357 US 449 (1958) in which an Alabama law which demanded that the NAACP should provide its membership lists had been enacted as part of a blatant attempt by the State to ban the Association and shut down its activities. It was held unconstitutional, as a breach of the due process and free speech clauses (14th and 1st Amendments).

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Does the freedom extend to homophobic remarks? Even if made by an Army Officer? [14.160] Bernard Gaynor, a Major in the Army Reserve, made a series of homophobic remarks in various media while not on duty; he once tweeted “I wouldn’t let a gay person teach my children and I am not afraid to say it” and then issued a series of press releases criticising the Defence Force’s participation in the Gay Mardi Gras, accusing it of “sharing the road with pimps, prostitutes and purveyors of moral decadence”. He was dismissed for a breach of military rules. In Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370; (2015) 331 ALR 644, Buchanan J ruled that the dismissal was unlawful, as the comments were protected by the freedom of communication, and the Defence Chief ’s action was disproportionate to the power given to him by the regulations. At the time of writing, an appeal to the Full Federal Court has been heard but not decided.

Limitation of power or source of rights? [14.170] The remark in Lange that the implication does not confer personal rights on individuals, but simply limits government power, was cited above at 14.40. The point has often been repeated, for example, by Gummow and Hayne JJ in Mulholland at [182], where their Honours contrasted the Australian doctrine with the right to damages for breach of constitutional rights allowed under the Bivens20 doctrine in American law, and again more recently in McCloy. It seems that their Honours have a fear that people will try to use the freedom as a “positive” right (or a “claim right” in Hohfeld’s language).21 Indeed the plaintiff did just that in McClure v Australian Electoral Commission [1999] HCA 31; (1999) 73 ALJR 1086; 163 ALR 734, in which an unsuccessful Senate candidate argued that for the voters to be fully informed, the media should have given him more publicity! But surely if one can sue (or file a defence) to prevent a law from impinging upon one’s freedom of action, one has, to that extent, a right — a negative right, or in Hohfeld’s language a “privilege”.22 The question is simply how far the rights can logically extend. Of course, one logical way of analysing the doctrine is that since it is derived from the necessity of the voters being able to make not just a choice but an informed choice, the primary right is the right to receive information and the right to impart it is parasitic upon that — but they can still, it is argued, be seen as rights. The more comprehensive rejection of the notion of implied rights is reminiscent of the early cases on the doctrine of promissory estoppel; in cases such as Combe v Combe [1951] 2 KB 215 it had been said that it could be used as “a shield but not a sword” but in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 this limit was 20 Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics [1971] USSC 133; 403 US 388 (1971). 21 As elaborated in Wesley N Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, Yale UP, 1923 (extracted in many Jurisprudence texts). 22 Others, eg Glanville Williams in (1956) Columbia LR 1129, have argued that the better word to fit this concept is “liberty” which is, after all, a synonym of the High Court’s preferred word, freedom.

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decisively rejected and the respondents were allowed to use an estoppel to support their action as plaintiff. It would be entirely consistent with the usual process of incremental development of the law if some day in the not-too-distant future, the implied freedom were to become the basis of a constitutional right of access to government information; knowing what the government has been doing (and trying to conceal) makes our choice on election day better informed. To extend it to a Bivens-type right to monetary damages would, it is conceded, involve a rather large step, but perhaps that step too may be taken some time in the more distant future.

ISSUE FOR DISCUSSION Soon after the decision in Coleman v Power (14.50, above), the Queensland Parliament repealed the old “VGO” Act and replaced it with the Summary Offences Act 2005. Section 7 of the old Act, however, was replaced by an only-slightly-modified new version. Section 6 of the new Act provides: 6 Public nuisance (1) A person must not commit a public nuisance offence. Maximum penalty — (a) if the person commits a public nuisance offence within licensed premises, or in the vicinity of licensed premises — 25 penalty units or 6 months imprisonment; or (b) otherwise — 10 penalty units or 6 months imprisonment. (2) A person commits a public nuisance offence if — (a) the person behaves in — (i) a disorderly way; or (ii) an offensive way; or (iii) a threatening way; or (iv) a violent way; and (b) the person’s behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public. (3) Without limiting subsection (2) — (a) a person behaves in an offensive way if the person uses offensive, obscene, indecent or abusive language; and (b) a person behaves in a threatening way if the person uses threatening language. (4) It is not necessary for a person to make a complaint about the behaviour of another person before a police officer may start a proceeding against the person for a public nuisance offence.

Is this constitutional, at least without being read down according to the “principle of constitutional conformity”? Don’t think of cases where drunken bogans are being seriously violent, threatening and offensive and obviously ought to be subject to the criminal law; think of a case where a demonstrator may be saying something, or holding 223

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a placard that states something, that will give offence to a politician or a police officer, or may threaten a politician with removal from office.

FURTHER READING William G Buss, “Alexander Meiklejohn, American Constitutional Law, and Australia’s Implied Freedom of Political Communication” (2006) 34 Fed L Rev 421 Richard Jolly, “The Implied Freedom of Political Communication and Disclosure of Government Information” (2000) 28 Fed L Rev 4 Hon Sir Anthony Mason, “The Use of Proportionality in Australian Constitutional Law” (2016) 27 Public Law Rev 109 Dan Meagher, “What Is ‘Political’ Communication? The Rationale of the Implied Freedom of Political Communication” (2004) 28 MULR 438 Greg Taylor, “Why Should the Common Law be Only Indirectly Affected by Constitutional Guarantees?” (2002) 26 MULR 623 Anne Twomey, “Constitutional issues concerning the validity of NSW election funding laws”, seminar paper at http://www.gtcentre.unsw.edu.au/sites/gtcentre.unsw.edu. au/files/twomey_paper_-_errn_sem_-_election_funding_4.pdf Murray Wesson, Comment: Crafting a Concept of Deference for the Implied Freedom of Political Communication (2016) 27 Public Law Rev 101

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PART D THE COMMONWEALTH PARLIAMENT AND ITS POWERS Chapter 15. The Choice of Members by the People and the Right to Vote Chapter 16. The Law-making Process Chapter 17. Sources and Interpretation of Commonwealth Legislative Powers Chapter 18. Business-Regulation Powers — Trade and Commerce, Corporations, Other Powers Chapter 19. Nation-state Powers — Internal regulation of government, External Affairs, Defence, National Security, Immigration, Aliens Chapter 20. Social Powers — Marriage and Divorce; Pensions, Benefits and Health Services; People of Any Race

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Chapter 21. Financial Powers — Tax, Spending and Grants to the States Chapter 22. A Power and a Limit — Acquisition of Property on Just Terms Chapter 23. “Federal” Limitations on Commonwealth Power Chapter 24. Express, But Weak, Protections of Human Rights by the Constitution Chapter 25. Federal Judicial Power I; Judicial Power Cannot be Given to Non-Judicial Bodies Chapter 26. Federal Judicial Power II; Limits on Parliament’s Power to Give Non-Judicial Power to Courts and to Regulate their Proceedings

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CHAPTER 15

The Choice of Members by the People

15.1 Context and overview [15.10] In the previous Part, we considered principles that apply equally to Commonwealth and State Parliaments. Apart from the implied freedom discussed in Chapter 14, they depend as much on common law as on the written Constitution. Now we come to the law that is wholly governed by the written Constitution — its text or clear implications from it. All chapters in this Part are specifically about the Commonwealth Parliament; occasionally, there will be points of comparison with State parliaments but that will be made clear. In this chapter, we consider the rules about the “small-c constitution” of the Parliament, in the sense of how it is made up; that is, the rules about the numbers of Members of the two Houses, the right to vote and the right to be a candidate or Member. In the next chapter, we will consider the legislative process, and then the ten chapters that follow spell out the limits on the legislative powers of the Commonwealth Parliament. State Parliaments, of course, also have rules about their “small-c constitutions”, but they are not stated in rigid constitutions, although some specific rules may be protected by “manner and form” provisions. They will be mentioned in Chapter 27, and limits on their powers created by the Commonwealth Constitution will constitute the rest of Part E.

15.2 A constitutional framework, leaving the details to be prescribed by statute [15.20] The Constitution does not prescribe all the details of the electoral system for the Commonwealth Parliament, but it does specify some important “boundary conditions”. Section 1 provides that it shall consist of the Queen, the Senate and the 227

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House of Representatives. In this formal sense, the Queen is part of the Parliament; s 1 reminds us of the principle noted in 11.30 that the law cannot be changed except by an Act passed by both Houses and given assent by the Queen’s representative. However, there is another, more usual, sense in which the “Parliament” is just the two Houses; it is common to speak of a Bill having passed through the parliamentary stages before being sent to Government House for assent, and the “privileges of Parliament” referred to in s 49 do not extend to the Queen or Governor-General; indeed in their English origin they were mainly privileges against oppression by the King. (See also Barwick CJ’s comments in Cormack v Cope, noted in 16.60.) As to the composition of this narrower “Parliament”, s 7 prescribes that the numbers of Senators from each original State must be equal and the number must be at least six, but that the Parliament can change the number. (There are still no States except original States. Parliament increased the number of senators per State to 10 in 1949 and to 12 in 1983). The senators’ term is six years, and except after double dissolutions (see Chapter 16) only half the senators for each state (ie, currently six) are elected every three years. Section 24 provides that the total number of Members of the House of Representatives (MHRs) shall be “as nearly as practicable”, twice the number of Senators, and that they shall be apportioned between the States in proportion to the numbers of their people (not their electors, their people), subject to a minimum of five per State. Their maximum term is three years, but the House can be dissolved early (on the advice of the Prime Minister, as discussed in Chapter 9). Section 27 provides, somewhat redundantly, that the Parliament can make laws changing the number of MHRs, but the effect of s 24 is that whenever the number of Senators per State is increased, the effect automatically flows through to increase the number of MHRs. Section 122 provides that the Parliament may provide for the representation of a Territory in either House “to the extent and on the terms which it thinks fit”. Both ss 7 and 24 provide that the Senators and MHRs shall be “directly chosen by the people”. Subject to those constraints, the Parliament is given power to enact electoral laws. As to the House of Representatives, the Parliament’s power to prescribe the division of States into electoral districts, eligibility for voting, and eligibility to be a Member comes from ss 29, 30, and 34 respectively. Each of these is an “until the Parliament otherwise provides” provision, combining interim arrangements for the first election with a grant of power to Parliament in respect of the topic. Section 7 prescribes that until the Parliament otherwise provides, each State shall be one electorate for the Senate; it has never provided otherwise. Sections 8 and 16 prescribe that the eligibility to vote for senators and to be a senator shall be the same as for the House of Representatives. Any laws made as to the qualifications to be a Member of either House are subject to an overriding list of disqualifications prescribed in s 44. As to the mechanics of the voting system, s 9 gives power to make laws for the method of choosing senators, but so that the method shall be uniform for all the States. Section 31, under an utterly misleading heading that simply says “Application of State laws”, is drafted so that at first glance it can look like a merely transitional provision for 228

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House of Representatives elections, but if you read its crucial words in conjunction with para 51(xxxvi) its ongoing meaning is: The Parliament shall have power, subject to this constitution, to make laws for the peace, order and good government of the Commonwealth with respect to … elections in a State of Members of the House of Representatives

Therefore, the heading should more logically say “Electoral laws”. Read literally, ss 29–31 could authorise the making of different electoral laws for each State, but in the Conventions the drafters constantly referred to the future “uniform franchise”, and it has always been taken for granted that the franchise and all other aspects of electoral law would be uniform. The Parliament has enacted various Acts under the above sections, now all consolidated into the Commonwealth Electoral Act 1918 (Cth) (except for the Representation Act 1983 (Cth) which provides for 12 senators from each State). In brief, it provides: n

n n

n

n

All citizens over 18 (and other British subjects who were already on the roll on 26 January 1984)1 have a right and a duty to enrol and to vote for both Houses, subject to disqualifications for being of “unsound mind”, having been convicted of treason or treachery, or serving a sentence of three years or longer (s 93); Citizens over 18 are qualified to be elected as a Senator or MHR, subject to being eligible to be an elector and to the Constitutional disqualifications in s 44 (s 163); The number of MHRs for each State is recalculated, based on the estimated populations of the States, one year after the previous election (ss 46–48, amended in response to McKellar’s case, below); Each State is redistributed into electoral divisions for the House of Representatives every seven years, or when the number of Members for the State has been changed, or when the enrolment of more than one-third of the divisions is more than 10 per cent above or below the average for the State (s 59). As far as practicable, based on best guesses of future demographic change, the new divisions are to be drawn so that they will have equal numbers of electors, within 3.5 per cent, at a date three-and-ahalf years after the distribution is conducted (s 66); One MHR is elected for each electoral division by a system of “preferential voting” whereby voters must number all boxes on the ballot paper (s 240), and if no candidate gets more than half the votes, the candidate with the lowest number is eliminated and his/her preferences are distributed to the continuing candidates, and so on until one candidate has more than half the votes, or is the leading candidate of the last two left (s 274). (In other countries, less accustomed to full voter choice and sophistication in their electoral systems, this is known as “Instant Runoff ”.)

1 British subjects who were on the roll in 1984 but have not been naturalised may still have the right to vote but they can be deported under the Migration Act 1958 (Cth); see 19.170. Unless they have both been naturalised and have renounced their other citizenship they are ineligible to stand for the Commonwealth Parliament; see 15.100, below.

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n







Senators are elected by the “Hare-Clark” or Single Transferable Vote (STV)2 method of proportional representation: – Voters are given a choice of numbering at least 12 candidates’ preference boxes below a line on the paper, or numbering at least one party’s party box above the line (s 239); in the latter case they are taken to have voted for the party’s candidates from top to bottom as listed on the ballot paper (s 272). If they vote above the line they can then give further preferences to other parties, but the vote is actually formal if they “just vote 1” (s 269). – A quota for election is determined by dividing the total number of votes by the number of senators to be elected plus one, and any candidate who has received the quota (normally one-seventh or 14.286 per cent of the votes under the current rules where we elect six at a time) is declared elected. (You can see that this formula makes sense, by considering what would happen if only one senator was to be elected; then the quota would be 50 per cent and this would work exactly like preferential voting.) – Then the elected candidates’ votes are notionally treated as if some of them have constituted the candidate’s quota and the rest constitute a “surplus”, and the surplus votes are transferred to the continuing candidates, and the numbers are again tested against the quota. This means that where the lead candidate for a party has gained two or three quotas, and voters have followed the party line, the party’s next one or two candidates will be elected on surpluses. If vacancies are still left after the distribution of all surpluses, continuing candidates are eliminated from the bottom up, as in preferential voting, and their preferences distributed until all vacancies are filled (s 273). – Though this system is sometimes ridiculed as the “March Hare” system by those who have struggled with mathematics all their lives, it produces an extremely fair result; the numbers of elected candidates are as closely proportional to party support as is possible when only a finite — indeed, quite small — number is being selected to represent the widely divergent views in the community. The filling of the last place, however, can depend on random factors such as who is eliminated before whom.3

2 Some purists insist that Hare-Clark applies only to systems where voters must vote for individual candidates and have no “above the line” party boxes. As voters do at least have the option of doing this when electing the Senate, the author is happy to call the system a Hare-Clark system. 3 Until the 2016 election, it also depended on preference deals between the parties, as the law had allowed “Group Voting Tickets” (GVTs) to be registered, and had provided that if a voter voted above the line in a party box, the vote was deemed to follow the preferences shown on the GVT — ie, the voter allowed his/her allocation of preferences to be made by a party official. When this system was abolished in favour of a system where voters could allocate their own preferences even above the line, Senator Day challenged the amending Act’s validity in the High Court. His main argument was that since the above-the-line and below-the-line options were now referred to in the Act as two “methods” of voting rather than “ways”, the requirement of s 9 for a uniform method was breached. He lost; see Day v Australian Electoral Officer for the State of South Australia [2016] HCA 20; (2016) 331 ALR 386 and John Pyke, “Comment: Senate Voting Rules and the Commonwealth Electoral Amendment Act 2016” (2016) 27 Public Law Rev 94. Ironically, he won a seat anyway, and then resigned it when he ran into financial problems.

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Though most of the above details are now generally accepted as fair by the major parties, many of them could be changed by Parliament if a majority of both Houses voted in favour. In the rest of the chapter we will consider the case law that interprets the “boundary conditions” for electoral law, and has sometimes limited Parliamentary attempts to diverge from the current rules.

15.3 Frequency and accuracy of reapportionment between States [15.30] In Attorney-General (Cth); Ex rel McKinlay v Commonwealth [1975] HCA 53; (1975) 135 CLR 1, the “relator’s” principal argument was that the electoral law was invalid because it did not provide for “one vote, one value”. As discussed in 15.70 below, this was rejected. However, South Australia also challenged provisions of the Representation Act 1905 (Cth) which provided that recalculation of the apportionment of Members between the States was to be done after each census (one is held every five years), and that the new number of Members for any State was not to come into effect until the House of Representatives had approved a new distribution of the State into divisions. Gibbs J held at [13]–[15]: … The relevant words of s 24 of the Constitution require that the “number of Members chosen in the several States shall be” in the requisite proportion. These words naturally suggest that the proportion is to exist on each occasion when the Members are chosen, ie each time an election is held. To ensure that this requirement is observed, it appears necessary that a new determination should be made within a reasonably short time before every election … This would present no difficulty if the House of Representatives continued for its normal term of about three years … The constitutional requirement must be given effect, notwithstanding that on some occasions statistics other than those provided by the census may have to be used in ascertaining the numbers … Consistently with the opinions I have expressed it must be held that ss 3 and 4 of the Representation Act are invalid because their effect is to require a determination to be made only when a census is taken and not before every regular election.

Stephen and Mason JJ expressly agreed, and Barwick CJ expressed similar reasons. McTiernan and Jacobs JJ held that reapportionment after each census was valid, but only on condition that the census continued to be taken at five-yearly intervals. Two years later in Attorney-General (NSW); Ex Rel McKellar v Commonwealth [1977] HCA 1; (1977) 139 CLR 527, another aspect of the Representation Act was held invalid. As noted above, s 24 of the Constitution provides that the number of MHRs shall be “as nearly as practicable”, twice the number of Senators, and that they shall be apportioned between the States in proportion to the numbers of their people, subject to a minimum of five per State. It then goes on to provide: The number of members chosen in the several States shall be in proportion to the respective numbers of their people, and shall, until the Parliament otherwise provides, be determined, whenever necessary, in the following manner:

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(i) a quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of the senators; (ii) the number of members to be chosen in each State shall be determined by dividing the number of the people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if on such division there is a remainder greater than onehalf of the quota, one more member shall be chosen in the State.

This method produces a total which is, on average, exactly twice the number of senators, but because of “rounding off ” errors can vary by one or two or even three either way. The reapportionment of seats between States while attempting to keep the total constant, to maintain the “nexus” between the numbers of Members of the two Houses, creates a political problem — when a State’s entitlement goes down there will have to be a redistribution and a division or divisions will disappear, and the Members who are in danger of losing their seats will try to oppose the redistribution. So in 1964, the Representation Act had been amended to vary the s 24 formula, quoted above, to provide that, if on performing the division there was any remainder, one more Member was to be chosen. The argument in McKellar’s case was mainly about the issue, noted in the next section, as to whether the Members and senators for the Territories should be counted in doing the s 24 calculation, but the “round up any remainder” amendment came under fire as well. The Court unanimously held that it was invalid. Barwick CJ remarked at 535: No evidence was tendered as to the mathematical effect of this provision in securing or denying the attainment of the ultimate situation of a House of Representatives composed as nearly as practicable of twice as many members as the number of senators. But, in my opinion, the Court is not so devoid of mathematical knowledge as to be unable to conclude that if a member is added for each remainder, however small, the result will not necessarily be a number of members as nearly as practicable twice the number of senators.

Gibbs J mentioned that formulas that would produce a more exact total than the provisional method provided in s 24 were well known, but held that, since that method was specified in the Constitution, it should be regarded as a measure of what the drafters regarded as practicable. However, the amended method would clearly produce a worse deviation. It was clear that the amended method “has the result that the number of Members of the House of Representatives is not as nearly as practicable twice the number of the senators”. The other Justices agreed. The Parliament quickly amended the law to comply with these decisions, and in particular Gibbs J’s suggestions in McKinlay. (The separate provisions of the Representation Act, except for the numbers of senators, have now been incorporated in the Commonwealth Electoral Act 1918 (Cth).) As noted above, the first steps in a reapportionment now occur one year after the current House has first met. Further, when redistributions of divisions within a State occur, the recommendations of the Electoral 232

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Commission automatically become law; they cannot be varied or rejected by a resolution of the House. Though the decisions in McKinlay and McKellar may not involve the most weighty points of constitutional law, they were an early reminder of the fact, since reinforced in Roach and Rowe below, that the Constitution is supreme and that the Members of Parliament cannot meddle with electoral law to suit their own interests and save their own seats.

15.4 Representation of Territories [15.40] Section 122 provides that: “The Parliament may make laws for the government of any territory … and may allow the representation of such territory to the extent and on the terms which it thinks fit”. The Northern Territory was given a Member of the House of Representatives in 1929, and the Australian Capital Territory in 1949, but the Members did not have full voting rights till 1966. The Senate (Representation of Territories) Act 1973 (Cth) — one of the Acts passed at the 1974 joint sitting discussed in Chapter 16 — gave two senators to each of the major Territories, as apparently authorised by s 122. However, s 7 of the Constitution provides that: “The Senate shall be composed of senators for each State”. Clearly “composed of ” suggests, though it does not absolutely dictate, exclusivity, and there is an apparent conflict between the two sections, so the validity of the territorial senators law was promptly challenged in Western Australia v Commonwealth [1975] HCA 46; (1975) 134 CLR 201. A majority of four held the Act valid. Mason J reasoned at [18]–[21]: It was urged that s 7 of the Constitution exhaustively defines the composition of the Senate in providing that it ‘shall be composed of senators for each State, directly chosen by the people of the State’, each of whom shall have one vote (s 23) and serve for a term of six years … 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 by s 122 to ‘allow the representation of such Territory in either House of the 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. To so construe the power is to deprive it of significant content, notwithstanding the wide and general words by which it is conferred. The section would then admit only of representation by a person who was not a Member of the House and who did not enjoy the rights of a member to vote. The attribution of such a restricted concept of “representation” to s 122 would stand in stark contrast with the concept of “representation” in the complete sense of membership which is evident in s.121 [the new States section].

McTiernan, Jacobs and Murphy JJ agreed. Barwick CJ, Gibbs and Stephen JJ dissented. After McTiernan J retired from the Court and was replaced by Aickin J, the Act was challenged again. In Queensland v Commonwealth [1977] HCA 60; (1977) 139 CLR 585, Barwick CJ again held that the Act was invalid, and was joined in this opinion by Aickin J. 233

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However, Gibbs and Stephen JJ held that the earlier decision ought not to be overruled. In Gibbs J’s words at [10]: As the plaintiffs have urged, the decision in Western Australia v The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 was recently given, and by a narrow majority. It has not been followed in any other case. It involves a question of grave constitutional importance. But when it is asked what has occurred to justify the reconsideration of a judgment given not two years ago, the only possible answer is that one member of the Court has retired, and another has succeeded him. It cannot be suggested that the majority in Western Australia v The Commonwealth failed to advert to any relevant consideration, or overlooked any apposite decision or principle.

His Honour then discussed the factors that might make it acceptable for the Court to reverse its earlier ruling (discussed in 8.30) and held that none of them applied. Mason, Jacobs and Murphy JJ held to their earlier opinions. The Territories retained their senators. Another kind of doubt had been thrown on the status of the Territories within the federation in McKellar’s case, above. As noted above, the formula for apportioning MHRs starts by calculating a quota by dividing “the number of the people of the Commonwealth” by twice the number of the senators. This part of the provisional formula in s 24 had been copied into the Representation Act 1905 (Cth). When the territorial senators were introduced, the Representation Act was amended to provide that “the people of the Commonwealth” did not include the people of a Territory, and to divide it by “twice the number of the Senators for the States”. This was challenged in McKellar along with the “round up all remainders” principle, but the court rejected this aspect of the challenge unanimously. Barwick CJ said, at [5]: The people of the Commonwealth are the people of the States to whom s 3 of the covering clauses refers and who were united in a federal Commonwealth. They did not, nor could they, include the people of territories surrendered to the Commonwealth or placed by the Queen under the authority of the Commonwealth or otherwise acquired by the Commonwealth. The very terms of s 122 juxtapose the Commonwealth — that federal Commonwealth composed of the people of the States — to the territories possessed by that Commonwealth.

Murphy J simply said, at [3]: “The two-to-one nexus of representatives and senators in s 24 is between the representatives of the States and the senators for the States.” So then, and to this day, the number of the MHRs was and is calculated by a formula that starts with the 72 State senators and aims at producing 144 MHRs, and then the four Territorial senators and, currently, four Territorial MHRs are added on. It may be doubted whether this is consistent with the clear aim of s 24 to produce a 2:1 ratio between the Houses; at present the House has rather less than twice the number of senators, but the creation of more territorial MHRs could swing the ratio the other way. As more recent cases discussed in Chapter 36 have rejected the idea that the Territories are to be treated 234

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as an exception to general constitutional principles (in fact Barwick CJ himself had said so in Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226), the authority of this aspect of McKinlay can now be regarded as doubtful, to say the least.

15.5 Recent recognition of a prima facie right to vote [15.50] As noted above, s 30 gives Parliament the power to “otherwise provide” as to the qualifications for voting, and the rather opaque s 31 effectively provides that: The Parliament shall have power, subject to this constitution, to make laws for the peace, order and good government of the Commonwealth with respect to … elections in a State of members of the House of Representatives

It was certainly assumed during the drafting that the first Electoral Act would provide for a broad franchise including votes for women, but it was also assumed that the Parliament had a great deal of discretion as to the voting rules and mechanisms, eligibility to vote and so on. However, since 1992 the High Court has paid more attention to the phrase “directly chosen by the people” which appears in both ss 7 and 24 of the Constitution. The first development was the holding, discussed in the previous chapter, that a real choice must be an informed choice, and that therefore the Constitution guaranteed the freedom of communication on political and governmental matters. It therefore started to seem more likely that inferences from the same phrase might limit the Parliament’s discretion in making laws that affect the right to vote. This has turned out to be true. It is noteworthy that the majority Justices in the two cases discussed below showed no reluctance to use the phrase “right to vote” or “right to enrol”,4 quite unlike the continued insistence, noted in the previous chapter, that the freedom of political discussion does not confer rights on individuals but merely limits legislative power. After a concerted campaign by a group called the HS Chapman Society, alleging (with little or no evidence) that fraudulent enrolment and voting was commonplace and could affect the results of elections, Parliament enacted the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth). Its opponents claimed that the allegations of fraud were grossly exaggerated, and that the aim of the amendments was to make enrolment more difficult for prisoners and young people, who were thought to be more likely to vote for Labor, the Greens or independents. It contained the two provisions which were challenged in the cases below. The first case, Roach v Electoral Commissioner [2007] HCA 43; (2007) 233 CLR 162 involved the rights of prisoners to vote. Under earlier versions of the law, prisoners had been disqualified while serving a sentence of one year, then five years, and most recently three years. The 2006 Act extended the disqualification to anyone serving any sentence 4 For example, Gleeson CJ in Roach at 174, [7]; French CJ in Rowe repeatedly, especially in paras [1]–[2] and [9]–[13], Hayne J, although dissenting, in Rowe at [212], Crennan J in Rowe at [328]–[331], [368] and [381] among others.

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of imprisonment at the time of the election. Vicki Roach, who was studying law in gaol while serving a six-year sentence, challenged the validity of the disqualification. She partly succeeded. Gleeson CJ held, at [6]–[25]: The combined effect of ss 51(xxxvi), 8 and 30 is that Parliament may make laws providing for the qualification of electors. That Australia came to have universal adult suffrage was the result of legislative action. Universal suffrage does not exclude the possibility of some exceptions. The Oxford English Dictionary says that the term means ‘the right of all adults (with minor exceptions) to vote in political elections.’ Among countries which now have universal suffrage there are observable differences in the exceptions that are accepted, but there is also a broad agreement as to the kinds of exception that would not be tolerated. Could Parliament now legislate to remove universal adult suffrage? If the answer to that question is in the negative (as I believe it to be) then the reason must be in the terms of ss 7 and 24 of the Constitution, which require that the senators and Members of the House of Representatives be “directly chosen by the people” of the State or the Commonwealth respectively. In 1901, those words did not mandate universal adult suffrage. … In McKinlay, McTiernan and Jacobs JJ said that “the long established universal adult suffrage may now be recognized as a fact”. …, and that anything less could not now be described as a choice by the people. I respectfully agree. As Gummow J said in McGinty v Western Australia, we have reached a stage in the evolution of representative government which produces that consequence. I see no reason to deny that, in this respect, and to this extent, the words of ss 7 and 24, because of changed historical circumstances including legislative history, have come to be a constitutional protection of the right to vote. That, however, leaves open for debate the nature and extent of the exceptions. The Constitution leaves it to Parliament to define those exceptions, but its power to do so is not unconstrained. Because the franchise is critical to representative government, and lies at the centre of our concept of participation in the life of the community, and of citizenship, disenfranchisement of any group of adult citizens on a basis that does not constitute a substantial reason for exclusion from such participation would not be consistent with choice by the people. … Since 1902, when the Commonwealth Parliament first legislated with respect to the franchise, the legislation always provided that, along with persons of unsound mind and persons attainted of treason, prisoners of certain kinds were not entitled to vote. The rationale for excluding persons of unsound mind is obvious, although the application of the criterion of exclusion may be imprecise, and could be contentious in some cases. The rationale is related to the capacity to exercise choice. People who engage in acts of treason may be regarded as having no just claim to participate in the community’s self-governance. … It is consistent with our constitutional concept of choice by the people for Parliament to treat those who have been imprisoned for serious criminal offences as having suffered a temporary suspension of their connection with the community, reflected at the physical level in incarceration, and reflected also in temporary deprivation of the right to participate by voting in the political life of the community. It is also for Parliament, consistently with the rationale for exclusion, to decide the basis upon which to identify incarcerated offenders whose serious criminal wrongdoing warrants temporary suspension of a right

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of citizenship. I have no doubt that the disenfranchisement of prisoners serving three-year sentences was valid, and I do not suggest that disenfranchisement of prisoners serving sentences of some specified lesser term would necessarily be invalid. The specification of a term reflects a judgment by Parliament which marks off serious criminal offending, and reflects the melancholy fact that not all sentences of imprisonment necessarily result from conduct that falls into that category. … The adoption of the criterion of serving [any] sentence of imprisonment as the method of identifying serious criminal conduct for the purpose of satisfying the rationale for treating serious offenders as having severed their link with the community, a severance reflected in temporary disenfranchisement, breaks down at the level of short-term prisoners. They include a not insubstantial number of people who, by reason of their personal characteristics (such as poverty, homelessness, or mental problems), or geographical circumstances, do not qualify for, or, do not qualify for a full range of, non-custodial sentencing options. At this level, the method of discriminating between offences, for the purpose of deciding which are so serious as to warrant disenfranchisement and which are not, becomes arbitrary. The step that was taken by Parliament in 2006 of abandoning any attempt to identify prisoners who have committed serious crimes by reference to either the term of imprisonment imposed or the maximum penalty for the offence broke the rational connection necessary to reconcile the disenfranchisement with the constitutional imperative of choice by the people. I would uphold the challenge to the validity of s 93(8AA). I have already indicated that in my view the previous legislation was valid. For the reasons given in the joint reasons it continues to apply.

In a joint judgment, Gummow, Kirby and Crennan JJ came to the same conclusion. As it was an amending Act that made the law invalid, the law reverted to the previous version under which those serving three years were disqualified. (So Roach scored a tremendous symbolic victory but did not secure her own right to vote.) Hayne and Heydon JJ dissented. [15.60] Roach’s case had been brought in the lead-up to the 2007 election. The Labor Party won that election, but did not have a majority in the Senate, so they were not able to repeal other aspects of the 2006 amendments. One of these amendments had been a change to the closing date for enrolments; since 1983 the rolls had closed seven days after the issue of the writs for the election, but this was amended so that the rolls would close at the end of the working day once the writs were issued. A deadline for notifying a change of enrolment from one address to another was also shortened. If all voters strictly complied with their obligations to enrol within a month of their 18th birthday, and to notify changes of address within a month, this would have caused little difficulty, but with the human tendency to leave things to the last minute, this meant that somewhere close to 100,000 people may have been disfranchised. On the seventh day after the close of the rolls for the 2010 election, Rowe, a voter who had not enrolled in time, and Thompson, who had not notified his change of address in time, filed a challenge to the validity of the 237

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amendment. In Rowe v Electoral Commissioner [2010] HCA 46; (2010) 243 CLR 1, the challenge was upheld by a majority of 4:3, just in time for the Electoral Commission to process all the late enrolment applications before the election. The majority (French CJ, Gummow, Bell and Crennan JJ) confirmed the ruling in Roach that ss 7 and 24 established representative democracy as “constitutional bedrock”. As French CJ said, at [18]–[19]: The content of the constitutional concept of “chosen by the people” has evolved since 1901 and is now informed by the universal adult-citizen franchise which is prescribed by Commonwealth law. The development of the franchise was authorised by ss 8 and 30 of the Constitution, read with s 51(xxxvi). Implicit in that authority was the possibility that the constitutional concept would acquire, as it did, a more democratic content than existed at Federation. That content, being constitutional in character, although it may be subject to adjustment from time to time, cannot now be diminished. In Attorney-General (Cth); Ex rel McKinlay v The Commonwealth its evolution was linked in the judgment of McTiernan and Jacobs JJ to “the common understanding of the time on those who must be eligible to vote before a Member can be described as chosen by the people of the Commonwealth”. Their Honours said: For instance, the long established universal adult suffrage may now be recognized as a fact and as a result it is doubtful whether, subject to the particular provision in s 30, anything less than this could now be described as a choice by the people. The term “common understanding”, as an indication of constitutional meaning in this context, is not to be equated to judicial understanding. Durable legislative development of the franchise is a more reliable touchstone. It reflects a persistent view by the elected representatives of the people of what the term “chosen by the people” requires.

As to the particular provisions being challenged, Crennan J observed, at [384]: … the impugned provisions have not been shown to be necessary or appropriate for the protection of the integrity of the Rolls, as that object was advanced by the Commonwealth. First, this is because the Australian Electoral Commission had no difficulty in processing the volume of late enrolments which occurred with the previous seven day cut-off period. Secondly, to seek to discourage a surge of late claims for enrolment by disentitling or excluding those making them constitutes a failure to recognise the centrality of the franchise to a citizen’s participation in the political life of the community. Thirdly, the main reason put forward by the Commonwealth as the justification for the impugned provisions — namely, that they will operate to protect the Rolls from the risk of, or potential for, systematic electoral fraud — is to protect the Rolls from a risk or potential which has not been substantiated to date. Accordingly, the justification put forward to support the impugned provisions does not constitute a substantial reason, that is, a reason of real significance, for disentitling a significant number of electors from exercising their right to vote for parliamentary representatives in the State and Subdivision in which they reside. The impugned provisions cannot be reconciled with the constitutional imperative of choice by the people of those representatives.

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Since the invalid provisions had been put in by amendment, the Court’s ruling that the amendment was invalid meant that the law reverted to the pre-amendment state; that is, the seven-day cut-off was restored. The dissenters (Hayne, Heydon and Kiefel JJ) emphasised that, even if one accepted the Roach principle, the enrolment cut-off was a reasonable law, and the plaintiff ’s rights had not been breached. As noted above, eligible voters not only had a right to enrol, they were under an obligation to do so. Keifel J observed at [488]: The provisions in question do not themselves operate to render a person unable to vote. What is necessary to bring about that result is the failure of a person to fulfil his or her obligations within a specified period, when fulfilment is not attended by any obvious difficulty. It would be a curious application of a test of proportionality if a law, otherwise valid, was invalid because Parliament should recognise that people will not fulfil their statutory obligations.

Heydon J was, as usual, more blunt; the plaintiffs and other in a similar position were “the authors of their own misfortunes. They have not taken the steps to enable them to vote which were not only available to them, but required of them by s 101. They are simple steps. It would have been very easy to take them.” As Graeme Orr quickly noticed, the decisions in these cases seem to produce a “ratchet” effect — electoral law can get more democratic, foster more participation, become more egalitarian, but it cannot backslide. He suggested that “... the majority is identifying values it sees as entrenched by long convention — such as universal suffrage or a grace period for enrolment — and guards them against legislative back-tracking by demanding cogent justifications”.5 However, a qualification of that proposition appear necessary. As French CJ noted in the passage already quoted, it is “[d]urable legislative development of the franchise” that should be taken as the touchstone. That is, one should read Orr’s passage as referring to values that have been entrenched by long-standing legislation rather than mere “convention”. Hence, when activist Anthony Murphy sought a declaration that voters should be allowed to enrol on election day, or up till the eve of election day, as they are now able to do in Victoria, New South Wales and Queensland, the High Court rejected his argument: see Murphy v Electoral Commissioner [2016] HCA 36; (2016) 334 ALR 369. He had been arguing, in effect, that the enrolment provisions had become invalid due to Parliamentary inaction as circumstances and technology had changed, and that the choice contemplated by the Constitution could “only be achieved by electoral arrangements which maximise the opportunity for citizens to vote on polling day”. The Justices generally observed that the closing of the rolls served a legitimate end, namely, as Nettle J put it at [256], “an acceptable degree of order and certainty within the constraints of finite resources”. French CJ and Bell J did note, at [42], that “in the light of modern technology, with appropriate electronic infrastructure and human and financial resources, a system could be devised which would allow enrolments to 5 Graeme Orr, “The Voting Rights Ratchet” (2011) 22 Public Law Review 83.

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occur and alterations to be made to the Rolls up to and including polling day”, and that proposals for change had been made by the Australian Electoral Commission and the Joint Standing Committee on Electoral Matters. However, they immediately noted that for the judiciary to dictate to Parliament which among several supposedlybetter alternatives they should instruct the Parliament to adopt would be a breach of the judiciary’s proper role (see also Gageler J at [109], Keane J at [188] to similar effect). It may well be that, if the law does change to allow election day enrolment, after a few years that may well become another notch on the ratchet, another irreversible change — but it is not for the judiciary to turn the handle.

15.6 No recognition yet of one vote one value — but not too much divergence [15.70] While the right to vote may have been recognised by the High Court, the right to an equal vote (that is, to vote in an electoral division that has about the same number of electors as all other divisions) has not been — yet. Of course, the Constitution prescribes that this can not happen in the Senate; the whole point of the Senate is that the States are represented equally, despite their very different populations. However, the representation of the States in the House of Representatives is proportional to population; should the allocation of representatives within each State be proportional as well? So far, the case law has suggested that the answer is “only roughly”. However, this may be debateable since the more recent exploration of the meaning of “directly chosen by the people” in the cases noted in the previous section. As noted in 15.30 above, although the McKinlay case resulted in a change to the apportionment method, the plaintiff ’s (technically, “relator’s”) primary argument was that electoral law should provide for “one vote, one value”. As the Commonwealth Electoral Act was drafted at the time, it allowed electoral divisions in a State to depart from the quota referred to in s 24 by one-tenth above or below the quota (that in itself was a tighter limit than before; it had previously been one-fifth, and had only been amended by one of the “joint sitting” Bills discussed in 16.60). Further, no redistribution had occurred in most States since 1968, so the enrolments in the divisions had become quite unequal; in McKinlay’s State, South Australia, they ranged from 22 per cent less than the quota to 33.3 per cent higher, meaning the value of a vote was 1.7 times as great in the former electorate than the latter, and in Victoria and Queensland the discrepancies were slightly worse. McKinlay alleged that this was invalid as it meant that the House would not be “chosen by the people”. The argument relied in part on American precedents such as Baker v Carr 369 US 186 (1962), Wesberry v Sanders 376 US 1 (1963) and Reynolds v Sims 377 US 562 (1964) in which the US Supreme Court had held that the spirit of the “Great Compromise” in drafting the US Constitution — representation proportional to population in the Representatives, and equal representation for the States in the Senate, which Australia had copied exactly — required equal representation in the House for equal numbers of people, within States as well as between States. In Reynolds v Sims 240

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Warren CJ had said: “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.” The Court rejected his argument, with only Murphy J dissenting. To a greater or lesser degree, the majority Justices took an “originalist” approach — the drafters had been aware that strict equality of voting power was not insisted on in the colonies, and had been prepared to leave decisions as to details to the Parliament. However, some Justices tempered this with elements of a “living force” approach. McTiernan and Jacobs JJ noted at p 36 that: At some point choice by electors [as regulated by the Act] could cease to be able to be described as a choice by the people of the Commonwealth. It is a question of degree. It cannot be determined in the abstract. It depends in part upon the common understanding of the time on those who must be eligible to vote before a member can be described as chosen by the people of the Commonwealth. For instance, the long established universal adult suffrage may now be recognized as a fact and as a result it is doubtful whether, subject to the particular provision in s 30, anything less than this could be described as a choice by the people … there is nothing in our history and our development as a nation which would require that before a member be described as chosen by the people of the Commonwealth absolute or as nearly as practicable absolute equality of numbers of the people exist in every constituted electoral district in a State. Even though the notion of equality is present the matter remains one of degree.

They noted that the districts found invalid in Wesberry v Sanders had ranged in enrolment from 824,000 to 272,000 (just over 3:1) and commented that on such facts “the [same result] may well … follow from the application … of the principle which we have earlier suggested”. Mason J also suggested that there might be a limit to the permissible inequality. His Honour said at 61: It is perhaps conceivable that variations in the numbers of electors or people in single member electorates could become so grossly disproportionate as to raise a question whether an election held on boundaries so drawn would produce a House of Representatives composed of members directly chosen by the people of the Commonwealth, but this is a matter quite removed from the proposition that s 24 insists upon a practical equality of people or electors in single member electorates ...

But then he also said, “it is to be noted that the Constitution does not guarantee or insist upon universal adult suffrage”. Since that dictum has been superseded the authority of the rest of the decision may now be suspect. In 1996, after the High Court had proclaimed that ss 7 and 24 supported an implied freedom of discussion of political matters (as discussed in Chapter 14), another attempt was made to argue for “one vote, one value”, this time in respect of Western Australia. The facts of McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 will be discussed in Chapter 27, but it should be noted here that Toohey J, dissenting, held at [35] that “equality of voting power is an underlying general requirement in the Constitution”. Gaudron J, also dissenting, remarked at [14] that “persons elected under a 241

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system involving significant disparity in voting value, could not, in my view, now be described as ‘chosen by the people’”, and Gummow J, in the majority, adopted the point made by McTiernan and Jacobs JJ in McKinlay that the variations in numbers of electors or people in single Member divisions could be so grossly disproportionate as to deny ultimate control by popular election, and that such a question is to be determined by reference to the particular stage which has been reached, when the question arises, in the evolution of representative government. More recently, the Court has struck down barriers to the exercise of voting rights in Roach and Rowe, above, and, as noted in Chapter 14, it has held that “[e]quality of opportunity to participate in the exercise of political sovereignty is an aspect of the representative democracy guaranteed by our Constitution”: McCloy v New South Wales [2015] HCA 34; (2015) 325 ALR 15 per French CJ, Kiefel, Bell and Keane JJ at [45]. The issue of unequal electorates lies dormant at the moment, because, as noted above, the battle has now been won on the legislative front; the enrolment in each division at the “projection time” is not to diverge from the average by more than 3.5 per cent. However, in case the Parliament should bring back laws that allow a greater divergence, the more recent cases suggest that McKinlay is ripe for overruling.

15.7 Constitutional restrictions on the right to be elected as a Member [15.80] While implications drawn from the Constitution prevent the placing of too many restrictions on the right to vote, the Constitution itself imposes some inflexible and arguably unnecessary limits on the right to be elected as a Member or either House, or to remain as a Member. Section 44 provides: 44. Disqualification Any person who: (i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or (ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or (iii) is an undischarged bankrupt or insolvent; or (iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or (v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty‑five persons; shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

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But subsection (iv) does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen’s navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.

Section 45 then provides that if a Member becomes subject to any of the above disabilities “his” place thereupon becomes vacant. It also provides the same penalty for a Member who “takes the benefit” of a bankruptcy law (for example, by composition with creditors) or who “takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State”. These last two are related to paras (iii) and (iv) of s 44, but extend them somewhat; there are things one cannot do after becoming a Member that one could have done before. The Commonwealth Electoral Act 1918 (Cth) s 163 adds some extra requirements; a candidate must be 18 years old, an Australian citizen, and qualified to be an elector — so the disqualifications in s 93 of the Act apply as well, except where they have been found invalid as in Roach’s case above.

Jurisdiction over qualification and electoral matters [15.90] Section 47 provides that: Until the Parliament otherwise provides, any question respecting the qualification of [a member], or respecting a vacancy in either House … and any question of a disputed election to either House, shall be determined by the House in which the question arises.

This a hangover from the ancient and, by the 1890s, quite discredited practice in Britain under which the determination of disputes over their own membership was regarded as one of the privileges of the Houses of Parliament. Of course, to expect a group of partisan politicians to be dispassionate about a dispute which could affect the holding of a majority in the House is expecting rather too much; it is a breach of the principle that one should not judge a cause in one’s own interest. So in 1868, the Parliamentary Elections Act 1868 (UK) conferred jurisdiction on two judges of the Court of Common Pleas sitting as an Elections Court. Although several of the colonies had copied this move before federation, the drafters of the Constitution seemed to be living in the past in this respect, and copied the earlier British practice, though with a provision for the Parliament to “otherwise provide”. The Parliament did provide otherwise in the Commonwealth Electoral Act 1902 (Cth), by which it made the High Court the Court of Disputed Returns, though it retains a parallel jurisdiction over the qualifications of Members for itself, and occasionally exercises it. Because of this history, the High Court expressed doubt for some time as to whether it was exercising judicial power when acting as the Court of Disputed Returns, 243

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but by a majority of 4:3 the Court held in Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 that it was exercising judicial power. As Gaudron J explained, at [136]: What is put in issue when the validity of an election is challenged is the right of the person concerned to sit and vote in the Senate or in the House of Representatives. That is a legal right “arising from the operation of the law upon past events or conduct”.

We will see in Chapter 25 that this is a classical definition of the essence of judicial power. In addition, the issue of whether someone is qualified under s 44 is a matter arising under the Constitution and involving its interpretation, under para 76(ii) of the Constitution, and is therefore part of the High Court’s ordinary original jurisdiction.

Summary of cases interpreting the disqualifications [15.100] The case law on s 44 is of course of intense interest to those wishing to stand for Parliament, but perhaps less fascinating to other lawyers. It is discussed thoroughly in the books by Carney and Orr listed in the Further Reading, so is merely summarised here: n

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Section 44 stops a person from sitting as a Member while disqualified, but also stops them from “being chosen”. In Sykes v Cleary [1992] HCA 32; (1992) 107 ALR 577 it was held, Deane J dissenting, that the process of choice commences at latest when the first votes can be cast, and possibly when nominations close. The first part of para 44(i) — “a person who is under any acknowledgment of allegiance, obedience, or adherence to a foreign power” — presumably disqualifies a broader range of people than those who have taken out foreign citizenship, but its scope is unclear. In Nile v Wood [1987] HCA 62; (1987) 167 CLR 133, the fact that Senator Wood, a Member of the Nuclear Disarmament Party, had allegedly taken “actions against the vessels of a friendly nation” was not enough to disqualify him. In Crittenden v Anderson (1950, unreported, noted at (1977) 51 ALJ 171) the argument was that Anderson, as a Catholic, was under allegiance to a foreign power, the Papal State. Fullagar J noted that if the complaint was upheld that in itself would be the imposition of a religious test in breach of s 116 (see 24.120). The second part — “is a subject or citizen … of a foreign power” — was held in Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77 to disqualify persons holding dual citizenship unless they have taken all reasonable steps to divest themselves of any conflicting allegiance. In Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 it was held that these days even Britain is a foreign power (compare the aliens cases in 8.40 and 19.170), and that a dual British/Australian citizen is disqualified. Under para 44(ii), a person who is “attainted of treason” is disqualified from becoming a Member. This is generally interpreted to mean anyone who has been convicted of treason,6 but historically “attainder” referred to an extra step beyond conviction

6 See Gerard Carney, Members of Parliament: Law and Ethics, Prospect Publishing, 2000, p 39.

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whereby the accused was stripped of their rights. Since this no longer occurs, it may be arguable that nobody is “attainted” of treason in the full, old sense any more. In Nile v Wood, above, the Court had to remind the objector that the provision in para 44(ii) referring to a person who “has been convicted and is under sentence” is conjunctive; the fact that Senator Wood had, in the past, once spent a month in gaol and once been fined for his activities as a protestor7 was not enough. In “undischarged bankrupt or insolvent” in para 44(iii), “undischarged” qualifies both bankrupt and insolvent so the “insolvent” part only applies to a person who has been found insolvent by court process and not yet discharged (Sykes v Australian Electoral Commission [1993] HCA 36; (1993) 115 ALR 645). The provision in para 44(iv) is derived from a provision in the Act of Settlement 1701, inserted to ensure that the monarch could not subvert the independence of Parliament by putting Members on the royal payroll. These days the rationale is that the Ministry should not be able to buy the support of opposition Members, independents or even rebellious backbenchers by putting them on the government payroll. It was held in Sykes v Cleary [1992] HCA 32; (1992) 107 ALR 577 that Cleary, a State school teacher, had been ineligible to contest the election, even though he was on leave when he nominated and resigned from the teaching service before the declaration of the poll. The Court held that “office of profit under the Crown” must extend to all public servants, Commonwealth or State, even if they were on leave. (Cleary was elected in the repeat election.) Paragraph 44(iv) is reinforced by para 45(iii), the relevant part of which declares a Member’s position vacant if he or she accepts any honorarium for services rendered to the Commonwealth, or an honorarium (really meaning, in this case, a bribe) from any person or State for services rendered in the Parliament. There is an exception for the Ministers themselves, who can receive a ministerial salary on top of their parliamentary pay. There is also an oddly-complex exemption for persons in “receipt of pay, half pay, or a pension, by any person as an officer or Member of the Queen’s navy or army, or to the receipt of pay as an officer or Member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth”. In Free v Kelly (No 2) [1996] HCA 42; (1996) 185 CLR 296, Free conceded that, as an Air Force officer, she had been ineligible for election, but whether she should have made the concession has been questioned.8 She was elected in the repeat election in any case. The second part of para 44(iv), “pension payable at the pleasure of the Crown” must be read literally — it applies to pensions where the Crown, or a Minister, can exercise pressure on the Member by threatening to withdraw the pension. Pensions paid

7 See Ian Holland, Current Issues Brief No 22 2002-03; Crime and Candidacy, at http://www.aph.gov.au/ About_Parliament/Parliamentary_Departments/Parliamentary_library/publications_Archive/cib/ cib0203/03cib22.htm. This paper offers an excellent critique of para 44(ii) and compares it with provisions in the States and overseas. 8 Harry Evans (ed), Odgers’ Australian Senate Practice, Department of the Senate, 2008, ch 6.

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under the Social Security Act are not discretionary, so para 44(iv) does not disqualify a pensioner from standing for election, and once elected the pension would be terminated as parliamentary salaries are somewhat above the pension means-test threshold. The final disqualification, in para 44(v), applying to anyone having a pecuniary interest in an agreement with the Commonwealth, is intended to ensure that the government cannot buy a Member’s support by awarding a generous contract to them. Unlike para (iv), this one has been interpreted quite favourably to Members. In Re Webster [1975] HCA 22; (1975) 132 CLR 270, Barwick CJ held that the danger of excessive “Crown” influence on the Member would arise particularly “from the continuing nature of [an] agreement” and that it did not apply where, as here, a number of contracts had been made in response to a call for competitive tenders and each contract was soon executed by delivery of the goods.

These disqualifications are expressed in language which reflected the standard ideas of the 1890s, but which now seem too harsh in many respects. The States, which had similarly expressed disqualifications at the time of federation, have been able to amend their Constitution Acts and electoral laws to make the rules more compliant with modern notions of democracy, and the Constitutional Commission of the 1980s recommended repeal of several of the paragraphs (or subsections, as the section itself refers to them),9 but until the major parties can agree on specific alterations we remain stuck with these archaic provisions.

Consequences of disqualification [15.110] If a Member becomes disqualified after election, s 45 declares that the place thereupon becomes vacant. If the Member was an MHR, a by-election follows, commenced by the issue of a writ under s 33. If a senator’s place is declared vacant the procedure in s 15 follows; the Parliament of the relevant State must meet in a joint sitting and elect a replacement Senator from the same political party. However, if a Member is found to have been disqualified when elected, the election is ineffective; an “election is not completed when an unqualified candidate is returned as elected. The return does not meet the exigency of the writ”: Re Wood [1988] HCA 22; (1988) 167 CLR 145 at [18]. For Senate elections, the High Court has reasoned that, since the introduction of proportional representation in 1949, another election is not necessary; as someone who has voted for a disqualified candidate would probably have voted for the next person on the party’s ticket, ordering the votes to be recounted as if the disqualified candidate was not on the ballot will produce a fair result: Re Wood at [19]–[20]. In the case of the House of Representatives, however, the same logic does not apply (Sykes v Cleary, above, at [31]–[33]) and another election must be held; technically it is not a by-election, but a second attempt to conduct the original election. 9 Constitutional Commission, Final Report, AGPS, 1988.

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In addition to the loss of a person’s seat in Parliament, the Constitution provided another penalty. Section 46 provides, until the Parliament otherwise provides, for anyone who sits while disqualified to pay a penalty of £100 for each day on which the person sat to any person who sues in a court of competent jurisdiction. Such “common informer” provisions used to be common in English law, but both the provisions and the informers were generally regarded with scorn. The feeling that it was wrong to enable people to make money from the misdeeds of others, and the suspicion that many proceedings were “brought solely for purposes of revenge without any thought of safeguarding the public interest” led to most similar English provisions being repealed in England by the Common Informers Act 1951 (UK).10 For similar reasons ,the Parliament enacted the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth), providing otherwise by limiting the penalty to $200 for all the time the disqualified Member had sat before the initiation of the action, and only providing a “per day” penalty if the Member continued to sit after service of process.

15.8 Courts’ reluctance to interfere in the electoral process or retrospectively invalidate elections [15.120] Section 29 gives the Parliament the power to make laws for the determination of electoral divisions, and concludes with: “In the absence of any other provision each State shall be one electorate”. In the McKinlay challenge, brought when an election was due quite soon, the relator argued that the whole of the electoral distribution for his State was ineffective, and that therefore the State should be one electorate. (It was rumoured that he was connected with a minor party and was hoping that a State-wide election would necessarily be conducted by proportional representation.) Though the Court held that aspects of the Representation Act were invalid, and that therefore at least some of the States may have been about to elect the wrong number of Members, the election was allowed to continue. Gibbs J, whose reasoning on this point was accepted by the rest of the majority, noted at [11]–[17] that: Although those words are on their face absolute, there are other constitutional requirements, equally absolute and no less important, that must also be observed. “Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor-General”: s 28. Writs for general elections of Members of the House of Representatives “shall be issued within ten days from the expiry of a House of Representatives or from the proclamation of a dissolution thereof ”: s 32. These requirements lie at the very heart of our system of government, and in the event of a conflict would necessarily prevail over s 24. For example, an election could not be postponed, when otherwise necessary, simply because the number of Members to be chosen in the several States had not been determined on the basis of the most recent reliable figures. The apparently absolute words of s 24 may therefore need some qualification to enable them to work in harmony with the rest of the Constitution. 10 See JLJ Edwards, “Common Informers Act 1951” (1951) 14 Mod LR 462.

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… As I have already pointed out, there is an overriding constitutional duty to hold elections in certain circumstances. There is also a constitutional duty to ensure that each State is proportionately represented in the House of Representatives, but a failure to perform that duty does not invalidate an election held otherwise in compliance with the Constitution. Since, no doubt, the Parliament will act to give effect to the requirements of s 24 now that they have been pointed out, it is unnecessary to consider what remedies might be available if it did not.

We will note similar reasoning in the PMA case in the next chapter. This is consistent with the general impatience displayed by the judiciary with the “everything is invalid” type of argument beloved of vexatious litigants, who argue that because of some procedural defect in the past, all Parliaments and all statutes since that date have been invalid (the argument quite often ends with “therefore I don’t have to pay my taxes” — or rates, or child support). A famous case from across the Tasman Sea was Simpson v Attorney-General [1955] NZLR 271, where Simpson alleged that the GovernorGeneral’s warrant for the 1946 general election had not been issued within the time limit laid down in the Constitution Act 1852, and therefore the subsequent Parliament had not been validly elected, and therefore all the parliaments subsequent to that one had not been validly elected either, nor was there any lawful means of convoking one — ever again! The Court of Appeal held that the provision about the time limit for writs was merely “directory”, in the sense that only substantial compliance was required. A similar case was brought in Ceylon, in PS Bus Co Ltd v Ceylon Transport Board (1958) 61 NLR 491. Sinnetamby J noted at 496–7 that if he granted relief: It would result in all the legislation passed by Parliament since it came into existence and all its actions liable to be regarded as illegal and of no effect. It would affect the rights and liabilities of several thousands of people who conducted their business activities and their lives on the basis that legislation enacted by Parliament is valid; it would disturb the peace and quiet of the country and, above all, it will bring the government of the country to a standstill.

These cases further illustrate the general point — having some sort of democratic election regularly, and allowing the newly-elected Parliament to get on with the job, is more important than having an election which is perfect to every crossed t and dotted i.

ISSUES FOR DISCUSSION 1. It is clearly true that the drafters did not intend to build an enforceable requirement for universal voting rights into the Constitution, though it is equally true that they knew that the demand that such rights should be recognised was attracting growing support in the 1890s, and it has now become accepted as fundamental in our political philosophy. Is it therefore a proper interpretation of the Constitution to find such a requirement implied by the words “chosen by the people” in two sections? 248

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Chapter 15 The Choice of Members by the People

2. It appears from Roach and Rowe that the test of whether a law restricting voting rights is valid contains two elements; does the law in fact restrict the right of some citizens to vote, and if so is it “necessary and appropriate” for enforcing some reasonable requirement in the public interest? Did the law challenged in Rowe really fail the first limb of the test? If not, is it proper that it should have been declared invalid because it failed the second limb so comprehensively? Do we actually have a “balancing” test at work here? 3. Should a requirement that the “one vote, one value” principle be observed for the House of Representatives follow from the recognition of “the long established universal adult suffrage … as a fact”? 4. Should the fact that restrictions on the right to vote and deviations from one vote, one value, are usually enacted in the perceived interests of the party (or coalition) currently dominating the Parliament affect your reasoning in questions 1–3, or is that irrelevant when interpreting a Constitution? 5. Should the disqualifications in s 44 be totally repealed, leaving anyone who is qualified to vote for the parliament eligible to be a Member as long as they declare the relevant facts so that the voters can make an informed choice, or should there be some Constitutional disqualifications, and if so, what?

FURTHER READING Gerard Carney, Members of Parliament: Law and Ethics, Prospect, 2000, Chs 2–4 Geoff Gallop, “One Vote One Value”, in G Gallop (ed) A State of Reform; Essays for a Better Future, Helm Wood Publishers, 1998, Ch 1 Ruth Greenwood, “A Progressive Court and a Balancing Test: Rowe v Electoral Commissioner HCA 46” [2010] UWSLawRw 5 Graeme Orr, The Law of Politics, Federation Press, 2010, the parts of Chs 2, 4 and 5 dealing with the Commonwealth Graeme Orr, “The Voting Rights Ratchet” (2011) 22 Public Law Review 83

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CHAPTER 16

The Law-making Process

16.1 Context and overview [16.10] The chapters that follow this one will discuss what laws the Commonwealth Parliament has power to make, but there are some rules about how it can make laws. In fact, all Australian Parliaments have internal rules for the passage of legislation and some special rules about financial legislation, and some have rules for the resolution of deadlocks between the Houses. However, in the case of the States, most of these rules, whether in the Parliament’s Standing Orders or the State’s Constitution Act, are amendable at the will of the Parliament, while in the case of the Commonwealth, the rules about financial legislation and disagreements between the Houses are in the “rigid” Constitution. Therefore, this chapter focuses on the rules for the Commonwealth, with occasional comparisons with the States. The similar rules for the States will be noted in Chapter 27.

16.2 The normal legislative process (Commonwealth and States) [16.20] The normal process of legislation is governed by Standing Orders, made by each of the Houses under s 50 of the Constitution. Following traditional British practice, these provide for a Bill to be considered in successive stages called “readings” because, before the days of printed copies, a motion that “the Bill be read” literally meant that the full text of the Bill would be read to the House. Nowadays the Clerk notionally implements the motion by reading the long title of the Bill. Traditionally there was a First Reading, which was a formality, a Second Reading, in which the general principles of the Bill were debated at some length, a “Committee” stage, at which the House quaintly pretended that it was a committee of itself and debated any amendments proposed for any of the clauses and then “reported” the Bill, as amended or not, back to itself, and a Third Reading which gave the House a chance to consider the Bill one last time — usually a formality but occasionally a Bill could be lost on the Third Reading. In several Parliaments, more descriptive terminology has been adopted; the Committee stage has been 251

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renamed the Consideration in Detail stage, and in Queensland the First Reading has become the Introductory stage. If the Bill is defeated at any of these stages, it lapses. Voting in either House is by majority of those actually present, even if that is not a majority of the Members eligible to be there, except where an “absolute” majority is required. This is necessary in a joint sitting under s 57 (see 16.40 below) or, in some States, for Bills which are dealing with a matter protected by a “manner and form” provision: see Chapter 27. There is a quorum — a minimum number of Members who must be present for business to proceed — but the lack of a quorum only matters if it is drawn to the attention of the Speaker. In the Commonwealth Parliament, the Speaker of the House of Representatives does not have a vote in the first instance but has a casting vote if the other Members’ votes are equal (s 40), but in the Senate the President has an ordinary vote but no casting vote (s 23), as giving him or her special voting rights would impair the equality of the States’ voting powers in the Senate. Most Bills are introduced into the “lower” House (in the Commonwealth’s case the House of Representatives) but, apart from the finance Bills discussed below, they can be introduced in the “upper” House (Senate). After being passed by the initiating House, they are transmitted to the other House, where again they have to be passed at all stages. Since s 1 of the Constitution vests legislative power in the Queen, the Senate, and the House of Representatives, it follows that the House and the Senate must both pass the same version of a Bill before it is presented to the Governor-General for assent. If one receives a Bill from the other House and passes it with amendments, it must go back to the initiating House for a debate on whether the amendments will be accepted — and so on until both Houses are agreed on the same text. In the British Parliament, this is YES Motion: That the Bill be read a first time

Vote is a formality

Motion: That the Bill be read a second time

Debate on general principles of Bill

Committee, or Consideration in Detail stage

Vote

NO

Motions to Many accept Votes sections as they stand or amend them

Lapses YES

Bill as amended in ‘committee’

Motion: That the Bill be read a third time

Vote

NO Lapses

YES Has the other House already passed the Bill in the same terms?

To Governor (-General) for assent

NO

To other House

Figure 16.1 The Process of Debating and Voting on a Bill 252

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Chapter 16 The Law-making Process

now referred to as the “ping-pong” stage even in official reports from the parliamentary office; it is odd that we have not adopted that term in this country, usually noted for its less stuffy approach to the use of slang. If the Houses cannot agree, the Bill may be abandoned or s 57, discussed below, may come into play. The Governor-General’s role in the giving of assent, and in the making of recommendations for amendment to a Bill, have been discussed in Chapter 9.

16.3 Special rules for the passage of Commonwealth financial legislation [16.30] In a long series of battles for power between the Houses of the British Parliament, a series of limits on the Lords’ powers over money Bills (that is, taxing and spending Bills) had been tentatively established (though another battle erupted in 1909, leading to a final resolution by the Parliament Act 1911 (UK)). Similar contests had occurred in the colonies, and the drafters expected that disputes, inflamed by large-State-versussmall-State rivalries, would also occur in the new federal Parliament. So they included s 53, based on a codification of British practice with some additions based on colonial innovations: Powers of the Houses in respect of legislation Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand or payment or appropriation of fees for licences, or fees for services under the proposed law. The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government. The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people. The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications. Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.

A number of points are worthy of comment. First, note that there is a quasi-definition of taxation built-in to the first paragraph — it does not include fines, pecuniary penalties, fees for licences or fees for services. We will see in Chapter 21 that this is closely followed in the High Court’s interpretation of what is a law “with respect to taxation”. Secondly, note that the scope of the first paragraph is broader than that of the second — the Senate cannot initiate any appropriation or revenue laws, but it can amend appropriation laws if they are not “for the ordinary annual services of the Government”. This is reinforced by s 54: “The proposed law which appropriates revenue or moneys 253

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for the ordinary annual services of the Government shall deal only with such appropriation”. For this reason, the annual Appropriation Bills are always broken into two; No 1 which is for “ordinary” recurrent departmental expenditure, and No 2 which is for new projects, which can be fully debated and amended in the Senate. If supplementary appropriations are enacted later in the financial year, they are similarly broken into No 3 and No 4 on the same basis. The third paragraph, however, appears to be broader than the first. The Senate cannot amend a law so as to increase “any proposed charge or burden” on the people, and one might think “charge” would include fees and licences as well as taxes, and “burden” would include an increase in an appropriation, whether or not it was for the “ordinary annual services”. However, this would mean, oddly, that the Senate could not amend some classes of Bills which it is capable of initiating; a commentator has said the paragraph “doggedly resists sensible meaning”.1 The Senate has always insisted on a narrow interpretation of the paragraph.2 On the other hand, a similar rule in a State constitution3 has been interpreted strictly, at least when it suited the interests of the government; when a Western Australian Legislative Councillor moved an amendment to an electoral Bill to add an extra member to the Assembly, the Deputy Chair of Committees ruled it out of order because it would, eventually, increase the burden on the people because of the extra salary and expenses that would have to be paid.4 [16.40] Although these are important constitutional rules, we have no definitive ruling from a court on the above matters because the paragraphs refer throughout to “proposed laws”, that is, Bills. Therefore the High Court has ruled that breaches of them are not justiciable; they are to be enforced by means of the Houses insisting on their own rights. The Court first said this, obiter, in Osborne v Commonwealth [1911] HCA 19; (1911) 12 CLR 321 at 336, 352 and 356. Then when the Native Title Act 1993 (Cth) was enacted, the Senate initiated some amendments, including sections relating to offers of financial assistance to States and Territories, the establishment of a Parliamentary Joint Committee and the protection of native title from debt recovery processes. When Western Australia challenged the validity of the Act one minor (indeed, trivial) issue raised by the State was whether the Senate amendments had increased a charge on the people. In Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, six Justices followed Osborne on this point, and then remarked: “In any event … none of the Senate amendments appears to increase a ‘charge or burden on the people”. So the matter remains one for the Houses, their Presiding Officers and Clerks to fight over; if one House calls the other’s bluff and gets away with a breach of the section, the law is not invalid. 1 Paul Schoff, “‘Charge or Burden on the People’: The Origins and Meaning of the Third Paragraph of Section 53 of the Commonwealth Constitution” (1996) 24 Fed L Rev 43. 2 Odgers’ Australian Senate Practice, 12th ed, ch 13. 3 Constitution Acts Amendment Act 1899 (WA), s 46(3). 4 Western Australian Legislative Council, Debates, 18 March 2005, p 1673.

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As to the “recommendation” for amendment of unamendable Bills referred to in the fourth paragraph, there is some basis in the context and drafting history for interpreting this to mean that the Senate can send just one recommendation and if the Representatives do not agree, the Senate should concede. But this is not spelled out clearly. So taken in conjunction with the final paragraph — “equal power” in other respects — the generally accepted view is that the Senate can keep insisting on a recommended amendment. Certainly, it can in the end reject an appropriation or a tax, as confirmed by the majority of the High Court in Victoria v Commonwealth (the PMA case) [1975] HCA 39; (1975) 134 CLR 81 at 121, 143, 168 and 185. There are indications in the Debates that one of the reasons that the drafters included the resolution of deadlocks section — s 57, below — was so that deadlocks over budgets could be resolved. The fact that it would take four months or more is unfortunate — the drafters assumed the government would cope somehow. There is a further procedural provision about appropriation bills (whether for the “ordinary annual services” or for new expenditure); under s 56 they “shall not be passed unless the purpose of the appropriation has … been recommended by message of the Governor-General”. Of course this is not there to give the Governor-General a personal veto; consistently with the principles noted in Chapter 9, the government drafts the message for the Governor-General. As it is the executive government which gets criticised for budget “blow-outs”, the executive is given a veto over Bills which may be promoted by backbenchers to ingratiate themselves with their voters but which may interfere with the financial stability of the nation. This also tends to be policed by the Presiding Officers; as it is a rule about the internal proceedings of the Parliament, it appears not to be justiciable. Sections 53 and 54 impose limits on the Senate’s power, but overseas and early colonial experience showed these limits could be exploited by the Representatives. Britain and the colonies had had instances where the “lower” House had included completely unrelated provisions in a tax or appropriations Bill, and then insisted that the “upper” House could not amend it because the Bill was mainly or in essence a tax or appropriation Bill. This was known by the self-explanatory metaphor of “tacking”. The drafters therefore included a balancing limitation to ensure that the Representatives could not tack otherwise-amendable material onto one of these unamendable Bills. Section 55 says “Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect”. There is a second paragraph dealing with the combination of different “subjects of taxation” within one law. Since s 55 refers to “laws” rather than “proposed laws”, breaches are justiciable, and it contains its own remedy — parts of the law are of no effect. The case law is discussed in Chapter 21. On the other hand, an appropriations law that is not for the “ordinary annual services” can be mixed up with other matter, so a law creating for some grand new scheme can have lots of sections about the scheme in general and then one that says “funds are appropriated from Consolidated Revenue for the purposes of this scheme”. 255

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16.4 The resolution of deadlocks in the Commonwealth Parliament [16.50] Deadlocks on parliamentary Bills were inevitable from the start, because the Senate was designed by the drafters precisely so that it would not be a carbon copy of the House of Representatives. The presence of equal numbers of senators for each State was supposed to protect the special interests of the less-populous States (meaning, at that time, all States except New South Wales and Victoria; these days Queensland counts among the more-populous, with a big gap to 4th-placed Western Australia). It never worked quite as expected by the majority of the drafters. Although Senator Harradine used to extract concessions for Tasmania as the price of his vote on some issues, nearly all of the time the Senate is just another House where the votes divide on party lines. In the Constitutional Convention, Alfred Deakin had predicted exactly that outcome: “The contest will not be, never has been, and cannot be, between states and states. It must be and will be between the representatives of the states according to the different political principles upon which they are returned”.5 That is, the Senate is a States’ House only in as much as a greater proportionate weight is given to parties who have stronger support in the less-populous States. Since proportional representation was introduced in 1949, this has sometimes meant that a third party holds the balance of power in the Senate, but it can also mean that one major party, with strong support in the populous States, controls the Representatives, while the other controls the Senate because its support was higher in the less-populous States. In addition, the fixed term of six years with only half retiring each three years was supposed to slow down change in the composition of the Senate. This conservative effect is amplified at times when the usual simultaneity of elections for the two Houses has been broken. For example, in 1974, of the senators who had created the double dissolution trigger (by rejecting Medicare, one-vote-one-value and representation for the Territories), half had been elected in November 1967 and the other half in November 1970, while the House of Representatives had been elected in December 1972. This can be seen either as a safety-valve against over-hasty change that might be later regretted, or as an unnecessarily conservative device that inhibits changes in the law in response to genuine and permanent changes in social values. Having conceded that much power to resist the current opinion of the national majority to the Senate, the delegates from New South Wales and Victoria were determined that it should not have a simple veto, like the United States Senate, so, after much debate, the drafters included a mechanism to resolve deadlocks. The last step of the mechanism is a joint sitting of the two Houses, which should ensure that anything favoured by a national majority of the voters will eventually pass — but it can take a long time to get to that stage. Section 57 of the Constitution provides the mechanism. Broken into the separate stages of the process rather than its official paragraphing, it provides: n n

If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if

5 Australasian Federal Convention, Debates, 15 September 1897, p 584.

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n n

n n

n

n n

n

after an interval of three months the House of Representatives, in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the GovernorGeneral may dissolve the Senate and the House of Representatives simultaneously (a “double dissolution”). But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time. If after such dissolution the House of Representatives again passes the proposed law, with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the GovernorGeneral may convene a joint sitting of the members of the Senate and of the House of Representatives. The members present at the joint sitting may deliberate and shall vote together upon the proposed law as last proposed by the House of Representatives, and upon amendments, if any, which have been made therein by one House and not agreed to by the other, and any such amendments which are affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives shall be taken to have been carried, and … if the proposed law, with the amendments, if any, so carried is affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives, it shall be taken to have been duly passed by both Houses of the Parliament, and shall be presented to the GovernorGeneral for the Queen’s assent.

After the election, the senators for each State divide into two notional classes,6 and half have terms which last until the 30th of June that falls between two years and three years of the resumption of the Senate, and the other half have terms which last from five to six years (s 13). The normal cycle of half-Senate elections is restored. Note that there is no provision for a Bill that has been passed by the Senate but rejected, or amended more than the Senate can tolerate, by the Representatives. Such a Bill is simply not passed. The relation between the Houses is asymmetric to this degree. In the discussion below, the term “trigger Bills” will be used for Bills that have been through the first five dot points above, creating the precondition for a double dissolution of the Houses. It is of course possible for a government to ignore the fact that a trigger Bill exists and to simply let elections proceed in the normal way, hoping that this will give them a majority in both Houses. However, in the history of the Parliament, there 6 The Constitution does not provide a mechanism, so it is left up to a majority vote in the Senate. So far, they have always assigned the long and short terms according to the order in which the senators for each State were declared elected. Other methods have been proposed, but the order of election method usually suits the major parties.

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have been seven occasions on which a Government has taken the opportunity to advise the Governor-General to dissolve both Houses. In 1914, 1975 and 1983, the Government was defeated and the new Government, having opposed the Bills while in opposition, had no interest in pressing them any further. In 1951, the Government was returned with a Senate majority, and was therefore able to pass the trigger Bill without needing a joint sitting. In 1974, 1987, and 2016, the Government was returned, but still without a Senate majority. In 1987, the Government discovered a defect in the trigger Bill and did not proceed with it. In 2016, the Government was re-elected with a majority of one in the House of Representatives but still no majority in the Senate. It seemed unlikely that it would have a majority in a joint sitting if it insisted on trying to pass the Bills in their original form. Both of the trigger Bills were eventually passed when the Government accepted substantial amendments made in the Senate. So 1974 was the only occasion on which the Government passed its Bills a third time through the House, had them rejected a third time by the Senate, and advised the Governor-General to convene a joint sitting. The Opposition sought to prevent the holding of the joint sitting and disputed the validity of some of the Acts afterwards, which generated the case law below.

Justiciability of steps under s 57, and how many Bills can be considered [16.60] The proclamation convening the joint sitting in 1974 had recited that six Bills satisfied the “trigger” requirements (wrongly, as it turned out, in respect of one of them) and directed the Members to consider them when sitting jointly. Some time before, Professor PH Lane had written an article for the Sydney Morning Herald in which he dogmatically asserted that s 57 could only apply to one disputed law at a time. Just a few days before the date of the joint sitting, the leader of the Opposition in the Senate, Sir Magnus Cormack, sought declarations that the joint sitting had been wrongly convened and injunctions to restrain the Government from introducing more than one of the Bills, and in particular from introducing the Petroleum and Minerals Authority Bill. (A challenge to the Act that ensued from this Bill succeeded later; see 16.70 below.) The High Court heard the matter urgently and handed down its decision in Cormack v Cope [1974] HCA 28; (1974) 131 CLR 432 on the day before the date named for the sitting, refusing any of the relief sought. The Commonwealth had argued that the conduct of the joint sitting was purely parliamentary business, and that the Court therefore had no jurisdiction over it. McTiernan and Stephen JJ accepted this, while the other Justices held that the Court could intervene if there were a clear breach of s 57, but that there was none here. Barwick CJ held at 454: [T]he Governor-General in convening a joint sitting, or, for that matter, in dissolving both Houses, is not participating in the parliamentary process of law-making in any relevant sense. His act of dissolving both Houses and his direction for the convening of a joint sitting is in each instance an executive act. It is an act of the Crown in pursuance of a statute, the Constitution, and within the cognizance of this Court. The Crown’s sole part in the parliamentary process of law-making does not begin until the proposed law has

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been passed by both Houses or affirmed in a joint sitting and is presented for the Royal assent. … It seems to me that in an appropriate, though no doubt unusual, case when moved by parties who have an interest in the regularity of the steps of the law-making process at the time intervention is sought, the Court is able, and indeed in a proper case bound, to interfere.

Gibbs J remarked, at 466: I am disposed to think that this Court has jurisdiction to interfere at any stage of the special law-making process permitted by s 57, in order to prevent a violation of the Constitution and that an assertion of the privileges of Parliament would not deprive the Court of the jurisdiction with which the Constitution invests it. However, although I accept that such a jurisdiction exists, in my opinion it would be wrong to exercise it by granting the relief sought in the present case.

Those Justices who considered the proclamation held that it had been technically wrong of the Governor-General to recite the “facts” about the trigger Bills and to set an agenda for the joint sitting, but this did not invalidate the proclamation; the ­Governor-General’s role was to convene the joint sitting and it was the terms of s 57 that directed the Members as to the proper business. The validity of any Act of Parliament that ensued could be determined after the event, as normal; in Mason J’s words at 474: As the six bills, if passed at the joint sitting and assented to are open to challenge in properly constituted proceedings seeking a declaration of invalidity on the grounds now argued, I can see no sufficient basis for the Court in this case taking the exceptional step of granting relief by way of intervening in the parliamentary process.

All Justices except McTiernan J considered the argument that the s 57 process could only apply to one Bill at a time, and rejected it. Though Stephen J rejected the application on jurisdictional grounds, he considered the substantive argument and reasoned as follows at 469: [T]he section readily lends itself to the contrary view that whenever a situation arises in which one or more proposed laws have twice been proposed and rejected or not passed the stage is set for a double dissolution. One instance of double rejection suffices but if there be more than one it merely means that there is a multiplicity of grounds for a double dissolution, rather than grounds for a multiplicity of double dissolutions. Then, when the ensuing elections have been held, the second paragraph of the section is readily applicable to the passage for a third time of each of such proposed laws as were previously twice rejected and to their consideration at a joint sitting if not then passed by the Senate.

So the joint sitting duly occurred on 6–7 August 1974 and passed six Bills which, on assent, became the Senate (Representation of Territories) Act, two other electoral 259

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Acts, two Health Insurance Acts setting up the original Medibank (now Medicare) and the Petroleum and Minerals Authority Act (the PMA Act). That led the way to further challenges. The question of “stockpiling” trigger Bills was revisited in the first Territorial Senators case, Western Australia v Commonwealth [1975] HCA 46; (1975) 134 CLR 201. The failure of Western Australia’s substantive argument as to the Senate (Representation of Territories) Act 1973 (Cth) was discussed in Chapter 15 at 15.40, but there was a procedural argument as well, as to the passage of that Act and the Commonwealth Electoral Act (No 2) 1973 (Cth) and the Representation Act 1973 (Cth). The argument was that the Bills had been rejected for the second time by the Senate on 14 November 1973, yet had not been used as the justification for a double dissolution until 11 April 1974. Although Barwick CJ remarked at 222 that, “it would be quite incongruous that at a considerable remove of time and after the business of the Parliament had been proceeding for very many months, it should be dissolved to enable the electorate to pass upon a question which would appear to have been shelved”, the other Justices held that there was no time limit; as Gibbs J pointed out at 237, “it would accord with the aims of the section that the power which it confers should be exercised, not at the first possible opportunity, but only as a last resort”. Jacobs and Murphy JJ doubted that the issue was justiciable in any case. A situation even more incongruous than the one referred to by Barwick CJ, above, occurred less than a month after the decision was handed down. After the dismissal of the Whitlam Government, caretaker Prime Minister Fraser sought and obtained, not just a dissolution of the House of Representatives but a double dissolution on the ground of 21 trigger Bills which his party had been opposed to, and did not proceed with when elected as a majority government. This was surely not a use of the section intended by the drafters, but the reasoning in Cormack v Cope and Western Australia v Commonwealth makes it clear that it was within the scope of the section as interpreted by the Court.

Meaning of “fails to pass”, the three-month gap between stages, and judicial interference in the electoral process revisited [16.70] Another challenge to one of the joint sitting Bills had been heard, on a different ground, a month earlier. In Victoria v Commonwealth (the PMA case) [1975] HCA 39; (1975) 134 CLR 81 the validity of the PMA Act was challenged on the ground that the time sequence in s 57 had not been complied with. The Bill had been first passed by the House on 12 December 1973. The next day, 13 December, was the last sitting day of the year for the Senate, and instead of debating the Bill immediately the Senate resolved to adjourn debate until the next sitting day, to be in February 1974. The Parliament was prorogued7 on 14 February (so that the government could bask in the reflected glory of an official opening of the new session by the Queen, then visiting Australia, on 28 February). The Bill was then restored to the Senate notice paper, and the Senate debated the Bill from 19 March to 2 April, on which date the motion for the second 7 For prorogation see 9.40.

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reading was defeated. The House passed the Bill for a second time a mere 6 days later, on 8th April, and it was effectively rejected by the Senate (by a resolution that it be deferred “till this day six months”) on 10 April. Again the issue of whether s 57 matters were justiciable was ventilated. Barwick CJ said at 118 that it was undeniable that the Court was the guardian of the Constitution, and it followed from this that: The Court, in my opinion, not only has the power but, when approached by a litigant with a proper interest so to do, has the duty to examine whether or not the law-making process prescribed by the Constitution has been followed and, if it has not, to declare that that which has emerged with the appearance of an Act, though having received the Royal assent, is not a valid law of the Commonwealth.

Only McTiernan J disagreed, asserting at 135 that the case was a political question. The question, then, was from what date did the “interval of three months” in s 57 run? If it ran from the first passage by the House, or if the events of 13 December constituted a “failure to pass” by the Senate and time ran from that time, it was proper for the House to pass it again on 8 April. If the time ran from the first debate and defeat in the Senate, the government had re-presented it to the House far too soon. [The way the section has been broken into dot points above may seem to beg this question; to consider the two alternatives, read it both as presented and as if the first two dot points are combined.] The majority, Jacobs J dissenting, held that the three months must run from the date of the Senate’s first rejection or failure to pass. As Barwick CJ explained at 124: Reading s 57 as a piece of English, I am unable to see any basis upon which the words “if after an interval of three months” could be referable other than to the action of the Senate. … But, apart from reading the section as a piece of English, the purpose behind the section, it seems to me, is to fix a period of time after the Senate has considered the law and taken up a definitive position with respect to it, during which the House of Representatives should have time to consider, no doubt in the light of what has been said in debate in the Senate, whether the law should go forward again. Also, the decision of the Senate whether it should maintain its former attitude to the Bill may well be affected by the lapse of time. I cannot see any policy which would be satisfied by annexing the interval of three months to the first passage of the proposed law by the House of Representatives.

As to rejection or “failure to pass”, had that happened in December, when the Senate, instead of rushing things through in a day, had adjourned debate? The majority held not. Barwick CJ remarked, at 122: That a Bill needs consideration and debate is beyond question … [T]he Constitution cannot be read as if laws ought to be passed by the Senate without debate, or as if the House of Representatives may in any respect command the Senate in relation to a Bill. Thus, in approaching the meaning of the word “fails” in s 57, it must be borne in mind that the Senate is both entitled and bound to consider a proposed law and to have a

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proper opportunity for debate and that its concurrence, apart from the provisions of s 57, is indispensable to a valid act of the Parliament. It seems to me that the word “fails” in s 57 involves the notion that a time has arrived when, even allowing for the deliberative processes of the Senate, the Senate ought to answer whether or not it will pass the Bill or make amendments to it for the consideration of the House: that the time has arrived for the Senate to take a stand with respect to the Bill. If that time has arrived and the Senate rather than take a stand merely prevaricates8, it can properly be said at that time to have failed to pass the Bill.

The Commonwealth had pointed to statements by Opposition Senators along the lines of “we are going to force a double dissolution” but his Honour said: [I]t will be the conduct of the Senate itself and not the conduct or opinions or anticipatory statements of individual senators, whatever may be their party standing or party authority, which can have any relevance to the question whether, the situation having been reached where the Senate is called upon to give an answer on the Bill, it has failed to pass it.

Therefore the Senate had not rejected or failed to pass until 2 April, and the government had only waited six days, not three months, to present it a second time to the House. Not having been enacted in compliance with s 57, the Act was invalid. The above holdings provoked further consideration of the matter discussed in 15.120 above — will the Court intervene to prevent an election being held? Supposing a double dissolution had been proclaimed on the basis of only one alleged trigger Bill, and the triggering conditions had clearly not been met, would the Court rule that the dissolution was invalid and order that the members of the two Houses were still the elected members? Barwick CJ said, at 120, that: “[T]he dissolution itself is a fact which can neither be void nor be undone. If, without having power to do so, the Governor-General did dissolve both Houses, there would be no basis for setting aside the dissolution or for treating it as not having occurred.” Stephen J, at 178, and Mason J, at 183, said similar things — but all three of their Honours seemed to be focussing on the situation where the litigation occurred after the election. Gibbs J at 157 offered a more qualified opinion. He said, first, “[i]f the Senate were in fact dissolved, and if thereafter writs for an election were issued, the election was held and a new Parliament was summoned to meet, I can see no difficulty in holding that the new Parliament would have validly assembled”, but then added: “This of course is not to suggest that this Court could not intervene to uphold the Constitution and prevent an invalid proclamation for the dissolution of the Senate from being given effect”. It is suggested that his Honour was correct, but a plaintiff would have to have a clear case and act promptly. Once an election was well under way, or had been held, the normal approach discussed in 15.8 would have to take over; a newly-elected Parliament represents the will of the people, as expressed recently, and should be allowed to get on with its job. 8 To “prevaricate” is to be deliberately ambiguous or unclear in order to mislead.

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ISSUES FOR DISCUSSION 1. As the text above says, the provision of fixed terms for senators combined with the fact that only half of them normally retire each three years “can be seen either as a safety-valve against over-hasty change that might be later regretted, or as an unnecessarily conservative device that inhibits changes in the law in response to genuine and permanent changes in social values”. Which of these views do you think is supported by the stronger arguments? Given that the Senate is now elected by proportional representation, and it is rare for the party with a majority in the representatives to also obtain one in the Senate, is it time to change the rules so that all the senators face re-election whenever the Representatives do? 2. Suppose a Bill is passed by the Representatives on 1 March. It is presented to the Senate on 8 March, but the motion for the second reading is amended on 15 March to provide that it should be referred to a committee. The committee publishes an issues paper and calls for public submissions closing on 30 April. The committee then has a series of public hearings through May and early June, but does nothing to ensure that it meets during the winter recess from mid-June to mid-August. When Parliament resumes, the committee repeatedly resolves to defer consideration of the Bill until it has dealt with what it calls more urgent matters. When could the Bill be re-presented to the House, if the Government wants to rely on it as a “trigger” for a double dissolution? Does your difficulty in answering this question suggest that the decision in the PMA case, above should be reconsidered, or that s 57 should be amended?

FURTHER READING Jane Diplock, “The Double Dissolution and Joint Sitting of Federal Parliament” (1977) 8 Syd LR 223 (student note) Jack Richardson, Resolving Deadlocks in the Australian Parliament, in Geoffrey Lindell and R (Bob) Bennett (eds), Parliament: the Vision in Hindsight, Federation Press, 2001, Ch 7 Paul Schoff, “‘Charge or Burden on the People’: The Origins and Meaning of the Third Paragraph of Section 53 of the Commonwealth Constitution” (1996) 24 Fed LRev 43

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CHAPTER 17

Sources and Interpretation of Commonwealth Powers

17.1 Context and outline [17.10] We have seen how the Commonwealth Parliament is constituted and how it carries out its legislative functions. In this Chapter we will study the sources of its legislative powers, and the next nine chapters will deal with the extent of those powers and the limits upon them. In addition to the general principles of constitutional interpretation discussed in Chapter 8, there are some more specific principles relating to the interpretation of legislative powers and the prohibitions operating on them; they are discussed here before we see specific examples of their use in the following chapters.

17.2 A parliament of enumerated (and therefore limited) powers [17.20] Though the Constitution limits the powers of both Commonwealth and State parliaments, the Commonwealth is subject to a special limit that does not affect the States; it is not given a general power to make laws for the good government of the nation. Instead, it is only given power relating to specific topics. There are sections scattered throughout the Constitution giving the Commonwealth Parliament power to fine-tune some of the constitutional provisions about the legislative, executive and judicial branches of government; we met some of them in Chapter 15. However, all of the Commonwealth’s powers to make laws generally affecting the public at large (ie, individuals and corporations) are listed in the forty paragraphs of s 51. In addition, there is a short list of exclusive powers in s 52, which will be discussed in Chapter 28, because their main effect is to limit the powers of the State parliaments. Therefore, the Commonwealth Parliament is a parliament of limited, or specified, or enumerated, powers. It needs a “head” of power for a law to be valid (this is an odd legal use of the word, somewhat like its use in “heads of agreement”, and is related to 265

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“headings”, meaning “a distinct topic or category”). Though this proposition is clearly assumed in the Communist Party case noted in 6.20 (in the end, the law failed there because it was supported by no head of power), the clearest statement comes from the Privy Council decision in the Royal Commissions case, Attorney-General (Cth) v Colonial Sugar Refining Company Limited [1913] UKPCHCA 4; (1913) 17 CLR 644. Though the actual conclusion in the case, that the Commonwealth could not authorise a Commission to investigate monopolistic practices in the sugar industry, may not now be followed, the following statement of principle is still good law: [I]t is necessary to look closely at the wording of sec 51. The section commences by declaring that the Parliament of the Commonwealth shall, subject to the new Constitution, have power to make laws for the peace, order, and good government of the Commonwealth. But this power is not conferred in general terms. It is, unlike the corresponding power conferred by sec 91 of the Canadian Constitution Act of 1867, restricted by the words which immediately follow it. These words are “with respect to,” and then follows a list of enumerated specific subjects. Their Lordships have already referred to the material heads in this list. None of them relate to [a] general control over the liberty of the subject …

As we will see, the Commonwealth’s grants of power are interpreted quite broadly, and in the end the Commonwealth can do almost anything it wants by one means or another, but still the drafters of legislation and those considering a challenge to legislation, must ask — what is the head of power for this law?

17.3 Interpretation of grants of power and limits on powers Literal interpretation of most grants of Commonwealth power; the “characterisation” of laws [17.30] Having said that a Commonwealth Act needs a head of power, the next thing to say is that the “heads” have been interpreted liberally. Both ss 51 and 52 are expressed as grants of power “to make laws … with respect to” certain topics. They do not say, “laws whose essential nature relates to” or “laws which are principally with respect to”; just “laws with respect to”. In Fairfax v Federal Commissioner of Taxation [1965] HCA 64; (1965) 114 CLR 1, the trustees of the Fairfax superannuation fund were challenging a law that “encouraged” them to invest in Commonwealth Bonds by denying them certain exemptions from income tax if they did not have a certain amount invested in “public securities”. They argued that this was not a law with respect to taxation, but a law with respect to the investment of the moneys of superannuation funds, which was not a subject upon which the Parliament had any power to make laws. As Kitto J held at [5]–[6]: The Commissioner’s answer is that s 11 is a law with respect to taxation, whatever else it is, and is therefore to be upheld as an exercise of the power conferred on the Parliament by s 51 (ii) of the Constitution.

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The argument for invalidity not unnaturally began with the proposition that the question to be decided is a question of substance and not of mere form; but the danger quickly became evident that the proposition may be misunderstood as inviting a speculative inquiry as to which of the topics touched by the legislation seems most likely to have been the main preoccupation of those who enacted it. Such an inquiry has nothing to do with the question of constitutional validity under s 51 of the Constitution. Under that section the question is always one of subject matter, to be determined by reference solely to the operation which the enactment has if it be valid, that is to say by reference to the nature of the rights, duties, powers and privileges which it changes, regulates or abolishes; it is a question as to the true nature and character of the legislation: is it in its real substance a law upon, “with respect to”, one or more of the enumerated subjects, or is there no more in it in relation to any of those subjects than an interference so incidental as not in truth to affect its character? (emphasis added)

Since the law said, “you pay so much tax if you do one thing, and more if you do another”, its character, or one of its reasonably-arguable characters, was a law with respect to taxation, even though we may suspect that the purpose of the provisions (“the main preoccupation” in Kitto J’s words above) was to encourage/coerce trustees into investing in Bonds and therefore to pay less tax. This is an example of what has become the test of characterisation of a Commonwealth law — simply, is it a law with respect to one of the heads of power? The purpose of enactment is irrelevant; the legal effect is what matters. Similarly, in the Airlines Nationalisation case, cited above in 8.20, ANA had been arguing that the Commonwealth’s power with respect to “trade and commerce with other countries and among the States” extended to those forms of trade and commerce “as subjects of legislative regulation and not of government participation”. The full paragraph from which Dixon J’s dictum, cited above in 8.20, was taken is this: I am of opinion that this argument ought not to be accepted. It plainly ignores the fact that it is a Constitution we are interpreting, an instrument of government meant to endure and conferring powers expressed in general propositions wide enough to be capable of flexible application to changing circumstances. It confuses the unexpressed assumptions upon which the framers of the instrument supposedly proceeded with the expressed meaning of the power. A law authorizing the government to conduct a transport service for inter-State trade, whether as a monopoly or not, appears to me to answer the description, a law with respect to trade and commerce amongst the States. It is only by importing a limitation into the descriptive words of the power that such a law can be excluded.

To speak of “characterisation” does not mean that a law can have only one character. In Melbourne Corporation v Commonwealth [1947] HCA 26; (1947) 74 CLR 31, Dixon J noted that the law under challenge “wears two aspects” and that one of them did not fall under a head of power. But, he reasoned at 79: In the other aspect, the law is connected with a subject of Commonwealth power. Conceivably that connection may be made so insubstantial, tenuous or distant by the character of the control or restriction the law seeks to impose upon State action that it ought not to be

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regarded as enacted with respect to the specified matter falling within the Commonwealth power. If so, the law fails simply because it cannot be described as made with respect to the requisite subject matter. But, if in its second aspect the law operates directly upon a matter forming an actual part of a subject enumerated among the federal legislative powers, its validity could hardly be denied on the simple ground of irrelevance to a head of power. Speaking generally, once it appears that a federal law has an actual and immediate operation within a field assigned to the Commonwealth as a subject of legislative power, that is enough. It will be held to fall within the power unless some further reason appears for excluding it. That it discloses another purpose and that the purpose lies outside the area of federal power are considerations which will not in such a case suffice to invalidate the law.

We will see many further applications of this approach to Commonwealth powers in Chapters 18–21. We will also see that the last-ditch attempts by the States or those defending their interests to “keep the pre-engineers ghosts walking”1 have failed and were given the coup de grâce in Work Choices;2 none of the Commonwealth’s powers are limited by the fear that they are trespassing on a “reserved” State power. Of course, just as Dixon J foreshadowed above, there can come a point at which the connection between a provision and a power (or even the power plus the incidental power, discussed below) is just too tenuous. For example, s 45D of the Trade Practices Act 1975 (Cth), which prohibited “secondary boycotts”, was found generally valid as a law with respect to trading and financial corporations in Actors & Announcers Equity Association v Fontana Films Pty Ltd [1982] HCA 23; (1982) 150 CLR 169, but a provision that the conduct, in concert, of two or more members or officers of a trade union was deemed to be conduct of the union, was held to be invalid for lack of a head of power. As Mason J said at 211, “it is a law about trade unions; to me it has a very remote connexion with corporations, a connexion so remote that the provision cannot be characterized as a law with respect to corporations of the relevant class” (emphasis added).

When limits in one grant of power affect others [17.40] Paragraph 51(i) of the Constitution grants power to the Commonwealth Parliament to make laws with respect to “trade and commerce with other countries and among the States”. Clearly it does not grant power to make laws about trade and commerce purely within a State, but it says nothing about whether another head of power — eg, corporations, or trade marks — might empower the Commonwealth to make laws that had an effect on that trade and commerce. The doctrine of “reserved State powers” was largely built on the inference that para 51(i), by omitting intra-State trade, limited the scope of other Commonwealth powers. For example, in Huddart, 1 A well-known complaint by Murphy J; see, eg, Attorney-General (WA) v Australian National Airlines Commission [1976] HCA 66; (1976) 138 CLR 492 at 530. 2 New South Wales v Commonwealth [2006] HCA 52; (2006) 229 CLR 1.

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Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330 the majority gave a restricted meaning to the corporations power (para 51(xx)), to avoid trespassing on the State’s power to regulate trade within the State, and in Attorney-General (NSW); Ex rel Tooth & Co Ltd v Brewery Employees’ Union of NSW [1908] HCA 94; (1908) 6 CLR 469 the majority likewise gave a restricted definition of “trade marks” in para 51(xviii), in part based on the effect that a broad interpretation would have on the State’s power. However, the doctrine was “exploded” in the Engineers’ case; note that both the passages quoted above in 8.20 about the application of ordinary rules of construction refer specifically to the need not to read limitations into words conferring a power. Since then, it has been accepted that each of the grants of power is to be construed separately, so that the scope of one power is not limited by inferences drawn from another. Among the many cases applying this principle, the leading one is possibly Pidoto v Victoria [1943] HCA 37; (1943) 68 CLR 87, where Latham CJ held that the very specific words about the means of settling industrial disputes in para 51(xxxv) “are not, in my opinion, so expressed as to be capable of being so construed as to impose a limitation upon other powers positively conferred”. The consequences of this on the interpretation of the corporations power in particular will be discussed in Chapter 18. There is, however, a qualification. Where words of express limitation in a paragraph would be rendered utterly ineffective if they did not qualify other powers, then they do qualify them. The principle example of this is para 51(xxxi) — the power to acquire property on just terms. In its absence, every other power would, as part of its own scope or in conjunction with the incidental or executory power in para 51(xxxix), include the power to acquire property; the defence power must include a power to acquire property for barracks and fortifications, the posts and telecommunications power must include a power to acquire for post offices, telephone exchanges and microwave towers, and so on. If para 51(xxxi) did not limit them, all of these things could be acquired with no requirement to pay just terms. Therefore the High Court has held that para 51(xxxi) “abstracts power with respect to the acquisition of property from the other paragraphs of s 51”, in the words of Deane and Toohey JJ in Re Director of Public Prosecutions; Ex Parte Lawler [1994] HCA 10; (1994) 179 CLR 270 at 283. The acquisitions power will be discussed in more detail in Chapter 22. The kind of case just mentioned is rare. As will be discussed in Chapter 20, the inclusion of “and in relation thereto, parental rights, and the custody and guardianship of infants” in para 51(xxii), the divorce power, has been held by some Justices to have a limiting effect on para 51(xxi), the marriage power. Another instance is paragraph 51(xiii), which has a qualification but then an extension; it gives power to make laws with respect to “banking, other than State banking; [and] also State banking extending beyond the limits of the State concerned”. This has been held to have what could be called a half-way limiting effect; if a law can be characterised as one with respect to banking (presumably, even if it could be also related to another power) it cannot apply to State banking within the bank’s home State, but “if a law is not one with respect to banking, it is not subject to a restriction that it must not touch or concern State banking”: Bourke v State Bank of NSW [1990] HCA 29; (1990) 170 CLR 276. 269

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These special cases arise only because of the inclusion of unusual qualifying phrases in the paragraphs granting the relevant powers. Otherwise, the general principles stated below apply: n

n

n

a law is with respect to a head of power if it changes, regulates or abolishes rights, duties, powers and privileges that are related to the topic of the power (a rephrased version of Kitto J’s test in Fairfax); it does not matter that a law can be characterised as a law with respect to something outside Commonwealth power if can also be characterised as a law with respect to a head of power (Dixon J in Melbourne Corporation), and a qualifying phrase in one paragraph qualifies only the power granted by that paragraph and has no effect on other paragraphs (Latham CJ in Pidoto), unless that approach would utterly rob the qualifying phrase of any effect.

Purposive grants of Commonwealth power [17.50] While most of the grants of power authorise laws with respect to a defined subject matter, some are better characterised as grants to make laws for a particular purpose. The defence power is the prime example. As Dixon J said in Stenhouse v Coleman [1944] HCA 36; (1944) 69 CLR 457: In most of the paragraphs of s 51 the subject of the power is described either by reference to a class of legal, commercial, economic or social transaction or activity (as trade and commerce, banking, marriage), or by specifying some class of public service (as postal installations, lighthouses), or undertaking or operation (as railway construction with the consent of a State), or by naming a recognized category of legislation (as taxation, bankruptcy). In such cases it is usual, when the validity of legislation is in question, to consider whether the legislation operates upon or affects the subject matter, or in the last case answers the description, and to disregard purpose or object. … But “a law with respect to the defence of the Commonwealth” is an expression which seems rather to treat defence or war as the purpose to which the legislation must be addressed. This peculiarity in the power has caused no departure from the practice that excludes from investigation the actual extrinsic motives and intentions of legislative authorities. But, however it may be expressed, whether by the words “scope”, “object”, “pith”, “substance”, “effect” or “operation”, the connection of the regulation with defence can scarcely be other than purposive, if it is within the power. No doubt it is possible that the “purpose” here may be another example of what Lord Sumner described as “one of those so-called intentions which the law imputes; it is the legal construction put on something done in fact” (Blott’s Case). For apparently the purpose must be collected from the instrument in question, the facts to which it applies and the circumstances which called it forth. It is evident that among these circumstances the character of the war, its notorious incidents, and its far-reaching consequences must take first place. In some cases they must form controlling considerations, because from them will appear the cause and the justification for the challenged measure.

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It follows from this that the scope of the defence power becomes wider as Australia’s need to defend itself becomes more desperate. This will be considered in more detail in Chapter 19. The other power with a strongly purposive aspect is what is generally called the “incidental power” in para 51(xxxix) — the power “to make laws with respect to matters incidental to the execution of any power vested by the Constitution in the Parliament … the Government, … the Judicature, or in any department or officer…”. Bearing in mind that it does not just say “incidental to” but “incidental to the execution of ”, it might be better thought of as the executory power. In so far as this refers to the legislative powers of the Parliament, it may not add much to the content of the enumerated powers. In Baxter v Ah Way [1909] HCA 30; (1909) 8 CLR 626, the defendant challenged the validity of a section of the Customs Act 1901 (Cth) that allowed the executive to proclaim items as prohibited imports. O’Connor J said: The power of legislation is given in that form [to make laws for the peace, order and good government] in sec 51 with respect to trade and commerce with other countries, and with respect to taxation. And there is also a power to make laws incidental to the exercise of any power vested in Parliament by the Constitution. Within that latter class is sub-sec (xxxix) of sec 51. It is a fundamental principle of the Constitution that everything necessary to the exercise of a power is included in the grant of a power. Everything necessary to the effective exercise of a power of legislation must, therefore, be taken to be conferred by the Constitution with that power.

His Honour then appeared to have relied purely on the “built-in” incidental aspect of the trade and commerce power to hold that the provision was valid, without feeling the need to support it by the “incidental” power. Since then, it has been commonplace for the Court to find that a law is valid either under a particular power or “that power in combination with the incidental power”, without feeling the need to specify which — for an example, see R v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd [1977] HCA 6; (1977) 136 CLR 235 per Mason J at [14] and [25]. However, para 51(xxxix) has a real effect in so far as it authorises the making of laws incidental to the execution of executive and judicial powers. A provision such as s 55B(3) of the Judiciary Act 1903 (Cth), prohibiting legal practitioners from appearing in federal courts unless their names appear on the High Court Register of Practitioners, is presumably incidental to the execution of the laws made under para 77(i) defining the jurisdiction of the federal courts — although even para 77(i) might have a “built-in” incidental fringe. When the express incidental, or executory, power is relied upon, there is a proportionality requirement. It has been suggested that laws for purposes as far apart as criminalising sedition (see Chapter 19) and spending money to celebrate Australian nationhood (Chapter 21) may be incidental to the execution of the executive power under s 61. However, there is a limit. In Davis v Commonwealth [1988] HCA 63; (1988) 166 CLR 79, the Commonwealth had set up the Bicentennial Authority to coordinate the supposed bicentennial of Australia, and given it power to prohibit the use of words like 271

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“Bicentennial” or “200 years” on unlicensed souvenirs. Davis, an Indigenous protestor who wanted to print T-shirts protesting against “200 years of suppression and depression”, challenged the Act. The Commonwealth submitted that the executive power, operating in conjunction with the incidental power, supported the laws as “reasonably adapted to the purpose of facilitating and protecting the attainment of the objects of the commemoration of the Bicentenary and the objects of the Authority”, but the Court held the restrictions invalid. According to Mason CJ, Deane and Gaudron JJ at [33]: In arming the Authority with this extraordinary power the Act provides for a regime of protection which is grossly disproportionate to the need to protect the commemoration and the Authority.

That is, a law relying on the incidental power must be proportionate, or reasonably adapted, to some purpose or object that the law is pursuing. The power is purposive, not in the sense that its use must be directed to a particular purpose like defence, but in the sense that its use must be proportionate to some accepted purpose.

Purposive interpretation of limits on powers [17.60] There are few guarantees of individual rights in the Constitution, but there are some sections that reinforce federalism by imposing limits on State or Commonwealth powers. The Justices of the High Court once tried to interpret ss 92 and 99 fairly literally, but found they had to make ad hoc exceptions to avoid absurd results, and s 117 was read down to mean almost nothing. More recently, a more purposive approach has been taken, in two senses — the Court considers the purpose of the inclusion of the sections rather than just reading them literally, and if a law does not appear to be intended to flout the purpose of a section, but has an incidental effect of breaching it, the purpose of the passage of the law will be considered. If the effect (say, of discriminating against interstate trade) is not disproportionate (or is no more than “appropriate and adapted”) to the legitimate purpose for passage of the law, the law is valid. Sections 99, 92 and 117 will be discussed in detail in Chapters 23, 30 and 31, but the basic approach to their interpretation is mentioned here to dispel any feeling that the mechanical interpretation of “laws with respect to” a topic carries across into all sections of the Constitution.

No sign of “States’ rights”, a “federal balance” or “dual sovereignty” [17.70] In Victoria v Commonwealth [1971] HCA 16; (1971) 122 CLR 353 (the Payroll Tax case) Windeyer J said at 397: I have never thought it right to regard the discarding of the doctrine of the implied immunity of the States and other results of the Engineers’ Case as the correction of antecedent errors or as the uprooting of heresy. To return today to the discarded theories would indeed be an error and the adoption of a heresy. But that is because in 1920 the Constitution was read in a new light, a light reflected from events that had, over twenty

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years, led to a growing realization that Australians were now one people and Australia one country and that national laws might meet national needs. … But reading the instrument in this light does not to my mind mean that the original judges of the High Court were wrong in their understanding of what at the time of federation was believed to be the effect of the Constitution and in reading it accordingly.

With respect to Sir Victor and to the earlier Justices whom he was defending, that is rather too generous. Isaacs and Higgins JJ had been at the Conventions with the first three Justices, and they thought that the three senior ones were wrong. As Windeyer J said himself, earlier in the same paragraph of the Payroll Tax case: … to my mind the phrase “dual sovereignty”, which we sometimes hear, is for law a misleading misnomer when applied to the Commonwealth of Australia. There is dual authority but only one sovereignty.

He was referring to the sovereignty of the Parliament at Westminster; these days we would see it, as was explored in Chapter 5, as the political sovereignty of the people or, in pedantic legal mode, the sovereignty of the Representatives plus the double majority of the people. The Constitution limits the powers of both the Commonwealth and the States; neither is more than quasi-sovereign in some defined areas, and the States’ area has been shrinking all the time.3 As to the suggestion that the Constitution is a “compact” between the States, Windeyer J went on in Payroll Tax to say: “The word ‘compact’ is still appropriate but strictly only if used in a different sense — not as meaning a pact between independent parties, but as describing a compaction, a putting of separate things firmly together by force of law.” The document that performs this “compaction” creates a division of powers between the Commonwealth and States, but there is no sign of an attempt to create a balance; in fact when you read it with a modern eye it is extraordinary how much power it gives the Commonwealth (including the power to appoint the Justices who interpret it), and how it then imposes all the limits on the powers of the States as noted in 6.50 and discussed in full in Part E. The Constitution does not distribute “rights”, it distributes powers; the only reference to a right of the States is in s 100 which protects the “right of a State or the residents therein to the reasonable use of the water of rivers for conservation of irrigation”, and then it only protects those rights from Commonwealth laws or regulations of trade, commerce or revenue — hardly a guarantee of “States’ rights”. Section 107, which was relied on in some of the earlier “reserved powers” cases and in Gavan Duffy J’s dissent in the Engineers’ case, does not “reserve” any power to the States; it preserves them only in the sense of continuing them, subject to other sections that vest exclusive powers in the Commonwealth or withdraw powers from the States, and then laws made under these continued powers are, under s 109, invalid if they are inconsistent 3 See Margaret Kelly’s comment on the Work Choices case: “Overdue Recognition that the States aren’t Sovereign”, The Australian, 17 November 2006, at www.theaustralian.com.au/news/opinion/ margaret-kelly-overdue-recognition-that-the-states-arent-sover/story-e6frg6zo-1111112535625.

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with a Commonwealth law. Defenders of the reserved powers doctrine4 like to quote the resolution passed at the beginning of the Convention in 1897, that the colonies were only to make “such surrenders of power as may be agreed upon to secure uniformity of law and administration in matters of common concern”.5 However, the founders had then proceeded to give a long list of broadly-described legislative powers to the Commonwealth. Quick and Garran showed foresight when they said:6 In the early history of the Commonwealth the States will not seriously feel the deprivation of legislative power intended by the Constitution, but as Federal legislation becomes more active and extensive the powers contemplated by the Constitution will be gradually withdrawn from the States Parliaments and absorbed by the Federal Parliament. (emphasis added)

As time went on, the Commonwealth has come to think that a wider range of areas are “matters of common concern” that need to be dealt with by uniform national laws, and it has usually been able to find a head of power to support such laws. Although, as noted at the end of 8.30, the High Court retains the power to surprise us all by overruling its earlier decisions, the grounds for returning to the pre-1920 doctrines are extremely weak and it is most unlikely to happen.

17.4 A last resort; referral of power by the States [17.80] The drafters were well aware that their list of Commonwealth powers might be insufficient for the needs of the future, so they included, near the end of the list of powers, the power to make laws with respect to: (xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law

This power has been used with increasing frequency in recent years. One of the commonly-argued advantages of federalism is that, in theory, it allows an experimental approach to laws — if States have different laws, the people and politicians can see which ones “work” better (by whatever, and whoever’s, standard that is judged) and the successful ones can then be copied.7 In practice, in a country with increasing mobility, people are simply irritated by differences in the laws. Business people are particularly 4 Such as Nicholas Aroney, “Constitutional Choices in The Work Choices Case, Or What Exactly is Wrong With The Reserved Powers Doctrine” (2008) 32 MULR 1 in which he actually argues the case for reserved powers much more coherently than the early Justices did. 5 Official Record of the Debates of the Australasian Federal Convention (Adelaide) 23 March 1897 at 17. 6 Quick & Garran, The Annotated Constitution of the Australian Commonwealth, Angus & Robertson, 1901, p 933. 7 For example, Geoffrey Walker, “Ten advantages of a federal constitution”, OnLine Opinion, 15 May 2001, at http://www.onlineopinion.com.au/view.asp?article=1265.

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Chapter 17 Sources and Interpretation of Commonwealth Powers

annoyed; for example when John Elliott was not only the Chair of Elders-IXL but the National President of the Liberal Party, he gave a speech8 in which he not only protested about over-regulation in general, but about his national jam company having to comply with eight different sets of regulations across the country. Articles like “Get rid of the States”9 appear in the Business Review Weekly. Ordinary people and their children who move from State to State are annoyed by differences in curriculums.10 People are confused, and feel a sense of injustice, by the different intestacy laws of the different States.11 Increasingly, the Commonwealth and States are working together to harmonise the laws across the nation. We will note other ways of achieving uniformity or harmony in Chapter 35, but one way is for the States to refer powers under the above paragraph. We will see in Chapter 18 that even in once hotly-contested matters such as the formation of corporations and workplace relations, the States have referred power to the Commonwealth (except, in the latter case, for State public servants and local government employees) and the Commonwealth has enacted laws under para 51(xxxvii). This has also been done to enable the Commonwealth to make laws about: n n n n n n

property and custody disputes in relation to de facto relationships; terrorism; water (ie, the Murray-Darling Basin); the regulation of credit providers; the registration of personal property securities; and most recently, the registration of business names.12

In several of these cases all States have referred power; in a few cases Western Australia has stood aloof. There is some case law13 and academic commentary14 about the issue of whether a referral, once made, can ever be withdrawn. Recent referrals have included a “conditional 8 John Elliott, “The Need for Deregulation in Australia”, a speech given at the Australian Legal Convention 1983, published as The James N. Kirby Paper 1983 (Institute of Production Engineers, 1983). 9 Leo D’Angelo Fisher, “Get Rid of the States”, BRW, 17–23 March 2011, pp 34–9 10 The author went to six different primary schools in three States. It seemed that everywhere he went the class was about to study the colonists’ exploration of Australia — Hume, Sturt, Stuart, Burke and Wills, etc. He has never known whether there was some topic that he always missed out on by moving at the wrong time. 11 See the discussion on the ABC’s Law Report, 21 Sept 2010, at http://www.abc.net.au/radionational/ programs/lawreport/australias-complex-and-conflicting-inheritance-laws/2960710. 12 A footnote listing all the referral Acts would fill a page. They can be found readily by a search of each State’s Consolidated Acts on AustLII (www.austlii.edu.au). The names, or short titles, are generally in the form of [Topic] (Commonwealth Powers) Act, or Commonwealth Powers [Topic] Act. 13 For example, R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd [1964] HCA 15; (1964) 113 CLR 207; and Graham v Paterson [1950] HCA 9; (1950) 81 CLR 1. 14 For example, Cheryl Saunders, “A New Direction for Intergovernmental Arrangements” (2001) 12 Pub LR 274; Dennis Rose QC, “Uniform Personal Property Security Legislation for Australia — Constitutional Issues” (2002) 14 Bond LR 3; and Hon Justice Robert French, “The Referral of State Powers” (2003) 31 UWALR 19.

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Part D The Commonwealth Parliament and its Powers

sunset” term providing in advance that the referral can be terminated, and it seems to be agreed that these are effective. As already noted, referral is not the only way of achieving uniformity, and other ways will be discussed in Chapter 35. Cross-references: Specific examples of the use of the interpretational approaches discussed in the earlier parts of this Chapter will of course arise in most of the following chapters. As to the general principles, the overall consequence of the principles discussed here — that it is to no avail for the States to argue for a narrowing of Commonwealth powers in the name of a “federal balance” — will be visited again, in the context of the effect of the Constitution on the States, in Chapter 28.

FURTHER READING The articles listed here are relevant to the issues raised in Chapter 8, this Chapter, and Chapter 28: Gabrielle Appleby, “Proportionality and Federalism: Can Australia learn from the European Community, the US and Canada?” (2007) 26 U Tas LR 1 Shipra Chordia and Andrew Lynch, “Federalism in Australian Constitutional Interpretation: Signs of Reinvigoration?” (2014) 33 UQLJ 83 Graeme Hill, “‘Originalist’ vs ‘Progressive’ Interpretations of the Constitution — Does it Matter?” (2000) 11 Public Law Rev 159 Leslie Zines, “Dead Hands or Living Tree? Stability and Change in Constitutional Law” (2004) 25 Adelaide Law Rev 3

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CHAPTER 18

Business-Regulation Powers — Trade and Commerce, Corporations, Other Powers

18.1 Context and overview [18.10] This chapter and the four following ones address the extent to which the Commonwealth Parliament can make valid laws under its various “heads” of power. The paragraphs of s 51 are not in a particularly logical order, but they can be seen as fitting into five main groups: n n n n n

powers enabling the Commonwealth to provide for uniform regulation of business in Australia — the topic of this chapter; powers enabling Australia to face the outside world as one nation — Chapter 19; powers providing for some central control of social institutions and provision of social services — Chapter 20; powers relating to the raising and the spending of money by government — Chapter 21; and ancillary powers, such as the power to acquire property for the other purposes of the Commonwealth government which is also a limitation on government power and is discussed in Chapter 22 and the incidental power, which was discussed in Chapter 17.

Further express limitations which apply exclusively to the Commonwealth Parliament are discussed in Chapters 23 and 24. The powers discussed in this chapter are: the overseas and interstate trade and commerce power; the corporations power; the posts and telegraphs power; and some 277

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more specialised powers that enable the Commonwealth to regulate, engage in, and support national business activities. The general principles of interpretation of Commonwealth powers were discussed in the several paragraphs of 17.3. We will see repeated examples of those principles being put into practice in this and the following chapters. Even after the “explosion” of the reserved powers doctrine in the Engineers case’,1 there have been members of the High Court in most decades who have given some powers — especially the external affairs power and the corporations power — a narrow interpretation. However, the number of such Justices has declined decade by decade and the broader interpretations of these and other powers have now triumphed so completely that in this and the next three chapters the minority, narrower, interpretations of the powers will only be referred to briefly and the emphasis will be on the majority decisions.

18.2 Commonwealth’s techniques for relying on several powers in one Act [18.20] Taken together, the corporations, interstate trade and commerce and posts and telegraphs powers cover much of the business activity carried out in the nation, so the Commonwealth drafters have used a number of techniques to group them together in the one Act, to regulate as much conduct as possible. In the Australian Industries Preservation Act 1906 (Cth), the Parliament used pairs of sections applying to the same conduct, with one section applying in relation to trade and commerce with other countries and among the States, and the following one applying to the conduct of trading or financial corporations. In Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330 (Huddart Parker), the majority of the High Court ruled that the sections based on the corporations power were invalid because they trespassed upon the States’ “reserved power” over trade within a State. That notion, of course, was “exploded” in the Engineers’ case, but no government tried to make any significant use of the corporations power for decades afterwards. In 1965, the Parliament tried again, with the Trade Practices Act 1965 (Cth). It had many sections expressed in general language, providing that certain agreements between “persons” were “examinable”, and then s 7 purported to narrow down the scope of the Act to matters within a Commonwealth head of power. Various subsections of s 7 provided that the restrictions and practices to which the Act applied “included” those in the course of trade and commerce with other countries or among the States, where a party was a foreign, trading or financial corporation, and so on. In Strickland v Rocla Concrete Pipes Ltd [1971] HCA 40; (1971) 124 CLR 468 (Concrete Pipes) the High Court unanimously overruled Huddart Parker and held that the sections dealing with corporations could have been valid by themselves because the corporations power extended at least to the trading and financial activities of trading and financial corporations. However, although 1 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129.

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McTiernan and Gibbs JJ had no trouble in reading the Act “distributively” in the light of s 7, the majority held that this could not be done and that the Act was invalid.2 Emboldened by the interpretation of the corporations power in Concrete Pipes, Parliament enacted the Trade Practices Act 1974 (Cth) (later renamed the Competition and Consumer Act 2010 (Cth)). Most of the substantive provisions of the Act start with “[a] corporation shall not, in trade or commerce”, “corporation” being defined in terms of para 51(xx). Concrete Pipes makes it clear that these provisions are generally valid. But s 6(2) provides that as well as the direct reading, the Act also has effect as if all the references to “corporation” include a reference to a person, and any references to trade or commerce are confined, at the same time, to trade or commerce: (i) between Australia and places outside Australia; or (ii) among the States; or (iii) within a Territory, between a State and a Territory or between two Territories; or (iv) by way of the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth …

In addition, s 6(3) provides that many sections have effect as if “corporation” includes “person” and the sections are “confined in their operation to engaging in conduct to the extent to which the conduct involves the use of postal, telegraphic or telephonic services or takes place in a radio or television broadcast”. This drafting device was held to be valid in R v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd [1977] HCA 6; (1977) 136 CLR 235. At 244–5, Mason J explained the operation of the section, and held that the provisions of the Act were “supported by the heads of constitutional power on which s 6(2) and (3) are based”. Yet another way of “roping in” as many heads of power as possible was used in the “Work Choices” amendments to the Workplace Relations Act 1996 (Cth) and is now used in the Fair Work Act 2009 (Cth) s 14. Most provisions of the Act apply to “national system” employers and employees, and a “national system employer” is defined as: (a) a constitutional corporation, so far as it employs, or usually employs, an individual; or (b) the Commonwealth, so far as it employs, or usually employs, an individual; or (c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or (d) a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as: (i) a flight crew officer; or (ii) a maritime employee; or (iii) a waterside worker; or (e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or (f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory. 2 For giving an Act a “distributive operation”, see 8.60.

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Part D The Commonwealth Parliament and its Powers

“Constitutional corporation” and “constitutional trade and commerce” are defined in terms of paras 51(xx) and (i) respectively. The “Work Choices” amendments, and s 14 in particular, were held valid in New South Wales v Commonwealth [2006] HCA 52; (2006) 229 CLR 1 (Work Choices). The effect of CLM Holdings and Work Choices is that we know that these Acts, and many other Acts based on the trade and commerce and corporations powers, are valid. However, as noted in Chapter 1, the constitutional language is used in the Acts so an “applied constitutional” issue will often arise when working out whether an Act applies to a fact situation. Examples of these will be seen below in 18.80 and 18.130.

18.3 Laws with respect to trade and commerce with other countries and among the States [18.30] Paragraph 51(i) gives the Commonwealth Parliament power, subject to the Constitution, to make laws on the above topic. It is easier to think of this in abbreviated form as the power with respect to interstate and overseas trade and commerce, or in the phrase used in recent Acts, “constitutional” trade and commerce. Clearly, this power does not extend to laws which are principally about trade and commerce within a State, but a Commonwealth law can still affect matters wholly within a State if: n n

it is enacted under another head of power, or it is enacted under the trade and commerce power, and the intrastate matter is sufficiently connected with the interstate or overseas trade that is subject to the law (see 18.70 below).

Trade and commerce [18.40] Two paragraphs of s 51 include similar terms (para (i) refers to “trade and commerce” and para (xx) to “trading and financial corporations”) and “trade and commerce among the States” features in s 92 as well as in para 51(i). The interpretation of these words and phrases is similar across the three provisions. “Trade” is such an everyday concept that it hardly needs definition, but in a case on whether a body was a trading corporation, Stephen J said “acts of buying and selling … are at the very heart of trade”: R v Trade Practices Tribunal; Ex parte St George County Council [1974] HCA 7; (1974) 130 CLR 533 at 570. His Honour also noted at 579 that the usual purpose of trading was to make a profit, but “if some other motive actuates a corporation or individual to engage in trading activities those activities will not themselves be altered in character”. Thus the Council, which was directed by statute to supply electricity on a cost-recovery basis, was a trading corporation. The majority, as noted below, did not hold that the Council was subject to the Act but that would clearly be the outcome under the current law. Comparing the phrase “trade and commerce” with “trading and financial” in para 51(xx), one might think of “trade” as having to do with dealing in goods and 280

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“commerce” having more to do with purely financial business, like banking, investment and insurance. However, in s 92 cases the courts have treated “trade and commerce” as a composite if not tautologous phrase. For example, in the Bank Nationalisation case (Bank of NSW v Commonwealth [1948] HCA 7; (1948) 76 CLR 1; Commonwealth v Bank of NSW [1949] UKPCHCA 1; (1949) 79 CLR 497) the High Court majority and the Privy Council held that the transfer of credit and “traffic in intangibles” is just as much trade and commerce as traffic in tangibles (at 76 CLR 285), without distinguishing between “trade” and “commerce”.3 Trade and commerce is not only the actual transfer of goods or intangibles or the actual carriage for reward: [T]he mutual communings, the negotiations, verbal and by correspondence, the bargain, the transport and the delivery are all, but not exclusively, parts of that class of relations between mankind which the world calls “trade and commerce” — W & A McArthur Ltd v Queensland [1920] HCA 77; (1920) 28 CLR 530 per Knox, Isaacs and Starke, at 546–7.

Nor is it just the contracting. The carriage of passengers, at least for reward, is trade and commerce (Australian National Airways Pty Ltd v Commonwealth (No 1) (Airlines Nationalisation case) [1945] HCA 41; (1945) 71 CLR 29) and so too is the delivery of goods.

Trade and commerce among the States [18.50] While the formation of a contract is part of trade, not every contract that results in goods crossing a State border is part of interstate trade. In W & A McArthur, above 18.40, where a New South Wales company was supplying goods into Queensland, their Honours said, “[a] contract of sale if effected … might, at the option of the vendor, for all that appears, be consummated entirely within the State of Queensland” (eg, the company could already have stock in Queensland and simply arrange for its delivery to the buyer). It was only if “the goods offered for sale or agreed to be sold are … stated … either by express stipulation or necessary implication [as intended to be] supplied from New South Wales, or anywhere outside Queensland” that the contract would be made in trade or commerce among the States, and thus protected by s 92.

Scope of the power [18.60] The power has been interpreted in ways that illustrate the general principles of interpretation, and of delegation, already noted in Chapters 17 and 12 respectively. The paragraph empowers the Parliament not only to regulate the trade and commerce of others, but to set up a Commonwealth-owned or controlled body to engage in 3 For example, Rich and Williams JJ at 76 CLR 285, Starke J at 306, Dixon J at 380 and 383; Privy Council at 79 CLR 633. Cf the Concise Oxford Dictionary which defines “commerce” as “exchange of merchandise or services, especially on a large scale”.

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interstate and/or overseas trade: Australian National Airways Pty Ltd v Commonwealth (No 1) [1945] HCA 41; (1945) 71 CLR 29, and Australian Coastal Shipping Commission v O’Reilly [1962] HCA 8; (1962) 107 CLR 46. Once it has established the body, it is within the power, possibly assisted by the incidental power, to immunise it from paying State taxes. As Dixon CJ said in the Coastal Shipping case, above, at 55: The legislative power seems ample not only to enable the Parliament to establish a corporate agency of the Commonwealth to carry on an overseas and inter-State shipping line, but also to protect the Commonwealth Government body from what may be considered the embarrassment of taxation by the various States.

As to regulating the conduct of others, it supports laws that: n n

n

n

n

n

prohibit classes of imports, or delegate the power to name prohibited imports to the executive; Baxter v Ah Way [1909] HCA 30; (1909) 8 CLR 626 (see 12.40); prohibit exports, even if the criteria for prohibition are imposed for purposes, like environmental protection, that have no direct connection with any Commonwealth head of power; Murphyores Inc Pty Ltd v Commonwealth [1976] HCA 20; (1976) 136 CLR 1 (compare Fairfax v Federal Commissioner of Taxation [1965] HCA 64; (1965) 114 CLR in 17.30); protect constitutional trade and commerce from, for example, strike or boycott action; Seamen’s Union of Australia v Utah Development Co [1978] HCA 46; (1978) 144 CLR 120; outlaw exploitative or deceptive trading practices in interstate or overseas trade and subject them to civil remedies or penalties; R v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd [1977] HCA 6; (1977) 136 CLR 235 per Mason J at 244; provide for the resolution of disputes and the determination of working conditions in the stevedoring industry, in so far as the stevedoring operations relate to “the importation or exportation by sea of goods in the course of inter-State or overseas trade and commerce”, or the overseas shipping industry; R v Wright; Ex parte Waterside Workers’ Federation of Australia [1955] HCA 35; (1955) 93 CLR 528; Re Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc [2003] HCA 43; (2003) 214 CLR 397; and regulate the fares to be charged in Australia for purely overseas sectors of an international flight, at least where the passengers were travelling to or from Australia; R v Halton; Ex parte AUS Student Travel Pty Ltd [1978] HCA 26; (1978) 138 CLR 201.

Application of laws made under the power to matters within a State [18.70] The similar power in the United States Constitution (Art 1, s 8, cl 3) has been interpreted as giving the Congress an almost exclusive power over trade and commerce, which extends to the regulation of activities wholly within a State on the basis that all commerce is necessarily intermingled: Wickard v Filburn 317 US 111 (1942). With the exception of Murphy J, no Justice of the High Court has ever adopted this view. As 282

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Gibbs J said in Attorney-General (WA) v Australian National Airlines Commission [1976] HCA 66; (1976) 138 CLR 492 (Western Australian Airlines): It has been held again and again — and in my respectful opinion, correctly held — that s 51(i) recognizes a distinction between interstate trade on the one hand and the domestic trade of the States on the other, and that this distinction must be maintained however much interdependence may now exist between those two divisions of trade and however artificial the distinction may be thought to be.

However, Commonwealth laws that affect matters within a State have been held valid when it would be just too artificial to insist on the distinction. The prime example is air safety laws; to have one air control system for intrastate flights and another for interstate and overseas flights would threaten the safety of both. Although this was not recognised in R v Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608, in the early days of aviation, it became more compelling as the speed of planes and the number of them in the air increased. In 1964, the Commonwealth promulgated some new regulations not only controlling the flying of planes in all airspace but licensing aircraft for use in regular public transport on safety grounds. In Airlines of NSW Pty Ltd v New South Wales (No 2) [1965] HCA 3; (1965) 113 CLR 54, a majority of five of the High Court held the regulations were supported by para 51(i). Kitto J remarked: [A] federal law which provides a method of controlling regular public transport services by air with regard only to the safety, regularity and efficiency of air navigation is a law which operates to protect against real possibilities of physical interference the actual carrying on of air navigation, and therefore is, in every application that it has, a law “with respect to” such air navigation as is within federal power, and none the less so because it is also legislation with respect to that intra-State air navigation which is not within the power.

However, regulation 200B went further, and provided that a licence under the earlier regulations gave the licensee “complete authority” to fly on licensed routes, notwithstanding State laws. The Commonwealth and New South Wales Governments had, for a mixture of political reasons and personal likes and dislikes, given licences to fly the Sydney–Dubbo route to rival airlines. The Court unanimously held that reg 200B had nothing to do with safety and therefore, since it applied to a purely intrastate activity, it had nothing to do with para 51(i) trade and commerce, and was invalid. This meant that an airline needed both Commonwealth and State licences to fly on an intrastate route, and no airline had a licence to fly the direct Sydney–Dubbo route. For some time, Airlines of NSW provided a Sydney–Dubbo service via Canberra. The stand-off was resolved a few months after the case by a change of government in New South Wales. In the Western Australian Airlines case, above, a Commonwealth law purported to allow the government-owned Australian National Airlines Commission to operate airline services between places in the one State “for the purpose of the efficient competitive and profitable conduct of its business of conducting interstate and territorial services”. The Court, Murphy J dissenting, held that the provision could not 283

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authorise the flying of an intrastate leg on an interstate service; it was one thing to allow regulation of intrastate flights for safety reasons but another to allow it for economic reasons. However, Stephen and Mason JJ joined Murphy J in holding that an intrastate leg could be authorised on a Perth–Darwin flight, because that was a law under the Territories power which, as we shall see in Chapter 36, is more “plenary” than the powers in s 51. Air transport is clearly a special case, but other cases show that intrastate matters can be regulated under the power if the factual connection with interstate trade is close enough. In Redfern v Dunlop Rubber Australia Ltd [1964] HCA 9; (1964) 110 CLR 194, a group of tyre retailers was suing under the interstate-trade-andcommerce sections of the Australian Industries Preservation Act 1906 (Cth) (those that had been held valid in Huddart Parker), alleging that Dunlop and other manufactures had agreed to fix prices. The defendants argued that if they had done so the agreement was not limited to interstate or overseas trade, and that either the Act did not apply to them or it was invalid. The High Court rejected this argument, Owen J saying at 232: [T]he Parliament may validly enact a law forbidding the making of contracts or the formation of combinations in relation to overseas or inter-State trade or commerce which in fact restrain or are intended to restrain trade or commerce, be it overseas, inter-State or intra-State in character.

O’Sullivan v Noarlunga Meat Ltd [1954] HCA 29; (1954) 92 CLR 565 involved an argument that a Commonwealth law was inconsistent with a State law, and will be revisited in Chapter 32. The State argued that the Commonwealth laws — the Meat Export Control Act 1935 (Cth) and the Commerce (Meat Export) Regulations — were invalid because they were imposing a licensing requirement and strict conditions on a slaughter-house, which was located of course wholly within the State. However, the High Court held the regulations were valid. In the words of Fullagar J at 598: It is true that the Commonwealth possesses no specific power with respect to ­slaughterhouses. But it is undeniable that the power with respect to trade and commerce with other countries includes a power to make provision for the condition and quality of meat or of any other commodity to be exported. … By virtue of that power all matters which may affect beneficially or adversely the export trade of Australia in any commodity produced or manufactured in Australia must be the legitimate concern of the Commonwealth. Such matters include not only grade and quality of goods but packing, get-up, description, labelling, handling, and anything at all that may reasonably be considered likely to affect an export market by developing it or impairing it. It seems clear enough that the objectives for which the power is conferred may be impossible of achievement by means of a mere prescription of standards for export and the institution of a system of inspection at the point of export. It may very reasonably be thought necessary to go further back, and even to enter the factory or the field or the mine.

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McTiernan J expressed the same idea in different words at 581: “The regulations prescribing the standard requirements for registered establishments have a real and sub­ stantial connection with the subject of trade and commerce in meat with other countries”.

Applied constitutional law — when is a contract made in “trade and commerce among the States”? [18.80] As noted above, we know that the “trade and commerce extension” of the former Trade Practices Act 1974 (Cth) is valid because the High Court said so in CLM Holdings, above 18.20, but we may have to check carefully whether a particular dealing was actually in trade and commerce with other countries or among the States. The Trade Practices Commission failed to do this in Swan v Downes (1978) 34 FLR 36. Downes was a sole trader with headquarters on the Gold Coast, Queensland, who had commission agents make contracts on his behalf, all over the country, for the supply of overseas magazines. He was charged with a breach of s 58 of the Trade Practices Act 1974 (Cth),4 as extended by the “interstate trade and commerce” extension discussed in 18.20 above, in that he had, in trade or commerce among the States, accepted payment for goods without intending to supply them. Franki J applied the principle from W & A McArthur, above 18.40, and held that, even though the money was known to have been remitted by Downes’ agents to Queensland, payment had been accepted by the agents at the homes of the intending buyers, and there was nothing in the contract or the circumstances to suggest that the money would necessarily be remitted interstate. Therefore the money had not been accepted in trade and commerce among the States. (The contract of course did imply that magazines would come from overseas, but the TPC had been trying to use the case as a test case on the interstate extension, and had not pleaded the overseas extension.)

18.4 Laws with respect to foreign corporations, and trading and financial corporations formed within the limits of the Commonwealth Pre-Work Choices history [18.90] Paragraph 51(i) gives the Commonwealth Parliament power, subject to the Constitution, to make laws on the above topic. The power is an unusual one among the Commonwealth’s powers because it deals with a class of legal person rather than an activity. As Griffith J noted with some alarm in Huddart Parker, cited above: [T]he question is whether the power to make laws with respect to “foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth” 4 Now s 36 of the Australian Consumer Law.

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extends to the governance and control of such corporations when lawfully engaged in domestic trade within the State. If it does, no limit can be assigned to the exercise of the power. The Commonwealth Parliament can make any laws it thinks fit with regard to the operation of the corporation, for example, may prescribe what officers and servants it shall employ, what shall be the hours and conditions of labour, what remuneration shall be paid to them, and may thus, in the case of such corporations, exercise complete control of the domestic trade carried on by them. In short, any law in the form “No trading or financial corporation formed within the Commonwealth shall,” or “Every trading or financial corporation formed, etc, shall,” must necessarily be valid, unless forbidden by some other provision of the Constitution.

Similarly, Higgins J remarked: If the argument for the Crown is right, the results are certainly extraordinary, big with confusion. If it is right, the Federal Parliament is in a position to frame a new system of libel laws applicable to newspapers owned by corporations, while the State law of libel would have to remain applicable to newspapers owned by individuals. If it is right, the Federal Parliament is competent to enact licensing Acts, creating a new scheme of administration and of offences applicable only to hotels belonging to corporations. If it is right, the Federal Parliament may enact that no foreign or trading or financial corporation shall pay its employés less than 10s per day, or charge more than 6 per cent interest, whereas other corporations and persons would be free from such restrictions.

This broad potential scope was, as noted in 18.20, limited in Huddart Parker by the Court’s invention of the “reserved powers” doctrine; in fact the corporations power was the chief “victim” of that doctrine. Even after the post-Griffith court had rejected the doctrine in the Engineers’ case, it took some time to fully reverse the effect of Huddart Parker. In Concrete Pipes, as also noted in 18.20, their Honours held that the power at least extended to the regulation of the trading and financial activities of trading and financial corporations, which gave Parliament the confidence to enact the Trade Practices Act 1974 (Cth), primarily based on the corporations power. In Actors & Announcers Equity Association v Fontana Films Pty Ltd [1982] HCA 23; (1982) 150 CLR 169, the scope was extended to the protection of the trading activities of trading corporations. In cases over the next 20 years, a number of Justices observed that the power should indeed extend to the matters mentioned by Griffith CJ in the above quote. In Re Pacific Coal; Ex parte Construction, Forestry, Mining and Energy Union [2000] HCA 34; (2000) 203 CLR 346, Gaudron J held: I have no doubt that the power conferred by s 51(xx) of the Constitution extends to the regulation of the activities, functions, relationships and the business of a corporation described in that sub-section, the creation of rights, and privileges belonging to such a corporation, the imposition of obligations on it and, in respect of those matters, to the regulation of the conduct of those through whom it acts, its employees and shareholders and, also, the regulation of those whose conduct is or is capable of affecting its activities, functions, relationships or business. More relevantly for present purposes, I have no doubt

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that it extends to laws prescribing the industrial rights and obligations of corporations and their employees and the means by which they are to conduct their industrial relations.

The government and its drafters paid attention to that a few years later.

Work Choices — confirmation of the breadth of the power [18.100] When the Howard Government gained control of the Senate in July 2005 it enacted the “Work Choices” amendments to the Workplace Relations Act 1996 (Cth). As noted above at 18.20, the first paragraph of the definition of “national system employer” referred to constitutional corporations; it was a claim by the Government and Parliament to be able to use the corporations power to regulate the working conditions of the employees of corporations. All the States challenged it. In the Work Choices case, New South Wales v Commonwealth [2006] HCA 52; (2006) 229 CLR 1, a 5:2 majority held the Act valid. In a joint judgment, the majority adopted the passage from Gaudron J in Pacific Coal, above. In response to an argument that adopting such a broad interpretation of the corporations power would allow the Commonwealth to pass the laws that Higgins J had warned about, above, their Honours said: “Section 51(xx), like other powers, should not be given a meaning narrowed by an apprehension of extreme examples and distorting possibilities of its application to future laws.” Their Honours did not attempt to create a definition of the range of laws that could be made under the corporations power, but the thrust of their reasons seems to endorse all of the suggestions made by Griffith CJ and Higgins J in Huddart Parker, and Gaudron J in Pacific Coal. It seems that, quite simply, any law that says “a constitutional corporation must …” or a “constitutional corporation must not …” is likely to be valid. This is not to say that any federal government will necessarily want to enact, say, a liquor licensing Act for corporations — although for a time in 2011–2012 the Government was considering a Bill to limit gambling on poker machines, in reliance on the corporations power and the banking power. (The author suggests that in fact using the taxation power would be just as effective and the Act would be easier to draft.) However, a law that simply provides for the payment of money to a corporation so that it can engage in certain activities gets no support from the corporations power; as the joint judgment in Williams v Commonwealth of Australia [2014] HCA 23; (2014) 252 CLR 416 observed, such a law “makes no provision regulating or permitting any act by or on behalf of any corporation … the law is not one authorising or regulating the activities, functions, relationships or business of constitutional corporations generally or any particular constitutional corporation”.

The formation of corporations — a supposed gap in the power, now filled by a referral from the States [18.110] If the Commonwealth can make laws covering the trading practices and employee relations of corporations, it would seem logical that it could enact a 287

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Corporations Act providing for the formation of corporations and regulating their corporate governance. Until 1989, however, each State had a separate Companies Act which caused inconvenience for national businesses and led to complaints that the State regulators were not capable of preventing or punishing corporate fraud.5 Apart from States’ assertions of their “rights”, the stumbling block to a national corporations law was the concluding words of para (xx) — “formed within the limits of the Commonwealth” — which were seen as preventing it from using this paragraph for a general law about incorporation. The words could be there for one of two reasons: they could reflect an assumption that corporations must be already formed by the authority of some other government before the Commonwealth can make laws for them, or they could just be there because they were a convenient set of words to describe local corporations by way of contrast with “foreign corporations”. If the words do imply a prohibition on the creation of corporations, it is an oddly incomplete prohibition because, as discussed in 18.60 the Commonwealth can set up statutory corporations to engage in activities related to its other heads of power, and indeed it can make laws on any topics, including a general companies law, for the Territories. In 1989, in response to repeated calls for a national approach to corporate regulation, the Parliament enacted the Corporations Act 1989 (Cth), which not only provided a general scheme of corporate regulation, but also provided that if a corporation was intended to engage substantially in trading or financial activities it must be incorporated under the Act. This was challenged by the States in an earlier New South Wales v Commonwealth case, this one being reported as [1990] HCA 2; (1990) 169 CLR 482 and known as the “Corporations Act case” or the “Incorporation case”. Mason CJ, Brennan, Dawson, Toohey, Gaudron and McHugh JJ upheld the challenge. They held: The word “formed” is a past participle used adjectivally, and the participial phrase “formed within the limits of the Commonwealth” is used to describe corporations which have been or shall have been created in Australia. (Clearly enough, the phrase is used to describe corporations formed after as well as those formed before federation.) The subject of a valid law is restricted by that phrase to corporations which have undergone or shall have undergone the process of formation in the past, present or future. That is to say, the power is one with respect to “formed corporations”. That being so, the words “formed within the limits of the Commonwealth” exclude the process of incorporation itself.

Deane J in dissent held: The legislative power could not, so it was said, extend to authorize laws governing the formation of such corporations since, until they are formed, they do not exist as the subject-matter of the power. Any superficial appeal of that argument does not, in my view, survive close examination. … One might as well say that a legislative power with respect to locally manufactured motor vehicles would not extend to laws governing the local manufacture of motor vehicles or that the legislative power with respect to lighthouses does not 5 See Bernard Mees and Ian Ramsey, “Corporate Regulators in Australia (1961–2000)”, https://papers.ssrn. com/sol3/papers.cfm?abstract_id=1123830

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extend to laws governing the erection of lighthouses since, until it is manufactured locally or erected, neither the locally manufactured motor vehicle nor the lighthouse exists as such. Another objection is that the argument fails to accord proper scope to the words “with respect to” in s 51 or to the settled principle which requires that par (xx), which is a constitutional grant of plenary legislative power, be liberally, and not narrowly or technically, construed… As Stephen J. pointed out in Mikasa (NSW) Pty Ltd v Festival Stores [1972] HCA 69; (1972) 127 CLR 617, at pp 660–661, such a merely descriptive use of the past participle is “common enough”, it “is not the past tense …, it is neutral in temporal meaning and applies equally to the future as to the past” …. When the word “formed” is so understood, it affords no basis for excluding the formation or incorporation within the limits of the Commonwealth of trading and financial corporations from the scope of the legislative power granted by the second limb of par (xx). To the contrary, it tends to focus attention upon that aspect of the grant of power.

Having beaten the Commonwealth in the High Court, the States then, under some pressure from the business community, agreed to cooperate in the establishment of a national regulatory scheme. In 1990, each State enacted its own Act giving force to the Corporations Law, a code consisting of the remaining valid parts of the Corporations Act 1989 (Cth), while they still regulated the formation of new corporations (and collected a fee for issuing a certificate of incorporation). In 2001, the States were finally persuaded to refer power over incorporation to the Commonwealth under para 51(xxxvii) (see 17.80), and all enacted a Corporations (Commonwealth Powers) Act 2001. Relying on this reference, the Commonwealth enacted the Corporations Act 2001 (Cth), leaving only non-profit organisations to be regulated by the States Associations Incorporation Acts, or similarly titled Acts. In Work Choices, at [136]–[137], the majority judgment summarised the holding in the Incorporation case, remarked that no party had challenged it, and concluded: “There is in these circumstances no occasion to consider further what was decided in the Incorporation Case”. Whether that was a hint that in more appropriate circumstances their Honours would be prepared to reconsider the decision and endorse Deane J’s reasons in dissent remains unclear.

Effect of the power on individuals acting for, dealing with, or affected by, a constitutional corporation [18.120] Though the power refers to corporations, laws made under it can affect the conduct of individuals. A law protecting trading corporations from the actions of others, whether the others are other corporations or individuals, is a law with respect to trading corporations; Actors & Announcers Equity Association v Fontana Films Pty Ltd [1982] HCA 23; (1982) 150 CLR 169. (Remember, however, that this was the case where a provision, that deemed the harmful conduct of members of a trade union to be conduct of the union, was held to be so remote from corporations that it was not valid under the power; see 17.30.) As a corporation can only act through individuals, 289

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provisions creating offences for directors and managers who aid, abet, or are knowingly concerned in an offence of a corporation are laws with respect to corporations: R v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd [1977] HCA 6; (1977) 136 CLR 235. Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 explored the outer limits of the connection of a law with the power. A provision of the Industrial Relations Act 1988 (Cth) allowed the Australian Industrial Relations Commission (AIRC) to set aside or vary unfair contracts “relating to the business of a constitutional corporation” whether or not the corporation was a party. Tasmanian Pulp and Forest Holdings Ltd (TPFH), clearly a trading corporation, engaged Mr and Mrs Wagner as contractors and they engaged Mr and Mrs Dingjan as sub-contractors. When TPFH varied their contract with the Wagners, they in turn varied the contract with the Dingjans, who applied to the AIRC for it to be varied. The Wagners argued that the Act was invalid. Note that the issue was not whether a valid Act could have been drafted to apply to these particular facts — fairly clearly, the variation of the Dingjans’ contract was a consequence of a decision made by TPFH and may well have affected the company’s profitability — but whether the actual section of the Act was drafted too broadly. Dawson J held that the provision was so much a law about contracts that it was not a law about corporations at all, but the other Justices agreed that the phrase “contracts relating to the business of a corporation” could cover some contracts that significantly affected the business of a corporation but also others where the connection was “no more than remote and tenuous” (per Toohey J at [17]). Mason CJ, Deane and Gaudron JJ held that it could be read down to apply only to contracts with a sufficient connection with the power, and Brennan, Toohey and McHugh JJ held that it could not. It was therefore held invalid by 4:3. McHugh J observed that: A law operating on the conduct of outsiders will not be within the power conferred by s 51(xx) unless that conduct has significance for trading, financial or foreign corporations. In most cases, that will mean that the conduct must have some beneficial or detrimental effect on trading, financial or foreign corporations or their officers, employees or shareholders.

It seems that none of their Honours would have disagreed with this formula, but the case illustrates how judges can differ over the application of a verbal formula to a set of facts.

Applied constitutional law — what is a constitutional corporation? [18.130] The constitutional power only applies to three types of corporation — foreign, trading and financial — and, as demonstrated in 18.20, Commonwealth Acts that rely on the power are drafted in ways that reflect this. So when action is taken against a corporation for contravening one of these Acts — in particular the Trade Practices Act 1975 (Cth) or the Workplace Relations Act 2006 (Cth) or their modern replacements, a preliminary issue can arise — is the corporation a “constitutional corporation”? It is 290

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easy enough to identify a foreign corporation — it has been formed outside Australia. Most of the corporations established in Australia are clearly trading or financial corporations; they are set up with the purpose of engaging in trade or financial activity, and then they do so. The difficult cases involve corporations that are established for an artistic, cultural or community service purpose, but then happen to do some trading. Many of these corporations (like local governments, universities or hospitals) are specifically created by a State Act. Other corporations are formed under the provisions of an Associations Incorporation (or similar) Act of a State, which provide for the incorporation of bodies like sporting or cultural associations whose principal purpose is not trade or finance, but do not prohibit them from then engaging in some trade. If such bodies engage in trade among the States they will be caught by the provisions of Commonwealth laws that are based on para 51(i), but when the trade is wholly within a State, are they caught by those laws in so far as they are based on the corporations power? The first case — R v Trade Practices Tribunal; Ex parte St George County Council [1974] HCA 7; (1974) 130 CLR 533 — established two possible tests. Barwick CJ and Stephen J, dissenting, held that one must look at the activities of the body, and held that the County Council was a trading corporation because it sold large amounts of electricity even though it was established to serve the community and was instructed by statute to operate on a “break-even” basis. On the other hand Gibbs, McTiernan and Menzies JJ held that the purposes for which the body had been incorporated were crucial (and therefore that none of the bodies described in the above paragraph would be trading corporations). However, in later cases, the activities test has prevailed. The most influential statement of it comes from Mason J in R v Federal Court of Australia; Ex parte WA National Football League [1979] HCA 6; (1979) 143 CLR 190 (Adamson’s case) at 233–4: “Trading corporation” is not and never has been a term of art or one having a special legal meaning. … Essentially it is a description or label given to a corporation when its trading activities form a sufficiently significant proportion of its overall activities as to merit its description as a trading corporation. Even if, and this has not been established, the description was somewhat less liberally applied circa 1900 than it is today, this Court should, in applying the expression, give effect to the content which it is recognized as having at this time. The expression was no doubt used in the contemplation that the power would extend to such corporations as should from time to time be described as trading corporations and in accordance with the principle that words in the Constitution are not restricted to the denotations which they had in 1900… Not every corporation which is engaged in trading activity is a trading corporation. The trading activity of a corporation may be so slight and so incidental to some other principal activity, viz religion or education in the case of a church or school, that it could not be described as a trading corporation. Whether the trading activities of a particular corporation are sufficient to warrant its being characterized as a trading corporation is very much a question of fact and degree. (emphasis added)

His Honour held, with the agreement of the majority, that both the Western Australian National Football League (Inc) and the West Perth Football Club (Inc) were 291

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trading corporations; the State League had gate receipts of the order of $1,000,000 per year, and the Club ran licensed premises with an income of over $100,000 per year. Over the next decade, the activities test was applied in a series of cases, with a steadily declining number of dissenters who held fast to the purposes test. In the High Court, the State Superannuation Board of Victoria was held to be a financial corporation6 and the Tasmanian Hydro-Electric Authority was held to be a trading corporation.7 There was a series of cases in the Federal Court in which Mason J’s test was applied in a reversed form — a corporation was trading (or financial) if its trading (or financial) activities were not so slight and so incidental as to demonstrate that it could not be a para (xx) corporation. Thus a co-operative building society was held to be a financial corporation,8 and a State cricket association with its own ground,9 the Red Cross Society and a hospital,10 and a university11 were all held to be trading corporations because of their income from trading activities, though their overall purpose was to help members to save, or to promote sport, public health or education respectively. On the other hand, a number of suburban cricket clubs and an outback shire council were held not to be trading or financial corporations — the cricket clubs only made slightly more money from bar trading than from membership fees and donations,12 and the shire council’s money-raising activities (a souvenir shop, some leasing of property that it owned, etc) were “inconsequential and incidental to the primary activity and function of the Council”, which was the provision of services to ratepayers and residents.13 However, in Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570, a case where a corporation had not yet engaged in any significant activity (except for writing a letter, the subject of the legal action) the High Court held by majority that the purposes for which it had been formed could be examined. In Work Choices, above, the majority judgment included a section examining the reason for the inclusion of the corporations power, and at [101]–[107] there are several references to the distinction drawn in the 19th century between corporations formed for the purpose of trade and those formed for “the promotion of religion, education, and benevolent and useful objects”. By itself, this could support an inference that their Honours were thinking of switching back to the purposes test. However, at [119] their Honours said, “it is impossible to distil any conclusion about what the framers 6 7 8 9 10

State Superannuation Board v Trade Practices Commission [1982] HCA 72; (1982) 150 CLR 282. Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1. Re Ku-Ring-Gai Co-Operative Building Society (No 12) Ltd [1978] FCA 50; (1978) 36 FLR 134. Hughes v Western Australian Cricket Association Inc [1986] FCA 357; (1986) 19 FCR 10. Re E v Australian Red Cross Society [1991] FCA 20; (1991) 27 FCR 310. Note, however, that a finding that the defendant is a trading corporation is not enough to bring a supply of goods (in this case, blood) under the Trade Practices Act 1975 (Cth) if it has not been supplied “in trade or commerce”. 11 Quickenden v O’Connor [2001] FCA 303; (2001) 109 FCR 243. 12 Hughes v WACA Inc, above n 9. 13 Australian Workers’ Union of Employees, Queensland v Etheridge Shire Council [2008] FCA 1268; (2008) 171 FCR 102.

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intended should be the meaning or the ambit of operation of para 51(xx) from what was said in debate about the power, or from the drafting history of the provision” so for the moment we should assume that precedent will be followed and that a corporation that engages in trading activities at any more than a slight and incidental level is a trading corporation, and is caught by Commonwealth laws based on para 51(xx).

Attempts by States to create non-corporate entities [18.140] We saw in 7.50 that, while State government Departments are not legal persons, let alone corporations, but simply a part of the State “body politic’, most of the “instrumentalities” established by State law to perform State functions (Boards, Agencies, Commissions, etc) are given legal personality. This has traditionally been done in a way that makes it clear that they are corporations: they have perpetual succession, a common seal and the capacity to sue and be sued in their own name. Local government bodies have also traditionally been incorporated; indeed in earlier days their title was often “The Corporation of the City of X” rather than the “X City Council”. Much of the case law in the previous section has involved such bodies; in the cases listed there it was taken for granted that they were corporations, and the issue was whether they were trading or financial corporations. As we saw above, the answer, especially for local government councils, is “it depends”. If they engage in trading activities to a more than “slight and incidental” degree they are trading corporations; if they do nothing but “roads, rates and rubbish” — and libraries and swimming pools — they are probably not. However, after the Workplace Relations Act was further amended and became the Fair Work Act 2009 (Cth), some State Governments implemented “cunning plans” to try to ensure that some State or local government bodies were not “national system employers”. The Queensland Government set up a separate entity, the Queensland Rail Transit Authority (QRTA), known as “Queensland Rail”. It was empowered to employ all the railway workers and to operate as a labour hire company, supplying the workers labour to Queensland Rail Ltd (QRL), which provided rail transport to the public. QRL (which was wholly-owned by the QRTA) was quite clearly a trading corporation, but the Act that established the QRTA expressly provided that it was not a body corporate although it gave it all of the other characteristics of a corporation. In New South Wales, a similar scheme applied to local governments. The Local Government Act 1993 (NSW) was amended to provide, in s 220: (1) A council is a body politic of the State with perpetual succession and the legal capacity and powers of an individual, both in and outside the State. (2) A council is not a body corporate (including a corporation). (3) A council does not have the status, privileges and immunities of the Crown (including the State and the Government of the State). (4) A law of the State applies to and in respect of a council in the same way as it applies to and in respect of a body corporate (including a corporation). 293

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In Communications, etc, Union v Queensland Rail [2015] HCA 11; (2015) 256 CLR 171, the Court held (at [38]) that an entity that can bear rights and duties, own and deal with property and has perpetual succession is a corporation within the meaning of para (xx), whatever it is called under State law. QRTA was a corporation, and clearly it engaged very substantially in trade, so it was a trading corporation, and therefore a national system employer. It probably follows that local governments in New South Wales are also still corporations; their designation as “bodies politic” may be a ground of distinction, although such a fine one that a different outcome seems unlikely. In any case, the States and Commonwealth eventually settled their differences about the Fair Work Act; in return for the States referring their powers over the working conditions of non-corporate private employees under para 51(xxxvii) (see 17.4), the definition of “national system employer” was amended to exclude State instrumentalities (but not electricity, gas or water services, ports or railways, or universities) and bodies “established for a local government purpose by or under a law of a State or Territory”.14 There will therefore be no litigation about whether that Act applies to local governments, but the effect of s 220 may still be challenged in cases about the application of other Commonwealth laws to the extent that they are based on the corporations power, in particular the Competition and Consumer Act 2010 (Cth).

18.5 Laws with respect to postal, telephonic, telegraphic and other like services [18.150] Paragraph 51(v) gives the Commonwealth Parliament power to make laws on the above topic. “Other like services” were mentioned because the drafters were aware of experiments with radio transmission,15 so the application of the paragraph to radio and television seems fairly automatic. However, wherever there are regulations, there will be someone to challenge them, so there is case law. In R v Brislan; Ex parte Williams [1935] HCA 78; (1935) 54 CLR 262, Williams challenged the law that required persons to have a licence for a radio receiver on the ground that telephonic and telegraphic services are person-to-person and broadcast services are not “like” enough to them. Only Dixon J agreed with her; the majority held that even broadcast radio is “wireless telegraphy”. In Jones v Commonwealth (No 2) [1965] HCA 6; (1965) 112 CLR 206, Jones challenged the resumption of his land on the ground that the building of a television studio was not “a purpose for which the parliament has power to make laws” under para 51(xxxi) 14 Fair Work Act 2009 (Cth), s 14(2)(a)(ii). This is subject to conditions — that the exemption is claimed under a State Act and endorsed by the Federal Minister — but it is understood that those steps have been taken. 15 An earlier draft had said “including the transmission of information by any natural power”. Bernhard Wise, who had probably suggested that to Sir Samuel Griffith, and who eventually moved the addition of “other like services”, was related by marriage to a Professor of Physics. See JA La Nauze, “Other Like Services; Physics and the Australian Constitution” (1968) Records of the Australian Academy of Science, v 1, no 3, p 36.

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(see Chapter 22). Menzies J held that the provision of program material is separate from the provision of broadcasting services, but the other Justices all held that the building of a studio was within the power, and all Justices held that the actual broadcasting of television is either telephony or a like service. Once the physical service being regulated is within the power, laws regulating who can hold a broadcasting licence (Herald & Weekly Times Ltd v Commonwealth [1966] HCA 78; (1966) 115 CLR 418), regulating advertising (Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 1; (1992) 104 ALR 389), protecting carriers from discriminatory State laws (Bayside City Council v Telstra Corp Ltd [2004] HCA 19; (2004) 216 CLR 595), or prohibiting the interception of communications (John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81) are all laws with respect to the power, on the standard grounds of characterisation discussed in Chapter 17. The power also supports provisions such as those now in the Australian Consumer Law penalising persons who use the post, telephones, radio or television for misleading purposes. As it is not an exclusive power, State and Territorial laws are not precluded from also penalising such conduct: Karlsson v Sorbello [1998] ACTSC 139; (1998) 148 FLR 374. If the above points are true of analogue broadcasting, they are even more true of digital broadcasting and the provision of point-to-point communications on the internet; the transmission of zeroes and ones is very similar in principle to the transmission of dots and dashes in “old-fashioned” telegraphy, though just a bit faster. It should be noted, however, that this is not a general power over “the media”; it does not cover the print news media, though since almost every newspaper and magazine is published by a corporation, they can be regulated under the corporations power.

18.6 Regulating money and the banking industry [18.160] The Commonwealth Parliament has a group of powers relating to banking and the monetary system. It can make laws with respect to: (xii) currency, coinage, and legal tender; (xiii) banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money; (xvi) bills of exchange and promissory notes. Paragraph (xiii) overlaps with para (xx) in that banks are always incorporated and are therefore also financial corporations. However, the exception in para (xii) as to State banking activities within a State also limits the scope of the corporations power: see Bourke v State Bank of NSW [1990] HCA 29; (1990) 170 CLR 276, discussed in 17.40. Unlike the corporations power, the banking power includes the incorporation of banks, but the distinction matters less than it used to since the States have referred power over the incorporation of companies to the Commonwealth. The banking power enabled the Commonwealth to establish its own bank. That was 295

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confirmed in Bank of NSW v Commonwealth [1948] HCA 7; (1948) 76 CLR 1 (the Bank Nationalisation case), and it was also held that a law prohibiting others from engaging in the business of banking was within the power, although the attempted nationalisation of the banks was held invalid as an interference with freedom of interstate trade, under the old interpretation of s 92 (as to which see Chapter 30). Banks are only one type of financial corporation. A bank is defined by the fact that its business is “the collection of money by receiving deposits upon loan, repayable when and as expressly or impliedly agreed upon, and the utilization of the money so collected by lending it again in such sums as are required”. This includes a savings bank as well as one that provides cheque accounts: Commissioners of the State Savings Bank of Victoria v Permewan, Wright & Co Ltd [1914] HCA 83; (1914) 19 CLR 457. Building societies and credit unions also take deposits from members and are grouped with banks as “Authorised Deposit-taking Institutions” (ADIs). A business that raises money from the “wholesale” market (or by issuing debentures or notes to “retail” investors) and then lends the money out, is not a bank but a finance company. All of the non-bank financial institutions (NBFIs), except “common funds” operated by trustee companies, are now nationally-regulated under the corporations power. The banking power is reinforced by the powers over currency, coinage and legal tender, paper money and bills of exchange and promissory notes (which are both forms of “negotiable instruments”). Since a cheque is a species of the genus “bills of exchange”, these powers allow the Commonwealth to regulate the whole area of banking and money. The odd separation of coinage and paper money into different paragraphs in the Constitution is reflected in the laws on legal tender; s 56 of the Reserve Bank Act 1959 (Cth) refers to notes (of which any amount is legal tender) and s 16 of the Currency Act 1965 (Cth) refers to coins.

18.7 Insurance [18.170] Insurance companies are also nationally regulated, under the Commonwealth’s power to make laws with respect to: (xiv) insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned; … The insurance power extends to all the obvious incidental aspects like: … power to prescribe conditions upon which any person, natural or artificial, may carry on an insurance business of any kind. It must include power to require such persons to be registered and to provide security for the due performance of their obligations to insured persons, to maintain funds to answer those obligations, to keep appropriate accounts, to submit those accounts to a designated authority, to make and return to a designated authority periodical actuarial investigations disclosing their true financial condition, and

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so on. … Further, the whole relation of insurer and insured is within the scope of the power, and the power must extend to providing for the enforcement of contractual obligations and for the creation and enforcement of further obligations. (Insurance Commissioner v Associated Dominions Assurance Society Pty Ltd [1953] HCA 94; (1953) 89 CLR 78 at 88)

An issue of “applied” constitutional law arose in Australian Health Insurance Association Limited v Esso Australia Limited [1993] FCA 376; (1993) 116 ALR 253. Under the National Health Act 1953 (Cth), it was an offence to carry on a “health insurance business” without registration, and “insurance” was defined by reference to para 51(xiv). The association alleged that Esso’s Health Care Plan for its workers amounted to health insurance, but Esso argued that the essence of “insurance” was that the insurer charged premiums that were proportioned to the risk, and that it only collected a token premium. By 2:1 a Full Bench of the Federal Court held that it was insurance because Esso promised that “it will pay the member money or a corresponding benefit upon the occurrence of specified events” in return for a money consideration, and the proportionality of the consideration to the risk was not crucial.

18.8 Miscellaneous business-related powers [18.180] The Commonwealth also has further powers to provide a uniform background of laws for businesses to operate against, in the following paragraphs of s 51: (xv) weights and measures; … (xvii) bankruptcy and insolvency; (xviii) copyrights, patents of inventions and designs, and trade marks. The Commonwealth used the weights and measures power to convert Australia to the metric system in 1971–1976. The National Measurement Act 1960 (Cth) now provides for all legal units of measurement in Australia and covers such detailed topics as the use of measuring instruments in trade, public weighbridges and the verification of utility meters. The power would almost certainly extend to defining standard time zones and imposing or forbidding daylight saving across the country — time is certainly a “measure” and it follows that that the degree to which we offset our time from Coordinated Universal Time (“Greenwich Time”) is a measure too. However, the Commonwealth has preferred to leave the very controversial decisions about daylight saving to the States. The bankruptcy and insolvency power is the sole source of power for the Bankruptcy Act 1966 (Cth) in so far as it applies to individuals. The application to trading and financial corporations of the Bankruptcy Act, and the provisions for winding up for insolvency in the Corporations Act 2001 (Cth), appear to be supported both by this power and the corporations power. The power extends, as usual, into a broad range of incidental matters. It has been held to support a law that empowers the release of a 297

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debtor from imprisonment for non-payment of debts, even if the imprisonment was for breach of a State law (Storey v Lane [1981] HCA 47; (1981) 147 CLR 549), and a law making it an offence for a bankrupt not to have kept proper books of account, even at a time well before the bankruptcy (R v Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556). The power in para (xviii) of course supports laws for the traditional forms of intellectual property, like the Copyright Act 1968 (Cth), the Designs Act 2003 (Cth), the Patents Act 1990 (Cth) and the Trade Marks Act 1995 (Cth). As noted in Chapter 8, it also extends to new kinds of intellectual property like printed-circuit layouts (Nintendo Co Ltd v Centronics Systems Pty Ltd [1994] HCA 27; (1994) 181 CLR 134) and plant variety rights (Grain Pool of WA v Commonwealth [2000] HCA 14; (2000) 202 CLR 479). In Nintendo, a joint judgment noted at [38]: “It is of the essence of [the] grant of legislative power that it authorises the making of laws which create, confer, and provide for the enforcement of, intellectual property rights in original compositions, inventions, designs, trade marks and other products of intellectual effort”. In another joint judgment in Grain Pool, their Honours said at [18]: “[I]t would be expected that what might answer the description of an invention for the purpose of para 51(xviii) would change to reflect developments in technology”. However, there is an inner core at the heart of the meaning of the words; a trade mark has to distinguish a good or service, and the owner of the trade mark has to be connected with the good or service, so the power would not support a monopoly over ordinary words or a common expression like “200 years”: Davis v Commonwealth [1988] HCA 63; (1988) 166 CLR 79. It seems probable that the reference to “products of intellectual effort” in Nintendo, above, is also a core requirement.

18.9 A once-much-used power, now not used at all — the prevention and settlement of industrial disputes [18.190] Paragraph 51(xxxv) gives the Commonwealth Parliament power to make laws with respect to “conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State”. This was used for a century as the basis of the Commonwealth system for making industrial awards, and that generated much of the major constitutional litigation during that century. Several of the leading cases about whether a Commonwealth law could bind the States, discussed in Chapter 33,16 involved the making of Commonwealth industrial awards for State public servants, and two of the leading cases about the separation of powers, discussed in Chapters 25 and 26,17 involved challenges to the “Court” set up to decide industrial 16 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129 (Engineers’ case); Re Australian Education Union; Ex parte Victoria [1995] HCA 71; (1995) 184 CLR 188 (AEU); Victoria v Commonwealth [1996] HCA 56; (1996) 187 CLR 416 (Industrial Relations Act case). 17 Waterside Workers’ Federation of Australia v J W Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434 and R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254.

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disputes. One of the former group of cases (Engineers’ case) was also the leading case about principles of constitutional interpretation. In addition, there were many cases on the elements of the power: what was conciliation and arbitration, what was an industrial dispute and when did one extend beyond the limits of a State, to what extent could the “prevention” aspect of the power be relied upon? However, the “Work Choices” amendments removed all signs of reliance on this power from the Workplace Relations Act 1996 (Cth), and this approach has been continued in the drafting of the Fair Work Act 2009 (Cth); the definition of “national system employer” quoted in 18.20 above is, in effect, an exhaustive list of the powers the Act is based on. This resulted in “an incomplete national industrial relations system”18 in that employees of businesses that were unincorporated, not in the Territories, and not conducting interstate transport operations were not covered. However, eventually, all States except Western Australia referred power over the employment conditions of other private sector employees to the Commonwealth,19 so the Fair Work Act 2009 (Cth) now covers the relations of nearly all employers and employees in Australia. The one major exception, as noted in 18.140, is State public servants; after the unions had fought so long about the scope of the industrial disputes power, and eventually succeeded in having nearly all State Government employees brought under the Commonwealth industrial system, the Commonwealth has now handed responsibility for them back to the States — with the exceptions already noted in 18.140. The industrial disputes power is still there, but until the Parliament chooses to use it again, it needs no further discussion. In case Parliament should revive its use, it is discussed in detail in many of the older Constitutional Law texts and there is a relatively recent monograph, a major part of which is about the power and the many cases interpreting it.20

18.10 Conclusion [18.200] The Commonwealth Parliament can make laws about: n n n n n n n

“constitutional” trade and commerce, as explained above “constitutional” corporations banking, insurance, money and negotiable instruments postal services and electronic communications weights and measures bankruptcy and insolvency and intellectual property.

18 Andrew Lynch, “After A Referral: The Fair Work Act and the Referrals Power — Keeping the States in the Game” (2011) 24 Aust J Labour Law 1. 19 For example, the Industrial Relations (Commonwealth Powers) Act 2009 (NSW). 20 George Williams, Labour Law and the Constitution, Federation Press, 1998.

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This Chapter has demonstrated that all of these powers have been interpreted broadly by the High Court. The Commonwealth can regulate all aspects of “constitutional” trade and commerce as well as intrastate conduct that is closely connected with “constitutional” trade. Under para 51(xx), it can regulate everything to do with “constitutional” corporations except for their formation, and that power has been referred to it by the States, and what is a “constitutional” corporation has been interpreted broadly. It can establish its own corporations to engage in “constitutional” trade and commerce, banking and broadcasting. It can regulate a wide range of incidental matters to do with all of the above powers. It has used its legislative powers to regulate employment conditions in nearly all forms of private employment, and has had power referred by five of the States to regulate other private employment. In many areas, we now have something close to what Higgins J feared in his judgment in Huddart Parker (see 18.90 above); not one set of laws just for corporations and State laws for everyone else, but one set for corporations and people engaged in interstate or overseas trade and commerce, or supplying the Commonwealth, or in the Territories, or making representations by mail or electronically, and State laws for whatever activities are left unregulated by the Commonwealth. In areas like employment conditions and competition and consumer law, the States have assisted in making the laws uniform by referring power to the Commonwealth (see section 17.4) or by adopting parts of Commonwealth laws into their own laws21 (see Chapter 35). Ordinary Australians may be unaware of it most of the time, “States rights” advocates may protest and law students may find it daunting, but public servants, businesses and lawyers have become accustomed to it. Businesses who do business in more than one State in fact welcome it, as noted in 17.70.

FURTHER READING Philip Clarke, “University Marketing and the Law: Applying the Trade Practices Act to Universities’ Marketing and Promotional Activities” (2003) 8(2) Deakin Law Review 304 Andrew Lynch, “After A Referral: The Fair Work Act and the Referrals Power — Keeping the States in the Game” (2011) 24 Aust J Labour Law 1 Oscar Roos, “From Labour’s Pain Comes Labor’s Gain? The High Court’s Decision in the Work Choices Case and the Commonwealth’s Corporations Power” (2007) 11 SCULR 81 21 This does not necessarily solve all jurisdictional problems. At the start of 2011 the Australian Consumer Law (ACL) came into operation, with much fanfare proclaiming how 7 State and Commonwealth laws had been simplified into one. The ACL is a Schedule to the Competition and Consumer Act 2010 (Cth) (the CCA). Section 18 of the ACL provides that “A person must, not in trade or commerce, engage in conduct that is misleading or deceptive…” Section 131 of the CCA gives effect to the ACL in respect of corporations, and s 6 (cited in 18.20 above) extends its operation to conduct in interstate trade and commerce, etc. The various State Fair Trading Acts give it effect in respect of persons generally. This means that plaintiffs may have to be careful about how they plead and argue the case, and in which court they commence proceedings. It would still be possible for a litigant to repeat the mistake made by the TPC in Swan v Downes, noted above in 18.80.

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CHAPTER 19

Nation State Powers — Internal Regulation of Government, External Affairs, Defence, Internal Security, Immigration and Aliens

19.1 Context and overview [19.10] Section 51 contains a group of powers that relate to the second main aim of federation — to be able to face the world as one nation. These include the external affairs power, the defence power and the aliens and immigration powers. In addition, the government has inherent powers to administer its own Public Service. The extent of all these powers is discussed in this Chapter. Although the posts and telegraphs power was discussed in the previous chapter, it could also be seen as belonging in this group, as it was given to the Commonwealth because it was seen as a factor in unifying the nation.

19.2 Power over the Public Service and “instrumentalities” [19.20] In order for the Commonwealth to put any of its decisions under other powers into effect it needs to be able to create, regulate, and protect its Public Service. The power granted by para 52(ii) — an exclusive power over “matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth” — is often misread as giving exclusive power over the whole Commonwealth Public Service to the Parliament. In fact, it only 301

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refers — as it clearly says to anyone who reads beyond the first nine words — to the Departments, listed in s 69, which were transferred to the Commonwealth from the States at or after federation by operation of that section. The High Court confirmed this blindingly obvious point and held that the effect of the section was “largely spent”, even as to the Departments that were originally based on Departments transferred from the States, in Re Residential Tenancies Tribunal of NSW & Henderson; Ex parte Defence Housing Authority [1997] HCA 36; (1997) 190 CLR 410. In fact, the Commonwealth has created the Public Service Departments under its power in s 64, and has passed laws to regulate them and protect them under para 51(xxxix). It has also created many bodies named Boards, Authorities, Commissions, etc (often referred to as “instrumentalities”) with varied degrees of independence from Ministers. As seen in Chapter 18, the Commonwealth can also create statutory corporations to engage in activities like interstate trade and commerce, banking, and television broadcasting under the specific powers with respect to those topics in s 51. Having created these bodies, it can “immunise” them from responsibilities under State laws (Australian Coastal Shipping Commission v O’Reilly [1962] HCA 8; (1962) 107 CLR 46). Laws dealing with the internal regulation of the Public Service are necessarily very close to exclusive, in that it is hard to imagine any State law that would not be inconsistent with Commonwealth laws like the Public Service Act 1999 (Cth), but note the caution expressed in 28.30 about over-readily implying that a Commonwealth power is absolutely exclusive. The Commonwealth has an express exclusive power over places acquired by the Commonwealth under para 52(i), but as will be discussed in Chapter 28, this has produced such inconvenient results that the Parliament felt the need to enact a Commonwealth Places (Application of Laws) Act 1970 (Cth). However, if the Commonwealth has enacted a law applying to its own places that is inconsistent with a State law, the State law cannot apply; see the discussion of R v Loewenthal; Ex parte Blacklock [1974] HCA 36; (1974) 131 CLR 338 in Chapter 32. In the absence of an expressly “immunising” law or a more general Commonwealth law that is inconsistent with the State law, Commonwealth public servants and instrumentalities are subject to the ordinary laws enacted by the States, as demonstrated in Re Residential Tenancies Tribunal, above, to be considered in more detail in Chapter 33.

19.3 Laws with respect to external affairs [19.30] The Parliament has the power to make laws with respect to external affairs under para 51(xxix). The “matters external to Australia” aspect of this power was discussed in 12.130–12.140. Other aspects are discussed below.

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obligations which are merely owed to other governments. These are “enforceable” only to the degree that the international community can apply pressure to a recalcitrant. An increasing number of treaties require the signatories to promise each other that they will take action within their own nations — as Stephen J said in Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 the early nature of treaties was simply: … compacts between princes, having no concern with domestic affairs … but in this century international conventions have come to assume a more extensive role. They prescribed standards of conduct for both governments and individuals having wide ­application domestically.

Remember, however, as noted in 12.150, that the fact that the government has signed a treaty or that the United Nations has passed a resolution does not, by itself, alter the law inside Australia so as to empower the government to take action against individuals; the law that applies in Australia can only be changed by the appropriate Parliament in Australia. If the Commonwealth government enters into a treaty under which it is obliged to take action within Australia, and the promised action relates to a matter that is within its heads of power other than external affairs, the Parliament can obviously enact the necessary laws under the other powers. But if the proposed law cannot be fitted under another head of power, would a law implementing a treaty be a law with respect to “external affairs”? If one thinks of each law as a law with respect to a particular external affair, rather than “affairs” generally, the case for validity may seem more obvious. This is the way the Commonwealth usually argues one of these matters. This has been one of the two big Commonwealth-versus-States battlegrounds in constitutional cases, the extent of the corporations power being the other one. As with the corporations power, the Commonwealth has now won the battle comprehensively. Unlike the cases on the corporations power, there has been a majority of the High Court in favour of a broad view of the treaty-implementation power since the 1930s. What kept the battle going is that until the 1990s the majorities were narrow ones. R v Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608 was an appeal from the prosecution of early “barnstorming” pilot Goya Henry for flying while his licence was suspended.1 As noted in Chapter 18, the regulations were held not to be supported by the trade and commerce power, though as more and faster planes took to the air this was later reversed. The Commonwealth claimed, however, that the laws were enacted pursuant to an international convention2 on the regulation of aerial navigation. As 1 He flew under the Sydney Harbour Bridge, so he was probably flying too low or in a prohibited space, but was only charged with the more general “flying without a licence” offence. The Genairco biplane that he flew, VH-UOG, is in the collection of the Powerhouse Museum, Sydney. 2 In international law a convention used to mean an agreement that was less binding than a treaty (something like the political conventions referred to in Chapter 9 which can be somewhat less binding than real law), but it now means a treaty. Multilateral treaties tend to be titled “International Convention on X”, although the two major human rights treaties are called International Covenants.

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noted in 19.60 below, the Court held that the law did not comply with the Treaty closely enough, but by a majority of 3:2 their Honours held that a treaty could, in principle, be given domestic effect by a law under the external affairs power. The reasons of the Justices in this early case spell out the arguments for and against a broad interpretation of the power. In dissent, Starke J held that the matter of the Treaty had to be “of sufficient international significance to make it a legitimate subject for international co-operation and agreement” and Dixon J held that the subject-matter of the Treaty had to be “indisputably international in character”. Latham CJ pointed out the problem with requirements such as these: No criterion has been suggested which can result in designating certain matters as in se concerning external relations and excluding all other matters from such a class. It is very difficult to say that any matter is incapable of affecting international relations so as properly to become the subject matter of an international agreement. It appears to me that no absolute rule can be laid down upon this subject.

Evatt and McTiernan JJ agreed. Three years later, in R v Poole; Ex parte Henry (No 2) [1939] HCA 19; (1939) 61 CLR 634, the focus was on the “compliance with treaty” issue as discussed in 19.60, but all the Justices except Dixon J assumed that implementing a treaty, whatever its subject-matter, was within the external affairs power. After World War II and the formation of the United Nations, an increasing number of international conventions was drafted, and when Australian governments belatedly started to implement them in the 1970s3 there was another round of treaty cases. In Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 the High Court split 3:3 on whether the Parliament had a general power to implement treaties regardless of the subject-matter. Stephen J gave the decisive judgment in favour of the validity of the Racial Discrimination Act 1975 (Cth) by holding that a treaty on a subject-matter of international concern was enough to make that subject-matter a part of Australia’s external affairs. In light of the concern about racial equality since the War, that was enough to make the Act valid. In Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 (the Dam case) the Gordon River Dam was to be built in an area that had been listed as World Heritage under the relevant Convention, and some sections of the Act prohibiting the dam works were based on the Convention. The number in favour of the broader scope of the power increased to four. As to the qualification suggested by Stephen J in Koowarta, Mason J observed at 125 that: The existence of international character or international concern is established by entry by Australia into the convention or treaty. … the Court would undertake an invidious task if it were to decide whether the subject matter of a convention is of international character or concern. On a question of this kind the Court cannot substitute its judgment for that of the Executive Government and Parliament. 3 For the Commonwealth’s reluctance to implement treaties from 1945 to 1972, see Mary Crock, “Federalism and the External Affairs Power” (1983) 14 MULR 238.

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Brennan J remarked that: It is difficult to imagine a case where a failure by Australia to fulfil an express obligation owed to other countries to deal with the subject matter of a treaty in accordance with the terms of the treaty would not be a matter of international concern, a matter capable of affecting Australia’s external relations.

“International concern” as a separate requirement was effectively dismissed by the majority. [19.50] Richardson v Forestry Commission [1988] HCA 10; (1988) 164 CLR 261 (the Lemonthyme Forest case) involved a law designed to protect an area that was under investigation for possible nomination as World Heritage. It was held valid (the dissentients, Deane and Gaudron JJ holding that the Act did not conform with the Treaty) and Mason CJ and Brennan J observed at 295 that the external affairs power “extends to support a law calculated to discharge not only Australia’s known obligations but also Australia’s reasonably apprehended obligations”. In Victoria v Commonwealth [1996] HCA 56; (1996) 187 CLR 416 (the Industrial Relations Act case) the States made a last stand against the broad interpretation of the external affairs power. As we saw in Chapter 18, originally the Commonwealth had relied almost wholly on the conciliation and arbitration power in para 51(xxxv) for its workplace relations laws — but amending Acts in 1993 and 1994 had inserted sections that were based on Conventions and Recommendations of the International Labour Organisation (ILO), as well as on the corporations power. The States focused their challenge on the use of the external affairs power. In a joint judgment, five Justices confirmed that: The executive power extends to the signing and ratification of treaties. The legislative power conferred by s 51(xxix) on the Parliament … extends to the enactment of laws implementing the provisions of treaties entered into by the Executive so as to bind the Commonwealth.

In response to a submission that the power should be limited in order to limit its impact on States’ powers, their Honours added: According to basic constitutional principle, and with qualifications not presently relevant, the intrusion of Commonwealth law into a field that has hitherto been the preserve of State law is not a reason to deny validity to the Commonwealth law provided it is, in truth, a law with respect to external affairs.

There have been faint suggestions that there are some classes of treaties that cannot be given force in Australian law. One suggested class is those which are entered into as a “mere device” to give the Commonwealth additional legislative power: Burgess at 642, 669 and 687, adopted by Deane J in the Dam case at 218. However, as Gibbs J said in Koowarta at 200, this would be “at best, a frail shield”. A genuinely international treaty 305

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is hardly likely to be dismissed as a mere device, and even in the case of a bilateral treaty with some other convenient country, the Court would surely find it an “invidious task” to attribute such devious motives to the government and Parliament. The other suggestion is that a treaty needs to impose a reasonably specific obligation before the Commonwealth can base legislation on it; if a treaty is an agreement by nations to take common action towards a common objective, a merely aspirational treaty (eg, “to promote full employment”) does not spell out what common action is expected of the signatories.4 This was adopted by Brennan J in the Dam case at 220, but Deane J remarked at 261–2 that “absence of precision does not … mean any absence of international obligation”, and Mason J observed that a treaty might give Australia a benefit rather than impose an obligation, and its enforcement would still be an external affair. In the Industrial Relations Act case the joint judgment appeared to endorse Deane J’s remark.

Conformity with the treaty or recommendation [19.60] If the Parliament passed an Act on the same topic as a treaty, but in fact made quite different provisions from those in the treaty, it would hardly be a law with respect to the external affair constituted by the treaty. So there is a requirement of conformity with the treaty. There are two ways in which a law may differ from the exact terms of a treaty — it may depart from the exact wording used in the treaty or it may implement only part of the treaty and ignore other parts. In Burgess, even those Justices who held that a treaty could form the basis of a Commonwealth law held that many of the regulations were invalid because they were quite different from the terms of the Convention. Starke J, in dissent, held that “[a]ll means which are appropriate, and are adopted to the enforcement of the convention and are not prohibited, or are not repugnant to or inconsistent with it, are within the power”, and that the regulations passed that test. By the time of Henry’s next conviction and appeal in Poole, the Act and regulations had been amended. The Convention set a minimum flying height (except for planes taking off or landing) of 700 metres (2296 feet) over the landing area of an aerodrome; the regulations set a height of 2300 feet over the landing area and the perimeter. The Court, Latham CJ dissenting, held that the regulations were valid. Evatt J held that the regulation was “sufficiently stamped with the purpose” of carrying out the Convention. Starke J repeated the approach he had taken in Burgess but changed the phraseology to “appropriate and adapted”. Since the 1930s the “appropriate and adapted to the purpose of the Convention” test has become dominant. As Brennan CJ said in the Dam case, where an international obligation is expressed in terms of a result to be achieved, the test for a proper exercise of the power becomes purposive; the choice of ways and means is a matter essentially for the Parliament, but it must be possible for the Court to see them as appropriate and adapted to the purpose. In the Dam case the extensive list of prohibited activities found in the section of the Act that was based on the Convention was held by the majority to 4 James Stellios, Zines’s the High Court and the Constitution, 6th ed, Federation Press, 2015, pp 435–6.

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be invalid, because not all of the prohibitions would be appropriate for all the possible kinds of World Heritage property, but enough of the Act was valid to stop the Dam from being built. In the Lemonthyme Forest case, Deane and Gaudron JJ cited the “appropriate and adapted” test and interpreted it as requiring a “reasonable proportionality” between the regulations and the purpose of the Convention; however the fact that they held some of the regulations invalid indicated that to test whether a law is proportional to a purpose is a stricter requirement than to ask whether it is capable of being seen as appropriate and adapted to that purpose. However, in the Industrial Relations Act case the majority Justices held: It has been said that a law will not be capable of being seen as appropriate and adapted in the necessary sense unless it appears that there is “reasonable proportionality” between that purpose or object and the means adapted by the law to pursue it. The notion of “reasonable proportionality“ will not always be particularly helpful. The notion of proportion suggests a comparative relation of one thing to another as respects magnitude, quantity or degree; to ask of the legislation whether it may reasonably be seen as bearing a relationship of reasonable proportionality to the provisions of the treaty in question appears to restate the basic question. This is whether the law selects means which are reasonably capable of being considered appropriate and adapted to achieving the purpose or object of giving effect to the treaty, so that the law is one upon a subject which is an aspect of external affairs.

Their Honours held that most of the provisions of the Act based on the ILO Conventions were valid, but that a term of a convention that required that dismissal of employees must be on “valid” grounds did not justify a section of the Act that prohibited harsh, unjust or unreasonable dismissal.

Recommendations of international bodies [19.70] As well as the high-level things called treaties or conventions, international bodies sometimes issue recommendations. Before the Industrial Relations Act case, a series of Justices — usually those who had been delegates to the ILO in their earlier careers — had observed, obiter, that the external affairs power would extend to the implementation of an ILO recommendation into Australian law; examples are Evatt and McTiernan JJ in Burgess at 687, and Murphy J in the Dam case at 171. Parliament eventually took the judicial hint and included some sections in the Industrial Relations Act 1988 (Cth) that were based on ILO Recommendations, which in turn related to the Equal Pay Conventions and dealt with how the Conventions should be implemented. In the Industrial Relations Act case, the joint judgment held that the sections “can be supported under s 51(xxix) if, but only if, the terms of these Recommendations themselves can reasonably be regarded as appropriate and adapted to giving effect to the terms of the Conventions to which they relate”, which they were. The judgment says nothing about the implementation of “free-standing” recommendations that have no relation to a convention, if such things exist, but it is the author’s understanding that, for the ILO at least, those 307

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recommendations that are not issued in relation to the implementation of a convention are issued as the result of a complaint against a member nation. One would expect that if Australia were the subject of this second kind of recommendation, it would be an external affair to act to quell the complaint by satisfying the recommendation.

Matters of international concern or obligation or customary international law [19.80] As noted above, Stephen J suggested in Koowarta that for a treaty to support a law under the external affairs power, the matter had to be one of international concern, but this was rejected by the majority in the Dam case. In Koowarta both Stephen and Murphy JJ had suggested that evidence of international concern might be enough, even without a treaty, to support a law under this power. The Commonwealth tried to exploit this in the World Heritage Properties Conservation Act 1983 (Cth) by including a provision that the Governor-General could proclaim property if “the protection or conservation of the property by Australia is a matter of international concern”. Since the majority in the Dam case had held that sufficient parts of the law were valid as an implementation of the relevant Treaty, they did not need to discuss that provision. However, Mason J did observe that even if a subject was a matter of international concern, that “does not mean that Parliament may depart from the provisions of the treaty after it has been entered into by Australia”. Gibbs J, who held that the Treaty was not a sufficient basis for the Act, held that: “The position might be different … if Australia came under an international obligation to protect or conserve the property”. In Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501, Brennan and Toohey JJ, who had rejected the “matters external to Australia” basis for the War Crimes Act 1945 (Cth) (see 12.130–12.140) seemed to assume that a law could be valid if it was based on a matter of international concern, but held that there was not enough evidence of such concern in that case. In XYZ v Commonwealth [2006] HCA 25; (2006) 227 CLR 532, Callinan and Heydon JJ doubted, at [217]–[225] that international concern could by itself support a law under the external affairs power. It is evident that this has only been used as an argument of last resort so far; until the Commonwealth dares to base a law on nothing but alleged international concern we shall probably keep accumulating contrary dicta. There have also been dicta suggesting that perhaps the external affairs power would support a law that enforces rules of customary international law: Koowarta per Stephen J at 221, the Dam case per Mason J at 171–2 and Deane J at 258, and Polyukhovich per Brennan J at 558–9 and Toohey J at 665–7. The argument seems persuasive, but the passages referred to here also indicate that the Court will look very critically at claims that a particular matter is in fact a rule of customary international law. One class of international obligation that would certainly support a law under the external affairs power is one imposed by a resolution of the Security Council of the United Nations. Indeed it could be said that this is a sub-species of obligations arising under a treaty, as article 25 of the Charter of the United Nations declares that 308

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“[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter” and article 103 proclaims that “[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other inter­national agreement, their obligations under the present Charter shall prevail”. In Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 the majority of the High Court held that the anti-terrorism provisions of the Commonwealth Criminal Code were supported by the defence power (see section 19.4 below). Only Kirby J, who dissented on that aspect, needed to consider the alternative submission that the provisions were authorised by a Security Council resolution. He held that the relevant resolution, “to take the necessary steps to prevent the commission of terrorist acts”, was not specific enough to support the legislation. For comparison, it will be recalled that in Bradley, the executive tried to act on the resolution “not [to] accord any recognition to officials of the illegal regime in Southern Rhodesia” without first obtaining the passage of legislation. If they had done so, the resolution may well have been specific enough to authorise a law for the cutting-off of telephone and mail services. Like the other topics discussed in this section, the Court cannot be expected to give a definitive ruling until the Commonwealth enacts a law that relies on one of these presumed aspects of the external affairs power and on nothing else.

19.4 Laws with respect to defence and national security [19.90] Paragraph 51(vi) gives the Parliament the power to make laws with respect to “the naval and military defence of the Commonwealth and of the several States”. It is generally referred to in shorthand form as the “defence power”. As noted in 17.50, the power does not so much relate to the activity of defence, but to the purpose of defence, which has the result that the power expands and contracts (or ebbs and flows, or waxes and wanes) in proportion to the level of threat facing Australia. The cases of war, postwar recovery and peace are addressed in separate sections below.

Defence power in times of war [19.100] In war the power takes on a “secondary” aspect. Throughout both World Wars the power was used to control many aspects of economic life under regulations which were held by the High Court to be “incidental or conducive to the prosecution of a war that is being fought” (Stenhouse v Coleman [1944] HCA 36; (1944) 69 CLR 457 per Dixon J). It was only later that Fullagar J coined the term “secondary aspect” and referred to the power expanding and contracting (Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 254). In World War I the Court upheld the validity of a regulation fixing the price of flour (Farey v Burvett [1916] HCA 36; (1916) 21 CLR 433) and another under which a naturalised British subject could be detained if “the Minister ha[d] reason to believe that [the] 309

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naturalized person is disaffected or disloyal” (Lloyd v Wallach [1915] HCA 60; (1915) 20 CLR 299). In World War II the regulations that were approved included the following: n n n n n

licensing of bakers and distributors of bread (Stenhouse v Coleman, above); fixing the prices of goods generally (Victorian Chamber of Manufactures v Commonwealth [1943] HCA 19; (1943) 67 CLR 335); permitting the employment of women in certain occupations (Victorian Chamber of Manufactures v Commonwealth [1943] HCA 21; (1943) 67 CLR 347); “man-power” regulations under which people could be directed to do certain warrelated work (Reid v Sinderberry [1944] HCA 15; (1944) 68 CLR 504); and controlling rents (Silk Bros Pty Ltd v State Electricity Commission of Victoria [1943] HCA 2; (1943) 67 CLR 1).

Most drastically, in the First Uniform Tax case (South Australia v Commonwealth [1942] HCA 14; (1942) 65 CLR 373) — other aspects of which will be discussed in Chapter 21 — the Court held that the defence power allowed the Commonwealth to take over State taxation offices and their personnel, to assist in focusing all the country’s financial resources on the defence effort. As Rich J said: “If the Commonwealth is to wage war effectively, it must command the sinews of war. The taxing of income is an important source from which the funds required for war purposes may be drawn.” However, it is still necessary, even in time of war, for the Commonwealth to show that a law had a connection with the purpose of defending Australia. Regulations doing the following things were held to be invalid: n

n

n

prescribing the level of lighting in industrial premises, whether they were being used to produced war-related materials or not (a third Victorian Chamber of Manufactures v Commonwealth case, [1943] HCA 22; (1943) 67 CLR 413); regulating the working conditions of State public servants, whether their work was connected to the war effort or not (R v Commonwealth Court of Conciliation & Arbitration; Ex parte Victoria [1942] HCA 39; (1942) 66 CLR 488); and limiting the number of students who could attend university, without prescribing anything that the rejected students must do (R v University of Sydney; Ex parte Drummond [1943] HCA 11; (1943) 67 CLR 95).

Further, even in time of war, the defence power, being in s 51, is “subject to this Constitution”, ie, subject to the prohibitions in the Constitution. When the Commonwealth seizes property it has to pay “just terms” (see Chapter 22). In the First Uniform Tax case, one of the Acts provided for the Commonwealth to pay compensation for the assets of State tax Departments, as assessed by an arbitrator appointed by the Commonwealth. Latham CJ doubted that this was valid and held that the Act had a number of weaknesses that, combined, made it invalid, but the other Justices held it valid and did not discuss the “just terms” issue. That case was decided a few weeks after Japanese submarines had attacked Sydney and Newcastle, and while fighting was starting to take 310

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place on the Kokoda Track; the war situation seemed particularly grim. However, in later cases which will be discussed in Chapter 22, about the acquisition of a whole range of things from crops to ships and printing presses, it was taken for granted that even the defence power is subject to the “just terms” requirement, and some acquisitions were held to be invalid. Late in the war a regulation prohibiting travel across State borders without a permit was held to breach the “freedom of intercourse” guaranteed by s 92; see Gratwick v Johnson [1945] HCA 7; (1945) 70 CLR 1, to be discussed in Chapter 30. In Adelaide Company of Jehovah’s Witnesses Incorporated v Commonwealth [1943] HCA 12; (1943) 67 CLR 116, the Court also showed that even in wartime it can apply the principle that laws should be interpreted so as not to derogate from fundamental rights, now known as the “principle of legality”. The National Security (Subversive Associations) Regulations permitted the Governor-General to declare the existence of an organisation as being prejudicial to the defence of the Commonwealth, whereupon it became an unlawful organisation, all of its propriety was forfeited, any meetings of its members were prohibited, and the publication of any doctrines advocated by it was unlawful. The Jehovah’s Witnesses were campaigning against participation in the war and were declared unlawful. The Court held, on the authority of Lloyd v Wallach, above, that the power to declare organisations as being unlawful was valid but held that the other regulations were all drafted so broadly that they could extend to matters that had nothing to do with the defence power. The regulation relating to the seizure of property contained no provision for its return when the war was over. The prohibition of meetings did not discriminate between meetings to plan the spread of anti-war propaganda and meetings to worship Jehovah. And, as Latham CJ pointed out, the prohibition of any publication containing the Witnesses’ doctrine would include the Holy Bible and the 10 commandments. The regulations would have been valid if they were drawn more narrowly to cover only matters relevant to the war, but the Court refused to read them down and they were declared invalid. As noted in 13.60, even in the absence of a Bill of Rights, the Court looks askance at laws that derogate from basic rights like freedom of speech and the freedom to associate.

Postwar recovery [19.110] After a major war, the economy needs rebuilding and returned soldiers need help in demobilising, so the defence power remains somewhat expanded for a while. After the end of World War II the Parliament enacted annual Defence (Transitional Provisions) Acts which progressively terminated some of the wartime regulations but kept others in force. They were, naturally, challenged, and the High Court held that some had been kept in force too long. As a joint judgment declared in R v Foster; Ex parte Rural Bank of New South Wales [1949] HCA 16; (1949) 79 CLR 43: No one doubts that the defence power will justify some legislation directed to the transition period between war and peace and some legislation which operates even after the full establishment of peace. But it does not place within Federal legislative authority every social, economic or other condition that might not have arisen except for the war.

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In Wenn v Attorney-General (Victoria) [1948] HCA 13; (1948) 77 CLR 84, the Court held that a law giving preference in employment to ex-service personnel was still valid, but a year later in Foster it was held that regulations about the employment of women, petrol rationing and import restrictions, and the protection of tenancies held by service personnel were no longer valid. In Illawarra District County Council v Wickham [1959] HCA 18; (1959) 101 CLR 467 the Court held that the ex-service preference provisions were no longer valid; as Fullagar J said, “it does not seem possible to say that, after the lapse of twelve years, such provisions … could fairly or reasonably be regarded as incidental to the transition from war conditions to peace conditions”. Of course, as Moens and Trone point out, repatriation benefits for war-caused injuries continue indefinitely (even though they are not among the pensions listed in paras 51(xxiii) and (xxiiiA)) and the provision of war-service homes “might well be a valid exercise of the defence power for an indefinitely prolonged period”.5

Defence power in peacetime, and uneasy peace [19.120] In peacetime the defence power of course still includes the making of laws such as the Defence Act 1903 (Cth) that provides for the establishment and control of the Defence Force, but the “secondary aspect” all but disappears. Even during the Cold War, the Commonwealth’s attempt to outlaw the Communist Party was ruled invalid in Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1. The High Court’s ruling on the Parliament’s inability to “recite itself into power” and the adoption of the principle of Marbury v Madison were noted in 6.20, and Dixon J’s dictum on the silent presence of the rule of law in the Constitution was quoted in 11.150. The specific reason for the decision that the Communist Party Dissolution Act 1950 (Cth) was invalid was simply that it was not supported by a head of power; at 195 Dixon J distinguished Lloyd v Wallach, above, and held that “administrative control of the liberty of an individual” was only justified in a time of serious armed conflict. Even though the army was involved in the Korean War, “the situation bore little relation to one in which the application of the defence power expands because the Executive Government has become responsible for the conduct of a war”. Since the Act had given the executive government an unreviewable power to proscribe organisations, it was not valid in a time of relative peace. Of course there is rarely such a thing as a world with no threats, so the High Court has allowed the Parliament some scope for preparing for future dangers. In AttorneyGeneral (Vic) (Ex rel Victorian Chamber of Manufactures) v Commonwealth [1935] HCA 31; (1935) 52 CLR 533 the Court held that the Commonwealth Clothing Factory, set up under the Defence Act 1903 (Cth) “for the manufacture of naval and military equipment and uniforms”, could lawfully supply other Commonwealth Departments and State and local governments. The Court accepted that “the Governor-General [had] deemed it 5 Gabriel Moens and Jon Trone, Lumb Moens and Trone; The Constitution of the Commonwealth of Australia Annotated, 8th ed, LexisNexis Butterworths, 2012, pp 137–8.

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necessary for the efficient defence of the Commonwealth to maintain intact the trained complement of the factory, so as to be prepared to meet the demands which would inevitably be made upon the factory in the event of war”.6 In 1951, at the height of concern that the Korean War might lead to a third World War, regulations were made under the Defence Preparations Act 1951 (Cth) providing that companies could not issue further share capital without the approval of the Treasurer. In Marcus Clark & Co Ltd v Commonwealth [1952] HCA 50; (1952) 87 CLR 177 (the Capital Issues case) the Court upheld both the Act and the regulations. Recitals to the Act stated that defence preparations could not be carried out “without the diversion of certain of the resources of Australia (including money, materials and facilities) for use in, or in connection with, defence preparations”, and that there existed a state of international emergency “in which it is essential that preparations for defence should be immediately made to an extent and with a degree of urgency not hitherto necessary except in time of war”. Dixon CJ noted that the recitals were not binding on the Court, but stated that “any one who took into account the public events of the times would be bold indeed if he adopted any other view”. The regulations were held valid. Apart from matters discussed in the next section, the most recent litigation about the scope of the defence power has involved challenges to courts-martial. One point that has been repeatedly confirmed, in a series of cases from Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518 to Re Colonel Aird; Ex parte Alpert [2004] HCA 44; (2004) 220 CLR 308, is that under the defence power, the conduct of service personnel that has no immediate connection with the membership of the forces, such as alleged rape while on leave in a country far from the soldier’s posting, can be punished as a service offence. As Mason CJ and Wilson and Dawson JJ said in Re Tracey at 544, “it is not possible to draw a clear and satisfactory line between offences committed by defence members which are of a military character and those which are not”. In reference to offences committed in a foreign country while on leave, McHugh J observed in Re Colonel Aird that “it is not unlikely that the local citizenry will soon become aware that the person involved in that conduct was a member of the Australian Defence Force. It is a likely consequence of such conduct, therefore, that the local citizenry will be critical of its occurrence and may even become hostile to Australian Defence Force members”. The more debatable point in these cases — whether such offences can be tried by a tribunal that does not have the security of tenure demanded by s 72 of the Constitution — will be discussed in Chapter 25.

The internal security and law enforcement powers [19.130] “Naval and military defence” seems at first glance to refer only to the defence of Australia against external enemies. In the Communist Party case, Dixon J said at 194 6 Most texts contrast this case with Commonwealth v Australian Commonwealth Shipping Board [1926] HCA 39; (1926) 39 CLR 1, in which the Board was prevented from providing generators to a local council. However, that turned mainly on the interpretation of the Act creating the Board, and reference to the defence power was merely in response to an alternative, and somewhat desperate, argument by the defendant.

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that the “central purpose” of the power is “the protection of the Commonwealth from external enemies”, and Fullagar J said at 259 that “it is concerned with war and the possibility of war with an extra-Australian nation or organism”. Therefore some Justices have suggested that the power to make laws against internal subversion or violence comes from another source. In both Burns v Ransley [1949] HCA 45; (1949) 79 CLR 101 and R v Sharkey [1949] HCA 46; (1949) 79 CLR 121 laws punishing the utterance of “seditious words” (defined as words expressing an intention “to excite disaffection against the Sovereign … or the Government or Constitution of the Commonwealth”) were held to be valid. Most Justices held them to be justified by a combination of para 51(xxxix) and s 61, in that they were incidental to the executive power to maintain the Constitution. Webb J remarked that in addition, “ the defence power … may be wide enough to protect Australia against attacks in peace as in war, from within as well as from without, and against incitement to such attacks”. Dixon J suggested, in Sharkey at 149, that there was a more general source: I do not doubt that the legislative power of the Commonwealth extends to making punishable any utterance or publication which arouses resistance to the law or excites insurrection against the Commonwealth Government or is reasonably likely to cause discontent with and opposition to the enforcement of Federal law or to the operations of Federal government. The power is not expressly given but it arises out of the very nature and existence of the Commonwealth as a political institution, because the likelihood or tendency of resistance or opposition to the execution of the functions of government is a matter that is incidental to the exercise of all its powers. But the legislative power is in my opinion still wider. The common law of seditious libel recognizes that the law cannot suffer publications the purpose of which is to arouse disaffection against the Crown, the Government or the established institutions of the country, although they stop short of counselling or inciting actual opposition, whether active or passive, to the exercise of the functions of government.

His Honour later explained, in the Communist Party case at 188, his reluctance to base sedition laws on s 61: [H]istory … shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power. Forms of government may need protection from dangers likely to arise from within the institutions to be protected. In point of constitutional theory the power to legislate for the protection of an existing form of government ought not to be based on a conception, if otherwise adequate, adequate only to assist those holding power to resist or suppress obstruction or opposition or attempts to displace them or the form of government they defend. (emphasis added)

In Burns v Ransley and R v Sharkey, Dixon J would have upheld the appeals. Both defendants had been asked hypothetical questions as to what their attitude would be, should Russia invade or should the Communists take over government, and had only answered in response to insistent repetitions of the question. His Honour 314

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held, in a lone dissent in each case, that this did not evidence an “intention to excite disaffection”. The view that the defence power is concerned only with defence against other nations was rejected by the Court in Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307. Thomas asserted, unsuccessfully, that provisions of the Commonwealth Criminal Code dealing with terrorism were not supported by a head of power. With only Kirby J dissenting, the Court held that they were supported by the defence power. Gummow and Crennan JJ noted at [140], with the general concurrence of Gleeson CJ and Heydon J, that: [T]here was a long history in English law before the adoption of the Constitution which concerned defence of the realm against threats posed internally as well as by invasion from abroad by force of arms. Thus, the law of treason fixed among other things upon the “levying of war” against the sovereign in his or her realm. In this context, the levying of war in the realm required an insurrection accompanied by force, for an object of a public or general nature.

Their Honours held that the definition of “terrorism” in the Code was sufficiently analogous to the concepts in the above paragraph. Callinan J agreed, and even criticised some parts of the judgements in the Communist Party case. It seems that laws directed at individuals who attack the government would still have to find their source outside the defence power, but laws directed at any attempt to organise an “insurrection” are supported by the defence power, whether the threat comes from outside Australia or from inside. Hayne J at [442] agreed that the power supported the laws, but suggested that the power could only be invoked to defend against an “international political aim”. Since the threat presented by Al Qa’ida was of that kind, the defence power applied. As to the second phrase of para 51(vi), “the control of the forces to execute and maintain the laws of the Commonwealth”, in Re Tracey, above, Mason CJ and Wilson and Dawson JJ remarked that “it seems to us that the content of that phrase relates to the work of law enforcement. It is not the ordinary function of the armed services to ‘execute and maintain the laws of the Commonwealth’”. On that reading, which, with respect, seems correct, the primary purpose of the phrase would be to authorise laws regulating the Australian Federal Police and the Australian Security Intelligence Organisation, and the use of the armed forces to preserve the peace inside the country would have to be based on other express or implied powers. Indeed, any use at all of the armed services to maintain security within the country is controversial; as Michael Head says: “Domestic use of the armed forces has become widely regarded as conduct to be expected of a military or autocratic regime, not a democratic government”.7 The idea of subjecting the community to martial law is regarded as a 7 Michael Head, “Militarisation by Stealth” (2007) Overland, issue 188. For an expression of similar concerns in America, see Linda J. Demaine & Brian Rosen, “Process Dangers of Military Involvement In Civil Law Enforcement: Rectifying The Posse Comitatus Act” (2005) 9 Legislation And Public Policy 167.

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foreign idea in England,8 and that principle should apply even more strongly in a country with a written Constitution which, as Sir Owen Dixon has proclaimed, embodies the rule of law. However, it cannot be denied that if terrorists were to arm themselves with tanks or rocket launchers we would need the military to subdue them. Acting on some such idea, in 2000 (even before the attack on the World Trade Center) the Parliament added a new Part IIIA, headed “Utilisation of Defence Force to protect Commonwealth interests, and States and self-governing Territories, against domestic violence” to the Defence Act 1903 (Cth). In respect of protecting the States it is based on s 119 which provides that: “The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence”. It also has provisions relating to the protection of Commonwealth interests and the offshore area, where no request from the States is necessary. It would seem, since its decision in Thomas v Mowbray, that the High Court would find that this is supported by the defence power as long as the forces are called out to put down or prevent an organised “insurrection accompanied by force”.

19.5 Laws with respect to immigration, emigration and aliens [19.140] Section 51 of the Constitution contains two related powers, to make laws with respect to naturalization and aliens (para 51(xix)) and immigration and emigration (para 51(xxvii)). It should first be explained that until 1949 there was no such concept as Australian citizenship; Australians were simply “British subjects” who happened to be in Australia. Some of them even referred to Britain as “Home”. So until then, other British subjects were not aliens and the only function of naturalisation laws was to allow non-British subjects to become British subjects. In 1949, pursuant to an agreement with Britain and the other Commonwealth countries, Australia enacted the Nationality and Citizenship Act 1948 (Cth), which commenced on Australia Day in 1949. It was later renamed the Australian Citizenship Act 1948 (Cth) and was recently replaced by a new Australian Citizenship Act 2007 (Cth). Since, as noted below, the concept of an “immigrant” was broader than that of an “alien” until 1949, the Immigration Restriction Act 1901 (Cth) was drafted to refer to immigrants. Its replacement, the Migration Act 1958 (Cth), contained separate sections providing for the deportation of “immigrants” and the deportation of “aliens” but as the case law eventually made it clear that “alien” is now a broader term than “immigrant”, the Act was further amended, and, apart from the title it is now an act wholly relying on the aliens power. There is much case law on the powers to refuse entry to, or to deport, an “immigrant” which is now of not much more than historical interest. 8 See Grant v Sir Charles Gould [1792] Eng R 3085; (1792) 126 ER 434, at 449–50 per Lord Loughborough: “[M]artial law in the all-encompassing form in which it existed in some Continental countries was unknown in England … our concept of martial law is confined to the area of military discipline”.

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Both powers can clearly support beneficial laws, eg, for assisted immigration, the grant of benefits to aliens or former immigrants, or even assisted emigration, but most of the case law is about laws with a detrimental effect — eg, refusing entry or deportation.

The emigration power [19.150] It was held in Re Yates; Ex parte Walsh and Johnson [1925] HCA 53; (1925) 37 CLR 36 that the power to make laws with respect to “emigration” cannot extend to compulsory emigration, ie deportation; otherwise Parliament could give the government an arbitrary power to deport anyone. So to refuse entry or to deport a person the Commonwealth has to rely on the “immigration” part of para 51(xxvii) or the aliens power in para 51(xix).

Brief notes on the immigration power, and the concept of the Australian community [19.160] It was noted above that the concept of an “immigrant” was broader than that of an “alien” until 1949. This was demonstrated in the Irish Envoys case, R v MacFarlane; Ex parte O’Flanagan and O’Kelly [1923] HCA 39; (1923) 32 CLR 518. O’Flanagan and O’Kelly were representatives of Sinn Fein, seeking support for the Irish Republican cause. Since it had not yet succeeded, they were still British subjects — reluctant ones, but that did not stop them from arguing that they could not be deported. The Court held that the immigration power could support the deportation of British subjects, and that it extended to someone who is not intending to immigrate but is merely coming for a visit. On the other hand, even though Australians were British subjects, they were not immigrants. In Attorney-General (Cth) v Ah Sheung [1906] HCA 44; (1906) 4 CLR 949 the High Court unanimously said, “[w]e are not disposed to give any countenance to the novel doctrine that there is an Australian nationality as distinguished from a British nationality”, but acknowledged that the term “immigration” did not extend to the case of “Australians” who had left Australia with the intention to return. They did not attempt to define Australians in that case, but in Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 the Court held that a person born in Australia was a “member of the Australian community” and had a right to return even after 27 years absence, at least if he had not acquired a domicile of choice in another country (and Minahan said he and his father had always intended that he should return to Australia one day).9 This was extended to British migrants who had settled in Australia in Re Yates; Ex parte Walsh and Johnson [1925] HCA 53; (1925) 37 CLR 36. Walsh’s case was easy; he had entered Australia before federation, and the immigration power seemed on a natural reading to authorise laws about immigration only after federation. Johnson had migrated to 9 For the story of Jimmie Minahan til the time of the case, and his disappearance from the record after the case, see http://chineseaustralia.org/tag/james-minahan.

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Australia in 1910, and the majority of the Justices held that he was now a member of the community (even though he was a union agitator whom the government wanted to deport). After that case, there was much fascinating case law about just when someone passes the test of having been “absorbed” into the community, but since the government does not rely on the immigration power to deport people, this can be found in older textbooks. The consequence, however, is still important. Since an Australian cannot be an immigrant, and is certainly not an alien, we cannot be deported nor can we be refused entry on return from abroad. We have an “accidental” human right simply because the Parliament has no head of power under which it could enact a law. As we will see in Chapter 21, this means that if the government charges us a fee for letting us back into the country it cannot call it a fee for service, because it is providing no service.

The aliens and naturalisation power, Australian citizenship, and the question of just who is an alien [19.170] There is little dispute about the breadth of the aliens and naturalisation power; Parliament can make laws to allow aliens to enter the country and to eventually become Australian citizens, to prevent aliens (now referred to throughout the Migration Act 1958 (Cth) as “non-citizens”) from entering the country, to admit them on conditions, or to deport them. Whether the executive has a power, without statutory authority, to do those things is still a matter of debate, as discussed in section 10.3. Whether it is a usurpation of judicial power to detain aliens indefinitely awaiting deportation is another issue, and will be discussed in Chapter 25. There is no requirement that the law should be “proportional” to the aim of regulating entry into the country; the usual rules of characterisation (see 17.30) apply (Plaintiff S156-2013 v Minister for Immigration and Border Protection [2014] HCA 22; (2014) 254 CLR 28). There may be controversy on moral and political grounds about the way we treat persons wanting to enter the country in an irregular way, but the Parliament’s power to decide to treat them quite harshly as a deterrent to others is clear. As long as someone present in Australia remains an alien, he or she is liable to be deported from the country under the Migration Act 1958 (Cth). Most challenges to proposed deportations are argued on grounds involving the interpretation of the Minister’s powers under that increasingly complicated Act, but a few involve constitutional arguments. One group of cases has involved persons who arrived here as British subjects between 1949 and 1986, when they were not consistently treated, under a variety of statutes, as aliens. Though, as noted in 8.40, there was agreement among the Justices that the meaning of “alien” had eventually changed, there was disagreement as to when. Even after the Nationality and Citizenship Act 1948 (Cth) created the notion of Australian citizenship, it had limited the meaning of “alien” as defined in that Act to “a person who does not have the status of a British subject and is not an Irish citizen or a protected person”, and there were provisions in the Migration Act 1958 (Cth) setting different criteria for the deportation of aliens and British subjects. However, in 1984 nearly all of the references to “immigrant” and 318

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“alien” were removed from the Migration Act 1958 (Cth) and replaced with “noncitizen”10 and the deportation provisions applied to these same “non-citizens”. Then all references to “the status of British subject” were removed from the Australian Citizenship Act 1948 (Cth) in 1987.11 So in Nolan v Minister for Immigration & Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178, Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 and Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; (2003) 218 CLR 28, the Justices differed as to which statutory changes should be taken as the best evidence that the constitutional meaning of “alien” now included non-Australian British subjects. In Nolan, a majority held that the change should be dated to 1949, in Taylor a range of dates in the 1980s attracted majority support (thus saving Taylor who had arrived in 1966 from deportation), but in Shaw the majority choice reverted to 1949. It is not likely to be reversed again, so it seems that Britons and other Commonwealth citizens who have entered the country since 1949 and not been naturalised are “aliens” in the constitutional sense, and can be deported under the relevant provisions of the Migration Act 1958 (Cth). But, as noted in 15.20, those who were here in 1984 can enrol to vote and, once enrolled, must stay on the roll and must vote. They are, by the High Court majority’s interpretation of the Constitution, not part of the “people” referred to in ss 7 and 24 of the Constitution but, by parliamentary concession, they remain part of the body of “electors” referred to in ss 8, 30, 123 and 128. There is no definition of “citizenship” in the Constitution. When the Nationality and Citizenship Act 1948 (Cth) was first passed, a citizen was anyone born in Australia or born to an Australian parent overseas if the birth was registered at a consulate, plus British subjects who had been living here continuously for five years before the commencement date, plus those who go through the naturalisation procedure. In 1986 the definition was amended so that a person born in Australia is only a citizen if: (a) one parent is a citizen or lawful permanent resident; or (b) the person has been ordinarily resident in Australia for their first 10 years. Singh v Commonwealth [2004] HCA 43; (2004) 222 CLR 322 was briefly noted in 8.40, but one point should be added here. Of the majority judges, who held that the amendment was valid, Gleeson CJ held at [4] that Parliament could not amend the definition “to include persons who could not possibly answer the description of ‘aliens’ in the Constitution” and Kirby J noted at [253] that Parliament could give change the definition “within limits set by the unchanging, essential elements of the word ‘aliens’”.12 The other majority Justices, Gummow, Hayne and Heydon JJ, simply held that “alien” did not have a fixed meaning in 1901. Though they did not suggest that there was some unalterable core, there must surely be one. It is hard to believe 10 Migration Amendment Act 1983 (Cth), commenced 2April 1984. 11 Australian Citizenship Amendment Act 1984 (Cth), the relevant sections of which did not commence until 1 May 1987. 12 His Honour’s judgment is worth reading as an example of a judgment that squarely confronts the fact that there are strong arguments for both sides of the case, rather than curtly dismissing one side and stating only the other.

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that amendments to the law that deprived, say, persons born in Australia to Australian parents of citizenship could be valid. “Alien” cannot only include some persons born in Australia, but it includes people who were brought here as quite young children by their parents and have grown up as Australians, but have not bothered to take Australian citizenship. Such people remain “non-citizens” and can be deported under ss 201–203 of the Migration Act 1958 (Cth) if they commit offences. In Nolan and Shaw, above, the complainants had both come from Britain and were being deported to a country where they could speak the local language, but Robert Jovicic, a Serbian citizen by birth, had lived in Australia since he was two and could speak no Serbo-Croatian. When deported to Serbia, he had no means of supporting himself, scrounged food from rubbish bins and slept in the doorway of the Australian embassy. He did not take High Court action (he had no grounds as well as no means), but press publicity resulted in the Australian government allowing him to return.13 The unanswered question about citizenship is whether, once granted, it can be revoked if a person is being a bad citizen. The Australian Citizenship Act 2007 (Cth) provides in s 34 for revocation of citizenship on grounds that relate to unrevealed offences committed before naturalisation, fraud in an application, and so on. Clearly these things taint the citizenship application itself, and the section is surely valid. But if someone embarks on a life of crime or terrorism, or we fight a war against their former country, after naturalisation, can they be stripped of their citizenship? In the aftermath of World War I, many naturalised Austrians and Germans were stripped of their citizenship and deported. In Meyer v Poynton [1920] HCA 36; (1920) 27 CLR 436 Starke J held that “if the power … to admit to Australian citizenship is within the power to make laws with respect to naturalization, so must authority to withdraw that citizenship on specified conditions be also within that power”. He thought the point was so obvious that there was no need to refer it to a Full Court. However, in Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 Gaudron J suggested: … although the power conferred by s 51(xix) to make laws with respect to “naturalization and aliens” authorizes denaturalization laws, it does not, in my view, authorize laws providing for denaturalization in the absence of some failure to observe the requirements associated with naturalization or in the absence of some relevant change in the relationship of the person or persons concerned with the community constituting the body politic.

Clearly a renunciation of Australian citizenship (when, for example, taking the citizenship of another country) would amount to a “relevant change in the relationship of the person with the community”, but what else would is unclear. The Australian ­Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) added a new s 33AA to the principal Act under which citizens are taken to have automatically renounced their citizenship (as long as they hold another one) if they engage in various forms 13 See http://www.abc.net.au/lateline/content/2007/s2170599.htm.

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of terrorist conduct. It is understood that the proposed section is drafted in that way because an earlier draft had given the power to the Minister, and it had been pointed out that this would amount to a breach of the separation of powers, as will be discussed in Chapter 25. The section appears now to be “self-executing”, but the problem with such sections14 is that some executive officer will still have to make a decision such as refusing re-entry into Australia or cancelling a passport. The drafters have attempted to avoid this by providing that the Minister must attempt to give notice to the person that he or she appears to have ceased to be a citizen, and that the notice is reviewable. It may be unlikely that anyone who has, for example, gone overseas to fight for ISIS will seek to challenge the Minister’s notice or the validity of the Act, but doubts remain. It would be far more consistent with constitutional principle if the section provided for the Minister to apply to a court for an order revoking citizenship, to be granted on presentation of sufficient evidence.

ISSUES FOR DISCUSSION 1. In the year before the Dam case, a Tasmanian government had been elected on a promise to build the dam, and an Australian government on a promise to stop it. As a political question, then, the issue was whether the will of the majority of the Australian people should be allowed to override the will of the majority of the Tasmanian people. Should this influence the decision of High Court judges? Do you think it did influence the decision of the minority? Even as a political question, is it answered by the fact that the people of Tasmania had voted in July 1899 to accept the Constitution by 13,437 to only 791? 2. Is Part IIIA of the Defence Act 1903 (Cth) (see 19.130, above) all perfectly reasonable, or would you like to add some additional limits or safeguards to it? If so, what? Are all sections valid laws under the defence power or s 119? 3. Should there be a definition of “citizenship” in the Constitution? Do you agree with Martin’s suggestion, in the reading below, or would you suggest a different formula?

FURTHER READING AR (Tony) Blackshield, “Damadam to Infinities! The Tourneyold of the Wattarfalls” in M Sornarajah (ed), The South West Dam Dispute: The Legal and Political Issues University of Tasmania, 1983, 37 (Despite the citation of a series of James Joyce’s typically complex puns in the title, the article is written in the clearest English) 14 The High Court has expressed scepticism about Commonwealth claims that any provision of an Act that affects a person’s right can be self-executing; see Coutts v Commonwealth [1985] HCA 40; (1985) 157 CLR 91 per Wilson J at 97–8 and Deane J at 112.

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Elise Edson, “Section 51(xxix) of the Australian Constitution and ‘Matters of Inter­ national Concern’: Is There Anything To Be Concerned About?” (2008) 29 Adelaide LR 269 Michelle Foster, “Membership in the Australian Community: Singh v The C ­ ommonwealth and its Consequences for Australian Citizenship Law” (2006) 34 Fed L Rev 161 Michael Head, “The Military Call-out Legislation — Some Legal and Constitutional Questions” (2001) 29 Fed L Rev 273 Helen Irving, “Still Call Australia Home: The Constitution and the Citizen’s Right of Abode” (2008) 30 Syd LR 131 HP Lee, Emergency Powers, Law Book Company Limited, 1984 Paul Martin, “Re MIMIA; Ex Parte Ame — the Case for a Constitutional Australian ­Citizenship” (2006) 6 QUTLJJ 1 Cameron Moore, “‘To Execute and Maintain the Laws of the Commonwealth’: The ADF and Internal Security — Some Old Issues with New Relevance” (2005) 28 UNSWLJ 523 Oscar I Roos, “Alarmed, but not Alert in the ‘War on Terror’? The High Court, Thomas v Mowbray and the Defence Power” (2008) 15 JCULR 169

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Social Powers — Marriage and Divorce; Pensions, Benefits and Health Services; People of Any “Race” 20.1 Context and overview [20.10] The next group of powers are what could be called “social powers”; they regulate the social institution of marriage, or provide benefits, services or protection for people. The drafters of the Constitution left most of the “social” functions of government — public schools, hospitals and health clinics — to the States (not that they “reserved” them; they just did not give relevant powers to the new Commonwealth). There were two exceptions. They gave powers to make uniform marriage and divorce laws to the Commonwealth, because the lawyers among them knew how much chaos the existence of separate (and widely different) State laws had created in the United States, and they gave the Commonwealth the power to pay old age and invalid pensions. The latter were quite a recent social innovation at the time, and their inclusion in the Commonwealth powers was seen as a very “progressive” step. The inclusion of a power to make special laws for the people of any race, however, was not intended to be progressive, except in that it might increase wages for white workers; it was expected that it would be used to limit the rights of Chinese and South Sea Islanders to work in Australia, and perhaps to deport them. Laws about “the aboriginal race in any State” were excluded from the race power because it was believed at the time that State “aboriginal protection” laws were working quite well. By the mid-to-late twentieth century, the Australian people were persuaded that they needed to give the Commonwealth Government a wider range of “helping” powers. In two of the more significant amendments that have been approved by referendum, paragraph (xxiiiA) was added in 1946, to add to the list of pensions and other benefits and services that the Commonwealth could provide. The exception as to the “aboriginal 323

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race” was removed from the race power in 1967 in the hope that Commonwealth laws would be more beneficial to the Indigenous people than the State laws, which by then were seen as inadequate.

20.2 Marriage and divorce and matrimonial causes [20.20] Section 51 includes the following paragraphs: (xxi) marriage; (xxii) divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants; … Despite the expectations of the drafters, the Commonwealth did not use these powers for half a century, until it enacted the Matrimonial Causes Act 1959 (Cth), creating uniform divorce laws, and the Marriage Act 1961 (Cth). The central provisions of the two Acts, providing respectively for divorce and marriage, are clearly valid, but there have been doubts, and therefore case law, about some of the incidental provisions. The first case gave the Commonwealth some cause for confidence in the breadth of these powers. The Marriage Act included sections “legitimating” children born to a couple before their marriage, and creating an offence of bigamy. Victoria promptly challenged those sections, not, so it said, out of a petty concern for its powers, but “to set at rest as soon as may be doubts which may now or years hence affect or attend the title to proprietary rights and other private rights”: Attorney-General (Vic) v Commonwealth [1962] HCA 37; (1962) 107 CLR 529 (Marriage Act case) per Dixon J at 539. By majorities of 4:3 and 6:1 respectively, the sections were held valid, establishing that the power extends not just to capacity to marry and the forms of celebration of marriage, but to the consequences of the marriage. Menzies J observed at 572: The [marriage] power must extend to the mutual rights and obligations of spouses … It would be quite unrealistic to construe s 51 (xxi) and (xxii) together as according power to provide for the vows with which marriage shall begin and the grounds for divorce to bring it to an end but as having nothing to do with the obligations one to another of those who marry, the disregard of which obligations is the basis for divorce.

Interaction of the two paragraphs, and gaps in the jurisdiction over custody1 of children [20.30] However, there are some complications caused by the overlaps between, and within, the two powers. In both the Matrimonial Causes Act 1959 (Cth) and its 1 The Family Law Act 1975 (Cth) now refers to “parenting orders”, dealing with “the person or persons with whom a child is to live”, as “custody” suggests ownership as one would own a chattel. However, “custody” will be used here as it is the word used in the Constitution and in the constitutional cases.

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replacement the Family Law Act 1975 (Cth), the drafters tried to give courts the widest possible jurisdiction over a range of “matrimonial causes” without paying sufficientlypedantic attention to the words of the two paragraphs. Unfortunately, the phrase “in relation to” in para (xxii) suggested to the High Court that jurisdiction can only be given over custody and guardianship in reliance on that paragraph if it is incidental to a principal application for divorce or some other “matrimonial cause”: Russell v Russell [1976] HCA 23; (1976) 134 CLR 495. The Court qualified the inconvenience of this ruling by also holding that para (xxi) is not limited by para (xxii), so jurisdiction over custody and guardianship matters could be created under the marriage power but then only if the children were “children of the marriage”. This created immense jurisdictional problems for couples having custody disputes over “blended families” (unless the non-biological parent had formally adopted a child), and even in a case where an apparent “child of the marriage” turned out, after blood-group testing, not to be the biological child of the father: Re F; Ex parte F [1986] HCA 41; (1986) 161 CLR 376. These problems could possibly have been avoided; it seems that once the emphasis had been placed on the marriage power, the legislative drafters did not exploit the full possible range of the divorce power. One might have thought, for example, that, once the parents were divorcing, a dispute over the custody of any child who had been part of the household would be “in relation to” the divorce proceedings, but the jurisdictional provisions in the Act did not clearly pick this up as a separate basis of jurisdiction, and in Re F the High Court refused to read an over-broad section down to fit within the para (xxii) power. Even under the marriage power, the Court could have adopted the view expressed in dissent in Re F by Mason and Deane J, where their Honours suggested that there had been too much emphasis in the cases on whether there was an “independent connection between marriage and children of [a] particular description” and not enough on whether laws “operated upon or affected the relationship or institution of marriage by creating rights and obligations arising directly from and by reference to that relationship or institution”. Eventually, the problems were causing so much unnecessary distress to so many couples that they were largely resolved by references of power by the States, for example, the Commonwealth Powers (Family Law — Children) Act 1990 (Qld).2 A special aspect of parental custody was raised in Marion’s case (Department of Health & Community Services v JWB & SMB [1992] HCA 15; (1992) 175 CLR 218). The parents of an intellectually disabled child wanted to have her “sterilised” in her own interests (the word seems inadequate because a hysterectomy and ovariectomy were proposed, not just to prevent her from having children but to prevent her from having to cope with all the bodily changes of adolescence). The Court held that: (i) under the law of tort and crime, parents could not make such a decision without a court order; 2 Western Australia is the exception; as allowed by the Family Law Act 1975 (Cth), it has established its own Family Court, and that exercises jurisdiction over all family matters whether regulated by Commonwealth or State law.

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(ii) that a provision of the Family Law Act gave the Family Court parens patriae jurisdiction under which the Court could approve the operation; and (iii) that the above provision was constitutionally valid as an exercise of the marriage power.

This was confirmed in P v P [1994] HCA 20; (1994) 181 CLR 583. As the parents in this case were divorced, the Court observed that the jurisdiction to make the orders might be based on either the marriage power or the divorce and matrimonial causes power.

Jurisdiction to adjust property rights [20.40] The other kind of order frequently made in conjunction with divorce proceedings is one to adjust property rights between couples. Again, the relevant clause of the definition of “matrimonial causes” in the Act was drawn without sufficient attention to the words of the Constitution, and in Dougherty v Dougherty [1987] HCA 33; (1987) 163 CLR 278, the High Court held at [7] that it must be read down to apply only to “a claim based on circumstances arising out of the marriage relationship”, and not to cover “claims grounded solely in contract or tort or equity or otherwise arising by reason of a relationship, for example of partnership, where the marriage relationship is purely coincidental”. In that case, the jurisdiction was held to potentially extend to a claim by the son of the marriage for recognition of an agreement that he would take certain property, as long as he could establish that his claim arose out of, or had sufficient connection with, the marriage relationship. The marriage power clearly does not extend to defining the consequences of an informal marriage-like relationship, and “divorce and matrimonial causes” presupposes the existence of a formal marriage. So for some time there was a difference between the rights of couples in, or after the break-up of, a de facto relationship and those in or after a formal marriage. For divorcing couples, the Family Court could adjust property rights, to reflect the fact that one spouse may have accumulated property while the other “kept house” and/or cared for children, while all that the State courts could do after the break-up of a de facto relationship was to declare who owned what at law or in equity. In the 1980s and 1990s, some States enacted their own laws about property disputes between de facto parties,3 making provisions similar to those in the Family Law Act, and in 2009–2010 all States except Western Australia referred power to the Commonwealth,4 so that de facto property disputes are now dealt with in the Family Court.

The constitutionality of same-sex marriage laws [20.50] Traditionally (in the western, Christian, tradition at least) marriage was “the voluntary union for life of one man and one woman, to the exclusion of all others”. 3 For example, the Property (Relationships) Act 1984 (NSW). 4 For example, the Commonwealth Powers (De Facto Relationships) Act 2003 (Qld).

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Lord Penzance stated this in Hyde v Hyde (1866) LR 1 P&D 130 at 133 and then immediately cut some of the ground out from under his conclusion by saying, “[b]ut there is no magic in a name”. When the drafters included the word in the Constitution, they were no doubt thinking only of monogamous, heterosexual marriage; homosexuality was, at that time “the love that dare not speak its name”.5 However, as we saw in section 8.4, as the world has changed, the High Court has recognised that the meaning of words like “aliens” and “patents of invention” can change. The High Court has now recognised that a law permitting same-sex marriage would be within the marriage power. As pressure increased for an end to discrimination against same-sex couples, laws providing for “civil unions” were enacted in the eastern States of Australia between 2004 and 2012. Then, following the lead of the more liberal countries in Europe and the Commonwealth, the Australian Capital Territory enacted the Marriage Equality (Same Sex) Act 2013 (ACT), providing for same-sex marriages to occur under its own law rather than under the Commonwealth Marriage Act 1961. The Commonwealth government quickly challenged the validity of the Territory’s Act, as being inconsistent with its own Act. The inconsistency argument will be noted in Chapter 36, but an issue logically prior to that was — could the Commonwealth Act extend to same-sex marriage even if the Parliament wanted it to? If not, the Territory’s Act would not be trespassing into the Commonwealth’s “field” (see section 32.4). Both parties argued that the power did so extend. In Commonwealth v Australian Capital Territory [2013] HCA 55; (2013) 250 CLR 441 (Same-sex Marriage case), six Justices noted, in a joint judgment, that they could not be bound by the agreement of the parties and would have to consider the issue for themselves. They concluded that the power does extend to laws for same-sex marriage. Their Honours noted that the law relating to marriage at the time of federation was already “the result of a long and tangled development” (at [18]). They cited, at [21], Higgins J’s remark from the Union Label Case 6 at 612, that: “Power to make laws as to any class of rights involves a power to alter those rights, to define those rights, to limit those rights, to extend those rights, and to extend the class of those who may enjoy those rights” (emphasis added). Any ultimate limits on the concept of marriage would depend, then, not on the definition of marriage at the time of federation, but on what it meant as a “topic of juristic classification” (at [20]–[23]). To identify the content of this concept one could consider the approach to marriage law of other jurisdictions, not just 19th century England, because the choice of law rules (important in deciding whether to recognise an overseas marriage) had always recognised that the status of marriage was “created and governed … by foreign law, whether the law of the place of celebration of the marriage or the law of the domicile of the parties” (at [23]). Under this approach, many persons whose marriage would not have been valid if made under Anglo-Australian law had been recognised as married, when they had arrived in Australia, because their marriage had been valid where it had been celebrated. 5 From the poem “Two Loves”, by Lord Alfred Douglas (1894). 6 Attorney-General for NSW v Brewery Employés Union of NSW [1908] HCA 94; (1908) 6 CLR 469.

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Taking account of all the kinds of relationship that had been recognised as marriage, the closest their Honours could come to a definition of this juristic concept, at [33], was: … “marriage” is to be understood in s 51(xxi) of the Constitution as referring to a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations.

Since other legal systems now provide for marriage between persons of the same sex, it seemed that the juristic concept now embraced such unions (at [37]). Therefore, their Honours concluded at [38]: “When used in s 51(xxi), ‘marriage’ is a term which includes a marriage between persons of the same sex”. The way, therefore, is now clear for the Commonwealth Parliament to amend the Marriage Act to include provision for same-sex marriage. At the time of writing, there is a political stand-off as to whether the Parliament should just enact an amendment or whether it should first seek the approval of the people via a plebiscite. If the amendment is eventually enacted, we will know it is constitutionally valid because of the Same-sex Marriage Case.

20.3 Various pensions and benefits and the provision of health services [20.60] Section 51 includes the following paragraphs: (xxiii) invalid and old‑age pensions; (xxiiiA) the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances; … The second paragraph was added by constitutional amendment in 1946, after the High Court had ruled the original Pharmaceutical Benefits Scheme invalid in AttorneyGeneral (Vic); Ex rel Dale v Commonwealth [1945] HCA 30; (1945) 71 CLR 237, for reasons noted in Chapter 21.

Scope of the powers [20.70] Most of the provisions above authorise the payment of money, described as “pensions”, “endowment”, or “allowances”. There are few problems about the scope of these phrases. As long as Parliament has passed an appropriation, the Commonwealth can pay money and impose eligibility conditions for the receipt of the money: Higgins v Commonwealth [1998] FCA 39; (1998) 79 FCR 528. The two provisions that refer to benefits seem to have a broader scope than the provision of money. As Latham CJ suggested 328

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in British Medical Association v Commonwealth [1949] HCA 44; (1949) 79 CLR 201 (the BMA case, or Pharmaceutical Benefits case) at 230, sickness and hospital benefits could include the supply of eye droppers, syringes, bandages or any “necessary instrument or appliance”. On the same argument, the provision of books or even accommodation could be a “benefit to students”. However, the benefit must be provided, if not directly to the beneficiaries, at least in respect of services provided to identifiable beneficiaries. In Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth [1987] HCA 6; (1987) 162 CLR 271, it was held that payments to proprietors of approved nursing homes, for each day on which particular patients received care in the homes, was the provision of a “sickness and hospital benefit”. In contrast, the payment of money to organisations that provided chaplains to State schools, on the understanding that the chaplains would provide support services for students in general, was not a payment “for or on behalf of any identified or identifiable student”: Williams v Commonwealth of Australia [2014] HCA 23; (2014) 252 CLR 416. It also seems unlikely that “benefits to students” would extend to the provision of educational services to students; the phrase assumes that there are people who are students and then the Commonwealth can provide benefits to them. (See the discussion of university funding in section 21.8.) “The provision of … medical and dental services” is quite different. On the broadest possible reading, out of its context, it could enable all kinds of regulation of the provision of these services by all doctors and dentists, as long as the regulation fell short of civil conscription. However, as Dixon J observed in the BMA case at 261: The purpose of the constitutional amendment was to enable the Commonwealth to provide the pensions allowances endowments benefits and services which par (xxiiiA) mentions. That is shown by the character of the things for the provision of which laws may be made, which are recognized social services the establishment of which is now considered to be within the province of government. The conclusion is confirmed by the history of the matter; and it is supported by the placing of the new paragraph after s 51 (xxiii), which deals with invalid and old age pensions. The meaning appears to me to be the same as if the power had been expressed as one to make laws to provide &c. (emphasis added)

The other Justices agreed on this point. In Alexandra Private Hospital, above, the Court noted that this was one of the points about para (xxiiiA) that was “settled”. If the Commonwealth can provide medical and dental services it follows that it can establish clinics and hospitals in which services are provided, and that the provision of the services is a “purpose in respect of which the Parliament has the power to make laws” for which the Commonwealth can acquire property under para (xxxi). That is, it could take over the public hospital systems from the States as long as it paid “just terms” for the property and did not “civilly conscript” staff to work in the hospitals.7 The only thing 7 Andrew Podger recognises this as a constitutional possibility, while advocating a more cooperative method of establishing a regionalised health system; see “Reconceiving Federal-State-Regional Arrangements in Health”, Ch 9 of AJ Brown and JA Bellamy, Federalism and Regionalism in Australia; New Approaches, New Institutions?’, ANU E Press, 2006, at http://press.anu.edu.au/publications/series/ australia-and-new-zealand-school-government-anzsog/federalism-and-regionalism

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preventing it from doing so, it seems, is the fear that a government risks getting more criticism than praise from running a hospital system.

When do conditions imposed on the receipt of benefits amount to “civil conscription”? [20.80] The part of the paragraph under which the Commonwealth has regulated the behaviour of doctors and hospitals is “the provision of … pharmaceutical, sickness and hospital benefits”. It is fairly obvious from the punctuation that the qualification “(but not so as to authorise civil conscription)” qualifies only the “medical and dental services” part of the paragraph, and the High Court has generally accepted this, except for Latham CJ’s judgment in the BMA case. However, it is also recognised that that if medical or dental services are provided as part of the provision (to patients) of sickness or hospital benefits, possible breaches of the prohibition would still need to be considered: Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth [1987] HCA 6; (1987) 162 CLR 271. So there have been cases where doctors and owners of hospitals have alleged that regulations imposed upon them as a condition of their patients’ access to pharmaceutical, sickness or hospital benefits have amounted to “civil conscription”. The argument succeeded in the first case, the BMA case.8 By majority, the Court held that a section requiring doctors to use a prescribed form when prescribing a medicine listed in the official “Formulary” was imposing civil conscription. Latham CJ used a somewhat exaggerated floodgates argument at 215: If this is not a form of civil conscription, it would equally not be a form of civil conscription in relation to “medical services” to prescribe by law that a doctor should carry on his practice at a particular place, or at a particular time, or for a particular class of patients and not for other patients, and that he should follow a prescribed routine in dealing with his patients.

On the other hand Dixon J, dissenting along with McTiernan J, suggested at 278 that conscription would mean more than the compulsory use of a prescribed form. It would mean some sort of compulsion to serve, and: [Here] there is no compulsion to serve as a medical man, to attend patients, to render medical services to patients, or to act in any other medical capacity, whether regularly or occasionally, over a period of time however short, or intermittently.

Later cases have followed the dissenters’ view. In 1972, the Commonwealth virtually took over control of nursing homes by enacting amendments to the National Health 8 The name of the plaintiff reflects the fact that doctors in Australia were still living in the colonial age. In 1962 the State branches of the British Medical Association finally created the Australian Medical Association. In the 1940s the BMA had opposed the health schemes of the Labor government more vigorously than the Opposition, led by Robert Menzies — see Ken Harvey, “The Pharmaceutical Benefits Scheme: History, Current Status and Post-election Prognosis’’ (2001) Aust Rev Pub Affairs at http://www. australianreview.net/digest/2001/11/harvey.html.

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Act 1953 (Cth), providing that the patients’ sickness and hospital benefits would be paid directly to the homes, as long as they complied with strict conditions. In Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth [1987] HCA 6; (1987) 162 CLR 271, the Court held that the regulations were incidental to the provision of the benefits. The plaintiffs had not pursued a “civil conscription” argument which had been foreshadowed in the pleadings. In General Practitioners Society v Commonwealth [1980] HCA 30; (1980) 145 CLR 532, a requirement that pathologists must be approved by an authority before benefits were payable for pathology services was held valid. In Wong v Commonwealth of Australia [2009] HCA 3; (2009) 236 CLR 573, the Court reconsidered the meaning of civil conscription. The majority paid more attention to the parliamentary and public debate at the time of adoption of the section by referendum, but came to a conclusion not very different from that of Dixon J above. Kirby J started from two premises: that the relationship between a patient and a practitioner is essentially a private contractual relationship; and that the Commonwealth has an interest in spending its money wisely. From the need to balance these factors, he concluded at [151] that: The test for attracting the prohibition contained in s 51(xxiiiA) is whether the impugned regulation, by its details and burdens, intrudes impermissibly into the private consensual arrangements between the providers of “medical and dental services” and the individual recipients of such services.

He agreed with the majority that the sections of the Health Insurance Act 1973 (Cth) dealing with “inappropriate practice”, held to have been breached by the appellants, were valid. It seems that, despite the greater sophistication of his formulation, it will work out in practice fairly close to the older distinction between regulating the details of something done voluntarily and compelling a person to provide a service. (Heydon J, dissenting, held that some parts of the Act amounted to civil conscription.)

20.4 Special laws for the people of any “race” [20.90] Paragraph 51(xxvi) gives the Parliament the power to make laws with respect to “the people of any race for whom it is deemed necessary to make special laws”. It originally referred to “the people of any race other than the aboriginal race in any State …” and was clearly intended to empower the Commonwealth to make detrimental laws for the Chinese, South Pacific Islander, etc, races. Immediately after federation, the Parliament enacted the Pacific Island Labourers Act 1901 (Cth), under which Pacific Island labourers, not employed under a current agreement, could be deported before 31 December 1906, and any such labourer still found in Australia after that date could be deported. In Robtelmes v Brenan [1906] HCA 58; (1906) 4 CLR 395, the High Court declared that the Act was valid, mainly on the basis of the aliens or immigration powers, but Barton J also noted that it was possibly authorised by “sub-sec 26”. The power was not 331

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used, however, to implement the “White Australia” policy; that was done, in the Immigration Restriction Act 1901 (Cth), by the gloriously indirect technique of empowering immigration officers to administer a 50-word “dictation test” in any European language (later amended to any language) to would-be immigrants. If the immigrant looked “white”, they would not be tested, if they looked non-white, or the government wanted to keep them out for other reasons, they would be tested in some language in which they appeared likely to fail.9 The words “other than the aboriginal race in any State” were removed in 1967. After a campaign in which it was emphasised that the amendment was intended to empower the Commonwealth to make laws for the benefit of Aboriginal people, it was approved by 90.77 per cent of the formal votes.

Special laws for the people of a “race” (or a sub-group thereof) [20.100] In Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168, the High Court held, with Murphy J dissenting, that a law generally prohibiting racial discrimination was not a special law for the people of any race. It may, on that logic, have been possible to pass a series of laws prohibiting discrimination against the “Chinese race”, the “Indian race”, the “Aboriginal race” and so on, and this may have called for further discussion of the identification of the “races” into which the human species may be divided and how broadly or finely they can be defined. However, that was not necessary as the majority held (as discussed in Chapter 19) that the Racial Discrimination Act 1975 (Cth), implementing a treaty, was valid under the external affairs power. The law challenged in the Tasmanian Dam case (Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1) was the World Heritage Properties Conservation Act 1983 (Cth). Some sections of the Act were declared by s 8 to be “special laws for the people of the Aboriginal race”, and despite division about the validity of the laws the Justices appear to have agreed that it was meaningful to refer to such a race. As Brennan J noted at [79], [83]: “Race” is not a term of art; it is not a precise concept. There is, of course, a biological element in the concept. The UNESCO studies on race and racial discrimination reveal some difficulty in giving a precise definition even to this element. Senor Hernan Santa Cruz, the Special Rapporteur on Racial Discrimination, in his report to the United Nations traces some of the findings of experts: … all men living today belong to a single species and are derived from a common stock; … pure races in the sense of genetically homogeneous populations do not exist in the human species. … Membership of a race imports a biological history or origin which is common to other members of the race … Actual proof of descent from ancestors who were acknowledged members of the race, or actual proof of descent from ancestors none of whom were members of the race, is admissible to prove or to contradict, as the case may be, an 9 For a short history of the use of the dictation test see https://museumvictoria.com.au/discoverycentre/ websites-mini/journeys-australia/1900s20s/immigration-restriction-act/.

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assertion of membership of the race. Though the biological element is … an essential element of membership of a race, it does not ordinarily exhaust the characteristics of a racial group. Physical similarities, and a common history, a common religion or spiritual beliefs and a common culture are factors that tend to create a sense of identity among members of a race and to which others have regard in identifying people as members of a race. As the people of a group identify themselves and are identified by others as a race by reference to their common history, religion, spiritual beliefs or culture as well as by reference to their biological origins and physical similarities, an indication is given of the scope and purpose of the power granted by par (xxvi).

Murphy J held at [70]: [W]hatever technical meaning “race” might be given in other contexts, in the Australian Constitution it includes the aborigines and Torres Strait Islanders and every subdivision of those peoples. To hold otherwise would be to make a mockery of the decision by the people to delete from s 51(26) the words “other than the aboriginal race in any State” (Constitution Alteration (Aboriginals) Act 1967 (Cth)).

No laws have been enacted referring specifically to any other “race”, so the only live issue is what is a “special” law with respect to Aboriginals and Torres Strait Islanders. In the Tasmanian Dam case sections protecting sites containing Aboriginal artefacts or relics were held by 4:3 to be supported by the power (though Deane J held that they were invalid because they imposed so many restrictions on what the Hydroelectric Commission could do with the land that they “acquired” property from Tasmania without providing just terms — see Chapter 22). Mason J remarked, at [117]: A law which protects the cultural heritage of the people of the aboriginal race constitutes a special law for the purpose of par (xxvi) because the protection of that cultural heritage meets a special need of that people. However, it is argued that ss. 8 and 11 do not answer the description of such a law because the law only protects a site which is of significance to the whole of mankind and to the people of the aboriginal race. This argument fails to acknowledge that something which is of significance to mankind may have a special and deeper significance to a particular people because it forms part of their cultural heritage.

In Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373 (Native Title Act case) it was argued that the Act conferred a benefit on some Indigenous people only — those who still held native title under Mabo principles. The joint judgment of six Justices held at [98] that: A special quality appears when the law confers a right or benefit or imposes an obligation or disadvantage especially on the people of a particular race. The law may be special even when it confers a benefit generally, provided the benefit is of special significance or importance to the people of a particular race. … Applying these observations, the Native Title Act is “special” in that it confers uniquely on the Aboriginal and Torres Strait Islander holders of native title (the ‘people of any race’) a benefit protective of their native title.

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Perhaps the Act confers a benefit on all the people of those races. The special quality of the law thus appears.

In Kartinyeri v Commonwealth [1998] HCA 22; (1995) 195 CLR 337, Gummow and Hayne JJ confirmed at [76] that the power includes special laws for “any members of that class identified by the expression ‘the people of ’ the race in question”. The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), partial repeal of which was at issue in the case, had the purpose “to preserve and protect the body of traditions, observances, customs and beliefs not only of Aboriginals generally but also of a particular community or group of Aboriginals which relate to particular areas”, and was therefore a special law.

Deemed necessary — by whom? [20.110] In the Native Title Act case the joint judgment noted at [97]: If … the requirement that a law enacted under s 51(xxvi) be special were held to evoke a judicial evaluation of the needs of the people of a race or of the threats or problems that confronted them in order to determine whether the law was, or could be deemed to be, “necessary’, the Court would be required to form a political value judgment. Yet it is clear that that judgment is for the Parliament. … If the Court retains some supervisory jurisdiction to examine the question of necessity against the possibility of a manifest abuse of the races power, this case is not the occasion for an examination of that jurisdiction. The removal of the common law general defeasibility of native title by the Native Title Act is sufficient to demonstrate that the Parliament could properly have deemed that Act to be “necessary”. (Citations omitted)

Their Honours did not explain how a “manifest abuse” would be detected. Presumably an abuse could be constituted either by a severely discriminatory law or by a law bestowing an unjustifiable benefit. The issue seems therefore to merge into the next one.

Beneficial or detrimental laws? [20.120] Clearly para (xxvi) was inserted in the first place to enable the Commonwealth to make laws discriminating against the non-European labourers whom many Australians wanted to deport. Equally clearly, the 1967 amendment was “sold” to the electors — as part of a “package” that also removed the former s 127, which had provided that the “aboriginal natives” were not to be counted in a census — on the basis that the power would now be used by the Commonwealth for the benefit of the Indigenous people. However, this intention was not reflected in the words of the amendment. This has caused disagreement on the High Court as to the effect of the section since the amendment. In the Tasmanian Dam case, Mason J observed at [115] that the power’s “terms are wide enough to enable the Parliament (a) to regulate and control the people of any race 334

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in the event that they constitute a threat or problem to the general community; and (b) to protect the people of a race in the event that there is a need to protect them”, while Murphy J claimed at [70] that: “A broad reading of this power is that it authorizes any law for the benefit, physical and mental, of the people of the race for whom Parliament deems it necessary to pass special laws”. Brennan J stated at [77]: The approval of the proposed law for the amendment of par (xxvi) by deleting the words “other than the aboriginal race” was an affirmation of the will of the Australian people that the odious policies of oppression and neglect of Aboriginal citizens were to be at an end, and that the primary object of the power is beneficial. (emphasis added)

Whether the power might have a secondary object, his Honour did not say. In Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337, the plaintiffs were challenging the validity of the Hindmarsh Island Bridge Act 1997 (Cth), which prevented the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) from applying to the site of the proposed bridge. They submitted that, since the amendment of para (xxvi) in 1967, it would only support special laws that were for the benefit of the aboriginal race, and that the Bridge Act was therefore beyond power. The Bridge Act clearly had the effect of a partial repeal of the latter Act, and all Justices except Kirby J agreed that whatever the Parliament could enact it could partly or wholly repeal, and that therefore the Act was valid. Therefore it was not necessary for the majority Justices to make any remarks as to the scope of the power; so Brennan CJ and McHugh J expressly refrained from addressing the issue. However, the other four Justices did express their views. Gummow and Hayne JJ expressly rejected the plaintiffs’ submission, at [91]: The text is not limited by any implication such as that contended for by the plaintiffs. This is so whether one has regard alone to the terms of the Constitution after the 1967 Act took effect or also to that statute. The circumstances surrounding the enactment of the 1967 Act, assuming regard may properly be had to them, may indicate an aspiration of the legislature and the electors to provide federal legislative powers to advance the situation of persons of the Aboriginal race. But it does not follow that this was implemented by a change to the constitutional text which was hedged by limitations unexpressed therein.

They did, however, note the qualification expressed in the Native Title Act case at [82]: “[I]t may be that the character of a law purportedly based upon s 51(xxvi) will be denied to a law enacted in ‘manifest abuse’ of that power of judgment”. They held that there was no manifest abuse here; Parliament could disallow a declaration made by the Minister under the Heritage Protection Act, and the Bridge Act had merely accelerated matters. Kirby J, in dissent, held that there were grounds for construing even the section as originally drafted as now authorising only laws for the benefit of a race, and that the stated purpose of the 1967 amendments had been “to remove two provisions in the 335

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Constitution which, it had ultimately been concluded, discriminated against Australian Aboriginals”. He therefore held at [157] that: To construe the resulting power in par (xxvi) as authorising the making of laws detrimental to, and discriminatory against, people on the ground of race, and specifically Aboriginal race, would be a complete denial of the clear and unanimous object of the Parliament in proposing the amendment to par (xxvi).

As to the argument that whatever the Parliament could enact it could repeal, his Honour held at [175]: “[T]here is undoubtedly some force in this argument. But in my view, the maxim cannot be sustained in the face of a constitutional provision that does not permit laws made to the detriment of, or which discriminate against, a people by reference to their race”. This would have the consequence that a class of irrepealable laws would develop, and presumably the class would grow indefinitely. With respect to Kirby J, one can understand why the other Justices did not agree. While agreeing with the majority’s conclusion on the repeal ground, Gaudron J took a different approach to the extent of the power. She emphasised at [39] that the criterion for the exercise of the power is that the law be deemed necessary, and that in the first instance it is for the Parliament to make that decision. However, her Honour qualified that as follows: To form a view as to that necessity, however, there must be some difference pertaining to the people of the race involved or their circumstances or, at least, some material upon which the Parliament might reasonably form a political judgment that there is a difference of that kind. Were it otherwise, the words “for whom it is deemed necessary to make special laws” would have no operation and s 51(xxvi) would simply be a power to make laws for the people of any race.

By analogy with “the jurisprudence that has developed with respect to antidiscrimination law”, her Honour held that it followed that: (i) the power “does not authorise special laws affecting rights and obligations in areas in which there is no relevant difference between the people of the race to whom the law is directed and the people of other races” (for example, the rights associated with citizenship) and (ii) where there was a difference pertaining to the people of a race, “the law must be reasonably capable of being viewed as appropriate and adapted to the difference asserted”.

As to that latter point, she concluded at [44]: Although the power conferred by s 51(xxvi) is, in terms, wide enough to authorise laws which operate either to the advantage or disadvantage of the people of a particular race, it is difficult to conceive of circumstances in which a law presently operating to the ­disadvantage of a racial minority would be valid. It is even more difficult to conceive of a present circumstance pertaining to Aboriginal Australians which could support a law

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operating to their disadvantage. To put the matter another way, prima facie, at least, the circumstances which presently pertain to Aboriginal Australians are circumstances of serious disadvantage, which disadvantages include their material circumstances and the vulnerability of their culture. And prima facie, at least, only laws directed to remedying their disadvantage could reasonably be viewed as appropriate and adapted to their different circumstances.

We will see in Chapters 23, 30 and 31 that, when it interprets sections of the Constitution that prohibit discrimination on various grounds, the Court has adopted an approach based on “the jurisprudence that has developed with respect to antidiscrimination law” — what Amelia Simpson calls the “the Court’s universal conception of discrimination”.10 To apply it to a section that appears to permit discriminatory laws when they are “considered necessary” seems, with respect, a logical extension. Though, taking it at face value, Kartinyeri seems to be a decision with no discernible ratio decidendi (except that in exactly similar circumstances a similar outcome should follow),11 the approach suggested by Gaudron J is consistent with the High Court’s approach to other provisions in the Constitution, and has much to commend it. It may be anticipated that the approach taken by Gaudron J will attract support from other Justices in future.12A somewhat confused debate about the need to amend para 51(xxvi) is currently occurring.13 Though the words of the section may well need amendment, as they are offensive to modern notions of equality, if the Court adopts Gaudron J’s approach to its interpretation the sting will have been taken out of it anyway.

FURTHER READING Thomas Faunce, “Constitutional Limits on Federal Legislation Practically Compelling Medical Employment: Wong v Commonwealth; Selim v Professional Services Review Committee” (2009) 17 Jnl of Law & Medicine 196 Charlotte Frew, “The Social Construction of Marriage in Australia Implications for Same-Sex Unions” (2011) 28 Law in Context 78 10 Amelia Simpson, “The High Court’s Conception of Discrimination: Origins, Applications, and Implications” (2007) 29 Sydney Law Review 263. 11 For a discussion of “cases without a ratio” see Alastair MacAdam and John Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia, Butterworths, 1998, [10.23]–[10.40], especially the conclusion in the last-cited paragraph. 12 In two other areas noted in this book, a joint majority judgment has endorsed an earlier dictum of Gaudron J, writing alone. See the Pacific Coal dictum discussed at 18.90 to 18.100 and the Nicholas dictum at 26.120. Adoption of her approach to para 51(xxvi) would give her a well-deserved hat trick. 13 See the Report of the Expert Panel on Constitutional Recognition of Indigenous Australians at http:// www.recognise.org.au/about/expert-panel-report/ and the Final Report of the Parliament’s Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples at http:// www.aph.gov.au/~/media/Committees/Senate/committee/jscatsi_ctte/final_report/report.pdf.

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Justin Malbon, “Avoiding the Hindmarsh Island Bridge Disaster: Interpreting the Race Power” (2002) 6 Flinders Journal of Law Reform 41 Melissa Perry, “Expanding Horizons: International Law and Native Title” (1998) AMPLA Yearbook 498 John Seymour, “The Role of the Family Court of Australia in Child Welfare Matters” (1992–1993) 21 Fed L Rev 1 Adiva Sifris and Paula Gerber, “Same-sex Marriage in Australia: a Battleground for Equality” (2011) 25 AJ Fam L 96 Lisa Strelein, “The ‘Courts of the Conqueror’: the Judicial System and the Assertion of Indigenous Peoples’ Rights” (2000) 5 Australian Indigenous Law Reporter 1 Christopher Tran, “Wong v Commonwealth: Missed Opportunities, Contemporary Meaning and the People” (2011) 13 Con Law & Policy Rev 76 Karen Wheelwright. “Commonwealth and State Powers in Health — A Constitutional Diagnosis” (1995) 21 MonULR 53

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CHAPTER 21

The Commonwealth’s Financial Powers — Tax, Grants to the States, and Spending Money 21.1 Context and overview [21.10] In order to function at all, a government needs revenue, so the Commonwealth has power to impose taxation (para 51(ii)) and, subject to appropriation by Parliament (s 83), to spend the money received. The States can also raise money by imposing taxes, but they are limited by s 90, which cut off their income from customs duties at federation. The Commonwealth can make conditional grants to the States under s 96, and one of the conditions has been that the States do not impose certain taxes. The Commonwealth can also spend money. Until recently, it had thought its power to spend was unlimited, but the High Court has indicated that there are restrictions. Although this Chapter is about the extent of the Commonwealth’s power to: n n n

raise taxes; make grants to the States; and spend;

it is also about the way in which the use of those powers has eroded the fiscal autonomy of the States.

21.2 General introduction to sections of the Constitution dealing with taxation [21.20] The Commonwealth and State parliaments all have the power to enact laws imposing taxation. The Commonwealth has the power under para 51(ii), and the States (as we will see in Chapter 27) have it as part of their general power to make laws for 339

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the peace, welfare (or order), and good government of the State. There are also several constitutional prohibitions that apply to laws imposing taxation: n n n n

Commonwealth laws imposing taxation must not discriminate between States or parts of States (para 51(ii) and s 99); Commonwealth taxes must be imposed by a separate law that has no other matters “tacked” onto it (s 55); as to the relationship between the Commonwealth and States: – the Commonwealth and States cannot impose taxes on each others’ property (s 114); – they may have an implied immunity from non-property taxes imposed by the other level of government under certain conditions; and – the Commonwealth can give an express immunity from State taxes to its own Departments or instrumentalities if it chooses to; and the States must not impose customs or excise duties, which are a form of taxation, and indeed were the main form of taxation that produced revenue for the colonies before federation (s 90). Therefore constitutional issues may arise as follows:

n

n

n

n

a Commonwealth law imposing some charge may be challenged on the ground that the charge is a tax (whether or not the government and Parliament were aware of that at the time of enacting the law!), and that the law breaches ss 55 and/or 99; s 55 will be discussed below and s 99 in Chapter 23; in a case in which a breach of ss 55 or 99 is alleged, the Commonwealth may defend the law on the basis that it is not a law with respect to taxation but is a law with respect to some other topic over which the Commonwealth has power. Examples occur in the cases below; a law of one level of government taxing the other level may be challenged under s 114 or the doctrine of implied immunities, both to be discussed in Chapter 33, or a State tax law may be inconsistent with a Commonwealth immunity law (Chapter 32); and a State law may be challenged on the ground that it is imposing a customs or excise duty. In this case there can be two steps in the defence; the first is to argue that the charge is not a tax at all (in which case it cannot be a prohibited duty), and the second is to argue that if it is a tax, it is not one of the prohibited kinds. This will be discussed in Chapter 29.

21.3 The Commonwealth’s taxation power [21.30] Under para 51(ii), the Parliament has a power to make laws with respect to “taxation” (but not so as to discriminate between States or parts of them, as discussed in section 23.2). Essentially a tax is a compulsory “exaction” that has the apparent purpose of raising revenue to be paid into the Consolidated Revenue Fund, out of which it can be appropriated for any of the purposes for which the Commonwealth can spend money 340

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Is it imposed to collect general revenue, out of which the Parliament can appropriate money for the general purposes of the government?*

OR

YES

state

state

Cth

At least some parts will be invalid under s 55

NO

Did the law imposing the tax deal only with the imposition of tax AND does the YES consolidated act imposing it deal only with the imposition of tax?

Cth

Is it a Commonwealth or state law?

It IS a tax

Is it a Commonwealth or state law?

It is NOT a tax

Figure 21.1 Issues arising if a law might impose a tax

Note: *Borderline cases are illustrated by the Tape Manufacturers’ case

Given a law creating an obligation to pay a fee/charge/ levy (a ‘compulsory exaction’)

Is it a fine or penalty or a genuine fee for a YES privilege, licence, or service?*

Does it discriminate between states or parts of states in a way that is not appropriate and adapted to the attainment of a proper objective?

Is it a customs or exercise duty? (see Figure 29.1)

It is valid under state’s general power to make laws

Then it needs another head of power

NO

YES

NO

YES

Does it tax state property or impair the integrity of the state?

Invalid under para 51(ii) or s 99

NO

YES

YES Does it tax Commonwealth property or conflict with a Commonwealth immunity? NO

Invalid

Valid

Invalid

Valid

Invalid

Chapter 21 The Commonwealth’s Financial Powers — Tax, Grants to the States, and Spending Money

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(see Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333, and other cases discussed below in 21.80). Since federation the Parliament has imposed customs and excise duties, land tax from 1910–1952, payroll tax from 1941–1971, death duties from 1914–1979 (supplemented by gift duties from 1941), income tax since 1915, an entertainment tax (on tickets to performances) from 1916–1953, the Capital Gains Tax and Fringe Benefits Tax from 1986, the Resources Rent Tax on offshore oil and gas from 1987, the former wholesale sales tax from 1930, and the current Goods and Services Tax (the GST) from 2000. In 2011–2012 it also imposed a carbon emissions tax and a mining super-profits (or resource rent) tax, but they were repealed after the change of government in 2013. All of the above taxes have so clearly been within the scope of the taxation power that there has been no dispute about their nature as taxes. It is when the Parliament enacts other laws imposing fees for more specific purposes without considering whether they might be taxes that the issues discussed in 21.80 arise.

Characterisation revisited [21.40] We saw in 17.30 that a law is a law with respect to taxation even if the Commonwealth is using the tax as an incentive or disincentive to persuade people to change their behaviour. An early example of this use of taxes was the Bank Notes Tax Act 1910 (Cth), which imposed taxes at a prohibitive rate on the issue of private bank notes in order to discourage their issue; it does not seem to have been challenged. Then, as noted in 17.30, the High Court held that the fact that tax rates were used to encourage investment in government bonds did not stop the law from being one with respect to taxation: Fairfax v Federal Commissioner of Taxation [1965] HCA 64; (1965) 114 CLR 1. However, the renown of this case has not stopped plaintiffs from rearguing the point. When the Fringe Benefits Tax was challenged in State Chamber of Commerce & Industry v Commonwealth [1987] HCA 38; (1987) 163 CLR 329 (the FBT case), one of the grounds of challenge was that its purpose was to discourage employers from paying so much to employees by way of previously-untaxable “fringe benefits” and more by way of taxable salary. The challenge failed. Similarly, the Training Guarantee Levy was imposed (in 1990) only upon businesses that did not spend a certain percentage of their payroll on training their staff, and although one might suppose that the government’s first preference was that businesses would do the training and thus not pay the levy, it was still a valid tax: Northern Suburbs General Cemetery Reserve Trust v Commonwealth [1993] HCA 12; (1993) 176 CLR 555 (the Training Levy case). The short-lived carbon tax was similar — it was using the tax power to try to encourage industry to reduce its emissions, but it was only challenged for a supposed breach of s 99 (see Chapter 23) and its general nature as a valid tax seems clear.

Need for objective criteria and contestability [21.50] As we saw in 11.30, the executive cannot impose a tax on citizens without authorisation of an act of Parliament. The Act has to be reasonably specific; a law that 342

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said “collect any tax you feel like” would be evading the spirit of the Bill of Rights 1688. However, a certain amount of discretion can be vested in the Commissioner of Taxation. Giris Pty Ltd v Federal Commissioner of Taxation [1969] HCA 5; (1969) 119 CLR 365 involved a challenge to a section that imposed tax on the undistributed income of a trust, but gave the Commissioner a discretion not to apply the section if it would be unreasonable to apply it. Giris argued that the section created an unchallengeable tax, but the Court held that the taxpayer would be able to demand information on “the factual basis upon which the Commissioner has formed his opinion”, and a Court would be able to “determine whether or not the opinion was formed arbitrarily or fancifully, or upon facts or considerations which could not be regarded as relevant” (per Barwick CJ at 374). After a rash of schemes that promoted company tax evasion by stripping companies of their assets and “losing” the financial records after a profitable year or two (known as “bottom of the harbour” schemes), Parliament passed a set of Taxation (Unpaid Company Tax) Acts in 1982 to recoup the unpaid tax from the participants in, and promoters of, the schemes.1 The plaintiffs in MacCormick v Federal Commissioner of Taxation [1984] HCA 20; (1984) 158 CLR 622 argued that the tax was an “arbitrary exaction” or an “incontestable impost”. The Court agreed that an incontestable impost would be invalid, but held that here there were clear criteria for the liability and the assessment was “open to the ordinary processes of review and appeal”. A different section was challenged in Deputy Federal Commissioner of Taxation v Truhold Benefit Pty Ltd [1985] HCA 36; (1985) 158 CLR 678, and was dismissed on similar grounds. Even if the taxation acts did not provide for review and appeal — as they did, and still do — judicial review would necessarily be available under para 75(v) of the Constitution; see 11.120. On the basis of dicta in MacCormick and Truhold, the plaintiff in the FBT case, above, argued that there was yet another requirement for a valid tax — that there has to be a “real connection between the subject and the object” of a tax; ie, between the transaction being taxed and the persons made liable to pay. In the earlier two cases the Court had in fact doubted that there was such a criterion. In the FBT case Mason CJ and Wilson, Dawson, Toohey and Gaudron JJ repeated this doubt: It is certainly difficult to see why such a connection is essential to an exercise of the taxation power. And it is impossible to conclude that the proposition is correct when it is applied to provisions, such as those which impose tax on benefits provided by and to associates, whose validity is sustained on the footing that they are integral as anti-avoidance measures to make the tax effective. In any event, the required connection is to be found in the present legislation in the provision of a benefit to a person in respect of his employment.

Can the Commonwealth make laws controlling State taxation? [21.60] Since a large fraction of the colonies’ revenue had come from customs duties, they started their new lives as States with a good part of their revenue choked off, and 1 For an article showing how tax law, administrative law and constitutional law all interact in this area, see Justice GT Pagone, “Taxation by Discretion” (2011) 22 PLR 298.

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had to experiment with the imposition of new kinds of taxes. At the same time the Commonwealth realised that customs duties alone did not provide enough income, and imposed further taxes — see the list, with dates of introduction of the taxes, in 21.30 above. For quite some time the Commonwealth and some or all of the States imposed concurrent income taxes, land taxes and death duties. The Commonwealth has sometimes shown sympathy with the States’ need for revenue; from 1937–1942 the Commonwealth and States cooperated in allowing taxpayers to file a unified income tax return, and the Commonwealth later abandoned both the fields of land tax and payroll tax in favour of the States. However, if you read para 51(ii) literally, the Commonwealth’s power to make “laws with respect to taxation” could empower it to make laws forbidding the States from imposing certain taxes or placing ceilings on their rates. The High Court has been divided about whether the paragraph extends that far. In 1942 the Commonwealth, pleading the need to control the wartime economy, passed a set of four Acts that effectively shut the States out of income taxation, by: (i) imposing such high rates of tax on high incomes that people would be unlikely to be able to pay both; (ii) providing that the liability to pay the Commonwealth tax took priority over the liability to the States; (iii) making grants to the States under s 96 conditional on the States not levying their own taxes; and (iv) seizing the assets of the State income tax offices. The validity of step (iv), but only because it was in wartime, was noted in Chapter 19, and the validity of step (iii) and its effectiveness in shutting the States out of income tax, is discussed at 21.160 below. The relevant point here is that step (ii), the declaration of priority, was held valid in the First Uniform Tax case (South Australia v Commonwealth [1942] HCA 14; (1942) 65 CLR 373) under the taxation power; Starke J noted at 441 that “the taxing power gives the Commonwealth authority to make its taxation effective, and to secure to it the full benefit thereof ”. In the Second Uniform Tax case, Victoria v Commonwealth [1957] HCA 54; (1957) 99 CLR 575 however, the priority provision was declared invalid by 4:3, except in the case where the taxpayer was bankrupt. Dixon J, who had been absent from the bench in the first case, reasoned: [T]he power to make laws with respect to taxation has never been, and, consistently with the federal character of the Constitution could not be, construed as a power over the whole subject of taxation throughout Australia, whatever parliament or other authority imposed taxation. “The taxation referred to is federal taxation for federal purposes” per Griffith CJ in Municipal Council of Sydney v The Commonwealth [1904] HCA 50; (1904) 1 CLR 208, at p 232 … To support s 221(1)(a) it must be said to be incidental to the federal power of taxation to forbid the subjects of a State to pay the tax imposed by the State until that imposed upon them by the Commonwealth is paid and, moreover, to do that as a measure assisting to exclude the States from the same field of taxation. This appears to me to go beyond any true conception of what is incidental to a legislative power and, under colour of recourse to the incidents of a power expressly granted, to attempt to advance or extend the substantive power actually granted to the Commonwealth until it reaches into the exercise of the constitutional powers of the States.

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Since the validity of the rest of the legislation was confirmed (and indeed a priority provision specifically relating to a bankrupt taxpayer was held valid under the bankruptcy power (para 51(xvii))), his Honour remarked: “Whether such a declaration is of practical importance in relation to the system of uniform taxation is a matter about which I … remain sceptical”. However, the case seemed to make the significant point of principle that, although the Commonwealth can use all sorts of stratagems to force the States to abandon a field of taxation, it cannot use para 51(ii) to do so directly. However, it only made the point by a bare majority, and contradicted the 1942 decision. In Hematite Petroleum Pty Ltd v Victoria [1983] HCA 23; (1983) 151 CLR 599 Murphy J opined that “the Australian Parliament may allow [a] State tax to operate, or may legislate to exclude it by operation of s 109 of the Constitution” and Mason J suggested that that was “possible”. Such an interpretation would have an extraordinary effect on the federal system, but it still seems a possible approach to the words of the paragraph.

21.4 Technicalities — the drafting of, and procedures for passing, Commonwealth tax laws [21.70] As noted at 16.40, the Constitution provides in s 53 that appropriation or taxation Bills shall not originate in the Senate, and that the Senate may not amend certain appropriation Bills or any taxation Bills. As explained there, the drafters foresaw the possibility that the government might try to “tack” non-tax matters onto a tax Bill to exploit the Senate’s inability to amend it, and so they also included s 55, the first paragraph of which provides: Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect.

There is a contradiction between the heading (originally a marginal note) which refers to a “Bill”, and the section itself, which refers to “laws”. The High Court has held, in contrast to ss 53 and 54 (which refer to “proposed laws”, and are therefore “enforceable” only by the Presiding Officers of Parliament), that this section applies to Acts once they have become law, and breaches of it are justiciable. The cases explore a number of issues.

Taxation defined — does a law impose a tax or some other kind of charge? [21.80] The Parliament is usually careful to observe the section when the drafters and members are conscious that they are drafting and debating an Act imposing taxation. However, plaintiffs sometimes allege that a law imposed for the collection of some charge, fee, levy, impost or exaction is a tax, and catch the drafters by surprise. Therefore it is cases on s 55 that have done most to flesh out the definition of a tax. An early definition (perhaps a first-order approximation to a definition) had been offered by Latham CJ in 345

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an excise duties case, Matthews v Chicory Marketing Board (Vic) [1938] HCA 38; (1938) 60 CLR 263. Adopting a definition from a Privy Council case,2 he held that a levy was a tax because “[i]t is a compulsory exaction of money by a public authority for public purposes, enforceable by law, and is not a payment for services rendered”. However, that has been modified in the cases below. In 1987, Parliament, in an attempt to impose a “user pays” principle, imposed a “fee for immigration clearance” on persons arriving in Australia by air. It did this by inserting a new s 38A in the Migration Act 1958 (Cth). This imposed an obligation on the airlines to collect the fee, and (naturally) one of them challenged it. In Air Caledonie International v Commonwealth [1988] HCA 61; (1988) 165 CLR 462 the Court, in a joint unanimous judgment, considered the definition of a tax at [6]: There are three comments which should be made in relation to the above general statement of Latham CJ. The first is that it should not be seen as providing an exhaustive definition of a tax. Thus, there is no reason in principle why a tax should not take a form other than the exaction of money or why the compulsory exaction of money under statutory powers could not be properly seen as taxation notwithstanding that it was by a non-public authority or for purposes which could not properly be described as public. … The third is that the negative attribute — “not a payment for services rendered” — should be seen as intended to be but an example of various special types of exaction which may not be taxes even though the positive attributes mentioned by Latham CJ are all present. Thus, a charge for the acquisition or use of property, a fee for a privilege and a fine or penalty imposed for criminal conduct or breach of statutory are other examples of special types of exactions of money which are unlikely to be properly characterized as a tax notwithstanding that they exhibit those positive attributes. On the other hand, a compulsory and enforceable exaction of money by a public authority for public purposes will not necessarily be precluded from being properly seen as a tax merely because it is described as a “fee for services”. If the person required to pay the exaction is given no choice about whether or not he acquires the services and the amount of the exaction has no discernible relationship with the value of what is acquired, the circumstances may be such that the exaction is, at least to the extent that it exceeds that value, properly to be seen as a tax.

As we saw in 19.160, the Commonwealth has no head of power under which it can prevent Australians from coming home to Australia, so immigration officers are providing us with no “service” at all when we re-enter the country. Their Honours held that, with respect to Australians returning home, the “fee” was a tax. For the consequences of this see 21.100 below. The requirement that there be a “discernible relationship with the value of what is acquired” was explained and possibly relaxed in Airservices Australia v Canadian Airlines [1999] HCA 62; (1999) 202 CLR 133. Here there was a challenge to the fees imposed upon airlines for the services provided by the Civil Aviation Authority (the principal 2 Lower Mainland Dairy Products Sales Adjustment Committee v Crystal Dairy Limited (British Columbia) [1932] UKPC 70; [1933] AC 168.

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arm of which had transmuted into Airservices by the time of the litigation). One of the plaintiff ’s arguments was that the CAA’s fees went beyond a fee for service because they included “an element designed to include a profit margin, or return on capital”. The s 55 issue was not pressed strongly in argument, and was therefore not considered by all Justices (we will meet the main issue in Chapter 22), but Gleeson CJ and Kirby J said: “The CAA was intended to operate on a commercial basis. … [I]n the context of considering whether an imposition is a tax, or a fee for services, there is no reason why a fee for services should be limited to a fee which merely seeks to recover expenses or outgoings”. The “receipt by a public authority for a public purpose” part of the definition has continued to attract attention. In Australian Tape Manufacturers Association Ltd v Commonwealth [1993] HCA 10; (1993) 176 CLR 480, the manufacturers were challenging the “royalty” imposed on the sale of blank recording tapes by amendment to the Copyright Act 1968 (Cth) in 1989. Since the point of the “royalty” was that it was to be distributed to societies representing copyright holders, as compensation for the fact that many such tapes were inevitably going to be used for “pirate” recording, the Commonwealth argued that the law was just another law about copyright, and did not impose a tax. The majority (Mason CJ and Brennan, Deane and Gaudron JJ) held that the “royalty” was a tax, explaining that “the purpose of directing the payment of the levy to the collecting society for ultimate distribution of the net proceeds to the relevant copyright owners as a solution to a complex problem of public importance is of necessity a public purpose”. Dawson, Toohey and McHugh JJ dissented. Despite the dictum in Air Caledonie, cited above, their Honours wanted to re-emphasise the need for a tax to be imposed “by a public authority for a public purpose”. As Dawson and Toohey JJ said: Those characteristics of a tax which require it to be levied by a public authority for public purposes are important in that they reflect the general conception of a tax as a means of raising revenue for government (even if the aim of the tax is also to encourage or discourage behaviour of a particular kind). In consequence, the fact that an exaction is to be paid into a consolidated revenue fund is sufficient indication that the exaction is for a public purpose, hence a tax (citations omitted). By inference, the strongest indication that an exaction does not constitute a tax is that the moneys raised do not form part of such a fund.

In Luton v Lessels, above 21.30, the plaintiff was challenging the child support scheme, under which unpaid child support was collected as a debt owed to the Commonwealth, paid into the Consolidated Revenue Fund, and then disbursed to the children’s carers. This time the Court unanimously held that it was not a tax, and all Justices emphasised that though the money went into Consolidated Revenue it was not collected for the general enhancement of the Fund so that the Commonwealth could spend money on its general objects. Since the Act was not imposing a tax, the question of whether it also included sections “dealing with any other matter” did not arise. As Gleeson CJ put it at [16]: “The legislation does not have either the purpose or the effect of raising revenue for the Commonwealth. Its purpose is to create, and facilitate 347

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the enforcement of, private rights and liabilities”. He distinguished the Tape Manufacturers case at [13] by saying: The impost in the Australian Tape Manufacturers Association case involved raising revenue from one group for the purpose of its application for the benefit of another group. The majority held that revenue was raised for a public purpose of compensating the second group. The group who were to be compensated had no prior legal right against the group from whom the revenue was to be raised. That is a point of distinction from the [child support legislation].

Gaudron J, the only member of the majority from the Tape Manufacturers case still on the bench, observed at [58] that “every tax that is raised must be paid into the Consolidated Revenue Fund. But the converse is not universally true. Not every sum that statute requires to be paid to the Commonwealth, and which is paid into the Consolidated Revenue Fund, is a tax”, and agreed that the fact that the moneys collected were a debt already owed to the Commonwealth was significant here. McHugh J, at [80], stuck to the view that Tape Manufacturers had been wrongly decided, and agreed that whether or not that was so, “it does not follow that a compulsory exaction for a public purpose is a tax simply because it forms part of the Consolidated Revenue Fund”. Every case must depend on its facts, but it seems that we are back to something not far from Latham CJ’s definition; perhaps “compulsory exaction for the purpose of raising revenue to increase the Consolidated Revenue Fund so that it can be appropriated for the purposes of the Commonwealth” is as close as a short definition can get.

Effect of a breach of the section [21.90] Note that the section provides that it is the parts of the law that “deal with any other matter” that are rendered invalid, and, at least prima facie, the parts imposing taxation and “dealing with” its imposition remain valid. In a number of cases the complainant has tried to argue that the remnant that would be left after this automatic severance would make no sense by itself, and therefore the whole Act should be declared invalid, but this tactic has not succeeded so far.

Including a taxing provision in a non-tax law by an amending Act [21.100] Both Air Caledonie and Tape Manufacturers were cases where a small new part, that was held to impose a tax, was inserted by an amending Act into an existing Act that dealt with a completely different matter. One might think that if the point of s 55 is to preserve the Senate’s power to amend anything except tax and appropriation laws, there is nothing wrong with that; as long as the amending Act deals only with the imposition of tax, the House of Representatives is not improperly exploiting the Senate’s inability to amend the law. And since nobody in Parliament had realised that the law might be imposing a tax, the Senate would not have felt inhibited by s 55 anyway. In Air Caledonie the Court conceded that there was “something to be said for [the above] view”, but then, 348

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because the section refers to “a law imposing taxation” rather than “a proposed law”, it held that “s 55 should be construed as extending to laws in the form in which they stand from time to time after enactment, that is to say, as extending to Acts of the Parliament on the statute book”. Left at that, the decision would have meant that the whole of the rest of the Migration Act became invalid, leaving only the arrivals fee. However, their Honours then reasoned that if an amending Act seeks to turn a valid Act into an invalid Act, it must be the amending Act that is invalid. They therefore declared the amending Act, and the arrivals fee, invalid. In Tape Manufacturers the majority took the same approach.

Structure of Taxation Acts — does a law “dealing with the imposition of taxation” have a special meaning, or is it just a law with respect to taxation? [21.110] In English practice before 1911 it seems that the House of Lords more or less conceded that they should not amend an Act to the extent that it was imposing tax, but insisted on their right to amend “machinery” provisions — those about the powers of the Board of Inland Revenue, taxpayers’ duty to file returns and so on. This practice was followed in Australia; hence the practice for any tax “X”, of having one short “X” Taxation Act and a much longer “X” Taxation Assessment Act. For many years it was thought that s 55 required this; that a law “imposing taxation” could contain only the sections saying that persons were liable to pay a certain tax at certain rates, and that, although all the machinery provisions were “laws with respect to taxation”, they were not “laws dealing with the imposition of taxation”. This distinction tempted people to bring challenges on the most technical of grounds. For example, in Re Dymond [1959] HCA 22; (1959) 101 CLR 11, Dymond argued that some Sales Tax Assessment Acts were invalid because they contained penalty provisions along with the machinery provisions, and a penalty, he argued, was a tax. The Court unanimously held that a penalty is not itself a tax although it is a law with respect to tax, and that the penalty provisions were therefore validly placed in the Assessment Act. Dixon, Fullagar, Kitto and Windeyer JJ observed, obiter, that there was indeed a distinction between a law dealing with the imposition of taxation and laws more generally with respect to taxation, so that if the penalty had been a tax the Assessment Acts would have been invalid. McTiernan, Menzies and Taylor JJ dissented. Menzies J observed that the parliamentary practice of having separate “tax” and “assessment” Acts “goes further than the Constitution does”. The need for this artificiality was swept away in Permanent Trustee Australia Ltd v Commissioner of State Revenue (Vic) [2004] HCA 53; (2004) 220 CLR 388. As will be noted in Chapter 28, the exclusivity of Commonwealth power over Commonwealth places had meant for a long time that State taxes could not be collected in respect of a Commonwealth place. In 1998 the Parliament enacted the Commonwealth Places (Mirror Taxes) Act 1998 (Cth) under its exclusive power over Commonwealth places, providing that State taxing laws were taken to apply, by force of the Commonwealth law, in Commonwealth places. One of the grounds on which the trustee company challenged it was that it combined laws dealing with the imposition of taxation, in the narrow 349

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Re Dymond sense, with laws not so dealing. Gleeson CJ and Gummow, Hayne, Callinan and Heydon JJ considered the Convention Debates about s 55 and the subsequent case law, and concluded that “‘[t]acking’ is quite a different matter to the insertion in a taxing statute of provisions for the assessment, collection and recovery of that tax”, and that “a law dealing with the imposition of taxation” is no narrower than “a law with respect to taxation”. The consequence is that in enacting future tax laws the Parliament could fuse the “tax” and “assessment” Acts into the one Act, but so far the drafters have not done so. They would still, of course, have to be careful not to “tack on” any provision that has nothing to do with the tax into a taxing Act.

Different subjects of taxation [21.120] The second paragraph of s 55 provides: Laws imposing taxation, except laws imposing duties of customs or of excise, shall deal with one subject of taxation only; but laws imposing duties of customs shall deal with duties of customs only, and laws imposing duties of excise shall deal with duties of excise only.

The requirement in the first clause, that an Act deal “with one subject of taxation” has been litigated many times. A series of unsuccessful challenges has been brought alleging that matters that were not strictly income have been treated as income in the Income Tax Acts; eg, deemed income from one’s place of residence (Harding v Federal Commissioner of Taxation [1917] HCA 13; (1917) 23 CLR 119), capital gains (Resch v Federal Commissioner of Taxation [1942] HCA 2; (1942) 66 CLR 198), and the fringe benefits tax (State Chamber of Commerce & Industry v Commonwealth [1987] HCA 38; (1987) 163 CLR 3290). The authoritative dictum that has been cited in every subsequent case is that of Dixon J in Resch at 223: The expression “subject of taxation” appears to suppose that some recognized classification of taxes exists according to subject matter. … [s 55] is concerned with political relations, and must be taken as contemplating broad distinctions between possible subjects of taxation based on common understanding and general conceptions, rather than on any analytical or logical classification. … What is the subject of the tax may be gathered from a general consideration of the enactment or enactments in question, remembering, however, that it is for the legislature to choose its own subject and that its choice is fettered neither by existing nomenclature nor by categories that have been adopted for other purposes.

As noted above, the Commonwealth Places (Mirror Taxes) Act 1998 (Cth) challenged in Permanent Trustee imposed the whole range of the State taxes that applied in any State to the Commonwealth places in that State. The majority judgment cited Dixon J in Resch and said: It is unnecessary to repeat here what is there said. The Parliament clearly understood that the application of State taxation laws to Commonwealth places was a single legislative initiative and the legislation had as its primary purpose the protection of State revenues

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following what would otherwise be the consequences of the decision in Allders. Looking at the subject-matter dealt with by the statute, it may fairly be regarded within the sense of the authorities as a unit rather than as a collection of distinct and separate matters.

The second clause of the second paragraph of s 55 (ie, the part after the semicolon) is the reason for what looks like a very curious practice. When the Commonwealth introduces a broad-ranging tax like the GST which could apply to manufactures, importers and resellers, the Parliament enacts a scheme of Acts that include a trio of short ones each of which has a section providing “[t]his section imposes GST only so far as that tax is a duty of customs” or “duty of excise”, or “neither a duty of customs not a duty of excise”.3 The one successful challenge to a law under this paragraph, in Mutual Pools & Staff Pty Ltd v Federal Commissioner of Taxation [1992] HCA 4; (1992) 173 CLR 450, was technically brought under the second clause, because it involved sales taxes and in the s 90 cases to be discussed in Chapter 29 it has been held (not without persuasive dissents) that a sales tax is an excise duty. The Parliament had attempted to fill a gap in the sales tax laws by adding provisions that imposed the same tax on swimming pools constructed in-ground as already applied to pool shells bought and then placed on or in the ground. The drafters and members had overlooked the doctrine of fixtures — that anything affixed to the land is annexed to the land as a matter of property law, and indeed Dawson, Toohey and Gaudron JJ held that a pool built by pouring concrete into an excavation was no mere “fixture” but became a part of the land. Six Justices therefore held that the tax on the pools constructed on-site was a tax on land and not an excise, as the rest of the Act was, and therefore the amendment breached s 55. Although the second paragraph does not spell out the consequence where a law which imposes duties of excise deals with something other than duties of excise, their Honours held at 471 that: “When a law imposing excise duties also deals with something other than excise duties, it may be possible to say that it is that other subject which offends against the Constitution”. Therefore the Sales Tax Acts remained valid, but the amendment was ineffective. Deane J dissented. He noted that a legalistic construction of s 55 “would achieve nothing but pointless inconvenience for the Parliament and, from the point of view of the citizen, an undesirable proliferation of legislation”. He concluded that “the extension of the Taxing Act … to produce conformity in the taxation of the manufacture of the shells of concrete swimming pools is, in my view, relevant or incidental to the operation of the Taxing Act as a law dealing only with duties of excise” and was therefore valid.

Practical effect of a breach of s 55 [21.130] None of the above cases involve the Parliament doing anything it had no power to do; it can impose taxes on anything, even on Australians returning to their homeland. 3 See A New Tax System (Goods and Services Tax Imposition — Customs) Act 1999 (Cth), and the corresponding ‘Excise’ and ‘General’ Acts, s 3 in each case.

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Section 55 is simply about the formalities of drafting. Therefore, in each case where a challenge succeeded the Parliament could have re-enacted the law in the proper form, but it would have had to enact separate acts avowedly imposing taxes rather than fees or royalties, and in the case of the in-ground pools the tax would have had to be kept quite separate from sales taxes. It could even reimpose the taxes, as taxes, retrospectively; see section 12.3 above. In each of these cases the executive and Parliament did not in fact do so, perhaps because people would represent the government as trying to re-impose an “invalid” tax, even though the cause of the original invalidity was merely a procedural breach.

21.5 Link between taxation and spending — the Consolidated Revenue Fund [21.140] Section 81 of the Constitution provides: All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution.

This is based on an English reform of 1787, under which a number of separate government funds were consolidated into the one, because, as the preamble to the Act creating the Fund said: “The present Mode of charging and computing the several Duties of Customs and Excise … is in many Instances intricate and complicated, and productive of … great Perplexity in the Accounts of the Publick Revenue.” The reference to “one … Fund” makes it seem as if it is one huge bank account — as indeed the Consolidated Fund is in Britain — but in Australia, as the Court explained in Northern Suburbs General Cemetery Reserve Trust v Commonwealth [1993] HCA 12; (1993) 176 CLR 555 (the Training Levy case), the government maintains a number of separate accounts known collectively as the Commonwealth Public Account. In the Act under challenge, s 32 established a Training Guarantee Fund and s 33 simply said: “There are to be paid into the Fund: (a) amounts paid to the Commonwealth under this Act [and other amounts]”. The Cemetery Trust argued that this was contrary to s 81, but Mason CJ and Deane, Toohey and Gaudron JJ held that “that the language of s 33(a) in fact was intended to effect an appropriation from the Consolidated Revenue Fund to the Trust Fund”. In case that seemed a bit artificial, their Honours explained that “it is not lightly to be presumed that the Parliament intended a contravention of s 81”. Brennan, McHugh and Dawson JJ each explained the matter in their own words but to similar effect. In other words, the “Fund” appears to be an abstraction constituted by the many and various accounts and funds into which revenues are paid; if it seems that a statute provides for revenue to be paid into a separate fund it is notionally paid into Consolidated 352

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Revenue and then appropriated out of it into the separate fund. As long as the system is not so “intricate, complex, and productive of … Perplexity” that the Auditor-General can no longer keep track of it all, no harm is done, except of course to the expectations of people who read s 81 and assume that it means what it appears to say. The important part, as explained in 11.40–11.50, is that once money is in Consolidated Revenue, or “the Treasury of the Commonwealth” as it is called in s 83, it cannot be spent without an appropriation by Parliament.

21.6 Grants to the States [21.150] The drafters of the Constitution had assumed that the Commonwealth would have so much revenue from the takeover of the States’ customs and excise duties, and such limited expenditure on running a relatively small government, that it would have a significant surplus. They therefore included complex provisions in ss 89 and 93 for the transfer of customs and excise income to the States for the first five years. The formula in s 93 was to continue for five years “and thereafter until the Parliament otherwise provides”. Section 87 (the “Braddon blot”, noted at 4.60) which limited Commonwealth spending of the customs and excise revenue to no more than a quarter of it, was likewise to continue for 10 years “and thereafter until the Parliament otherwise provides”. Unsurprisingly, the Parliament provided otherwise almost as soon as it could, by the Surplus Revenue Acts of 1908 and 1910. The one permanent provision about the expected surplus was s 94, which provided that “the Parliament may provide … for the monthly payment to the several States of all surplus revenue” (emphasis added). The Commonwealth made sure that there would be no surplus in 1907–1908 by enacting two Acts appropriating nearly all of the expected surplus into two trust funds. The High Court upheld the validity of this action in New South Wales v Commonwealth (the Surplus Revenue case) [1908] HCA 68; (1908) 7 CLR 179. This means that the only still-working section of the Constitution providing for payment to the States is s 96: During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.

As discussed in 4.60, this was one of the sections inserted as a result of George (“Yes, but only on my terms”) Reid’s tactical games in 1898–1899. It has a double-edged effect; while it offers the States the chance of receiving some compensation for the loss of their customs revenues, it subjects them to the possibility of detailed control, even of micro-management, by the Commonwealth. It may well be that even without the section the Commonwealth would have power to grant money to the States, but then the High Court may well have been able to find some “federal” limitation on the terms and conditions that the Parliament could impose. Naturally enough, the Parliament has 353

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never chosen to “provide otherwise”, so the power, and the lack of restraint on the Parliament’s choice of conditions, continues to this day.

“Such terms and conditions as the Parliament thinks fit” [21.160] Parliament of course can “think fit” not to impose conditions, and to make “untied” grants to the States. But it can also make “tied” grants. It is hard to imagine how limits could be read into the Parliament’s freedom to choose the conditions it imposes, but that has not stopped plaintiffs from trying. In Victoria v Commonwealth [1926] HCA 48; (1926) 38 CLR 399 Victoria and South Australia challenged the validity of the Federal Aid Roads Act 1926 (Cth) which granted money to the States on condition that they built certain “federal aid roads” exactly as specified. The unanimous judgment of the Court is quoted here in full: The Court is of opinion that the Federal Aid Roads Act No 46 of 1926 is a valid enactment. It is plainly warranted by the provisions of sec 96 of the Constitution, and not affected by those of sec 99 or any other provisions of the Constitution, so that exposition is unnecessary. The action is dismissed.

Clearly enough, their Honours took s 96 to mean what it said and thought further explanation was unnecessary. Then in the uniform tax scheme, as noted above, one of the Acts made grants to the States, largely replacing their previous takings from income tax, on the condition that they did not impose their own income taxes. In the First Uniform Tax case the Court held the whole scheme to be valid. As to the Grants Act, Latham CJ observed that it: … offers an inducement to the State Parliaments not to exercise a power the continued existence of which is recognized — the power to impose income tax. The States may or may not yield to this inducement, but there is no legal compulsion to yield.

His Honour cited the plaintiffs’ argument that the inducement “practically amounts to compulsion” but insisted that “temptation is not compulsion”. McTiernan J went so far as to say: The payment is in truth and in fact made to relieve a disability arising from the incorporation of the State in the Commonwealth. … The relation between the Acts is that the States Grants Act is consequential upon the Income Tax Acts. This is a legitimate relationship, and, indeed, entirely harmonious with the spirit of federalism.

In the Second Uniform Tax case Dixon CJ expressed some doubt as to whether the literal interpretation of s 96 had really been inevitable. At 609–10 he observed: It may well be that s 96 was conceived by the framers as (1) a transitional power, (2) confined to supplementing the resources of the Treasury of a State by particular subventions when

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some special or particular need or occasion arose, and (3) imposing terms or conditions relevant to the situation which called for special relief of assistance from the Commonwealth. It seems a not improbable supposition that the framers had some such conception of the purpose of the power. But the course of judicial decision has put any such limited interpretation of s 96 out of consideration.

Not only can s 96 be used so as to tell the States exactly how to spend the money, but it can instruct the States to pass the money on to others, who will also be told how to spend it. This was confirmed in Attorney-General (Vic); Ex rel Black v Commonwealth [1981] HCA 2; (1981) 146 CLR 559 (known as the DOGS case because Black brought the case on behalf of a group called Defence Of Government Schools). Under a series of annual States Grants (Schools Assistance) Acts the Commonwealth had granted money to the States on the condition that the money was paid on by the States to non-government schools to finance their educational and building programs. As Barwick CJ explained, the DOGS’ argument was that “because of the detailed nature of the conditions attached to the grant, the granted State became a mere conduit pipe to transmit the granted amount of money from the Commonwealth to the designated recipients for purposes in respect of which the Commonwealth has no legislative power”. His Honour held, at 584–5: The submission gains no support from the decisions of this Court. In fact, the Court has earlier decided that grants on like detailed conditions relating to matters over which the Commonwealth lacks legislative power are validly made under s 96 and that the conditions are enforceable according to their terms. Perhaps the extreme case was seen in the Uniform Tax legislation in which the condition of the grant was the abstention by the recipient State from exercise of its own legislative power. But, in any case, in my opinion, the submission is not acceptable. The conditions of the grant in this case relate to a subject matter of State power. Education is within the State legislative area: and its furtherance is undoubtedly a concern of the State. The operation of the conditions depends on the State’s acceptance of the grant. It is no answer to the consequence of this fact that economically speaking a State may have little choice. … The State’s acceptance must involve the conclusion that the provision of funds to the recipients indicated by the conditions of the grant was, at least in general, in line with State policy. … it cannot be denied, in my opinion, that the receipt and expenditure of the grant lessens the demands on the Treasury of the State. The submission of the plaintiffs in this respect is, in my opinion, unacceptable.

Murphy J held that the grants were a breach of s 116, as discussed in Chapter 24, but he and all the other Justices agreed that they were supported by s 96, although Wilson J possibly invited future plaintiffs to challenge the precedents when he said: “The cases to which I have referred give a meaning to s 96 which, at least for the time being, must be taken as settled. The Court is not asked to reconsider them in any respect”. It is extremely hard, however, to see how the Court could read limitations into the words: “Such terms and conditions as the Parliament thinks fit”. 355

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Consequences for the States [21.170] Since the Commonwealth effectively pushed the States out of the field of income tax, and the High Court has interpreted s 90 so as to ban the States from imposing sales taxes (see Chapter 29), the States depend more than ever on grants from the Commonwealth. The Commonwealth earmarks all of the receipts of the GST for passing on to the States as unconditional grants, in return for the States’ agreement to abolish yet more State taxes. In addition, the Commonwealth still promotes numerous special programs by making “tied” grants (“special purpose payments” or SPPs), to be spent on those programs. The case law above shows that the Commonwealth can choose any special purpose as the basis of a grant, and impose any conditions on it; after all, in theory, the States can always say “no” (and some have done so, but very infrequently). We will return to this topic in Chapter 28.

21.7 The Commonwealth’s power to make contracts and spend its own money [21.180] The Commonwealth has total revenues of somewhat over $400 billion per year, and it spends a little less or a little more than that, depending on the state of the economy. Before it can spend it, the Parliament has to “appropriate” it for the use of the executive; as discussed in 11.50 it now does this by listing, for each Department, a number of “outcomes” in propagandistic language so waffly as to be meaningless. Where the expenditure is a grant to a State under s 96, or is related to one of the major “heads” of power such as defence or social security, the power of the Parliament to appropriate and of the executive to spend are uncontroversial. However, occasionally the Commonwealth ventures to spend money in areas not clearly covered by a “head” of legislative power. These schemes usually attract a High Court challenge by the States or by volunteers eager to defend States’ “rights”.

The nature of appropriations — not a source of power, a limit on the executive’s power [21.190] The earlier cases in this area involved discussion of the extent of the Parliament’s “appropriation power” supposedly derived from ss 81 and/or 83, and most of the judgments focused on whether the words “to be appropriated for the purposes of the Commonwealth” in s 81 meant that appropriations were to be limited to the Parliament’s legislative purposes or whether the Commonwealth could determine its own purposes. Attorney-General (Vic); Ex rel Dale v Commonwealth [1945] HCA 30; (1945) 71 CLR 237 (the Pharmaceutical Benefits case) involved a challenge by the Medical Society of Victoria to the first Pharmaceutical Benefits Scheme, before para (xxiiiA) had been added to s 51. The majority held it to be invalid. In Victoria v Commonwealth 356

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[1975] HCA 52; (1975) 134 CLR 338 (the AAP case) there was not even a separate Act — just a few lines in an Appropriation Act setting aside money for something called the Australian Assistance Plan, under which money was given to “Regional Councils for Social Development”,4 set up in order to inquire into gaps in social welfare arrangements, to recommend improvements and, when given grants, to pass them on to groups who provided welfare services. The scheme survived the challenge, though the reasons in the majority judgments are so varied that it is hard to say there is a ratio. Despite that, in Davis v Commonwealth (Davis) [1988] HCA 63; (1988) 166 CLR 79 at [20] Mason CJ, Deane and Gaudron JJ summarised the majority reasons in the AAP case and stated that it “stands as an authority for the proposition that the validity of an appropriation act is not ordinarily susceptible to effective legal challenge”. The focus on the “validity of the appropriation” is now seen as a mischaracterisation of the issue. As Jacobs J had pointed out in the AAP case, at 411, “appropriation is a matter internal to the Government of the Commonwealth”. That is, it is simply a dealing between the Parliament and the executive, in which Parliament withdraws its power of veto over executive spending, but the executive still needs a source of power elsewhere for the spending to be valid. As Mason J held, also in the AAP case, an appropriation does not, of itself, supply legal authority for the Commonwealth to spend money on engaging in activities, and that “[w]hether the Commonwealth can engage in any specific activities depends upon the extent of the Commonwealth’s legislative, executive and judicial powers”. Then in Pape v Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1 (the Tax Bonus case), the Court unanimously agreed that the “appropriations power” is merely a power of the Parliament to limit spending by the executive, and, in French CJ’s words at [111]: Substantive power to spend the public moneys of the Commonwealth is not to be found in s 81 or s 83, but elsewhere in the Constitution or statutes made under it. That substantive power may be conferred by the exercise of the legislative powers of the Commonwealth. It may also be an element or incident of the executive power of the Commonwealth derived from s 61, subject to the appropriation requirement and supportable by legislation made under the incidental power in s 51(xxxix).

So the more recent cases have focused on whether the eventual spending to which an appropriation refers is authorised by a head of power within s 51 or perhaps by the executive power in s 61 and matters incidental to it. Some of the reasoning in the earlier cases is still relevant to the width of the spending power, so the dicta of continuing significance from those cases will be noted here. In cases where a spending program is challenged, the Commonwealth’s obvious first tactic is to argue that it is valid under one of its legislative heads of power. For example, 4 These were established, with the encouragement of the Commonwealth government, under their States’ Associations Incorporation or similar Acts. A web search reveals four that still exist and have a presence on the web, for the regions of Inner Sydney, the Hunter region, the Mid North Coast and the Mackay region.

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in Williams v Commonwealth (No 2) [2014] HCA 23; (2014) 252 CLR 416, the Commonwealth argued, perhaps faintly, that the School Chaplains Program was authorised by either the student benefits power or the corporations power. Both arguments failed — see 20.60 and 18.100. When reliance on a specific legislative power fails, the Commonwealth has argued either that it does not need statutory authority to spend, or that its spending is authorised by a “nationhood” power.

Spending for national purposes — the “nationhood” power and limits on it [21.200] Even in the earlier cases such as the Pharmaceutical Benefits case and the AAP case, those who interpreted the Commonwealth’s powers as limited to “the purposes of the Commonwealth” agreed that the Commonwealth could, in principle, appropriate and expend money, not only for its enumerated legislative purposes, but also for “whatever is incidental to the existence of the Commonwealth as a state and to the exercise of the functions of a national government” (per Dixon J in the Pharmaceutical Benefits case). In the AAP case, Barwick CJ remarked at 362: The extent of powers which are inherent in the fact of nationhood and of international personality has not been fully explored. Some of them may readily be recognized: and in furtherance of such powers money may properly be spent. One such power, for example, is the power to explore, whether it be of foreign lands or seas or in areas of scientific knowledge or technology. (emphasis added)

Jacobs J, at 414–15, mentioned a “growth in the area of activities which have an Australian rather than a local flavour”, and held that the Plan was valid either as such an activity or as something incidental to the powers in paras 51(xxiii) and (xxiiiA). Mason J, at 397, cited the cases on national security laws, discussed in 19.130, and held that the executive must have “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”, which must extend beyond matters of internal security. However, he held that this did not extend to funding the AAP. In Davis, the Court agreed that the government had acted properly in setting up the Bicentennial Authority. Mason CJ, Deane and Gaudron JJ held that the celebration of the bicentenary “falls fairly and squarely within the federal executive power”, and that para 51(xxxix) enabled the Parliament to legislate in aid of an exercise of the executive power (at [15]–[16]). Wilson and Dawson JJ held, at [7], that “viewing its powers as a whole, the Commonwealth must necessarily have the executive capacity under s 61 to recognize and celebrate its own origins in history”. It followed that the special appropriation for the Authority made by s 10 of the Australian Bicentennial Authority Act 1980 (Cth) was valid. However, all of the Justices were careful to suggest that the “nationhood” power was not unlimited. Mason CJ and Deane and Gaudron JJ noted that the States did have some interest in the bicentenary, but that it was a more limited interest than the Commonwealth’s. As a generalisation, they remarked at [14]: 358

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… the existence of Commonwealth executive power in areas beyond the express grants of legislative power will ordinarily be clearest where Commonwealth executive or legislative action involves no real competition with State executive or legislative competence.

Brennan J said, at [13] that: “It does not follow that the Executive Government of the Commonwealth is the arbiter of its own power or that the executive power of the Commonwealth extends to whatever activity or enterprise the Executive Government deems to be in the national interest.” Although Mason CJ Deane and Gaudron JJ had suggested that a “nationhood” legislative power could be implied generally from the existence of the Commonwealth, without even relying on s 61 and para 51(xxxix), Wilson and Dawson JJ and Toohey J expressly rejected this suggestion. As noted in 13.60 and 17.50, all of the Justices agreed that the inclusion of sections prohibiting the use of words connected with the bicentenary had insufficient connection with the purpose of the celebration. In Pape v Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1 (Pape, or the Tax Bonus case), the plaintiff challenged the validity of the Tax Bonus for Working Australians Act (No 2) 2009 (Cth), part of the Government’s response to the Global Financial Crisis. Subject to an upper income limit, the Act provided for a cash payment to anyone who had lodged an income tax return in the previous year. For many people it could be seen as an additional tax refund, but for some recipients it exceeded the tax paid and it was even available to people who had paid no tax because they had been under the tax threshold, as long as they had lodged a return. Because of the latter point, the government did not try to justify it fully as a law with respect to taxation, instead relying mainly on the supposed “appropriations power”. As noted in 21.190, the Court corrected them on this point and focused on the power to spend, but then held that when the power to spend did not come from an express legislative power it “may also be an element or incident of the executive power of the Commonwealth derived from s 61, subject to the appropriation requirement and supportable by legislation made under the incidental power in s 51(xxxix)” (French CJ at [111]). In this case the majority held that the Act, and the payments, were valid. French CJ reasoned, at [133]: 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. … [However,] 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 national economy.

At [239] Gummow, Crennan and Bell JJ said: … the determination of whether an enterprise or activity lies within the executive power of the Commonwealth … invites consideration of the sufficiency of the powers of the States to engage effectively in the enterprise or activity in question and of the need for national action (whether unilateral or in co-operation with the States) to secure the contemplated benefit

and essentially held that the States could not manage the crisis at [242]–[243]. 359

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Heydon, Hayne and Kiefel JJ dissented. Heydon J at [521] held that the power claimed by the Commonwealth to “provide a national response to problems of national interest and concern” was going far beyond the “limited nationhood power” recognised in Davis. [21.210] The focus on the scope of the executive power continued in the two Williams cases discussed in the following paragraphs. The Commonwealth government had set up the National School Chaplaincy Program (NSCP) to provide “chaplaincy” services in State schools. There was no specific legislative authority for the program; the government had just decided to do it, supposedly in the exercise of its executive power, and there was an existing appropriation, drafted in the modern, vague, way, that was broad enough to authorise the spending. The Commonwealth imposed a long list of contractual conditions in return for the payment of money; in particular, though the “chaplains” were mainly provided by religious organisations such as the Scripture Union and few of them had training in counselling, they were, paradoxically, supposed to provide services more akin to counselling than to truly acting as chaplains.5 Williams, a campaigner for the separation of Church and State, alleged that the Commonwealth had no power to make the contracts with the Scripture Union and other bodies, or to spend the money in satisfaction of the contracts. In Williams v Commonwealth (No 1) [2012] HCA 23; (2012) 248 CLR 156, the High Court upheld the challenge by 6:1 (Heydon J dissenting). Only Hayne and Kiefel JJ held the program to be invalid simply because of the lack of a head of power. They emphasised that even if Parliament had enacted a law to support the program, it would not even have been supported by the nationhood power. The reasons of the other four Justices focused on the lack of an enabling statute (to be discussed in more detail under the next heading), but there were passages that suggested that they also agreed that such a statute, if one existed, would be beyond any of the legislative powers and beyond the nationhood power. For example, Gummow and Bell JJ stated, at [146]: The present case, unlike Pape, does not involve a natural disaster or national economic or other emergency in which only the Commonwealth has the means to provide a prompt response. In Pape, the short-term, extensive and urgent nature of the payments to be made to taxpayers necessitated the use of the federal taxation administration system to implement the proposal, rather than the adoption of a mechanism supported by s 96. However, the States have the legal and practical capacity to provide for a scheme such as the NSCP. The conduct of the public school system in Queensland, where the Darling Heights State Primary School is situated, is the responsibility of that State. Indeed, Queensland maintains its own programme for school chaplains. 5 There are conflicting anecdotal accounts as to how well the chaplains honoured this term; some accounts say they functioned very well as general mentors and guides, while some report that they tried to recruit students to their faith and tried to terrify gay students with statements about the sinfulness of homosexuality.

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Their Honours then reminded the parties that funding could be provided via the States under s 96. Clearly the majority did not think the scheme was supported by the “nationhood” power, but since their dicta on that point were interwoven with the argument about the necessity for a statute, the government chose to read the case as only requiring that spending must be authorised by legislation, not that it needed to be supported by a head of power. So, a week after the decision, the Parliament enacted amendments to the Financial Management and Accountability Act 1997 (Cth), adding a new s 32B which purported to grant a power to the executive government to “make, vary or administer” any arrangement, not authorised under another law, under which public money is spent. By the Act and regulations made under it, the Commonwealth purported to validate the Chaplaincy Program and several hundred other spending programs.6 Mr Williams launched another challenge. In Williams v Commonwealth (No 2) [2014] HCA 23; (2014) 252 CLR 416, the High Court unanimously confirmed that the Chaplaincy Program was not supported by the nationhood power or any other head of power and that therefore the supposed new statutory authority for it was irrelevant. In a joint judgment with which Crennan J agreed, French CJ and Hayne, Kiefel, Bell and Keane JJ first rejected the claim that the Chaplaincy Program was authorised by specific heads of power (as noted at the end of the previous section), and then also rejected the claim that it was supported by the executive power. Their Honours rejected a submission by the Commonwealth that the executive’s powers were the same as those of the executive in Britain, noting that that would deny “the ‘basal consideration’ that the Constitution effects a distribution of powers and functions between the Commonwealth and the States”. They accepted that the Commonwealth “must possess all the powers that it needs in order to function as a polity” but reminded the government that the Commonwealth “is the central polity of a federation in which independent governments exist in the one area and exercise powers in different fields of action carefully defined by law” (at [83]). Their Honours made no attempt to define the range of the Commonwealth’s necessary powers, but referred back to the judgments in Pape and in Williams (No 1). Essentially, it is suggested that if one takes all the dicta from Pape and the two Williams cases together, the best general statement is still made by combining the following older dicta — that there are “powers which are inherent in the fact of nationhood and of international personality” (Barwick CJ in the AAP case) and that their availability “will ordinarily be clearest where Commonwealth executive or legislative action involves no real competition with State executive or legislative competence” (Mason CJ and Deane and Gaudron JJ in Davis). 6 As to the politics of this, Anne Twomey commented: “Never has such enormous power been surrendered by the Parliament to the Executive in one hit”. As to the legal efficacy, she predicted, correctly: “The Commonwealth is clearly asking for another clobbering by the Court”; see “Bringing Down the House?”, at http:// http://theconversation.edu.au/bringing-down-the-house-keeping-school-chaplainsmeans-a-surrender-to-the-executive-7926.

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Is a statute always needed as well as an appropriation? [21.220] The Commonwealth was half-right in its response to Williams (No 1) — one of the bases of the decision was that statutory approval for the program was necessary, but curing that omission did not cure the lack of a head of power. To explore when statutory approval is needed we need to go back to Williams (No 1). A presupposition shared by the parties, and accepted by the Justices at least by inference, in the Williams cases was that the executive government needs no statutory authority, other than an appropriation, to spend money for the “ordinary and well-recognised functions of the Government”. This was clearly stated by the High Court, in respect of a State executive entering into a contract for advertising, in New South Wales v Bardolph [1934] HCA 74; (1934) 52 CLR 455. Indeed, the case makes it clear that the executive can enter into a contract for the spending even before an appropriation has been made; the other party then just has to accept some small risk that they will not be paid if no appropriation is forthcoming.7 The concept of “ordinary and well-recognised functions” has been criticised as allowing the executive to gradually expand its own activities “by prescription”8 (in the legal sense of a custom or right that becomes law by repeated use and acquiescence). Nevertheless, the principle seems to be generally accepted; see the discussion, including many references to academic writings, in Williams (No 1) per French CJ at [74]–[81]. However the Chaplaincy Program was still a new program and at the time of Williams (No 1) it had no statutory backing. As Gummow and Bell JJ pointed out in Williams (No 1) at [140]–[143], when the Commonwealth spends money on a new program relying only on an appropriation, it bypasses the possibility of granting the money to the States by legislating under s 96, and also diminishes the Senate’s role as a “States’ House” (as the Senate cannot amend appropriations whereas it could amend an ordinary Bill creating a new program). So if it creates any possible clash with States’ functions a new program probably needs to be approved by Parliament, and then there is a further problem if it cannot be supported by a head of power. It probably should be challenged fairly promptly before it becomes part of the “ordinary” functions. There is a hint — but only a hint — in Crennan J’s judgment at [530]–[531] that this may have happened when the Senate was content that the program should be included in the “No 1” Appropriation Bill.9 Though the above paragraph presents one of the reasons for the majority’s rejection of the Chaplaincy Program in Williams (No 1), there was another, possibly stronger, 7 See the comprehensive discussion of all related issues in Nicholas Seddon, Government Contracts: Federal, State and Local, 5th ed, Federation Press, 2013. 8 Enid Campbell, “Commonwealth Contracts” (1970) 44 ALJ 14 at 15. 9 For the distinction between the No 1 and No 2 (and later) Appropriation Bills, see 16.30. For discussion of Crennan J’s “hint”, see Adam Rompotis, “Exploring the Alternatives: The Administration of Government as an Answer to the Williams Decisions” (2015) 40 UWALR 198 at 207–8; and Anne Twomey, “Post-Williams Expenditure — When Can the Commonwealth and States Spend Public Money Without Parliamentary Authorisation?” (2014) 33 UQLJ 9 at 20–1. Twomey notes that: “It is doubtful, however, that an even numbered appropriation bill receives any greater parliamentary scrutiny than an odd numbered appropriation bill”. However, the Senate does have the power to directly amend them.

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one. Whatever the executive can do without specific authorisation, it cannot coerce the citizenry; see 2.70 and 10.20. Although the Scripture Union had willingly, even eagerly, entered into the contracts the majority Justices noted that they had something of a coercive flavour. At [77] French CJ cited academic articles warning against the use of contracts as a regulatory tool, and referred to the “quasi-regulatory setting” in which the agreement with the Scripture Union had been made, and Crennan J made a similar remark at [521]. At [158] Gummow and Bell JJ refuted the Commonwealth’s submission that the conditions were non-coercive, pointing out that the federal criminal law attached sanctions to them. For one or both of the above reasons, as well as the emphasis by Hayne and Kiefel JJ that there was no head of power, the program was held to be invalid in Williams (No 1). Though the multiplicity of views in Williams (No 1) and the interaction of several issues make it hard to find anything as precise as a ratio (as witnessed by the amount of academic discussion referenced in the further reading), the following propositions appear to emanate from them: n

n

n

n

n

In addition to needing an appropriation, the Commonwealth cannot enter into contracts or spend money without an authorising statute, at least where it may clash with State functions, unless it is in pursuance of a program that has become part of the “ordinary and well-recognised functions” of a Department (which means it should be challenged within the first few years). Conversely, it seems to follow from the acceptance of the idea of “ordinary and well-recognised functions” that even if a program clashes with State functions it may become valid after some years in the absence of an authorising statute. It even seems to follow from the general tenor of the discussion of “ordinary and well-recognised functions” that even if a program is outside the Commonwealth’s heads of power, once it has become part of a Department’s routine administrative activities it may be beyond challenge. However, the above points only apply to a non-coercive program; whether or not a program has become “ordinary and well-recognised”, it must not impose coercive contract terms or be administered under coercive guidelines unless authorised by statute. In the case of the first and fourth dot points an authorising statute must be enacted under a head of power, which can include a “power that [the Commonwealth] needs in order to function as a polity”, ie, an element of the “nationhood” power.

It should be remembered also that where the only source of power for contractmaking and spending is the incidental “nationhood” power, even when coercive powers are granted by statute they have to be proportional to the purpose for which the statute is passed — see the earlier discussion of Davis at 13.60 and 17.50. The Commonwealth responded to its second defeat by Williams by first, waiving the debt that the Scripture Union now owed it for the moneys improperly paid and, second, continuing the scheme but agreeing to fund it via Specific Purpose Payments 363

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to the States under s 96.10 As Williams had been held only to have standing to challenge the matter that affected him and his children, whether this affected every other scheme that was purportedly authorised by the new section 32B was not decided. It appears that the Commonwealth has done nothing to move the basis of the other schemes listed in s 32B from direct appropriations to s 96 grants, and indeed it has renamed the Act as the Financial Framework (Supplementary Powers) Act 199711 and changed its emphasis from accountability to powers. If anyone is aggrieved by this apparent defiance of the Constitution and the High Court, someone with enough of an interest to satisfy the merged “matter”/standing requirements noted in 7.40 will have to challenge the schemes one by one, or in groups that arguably raise the same matter, and they may have to do it quickly before the programs become part of the “ordinary and well-recognised functions” of Commonwealth Departments. Two issues that may, even then, be open to argument are whether the amended Act’s provisions give an explicit enough authorisation for the inclusion of coercive conditions upon grants to non-State recipients, and whether there is a head of power for any such authorisation. The States seem unlikely to bother, Mr Williams was mainly pursuing the separation of Church and State rather than the federal division of powers, and, sadly, Bryan Pape died in April 2014, just as the High Court was about to start hearing Williams (No 2). Constitutional propriety will have to find a new champion.

21.8 A case study in the exploitation of Commonwealth financial dominance — universities [21.230] It was noted above that these “appropriation” or spending issues arise when the Commonwealth ventures to spend money in areas not clearly covered by a “head” of legislative power. One such area is university education. Universities are established by State legislation and were once funded by the States. In 1951 the Commonwealth established Commonwealth Scholarships for students (under para 51(xxiiiA)) and supplemented university funding via the State Grants (Universities) Act 1951 (Cth) (clearly valid under s 96). In 1974 (with the agreement of the States) the Commonwealth assumed full responsibility for funding universities, still via State grants, and made university education free (for those who satisfied an entry quota). In 1988 it enacted the Higher Education Funding Act 1988 (Cth) under which grants were made to the States on the condition that they would pass prescribed sums on to universities and students, and also impose conditions on universities about their courses and administration, and conditions on students as to the repayment of their “Higher 10 See the Project Agreement between the Commonwealth and States at http://www.federalfinancial relations.gov.au/content/npa/education/project-agreement/nat_school_chaplaincy.pdf. 11 By the Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Act 2014 (Cth).

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Education Contribution”. In 1992 the Act was amended, to take out all references to grants to the States, and to make grants direct to tertiary institutions.12 The fundamental basis of university funding has remained the same ever since, though the Act has been recast as the Higher Education Support Act 2003 (Cth) and many of the conditions have been varied or relaxed, while the part of the fees payable by students has risen higher and higher. There are still many coercive provisions; universities have whole divisions of their administration devoted to reporting to the Commonwealth. The “official line” is that the 1992 amendment was, and presumably the current Act is, supported by “the appropriations power in section 81 of the Constitution, the ‘benefits to students’ power in section 51 (xxiiiA), and in the case of some research-related grants, the implied ‘nationhood power’”.13 It may well be true that some provisions are benefits to students or incidental to them, and that research funding is covered by the implied nationhood power. However, since the High Court has scotched the notion that there is a general “appropriations power” and reined in the scope of the nationhood power, it may be doubted whether all the provisions, including many coercive provisions, of the current Act are valid. Universities and the States would have a great deal to lose by challenging the law, so in the absence of another Bryan Pape willing to litigate just to make a point of principle, the current arrangement will probably continue.

FURTHER READING Enid Campbell, “Parliamentary Appropriations” (1971) 4 Adel LR 145 Shipra Chordia, Andrew Lynch and George Williams, “Williams v Commonwealth: Commonwealth Executive Power and Australian Federalism” (2013) 37 MULR 189 Shipra Chordia, Andrew Lynch and George Williams, “Williams v Commonwealth [No 2]: Commonwealth Executive Power and Spending After Williams [No 2]” (2015) 39 MULR 306 Robert Dalton, “The Adverse Attributes of Specific Purpose Payments in Australia” (2006) 10 SCULR 43 Charles Lawson, “‘Special Accounts’ Under the Constitution: Amounts Appropriated for Designated Purposes” (2006) 29 UNSWLJ 114 Andrew Lynch, “Commonwealth Financial Powers — Taxation, Direct spending and Grants — Scope and Limitations” [2011] UNSW Law Research Series 23, http:// www.austlii.edu.au/au/journals/UNSWLRS/2011/23.html Andrew McLeod, “The Executive and Financial Powers of the Commonwealth: Pape v Commissioner of Taxation” (2010) 32 Sydney Law Review 123 12 Higher Education Funding Amendment Act (No 2) 1992 (Cth). 13 Commonwealth Department of Employment, Education and Training, National Report on Australia’s Higher Education Sector, AGPS, 1993, p 105.

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Adam Rompotis, “Exploring the Alternatives: The Administration of Government as an Answer to the Williams Decisions” (2015) 40 UWALR 198 Anne Twomey, “Pushing the Boundaries of Executive Power — Pape, the Prerogative and Nationhood Powers” (2010) 34 MULR 313 Anne Twomey, “Post-Williams Expenditure — When Can The Commonwealth And States Spend Public Money Without Parliamentary Authorisation?” (2014) 33 UQLJ 9

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CHAPTER 22

A Power, and a Limit on Powers — Acquisition of Property on Just Terms

22.1 Context and overview [22.10] The previous four chapters have explored groups of the Commonwealth Parliament’s legislative powers, and the next two will deal with the significant express limitations on its powers. This chapter discusses a paragraph of s 51 that, for the reasons discussed in the next section, is both a source of power and a limitation on all the Commonwealth’s legislative powers — the power to acquire property on just terms. We will see in Chapter 23 that the other limitations that appear to protect fundamental rights were drafted weakly and have not been very effective. However, property rights are protected quite effectively — not that the government cannot take private property, but it must pay just terms for it. Critics from the political left1 have alleged that the similar clause of the United States Constitution was drafted by members of the propertied class in their own self-interest, and it is certainly true that a protection of property does more direct good for those who own a lot of property. But para (xxxi) also protects those who only own a little; as shown below, the fictitious Darryl Kerrigan would not have been able to resist the acquisition of his “castle”, but he would have been able to insist on just monetary compensation. It has also been used by a small number of workers when the Commonwealth attempted to reduce their rights to compensation after their injury but before litigation had commenced. But as 22.120 and 22.140 will show, the case law also does not satisfy propagandists from the extreme political right, who argue that taxation 1 For example, Charles Beard, The Economic Interpretation of the Constitution of the United States, Macmillan, 1913. (available online from at least two sources). For a refutation from a self-described “paleoconservative”, see Forrest McDonald, We the People: The Economic Origins of the Constitution, U of Chicago P, 1958.

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is theft; the paragraph does not restrict laws about taxation, or those imposing fines or penalties, or which restrict the freedom of people to deal with their property.

22.2 Twofold nature of the paragraph — power and limitation [22.20] The fact that the paragraph is both the sole grant of power for acquisitions and a limit on all acquisitions (that is, a guarantee of rights) has often been stated; for example, in Minister of State for the Army v Dalziel (1944) 68 CLR 261 per Starke J at 289 and Attorney-General (Cth) v Schmidt [1961] HCA 21; (1961) 105 CLR 361 per Dixon J at 371. It was explained more fully in a joint judgment of the High Court in W H Blakeley & Co Pty Ltd v Commonwealth [1953] HCA 12; (1953) 87 CLR 501 at [12]: The power to acquire property compulsorily would probably have been regarded as forming an incident of almost every other power which is expressly granted by s 51 in the absence of par (xxxi), and the grant of a specific power would have been in itself unnecessary. … But the acquisition of property could not be left to the incidental powers because it was desired to limit the power of acquisition by imposing a condition that it must be exercised upon just terms. This desire could not be carried into effect except by expressing a separate positive limitation in the form of a constitutional check or bar as is done in the United States Constitution in the Fifth Amendment, or else by conferring a specific but restricted power. The latter course was chosen.

It has been said that the paragraph “abstracts” the power of acquisition from the other “heads” of power: Re Director of Public Prosecutions; Ex parte Lawler [1994] HCA 10; (1994) 179 CLR 270 per Deane and Toohey JJ at 283. As explained in 17.40, this is different from the Court’s general refusal to read limits across from one power to others, because to follow the normal rule in this case would render the limitation utterly ineffective. The fact that it is a power subject to a limitation means that a law for acquisition of property without provision of just terms does not come within the power at all; as Dixon J said in Bank of NSW v Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 350 (Bank Nationalisation case): “In requiring just terms s 51(xxxi) fetters the legislative power by forbidding laws with respect to acquisition on any terms that are not just”. Where the Commonwealth has purported to acquire property under a law that fails to provide just terms, there have been a number of outcomes: n n

n

the whole Act can be declared invalid, as in the Bank Nationalisation case; the specific acquisition can be declared invalid, as in Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513, where the Commonwealth’s proclamation of a National Park over Newcrest’s mining leases was declared invalid, but the Court said nothing to affect the validity of the National Parks and Wildlife Conservation Act 1975 (Cth) in other circumstances; and the acquisition may stand, but the courts may adjust the amount of compensation, as in Dalziel, above, or Commonwealth v Huon Transport Pty Ltd [1945] HCA 5; (1945) 70 CLR 293.

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It is difficult to infer a neatly codified set of rules as to which of these outcomes will eventuate in a particular case from the precedents. The fact that the outcome depends on what remedy the plaintiff has sought is an important factor that should not be overlooked; beyond that the principal factors affecting the courts’ decisions are the Parliament’s apparent intention and the ease or difficulty of severing invalid provisions. For example, in Huon Transport the relevant Act had provided for the previous owner “to be recompensed … in the manner prescribed”, but no regulation had been made. Latham CJ said at 297: “The manner of assessing compensation is a question of procedure, not of substantive right, and a court which has jurisdiction in a matter can supply procedure for the purpose of giving effect to a substantive right”. In Dalziel, a regulation apparently intended to give the Minister an arbitrary discretion as to the assessment of terms was declared invalid and severed from the rest of the regulations; the effect was, as Rich J said, “to treat the transaction as generally valid and to give full effect to it, rejecting only the invalid condition [as to assessment of terms] which was sought to be attached to it”. On the other hand, in the Bank Nationalisation case the provisions as to valuation of the banks’ businesses, explained below, were so integral to the scheme of the Act that the whole Act was declared invalid.

22.3 “… for any purpose in respect of which the Parliament has power to pass laws” [22.30] The addition of this phrase means that the power is not a free-standing power to acquire property for any purpose. In effect, every acquisition must be based on two heads of power; para (xxxi) itself, and another one of the Parliament’s enumerated powers. Outside of wartime, the power is almost exclusively used for the acquisition of land, and under the Lands Acquisition Act 1989 (Cth) (and the earlier Acts of 1906 and 1955) a statement of the purpose for which the land is to be acquired is required. As long as a purpose is stated, it is, in effect, unchallengeable; in Blakeley & Co, above, the Commonwealth had acquired the land five years earlier for “purposes of providing office accommodation for Commonwealth Departments” and none had been built. The Court held that as long as that had been the intention at the time, the acquisition complied with the Act and the Constitution. However, the mere name of an agency is not a purpose; in Jones v Commonwealth [1963] HCA 43; (1963) 109 CLR 475, it was held that “for the following public purpose — the Australian Broadcasting Commission” was insufficient. The Commonwealth tried again, listing the building of a broadcasting studio as the purpose, and succeeded; see the discussion of Jones No 2 at 18.150 above. An acquisition is only valid under the Act if the land is acquired for an actual use by the Commonwealth, and not just to remove the current owner from the land. In Clunies Ross v Commonwealth [1984] HCA 65; (1984) 155 CLR 193, the Commonwealth had been in dispute with Clunies-Ross over his administration of his plantations on the Cocos Islands, and attempted to remove him and his family by compulsorily acquiring his land. A joint judgment of the High Court held that an acquisition could 369

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be made for a purpose related to any need for or desired use of the property but not simply “for the purpose of depriving the owner of it and thereby indirectly achieving some purpose in respect of which the Parliament has power to make laws”. The decision was based on the interpretation of the Act, but the Court commented that dicta in earlier cases suggested that the constitutional power was itself limited in the same way.

Application to laws under s 122 for a Territory [22.40] In common with other limitations on power/guarantees of rights, the “just terms” requirement was once held not to apply to Commonwealth laws for a Territory (see Chapter 36). The High Court gave a remarkably short unanimous judgment in Teori Tau v Commonwealth [1969] HCA 62; (1969) 119 CLR 564 (the Panguna Mine case) in which their Honours said that s 51 was concerned with the distribution of power between the Commonwealth and the States, whereas: “The grant of legislative power by s 122 is plenary in quality and unlimited and unqualified in point of subject matter”. Therefore the Commonwealth could authorise the mine without regard for the interests of the people of Bougainville who would be dispossessed. The effect of Teori Tau has been limited and then overruled in recent decades. In Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513, a majority of 4:3 criticised the reasoning in Teori Tau. Their Honours noted that the National Parks and Wildlife Conservation Act 1975 (Cth) had been enacted under the external affairs power (and possibly other powers), and held that the Commonwealth was certainly subject to the just terms requirement when a law enacted under a paragraph of s 51 applied in a Territory. In Wurridjal v Commonwealth [2009] HCA 2; (2009) 237 CLR 309 (the NT Intervention case) four Justices (French CJ at 357–9, Gummow and Hayne JJ at 385–8, and Kirby J at 418–19), expressly overruled Teori Tau and Heydon J accepted at 429 that the effect of the majority judgments would be that there would be no doubt about the issue in future. As French CJ remarked, the power under s 122 is a “purpose in respect of which the Parliament has power to make laws”, just as much as any of the powers in s 51. (The Act under challenge, the Northern Territory National Emergency Response Bill 2007, contained a “Historic Shipwrecks” clause of the kind discussed in 22.160, so it was not invalidated, despite the plaintiff ’s victory on the constitutional interpretation point.)

22.4 Property [22.50] “Property” is given the widest possible interpretation. As McTiernan J said in Dalziel (above, 22.10) at 295: “It means any tangible or intangible thing which the law protects under the name of property”. In that case, the Commonwealth had made a regulation under which it purported only to take possession of land, and counsel argued that it was not acquiring the land. The High Court held that it was an acquisition, with 370

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only Latham CJ dissenting. Rich J remarked that: “Not only is a right to possession a right of property, but … it is the most characteristic and essential of those rights”.2 In the NT Intervention case the Commonwealth argued that by taking a five-year statutory lease over some places held under native title it was not acquiring property; Sean Brennan3 remarks that in the light of the Dalziel precedent, this was somewhat surprising, as was the fact that Crennan J accepted the argument. However the other Justices all rejected it. There have been cases on the all main forms of property according to the usual classifications — real property (land), chattels and choses in action. Land is so commonly acquired that the Commonwealth has a special Act, the Lands Acquisition Act 1989 (Cth), to deal with it. The Commonwealth does not usually acquire chattels by compulsory process, but many of the wartime cases deal with specific chattels (for example, a boat in Huon Transport, a printing press in Johnston Fear & Kingham & Offset Printing Company Pty Ltd v Commonwealth [1943] HCA 18; (1943) 67 CLR 314) or with “fungible” crops as in Australian Apple & Pear Marketing Board v Tonking [1942] HCA 37; (1942) 66 CLR 77. A right of action in law (a “chose in action”) is a species of property, so although the Commonwealth can amend workers’ compensation laws to abolish common law benefits for accidents occurring after the commencement of the Act, it cannot apply the reduction to actions already on foot: Georgiadis v Australian & Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297; Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471.4 It cannot even shorten the time for commencing action, because that can work to the advantage of the defendant, which is thereby acquiring a benefit from the reduction of the plaintiff ’s rights: Smith v ANL Ltd [2000] HCA 58; (2000) 204 CLR 493 per Gleeson CJ at [7]. A right to enforce an intellectual property right is also a chose in action, but since all the intellectual property that the Commonwealth can make laws about (see 18.180) is necessarily a creature of statute, the arguments in 22.150 below will apply. Though a “business” as a going concern is often the object of a sale, it does not fit within the standard subdivisions of the types of property as real, personal, choses in action, and so on. This does not prevent para (xxxi) from applying. When the Commonwealth attempted to nationalise the banks in 1947, it gave the Commonwealth Bank power to compulsorily acquire the shares of the private banks that were on an Australian share register. This would probably, but not necessarily, have given it a majority of the 2 The claimant Dalziel also held a right that was fairly low on the scale of property rights; a lease over vacant land, terminable at a week’s notice. One might wonder how much compensation he received in the end and why he took an appeal to the High Court — either he was a particularly obstinate man, or it was a test case. However, the point of the case is not whether Dalziel had a proprietary right; that much was taken for granted. The issue was whether what the Commonwealth was acquiring was property. 3 Sean Brennan, “Case Note: Wurridjal v Commonwealth; The Northern Territory Intervention and Just Terms for the Acquisition of Property” (2009) 33 MULR 957, text at fn 133. 4 The same principle was applied to a Northern Territory law, under s 50 of the Northern Territory (SelfGovernment) Act 1978 (Cth), in Attorney-General (NT) v Chaffey [2007] HCA 34; (2007) 231 CLR 651.

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share of the Australian banks,5 but many of them had articles of association that limited the voting power of large shareholders. The Act therefore set up a somewhat devious mechanism to facilitate a full takeover; it empowered the Governor of the Commonwealth Bank to nominate directors to the private banks, and then empowered the new directors to “negotiate” a sale of the bank’s business to the Commonwealth Bank. In a world of angels, the new directors would have felt compelled by their fiduciary obligations to the shareholders to negotiate a fair price, but in the real world the fact that they were nominated by the Governor of the rival bank made that seem unlikely. The High Court unanimously held that the arrangement amounted to an attempt by the Commonwealth to acquire the banks’ property, otherwise than on just terms. Dixon J observed at 350 that para (xxxi) “extends to innominate and anomalous interests and includes the assumption and indefinite continuance of exclusive possession and control for the purposes of the Commonwealth of any subject of property”, and that the arrangement was “but a circuitous device to acquire indirectly the substance of a proprietary interest without at once providing the just terms guaranteed by s 51(xxxi) of the Constitution”. On the other hand a change in the law that may make a business less valuable is not generally acquiring anything from the business, and just terms are not payable: British Medical Association v Commonwealth [1949] HCA 44; (1949) 79 CLR 201 per Dixon J at 270; JT International SA v Commonwealth [2012] HCA 43; (2012) 250 CLR 1.

22.5 Just terms [22.60] Despite the impression given in the film The Castle, the presupposition of the paragraph is that everything has a money value; in the real world, Darryl Kerrigan would have had to give up his home for the airport expansion but he would have received monetary compensation. There may be an exception, as Heydon J indicated in the NT Intervention case at [314], for some traditional Aboriginal rights and interests in land. In their written submissions, the plaintiffs had argued that “the impugned legislation did not replace the rights and interests allegedly affected with comparable rights and interests” and his Honour remarked that: This submission would prima facie have considerable force where the relevant rights and interests were related to spiritual matters, for example use of sacred sites. It may also be thought prima facie to have some force in relation to matters which are not strictly spiritual.

However, the plaintiffs had disavowed this contention in oral argument. If sacred sites, in particular, require special treatment, the issue did not arise for the further reason that the “intervention” appears not to have interfered with the use of any such sites. If the government ever undertakes such a provocative action in respect of an undisputed 5 In those semi-colonial days, three of the major banks in Australia — the Bank of Australasia, the Union Bank of Australia, and the English, Scottish and Australian Bank (ES&A) — were incorporated in England. They were dealt with separately by the Act.

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sacred site,6 the issue may resurface, but until then we can continue to assume that everything the Government is likely to acquire has a money value. In assessing the monetary value of property, the notion of just terms is prima facie the same as in cases on valuation for land tax, rating or resumption — the just amount is the market price or: “In the absence of a market, the value … must be ascertained by estimating the sum which a reasonably willing vendor would have been prepared to accept and a reasonably willing purchaser would have been prepared to pay for the property at the date of the acquisition”: Nelungaloo Pty Ltd v Commonwealth [1947] HCA 58; (1947) 75 CLR 495 per Williams J, cited with approval by Latham CJ at 540 on appeal. However, the paragraph is not simply concerned with justness to the owner but justice to the community, as was pointed out in wartime and immediate-post-war cases involving compulsory “pooling” schemes for the marketing of primary produce. In Dalziel, Starke J said at 291: “Under the Australian Constitution the terms of acquisition are, within reason, matters for legislative judgment and discretion. … The law must be so unreasonable as to terms that it cannot find justification in the minds of reasonable men”. In Nelungaloo, Latham CJ held at 540–2 that the Court could take into account the community interest in the need to satisfy local needs for flour before exporting any surplus, and also the fact that the price of bread was fixed, meaning that allowing the price of wheat and flour to go too high would affect the livelihood of bakers. In other wartime cases, the Court agreed that special circumstances could be taken into account in deciding just terms. In Johnston Fear, above 22.50, the difficulty of replacing a printing press was a factor, and in Minister of State for the Navy v Rae [1945] HCA 6; (1945) 70 CLR 339 a similar observation was made regarding a ketch. Even in peacetime, earlier versions of the Lands Acquisition Act have had provisions slightly adjusting the value of acquired lands; for example, as it stood in 1949 it provided that the land would be valued as on the 1 January preceding the date of acquisition, and that interest at three per cent (in years of average or above-average inflation, a fairly miserly rate) would be paid from that date till the date of payment. In Grace Brothers Pty Ltd v Commonwealth [1946] HCA 11; (1946) 72 CLR 269 the High Court held that to be valid. Latham CJ explained that: Justice involves consideration of the interests of the community as well as of the person whose property is acquired. The value of the property might have been depreciated in advance by Government action … In such a case it might be said that it would be unfair to limit the owner to receiving by way of compensation the value at the date of acquisition.

Alternatively, his Honour said: In some cases the announcement of the intention of the Government to acquire land might itself put up the value of the land. It is at least not obviously unjust to make provision against the community being compelled to pay higher prices for such a reason. 6 In contrast to Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337, which involved the revocation of protection for a site whose status as a place of secret women’s business was disputed even among the local Indigenous women.

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It should be noted, however, that the current Lands Acquisition Act 1989 (Cth) has no such adjustment provision. If Parliament wished to insert some such provision, the Grace Brothers case possibly illustrates something close to the maximum adjustment that can be made in the public interest. The High Court has made extremely contradictory statements about whether just terms should include the payment of interest from the date of acquisition of property to the date of payment. In Tonking v Australian Apple & Pear Marketing Board (1942) 16 ALJR 21, Williams J had allowed interest at first instance, and no Justice questioned that on appeal (Australian Apple & Pear Marketing Board v Tonking (1942) 66 CLR 77). In Huon Transport (above, 22.20) a majority refused to award interest; Latham CJ expressed the view, as he did in other cases, that an award of interest would be compensation not for the acquisition of the property, but for the delay in payment. Rich J held that interest was payable as a matter of justice, because the plaintiff “has been kept out of it [the money] when he should have been in possession of it so as to be able to turn it to account”. The Justices who held that interest was not included based their decision largely on a House of Lords precedent, based, as Rich J pointed out, on the interpretation of the word “compensation” rather than the text of the Constitution, so, he concluded: “It throws no light on the question now before us”. Though Moens and Trone suggest that the “better view” is that para (xxxi) does not automatically require the payment of interest,7 it is suggested that Rich J’s conclusion is more in keeping with the words of the paragraph. The justness of terms also extends to any statutory provisions providing a mechanism for assessment of the compensation. Justness of terms requires that the rules of natural justice be observed — the assessing body cannot represent the Commonwealth alone (Nelungaloo, above 22.60), and cannot make an assessment without giving the “divestee” an opportunity to be heard (Australian Apple & Pear Marketing Board v Tonking). However, the power of assessment does not have to be given to a “Chapter III” court; it can be given to an administrative body, as long as its procedural rules require natural justice to be done (Nelungaloo per Dixon J). A right to apply for judicial review of such a body’s decisions would automatically be granted by para 75(v) of the Constitution: see 11.120. In the Bank Nationalisation case, an additional reason for holding the terms to be unjust (apart from the appointment of directors, noted above) was that the legislation established a Court of Claims and gave it exclusive jurisdiction to determine claims for compensation against the Commonwealth Bank. A more likely way for the modern High Court to decide such an issue would be to read the grant of exclusivity out of the section, in the light of its appellate jurisdiction over all federal courts under para 73(ii) or its own original jurisdiction over actions against the Commonwealth under para 75(iii), rather than holding the sections about the Court of Claims generally invalid. 7 Gabriel Moens and John Trone, Lumb Moens and Trone Constitution of the Commonwealth of Australia Annotated, 8th ed, LexisNexis Butterworths, 2012, p 193.

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22.6 Which acquisitions are subject to the paragraph? Application only where acquisition is done under a law [22.70] Since the paragraph only relates to a power of the Parliament to make laws, it would not apply if the executive has any prerogative power to acquire property. The only such power that has been suggested to exist is the power to seize and destroy property for defence purposes, and that has been held (though only as recently as 1950) to be subject to a duty under the common law to pay compensation, unless the property is seized/destroyed when in imminent danger of capture: Burmah Oil Company Ltd v Lord Advocate [1965] AC 75. We have never had to destroy property on the mainland in the face of an advancing enemy, but if the occasion should arise, the Government may be able to do it without having a legal obligation to pay compensation.

No application to negotiated acquisitions? [22.80] Although an acquisition by negotiated agreement is clearly an acquisition, it has been held that para (xxxi) is irrelevant to such acquisitions. Stephen J explained in Trade Practices Commission v Tooth & Co Ltd [1979] HCA 47; (1979) 142 CLR 397 at 417 that the existence of the need for just terms “presupposes an inability on the part of the owner of the property to insist upon payment of whatever amount he may nominate as the price of the thing acquired”, and therefore there is no need to apply the paragraph to freely-negotiated acquisitions. With respect, this is not convincing. The Lands Acquisition Act 1989 (Cth) includes provisions for acquisition by agreement as well as for compulsory acquisition and it seems artificial to suggest that the former are based only on powers other than para (xxxi), and that the latter paragraph suddenly enlivens only when the compulsory process is started. It may not matter in most cases, because a genuinely negotiated acquisition could hardly be challenged for a breach of the just terms requirement, but the above principle has also been applied in cases of border-line voluntariness, in a way that seems to assist the Commonwealth rather unjustly. The two cases usually cited as instances of this proposition at work (John Cooke & Co Pty Ltd v Commonwealth (1924) 34 CLR 269 at 282 (PC) and Poulton v Commonwealth [1953] HCA 101; (1953) 89 CLR 540) are less than persuasive. They involved war-time regulations that left woolgrowers with a choice of “sell it to us or store it until the war is over”, which hardly seem to be genuine cases of acquisition by agreement; compare the excise duty case Attorney-General (NSW) v Homebush Flour Mills Ltd [1937] HCA 3; (1937) 56 CLR 390 where a “practical compulsion” was treated as being the same as a legal compulsion. In Commonwealth v Huon Transport Pty Ltd [1945] HCA 5; (1945) 70 CLR 293, Latham CJ noted that the company seemed not to have contested the acquisition of its ship, and that it might therefore be seen as a voluntary cession of it to the Commonwealth, but he then said that the proper compensation to be paid would be the same either way. With respect, it seems unfair to suggest that anyone who has been 375

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“stood over” by the government has ceded their property voluntarily; it would be more just to scrutinise even an “agreement” for the justness of the terms.

Acquirer need not be the Commonwealth [22.90] Though most of the laws passed in reliance on the paragraph relate to acquisition by the Government itself, or agencies of the Government, the paragraph is not limited to that; it says “from any State or person” but there is no requirement that the acquisition be “by the Commonwealth”. The Parliament does not often have any interest in enacting laws that transfer property from one person to another, but if it does so it must provide for just terms. On one analysis of the facts in McClintock v Commonwealth [1947] HCA 39; (1947) 75 CLR 1, the regulation was providing for the acquisition of pineapples by certain canneries, but they were in effect doing it as agents of the Commonwealth because the products were to be supplied to the armed forces, so it is a weak illustration of the principle. The principle was stated as a general principle in Tooth & Co Ltd at 407–8, 426 and 451–2, but for reasons discussed below it was held that the law in question was not acquiring Tooth’s property. However, as shown in 22.120, below, in cases where persons have protested that their property was being transferred to another, it is likely that the Court will hold that the law was a genuine attempt to resolve a dispute, and therefore valid.

Property can be acquired from a State [22.100] This is obvious enough from the words of the paragraph, but the full effects had to be worked out by litigation. In Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1, the State argued that, first, land was not the “property” of the State but part of the dominion of the King, and secondly, that the minerals which might be under the land were not necessarily acquired with the land. The Court held that in the constitutional context, para (xxxi) empowered the Commonwealth to acquire “unalienated” land of the State including any sub-soil minerals and, in the case of privately owned land, any rights reserved by the State when it had granted land to private owners. Since the State had received compensation only for the value of the fee simple, Higgins J dissented as to the “royal” metals (gold and silver), arguing that: It would be [an] extraordinary result … that if there were under the land acquired a gold mine as rich as Mount Morgan, to the parties knowledge, and if the Commonwealth acquired it under the Act, the Commonwealth would have only to pay compensation for the value of the land as land held in fee simple, and be entitled to all the gold without paying anything for it.

It would indeed be extraordinary, but it appears to be the effect of the decision and, with respect, the true effect of the Constitution. It is yet another reminder that, though the drafters may have expressed their intent to produce a central government of limited powers, the Constitution does little to protect States’ “rights”. 376

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Application to acquisitions by a State, if authorised by a Commonwealth law [22.110] Since the paragraph appears in a section granting powers to the Commonwealth Parliament, it, obviously, has no application to State laws.8 This was confirmed in Durham Holdings Pty Ltd v New South Wales [2001] HCA 7; (2001) 205 CLR 399, which will be discussed in Chapter 27. However, it has been held that the just terms requirement does apply if a Commonwealth law authorises an acquisition to be made under a State law. In P J Magennis Pty Ltd v Commonwealth [1949] HCA 66; (1949) 80 CLR 382, the Commonwealth had made an agreement with the States that the States would use Commonwealth grant money to acquire land at 1942 valuations and pass it to the Commonwealth for its soldier settlement scheme. The Commonwealth and New South Wales Parliaments had enacted Acts putting the terms of the scheme into law. The majority of the Court held that both the Commonwealth and State Acts had no effect; Williams J explained at 425 that the State Act was technically “valid” but as it ratified an invalid agreement it was therefore “an Act which has in law no operation”. Dixon and McTiernan JJ dissented. Dixon J held at 410–11 that the Commonwealth Act was not in fact a law for the acquisition of land, and that there was nothing in para (xxxi) to restrain the power of the State. McTiernan J commented at 416 that: “[I]t would be a novel result that a State power becomes less when a State agrees upon co-operation with the Commonwealth than it is when the State acts separately”. The Commonwealth promptly removed any reference to the intention to acquire land at an under-value from its grants legislation, and New South Wales removed all references to the Commonwealth–State agreement from its Act, but left the back-dated valuation provision in (apparently pursuant to an agreement between the Commonwealth and State executives). When a later acquisition by the State was challenged in Pye v Renshaw [1951] HCA 8; (1951) 84 CLR 58 the Court dismissed the action in a short unanimous judgment; it was now simply a matter of a State law, which was not subject to para (xxxi), and any “arrangement” with the Commonwealth was irrelevant. The distinction between the two cases seemed so artificial, and Dixon J’s dissent in Magennis seemed so persuasive, that lawyers had long expected someone to argue that Magennis should be overruled. This occurred in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140, in which the Commonwealth had given grants to the States on condition that they re-allocated water rights. French CJ, Gummow and Crennan JJ held that Magennis had been correctly decided, though it did not assist the plaintiffs’ case in the end, as there had been no acquisition of property. Hayne, Kiefel and Bell JJ held that it was unnecessary to consider the issue. Heydon J did not cite Magennis, but in holding that there had been an invalid acquisition, and that 8 An identical rule does apply to laws of the self-governing Territories, because it is imposed on them by Commonwealth law; see the Northern Territory (Self-Government) Act 1978 (Cth), s 50 and the Australian Capital Territory (Self-Government) Act 1988 (Cth), para 23(1)(a).

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Pye v Renshaw could be distinguished, he appears to have endorsed it. Despite doubts, Magennis still seems to reflect the law.

“Acquisitions” does not include all exactions of money or property [22.120] Interpreting the term “acquire” as broadly as is conceivable, it could apply to situations where the Government collects a tax or imposes a fine, penalty or forfeiture. However, as Dixon CJ noted in Attorney-General (Cth) v Schmidt [1961] HCA 21; (1961) 105 CLR 361 at 372: “Prima facie [the power] is pointed at the acquisition of property by the Commonwealth for use by it in the execution of the functions … arising under its laws” (emphasis added). A long line of cases has held that the paragraph does not apply to cases of a compulsory “exaction” (to use the term from the previous chapter), where to require compensation would defeat the very point of the exaction. In Tooth & Co at 408 Gibbs CJ listed many of the cases where just terms are not required: [N]ot every compulsory divesting of property is an acquisition within s 51(xxxi). Thus it has been held that laws providing for the forfeiture of prohibited imports (Burton v Honan [1952] HCA 30; (1952) 86 CLR 169, at pp 180–181), the compulsory payment of provisional tax (Federal Commissioner of Taxation v Clyne [1958] HCA 10; (1958) 100 CLR 246, at pp 263, 270) and the application of the property of former enemy subjects for reparations (Attorney-General (Cth) v Schmidt (1961) 105 CLR 361) are not within s 51 (xxxi). Other laws to which s 51(xxxi) obviously does not apply are those for the imposition of tax, the sequestration of the property of a bankrupt or the condemnation of prize (Attorney-General (Cth) v Schmidt (1961) 105 CLR, at pp 372–373). … It appears to me that there are cases in which s 51 authorizes the compulsorily divesting of property in circumstances in which no question of just terms could sensibly arise — for example, it would be absurd to say that the legislature could make provision for the exaction of a fine, or for the imposition of a forfeiture of property used in the commission of a crime, only on just terms.

One aspect of this is that the Commonwealth Parliament can impose a tax in breach of an earlier promise by the executive government that it will not do so: Mutual Pools & Staff Pty Ltd v Commonwealth (No 2) [1994] HCA 9; (1994) 179 CLR 155, per Mason CJ, citing Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation [1948] HCA 24; (1948) 77 CLR 1 and Magrath v Commonwealth [1944] HCA 14; (1944) 69 CLR 156. One could add, in the case of taxes or fines, that they create a liability to pay money, and the Commonwealth has acquired an “account payable” rather than specific property, so it is not acquiring specific property; the payer has some choice as to which assets are used to make the payment. In the case of taxes, there is a requirement that there should be objective criteria for assessment (see 21.50) and in the case of penalties there are principles of sentencing that demand proportionality; even though taxes and fines do not involve the acquisition of property, these requirements ensure some degree of 378

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justice in the terms. However, laws that allow the seizure or forfeiture of specific items of property are different; they can produce a punitive effect that is quite disproportionate to the scale of the problem. In Schmidt, the Commonwealth was allowed to retain, and dispose of, property seized from enemy aliens even after the state of war was terminated. Dixon CJ did explain at 373 that “the moneys or property will be applied in pursuance of inter-Allied engagements in or towards the satisfaction of claims upon Germany for reparations”, but that was not crucial to the validity of the retention of the property. The law validated in Burton v Honan provided for the seizure of unlawfully imported goods, even if they had passed to an innocent purchaser. Later cases have focussed, as Burton v Honan did, on the position of the innocent third party. The section challenged in Re Director of Public Prosecutions; Ex parte Lawler [1994] HCA 10; (1994) 179 CLR 270 provided that a vessel used in unauthorised fishing in Australian waters would be forfeited. Lawler, the owner of the confiscated yacht, protested that he had had no involvement in the illegality and that the forfeiture of the yacht was disproportionate to the aim of punishing the fishers. The section was held valid; Brennan, Dawson and McHugh JJ each cited an American case, Calero-Toledo v Pearson Yacht Leasing Co (1974) 416 US, which pointed out that: Forfeiture of conveyances that have been used — and may be used again — in violation of the narcotics laws fosters the purposes served by the underlying criminal statutes, both by preventing further illicit use of the conveyance and by imposing an economic penalty, thereby rendering illegal behavior unprofitable. … To the extent that such forfeiture provisions are applied to lessors, bailors, or secured creditors who are innocent of any wrongdoing, confiscation may have the desirable effect of inducing them to exercise greater care in transferring possession of their property.

Airservices Australia v Canadian Airlines [1999] HCA 62; (1999) 202 CLR 133 arose out of the collapse of Compass Airlines in 1991, leaving a large amount of fees for air traffic, rescue and meteorological services owed to the Civil Aviation Authority. (By the time of the appeal the CAA’s functions, rights and liabilities had been transferred to a new body, Airservices Australia.) Compass had leased its planes from Canadian Airlines and two other lessors. The relevant Act created a statutory lien over the aircraft to secure the payment of the charges, and the lessors had paid out the charges, under protest, in order to discharge the liens, but argued that to impose a lien on an innocent lessor was to acquire its property on unjust terms. The majority of the High Court applied the precedents from the above cases. Gleeson CJ and Kirby J explained at [103] that: Having regard to … the reasonableness of a system which provides that those who operate aircraft must pay charges which, in totality, will defray the cost of providing the services, the possibility that operators will have few assets in the jurisdiction apart from aircraft, the mobility of aircraft, and the desirability of providing adequate security for liabilities incurred, it is at least as easy to draw a conclusion supportive of the legislation as it was in Ex parte Lawler.

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Gaudron and Heydon JJ dissented. In Gaudron J’s words, at [162]–[163]: … a lien ordinarily comes into existence by reason that some service has been rendered to the person whose property is affected, some advance has been made to him or her, or, at his or her request, or goods have been sold to him or her and the purchase price not paid. Ordinarily, the lien is the just quid pro quo for what has been provided to the person whose property is affected. At the very least, it contemplates a transaction which directly benefits the person whose property is affected. In that sense, there is no inconsistency between the notion of just terms and the imposition of a statutory lien. Absent any direct benefit to the person whose property is affected, however, a lien simply effects an acquisition of property. The guarantee effected by s 51(xxxi) would be rendered nugatory if Parliament could legislate pursuant to some other head of legislative power to impose a lien where there is no direct benefit to the person whose property is affected.

In Theophanous v Commonwealth [2006] HCA 18; (2006) 225 CLR 101, however, the Court was again unanimous in holding that a law which deprived both a former Member of Parliament and his wife of superannuation benefits when the MP was convicted of corruption was valid. As Gleeson CH said at [14]: “It would weaken or destroy the sanction, and the normative effect of the principle of probity which the sanction is intended to vindicate, to place the law within s 51(xxxi)”. Gummow, Kirby, Hayne, Heydon and Crennan JJ held at [71] that the Act was “not, in the constitutional sense, a disproportionate consequence of the convictions of the plaintiff ”. When it comes to laws imposing forfeiture, the Parliament is allowed to use a fairly big hammer to crack a nut. [22.130] Another class of law that, in the High Court’s opinion, is not performing an “acquisition” of property is one where the law is directed to “a genuine resolution of competing claims”. Mutual Pools & Staff Pty Ltd v Commonwealth (No 2) [1994] HCA 9; (1994) 179 CLR 155 was a sequel to the earlier Mutual Pools case in which the tax on in-ground swimming pools had been held to be invalid, discussed in 21.110. An Act provided that refunds would be paid in some cases to the pool owners and in other cases to the builders, and in some other cases the debt would be extinguished (see 22.150 below). The company alleged that the refunds were owed to it alone and alleged that its property — the debt owed to it by the Commonwealth — had been acquired. The Court unanimously held that there had not been an acquisition. Mason CJ held that the forfeiture and similar cases were: … all cases in which the relevant statute provided a means of resolving or adjusting competing claims, obligations or property rights of individuals as an incident of the regulation of their relationship, eg, the relationship between a bankrupt and the creditors in the bankruptcy, between the Crown and the person who brings in prohibited imports, and between the Crown and an enemy alien with respect to enemy property. In a context in which the law resolves or adjusts competing claims, obligations or property rights, it is not possible to regard the law as a law for the acquisition of property within the meaning of s 51(xxxi).

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This was, he held, such a case. The other Justices agreed. The law challenged in Nintendo Co Ltd v Centronics Systems Pty Ltd [1994] HCA 27; (1994) 181 CLR 134 was, likewise, enacted to resolve a problem created by earlier litigation. In Computer Edge Pty Ltd v Apple Computer Inc [1986] HCA 19; (1986) 161 CLR 171, the High Court had held that the “object code” embodied in read-only memory (ROM) chips (ie, the program instructions reduced to a series of 0s and 1s, or the “on” or “off ” states of circuit elements in the chip) was not protected by copyright law. The loophole was partly closed by amendments to the Copyright Act 1968 (Cth), but as part of a move for uniform international laws on the subject the Parliament also enacted the Circuit Layouts Act 1989 (Cth), which gave direct protection to the details of the layout of any computer chip. Although the Act was enacted in May 1989, it did not commence until October 1990. Centronics had been selling copies of a Nintendo games device, was caught with some of them still in stock on the commencement date, and continued selling them. Their argument about the interpretation of the Act having failed, they fell back on the argument that it had acquired their property. The Court unanimously treated it as another case of resolving competing claims. Dawson J remarked that “where legislation provides for the acquisition of property by a third party, the property itself will frequently not be acquired for any purpose in respect of which the Parliament has power to make laws but for the purposes of the third party”, thus confirming the suggestion above at 22.90 that the application of para (xxxi) to third party acquisitions is a theoretical principle that will have few practical applications.

Acquisition versus limitation of rights [22.140] The paragraph refers to the “acquisition” of property rather than “interference with” or “restriction” or “destruction”. Even if a party is losing some sort of property right, para (xxxi) does not apply unless some other party is acquiring it. This has been interpreted fairly literally; Parliament is free to restrict what persons can do with their property or even to extinguish supposed proprietary rights, as long as no other person is acquiring them at the same time. As to restricting, in Tooth & Co at 414–15 Stephen J remarked: [M]any measures which in one way or another impair an owner’s exercise of his proprietary rights will involve no ‘acquisition’ such as pl (xxxi) speaks of. On the other hand, far reaching restrictions upon the use of property may in appropriate circumstances be seen to involve such an acquisition. … In each case the particular circumstances must be ascertained and weighed and, as in all questions of degree, it will be idle to seek to draw precise lines in advance.

In Waterhouse v Minister of the Arts and Territories [1993] FCA 548; (1993) 43 FCR 175; 119 ALR 89, the appellant argued that a law prohibiting the export of a historic painting without the permission of the Minister amounted to an acquisition. The Full Court of the Federal Court disagreed. Lockhart J remarked that: “[T]he applicant is free 381

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to keep the painting, enjoy it, display it, sell it, lease it or give it away. The only thing he cannot do is export it unless, of course, a permit is later granted to him. In every other respect his rights remain unimpaired”. The difficulty of drawing lines was demonstrated in Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1. Having held that the “race” power extended to the making of laws protecting Aboriginal artefacts or relics (see Chapter 19), Deane J held that the regulations protecting two caves and an archaeological site prohibited such a wide range of acts that they amounted to the taking of a restrictive covenant over the areas. Though Parliament had included a section providing for the assessment of compensation, his Honour held that it was not satisfactory. On the other hand, the other three Justices who held that the relevant sections were supported by the “race” power held that the regulations merely regulated the use of the properties and did not acquire them.

Acquisition versus extinction of rights created by statute [22.150] The discussion of Kartinyeri v Commonwealth [1998] HCA 22; (1998) 95 CLR 337 in Chapter 20 illustrated the principle that Parliament can amend or repeal anything that it can enact. When a right of an apparently “proprietary” nature has been created by statute in the first place, the question will arise — do just terms have to be offered if the right is later qualified or abolished? In some cases the right may be said to be not really proprietary, but merely a “statutory entitlement inherently susceptible of variation”; for example, Health Insurance Commission v Peverill [1994] HCA 8; (1994) 179 CLR 226 where the Medicare benefit for a pathology test was reduced with retrospective effect. In a case where benefits are provided under a statute that empowers a tribunal to determine the level of benefits “from time to time” (as with politicians’ retirement allowances and gold passes, at issue in Cunningham v Commonwealth [2016] HCA 39; (2016) 335 ALR 363) the outcome is even clearer; the benefits can be increased or diminished.9 In other cases, such as copyright, patents and trade marks, the right may be so similar to other well-established proprietary rights that it is regarded as property: Commonwealth v WMC Resources Ltd [1998] HCA 8; (1998) 194 CLR 1 at [182]–[186]); JT International SA v Commonwealth [2012] HCA 43; (2012) 250 CLR 1. As Kirby J remarked in Attorney-General (NT) v Chaffey [2007] HCA 34; (2007) 231 CLR 651 at [44], these issues are illustrations of “the fact that, in legal reasoning and in constitutional elaboration especially, a point may ultimately be reached where the decision is sustained by considerations of impression and judgment”. In such cases, as his Honour said, “[v]erbal explanations … can only go so far”, but by considering the cases in which the principles have been applied, one can get a general feeling for the way 9 The Commonwealth had suggested another argument supporting the same outcome; that the effect of para 51(xxxvi) on the reference to Members’ allowances in s 48 meant that the Parliament necessarily had a continuing power to vary the allowances from time to time. The Justices held that they did not need to consider that argument.

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they have been applied. However, in such cases there may still be an issue as to whether anyone has “acquired” property if the right is simply limited or abolished.10 The interplay of the two issues is illustrated by the contrast between two cases about the cancellation of petroleum exploration “leases”. In Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513, petroleum exploration rights were held to be a species of property, and the Commonwealth had to pay just terms because its bundle of rights in the land was enhanced when it cancelled the rights. As Gummow J explained: In the case of the Director [of National Parks and Wildlife], those advantages were the acquisition of the land freed from the rights of Newcrest to occupy and conduct mining operations thereon and, in the case of the Commonwealth, the minerals freed from the rights of Newcrest to mine them. In accordance with the authorities, that is sufficient derivation of an identifiable and measurable advantage to satisfy the constitutional requirement of an acquisition.

On the other hand, Commonwealth v WMC Resources Ltd [1998] HCA 8; (1998) 194 CLR 1 involved the rearrangement of offshore exploration rights after Australia and Indonesia concluded a treaty about the seabed lying off East Timor (when it was still a province of Indonesia). The majority of the Court held that while Australia has legislative sovereignty over the offshore waters and seabed, it does not hold “radical title” (in Brennan CJ’s words) or “an underlying proprietary estate or interest” (per Gaudron J) in the seabed, and was therefore gaining no interest when it cancelled WMCR’s interest. Even here, Gaudron J observed at [81] that: It may well be that if, after the discovery of petroleum, an exploration permit were extinguished or modified with the consequence that the right to apply for a lease or production licence was destroyed or otherwise negated, that would constitute an acquisition for the purposes of s 51(xxxi) of the Constitution.

In some cases, some of the Justices rely on one of these issues to find that compensation is not payable and some rely on the other one. When New South Wales reduced landowners’ allocations of water under artesian bore licences, the majority of the High Court held, in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140, that, whether or not para (xxxi) applied to joint Commonwealth–State legislation (see 22.110, above) it had not been breached here. French CJ, Gummow and Crennan JJ said, at [84]: “[T]he groundwater in the [groundwater system] was not the subject of private rights enjoyed by them. Rather … it was a natural resource, and the State always had the power to limit the volume of water to be taken from that resource”. Hayne, Kiefel and Bell JJ held, at [147], that “the bore licences that were cancelled were a species of property”, but that “there can be no acquisition of property unless some identifiable and measurable advantage is 10 And, as we shall see in Chapter 25, the fact that these rights have been granted under statute means that they are not among the rights that can only be determined by the independent judiciary; they can be cancelled either by an executive officer or a court.

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derived by another from, or in consequence of, the replacement of the plaintiffs’ licences or reduction of entitlements”. Heydon J, dissenting, held that the rights were property and that the State gained “a capacity to take more water itself or to issue more rights to others without damaging the goal of sustainability”. There may even be room for dissent about whether a right is created by statute. For example, we saw above that in Georgiadis the Court held that a chose in action against a Commonwealth authority could not be extinguished without just terms. McHugh J dissented because, he reasoned, the right to sue the Commonwealth had not existed at common law and had only been created by the Judiciary Act 1903 (Cth); it was therefore of statutory origin. The majority Justices held that the duty of care of all employers was derived from the common law and the Act (or the Constitution itself; see 11.70) had merely removed an immunity. In J T International SA v Commonwealth of Australia [2012] HCA 43; (2012) 250 CLR 1, the Tobacco Plain Packaging Act 2011 (Cth) prescribed a standard, deliberately ugly, form of packing for cigarettes and other tobacco products, and prohibited the use of trade marks on the packs (with a cautious qualification that if this amounted to an acquisition of the trade mark it did not apply). In response to the plaintiff ’s claim that their intellectual property in trade marks and the “getup” of packets had been acquired, the majority (Heydon J again dissenting) dismissed the claim. Their Honours agreed that the fact that the trade marks had been created by statute did not necessarily mean that they could always be abolished or reduced without compensation, but in this case neither the Commonwealth nor anyone else had acquired any proprietary right.

22.7 Side-stepping the effect of the paragraph; a “Historic Shipwrecks” clause [22.160] When the drafters of a Commonwealth law are aware that the law will be a law for the acquisition of property, they are of course generally careful to include a clause providing for the payment of just terms — and, as noted above in 22.20, if the clause is a little imprecise, the courts will assume that just terms were intended and can “supply procedure” to give effect to the presumed intention. However, if the drafters hope that the law is not acquiring property but fear that it might be, they sometimes include a clause, known as a “Historic Shipwrecks” clause after the Act in which one was first used,11 providing that the Commonwealth will pay compensation if the law’s operation in the absence of that provision would result in an acquisition of property otherwise than on just terms. This does not avoid the need to seek a ruling on the effect of the law, because the issue of whether there is an acquisition still has to be determined first. Therefore affected parties still tend, first, to argue that the law is invalid. In Wurridjal (22.40, above) no particular property of the plaintiffs had yet been acquired so it was 11 Historic Shipwrecks Act 1976 (Cth), s 21.

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Given a law under which somebody’s property rights are diminished, is it:

A Commonwealth law?

A state law enacted to comply with a requirement in a Commonwealth law?

YES

A state law, independent of a formal Commonwealth law?

YES

No need for just terms, YES Does the law impose a fine, but there must be penalty, or forfeiture? another head of power

YES No requirements for just terms

NO NO Does the law merely limit what the owner can do with the property?

YES

NO Is the law a genuine resolution of competing claims between parties?

YES

Is the law extinguishing NO rights without a corresponding acquisition (e.g. extinguishing statutory rights which were always susceptible to variation or extinction)?

Law must provide for just terms, AND there must be another head of power.

YES

No need for just terms, but there must be another head of power

Figure 22.1 A  cquisitions for which just terms are necessary, compared with other exactions, or modification or extinction of rights

sufficient for the Court to observe that the law was generally valid and that the Historic Shipwrecks clause would cut in if and when property was acquired. In Cunningham (22.150, above), the decrease in entitlements was not an acquisition to which para (xxxi) applied, so the law was valid and the Shipwrecks clause was unnecessary.

FURTHER READING Tom Allen, “The Acquisition of Property on Just Terms” (2000) 22 Sydney LR 351 Sean Brennan, “Case Note: Wurridjal v Commonwealth; The Northern Territory Intervention and Just Terms for the Acquisition of Property” (2009) 33 MULR 957 385

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Rosalind Dixon, “Overriding Guarantee of Just Terms or Supplementary Source of Power? Rethinking s 51 of the Constitution” (2005) 27 Sydney Law Review 638 Gavan Griffith and Geoffrey Kennett, “Constitutional Protection Against Uncompensated Expropriations of Property” (1998) AMPLA Yearbook 49 David Jackson QC and Stephen Lloyd, “Compulsory Acquisition of Property” (1998) AMPLA Yearbook 75 Duane Ostler, “Gain as Loss: The High Court’s Approach in Regulatory Acquisition Cases” (2015) 26 Bond LR 66

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CHAPTER 23

“Federal” Limitations on Commonwealth Power

23.1 Context and overview [23.10] The theme of this book is that the Constitution both grants powers and limits them. Some of the limits are there to protect what are now seen as basic human rights. Ironically, except for the guarantee of just terms just discussed in Chapter 21, the express limits of this nature are fairly weak. They will be discussed in the next chapter, which is one of the shorter ones in the book. The stronger protections of human rights are found in implications drawn from the references to election by the people in ss 7 and 24 (see Chapters 14 and 15) and in the separation of powers (see Chapters 25, 26 and 34). However, there are also some express limitations on the Commonwealth’s power which are included, in the words of the United States Constitution, “in order to form a more perfect Union”. That is, without being concerned about generally protecting specific rights of individuals, they were intended to ensure that whatever rights people or businesses do have, they can enjoy them equally wherever they are in the Commonwealth. In this chapter, we discuss the main limits of this kind that affect the Commonwealth. They refer (with a degree of repetition) to the need for non-discrimination between the States in laws of taxation (including absolute uniformity in bounties and customs duties) and non-preference to a State in laws of trade, commerce and revenue. These limits are contained in paras 51(ii) and (iii) and ss 88 and 99, and are discussed in 23.20–23.50 below. There is also a weak prohibition against the Commonwealth abridging “the rights of the States in respect to rivers” in s 100, which is mentioned below in 23.60. There is also a reciprocal limit in s 114: the Commonwealth and States cannot tax each other’s property. This is discussed in Chapter 33, along with implied limits on the powers of Commonwealth and States to affect each other’s power to function within the federation. 387

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Other limits of a unity-promoting nature that apply, almost wholly, to the States are discussed in Chapters 29–31. The fact that they could, in theory, also apply to the Commonwealth is briefly discussed below in sections 23.70–23.80.

23.2 Laws of revenue or trade and commerce not to discriminate between States or parts of States [23.20] Though there may have been a general assumption at the Constitutional Conventions that the laws made by the new Commonwealth Parliament would be uniform laws for the whole country,1 uniformity or something close to it is only insisted upon in a few cases. Section 88 demanded that uniform duties of customs were to be imposed within two years after the establishment of the Commonwealth and para 51(iii) gives the power to grant “bounties on the production or export of goods” but requires that, if granted, they “shall be uniform throughout the Commonwealth”. In Deputy Federal Commissioner of Taxation v W R Moran Pty Ltd [1939] HCA 27; (1939) 61 CLR 735 (the Flour Tax case, the facts of which are explained below) the High Court held that a grant to a State on condition that it be passed on to wheat growers was not a bounty. True bounties have now been phased out and all remaining Bounty Acts have been repealed; though the Commonwealth still gives forms of industry assistance that are less directly related to the quantity of production, these are not subject to the qualification in para (iii). Para 51(ii) stops short of demanding absolute uniformity, but it does qualify the grant of power as follows: “laws with respect to … taxation, but so as not to discriminate between States or parts of States”. Then for good measure the drafters threw in s 99 which provides: The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof.

This is broader in one way than para 51(ii); as well as the obvious extension to laws of trade and commerce, “revenue” covers taxation laws enacted under para 52(i) as well as under 51(ii) (see Permanent Trustee, below) and arguably extends to all laws imposing fees.2 On the other hand, to “give a preference” is more specific than to “discriminate”; discriminatory laws might just treat people or areas differently, while a preference requires that some person or area is getting better treatment (though to discriminate against someone is to give others a preference at the same time). As Latham CJ said in Elliott v Commonwealth [1936] HCA 7; (1936) 54 CLR 657 at 668: “Preference necessarily 1 For example, it was taken utterly for granted that the federal voting laws would prescribe a uniform qualification for voters in federal elections; there are 13 references to the “uniform franchise” in the Convention Debates, and yet nothing in the text expressly demands it. 2 John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth, Angus & Robertson, 1901 (reprinted Legal Books 1976), p 877.

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involves discrimination or lack of uniformity, but discrimination or lack of uniformity does not necessarily involve preference”. Elliott was challenging regulations that applied only in five specific ports under s 99, and one of the reasons given (eg, by Latham CJ and McTiernan J) for the dismissal of his action was that it was difficult to say that the ports had been given a “preference” rather than merely different treatment (other reasons will be noted below).

Prohibition only affects specific heads of power [23.30] “Laws or regulations of trade or commerce”, as the phrase appears in s 99 (and indeed in all the sections from 98–102), has been held to refer only to laws specifically supported by the para 51(i) overseas and interstate trade and commerce power. In Morgan v Commonwealth [1947] HCA 6; (1947) 74 CLR 421 rationing and price controls imposed under the defence power (and still in force in 1947) were held not to be subject to s 99, even though they could have been described as “laws of trade or commerce” in a broad sense. Although, as noted above, “laws or regulations of … revenue” is wider than “laws with respect to taxation”, it still has a limited scope. It does not apply to laws under which the Commonwealth spends its revenue, either directly or by making grants to the States under s 96. Indeed one of the points of the presence of the latter section in the Constitution is precisely to empower the Commonwealth to make unequal grants, to compensate States with a low revenue base — though it must be conceded that this can be exploited to produce a result that looks very like the imposition of a discriminatory tax. In the Flour Tax case the Commonwealth had imposed a tax on flour millers, to be used to subsidise wheat growing,3 but since very little wheat, and no milling wheat, was grown in Tasmania, the amount collected in Tasmania was granted to the State government under s 96, and was refunded to Tasmanian millers under a Tasmanian Act. Some master bakers from Sydney challenged the scheme, arguing that in effect it was imposing a discriminatory tax (and, as noted above, granting a bounty). The Court held, Evatt J dissenting, that the Acts were valid. As to the argument that the Acts were part of a scheme to evade the prohibition in the limit, Latham CJ noted: If the statutes carry out the scheme, their validity is determined by what they in fact do and the prearranged scheme is irrelevant. If the statutes do not carry out the scheme, their validity is still determined by what the statutes in fact do and again the scheme is irrelevant.

Both points — that grants laws are not subject to para 51(ii) and s 99, and that all Acts in a “scheme” do not fall if one is invalid4 — were confirmed in the First Uniform 3 It was actually part of a stabilization scheme; when the market price of wheat rose, wheat growers would be taxed and the millers would be subsidized. 4 On the other hand, if Acts are part of a “scheme”, the courts should look at all the Acts together for the purpose of interpreting the words and phrases in any of them; Sweeney v Fitzhardinge (1906) 4 CLR 716 per Griffith CJ at 726.

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Tax case (South Australia v Commonwealth [1942] HCA 14; (1942) 65 CLR 373), and again in a very short judgment in Grasstree Poultry Enterprises Pty Ltd v Bycroft [1969] HCA 57; (1969) 119 CLR 390.

What sort of discriminations or preferences are prohibited? [23.40] The older cases were based on reading the prohibitions literally — a “discrimination” or “preference” was any difference on the face of the law. This meant that different rules for different States were prohibited, while a uniform rule whose operation and effect differed between States was constitutional. Though this seemed to be applying the fairly obvious meaning of the words, it had some odd consequences. A law treating States differently could be ruled invalid even if there was a perfectly logical reason for the different treatment; for example, in James v Commonwealth [1928] HCA 45; (1928) 41 CLR 442 the Dried Fruits Act 1928 (Cth) was declared invalid because licences for carrying dried fruits interstate could only be obtained from a prescribed State authority, and none were prescribed for Queensland and Tasmania for the perfectly understandable reason that dried fruits were not produced in those States! And though you might expect this approach to produce an easy and unambiguous solution to each case, it turned out to be difficult to apply in practice. For example, in Conroy v Carter [1968] HCA 39; (1968) 118 CLR 90, a Commonwealth Act imposed a levy on the keeping of hens for commercial purposes, and provided that the Commonwealth could enter into an arrangement with a State for the collection of the levy by the State’s Egg Board. While such an arrangement was in force, the Egg Board could retain any unpaid levy out of whatever money the Board owed to the producer. This, the defendant argued, put producers in States where an agreement was in place at “an additional substantial disadvantage” compared to producers in other States. The Court split 3:3 as to whether this was a case of the law applying a different rule to different States or a uniform law whose effect differed because of different circumstances in the States. Those who held the provision invalid held it to be severable, so it did not affect the outcome of the case, but it showed that the apparently straightforward literal approach did not produce certainty of outcome. The High Court adopted a more purposive approach to the interpretation of the sections, and to Acts supposedly breaching them, in Permanent Trustee Australia Ltd v Commissioner of State Revenue [2004] HCA 53; (2004) 220 CLR 388. As noted in 21.110, this involved a challenge to the Commonwealth Places (Mirror Taxes) Act 1998 (Cth) which applied the tax laws of the relevant State to Commonwealth places within the State. This kept the taxes uniform across all places within any one State, but meant that they could differ as between Commonwealth places in different States. Gleeson CJ and Gummow, Hayne, Callinan and Heydon JJ noted that the taxes had been imposed under para 52(i) rather than 51(ii), but s 99 still applied. They noted that in other recent cases on the notion of discrimination in the Constitution, such as Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461 (discussed in Chapter 31), the Court 390

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had adopted the principles developed in anti-discrimination law.5 These principles emphasise that unlawful discrimination lies in the unequal treatment of equals or the equal treatment of those who are not equals; it is not just a matter of treating cases differently but of treating them differently for an improper reason. At [91] their Honours noted that in this case, “[t]he scheme of the Mirror Taxes Act is to treat as relevantly of the same character the whole of the geographic area of each State, including those portions which are Commonwealth places”, and held that: “The differential treatment and unequal outcome that is involved here is the product of distinctions that are appropriate and adapted to a proper objective”. Their Honours did not spell out what sort of objective would be improper, but it seems that the reason for the inclusion of such prohibitions in both the United States and Australian Constitutions is to prevent the States with a majority in the House of Representatives from “ganging up” on the other States. Quick and Garran cite an American text that refers to the intention of the framers of the Constitution “to protect the freedom of commerce from the selfish interference of a State, through its influence in the national Government”.6 Since the fear of the drafters that Members of Parliament would divide on State lines7 has totally failed to come true, the making of laws or regulations that breach the provisions as currently interpreted seems an unlikely event. Laws that treat States or parts of States differently will, one might expect, continue to be enacted only when there is a proper reason for discrimination or preference. If that is so, they will be valid. In two cases decided since Permanent Trustee, the Court did not even need to consider the “adapted to a proper objective” element; in the earlier language the laws were simply applying a uniform rule whose operation and effect differed between States. In Fortescue Metals Group Ltd v Commonwealth [2013] HCA 34; (2013) 250 CLR 548, a mining company challenged the Minerals Resource Rent Tax (MRRT) imposed by a scheme of Acts in 2012. The tax was imposed on “super-profits” of mining companies, after allowing an adjustment for royalties paid to the States. As the level of royalties differed between States, the plaintiff argued that the tax effectively discriminated between States. The Court unanimously rejected this argument. As Kiefel J explained at [202]: [T]he difference must be produced by the Commonwealth law itself and by reference to [the relevant] geographical situation. There may not be discrimination where the difference results from the provisions of a State law. Section 51(ii) does not prohibit a taxation law from operating differentially in all respects. It does not require that a taxation law control the effect of other, external, factors which may be productive of a difference. 5 Amelia Simpson calls this the Court’s “universal conception” of discrimination — see the article listed in Further Reading. 6 Quick & Garran, n 2 above, p 879. 7 Several Members realised that this fear was illusory, though only John M Macrossan and Alfred Deakin have earned fame for it. Macrossan predicted that senators would vote as members of parties rather than representatives of States on 17 March 1891, only 13 days before he died. (Debates, National Australian Convention, Melbourne, 1891). Similarly, Deakin predicted that contests in Parliament would be between “the representatives of the states according to the political principles upon which they are returned” (Debates, Australasian Federation Conference, Sydney, 15 September 1897, p 584).

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Queensland Nickel Pty Ltd v Commonwealth [2015] HCA 12; (2015) 255 CLR 252 involved a challenge to the “carbon tax” imposed by a series of “Clean Energy” Acts in 2011. In this case, the plaintiff ’s argument was that the effect of the tax varied between States because the different production processes used at different smelters produced different amount of emissions. The tax was, of course, held valid by a unanimous Court — the choice of different processes depended on the feed stock, when the smelter was built, and discretionary choices by the owners, and had little or nothing to do with what State the smelter was located in. (Having failed abjectly in the High Court, Fortescue and Queensland Nickel succeeded in the political sphere — both the carbon tax and the MRRT were repealed in 2014.)

“Parts of States”, or mere localities [23.50] Elliott v Commonwealth [1936] HCA 7; (1936) 54 CLR 657 concerned regulations under the Transport Act 1928 (Cth) (the same Act that had generated the Dignan cases mentioned in 12.40) which imposed special licensing requirements for seamen engaged at five specific ports: Sydney, Melbourne, Brisbane, Newcastle and Port Adelaide. It seems that these were the ports where the unions were seen by the conservative government as in the most need of control. As noted above, several justices held that it was hard to see which ports were being given a “preference”, though Evatt J had no doubt that the employers at the five ports were being given preferential treatment. The majority also held that if there were any preference, it was not being given to States or parts of States. Latham CJ’s reasons seemed to be based on a mere verbal distinction: “In the regulations in question the application of the regulations depends upon the selection of ports as ports and not of States or parts of States as such”. However, Rich and Starke JJ foreshadowed the more purposive approach taken in Permanent Trustee. Rich J said, at 678, “the imposition is conditioned upon what is considered the necessity of legislative or executive action in particular localities” and Starke J said, at 680: Special legislation may be required for some localities and special rules for various occupations. In some ports the conditions may be such as to require some local regulation of labour whilst in others regulation may be wholly unnecessary. But this is not a preference of one locality over another, or of one State or part of a State over another: it is a regulation required for the circumstances of particular ports and the labour conditions of those ports.

The decision in Permanent Trustee would seem to confirm this approach; a law that applies to a locality, or even to a district that we would intuitively call a “part of a State”, will not be invalid if there is some reason other than mere discrimination, in the pejorative sense, for treating it differently. One long-lasting apparent paradox may be resolved by the more modern approach. The income tax system has long included a “zone allowance”, now called “zone offset”, that reduces the tax payable by residents of remote areas. Zone A includes much of the far north of the continent, and the boundaries of Zone B are drawn very roughly along lines of equal rainfall (isohyets), and bear no relation to State boundaries. In 392

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Federal Commissioner of Taxation v Clyne [1958] HCA 10; (1958) 100 CLR 246 anti-tax campaigner Peter Clyne challenged the allowance on the basis that it discriminated between parts of States. Dixon CJ, with the concurrence of all of the Justices except Webb J, doubted the correctness of Elliott. However, there was no formal order declaring the allowance to be invalid. Clyne was only challenging it in an attempt to argue that it was inseverable and therefore the whole Act was invalid, and the court dismissed his argument on the basis that even if the amending Act which introduced the allowance was invalid, the rest of the Act — particularly as it applied to him — was still valid. Therefore the Parliament did nothing to repeal the provisions and the Tax Office continued to apply them. It seems that the offset would now be seen as valid, as it is provided as a compensation for living in harsh conditions and there is no indication that the existence of the States had any motivating effect on the minds of those who drew the boundaries.

23.3 Commonwealth laws not to abridge States’ “rights” to waters of rivers [23.60] Section 100 of the Constitution provides: The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation.

This section — the one and only reference to States’ “rights” in the Constitution — was the result of a fortnight’s passionate debate between South Australia and the other Murray-Darling States, especially New South Wales. At the time the Constitution was drafted, a good deal of trade was still being carried by paddle-steamers along the Murray, and it was taken for granted that in so far as this was interstate trade, the Commonwealth could regulate it (this is reinforced by s 98). The South Australians feared that if the Commonwealth legislated to improve the navigability of the rivers, it might impede the use of the rivers for irrigation and conservation, so eventually the above section was agreed upon. Even as the Constitution was being drafted, the use of railways was growing at the expense of the Murray steamers, and after 1915 the present weirs controlling the flow of the Murray were built, bringing the river trade almost to a halt, though there is a lock at each weir allowing the passage of some craft. The possibility that the Commonwealth would enact “laws of trade and commerce” that affected the flow of the Murray shrank to nil. South Australia should have sought a guarantee against the other Murray-Darling States, not one against the Commonwealth, for its fair share of the water. The section was only mentioned in passing in cases in the 20th century. Morgan v Commonwealth, above 23.30, held that, like the similar reference in s 99, the reference to laws of trade and commerce in s 100 refers only to Commonwealth laws enacted under para 51(i). The majority Justices in the Tasmanian Dam case (Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1) confirmed this and held that the law under challenge 393

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was not a law with respect to trade and commerce with other countries or among the States. Now that the states have established statutory schemes for trading in water rights, and the Commonwealth has enacted the Water Act 2007 (Cth), partly relying on the interstate trade and commerce power, there is a possibility that the section might regain some relevance though it still seems that the main threat to South Australia’s access to water will come from the actions of New South Wales and Victoria rather than the Commonwealth. The only case brought under s 100 so far with respect to the new water schemes was Arnold v Minister Administering the Water Management Act 2000 [2010] HCA 3; (2010) 240 CLR 242. This involved a challenge to the reduction of the appellant’s groundwater rights under an intergovernmental agreement. The Court held that, obviously enough, artesian waters are not the waters of rivers, and (Heydon J dissenting) that the appellant had no right to those waters, but a mere liberty given by existing bore licences. French CJ confirmed that Morgan was correct, and the rest of the Court held that they did not need to decide that issue. If a case arises that calls for more serious analysis, the Court will have the daunting task of translating the vague concept of a “right” to “the reasonable use of the waters of rivers” — which is really no more than a political slogan — into something with a concrete legal meaning.

23.4 Theoretical application of freedom of interstate trade and commerce, and non-discrimination on basis of State residence [23.70] Sections 92 and 117 of the Constitution respectively provide, in simplified form, that trade and commerce between the States shall be absolutely free, and that a resident of a State shall not be subject to a disability or discrimination in another State. In theory, they apply to the Commonwealth Parliament and could be used to strike down its laws. However, the Commonwealth Parliament is not likely in the usual course of events to enact laws that contravene the sections. The State Parliaments have an incentive to give their residents special privileges; they are elected by them. The Commonwealth Parliament has no such incentive. In the joint judgment in Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360, their Honours discussed the typical legislation enacted by the Commonwealth under para 51(i) and said: There is far less likelihood that such regulatory legislation will properly be characterized as imposing a discriminatory burden on the trade and commerce with which it deals than is the case with State legislation which singles out inter-State trade and commerce for particular treatment.

So ss 117 and 92 will be discussed as provisions restricting the power of the States in Chapters 29 and 30. However, it should not be forgotten that if the Commonwealth Parliament ceased to legislate as the Parliament of the nation and instead made laws creating barriers between the States, the sections could come into play against it. 394

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23.5 Freedom of interstate intercourse [23.80] There is one relevant s 92 case where a Commonwealth law was struck down. It involved the “freedom of intercourse” part of the section. In the exercise of the “secondary aspect” of the defence power in World War II (see 19.100), the Commonwealth made the Restriction of Interstate Passenger Transport Order which provided that “no person shall without a permit travel by rail or by commercial passenger vehicle … from any State in the Commonwealth to any other State therein”. In Gratwick v Johnson [1945] HCA 7; (1945) 70 CLR 1, the High Court held that even the defence power in time of war was subject to s 92, and that the order was invalid because it imposed a barrier to inter-State travelling “as distinguished from other travelling, because, and only because, it is inter-State”. It is hard to imagine that the Commonwealth would make laws in peacetime that single out interstate travel or communication, but if it did, it must be remembered that s 92 would apply.

FURTHER READING Paul Kildea and George Williams, “The Constitution and the Management of Water in Australia’s Rivers” (2010) 32 Syd LR 595 Amelia Simpson, “The High Court’s Conception of Discrimination: Origins, Applications, and Implications” (2007) 29 Sydney Law Review 263

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CHAPTER 24

Express, but Weak, Protection of Human Rights by the Constitution

24.1 Context and overview [24.10] Except for Andrew Inglis Clark, the drafters, who nearly all had a background in State politics, had the typical politician’s complacency about the general benevolence of parliaments, and resisted the idea of including a Bill of Rights in the Constitution. However, they did include a few specific guarantees, though apart from the guarantee of just terms (Chapter 22), they are mostly drafted in about as weak a form as possible. Three are discussed here: n

n

n

Section 41 guarantees the right to vote to anyone who is on a State electoral roll, but it has been interpreted to apply only to people who were on the State roll before the first Commonwealth electoral law. Section 80 guarantees the right to trial by jury for anyone tried on indictment, but the High Court has consistently held that this does not prevent the Parliament from creating summary offences with severe penalties. However, when an indictable offence is created, defendants cannot opt out of jury trial and majority verdicts cannot be accepted. Section 116 protects four specific aspects of freedom of religion from interference by Commonwealth law.

24.2 The apparent right to vote, if on a State roll [24.20] Section 41 of the Constitution provides: No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any

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law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.

Though this looks like a guarantee that the Commonwealth franchise will have to keep up with the most progressive State voting laws, the High Court has twice interpreted it restrictively. The ruling in King v Jones [1972] HCA 44; (1972) 128 CLR 221 that the word “adult” was fixed to its meaning in 1901 was mentioned in 8.40. In R v Pearson; Ex parte Sipka [1983] HCA 6; (1983) 152 CLR 254 the Court, over Murphy J’s dissent, held that the section was only intended to apply to those who had acquired a right to vote before the first Commonwealth Franchise Act was enacted in 1902.1 There is evidence, cited in the judgment of Gibbs CJ and Mason and Wilson JJ at 262, that this was indeed the intention of the drafters, but the decision runs counter to two of the usual principles of statutory interpretation: that a statute “speaks continuously”,2 and secondary (“extrinsic”) materials showing the drafters’ intent are only consulted if the words are unclear or ambiguous.3 However, the more recent cases on the right to vote, discussed above in 15.50–15.60, have provided a more thorough-going guarantee of the right than could possibly be found in s 41. It was rendered irrelevant by interpretation; it is now irrelevant because something stronger has been found.

24.3 Jury trial [24.30] Section 80 of the Constitution provides: The trial on indictment of any offence against any law of the Commonwealth shall be by jury (… and procedural rules about the place of trial follow).

What could this mean? Crimes are traditionally divided into summary offences, tried by a magistrate alone (despite what Magna Carta seems to promise), and indictable offences for which there is first a committal hearing at which a magistrate decides if there is sufficient evidence and then a trial on indictment before a jury. In most States these days, offences for which the maximum penalty is more than two years are generally indictable offences, though there are variations. It seems that in most States in the 1890s the expectation was that offences attracting a penalty of more than one year would be indictable; two of the delegates to the Convention expressed alarm when Mr Isaacs 1 See Michael Coper, “The Right to Vote: Centenarians Rejoice”, in Encounters with the Australian Constitution, CCH Australia, 1988. 2 For example, Lake Macquarie Shire Council v Aberdare County Council [1970] HCA 32; (1970) 123 CLR 327. 3 For example, Commissioner for Prices & Consumer Affairs (SA) v Charles Moore (Aust) Ltd [1977] HCA 38; (1977) 139 CLR 449 and for the interpretation of Commonwealth Acts now see Acts Interpretation Act 1901 (Cth), s 15AB.

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referred to a magistrate being able to impose “12 months or two years’ imprisonment”.4 At the Convention, a guarantee of jury trial was vigorously supported by some delegates, and opposed by others who wanted the new Parliament to have discretion as to the creation of summary offences. In the end, a form of words was settled upon that seems to be circular: if Parliament calls an offence an indictable offence, there must be trial by jury, which is, after all, the traditional result of calling something an indictable offence. After Mr Isaacs commented, “I must say that I do not see much effect in the clause as it stands”,5 it was adopted without a vote; those who saw no need for it were convinced that it was harmless. It presents the High Court with a choice; to read the section literally, and conclude that it is circular and ineffective, or to try to apply the presumption of interpretation that provisions of a statute should be read so as to have some effect.6

Narrow interpretation of the apparent guarantee [24.40] Since the Commonwealth Parliament has never given into the temptation offered by the section to create summary offences with lengthy gaol terms7 (except in the case of courts martial, which raise different issues) the Court has not had to address the above choice head on. In cases where s 80 has arisen more incidentally, there has been a consistent pattern of a majority accepting that the “guarantee” of jury trial is ineffective. In R v Archdall and Roskruge; Ex parte Carrigan [1928] HCA 18; (1928) 41 CLR 128, the main issue was whether an offence was a summary or indictable offence. Section 80 was discussed obiter and Higgins J said, “if there be an indictment, there must be a jury; but there is nothing to compel procedure by indictment”. This has been cited in majority judgments ever since. In Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264, a provision allowing a judge, after conviction of the defendant by a jury, to decide further matters of fact when considering the sentence to be imposed, was held valid by 4:2. Gibbs CJ and Wilson and Dawson JJ remarked that “the fact that s 80 has been given an interpretation which deprives it of much substantial effect provides a reason for refusing to import into the section restrictions on the legislative power which it does not express”. The decision was confirmed by 6:1 in Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248. However, there has also been a pattern of minority judgments trying to give the section some force. In R v Federal Court of Bankruptcy; Ex parte Lowenstein [1938] 4 Debates, National Australasian Convention, Melbourne, 31 January 1898, p 352. 5 Debates, Melbourne, 4 March 1898, p 1895. 6 This principle is often referred to in Latin, ut res magis valeat quam pereat, meaning that the thing should rather flourish than perish. It is often used to justify interpreting a provision of an Act to keep it constitutional, or interpreting delegated legislation to keep it within power (eg, in Airservices Australia v Canadian Airlines [1999] HCA 62; (1999) 202 CLR 133 per McHugh and Gummow JJ); here the question is one of its application to the Constitution itself. 7 Indeed the Crimes Act 1914 (Cth) provides a general rule in s 4G: “Offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears”.

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HCA 10; (1938) 59 CLR 556 Dixon and Evatt JJ, jointly, declared that “the Constitution is not to be mocked” and suggested that one of the elements of the concept of a prosecution upon indictment would be “the liability of the offender to a term of imprisonment or to some graver form of punishment”. In Li Chia Hsing v Rankin [1978] HCA 56; (1978) 141 CLR 182 Murphy J was inclined, at 201–2, to agree with the above argument. In Kingswell, Deane J observed at [47] that: “The guarantee of s 80 of the Constitution was not the mere expression of some casual preference for one form of criminal trial. It reflected a deep-seated conviction of free men and women about the way in which justice should be administered in criminal cases”. He recognised at [60] that: … the framers of the Constitution used the words “on indictment” in s 80 to ensure that the guarantee of trial by jury was not applicable to the type or class of less serious offences which were generally seen, in the last decade of the nineteenth century, as appropriate to be dealt with by justices or magistrates

and observed that “a maximum term of 12 months’ imprisonment … would seem to be the ordinary reference point for determining whether an offence is capable of being properly seen as fit to be prosecuted summarily”. In Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386, and in Cheng, Kirby J agreed with Deane J‘s interpretation. However, in Cheng, McHugh J found the fact that over the years the dissenting judges had expressed different ideas as to the minimum sentence necessary for an indictable offence a further reason, apart from the plain meaning of the words, for affirming the traditional approach. The situation in which defendants can face a lengthier sentence without being tried by jury is that of a court martial. In Re Tracey; Ex parte Ryan and Re Tyler; Ex parte Foley [1994] HCA 25; (1994) 181 CLR 18, the main focus of the argument was on whether the jurisdiction of courts martial should continue to be seen as an exception to the requirement that judges should have life tenure (see Chapter 25), but there were brief comments in the majority judgments to the effect that jury trial was not necessary. Again Kirby J dissented. In White v Director of Military Prosecutions [2007] HCA 29; (2007) 231 CLR 570, his Honour repeated his general objection to the “tautological view” of s 80, and argued that jury trial should be available even for military offences. He observed at [167] that: “When Australian judges and lawyers become more accustomed to reasoning by reference to fundamental rights, they will see the truth of this proposition more clearly”.

Strict interpretation where the law has created an indictable offence [24.50] In contrast to the High Court’s acceptance of the ultimate ineffectuality of s 80 in providing for a jury trial, the Court has held that where a Commonwealth law does create an indictable offence, the trial must be by jury, and that some of the historic attributes of the notion of jury trial are beyond the Parliament’s power to change. The cases have mostly arisen because s 68 of the Judiciary Act 1903 (Cth) provides that trials of federal 400

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offences are to be heard by State courts and that the procedural laws of the States apply, though the jurisdiction is expressly made “subject to section 80 of the Constitution”. Some of the States have amended their laws about jury trial to provide for trial by judge alone at the election of the defendant, majority verdicts, or reserve jurors. Questions have arisen as to the compatibility of these provisions with s 80 when federal offences are being tried in State courts. In Brown v The Queen [1986] HCA 11; (1986) 160 CLR 171, the High Court held by 3:2 that the South Australian provision for waiver of jury trial could not apply in a trial of a federal offence. At 201, Deane J quoted from his dissent in Kingswell that s 80 reflected “a deep-seated conviction of free men and women about the way in which justice should be administered in criminal cases” and claimed that the “constitutional guarantee is … for the benefit of the community as a whole as well as for the benefit of the particular accused”. Gibbs J, in dissent, observed that: It would give a most capricious operation to s 80 if it were held that that section requires the trial to be by jury only when the prosecution in fact proceeds on indictment but nevertheless forces the accused person to accept trial by jury, notwithstanding that there exists an alternative procedure which the accused would prefer to adopt.

The decision in Brown was challenged in Alqudsi v The Queen [2016] HCA 24; (2016) 332 ALR 20. By a 6:1 majority, the Court refused to overrule or distinguish it. The majority noted that jury trial is not just a right of the defendant, it has an important role in the structure of government, amounting, in Gageler J’s words at [140], to a “constitutional guarantee of democratic participation”. French CJ dissented; at [75] his Honour recognised a State interest in jury trial but held that “the mandate in s 80 can accommodate a qualification which recognises both its institutional and its rights protective dimensions”. He followed Brown in saying that the accused did not have a simple right to demand trial by judge alone, but suggested that when the accused and prosecutor agreed, or when the accused applied for trial by a judge and the judge regarded such a trial as in the interests of justice, both “dimensions” would be respected. In Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541, the Court unanimously held that a South Australian provision for a majority verdict, agreed to by not less than ten jurors, could not apply to trials of federal offences. Their Honours argued that unanimity was required by history (though they conceded that other historical attributes of jury trial such as property qualifications and the exclusion of women were now inappropriate), and that it helped to implement the “fundamental thesis of the common law” that guilt should be proved beyond reasonable doubt (though the reason that States have introduced majority verdicts is the fear that “maverick” jurors will acquit because of quite unreasonable doubts). However, in other cases, the Court has accepted that conviction by a jury of less than 12 is permissible where jurors have been discharged during the trial: Brownlee v The Queen [2001] HCA 36; (2001) 207 CLR 278. The application of State laws to federal offences that try to guard against a jury falling below 12 members, either by providing for reserve jurors who will take part in the deliberations 401

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only if others are discharged, or by having 15 jurors attend the trial and choosing the final 12 by ballot before they deliberate, has also been approved in Fittock v The Queen [2003] HCA 19; (2003) 217 CLR 508 and Ng v The Queen [2003] HCA 20; (2003) 217 CLR 521 respectively. Though an appeal against acquittal by a jury is quite obnoxious to the concept of jury trial, a directed verdict of acquittal is different. As the High Court explained in R v LK; R v RK [2010] HCA 17; (2010) 241 CLR 177 at [26], a direction to acquit reflects the judge’s view that, as a matter of law, a conviction is not open. Therefore, their Honours reasoned, in a case of directed acquittal, the jury has not reached a decision on the facts. Therefore they held (at [40]) that a State law allowing an appeal against such an acquittal can be applied to federal cases without offending against s 80.

24.4 Freedom to practise (or not practise) religion [24.60] Section 116 imposes four specific limits on the Commonwealth for the protection of religious freedom. Because of drafting amendments during the Conventions, it is oddly placed in Chapter 5, headed “The States”, but it does not apply to the States. It is worth breaking it into dot points to emphasise that there are four specific aspects of the protection. Section 116 states that the Commonwealth shall not make any law: n n n n

for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

The section is not a general prohibition of discrimination on religious grounds, nor does it enforce a strict separation of church and State. It is suggested that the above heading sums it up fairly well; the section guarantees a general freedom of religious bodies to choose their beliefs, practise their rites, and so on — or not to have to follow any religious prescriptions. As noted below, however, it does not allow persons exemption from the ordinary restrictions of the law on religious or supposedly religious grounds. Individuals and religious bodies get further protection against direct Commonwealth interference with their beliefs and activities from the fact that there is simply no power relating to religion found among the Commonwealth’s enumerated powers. Quick and Garran therefore found the inclusion of this section odd; they remarked, at 952, as to the American precedent for the first and third clauses, that “no … reasons have been stated why such a negation of power which had never been granted and which, therefore, could never be legally exercised, was introduced into the instrument of Government”. The few cases therefore involve situations where the Commonwealth’s use of another power has impacted on one of the four prohibitions. 402

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Definition of “religion” [24.70] In Adelaide Company of Jehovah’s Witnesses Incorporated v Commonwealth [1943] HCA 12; (1943) 67 CLR 116, Latham CJ observed: There are those who regard religion as consisting principally in a system of beliefs or statement of doctrine. … Others are more inclined to regard religion as prescribing a code of conduct. … There are others who pay greater attention to religion as involving some prescribed form of ritual or religious observance. Many religious conflicts have been concerned with matters of ritual and observance. Section 116 must be regarded as operating in relation to all these aspects of religion, irrespective of varying opinions in the community as to the truth of particular religious doctrines, as to the goodness of conduct prescribed by a particular religion, or as to the propriety of any particular religious observance.

The Jehovah’s Witnesses, the Court held, were clearly a religious group, professing, as Williams J said, “primitive Christian beliefs”. The question also arose in the context of tax exemptions for religious bodies under State legislation in Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) [1983] HCA 40; (1983) 154 CLR 120 (Scientology case) in which, applying similar principles to those stated by Latham CJ above, the Court held that Scientology was a religion.

Laws “for” a prohibited purpose [24.80] As the lead-in words for the first three phrases are, “The Commonwealth shall not make any law …”, it seems that the first three prohibitions apply only to legislation and not to administrative actions. Barwick CJ confirmed this at 581 in Attorney-General (Vic); Ex rel Black v Commonwealth [1981] HCA 2; (1981) 146 CLR 559 (DOGS case), but added: But, if … administration is within the ambit of the authority conferred by the statute, and does amount to the establishment of a religion, the statute which supports it will most probably be a statute for establishing a religion and therefore void as offending s 116.

As to the prohibition of laws “for” the three purposes, it seems clear that the prohibited outcome must be at least one of the apparent purposes of the law. In the Jehovah’s Witnesses case at 132, Latham CJ drew a distinction between “a law to protect the existence of the community” and one “for prohibiting the free exercise of any religion” and suggested that: “The word ‘for’ shows that the purpose of the legislation in question may properly be taken into account”. In the DOGS case at 579, Barwick CJ suggested, at least in the context of the establishment clause, that the prohibited purpose must be the single purpose of the law. In Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 (Stolen Generations case), where the argument was based on the free exercise clause, several Justices referred to the need for the law to have “the purpose” 403

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of achieving one of the prohibited objects (eg Brennan CJ at 86, Gummow J at 160). That could suggest that the prohibited purpose had to be the sole purpose, but Dawson J said at 60 “[i]t does not follow that there is only one purpose to be discerned in a law; there may be more than one” and Gaudron J said the terms of s 116 “are sufficiently wide to encompass any law which has a proscribed purpose” (underlining in original). In any case, the law under challenge in Kruger had had the purpose of promoting the welfare of the children who were taken into custody, though the purpose had been implemented in a clumsy and harmful way. Gaudron J held that more evidence would be needed to determine whether the law contravened s 116, but the other Justices held that there was clearly no purpose of interfering with the children’s, or their parents’, exercise of their religion.

Establishment of religion [24.90] This clause was copied from the United States Constitution with small verbal changes; the First Amendment says, “Congress shall make no law respecting an establishment of religion”, which has been interpreted as setting up “a wall of separation between church and state”.8 Section 116 provides “[t]he Commonwealth shall not make any law for establishing any religion”, which may seem to be aimed at the “establishment” of any particular religion, rather than at the notion of religion itself. As the following cases show, this does not prevent the Commonwealth from recognising and even assisting religions. As discussed in 21.160, Attorney-General (Vic); Ex rel Black v Commonwealth [1981] HCA 2; (1981) 146 CLR 559 (DOGS case) involved a challenge to the granting of State aid to Church schools, via s 96 grants to the States. The DOGS group argued that the grants amounted to an establishment of religion. The court agreed that even the State grants power was subject to s 116, but by a 6:1 majority (Murphy J dissenting) the Court held that the grants did not establish any religion. Barwick CJ held, at 582, that both in 1901 and at the time of the case: … establishing a religion involves the entrenchment of a religion as a feature of and identified with the body politic, in this instance, the Commonwealth. It involves the identification of the religion with the civil authority so as to involve the citizen in a duty to maintain it and the obligation of, in this case, the Commonwealth to patronize, protect and promote the established religion. In other words, establishing a religion involves its adoption as an institution of the Commonwealth, part of the Commonwealth “establishment”.

Merely paying money to schools, some of which were run by religious bodies, was not establishing religion even if it could be shown that the buildings built with the money were used on occasions for some religious activity (at 583). Gibbs J remarked at 604 that it may be a question of degree whether a law was one for establishing a religion, but that this law did not have “the purpose or effect of setting up any religion or religious body as a state religion or a state church, even for limited purposes”. 8 For example, Everson v Board of Education 330 US 1 (1947). The phrase comes from the writings of Thomas Jefferson.

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In Nelson v Fish [1990] FCA 28; (1990) 21 FCR 430, Nelson, who was the “High Priest” of his own religion, challenged the provisions of the Marriage Act 1961 (Cth) that provided that marriage could be conducted by registered ministers of religion or civil celebrants, but that ministers could only be registered if they belonged to a recognised denomination. French J (then of the Federal Court) cited the dictum of Gibbs J above and observed that if the law authorised a monopoly in religious marriages in favour of one denomination it may breach s 116, but that it did not do so. Unless the Parliament falls under the control of a particular sect that makes laws giving itself special privileges, it is most unlikely to enact a law that breaches this clause.

Imposition of religious observance [24.100] This clause may be seen as a mechanism that could partially compensate for gaps in the first clause. A religious observance seems to mean more than the rites conducted within the church, but would include those various customs and taboos that govern the lives of the religious. In introducing the section Mr Higgins explained that this clause was intended to avoid the American situation where a federal law had been enacted to provide that the Chicago exhibition should be closed on Sundays. In Australia the dominant tradition has so far been Christian,9 and we tolerated the existence of almost-theocratic laws for many years. The Sunday Observance Act 1780 (Imp) which prohibited people from “carrying on their ordinary calling” on Sunday was still part of the law of the States until the 1960s and when repealed was often replaced by laws that still limited the opening hours of cinemas and sporting fixtures; for example, the Sunday Entertainment Act 1966 (NSW). Christmas and Easter are, of course, still observed as public holidays, with stricter restrictions on trading hours for Good Friday and Christmas Day than for other public holidays. The second clause of s 116 appears to prevent the Commonwealth Parliament from enacting such laws (even if it could find a head of power).10 There is no significant case that expressly focuses on the “imposition” clause, but the following remark of Latham CJ, in the Jehovah’s Witnesses case at 123, is clearly based on it: The prohibition in s 116 operates not only to protect the freedom of religion, but also to protect the right of a man to have no religion. No Federal law can impose any religious observance. Defaults in the performance of religious duties are not to be corrected by Federal law — Deorum injuriae Diis curae.11 Section 116 proclaims not only the principle of toleration of all religions, but also the principle of toleration of absence of religion. 9 But see Keith Mason, Constancy and Change: Moral and Religious Values in Australian Legal System, Federation Press, 1990, for a thorough exploration of the degree to which it is and is not true that Christianity is part of the law of Australia. 10 See Luke Beck, “Clear and Emphatic: The Separation of Church and State under the Australian Constitution” (2008) 27 UTasLR 161, in which the author argues that parliamentary prayers may be a breach of both the non-establishment and the non-imposition clauses, and that the continuation of the common law offence of blasphemy on Norfolk Island may breach the free exercise clause. 11 Injuries (or injustices) to the gods are the concern of (only) the gods.

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Prohibition of the free exercise of religion [24.110] What is it to “exercise” one’s religion? Can one claim that one’s religion demands that one observes certain behaviours not only in the course of worship, but also in daily life even if they are contrary to the law or to the normal tenets of society? The High Court’s answer has been “no”. In Krygger v Williams [1912] HCA 65; (1912) 15 CLR 366, the appellant complained that the law requiring him to attend military training was contrary to his beliefs, and that to punish him for non-attendance was to prohibit the free exercise of his religion. Griffith CJ remarked that: “To require a man to do a thing which has nothing at all to do with religion is not prohibiting him from a free exercise of religion”. Barton J regarded it as “absurd” to suggest that “the appellant could not exercise his religion freely if he did the necessary drill”. In the Jehovah’s Witnesses case the Court unanimously held that the Parliament could outlaw the conduct of the Witnesses in campaigning against involvement in the war. Latham CJ noted that: It is consistent with the maintenance of religious liberty for the State to restrain actions and courses of conduct which are inconsistent with the maintenance of civil government or prejudicial to the continued existence of the community. The Constitution protects religion within a community organized under a Constitution, so that the continuance of such protection necessarily assumes the continuance of the community so organized.

As noted in 19.100, the specific prohibitions that the Commonwealth sought to apply to the Witnesses were held invalid on traditional “characterisation” grounds because they were so broad that they lost their connection with the defence power, but one might suppose that the prohibition of “any meetings” of a proscribed organisation would have also been invalid under s 116, as it is an important principle of the Witnesses, as of most religious groups, that they should meet regularly for worship. In Minister of Immigration and Ethnic Affairs v Lebanese Moslem Association [1987] FCA 49; (1987) 17 FCR 373, the Full Court of the Federal Court allowed the Minister to deport a Moslem Imam who had been the “focal point” of dissension in the community. Fox J held that the Minister’s decision had neither the purpose nor, if that was relevant, the effect, of prohibiting the free exercise of religion. Although none of these cases has resulted in a law being held invalid, it is suggested that in such cases a balancing of the injury to the free exercise or religion and the injury to community interests should be undertaken. If, for example, a Commonwealth law were to make it compulsory for Jews and Muslims to eat pork, it would probably be invalid as interfering with the free exercise of religion; the insult to religious belief would be grossly disproportionate to any community benefit to be achieved. The example, however, is a further illustration of the point that the most significant protection of religious groups against oppression by the Commonwealth is simply the lack of a relevant head of power; there is no power that would support such a law in the first place. 406

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Religious test for Commonwealth office [24.120] The notion of imposing a religious test is so far out of line with the basic assumptions of democracy that the Parliament has never enacted a law that has gone anywhere near to contravening this clause. However, a private litigant tried once. In Crittenden v Anderson (1950, unreported, but noted at (1977) 51 ALJ 171) the petitioner challenged the election of Gordon Anderson to Parliament on the ground that, being a Catholic, he was under acknowledgment of allegiance to a foreign power, the Papal State. Fullagar J held that: … it is, in my opinion, s 116, and not s 44(i) of our Constitution which is relevant when the right of a member of any religious body to sit in Parliament is challenged on the ground of his religion. Effect could not be given to the petitioner’s contention without the imposition of a “religious test”.

ISSUE FOR DISCUSSION Suppose the Commonwealth Parliament passed a law that forbad Catholics (or Jews, or Muslims) from attending general meetings of corporations. Would there, prima facie, be a head of power? Would it breach any of the four clauses of s 116? Considering the law of characterisation as discussed in 17.30, can you formulate a plausible argument that the law could not really be characterised as a law with respect to the relevant head of power? Cross-references: The fact that none of these prohibitions, or the guarantee of just terms, apply to the laws of the States is noted in 27.120.

FURTHER READING Luke Beck, “Clear and Emphatic: The Separation of Church and State under the Australian Constitution” (2008) 27 UTasLR 161 Jeremy Gans, “Opinions on High: Alqudsi v The Queen”, online at http://blogs.unimelb. edu.au/opinionsonhigh/2016/06/15/alqudsi-case-page/ Anthony Gray, “Mockery and the Right to Trial by Jury” (2006) 6 QUTLJJ 66 Andrew Lynch “‘The Intelligence of a Future Day’: The Vindication of Constitutional Dissent in the High Court Australia — 1981–2003” (2007) 29 Syd LR 195 Stephen McLeish, “Making Sense of Religion and the Constitution: A Fresh Start for s 116” (1992) 18 MonULR 207 Joshua Puls, “The Wall of Separation: Section 116, The First Amendment and Constitutional Religious Guarantees” (1998) 26 Fed L Rev 139 James Stellios, “The Constitutional Jury — ‘A Bulwark of Liberty’?” (2005) 27 Syd LR 113 407

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CHAPTER 25

Federal Judicial Power I: Judicial Power Cannot be Given to Bodies that are not Courts

25.1 Context and overview [25.10] In Chapter 2, we saw that the English had evolved a system of practical independence of the judiciary, by guaranteeing that, once appointed, the judges could not be dismissed at the whim of the executive government (and that Montesquieu had misrepresented this to the world as being a complete separation of legislative, executive and judicial powers). We have seen in earlier chapters that in fact, in England and Australia, the legislative and executive branches are linked by the doctrine of responsible, or cabinet, government. However, we see in this Chapter that the English approach to the independence of the judiciary has been copied in Australia, and indeed strengthened by being incorporated in the written Constitution. At the Commonwealth level, this has two main aspects: judges alone are to exercise judicial functions, and they are to be independent and allowed to focus on the exercise of judicial functions. This Chapter focuses on the first aspect, including the important consequences for the Commonwealth Parliament’s lack of power to impose involuntary detention on citizens, as discussed in 25.60 below. The next chapter focuses on the flip side of the principle, in that there are limits to the Parliament’s power to give non-judicial power to courts, or to regulate the way they exercise their judicial power. If it seems odd that these chapters, containing lots of reasoning about the nature of judicial power, are placed in a Part dealing with the scope of and limitations on Commonwealth legislative power, that is because Courts do not just exist — they are created by Acts of Parliament, and the main practical effect of these doctrines is to impose limits 409

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on the legislative power of the Parliament to create courts and other tribunals, and to regulate the jurisdiction and procedure of courts. The cases, like most constitutional cases, are about the validity of sections of statutes. (The “internal” law of the behaviour of courts and quasi-judicial tribunals, for example, disqualification for bias, is of course connected with these constitutional concepts, but is a field of its own and is not generally regarded as a topic for a Constitutional Law text.)1 The High Court has recently stated some limits, derived from the Commonwealth Constitution, on the power of State Parliaments to interfere with the independence and impartiality of State courts. This will be discussed in Chapter 34.

25.2 The basic definition — Chapter III courts [25.20] The Constitution provides that: 71. Judicial power and Courts The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. … 72. Judges’ appointment, tenure and remuneration The Justices of the High Court and of the other courts created by the Parliament: (i) shall be appointed by the Governor‑General in Council; (ii) shall not be removed except by the Governor‑General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity; (iii) shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office [with further provisions about the retiring age for judges, added in 1977].

The reference to “such courts as [the parliament] invests with federal jurisdiction” is clarified by s 77 which relevantly provides: 77. Power to define jurisdiction With respect to any of the matters mentioned in the last two sections the Parliament may make laws: … (iii)  investing any court of a State with federal jurisdiction.2

Section 72 is clearly based on the Act of Settlement 1701, in an attempt to give judges 1 For discussion of this issue see Colin Campbell, “Judges, Bias and Recusal in Australia” , in HP Lee (ed), Judiciaries in Comparative Perspective, Camb UP, 2011, pp 279–300, Matthew Groves, “The Rule Against Bias”, [2009] U Monash LRS 10, or Matthew Groves, “Public Statements by Judges and the Bias Rule” (2014) 40 Mon U LR 115. 2 For the somewhat different principles applying to courts of the Territories, see 36.130.

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sufficient security of tenure that they have no need to fear the executive government. Sections 71 and 72 together act as a definition of a federal court — it is something that is created by a Commonwealth law,3 is called a court, is called upon to exercise judicial power (at least principally, as we will see below), and its members have tenure according to s 72 (“s 72 tenure”). Section 72 does not actually say that a judge could not be appointed for a fixed term, but that was the inference drawn by the majority of the High Court in New South Wales v Commonwealth [1915] HCA 17; (1915) 20 CLR 54 (Wheat case). Section 72 originally provided life-long tenure, but since 1977 there has been a retiring age of 70 for High Court Justices. For judges of other federal courts, the “default” retiring age is also 70, but the Parliament can prescribe a lower age.4 By contrast, there are many tribunals, boards, commissions, and so on, created by Commonwealth law; the members usually have five-year or seven-year terms, renewable at the discretion of the executive; these are clearly not courts even though their work may be quasi-judicial. (Though in a sense the members have “tenure” for the fixed term, we commonly reserve the phrase “a tenured position” for life tenure or at least tenure to a retiring age.) A State court is recognised simply by the fact that it is called a court; such courts do not have to have tenure according to s 72, though the Kable doctrine (see Chapter 34) now requires that they must be impartial and independent of the executive government. All State courts created so far come close enough to that standard so that the High Court has accepted that they are courts. Together, the federal and State courts count as “s 71 courts” or “Chapter III courts” for the purposes of the doctrines discussed in 25.30 and 26.20.

25.3 Federal judicial power not to be exercised by bodies that are not Chapter III courts Statements of the principle [25.30] The fairly obvious inference to be drawn from the sections above is that the judicial power of the Commonwealth is to be exercised only by the courts mentioned in ss 71 and 72. The word “only” does not appear in s 71 but the inference is obvious enough; the guarantee of tenure (and therefore, hopefully, impartiality) in s 72 would be meaningless if the Parliament could choose to sometimes vest matters involving the exercise of judicial power in a court, and sometimes in the executive or the Parliament itself. Bodies created by Commonwealth statute, whose members do not have tenure to a 3 This applies even to the High Court; although the Constitution assumes it will exist it did not do so until it was created, and appointments were made, under the Judiciary Act 1903 (Cth). Its existence and administration is now regulated by the High Court of Australia Act 1979 (Cth), but its jurisdiction is still defined by the Judiciary Act. 4 It prescribed an age of 65 years for Family Court judges in 1977 but repealed the provision in 1991, so 70 is now the uniform retirement age.

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retiring age of 65 or 70 (eg, five-year or seven-year appointments, or ad hoc appointments to determine a particular matter) are not courts; no matter how much legal expertise the members might have, there must always be a suspicion that even skilled and highlyprincipled people whose reappointment depends on a decision by the executive may tend, even subconsciously, to skew their decisions towards the executive. This inference has been confirmed by the High Court. In Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330, Griffith CJ said, obiter, “it follows that the Parliament has no power to entrust the exercise of judicial power to any other hands”. (It was obiter because, for reasons noted below, the alleged judicial power granted to an executive officer was not judicial power at all and therefore was validly granted.) The principle was first “fired in anger” in New South Wales v Commonwealth [1915] HCA 17; (1915) 20 CLR 54 (Wheat case). Even though s 101 of the Constitution provided that the Inter-State Commission would have “such powers of adjudication and administration as the Parliament deems necessary”, the members, according to s 103, were only to serve for seven-year periods. A majority of the High Court held that it could not be given the power to declare an Act of Parliament invalid, since it was not a Chapter III court, and read the reference to “powers of adjudication and administration” to mean only those that were incidental and ancillary to its executive powers. This made the Commission fairly ineffectual, and it was abolished when the Commissioners’ terms expired. The leading case applying to the more usual kind of situation — the vesting of judicial power in a body without s 72 tenure — is Waterside Workers’ Federation of Australia v J W Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434. The Conciliation and Arbitration Act 1904 (Cth) established a Commonwealth “Court” of Conciliation and Arbitration, empowered to resolve industrial disputes by making binding awards as to future conditions of work and also to penalise breaches of the awards it had made. The President (who was for a while the only “judge”) was to be a Justice of the High Court who would be assigned to the post of President for a seven-year term, renewable at the discretion of the executive government. Barton, Isaacs, Starke and Rich JJ held that the enforcement power was invalid as it was a judicial power but was enforced by someone who held the relevant position only for a fixed term. Isaacs and Rich JJ observed: “It is plain that the independence of the tribunal would be seriously weakened if the Commonwealth Parliament could fix any less permanent tenure than for life, subject to proved misbehaviour or incapacity”.

Judicial power — clear cases [25.40] Dixon CJ and McTiernan J remarked in R v Davison [1954] HCA 46; (1954) 90 CLR 353 that: “Many attempts have been made to define judicial power, but it has never been found possible to frame a definition that is at once exclusive and exhaustive”. This may be true, but it is unnecessarily emphasising the negative. The positive statement that can be made is that it is very easy to identify the core of judicial power. Griffith CJ stated in Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330 at 357: 412

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I am of opinion that the words “judicial power” as used in s 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.

Kitto J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 made possibly the most authoritative quasi-definitional statement, at [5]: [A] judicial power involves, as a general rule, a decision settling …, as between defined persons or classes of persons, a question as to the existence of a right or obligation, … In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist.

These two “definitions” will need some elaboration below, but there are clear cases. In the following cases it was held either that a function given to a court was valid, or that a function given to a body that was not a court was invalid. That is, this is a list of clearly-judicial functions which can only be given by Commonwealth law to a Chapter III court: n

n

n n n

n

the “adjudgment” and punishment of criminal guilt: J W Alexander, above 25.30; Victorian Chamber of Manufactures v Commonwealth [1943] HCA 22; (1943) 67 CLR 413 (Industrial Lighting case); ordering involuntary detention, except in well-recognised exceptional cases: Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1, discussed below, 25.50; declaration of invalidity of an Act (Wheat case, above, 25.30); granting injunctions against breaches of an Act: Mikasa (NSW) Pty Ltd v Festival Stores [1972] HCA 69; (1972) 127 CLR 617; committing for contempt for breach of an injunction: R v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ case) [1956] HCA 10; (1956) 94 CLR 254; and orders for recovery of possession of land (by the landlord, for breach of lease): Silk Bros Pty Ltd v State Electricity Commission of Victoria [1943] HCA 2; (1943) 67 CLR 1.

The justification given for the separation of power in some cases has been that an independent judiciary “is one of the strongest guarantees in the Constitution for the security of the States” (per Isaacs and Rich JJ in J W Alexander). However, the justices of the federal courts are appointed by the federal government, and as the content of Part D has shown, the High Court has done little to protect the supposed “rights” 413

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of the States (though it has imposed some limits where the very existence of the States is threatened, as we will see in Chapter 33). As the list of points above shows, the main effect of the separation is the effect that the drafters of the Act of Settlement sought; that only the judiciary, independent of the executive, can make decisions that affect the liberty of citizens. As McHugh J observed in Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at [11]: Those who framed the Constitution were aware of the need to insulate the federal judiciary from the pressures of the Executive Government of the Commonwealth and the Parliament of the Commonwealth so that litigants in federal courts could have their cases decided by judges who were free from potential domination by the legislative and executive branches of government.

However, as the following sections will show, although there are clear cases of matters that can only be handled by tenured judges, there are also less clear cases: it all starts off as a matter of high liberal principles and ends up with drafters and the courts playing something that is not much more than word games.

Parliament not to exercise judicial power itself [25.50] Just as the Commonwealth Parliament cannot vest judicial power in an executive body, so it cannot exercise it itself. As we saw in Chapter 12, the Commonwealth and State Parliaments can change the law retrospectively, as long as they make their intention clear. This even extends to a law that changes the law applying to conduct between the performance of the conduct and the trial, as in Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501. (Other similar cases are discussed in 26.140.) What the Commonwealth could not do, as McHugh J made clear in that case, is to enact a Bill of Attainder, or a Bill of Pains and Penalties, directly applying a penalty to particular individuals. That would be an exercise of judicial power by the Parliament. However, he held at [31]: The Act in question in this case is not a Bill of Attainder or a Bill of Pains and Penalties. It differs from an ordinary criminal statute only in the fact that it operates retrospectively and not prospectively. It does not select a specifically designated person or group and impose a punishment on that person or group. It does not make any determination of fact. It does not adjudge any person or group to be guilty of any offence. There is not a scintilla of difference between the roles of the judge and jury in a trial under this Act and the roles of the judge and jury in a trial under a hypothetical law, in substantially identical terms to this Act, passed on 1 September 1939 and operating prospectively. … The imposition of penal sanctions on prescribed conduct … is an exercise of legislative, not judicial, power. Accordingly, the present Act does not interfere in any way with the judicial process or with the judicial power of the Commonwealth.

Although, as noted in 19.120, the Communist Party case (Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1), was ostensibly decided on the 414

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ground that Parliament lacked a head of power, the dicta discussed at 6.20 and 11.150 show that it can also be seen as a separation of powers case; the Parliament was trying to bypass the courts, if not to actually usurp their function. A further case where an Act came close to usurping the judicial function was Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1.5 Section 54R of the Migration Act 1958 (Cth) provided that “[a] court is not to order the release from custody of a designated person”, where designated persons were certain non-citizens who had entered the country by boat without a visa (“boat people”). Read literally it seemed that it was even trying to prevent the courts from ordering the release of people whose detention was in fact illegal. The Court was unanimous that if that was the intention, it would be invalid. Brennan, Deane, Gaudron and Dawson JJ held that it was invalid, while Mason CJ, Toohey and McHugh JJ held that the section could be read down, in the light of other provisions in the Act, to apply only to those designated persons who were validly detained (which saved it by rendering it totally ineffective). The effect of all the judgments was to affirm that Parliament cannot interfere with the power of the federal courts to inquire into the validity of detention; although habeas corpus is not among the writs listed in para 75(v) the case suggests that it must always be available as part of Commonwealth judicial power.

Detention by the executive without trial — the permitted exceptions [25.60] The cases in the previous section showed that the Parliament cannot provide directly for the detention of troublesome people; it also follows that a law cannot, in general, permit detention at the will or whim of the executive government. In Lim, above, Brennan, Deane and Dawson JJ observed at [23] that: … putting to one side the exceptional cases to which reference is made below, the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.

Their Honours then discussed exceptions at [24]: “the arrest and detention in custody, pursuant to executive warrant, of a person accused of crime to ensure that he or she is available to be dealt with by the courts” (subject to the “ancient jurisdiction” to order the defendant’s release on bail), and involuntary detention in cases of mental illness or infectious disease, which “can also legitimately be seen as non-punitive in character and as not necessarily involving the exercise of judicial power”. They also listed the traditional, exceptional, powers of the Parliament to punish for contempt and of military tribunals to punish for breach of military discipline. Otherwise, they said at [24]: 5 This is commonly reported by the plaintiff’s full name, Chu Kheng Lim, due to confusion about what was his family name. However, in M68, cited in the next section, the Justices of the High Court all cited the case as Lim.

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… the citizens of this country enjoy, at least in times of peace, … a constitutional immunity from being imprisoned by Commonwealth authority except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth.

The plaintiffs in Lim, however, were aliens (one, Lim William, had been born recently in Australia but his parents were non-citizens; compare Singh’s case in 19.170). Their Honours noted at [26] that an alien’s: … status, rights and immunities under that law differ from the status, rights and immunities of an Australian citizen in a variety of important respects … The power to exclude or expel even a friendly alien is recognized by international law as an incident of sovereignty over territory.

Detention while the Government decided whether or not to deport an alien was therefore valid, even though the law could not rob the alien of the right to have the validity of the detention tested in a court. However, at [32], valid detention was “limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered”. In Kruger v Commonwealth (Stolen Generations case) [1997] HCA 27; (1997) 190 CLR 1, Gummow J added orders for custody of children for their own (supposed) benefit, to the above list of exceptions, and added: “The categories of non-punitive, involuntary detention are not closed”. As to the possible invalidity of orders for preventative detention, whether issued by the judiciary or the executive, see 26.70. The detention of asylum seekers (seen by the Government as “unlawful noncitizens” or “irregular maritime arrivals”) was challenged again in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 and Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji [2004] HCA 38; (2004) 219 CLR 664. Al-Kateb and Al Khafaji had both been detained for some time while the Minister tried unsuccessfully to find a country to deport them to. They argued that the detention had persisted for so long that it was now punitive, and they should be released. The majority (McHugh, Hayne, Heydon and Callinan JJ) held that the detention was non-punitive in nature and was therefore valid, though McHugh J observed that the conclusion was unfortunate and illustrated the need for a Bill of Rights. Gummow and Kirby JJ cited the dictum from Chu Kheng Lim that detention was limited to what could be seen as necessary, and held that the aliens and executive powers only authorised detention while there was a reasonable prospect of finding a country to deport to, and beyond that it was punitive and therefore unconstitutional. Gleeson CJ held that the Constitution could authorise indefinite detention, but that the Act should be interpreted in light of the “principle of legality” discussed in 13.70. He therefore agreed that the detainees should be released. In the same session of the court, another detainee who had been charged with escaping from lawful custody argued that the conditions of his detention were either not authorised by the Act or were unconstitutional because they amounted to detention. In Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; (2004) 219 CLR 486 the Court (Kirby J dissenting) rejected his argument. 416

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The Act did not authorise inhumane treatment and if he had been subjected to it he had legal remedies available, rather than escaping. The decision in Al-Kateb remains controversial,6 and plaintiffs regularly argue that it should be overturned. In Plaintiff M47/2012 v Director General of Security [2012] HCA 46; (2012) 251 CLR 1, Gummow and Bell JJ held that it should be, but they were in the minority. In Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251 CLR 322, a regulation was held to be invalid, and the Minister was ordered to reconsider the plaintiff ’s application for a visa, and it was therefore unnecessary to consider whether Al-Kateb should be overruled. As governments tried further variations on the “off-shore processing” theme, more challenges followed. The “Malaysian solution” was held invalid in Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 as not being authorised by the Migration Act 1958 (Cth), rather than on constitutional grounds. Further amendments to the Act, and further deals with overseas governments, followed. In 2012 and 2013 Memoranda of Understanding (MOUs) were signed with Papua New Guinea and Nauru, under which all “irregular arrivals” were sent straight to Manus Island or Nauru to be “processed” in “Regional Processing Centres” (RPCs), in the vague hope that some country might offer them permanent asylum. As noted in 10.30, the Parliament sought to quell any doubt about the executive’s power to enter into the MOUs by adding a section to the Migration Act 1958 (Cth), s 198AHA, retrospectively validating them. Therefore, in Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 257 CLR 42, the issue became whether the amendment was authorising punitive detention contrary to the principle in Lim. On the day before the hearing began in the High Court, Nauru announced that the residents of the RPCs would henceforth be free to come and go (though constrained, of course, by the size of the island), but the case proceeded on the basis that until that time the plaintiff and others had been detained. By majority of 6:1, the High Court held that the arrangements had been legal. French CJ and Kiefel, Nettle and Keane JJ accepted the Commonwealth’s argument that the Commonwealth had detained the plaintiff only for the purpose of deportation and that her further detention had been by the executive government of Nauru under the laws of Nauru (French CJ and Kiefel and Nettle JJ at [30]–[38], Keane J at [239]–[241]). Bell and Gageler JJ accepted that the Commonwealth had some involvement in the detention in Nauru, but still held that it was for the permitted purpose of finding another country willing to take her, and that the Commonwealth’s complicity in the detention would only be valid so long as it was in connection with “the role of the regional processing country”, ie, to find another country willing to give her asylum (Bell J at [101], Gageler J at [185]). Gordon J dissented, holding that the Commonwealth had effectively detained the plaintiff on Nauru ([352]–[356]) and that the detention breached the Lim principle in that she was not being detained for the purpose of removal 6 Al Kateb himself was finally released in October 2007; see “Escape from a life in Limbo”, Sydney Morning Herald, 27 October 2007.

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but was still in detention after her removal from Australia ([378]–[402]). Since the decision in Plaintiff M68, the Supreme Court of Papua New Guinea has ruled that the detention of asylum seekers on Manus Island is unconstitutional (Namah v Pato [2016] PGSC 13) and the contractor Wilson Security has announced that it will not participate in the running of the “processing” centres after 2017.7 So the regional processing scheme has been found to be constitutional in Australian law, but there may be difficulties in continuing to implement it.

Distinction between judicial and legislative/arbitral powers: applying existing law or making new rules for the future [25.70] The emphasis in the above dictum from Tasmanian Breweries on the present existence of a right helps to distinguish judicial power from legislative or arbitral power. The process of settling industrial disputes by arbitration and the making of an “award” (now largely replaced by a system that encourages the making of enterprise agreements) “looked” very judicial; parties appeared and argued their case in a place that looked and smelled like a courtroom, presenting their case to people sitting behind a raised bench, and the persons behind the bench handed down what looked very like a judgment. However, the decision — the award — created new rights for the future; it was conceptually a kind of delegated legislation. Indeed it was taken for granted in the JW Alexander case, above, that awards could be made by a non-tenured body; the dispute was about the so-called Court’s enforcement power. A classic statement of the distinction comes from Rola Company (Australia) Pty Ltd v Commonwealth [1944] HCA 17; (1944) 69 CLR 185, per Rich J: If a person is invested with power … to determine, as between disputants, whether one of them possesses, as against the other, some already existing legal right to which he claims to be entitled, or is subject to some already existing legal liability to the other which the other is claiming against him, then the power itself is judicial power8. On the other hand, if he has no authority to determine the already existing legal rights or liabilities of persons, but is empowered to impose on them new legal duties or liabilities from which they were previously free, or to alter or abrogate legal rights to which they were previously entitled, his power is not judicial, although in exercising it he may be, and commonly is, subject to a legal duty to act judicially (that is, to observe the principles of natural justice).

“Committees of Reference”, empowered to decide whether women could be employed in certain positions, were therefore valid.

7 See various news reports dated 1 or 2 September 2016, eg http://www.smh.com.au/business/wilsonssecurity-to-walk-away-from-nauru-and-manus-island-in-2017-20160901-gr6lzf.html. 8 Of course anyone who has studied Legal Theory, or read Donoghue v Stevenson [1932] AC 562 attentively, will know that “existing legal liabilities” are sometimes created for the occasion by judges. But there is still a significant difference between the law-making of judges and that of legislators or arbitrators; judges have to justify their decision as somehow being inherent in the previous law.

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Similar distinctions have been drawn between making a declaration that the dismissal of a worker is contrary to an existing award (judicial power: R v Austin; Ex parte Farmers & Graziers Co-operative Co Ltd [1964] HCA 48; (1964) 112 CLR 619) and making new rules as to when a dismissal will be unfair (non-judicial; Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia [1987] HCA 63; (1987) 163 CLR 656). In industrial matters the distinction could depend on how cleverly the aggrieved party and/or the arbitrator managed to phrase the dispute. In Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29; (1987) 163 CLR 140 the majority of the High Court held that the matter turned on the interpretation of an existing award whereas Wilson and Gaudron JJ held that it could equally-well be treated as a claim for a new provision to bind the employer in future. With a little more care in phrasing their claim, the union’s representatives would have been able to get it unambiguously into the arbitrator’s jurisdiction. The same principle has been applied in Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333 to the making of child support orders by the Child Support Registrar. Although the level of support was generally to be determined in accordance with standards specified by existing law, the order involved “the creation of new rights and obligations for the future” (per Gleeson CJ at [22]) and was therefore properly entrusted to a non-judicial officer.

Distinction between judicial and executive power: disputes, producing immediately enforceable, and conclusive, decisions [25.80] There is more to the judicial role than applying “the law as it is” to “the facts as they are”. Other persons and bodies have to “adjudicate” in the broad meaning of the word. In the Tasmanian Breweries case, Windeyer J even used the word “judicial function” for administrative tasks that must be performed, as we would usually say, quasi-judicially:9 [I]t would be wrong to suppose that every person who is by the Commonwealth appointed to adjudicate upon a matter exercises the judicial power of the Commonwealth. Duties of adjudication may be incidental to administrative tasks which are performed as part of the executive power of government. A Commonwealth officer who has to decide whether a particular university student is to have a Commonwealth scholarship exercises a power of adjudication: but he does not exercise the judicial power of the Commonwealth. A Customs official in deciding whether some article is a prohibited import or, if a permissible import, whether or not it is dutiable and in what sum exercises a judicial function: he looks to facts and determines whether they answer a particular statutory description. A police constable who arrests a man and charges him with a particular offence does much the same thing. … All these — and there are many others — are examples of the exercise of a judicial function by Commonwealth officials. They must perform their tasks in a judicial manner, and in accordance with the dictates of natural justice so far as the 9 It is worth noting here that quasi does not mean “half” or “almost”; it means “as if”. A quasi-judicial body is not judicial but has to act as if it is.

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circumstances allow. In some cases — that of the police constable is one — what is done may be a preliminary step to the exercise by a court of the judicial power. But that does not mean that the police constable who lays a charge, or the law officer of the Crown who later decides whether or not to file a bill, are exercising the judicial power. That only occurs at the final stage of the process when the man charged is tried by a court.

There are two differences between the above, executive, kind of “adjudication” and that done by a court. First, as Griffith CJ said in Huddart, Parker, above, judicial power involves the deciding of controversies. That is, when a clerk decides not to approve your application for a student allowance he or she is exercising executive power; when you challenge the decision on legal grounds (eg, that the clerk did not consider all the relevant factors), a court will exercise judicial power. Secondly, there is something more authoritative about a judicial decision. After the passage quoted from Huddart, Parker above, his Honour added: “The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action”. That is, judicial power involves making a decision that is enforceable without needing further steps to be taken, separately, in a court. In the Huddart, Parker case itself, the company was alleging that the power given to Moorehead, the Comptroller-General of Customs, to demand answers to questions and discovery and production of documents was judicial because it was similar to the powers of a court in pre-trial proceedings. If the company refused to “discover”10 the documents, or if they revealed a breach of the law, prosecution — before a court exercising judicial power — would follow,11 but the Comptroller-General himself had no power to impose a penalty. Therefore his power was not judicial. The principle was also illustrated in the Tasmanian Breweries case. Under the Trade Practices Act 1965 (Cth), the Trade Practices Tribunal (clearly a non-judicial body, as its members had seven-year terms) had power to declare that an agreement was anticompetitive and against the public interest, and to restrain the parties from giving effect to the agreement. However, an order had no immediate effect; although a breach of it was contempt of the Tribunal, that was to be punished not in the non-tenured Tribunal but in the tenured, and therefore judicial, Commonwealth Industrial Court (now merged into the Federal Court of Australia). The decision as to whether it was anti-competitive was clearly a matter of applying law to facts (though the application of the public interest test was not; see below), but the High Court (Menzies J dissenting) held that the power was granted validly. As Owen J explained: 10 This word is used by lawyers in the reverse of the colloquial meaning. To “discover” documents in the pre-trial process is not to find that they exist, but to disclose the existence of documents in one’s own possession; see any text on Civil Procedure. 11 Indeed the company and its managing director had been convicted of failing to comply with the order, and this was an appeal. The company’s appeal succeeded on the ground that the Act did not apply to corporations (see 17.40, 18.20), but the manager’s failed.

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The consequences which may attach to a determination under s 49(1) are prospective. Pre-existing rights may be affected, but only as from the time when a determination is made. Associated with that feature of the legislation is the fact that the Tribunal is given no power to enforce any determination or order which it makes. That power is committed to the Commonwealth Industrial Court.

Similarly, in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7; (2015) 255 CLR 352, the Court unanimously held that the Authority could impose conditions upon a broadcasting licence after finding that the licensee had committed an offence against the law. French CJ and Hayne, Kiefel, Bell and Keane JJ held, at [58] that: The finding that Today FM’s broadcasting service was used in the commission of an offence does not resolve a controversy respecting pre-existing rights or obligations. It is a [preliminary] step in the determination of breach of the cl 8(1)(g) licence condition and is the foundation for the Authority to institute civil penalty proceedings in the Federal Court of Australia or to take administrative enforcement measures.

If an executive officer can validly make an “adjudication”, then a right of appeal against the decision can be given to a non-judicial body such as the present Administrative Appeals Tribunal. However, the Parliament must be careful how it describes the decisions of such bodies. In British Imperial Oil Co Ltd v Federal Commissioner of Taxation [1925] HCA 4; (1925) 35 CLR 422, the company was appealing against a decision of a Taxation Board of Appeal. The members did not have tenure, but its decisions were described as “final and conclusive”, although subject to appeal on questions of law to the High Court “in its appellate jurisdiction”. The High Court ruled that it was exercising judicial power, and was therefore invalidly constituted. The Parliament then changed the name of the Board to “Board of Review”, removed the reference to “final and conclusive”, and declared that the assessments of the Board were deemed to be assessments of the Commissioner. In the view of the High Court (Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153) and the Privy Council (Shell Company of Australia Limited12 v Federal Commissioner of Taxation [1930] UKPCHCA 1; (1930) 44 CLR 530), this now made the Board non-judicial and the sections valid. Zines13 comments that this means that the validity of an Act can simply be “largely a question of careful drafting”.

Historical exceptions [25.90] Not only are there fine distinctions between judicial and non-judicial power; there are outright exceptions to the general principle. Some tribunals that “adjudge and punish criminal guilt” are held to be non-judicial on historical grounds. Courts martial, 12 This was a continuation of the earlier dispute; British Imperial had changed its name to Shell. 13 James Stellios, Zines’s the High Court and the Constitution, 6th ed, Federation Press, 2015. The words are Zines’s and have remained unchanged for several editions.

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constituted by officers responsible to higher command and often appointed on an ad hoc basis, have long been held to be an exception, on a mixture of historical and conceptual analysis; since they are related to the maintenance of military discipline, it has been held that they are constituted under the defence power in para 51(vi) and are not really part of the “Chapter III” judicial system. The cases mentioned in 19.12014 involved arguments about the non-independence of the members of military tribunals as well as about the scope of the defence power; in all cases the majority held the constitution of the tribunals valid on both grounds. However, both the methods of investigation and the constitution of tribunals in the military justice system received so much criticism over the years that eventually a Senate Committee was established to report into its deficiencies.15 In partial compliance with the Committee’s report, a standing Military Court with permanent military judges was established. The judges were appointed for a ten-year term and were expected to retire on superannuation at the end of the term; this complies perfectly with the principle of judicial independence (they had no favours to expect if they did the wishes of higher command) but it completely failed to comply with the words of s 72! In Lane v Morrison [2009] HCA 29; (2009) 239 CLR 230, the High Court held that the Court was different enough from traditional courts martial so that it should now be seen as exercising the ordinary judicial power of the Commonwealth, but that it was invalid for lacking s 72 tenure. The government introduced a Bill to establish a properly-tenured Military Court on 21 June 2012.16 It attracted controversy because it still failed to provide for jury trial, and has not progressed. Presumably, once it has been enacted and has operated for a few years it will be taken for granted that military personnel have the right to be tried before tenured judges, and the fact that courts martial were regarded as an exception to Chapter III will be forgotten. The lack of juries will remain a live issue. The other principal exception comes from both history and an express provision of the Constitution. Section 49 provides that the Parliament can make laws about the privileges of the Houses, and that until it does so they are the same as “the Commons House” of the United Kingdom Parliament. One of the less glorious British traditions is that the Commons can conduct trials of alleged breaches of its privileges. When two journalists, Fitzpatrick and Browne, published a slander upon a Member of the House of Representatives, the House, acting as prosecutor, judge and jury, put them on trial for breach of privilege and convicted them. In R v Richards; Ex parte Fitzpatrick & Browne [1955] HCA 36; (1955) 92 CLR 157, the High Court refused to issue habeas corpus 14 Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518; Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460; Re Tyler: Ex parte Foley [1994] HCA 25; (1994) 181 CLR 18; Re Colonel Aird; Ex parte Alpert [2004] HCA 44; 220 CLR 308; White v Director of Military Prosecutions [2007] HCA 29; (2007) 231 CLR 570. 15 See Matthew Groves, “The Civilianisation of Australian Military Law” (2005) 28 UNSWLJ 364. 16 In the interim, Parliament had amended the law to provide that all the invalidated decisions were deemed to be recommendations to higher command, which could choose to implement them as part of its disciplinary power. This was held valid (Heydon J dissenting) in Haskins v Commonwealth [2011] HCA 28; (2011) 244 CLR 22.

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(see 2.50), stating that, “it is for the courts to judge of the existence in either House of Parliament of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise”. In answer to an argument that s 49 should be qualified by the exclusive vesting of judicial powers in Chapter III courts, their Honours noted that s 49 is quite unequivocal in granting the powers of the House of Commons to the House of Representatives, and observed (at 167) “a general view of the Constitution and the separation of powers is not a sufficient reason for giving to these words, which appear to us to be so clear, a restrictive or secondary meaning which they do not properly bear”. Since that case, Parliament has enacted the Parliamentary Privileges Act 1987 (Cth), under which defamatory words are no longer treated as a contempt of the House. Should a House again seek to try a non-member for contempt, it should be noted that the Court has recently showed less deference to parliaments in matters concerning their privileges than it did in the 1950s. In Egan v Willis [1998] HCA 71; (1998) 195 CLR 424, while the majority upheld the action of the New South Wales Legislative Council in expelling a Member, it rejected the argument that it had no jurisdiction to consider the matter. In Sue v Hill [1999] HCA 30; (1999) 199 CLR 462, the majority held that the Court’s jurisdiction as the “Court of Disputed Returns” over election results is part of its general judicial power, and not a part of legislative power delegated to the court by the Parliament. These survivals of the English doctrine of parliamentary supremacy are giving way to the supremacy of the Constitution and the rule of law. It may be that the powers under s 49 will in future be seen as subject to the separation of judicial power.

Decisions with an element of “public policy” [25.100] In the modern world, regulatory bodies often have to make decisions that involve mixed questions of law and economic policy. For example, in competition law, practices that are prima facie breaches of Part IV of the Competition and Consumer Act 2010 (Cth) may be authorised because they produce a public benefit, and in takeover disputes the regulators have to keep an eye on the effects of their decisions on the market. The regulation of such matters has been given to non-judicial bodies, and the High Court has approved. In Tasmanian Breweries, above, a second reason for the validity of the Tribunal’s power was that as well as deciding whether a practice was anti-competitive (a matter involving the interpretation of law) it also had to decide the public benefit issue. Kitto J declared: When the Tribunal, in conformity with s 49(1)(b), “determines, in accordance with its opinion, whether the relevant restrictions to which the proceedings relate are contrary to the public interest” it necessarily supplies for itself its own subjective criterion for deciding, as a matter of individual opinion, though on the assumption required by s 50(1) and taking into account all the matters specified in the Act, where the public interest appears to it to lie in the circumstances in which the restrictions or practice operate. Thus the work of the Tribunal is work which would be appropriate for the legislature itself to do if it had the time to consider individual cases.

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Similarly, when the jurisdiction of a Corporations and Securities Panel (a “Takeover Panel”) was challenged in Precision Data Holdings Ltd v Wills [1991] HCA 58; (1991) 173 CLR 167 the Court unanimously held that it was validly conferred, reasoning at [25]: [T]he decision to be made by the Panel is not an adjudication of a dispute about existing rights and obligations. The Commission alone can institute proceedings before the Panel and invoke an exercise of its authority. In applying for a declaration under s 733, the Commission is not seeking the vindication of any right or obligation; a declaration, when made, does not resolve an actual or potential controversy as to existing rights. Nor does the Panel, in granting or refusing a declaration, make its decision solely by reference to the application of the law to past events or conduct. Although the function entrusted to the Panel is that of making a declaration about past events or conduct, the function is one in which the Panel is bound to take account of the considerations of commercial policy mentioned in s 731: “(T)he desirability of ensuring that the acquisition of shares in companies takes place in an efficient, competitive and informed market”, and “any other matters the Panel considers relevant” in arriving at the conclusion that it is in the public interest to make a declaration.

Their Honours observed that the panel’s orders created new rights and obligations that had not existed before, and continued, at [25]: It follows from what has already been said that, in creating that new set of rights and obligations, considerations of policy, including commercial policy, as well as factors not specified by the legislature yet deemed relevant by the Panel, on which it may form a subjective judgment, must inevitably play a prominent part.

The decision in Precision Data was confirmed more recently in Attorney-General (Cth) v Alinta Limited [2008] HCA 2; (2008) 233 CLR 542. Economists may be offended by the suggestion that decisions based on economic and commercial factors are more “subjective” than decisions based on law, but perhaps it is true that there is more room in these cases for tailoring the decision to the particular facts than in a decision based purely on law, and certainly it is appropriate to have people trained in economics or business rather than (or as well as) law making the decisions.17

General qualifications — the chameleon principle [25.110] Although it was possible to list matters that must be decided by a tenured judge, and a quasi-definition of such matters, in 25.40, there are many less clear cases. There are many borderline cases, involving rights less crucial than our historical “basic” liberties, or penalties less severe than imprisonment, where the High Court has held that jurisdiction can be exercised either by a court or a non-judicial tribunal. This has 17 Students of legal theory will recognise that the distinction here is very similar to the distinction between principles and “policy”, as defined in a rather narrow sense by Ronald Dworkin, that was made by Dworkin in “The Model of Rules” (1975) 88 Harv LR 1057.

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been described as the “chameleon principle” — some functions can “take their colour from their legislative surroundings or their recipient”: R v Quinn; Ex parte Consolidated Food Corporation [1977] HCA 62; (1977) 138 CLR 1 per Aickin J at 18. In Quinn, it was held that the Registrar of Trade Marks could be given power to remove a trade mark from the register, even though the decision depended on the evaluation of facts against legal criteria and could have financial consequences for the holder of the cancelled right. As Barwick CJ said, at [5]: [T]he Registrar’s authority… is in his hand of its nature administrative and the rights flowing from registration of the trade mark are statutory, conditioned upon all the provisions of the statute which may affect them. The possession by a court of a like power is not enough to warrant a conclusion that the Registrar’s power of removal of the mark should be held to be part of the judicial power of the Commonwealth (emphasis added).

The fact that the right was of statutory origin seems to be significant in the above passage. If the Parliament can abolish a statutory right by repealing the statute without having to provide just terms (see 22.150) it follows that it can also entrust the abolition to an executive officer. A case sometimes referred to as an exception on historical grounds — Public Service disciplinary tribunals — can also be explained on the ground that the proceeding is inherently as much administrative as judicial and the penalty is, relative to criminal penalties, less severe. In R v White; Ex parte Byrnes [1963] HCA 58; (1963) 109 CLR 665, the High Court held unanimously, at 671, that powers of the Public Service Appeal Board relating to discipline were non-judicial; the law was “part of the law regulating the relationship between the Commonwealth and its servants” and although the procedures had “judicial trappings” the Act drew “a clear distinction … between criminal offences committed by public servants … and breaches of the [internal] disciplinary code”. Other cases in this borderline zone will be discussed, in the context of the exercise of power by the courts, in 26.80.

Cases about Masters and Registrars [25.120] As well as judges, courts have officers such as Registrars and Masters, who do not generally have the same guarantee of tenure as judges, though they may well have “continuing” employment in employment law terms. Routine tasks such as hearing uncontested matters are often assigned to them. When this is done under Commonwealth law, problems can arise. In R v Davison [1954] HCA 46; (1954) 90 CLR 353, the defendant had been made bankrupt on his own petition, but on being charged with offences, he argued that the order had been invalid as it had been made by a Deputy Registrar (who unlike other Registrars was not even an officer of the Court of Bankruptcy, but an executive officer distantly “attached” to the Court), rather than by a judge. His argument succeeded. Dixon CJ and McTiernan J accepted that “[t]here is nothing … inherent in the nature of voluntary sequestrations to make it impossible for the legislature to provide some 425

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other means than a judicial order for the purpose”, but held that where the legislature had chosen an apparently judicial mechanism for the making of the order, it could not authorise anyone to make the order except a judge of a court. However, after the cases on State Masters and Registrars (discussed in 26.110) had set the precedent for a more flexible approach, the strictness of Davison was relaxed somewhat in Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84. The Family Law Act 1975 (Cth) and Regulations had been amended to provide that many uncontested orders, including orders for dissolution of marriage, could be made by a Registrar. By the time the provision was challenged, thousands of such orders had been made. Fortunately for all the parties involved, the High Court held the provisions were valid. Mason CJ and Deane J explained, at [11]: It seems to us that, so long as two conditions are observed, the delegation of some part of the jurisdiction, powers and functions of the Family Court as a federal court to its officers is permissible and consistent with the control and supervision of the Family Court’s jurisdiction by its judges. The first condition is that the delegation must not be to an extent where it can no longer properly be said that, as a practical as well as a theoretical matter, the judges constitute the court. This means that the judges must continue to bear the major responsibility for the exercise of judicial power at least in relation to the more important aspects of contested matters. The second condition is that the delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions of the officers of the court in the exercise of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judge or judges of the court. … Certainly, if the review is by way of hearing de novo, the delegation will be valid.

As a review by way of hearing de novo was provided for in the Act, the provisions were valid. Thousands heaved a sigh of relief.

FURTHER READING Stephen McDonald, “Involuntary Detention and the Separation of Judicial Power” (2007) 35 Fed L Rev 25 James Stellios, Zines’s The High Court and the Constitution, 6th ed, Federation Press, 2015, chs 9 and 10 Fiona Wheeler, “The Rise and Rise of Judicial Power under Chapter III of the ­Constitution: a Decade in Overview” (2001) 20 Aust Bar Rev 283

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CHAPTER 26

Federal Judicial Power II: Limits on Parliament’s Power to Give Non-Judicial Powers to Courts and to Regulate their Proceedings

26.1 Context and overview [26.10] We saw in Chapter 25 that the judicial power of the Commonwealth can only be vested in a “Chapter III” court. There is a reciprocal principle — that when a Commonwealth law creates a court, it can only give it judicial power (and some small, incidental, measure of non-judicial power). The Parliament does have some specific powers to regulate the exercise of jurisdiction of courts under various provisions of Chapter III of the Constitution, and under the incidental or executory power in para 51(xxxix), but there are limits. The principal cases interpreting each of these powers, and the limits on them, are discussed below.

26.2 Limits on the jurisdiction of Chapter III courts and judges [26.20] The previous Chapter was about the powers that must be reserved to courts, so the cases discussed there mostly involved powers given to non-Chapter III tribunals or executive officers, or exercised by Parliament itself, in breach of the requirements. We now turn to cases about courts. There are three basic limits on the Commonwealth Parliament’s power to vest jurisdiction in courts: 427

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n

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A Commonwealth law can only give a “Chapter III court” (ie either a federal or a State court) jurisdiction over “matters”. This was discussed in 7.30, particularly in the context of the High Court’s jurisdiction, but it applies to all Commonwealth laws vesting jurisdiction in courts. Of course a State court can be given jurisdiction over all manner of things by its State Parliament, but when it is exercising federal jurisdiction, the limits from the Commonwealth Constitution will apply. A federal court (one created by the Commonwealth Parliament) can only have jurisdiction over the nine kinds of “federal matter” listed in ss 75 and 76. This is discussed immediately below at 26.30. A court exercising federal jurisdiction must exercise mainly judicial power, and can only exercise limited amounts of non-judicial power. This applies to federal courts all the time, and to State courts when they are exercising federal jurisdiction. This is discussed in 26.50 and the following sections.

Jurisdiction over federal matters [26.30] Under s 76, the Parliament can optionally confer jurisdiction over the four matters listed in s 76 in the High Court, and under s 77 it can invest jurisdiction in federal matters (ie all the matters listed in ss 75 and 76) in federal courts or State courts, and define the extent to which the jurisdiction of a federal court is exclusive. Before the Federal Court of Australia was created, jurisdiction over many federal matters was vested in the State courts, and original jurisdiction over patents and trade marks was vested in the High Court so there are still leading cases on the definition of “income” that were decided by State Supreme Courts and on patents that were decided by a single High Court Justice, though such matters go these days to the Federal Court. As noted in 7.20, jurisdiction in constitutional matters is conferred on all courts. The primary jurisdiction in respect of enforcing specific federal laws is now specified by each particular Act, so although one can generally assume that it will be the Federal Court or the Family Court that has jurisdiction, or the Federal Circuit Court in minor matters, the relevant Act should always be checked.1 The State courts still have jurisdiction in several federal matters, as well as the “fall-back” jurisdiction given by the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). The High Court unavoidably has original jurisdiction over the four matters listed in s 75, but it now has the power, under the Judiciary Act 1903 (Cth) s 44, to remit2 such cases to a federal, State, or Territory court that has jurisdiction over such cases; in this way, the High Court is able to focus its attention on constitutional and appellate matters. 1 The Federal Court Act 1976 (Cth), s 19 provides “[t]he Court has such original jurisdiction as is vested in it by laws made by the Parliament”, confirming the statement in the text — you need to check the relevant Act! 2 To remove a matter is for a court to order the transfer of a matter “up” to itself from a lower court. To remit a matter is to transfer it “down” to a lower court, or “sideways” across jurisdictions.

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Federal courts to exercise only federal jurisdiction [26.40] Living in a federal system can create a lot of trouble for litigants, if they are contesting matters that involve a mixture of federal law, State law and common law. Under s 77 of the Constitution, the Commonwealth Parliament can give jurisdiction over federal matters to State courts, but there is no reciprocal provision, so a federal court cannot hear a State matter. Since it is the State courts that have jurisdiction over common law matters, that means a federal court cannot hear a purely common law claim. These problems were partly resolved by the High Court’s announcement of the concept of “accrued jurisdiction”; as long as the “attached” claims arose out of the same set of facts as the federal claims, they were all part of the same “matter” and it was the matter over which the court had jurisdiction: see Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457. However, the Commonwealth and States realised that the existence of parallel systems still produced problems for plaintiffs, so in 1987 they enacted reciprocal Acts each called Jurisdiction of Courts (Cross-Vesting) Act 1987. Each gave the courts of the other jurisdiction a “fall-back” jurisdiction over matters that were not within the “recipient” court’s normal jurisdiction. There were provisions that if a court thought the matter would more properly be dealt with by the other, “normal”, jurisdiction, it could remit it to the other court, but it obviated the need to have a matter struck out by one court and to commence it all over again, with new filing fees and the possibility of non-compliance with limitation periods, in the other one. The Commonwealth Act was clearly — and is still clearly — valid, as an exercise of the express power under s 77. However, in Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511, the High Court, Kirby and Callinan JJ dissenting, held that the nine paragraphs of ss 75 and 76 exhaustively defined the kinds of federal matter that federal courts could determine; the States had no power to vest other matters in federal courts, and the Commonwealth had no power to accept them. Future litigants seeking to have mixed claims all dealt with in the one court will have to proceed in a State court in reliance on the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), which is still on the statute book and still valid, or proceed in a federal court and argue that all non-federal claims are indeed “attached” and are part of the one matter. For further details, readers should consult one of the specialist texts on federal jurisdiction.3

Courts exercising federal jurisdiction must have only a limited amount of non-judicial power [26.50] If the Constitution separates judicial power from other governmental powers, it may be expected to do it in two directions. As we saw in 25.30, non-judicial bodies 3 For example, Brian Opeskin and Fiona Wheeler (eds), The Australian Federal Judicial System, Melbourne University Press, 2000; Geoffrey Lindell, Cowen and Zines’s Federal Jurisdiction in Australia, 4th ed, The Federation Press, 2016.

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are absolutely prevented from exercising judicial power (subject to historical exceptions, and to the fact that there is a fuzzy borderline around the definition of judicial power). In this section we study the reverse proposition: Chapter III courts are not absolutely prohibited from exercising non-judicial power, but can only exercise it to a limited degree (in the case of State courts, the limit only applies when exercising federal jurisdiction). The classic statement of this proposition comes from the Boilermakers’ case (R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254). In the J W Alexander case, above 25.30, the majority of the Court had held that the arbitral functions were validly vested in the “Court” of Conciliation and Arbitration, but that the judicial functions were invalid because of the limited-term appointment of the judges. So the Parliament amended the Act to give the “judges” life tenure, and the “Court” continued to exercise a mixture or arbitral and judicial power for another 38 years. But in the Boilermaker’s case, a 4:3 majority of the High Court held that if it was a court it could not exercise arbitral powers. Dixon CJ and McTiernan, Fullagar and Kitto JJ held, at 271, that “the Constitution does not allow the use of courts established by or under Chap III for the discharge of functions which are not in themselves part of the judicial power and are not auxiliary or incidental thereto”. Since the principal business of the “Court” had been the making of awards, the High Court held that, despite the grants of tenure to its “judges”, the arbitral function had been validly exercised, and that in this case it was the judicial power that could not be exercised. (So, in a sense, the case belongs in 25.30 above, with other cases about bodies that are not courts. It is here because it makes a point about the powers of courts.) The decision was confirmed on appeal to the Privy Council: Attorney-General (Cth) v The Queen [1957] UKPCHCA 1; (1957) 95 CLR 529. The test as stated in the Boilermakers’ case was used in several of the cases discussed in the following sections. It had no grounding in deep principle — the majority of the High Court justified it essentially by reading the language of Chapter III as exhaustive, and the Privy Council by resort to an argument of symmetry. There were strong dissents in the High Court, and on a couple of occasions after he became Chief Justice Barwick CJ suggested that it might be necessary to consider overruling it. For example, in R v Joske; Ex parte Australian Building Construction Employees & Builders’ Labourers’ Federation [1974] HCA 8; (1974) 130 CLR 87 he observed at [6]: The principal conclusion of the Boilermakers’ case … was unnecessary, in my opinion, for the effective working of the Australian Constitution or for the maintenance of the separation of the judicial power of the Commonwealth or for the protection of the independence of courts exercising that power. The decision leads to excessive subtlety and technicality in the operation of the Constitution without, in my opinion, any compensating benefit.

Mason J agreed with that observation. However, the principle may now have been placed on a firmer footing. Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 was not a case about the power of courts but about the power of a single judge acting nonjudicially under the persona designata doctrine explained in the following section at 430

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26.60. Brennan CJ and Deane, Dawson and Toohey JJ held that the following conditions could be derived from the Boilermakers’ principle, at [16]–[17]: … first, no non-judicial function that is not incidental to a judicial function can be conferred without the Judge’s consent; and, second, no function can be conferred that is incompatible either with the Judge’s performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power (“the incompatibility condition”). … The incompatibility condition may arise in a number of different ways. Incompatibility might consist in so permanent and complete a commitment to the performance of non-judicial functions by a Judge that the further performance of substantial judicial functions by that Judge is not practicable. It might consist in the performance of non-judicial functions of such a nature that the capacity of the Judge to perform his or her judicial functions with integrity is compromised or impaired. Or it might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual Judge to perform his or her judicial functions with integrity is diminished. Judges appointed to exercise the judicial power of the Commonwealth cannot be authorised to engage in the performance of non-judicial functions so as to prejudice the capacity either of the individual Judge or of the judiciary as an institution to discharge effectively the responsibilities of exercising the judicial power of the Commonwealth. So much is implied from the separation of powers mandated by Chs I, II and III of the Constitution and from the conditions necessary for the valid and effective exercise of judicial power.

Although this was, as stated above, decided in the context of the powers of judges’ personal, non-judicial, powers, and is said to have been derived from the Boilermakers’ principle, it is suggested that in fact the incompatibility condition, as applied to courts, may amount to a more defensible version of that principle itself. In fact something rather similar has been applied to State courts, as we will see in Chapter 34. The fact that a court should not have a near-complete and permanent commitment to the performance of non-judicial functions may explain, rather better than the arguments in Boilermakers’, why the “Court” of Conciliation and Arbitration could not be taken to be a valid court. This suggestion has not yet been adopted by the High Court; it is offered here in an attempt to make the case law seem more coherent.

Judicial tasks regarded as non-judicial but acceptable — the persona designata doctrine [26.60] The judicial function, as noted above, classically involves the resolution of disputes between parties, by applying existing law to existing facts. There are some tasks traditionally given to magistrates and judges that are not seen as judicial, but as tasks in aid of executive power, but they are held to be validly given even to judges in federal courts or exercising federal jurisdiction because the judge is acting as persona designata — a designated person. One such task is the issue of search warrants, covert 431

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search warrants and telecommunications interception (phone-tapping) warrants. In a series of cases culminating in Grollo v Palmer, above 26.50, the High Court was asked to rule that giving such powers to federal judges was a grant of executive power that breached the Boilermakers’ doctrine. The final resolution in Grollo was that the power was validly vested in judges, only because the Act had been amended in the recent past to provide that judges had to consent to being one of those who would be asked for warrants. It may be conceded that the issue of a warrant “behind the back” of the target of the warrant does not fit the general description of the exercise of judicial power, but there is a further application of the persona designata rule that seems to be a case of, first, defining judicial power too pedantically and, then, creating an exception. This relates to the role of magistrates in committal hearings. Traditionally, this has been regarded as a “ministerial” role rather than a judicial one. This no doubt made sense when magistrates were qualified only by their “rank” in society and performed a number of functions apart from presiding over courts, but these days it is accepted that a magistrate holds a judicial office; some former Magistrates’ Courts or Courts of Petty Sessions have even been renamed Local Courts. A committal hearing is a fully-contested hearing at which the laws of evidence apply; it amounts to something very like a “proleptic” (anticipatory) judicial review of the strength of the evidence against the accused before the prosecution proceeds, rather than the usual judicial review where the administrator is subject to review after making a mistake in process. The involvement of State magistrates in extradition hearings (under federal law) is likewise regarded as non-judicial but acceptable. In O’Donoghue v Ireland [2008] HCA 14; (2008) 234 CLR 599, a magistrate’s involvement in an extradition was held valid by applying the Grollo test — the magistrates’, and the States’, consents had been obtained and there was nothing about the process that was incompatible with the magistrates’ other, judicial, functions. It is submitted that the process is in fact so compatible that it could be regarded simply as an exercise of judicial power, but nothing turns on the difference. On the other hand, in Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (Hindmarsh Island Bridge case) [1996] HCA 18; (1996) 189 CLR 1, where the Minister had appointed Mathews J of the Federal Court to report on the consequences of revoking heritage protection for the area required for building of the Hindmarsh Island Bridge, something did turn on the difference. The majority of the High Court held that the Grollo test had been breached. Though their Honours conceded, at [28], that “no doubt Justice Mathews would have followed a judicial or quasi-judicial procedure and her Honour’s report might well evidence an independence of view”, they held at [25] that the function of a reporter: … is performed as an integral part of the process of the Minister’s exercise of power. The performance of such a function by a judge places the judge firmly in the echelons of administration, liable to removal by the Minister before the report is made and shorn of the usual judicial protections, in a position equivalent to that of a ministerial adviser (footnotes omitted).

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Kirby J dissented. He remarked, at [33]: … the very reason for [Justice Mathews’s] appointment to provide a report in the instant case is clearly to utilise the particular qualities which are normal to a judge in Australia: accuracy in the application of the law; independence and disinterestedness in evaluating evidence and submissions; neutrality and detachment; and efficiency and skill in the provision of a conclusion.

Though his Honour did not put it this way, it is suggested that this could have been seen as another case of “proleptic judicial review” and valid for that reason.

Control orders, and dicta about preventative detention [26.70] In Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307, the Criminal Code (Cth) empowered a Federal Magistrate to make a control order on a person where the court was “satisfied on the balance of probabilities … that making the order would substantially assist in preventing a terrorist act … and that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public” at [9]. Jack Thomas had been accused (but eventually acquitted) of providing funds to Al Qaeda, but the authorities still had suspicions about him, so they obtained an interim control order against him in an ex parte hearing — that is, in the absence of him or his representatives — under Division 104 of the Criminal Code (Cth). The order required him to stay in his residence between midnight and 5 am, to report to police three times a week, not to communicate with certain individuals (including Osama bin Laden!) and not to use various types of communication technology. He appealed, both on the ground that there was no head of power (see 19.130) and on the alternative grounds that the power to make an order could not be given to a judicial officer as the magistrate was given too wide a discretion, or that if it could be given to a judicial officer it breached the Nicholas requirements discussed in 26.120. The High Court held, by 5:2, that the power was judicial, and that the Nicholas requirements were not breached. As to whether it was within judicial power, the majority observed that it was similar to well-established judicial powers like the power to bind over to keep the peace, or to make domestic violence orders. The majority held that there were clear legal criteria to guide the court’s discretion here: see the full discussion by Gleeson CJ at [71]–[79]. The majority did not close the door on the possibility that a power to issue control orders could also be created as an executive power; at [10]–[13], Gleeson CJ discussed the “chameleon principle” (though not by that name) but observed at [17], “[t]o decide that such powers are exclusively within the province of the executive branch of government would be contrary to our legal history, and would not constitute an advance in the protection of human rights” — perhaps indicating some surprise that Thomas had even raised the argument! Gummow and Crennan JJ emphasised at [116] that a control order “differs significantly in degree and quality” from detention, suggesting that they would hold laws for preventative detention, on the 433

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order of an executive officer or possibly even of a court, invalid. (Note that the issue of preventative detention for fear that someone may commit a crime is different from ordering continued detention of someone who has been convicted but whose original sentence is soon to expire. Since the latter issue has arisen, so far, only in the context of State laws, it is discussed in 34.20–34.30.)

“Appeals” from administrative bodies to judicial bodies — the chameleon principle again [26.80] Queen Victoria Memorial Hospital v Thornton [1953] HCA 11; (1953) 87 CLR 144 involved one of the provisions giving preference to employment to ex-service personnel, discussed in 19.110. Where two ex-service persons applied for the same job, the Act provided that an employer must consider the comparative qualifications of the applicants, the nature of their war service and “any other relevant matters”. A right of appeal was given to a State magistrate (exercising federal power as this was a Commonwealth Act). In a joint judgment the High Court held that the right of appeal was created invalidly. The reasons mentioned the breadth of the magistrate’s discretion and then proclaimed, at [9]: No antecedent rights exist in any of the persons concerned which the court of summary jurisdiction is called upon to ascertain, examine or enforce. There is no issue of fact submitted to it for decision. Its function appears to be entirely administrative and to differ in no respect from the function of the employer himself in considering applications for employment which are affected by s 27(4). … Here there is nothing but an authority which clearly is administrative.

The fact that a court applied the same criteria on appeal that a non-judicial person had already considered was held to made the court’s power non-judicial; the Court appears not to have considered that the fact that the employer itself had to act very close to “judicially” in applying the criteria made any difference. However, a less stringent approach has developed since then, best illustrated by cases on trade marks, in which there has been a pattern of giving powers to the Registrar of Trade Marks which are subject to a right of appeal, to the High Court in earlier times and now to the Federal Court. In Farbenfabriken Bayer Aktiengesellschaft v Bayer Pharma Pty Ltd [1959] HCA 32; (1959) 101 CLR 652, the High Court rejected a claim that its jurisdiction in such appeals was non-judicial. Dixon CJ cited the BIO and Shell cases above at [7] as: … enough to show that words which might otherwise be sufficient to confer judicial power may be governed by the context as well as by the character of the body or person upon whom the power is conferred and may be construed as going no further than granting administrative power. They must of course be consistent in their content with that construction but that is a condition which [the appeal provision] satisfies.

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His Honour did not use the “chameleon” metaphor but his words are a clear confirmation of the chameleon principle. As noted above at 25.110, the Court confirmed in R v Quinn that in the Registrar’s hands the power to disallow a mark was administrative. Thornton’s case must either be regarded as strictly confined to its facts or impliedly overruled.

Giving discretionary powers to the courts [26.90] In the years after the Boilermakers’ decision, the High Court looked very sternly on any law that granted a court a broad discretion. In R v Spicer; Ex parte Australian Builders’ Labourers’ Federation [1957] HCA 81; (1957) 100 CLR 277, a law that allowed the new Commonwealth Industrial Court (created after Boilermakers’ to perform the judicial part of the old “Court’s” function) to disallow rules of a union that were “tyrannical or oppressive” or “impose[d] unreasonable conditions upon the membership of any member or upon an applicant for membership” was declared invalid by a 4:2 majority. Dixon CJ claimed at 290 that the criteria were “vague and general and give much more the impression of an attempt to afford some guidance in the exercise of what one may call an industrial discretion than to provide a legal standard governing a judicial decision”. However, after Barwick CJ had succeeded Dixon CJ, the Court took a less strict approach. In R v Joske; Ex parte Australian Building Construction Employees & Builders’ Labourers’ Federation [1974] HCA 8; (1974) 130 CLR 87, a provision that allowed the Industrial Court to de-register a union if its rules were administered in a way that was “oppressive, unreasonable or unjust” or its conduct had “prevented or hindered the achievement of an object of this Act” was challenged. It was held valid in a unanimous decision, Barwick CJ noting the criteria as describing “an existing fact or situation whose existence is capable of and appropriate for judicial determination”. There was another difference in the legislation, which may justify the different outcomes: in the earlier case the Court had been able to disallow rules of its own motion and in the latter case it could only act on the application of a party opposed to the union but the difference in the language used to describe the very similar criteria in the two cases is striking. In later cases — Cominos v Cominos [1972] HCA 54; (1972) 127 CLR 588 and Talga Ltd v MBC International Ltd [1976] HCA 22; (1976) 133 CLR 622 — the Court has held that a discretion to administer any relief that was “just and equitable” could be validly conferred on a court. In Talga, Stephen, Mason and Jacobs JJ observed at 634 that exercising a wide discretion: … is a commonplace of the curial process; the court will be bound to act judicially, exercising its discretion by reference only to such considerations affecting the transaction as, on an examination of the legislation, may be seen to be material to the decision which it is called on to make. Irrelevant matters, matters such as the plaintiffs instanced in the course of argument, which have no rational connexion with the policy of the regulations but would be expressive only of the personal predilections of the Court, cannot be allowed by it to play any part in its decision.

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26.3 Appellate jurisdiction of the High Court [26.100] Under s 73, the High Court can hear appeals, “with such exceptions and subject to such regulations as the Parliament prescribes”, from “judgments, decrees, orders, and sentences” of: n n n

a judge exercising the original jurisdiction of the High Court; another federal court, or a court exercising federal jurisdiction; or the Supreme Court of a State.

As noted in the previous section, there are now few cases where the High Court exercises original jurisdiction, so appeals tend to be from the Full Courts of the two Federal Courts, and the Full Courts or Courts of Appeal of the States. The fact that the Court can hear appeals on all kinds of matters from the State courts is responsible for keeping the common law of Australia uniform, and the interpretation of similar State Acts similar. There is a little case law on the phrase “judgments, decrees, orders, and sentences”. The criminal process laws of several States4 provide that after acquittal of the accused in a criminal trial, the State can refer questions of law to the Supreme Court or Court of Appeal; if that Court rules that the trial judge’s ruling on a point of law during the trial was in error, it does not overturn the acquittal but the ruling can serve as guidance for future courts. The question has arisen whether such a ruling is a “judgment, decree, order, or sentence” so that the High Court can express its opinion on the issue. In Saffron v The Queen [1953] HCA 51; (1953) 88 CLR 523, the High Court ruled that such a ruling was rather like an advisory opinion (which it cannot give — see 7.30) and therefore it could not hear an appeal, but the decision in Mellifont v Attorney-General (Qld) [1991] HCA 53; (1991) 173 CLR 289 overruled Saffron. Mason CJ and Deane, Dawson, Gaudron and McHugh JJ reasoned at [25]: The Crown sought the reference in order to establish that the trial judge’s ruling was wrong in various respects. In this situation, the decision on the reference was made with respect to a “matter” which was the subject-matter of the legal proceedings at first instance and was not divorced from the ordinary administration of the law. … The fundamental point, as it seems to us, is that s 669A(2) enables the Court of Criminal Appeal to correct an error of law at the trial. It is that characteristic of the proceedings that stamps them as an exercise of judicial power and the decision as a judgment or order within the meaning of s 73.

As to exceptions and regulations, the main regulation has been the requirement in s 35 of the Judiciary Act 1903 (Cth) that a party wishing to appeal to the High Court must seek special leave. This was held valid in Smith Kline & French Laboratories 4 For example, s 669A of the Criminal Code (Qld), the relevant provision in the Mellifont case discussed in the text.

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(Aust) Ltd v Commonwealth [1991] HCA 43; (1991) 173 CLR 194. As to exceptions, so far the only ones provided for have been relatively minor ones like prohibiting appeals from minor industrial matters in Magistrates’ Courts, and they have been held valid (for example, Collins v Charles Marshall Pty Ltd [1955] HCA 44; (1955) 92 CLR 529, Cockle v Isaksen [1957] HCA 85; (1957) 99 CLR 155). The only limit that is clear, from dicta in those cases, is that an “exception” must remain an exception and therefore the whole of one of the categories listed as dot points above could not be excluded.

26.4 Vesting of federal jurisdiction in the State courts [26.110] Section 77 provides that the Parliament may confer jurisdiction in federal matters on State courts. As noted above, this was used extensively before the creation of the Federal Court, still applies in minor matters, and is the basis on which the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) is valid. The Commonwealth has to remember, however, that the courts are still State courts; although it can regulate proceedings within them to a degree (subject now to the Nicholas requirements, below), it must “take the State courts as it finds them”. This was stated in Le Mesurier v Connor [1929] HCA 41; (1929) 42 CLR 481. The Commonwealth had conferred jurisdiction in bankruptcy matters on the State courts, but to ease their administrative load (and to maintain control of the Registrar?) had provided them with a Registrar in Bankruptcy who was a Commonwealth public servant. The High Court held that the Registrar had no power to serve documents on behalf of the Supreme Court. The doctrine of taking the courts as it finds them works both ways; in Commonwealth v Hospital Contribution Fund [1982] HCA 13; (1982) 150 CLR 49, a matter which was in the federal jurisdiction because an officer of the Commonwealth was being sued, the Court held that if a Master of the Court can exercise jurisdiction under State law that jurisdiction is still applicable in a federal matter. A borderline case arose in Russell v Russell [1976] HCA 23; (1976) 134 CLR 495. A family law matter was being heard in a State court, and apart from substantive questions, a procedural matter arose. Section 97 of the Family Law Act 1975 (Cth) provided that proceedings under the Act must be heard in closed court (although with provision for counsellors, welfare officers, etc to be present), and that neither the judge nor counsel could wear robes. Barwick CJ and Gibbs J held that both provisions were invalid. Mason and Jacobs JJ held that both were valid, remarking that they had nothing to do with the “organisation” of the court. Stephen J held that the provision as to robes was valid, but, at 532, that sitting in open court was “one of the ordinary incidents of English [and, by extension, Australian] courts of justice” and that despite the power exercised by courts to order a closed court when circumstances required it, a law that demanded that a court sit in camera as of course was invalid. His decision became the decision of the court. 437

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26.5 General power to regulate judicial proceedings — and its limits [26.120] Under para 51(xxxix), the Parliament has power to make laws incidental to the execution of the judicial power. This extends to making laws that change the laws of procedure and evidence in the conduct of federal matters (in State or federal courts), such as laws about the burden of proof (Milicevic v Campbell [1975] HCA 20; (1975) 132 CLR 307), the admissibility of evidence (Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515), and even a law directing courts to ignore the complicity of police in a “controlled operation” to catch drug dealers (Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173). As we saw in 11.120, it was accepted, though only by a narrow majority, in Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, that the Parliament could limit the grounds which the Federal Court could consider in a judicial review hearing. However, there is a limit. As Gaudron J held in Nicholas at [74]: In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in a manner that does not ensure n equality before the law, n impartiality and the appearance of impartiality, n the right of a party to meet the case made against him or her, n the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, n in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law. It means, moreover, that a court cannot be required or authorised to proceed in any manner n which involves an abuse of process, n which would render its proceedings inefficacious, or n which brings or tends to bring the administration of justice into disrepute. (Emphasis and break-up into dot points added)

Although this was only a dictum of one Justice, it was given the authority of the Court when the majority adopted it in Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334. Bass was a case about the validity of a procedural decision in a lower court, rather than about the validity of Acts of Parliament, but the way the majority referred to Gaudron J’s dictum indicated their acceptance of it as an accurate statement of the law. It has not yet, however, been used to strike down any federal laws. In Thomas v Mowbray, above 26.70, one of Thomas’s grounds of objection to the control orders was that the power to make orders ex parte breached the Nicholas requirements. The majority held that the power was valid as long as the law provided for the possibility of a contested hearing, promptly, after the orders were served on the subject — as it did. 438

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Since the Nicholas decision, the doctrine that State laws must not interfere with the “institutional integrity” of courts has also been developed (see Chapter 34), and the use of that phrase has migrated to cases about federal courts. In TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; (2013) 251 CLR 533, one of the parties to an arbitration complained about the limited jurisdiction granted to the Federal Court under the International Arbitration Act 1974 (Cth). The Court had jurisdiction to enforce an international arbitration, but no power to refuse to enforce an award even if an error of law was evident on the face of award. The High Court held that this did not damage the Federal Court’s integrity; as French CJ and Gageler J explained at [34]: Enforcement of an arbitral award is enforcement of the binding result of the agreement of the parties to submit their dispute to arbitration, not enforcement of any disputed right submitted to arbitration. The making of an appropriate order for enforcement of an arbitral award does not signify the Federal Court’s endorsement of the legal content of the award any more than it signifies its endorsement of the factual content of the award.

26.6 Setting minimum sentences [26.130] It is routine for criminal laws to set a maximum penalty for each offence and of course that limits the powers of the court. In earlier years, and still in some States, there is a mandatory sentence of life imprisonment for murder, so there are precedents — harsh ones — for minimum sentences. In Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381, the Migration Act 1958 (Cth) provided a maximum sentence for the “simple” offence of people smuggling, and a higher maximum as well as a minimum of five years for the aggravated offence, defined as smuggling a group of at least five people. The prosecution could choose whether to charge a person with the “simple” or aggravated offence. Cases in the 1940s5 had upheld the validity of similar provisions in other Acts, but that was before the Nicholas criteria had been spelled out, and before the announcement of the Kable doctrine to be discussed in Chapter 34. Magaming, a fisherman recruited by people smugglers to crew their boat, challenged the validity of the section on the grounds that it gave the executive a discretion to choose the penalty, and that it interfered with the institutional integrity of the court. A 6:1 majority of the High Court held that, although the adjudging and punishing of criminal guilt is an exclusively judicial function, judges need sentencing yardsticks, and a minimum penalty fixes one end of the yardstick. Gageler J dissented. It may still be arguable — one day — that the discretion to set sentences that are proportional to the severity of the crime is a necessary part of the judicial function, and that although the legislature may set a maximum it cannot set a minimum. That day has not yet come. 5 Ex parte Coorey [1944] NSW St Rep 60 and Fraser Henleins Pty Ltd v Cody [1945] HCA 49; (1945) 70 CLR 100.

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26.7 Parliament’s power to change the law during litigation, or to retrospectively validate invalid decisions [26.140] As we saw in 12.50, the Commonwealth Parliament can change the law retrospectively. This principle extends to laws that retrospectively validate executive decisions (Nelungaloo Pty Ltd v The Commonwealth [1947] HCA 58; (1947) 75 CLR 495 or judicial decisions (R v Humby; Ex parte Rooney [1973] HCA 63; (1973) 129 CLR 231) that have been made in excess of jurisdiction. As Mason J said in the latter case at 250, “Chapter III contains no prohibition, express or implied, that rights in issue in legal proceedings shall not be the subject of legislative declaration or action”. The Parliament can also change the law between trial and appeal, as in Australian Building Construction Employees’ & Builders Labourers’ Federation v Commonwealth [1986] HCA 47; (1986) 161 CLR 88, where the Commonwealth responded to an appeal by the BLF against its deregistration by legislatively cancelling its registration. The High Court held, at 96, that: “Parliament may legislate so as to affect and alter rights in issue in pending litigation without interfering with the exercise of judicial power in a way that is inconsistent with the Constitution”. However, if a Commonwealth law went so far as the similar law passed by New South Wales6 in the joint project to deregister the BLF, which directly named the appeal being heard in the Supreme Court and interfered with it, it would have been invalid. As Street CJ and Kirby P stated in Building Construction Employees & Builders Labourers’ Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372, the Act’s provisions “amount[ed] to commands to this Court as to the conclusion that it is to reach”, and would have been invalid if the law had been a Commonwealth law7. As it was a State Act, it was valid; for further discussion of how this principle applies to State laws see 27.70. Cross-reference: For the similar doctrines that are now held to apply to State laws affecting State courts, see Chapter 34.

FURTHER READING William Bateman, “Procedural Due Process under the Australian Constitution” (2009) 31 Syd LR 411 Peter Gerangelos, “The Separation of Powers and Legislative Interference in Pending Cases” (2008) 30 Syd LR 61

6 Builders Labourers Federation (Special Provisions) Act 1986 (NSW); see s 3 in particular. 7 For further discussion, see Peter Gerangelos, “The Separation of Powers and Legislative Interference in Pending Cases” (2008) 30 Syd LR 61.

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Patrick Keyzer, “Preserving Due Process or Warehousing the Undesirables: To What End the Separation of Judicial Power of the Commonwealth?” (2008) 30 Syd LR 101, and Elizabeth Handsley, “Comment” (2008) 30 Syd LR 115 Sarah Murray, “Giving Chapter III Back its Constitutional Mojo? — Lessons From State Courts and Beyond” (2014) 40 Mon ULR 198 Fiona Wheeler, “Due Process, Judicial Power and Chapter III in the New High Court” (2004) 32 Fed L Rev 205

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PART E CONSTITUTIONAL LAW AND THE STATES Chapter 27. “Internal” Constitutional Law of the States — A General Power to Make Laws, Subject to “Manner and Form” Provisions Chapter 28. General Effects of the Commonwealth Constitution on State Powers — Concurrent Powers, Exclusive Powers and Prohibitions Chapter 29. State Laws not to Impose Customs or Excise Duties Chapter 30. Freedom of Interstate Trade, Commerce and Intercourse Chapter 31. No Discrimination Against Out-of-State Residents Chapter 32. Inconsistency with Commonwealth Laws Chapter 33. Commonwealth and State Legislative Powers Over Each Other and their Limits — Intergovernmental Immunities Chapter 34. Independence of State and Territory Courts and Judges Chapter 35. A Final Note on the States, and the Continuing Drive for More Uniform Laws

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“Internal” Constitutional Law of the States — A General Power to Make Laws, Subject to “Manner and Form” Provisions 27.1 Context and overview [27.10] In Chapter 3 we saw that in the nineteenth century, the six Australian colonies were given self-government, each under the system of responsible government. We saw that their legislatures were all set up under Constitution Acts, which were either directly enacted by the British Parliament or enacted by an earlier legislature of the colony, under an authority granted by the British Parliament. We also saw that their powers to make laws repugnant to the common law, and laws about the Constitution, powers and procedure of the legislature (subject to a proviso discussed below), were confirmed by the Colonial Laws Validity Act 1865 (UK) (CLV Act). The trio of Privy Council cases — Burah, Hodge and Powell — had ruled that when not subject to a specific restriction, their powers were as “plenary and ample” as the powers of the British Parliament. In 1901 the colonies federated, and s 106 of the new Commonwealth Constitution provided: The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth … until altered in accordance with the Constitution of the State.

Section 107 continued the powers of the States, but as we have seen in Chapter 17 and the following chapters, this did not mean that any powers were “reserved” to the States. As the words “subject to this Constitution” in s 106 implies, the Constitution also imposes many limits on the powers of the States. They will be studied in Chapters 28–34. This Chapter will discuss the “internal” doctrines of State constitutional law, which still 444

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reflect the principles stated by the British Parliament and Privy Council in the nineteenth century and are still relevant in those areas where the Commonwealth Constitution has no impact.

27.2 The State Constitution Acts — summary of contents Ordinary Acts, studded with harder-to-amend sections [27.20] When the States entered the federation their colonial Constitution Acts continued, but as noted in Chapter 3 they had been given power by the British Parliament to amend them, and that power was continued, or at least referred to, by s 106 of the Commonwealth Constitution. All State Constitution Acts except the Queensland and Western Australian ones have been re-enacted with new short titles since federation.1 Queensland has amended its original Constitution Act 1867 (Qld) by enacting separate Constitution Act Amendment Acts several times, and then re-enacting those parts that were not “entrenched” by “manner and form” provisions in 2001, so that it now has four Acts that count as parts of its “Constitution”.2 Western Australia still has two Acts from colonial times3 that the Parliament seems incapable of consolidating, though it has frequently been recommended to do so and it has the power to do so. References below to State “Constitutions” refer to the one Act, the four Acts combined, or the two Acts combined, as the case may be. The State Constitution Acts, as their names imply, are all ordinary Acts of Parliament; even the recently re-enacted Constitution of Queensland 2001 (Qld) is an Act of Parliament though the word Act has been omitted from the short title to make it seem more like a supreme law. None of the State Constitutions has a “covering clause 5” that makes it a supreme law, or a “section 128” that makes the whole of it amendable only by a special process.4 However, as noted in Chapter 3, the States’ power to amend their own Constitutions, granted by the CLV Act, s 5, was subject to a proviso: 1 Constitution Act 1902 (NSW); Constitution Act 1934 (Tas); Constitution Act 1975 (Vic); Constitution Act 1934 (SA), referred to below simply by the name of the State. 2 Constitution Act 1867, Constitution Act Amendment Act 1890; Constitution Act Amendment Act 1934, and the Constitution of Queensland 2001 (all Qld), referred to below as Qld 1867, etc. As to the 1890 Act, see fn 8 below. 3 Constitution Act 1889 (WA) and Constitution Acts Amendment Act 1899 (WA), referred to below as WA 1889 or WA 1899. 4 In 1891 Sir Samuel Griffith thought that this situation would not last. He said: “The American theory is — and I believe that in the abstract the theory is right — that all constitutions are the act of the individual members of the community, and that they delegate their power to the legislature, and that legislature can only work within the authority given to it. … I have little doubt that before long the constitutions of many of these colonies, will be changed, and very likely they will be changed in the direction [of] the American system of having a convention, elected by the people for that duty only, and dissolving after it has performed its duty” (Debates, National Australasian Convention, Sydney, 18 March 1991, p 490). It did not happen. Some still hope that it will; see Nicholas Aroney, “Popular ratification of the state constitutions”, in Paul Kildea, Andrew Lynch and George Williams (eds), Tomorrow’s Federation: Reforming Australian Government, Federation Press, 2010.

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[P]rovided that such laws (meaning laws “respecting the constitution, powers, and procedure of [a representative] legislature”) shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, order in council, or colonial law for the time being in force in the said colony.

Since there is a normal “manner and form” of passing laws — they are passed by a simple majority on the third reading in both of the Houses (or the only House), and then given assent by the Governor — the reference to “such manner and form as … may be required” must have referred to a special, more onerous than usual, manner of passage of a Bill. Some such special requirements had been included in the original Constitution Acts of the colonies or the British covering Acts authorising them, but, as noted in Chapter 3, most of them had been repealed, by Bills following the prescribed manner and form, before federation. However, in addition to giving force to provisions imposed by “Act of Parliament” (which in the CLV Act meant another Act of the British Parliament), by its reference to “colonial law” the proviso clearly implied that the colonial (later State) parliaments could also impose special manner and form requirements for the passage of later laws (and that the special provisions could be in any colonial law, not necessarily the Constitution Act). All of them have done so, with more or less enthusiasm, as shown in the table below. This means that State constitutional law consists of two, quite different, sets of rules — one set that applies to the ordinary sections of the State Constitutions and to laws made under them, and a different set that applies to the effectively “entrenched” provisions (as we will see below, under the High Court’s interpretation of the law not all of the purported entrenchments are effective). The first set of rules is discussed in section 27.3, and the second set in sections 27.4 and 27.5.

Legislatures with apparently self-generated powers [27.30] All of the Constitutions except the Tasmanian one include a section that states that the Parliament has power to make laws for the “peace, welfare and good government”,5 or “peace, order and good government”6 of the State,7 or simply to “make laws in and for Victoria in all cases whatsoever”. If one knew nothing of the history of the colonies, this would look like the most arrogant act of lifting themselves into power by their own bootlaces, but of course the original assumption of power was authorised by the British Parliament, and by passing the CLV Act, that Parliament even gave the colonial parliaments power to change their own powers. Since federation the general legislative power of the State parliaments must be seen as authorised by ss 106 and 107 of the Commonwealth Constitution. 5 NSW, s 5 and Qld 1867, s 2. 6 As discussed in 3.90, the fact that the Tasmanian Parliament has legislative power has to be implied from the circumstances of its creation, and the fact that it is a Parliament. 7 WA 1889, s 2. SA, s 5 provides that the Parliament has the same powers as the previous Legislative Council, and under the South Australia Act 1842 the Council could make laws for the peace order and good government of the Province.

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Table 27.1 Entrenched provisions or concepts in State laws STATE

ENTRENCHING PROVISION

MANNER AND FORM SPECIFIED

SUMMARY OF CONTENT OF PROTECTED (“ENTRENCHED”) PROVISIONS OR CONCEPTS

NSW

CA 1902, s 7A

Referendum

CA 1902, s 7B

Referendum

Existence and powers of LC, voting system for LC, eligibility to vote and stand for either House Compulsory voting, voting system for LA, tenure of judiciary

CA 1975, subs 18(1B)

Referendum

Constitution and duration of both Houses, frequency of sitting, rules about Appropriation Bills and deadlocks, existence of local government, existence of Supreme Court, independence of DPP, provisions regarding the Governor and executive, independence of Auditor-General, Ombudsman and Electoral Commissioner

CA 1975, subs 18(2)

Special (3⁄5) majority

Provisions regarding the Crown, general provisions about Parliament, including quorum, standing orders, qualifications of voters and members, vacancies, public ownership of water services and tenure of judiciary

CA 1975, subss 18(2AA)–(2A)

Absolute majority

General provisions about Supreme Court, including general grant of jurisdiction over “all cases”

Qld

CA 1867, s 53 CAAmA 1934, s 3 CAAmA 1934, s 4 CofQ 2001, s 78

Referendum Referendum Referendum Referendum*

Position of Queen and Governor Upper House not to be re-established Maximum term of LA three years8 Existence of a system of local government*

SA

CA 1934, s 8 CA 1934, s 10A

Absolute majority Referendum

CA 1934, s 88 CA 1934, s 64A

Referendum Absolute majority*

Constitution of either House Existence of both Houses, powers of LC, s 8 above, resolution of deadlocks Fair electoral distributions System of local government*

Vic

WA

CA 1889, s 73

Absolute majority + Position of Queen and Governor, existence referendum of, and direct election of, both Houses, no Electoral Act 1907, Absolute majority reduction in number of members s 16M Principles of electoral subdivisions

Tas

CA 1934, s 41A

2

⁄3 majority in LA*

Fixed four-year term of LA*

Explanations: CA – Constitution Act; CAAmA – Constitution Act Amendment Act; LA and LC – Legislative Assembly and Council; DPP – Director of Public Prosecutions; Referendum means a Bill shall not be assented to unless approved by a majority of the electors; Absolute majority means a Bill must be passed by an absolute majority (majority of the full membership of the House) in both Houses; Special majority means a Bill must be passed by three-fifths of the membership of both Houses. * In the cases without an asterisk, the entrenching provision entrenches itself, and the protected provision is therefore “doubly entrenched”; see 27.150. The asterisked provisions lack that protection.

8 After the expiration of the Parliament elected in 2015, this section and the Constitution Act Amendment Act 1890 will be repealed and instead a new s 19I of the Constitution of Queensland 2001 (Qld) will referendum-entrench four-year fixed terms with an election in October of every fourth year.

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In all States except Queensland the Parliament is bicameral (the history of the abolition of the Queensland Legislative Council is recounted below). In South Australia and Tasmania the “lower” House is called the House of Assembly, and in other states the Legislative Assembly. In all cases where it still exists the “upper” house is the Legislative Council. In all the mainland States the “lower” House is elected from single-member electorates, and in those States with an “upper” House it is elected by proportional representation, by the State as one electorate in the case of New South Wales and South Australia, and from a few multi-member electorates in the case of Victoria and Western Australia. In Tasmania the situation is reversed, with the House of Assembly elected from multi-member electorates and the Legislative Council from single-member electorates. Several of the States with bicameral parliaments now have constitutional provisions for the resolution of disputes between the Houses over the passage of Bills. In New South Wales there must first be a conference of “managers” of the Houses, followed by a non-deliberative joint sitting, and if the matter is not resolved the Bill can be put to a referendum9 (see below for the validity of this section, even when applied to a proposal to abolish the Legislative Council, and the less than mandatory nature of the conference and joint sitting). However, the annual appropriation can only be delayed for a month, after which the Governor can assent to it.10 In Victoria11 there is a long series of dispute resolution steps that may lead to a joint sitting on the Commonwealth model, but annual appropriations can only be delayed by a month.12 The South Australian Act provides for a possible double dissolution, or for the election of additional members to the Legislative Council,13 but there is no provision for a referendum or joint sitting should the deadlock continue. There is, however, a provision in the Standing Orders for a conference between “managers”,14 which has been used effectively to resolve deadlocks on a number of occasions. Western Australia and Tasmania have no such provisions — like the House of Lords before 1911 or the US Senate, the “upper” Houses have a complete right to block any legislation.

The three “branches” of government in the State Constitutions [27.40] The State Constitutions all mention the existence of the executive government and the Supreme Court as well as the Parliament, but do not strictly “vest” each form of power in the corresponding branch, as the Commonwealth Constitution does. It follows from this, as we will see below in 27.70, that there is no enforceable separation of powers in the State Constitutions, though the Commonwealth Constitution does give some protection to the independence of the State judiciaries (Chapter 34). 9 10 11 12 13 14

NSW, s 5B. NSW, s 5A. Vic, ss 65AS–65G. Vic, s 65. SA, s 41. Legislative Council, SOs 251–62; House of Assembly SOs 218–23.

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The State Constitutions generally contain provisions that refer to the existence of a Governor who is “advised” by an Executive Council, but make it clear that responsible government is contemplated by providing for the passage of appropriations by the Parliament.15 Of the States with bicameral parliaments, all except New South Wales have provisions similar to ss 53–55 of the Commonwealth Constitution, which reinforce the financial supremacy of the government and the lower House by providing that money Bills must originate in the “lower” House, prohibit amendments of such Bills in the “upper” House, and limit the power of the “lower” House to exploit this by prohibiting “tacking”.16 The details vary from State to State; readers in any State should read the sections cited in the footnote and consult the specialist texts listed under Further Reading. However, since the Constitutions are generally amendable by an ordinary Act of Parliament (as discussed below), even the anti-tacking provisions are not “constitutional” in the sense that a breach of the provision would produce an invalid statute; all of these rules are enforced by the Presiding Officers of the Houses, and if anything slips past them it remains a valid law. Each of the Constitutions also purports to guarantee the tenure of the judges of, at least, the Supreme Court (in Queensland the District Court as well, and in New South Wales and Victoria all the courts),17 but without effective entrenchment of the provisions they can be overridden by a later Act; see the discussion of McCawley’s case below. New South Wales and Victoria have attempted to entrench some guarantee of the jurisdiction and independence of the courts; see the discussion of whether this will be effective against later attempts at repeal or amendment in 27.170 below.

27.3 States’ legislative powers are “plenary and ample” (subject to the Commonwealth Constitution and to binding “manner and form” provisions) [27.50] As noted in Chapter 12, even in colonial times the Privy Council had ruled, not once but three times, that, though the powers of representative colonial legislatures might be limited by specific provisions, within those limits they are “plenary and ample”.18 Therefore a State law does not need to be checked like a Commonwealth law against a list of “heads” of power; the power to make laws for the “peace welfare and good government of the State” (or equivalent phrase) is enough. Nor can a State law be checked against desirable principles or policies or human rights, unless they are found 15 NSW, ss 39–45, Vic, ss 62–65, Qld 2001, ss 64–66, Tas, ss 36–40, SA, ss 60–64, WA 1889, ss 64–72. 16 Vic, s 62, Tas, ss 37, 39–41, SA, ss 61–62, WA 1899, s 46. In NSW the lack of similar provisions seems to be a trade-off for the Council’s inability to prevent the passage of an annual appropriation Act. 17 NSW, ss 52–55; Vic, ss 87AAA–87AAJ; Qld 2001, ss 61–63; Tas: Supreme Court (Judges’ Independence) Act 1857, s 1; SA, ss 74–75; WA 1889 s 55. 18 R v Burah (1878) 3 App Cas 889; Hodge v The Queen (1883) 9 App Cas 117; Powell v Apollo Candle Co Ltd (1885) 10 App Cas 282.

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in the Commonwealth Constitution. In Building Construction Employees & Builders Labourers’ Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372 (BLF case) Street CJ had held that the words “peace, welfare and good government … should not be treated as a jingle” and that “[l]aws inimical to, or which do not serve, the peace, welfare, and good government of our parliamentary democracy … will be struck down by the courts as unconstitutional”. However, in Union Steamship Company of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1 a joint judgment of the High Court restated the plenary nature of the powers granted, remarked that the dicta in the BLF case were surprising, and emphasised that: … the words “for the peace, order and good government” are not words of limitation. They did not confer on the courts of a colony, just as they do not confer on the courts of a State, jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the colony. Just as the courts of the United Kingdom cannot invalidate laws made by the Parliament of the United Kingdom on the ground that they do not secure the welfare and the public interest, so the exercise of its legislative power by the Parliament of New South Wales is not susceptible to judicial review on that score.

The four non-limits revisited; local governments’ power to make by-laws [27.60] As we saw in Chapter 12, the States can make laws delegating legislative power, laws with retrospective or extraterritorial effect, and laws that breach international human rights standards. As to delegating legislative power (which was the specific issue in the Burah/Hodge/ Powell trilogy), State laws cannot only give delegated power to the Governor in Council or Ministers to make regulations; they can create systems of local government and give the local governments the power to make “by-laws”, or local laws. Of the cases in the trilogy, Hodge is the one that comes closest to being a specific precedent for this; it was about powers granted by a provincial Act to local Boards of Licence Commissioners, including the power to make resolutions as to the conduct of licensed premises. People with that dangerous thing, a little knowledge, try to avoid the payment of their rates or parking fines by arguing that local government is not mentioned in the Commonwealth Constitution. It does not need to be; the colonial parliaments had the power to create systems of local government before federation and it was preserved, as a power of the States, by s 107.

No enforceable separation of powers, in the States’ own Constitutions [27.70] As noted above, although the State Constitutions refer to the existence of the courts they have not been seen as implying a strict separation of powers. McCawley’s case, below, shows that the tenure of the State judiciaries is not guaranteed. New South Wales and Victoria have purported to entrench provisions dealing with the judiciary in their Constitution Acts; whether these are binding will be discussed in 27.170. In the 450

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BLF case, above, the Supreme Court held that the State Parliament could interfere in the judicial process in a way that would arguably be invalid in the case of the Commonwealth. Even Street CJ, who held that the words “peace, welfare and good government” should impose some limit on arbitrary powers, held that an Act which sought to directly abort an appeal being taken to the Court of Appeal did not transgress the limit. It is therefore hard to work out just where he would have placed the limit19 and, as noted above, the High Court expressed disapproval of his Honour’s general musings in Union Steamship. Since the BLF case, the High Court has developed the doctrine in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, under which State laws cannot interfere with the independence and integrity of the State courts (see Chapter 34). Under this principle, a law like the one held valid in the BLF case, which directly named the appeal being heard in the Supreme Court and interfered with it, may well now be invalid. But in so far as the Kable principle reflects something of the doctrine of separation of powers, it works only one way; there still appears to be nothing to stop a State Parliament exercising judicial power itself, or giving it to the executive. In Duncan v New South Wales [2015] HCA 13; (2015) 255 CLR 388 the plaintiffs challenged legislation that cancelled three specific mining leases, after the Independent Commission Against Corruption (ICAC) had held that they had been granted as a result of corrupt conduct. The plaintiffs argued that it amounted to a Bill of Pains and Penalties and that the enactment of such a thing was an exercise of judicial power by the Parliament and therefore invalid. The Court, in a joint judgment, held that the law was not a Bill of Pains and Penalties; although it referred by way of background to the ICAC findings and the need to deter corruption it did not contain any direct assertion by the Parliament of the parties’ guilt. Their Honours therefore did not have to rule on the plaintiffs’ “major premise” — that the passage of a Bill of Pains and Penalties by a State Parliament would be invalid. Under current doctrines, even after Kable, it seems that such a law would still be valid; but the case also illustrates the fact that by careful drafting a Parliament can enact a law that goes very close to being a Bill of Pains and Penalties without actually being one, thereby avoiding the issue.

Power to amend their own Constitution Acts, even by implication [27.80] In early cases the High Court had developed a (with respect, very sensible) doctrine that even though the State Constitutions could be amended by parliaments, they were binding, and overrode inconsistent laws, until expressly amended, because they were the source of the parliaments’ powers. In Cooper v Commissioner of Income Tax (Cooper’s case) [1907] HCA 27; (1907) 4 CLR 1304, the Chief Justice of Queensland had alleged that to subject his salary to income tax was to diminish it, contrary to s 17 of the Constitution Act 1867 (Qld). The High Court unanimously held that to impose a tax on 19 See Fiona Wheeler, “BLF v Minister for Industrial Relations: The Limits of State Legislative and Judicial Power”, in George Winterton (ed) State Constitutional Landmarks, Federation Press, 2006, Ch 13.

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a salary was not to diminish the salary, but, also unanimously, that if it was a diminution it would have been unconstitutional. As Griffith CJ put it: The distinction between what are called in jurisprudence “fundamental laws” and other laws is, no doubt, unfamiliar to English lawyers. Nor under the Constitution of England is there any such distinction. The Parliament of the United Kingdom is supreme, and can make any laws it thinks fit, and the question whether a law once passed is beyond the competency of the legislature or not cannot arise. If, therefore, a later is inconsistent with an earlier law, the later must prevail. But in States governed by a written Constitution this doctrine has no application. The powers of the Queensland legislature, like those of the other Australian States, are derived from the grant contained in the Order in Council by which it was established. No doubt the Queensland legislature had power by virtue of paragraph ii of the Order in Council to make laws “in all cases whatsoever.” But these words must be read with the rest of the Order in Council, and clearly did not authorize the legislature, while the provisions of the Constitution remained unaltered, to make any law inconsistent with it.

When the Queensland Parliament enacted the Industrial Arbitration Act 1916 (Qld) it created a Court of Industrial Arbitration whose judges, including the President, only had tenure for seven years, with the possibility but no guarantee of renewal. To increase the prestige of the Court the Act provided that its judges could be made Judges of the Supreme Court, despite a limit on the number of judges that appeared in the Supreme Court Act itself. Thomas McCawley was appointed as the first President of the new Court and was given a commission as a judge of the Supreme Court. The validity of his appointment was challenged, by the leaders of the Bar,20 on the ground that his (presumed)21 seven-year appointment to the Supreme Court was a breach of the life tenure implied by s 15 of the Constitution Act 1867 (Qld). The Supreme Court and the High Court, each by majority, applied the principle from Cooper’s case and held that the appointment was invalid.22 McCawley appealed to the Privy Council. His appeal succeeded: McCawley v The King [1920] UKPCHCA 1; (1920) 28 CLR 106. Their Lordships noted “the distinction between Constitutions the terms of which may be modified or repealed with no other formality than is necessary in the case of other legislation, and Constitutions which can only be altered with some special formality”. They referred to the two kinds 20 For the details, and the conservative-vs-labor and Mason-vs-Catholic overtones of the case, see Malcolm Cope, “The Political Appointment of T W McCawley as President of the Court of Industrial Arbitration, Justice of the Supreme Court and Chief Justice of Queensland” (1976) 9 UQLJ 224 and Nicholas Aroney, “Politics, Law and the Constitution in McCawley’s Case” (2006) 30 MULR 605. 21 Of all the judges who considered the matter, only Higgins J in the High Court concluded that there was no inconsistency between the Acts and that, although McCawley only had a seven-year appointment to the Court of Arbitration, his commission to the Supreme Court gave him an appointment to that Court for life. With respect, this is more consistent with the proper principles of interpretation than the other judgments; see Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 10 where Barton J says: “[T]he court must be satisfied that the two enactments are so inconsistent … that they cannot stand together, before they can … imply the repeal of [a] prior enactment”. 22 Re McCawley [1918] St R Qd 62 and McCawley v The Queen [1918] HCA 55; (1918) 26 CLR 9.

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as “uncontrolled” and “controlled” respectively (the more usual terms are “flexible” and “rigid”) and declared that: [I]t is of the greatest importance to notice that where the Constitution is uncontrolled the consequences of its freedom admit of no qualification whatever. The doctrine is carried to every proper consequence with logical and inexorable precision. Thus when one of the learned Judges in the Court below said that, according to the appellant, the Constitution could be ignored as if it were a Dog Act, he was in effect merely expressing his opinion that the Constitution was, in fact, controlled. If it were uncontrolled, it would be an elementary commonplace that in the eye of the law the legislative document or documents which defined it occupied precisely the same position as a Dog Act or any other Act, however humble its subject matter.

They noted that the Constitution then included one provision (s 9) providing for a special manner of amendment of the provisions constituting the Legislative Council (a bill to be passed by two-thirds majorities of both Houses and then laid before both Houses of the Imperial Parliament before being assented to by Her Majesty) and described it as “this isolated section carefully selecting one special and individual case in which limitations are imposed upon the power of the Parliament”, but concluded that “[t]he Legislature of Queensland is the master of its own household, except in so far as its powers have in special cases been restricted”. McCawley won his position on the Supreme Court,23 but the notion that basic principles of constitutionalism might apply to the governance of the States suffered a setback. The State parliaments won the power to ignore their Constitutions and to amend them, not only by express amendment but simply by passing later Acts that were inconsistent with them, whether the members had thought about the inconsistency or not, as long as the matter being amended was not “entrenched”. As decisions of the Privy Council were then binding on all courts in Australia, it became accepted that McCawley established that the doctrine of implied repeal or amendment applied to Constitution Acts as much as to the most trivial of Acts (a Dog Act being the standard example of a really trivial Act). Of course, Privy Council appeals have now been abolished,24 and the High Court has announced that it is no longer bound by decisions of the Privy Council whether made before or since the abolition;25 however, nobody has yet sought to revive the Cooper’s case doctrine, and the Court has thrown out no intimations that it is waiting for such an argument.

Power to change the constitution of the Parliament itself, if not protected by a “manner and form” provision [27.90] It follows clearly enough from the fact that the CLV Act gave power to representative legislatures to make laws with respect to their own “constitution, powers and 23 He later received a normal life-time appointment to the Court, and succeeded Cooper CJ as Chief Justice! However, he died three years later, aged only 43. 24 Australia Act 1986 (Cth) s 11. 25 Viro v The Queen [1978] HCA 9; (1978) 141 CLR 88.

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procedure” that, as long as no earlier Parliament had protected the existence of the two Houses by a “manner and form” provision, or if such provision was complied with, the Parliament could abolish one of its Houses. However, this has had to be confirmed twice by the High Court. In fact an even greater practical barrier to the abolition of a House than the existence of a “manner and form” provision is the fact that an Abolition Bill will have to be passed by the target House. However, in several cases the “upper” House has been persuaded to agree to a deadlock resolution procedure. The current ones are listed above at 27.30, but the earliest of them was in Queensland, where the Legislative Council had first been persuaded to agree to the enactment of the Parliamentary Bills Referendums Act 1908 (Qld), under which a deadlocked Bill could be put to a referendum, and if the voters approved the Bill it could receive assent regardless of the Council’s failure to pass. In 1917, the government tried to use that procedure in respect of a Bill to abolish the Council. Members of the Council sought an injunction, arguing that the Referendums Act could not apply to such a fundamental matter as the bicameral nature of the Parliament. In Taylor v Attorney-General (Qld) [1917] HCA 45; (1917) 23 CLR 457 the High Court held that the Referendums Act was authorised by the CLV Act as a law with respect to the powers and procedure of the legislature, and would extend to the abolition of the Council. Isaacs J remarked that under the CLV Act, the representative nature of the legislature would need to be preserved. The electors voted “no” — they apparently preferred even an absurdly undemocratic house of review to having none at all. The Council was abolished five years later by the Constitution Act Amendment Act 1922 (Qld); this time the Council voted for its own abolition because the government had stacked it with its own supporters. No litigation ensued; the conservatives petitioned the King to withhold assent, but he replied that he must follow the advice of his Ministers. New South Wales followed the Queensland history with some extra twists. Following a failed attempt in 1925 by Premier Lang to abolish the Council by stacking it, the Parliament — now under the control of Lang’s opponents — amended the Constitution Act 1902 (NSW) in 1929 by adding s 7A, providing that a referendum must be held to approve any Bill abolishing or reconstituting the Council. In 1930 Lang tried to repeal s 7A and abolish the Council without bothering with a referendum, which led to Attorney-General (NSW) v Trethowan [1931] HCA 3; (1931) 44 CLR 394, in which the High Court held that s 7A was binding (see 27.170). In 1933 the electors approved amendments by which the nominated Council was replaced by an indirectly elected one (elected by the members of the Assembly and of the Council itself), and ss 5A and 5B, referred to in section 27.30, were added to the Constitution. In 1960 Labor tried for the third time to abolish the Council and the Council rejected the Bill, so the government proceeded to organise the referendum both permitted by s 5B and required by s 7A. Just as in Queensland 43 years earlier, the councillors sought to restrain the holding of the referendum, and, just as in the earlier case, they failed. In Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214 the High Court confirmed the ruling in Taylor’s case, adding that the power to impose the referendum requirement and to abolish the Council (if that should be approved at the referendum) did not just come 454

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from the CLV Act; it was now part of the general power to make laws for the “peace, welfare and good government” of the State. (A minor issue as to whether one part of the deadlock-resolving procedure was mandatory or “directory” is discussed below at 27.140.) To complete the parallel with Taylor’s case, the people voted to preserve the Council. In 1978 Labor gave up attempting to abolish the Council and instead reformed it, with the approval of the electors, into the present elected body. If the power of a State Parliament extends to the abolition of one of its constituent Houses, it clearly includes the power to make lesser changes to the constitution of the Parliament. As noted in 3.80, the Legislative Councils of the States other than New South Wales and Queensland were originally elected on a rich man’s franchise, but inflation gradually expanded the number of those who could vote and the Councillors became less resistant to democratic ideas. Tasmania introduced adult suffrage for the Council (still elected from single-member districts with unequal enrolments) in 1968. The modern versions of the Councils, elected by proportional representation with all residents entitled to vote, were implemented one by one in the bicameral mainland States: South Australia in 1973; New South Wales (as already noted) in 1978; Victoria in 2003; and Western Australia in 2005.

Power to enact unfair electoral laws [27.100] Another consequence of the plenary power of parliaments is that the party or coalition in power can “gerrymander”26 the voting system to ensure that it is easy for them to stay in power even with a minority of the popular vote. After the Country Party began to win seats in the parliaments it managed to persuade its coalition partners to amend electoral laws to provide for zonal systems in which the number of electors per district was much less in the rural zone than in the urban zone. As the influence of the Country Party diminished, and the Legislative Councils were reformed, all of these zonal systems were eventually repealed (except for a weakened version that remains in force for the Western Australian Legislative Council).27 As we will see in 27.190, whereas “manner and form” provisions were once used to perpetuate anti-majoritarian systems, they are now in force in all of the mainland States except Queensland to make it difficult to go back to the old systems. However, before the zonal system for the Western Australian Legislative Assembly had been repealed, there had been an attempt to have it ruled unconstitutional. The High Court had ruled in Attorney-General (Cth); Ex rel McKinlay v Commonwealth [1975] 26 The word “gerrymander” was originally coined to describe electoral distributions where the boundaries were drawn so as to “rope off” the strongly opposition-supporting areas into one electorate, leaving the government with a better chance of winning most of the others, as in a district described as “Gerry’s salamander” in the Massachusetts election of 1812. Pedantic American political scientists distinguish this from “malapportionment” in which the rules for forming districts allow for some (usually rural) districts to have much smaller voter numbers than other districts, but in Australia “gerrymander” tends to be used to describe either type of system-rigging. 27 Electoral Act 1907 (WA), s 16H.

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HCA 53; (1975) 135 CLR 1 that “one vote, one value” was not required in Commonwealth elections (see 15.70), but the disproportion in Western Australia was much worse. Since McKinlay the Court had decided Australian Capital Television Pty Ltd & New South Wales v Commonwealth [1992] HCA 45; (1992) 177 CLR 106 in which their Honours gave some weight to the words “directly chosen by the people” in ss 7 and 24 of the Commonwealth Constitution in finding that there was a constitutional guarantee of freedom of political discussion (see Chapter 14). In McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, the plaintiff sought a declaration that the distribution of electorates for both Houses of the Western Australian Parliament was invalid. The plaintiff ’s argument was based partly on a translation of the effects of ss 7 and 24, through s 106, to the States’ Constitutions, but principally on the ground that the electorates breached section 73(2) of the Constitution Act 1889 (WA), which provided, like s 24 of the Commonwealth Constitution, that the members should be “chosen directly by the people”. The problem was that this section had been inserted into the Constitution Act only in 1978, when Western Australia already had a long history of unequal electorates, and there was nothing to indicate that its insertion was intended to impliedly repeal the existing electoral laws. In McGinty the Court, Toohey and Gaudron JJ dissenting, rejected the plaintiff ’s claim, though Gummow J did adopt the point made by McTiernan and Jacobs JJ in McKinlay, that the variations in numbers of electors or people in single-member divisions could be so grossly disproportionate as to deny ultimate control by popular election, and that “when it arises, such a question is to be determined by reference to the particular stage which then has been reached in the evolution of representative government”. The Court has now drawn stronger implications about the right to vote in federal elections in the cases of Roach and Rowe (see 15.50–15.60), so there may be scope for an argument that representative government has evolved further since 1992. There may also be scope for an argument that allowing one party to manipulate the system in a State to keep itself in power should be prohibited because it could have a spill-over effect on federal election campaigns, but for the moment the power to monkey around (or “salamander around”) with the electoral system appears still to be a part of a State Parliament’s power, which can only be limited by the insertion of a “manner and form” restriction.

Power to enact racist laws, prevented only by the Racial Discrimination Act 1975 [27.110] But for the existence of the Racial Discrimination Act 1975 (Cth) (the RDA), the States would be able to enact racist laws. As we will see in later chapters, they have done so in the past; Western Australia was able in 1904 to include a section in a Factories Act that prevented the employment of further Chinese people in factories (Lee Fay v Vincent, to be discussed at 31.20) and it was only inconsistency with the RDA that stopped Queensland from making it impossible for indigenous people to apply for land titles (Koowarta v Bjelke-Petersen and Mabo v Queensland (No 1); see 32.40). Similarly, but 456

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for the RDA, the States could impose race-based restrictions on voting rights. Despite widespread misapprehensions about s 25 of the Constitution,28 it is not the source of the States’ power to do this. It is actually an attempt by the drafters to impose a penalty on a State which has a discriminatory franchise by reducing its entitlement to members in the House of Representatives. The section provides that: For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.

The power to make racist laws is not derived from, or authorised by, s 25; like all other powers of the State parliaments, it was, before the enactment of the RDA, simply part of their “plenary and ample” legislative power. Section 25 may impose only a feeble punishment — States would have to disqualify a considerable percentage of their citizens before they lost one seat in the Representatives — but it does not “allow” the States to make racist laws, and it only “contemplates” racist laws in the same way that a law penalising murder contemplates that people will in fact commit murder.

States not subject to the constitutional limits that apply expressly to the Commonwealth [27.120] The proposition stated in the heading above seems too obvious to need confirmation, but there is case law to reinforce it. The States in fact usually pay fairly-assessed compensation when they acquire land and other property, but it had always been believed that they were under no constitutional obligation to do so. This was confirmed in Durham Holdings Pty Ltd v New South Wales [2001] HCA 7; (2001) 205 CLR 399. New South Wales had enacted the Coal Acquisition Act 1981 (NSW) to acquire the rights to coal under land that had been granted a century before without reservation of the rights to coal, and in 1990 it had imposed a cap on the amount of compensation it would pay. The High Court confirmed that the legislative power of the State was “ample and plenary” and that the payment of compensation was at the discretion of the Parliament. Other cases have confirmed that the “guarantee” of jury trial in s 80 applies only to the trial of Commonwealth offences and not to State offences (Byrnes v The Queen [1999] HCA 38; (1999) 199 CLR 1 at [70]; an offence against State law, even though the Commonwealth DPP had brought the prosecution) and that s 116’s protection of religious freedom does not apply to the States (Grace Bible Church v Reedman (1984) 36 SASR 376, a prosecution for running an unlicensed school). 28 See Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution; Report of the Expert Panel, Department of Families, Housing, Community Services and Indigenous Affairs, 2012, pp xiv and 14, where an Expert Panel claims that s 25 “contemplates”, “allows for” or “countenances” racist voting laws.

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27.4 Limited power to make laws which bind later parliaments; why only some manner and form provisions are binding [27.130] As noted above, the CLV Act, s 5 first provided that the State parliaments could make laws about their own “constitution, powers and procedure” and then provided that, when they did so, they had to comply with “such manner and form as may from time to time be required” by a previous law. Many of the States had enacted manner and form provisions by 1986, and some were anxious that they should remain binding, so when the CLV Act was repealed by the Australia Act 1986 (Cth) (Australia Act), the new Act included s 6 which provides: [A] law made after the commencement of this Act by the Parliament of a State respecting the constitution, powers or procedure of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament, whether made before or after the commencement of this Act.

If the CLV Act, and now the Australia Act, are the only source of authority for the State parliaments to make binding manner and form provisions, their words need careful analysis. Indeed the previous sentence needs careful analysis — note that the question is not whether the parliaments have power to enact a manner and form provision, but whether, once enacted, one will be binding on later parliaments. The former s 5 and the current s 6 apply only to the enactment of laws “respecting the constitution, powers or procedure of the Parliament”, and say nothing about the enactment of laws respecting any other matter. In essence, the presupposition from which the courts begin is that the powers of the State parliaments are like that of the British Parliament — that they can ignore any restrictions that a previous parliament has imposed on them. However, the States, unlike the British Parliament, can be made subject to a higher law — first the CLV Act and now the Australia Act enacted under para 51(xxxviii) of the Constitution — so a manner and form provision can be binding if and only if it is made so by the higher law, as strictly interpreted. If, for example, a section of a State Constitution Act says “the Governor shall not signify her Majesty’s assent to a law reimposing the death penalty unless the majority of the electors approve the proposed law”, a later law reimposing the death penalty may be making an implied assertion that the Parliament had the power to do it, but it would not be about the constitution, powers or procedure of the Parliament and therefore the manner and form provision could be ignored. There have been several dicta in cases that suggest that a manner and form provision must be observed, no matter what the content of the law about to be enacted in breach of the prohibition may be, simply because it is in the State’s Constitution.29 The most authoritative one was the Privy Council’s dictum in Bribery Commissioner v Ranasinghe 29 See the very thorough treatments, now made obsolete in parts by the decision in Marquet, by Jeffrey D Goldsworthy, “Manner and Form in the Australian States” (1987) 16 MULR 403, and Gerard Carney, “An Overview of Manner and Form in Australia” (1989) 5 QUTLJ 69.

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[1964] UKPC 20; [1965] AC 172: “[A] legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law”. However, the idea that there can be any source for a manner and form provision other than the Australia Act was tersely dismissed by the High Court in Attorney-General (WA) v Marquet [2003] HCA 67; 217 CLR 545. In this case a manner and form provision was held enforceable because the law proposed for enactment was one regarding the constitution of the Parliament, but the Court held, obiter, that it was only such laws whose enactment would be barred by a manner and form provision. Gleeson CJ and Gummow, Hayne and Heydon JJ held, at [80]: The conclusions reached about the operation of s 6 of the Australia Act make it unnecessary to decide whether, separately from and in addition to the provisions of that section, there is some other source for a requirement to comply with s 13 of the Electoral Distribution Act. It is enough to notice two matters. First, as indicated earlier in these reasons, the continuance of the constitution of a State pursuant to s 106 of the federal Constitution is subject to the Australia Act. Section 13 of the Electoral Distribution Act is made binding by s 6 of the Australia Act. Secondly, the express provisions of s 6 can leave no room for the operation of some other principle, at the very least in the field in which s 6 operates, if such a principle can be derived from considerations of the kind which informed the Privy Council’s decision in Bribery Commissioner v Ranasinghe and can then be applied in a federation. (footnotes omitted)

The latter part of the last sentence is, with respect, so terse as to be obscure, but the implication from the first part seems to be clear — that s 6 “covers the field” of those cases where manner and form provisions have to be observed. Perhaps the final phrase about the doubt about the application of Ranasinghe in a federation should therefore be read as applying only to a federation, like Australia, in which the central government has power to enact a law like the Australia Act and has done so. Their Honours’ conclusion is clear enough — that if a law proposed for enactment in breach of a manner and form provision is not one regarding the constitution, powers or procedure of the Parliament (like the death penalty example, above) the manner and form provision can be ignored. That approach will therefore be followed in the following sections.

27.5 Conditions under which a “manner and form” provision is binding There is indeed a manner and form provision binding the legislature [27.140] Obviously enough, there is no manner and form issue without a manner and form provision. The manner and form provision does not have to be in the Constitution Act, or one of the Constitution Acts, of the State — the one enforced by the High Court in Attorney-General (WA) v Marquet [2003] HCA 67; (2003) 217 CLR 545 was in the Electoral Distribution Act 1947 (WA) — but it has to really be a provision about the manner and form of enacting future Acts of Parliament. The following points 459

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are sometimes listed as separate criteria for the effectiveness of a manner and form provision,30 but they are really parts of the requirement that there should be such a thing: (i) A provision simply making it impossible to enact laws of a certain nature (“no law shall reintroduce an upper House, nor amend or repeal this section”) would not be providing a manner and form of enactment and therefore could be ignored. There is no case where such a provision has been litigated, but it is treated in the cases and literature as part of the non-abdication requirement discussed below. A special majority requirement could be problematic; as King CJ said in West Lakes Ltd v South Australia (1980) 25 SASR 389 at 397, a requirement for a special majority in one or both Houses “may reach a point at which [it] would appear as an attempt to deprive the parliament of powers rather than as a measure to prescribe the manner or form of their exercise”. He added that: “This point might be reached more quickly where the legislative topic which is the subject of the requirement is not a fundamental constitutional provision”. (ii) A legislature cannot abdicate its power to another body. In Re the Initiative and Referendum Act [1919] AC 935 the Privy Council invalidated an Act providing for citizen-initiated referendums in Manitoba, stating that a legislature cannot “create and endow with its own capacity a new legislative power not created by the Act to which it owes its existence”. In Attorney-General (NSW) v Trethowan [1931] HCA 3; (1931) 44 CLR 394 McTiernan J, dissenting, held that s 7A was not enforceable because the legislature had “abdicated” power by providing for a referendum. In two very similar cases, West Lakes, above, and Commonwealth Aluminium Corporation Limited v Attorney-General for Queensland [1976] Qd R 231 (Comalco), corporations had entered into agreements with the respective State governments that were ratified by legislation. In each case the agreement provided that it could not be unilaterally changed by the State, and in each case it was held that if this meant that the State executive could not present amending legislation to the Parliament (which neither did; see below) it would not be prescribing a manner and form of enactment, but would be abdicating to a body outside Parliament. In West Lakes, at 398, King CJ suggested a logical distinction between “abdication” to the electors and other forms of abdication; an abdication to an entity not forming part of the legislative structure amounts to a renunciation of the law-making power, but the “legislative structure” includes the people whom the members of the legislature represent, so involving them is not an abdication. With respect, this is sound both in logic and in democratic theory. (iii) An agreement with the executive government, promising that the executive will not unilaterally vary the agreement, is not a manner and form provision at all, even though it is ratified by an Act of Parliament. In both Comalco and West Lakes, the agreements, properly interpreted, did not amount to a promise not to override them by later legislation. Dunn J pointed this out in Comalco and, with respect to 30 For example, Gerard Carney, “An Overview of Manner and Form in Australia” (1989) 5 QUTLJ 69.

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those Judges who discussed other issues, this was all that needed to be said in both cases. If the agreements had amounted to a promise not to legislate they would have been unenforceable under the doctrine in Rederiaktiebolaget Amphitrite v The King [1921] 3 KB 500, and if the companies had attempted to sue under the contracts they may well have found that they were unenforceable as merely “political” agreements; compare South Australia v Commonwealth [1962] HCA 10; (1962) 108 CLR 130.31 (iv) To be a manner and form requirement, the provision must of course be mandatory. The provisions of s 5B of the Constitution Act 1902 (NSW), litigated in Clayton v Heffron, called for a conference of managers and a joint sitting of the Houses to try to resolve the dispute over the Bill, before a referendum could be held. In this case the Legislative Council had refused to appoint managers and the Opposition members of the Council had refused to attend the joint sitting, on the pretext that the privileges of the Council had been breached. They then had the cheek to argue that the conditions precedent to the holding of the referendum had not been complied with. The majority held that the preconditions were merely “directory” in the sense that “failure to fulfil them does not mean that the resulting act is wholly ineffective, is null and void”.32 As Kitto J explained: “The words in which a condition is stated … surely cannot mean that the very Chamber whose opposition to the Bill is to be prevented from proving a final obstacle to its enactment may, by refusing co-operation, make its opposition successful”.

The manner and form provision is itself protected from ordinary amendment [27.150] Consider s 41A of the Constitution Act 1934 (Tas), which provides that: “The Assembly may not pass any Bill to amend section 23 unless not less than two-thirds of its Members vote for passing the Bill or for a motion on the passing of which the Bill will be deemed to have passed”. On searching, one finds that s 23 provides for a maximum four-year term for the Assembly, but on further searching one finds no reference to the amendability of s 41A. Now consider s 7A of the Constitution Act 1902 (NSW), as it was at the time of Trethowan’s case; after providing that the Council could not be abolished unless the Bill was approved by the electors, subs (6) provided: The provisions of this section shall extend to any Bill for the repeal or amendment of this section…

The latter provision ensures that s 7A is self-entrenching; the protected aspect of the Constitution (the existence of the Council) is said to be “doubly entrenched”. There does not need to be a separate subsection, as quoted above. The current version of s 7A, which has been amended by referendum a couple of times since Trethowan, now simply 31 See Nicholas Seddon, Government Contracts: Federal, State and Local, 4th ed, 2009, Federation Press, Ch 5. 32 For the latest words on the mandatory-directory distinction, see Project Blue Sky v Australian ­Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.

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has the words “or this section” in the paragraph (para 7A(1)(b)) that lists the protected provisions. Any form of words that ensures that the entrenching provision is protected by the same special requirement as the “target” provisions will do; the entrenchment is effective as long as the other requirements listed here are met. If this is not done, as with s 41A above there is (to mix military metaphors) an obvious loophole in the entrenchment — the Parliament can pass a Bill in the normal way to repeal s 41A, and then, after the shortest delay, amend the supposedly-protected section, s 23. A provision like s 23 is sometimes referred to as “singly entrenched” but in truth it is barely entrenched at all. The same applies to the other items marked with an asterisk in Table 27.1; though no State politicians are ever likely to want to abolish local government, the provisions in the Queensland and South Australian Constitutions “guaranteeing” the continuance of a system of local government are symbolic gestures only, enacted to keep the Local Government Association happy. It is generally agreed33 that a provision such as s 41A would have to be obeyed until it was repealed; if the Parliament passed a Bill, say, to extend the four-year term under s 23 by a majority of less than two-thirds in the Assembly it would be breaching a procedural law, and parliaments are bound by procedural laws until repealed (compare the PMA case, Victoria v Commonwealth [1975] HCA 39; (1975) 134 CLR 81, where the procedural rule was in the Constitution). However, there have been no cases that have squarely raised the point. It should be noted here that there are also some provisions that look like “guarantees” in State Constitutions that are not even “singly” entrenched, like the references to local government in other States, and the “guarantee” of religious freedom in s 46 of the Constitution Act 1934 (Tas). These are even more feebly symbolic than the “singly entrenched” ones; the doctrine of implied repeal or amendment discussed in 27.80 will apply to them.

The challenged law is actually in breach of the manner and form provision [27.160] It is usually obvious that a manner and form provision is about to be disregarded; a referendum requirement is ignored, as in Trethowan, or a law that must be passed by an absolute majority is only passed by a simple majority of those present (six members being absent under “pairing” arrangements), as in Marquet. However, sometimes the manner and form provision needs to be interpreted. At the time of Western Australia v Wilsmore [1982] HCA 19; (1982) 149 CLR 79, s 73 of the Constitution Act 1889 (WA) (now subs 73(1)) provided that: The Legislature of the Colony shall have full power and authority, from time to time, by any Act, to repeal or alter any of the provisions of this Act. 33 See, eg, Peter Hanks et al, Australian Constitutional Law; Materials and Commentary, 7th ed, 2004, LexisNexis Butterworths, pp 320–1.

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Provided always, that it shall not be lawful to present to the Governor for Her Majesty’s assent any Bill by which any change in the Constitution of [either House] shall be effected, unless the second and third readings of such Bill shall have been passed with the concurrence of an absolute majority of [both Houses]

Wilsmore had been disfranchised by an amendment to the Electoral Act that had not been passed by an absolute majority in the Assembly. The Court noted that a proviso to a section generally qualifies only the provisions of that section, and therefore the absolute majority requirement applied only to amendments of the Constitution Act itself and not to the Electoral Act. Section 73 has since been amended to make it clear that its special requirements apply to any law that makes certain changes to either House, including the requirement that the House be chosen directly by the people. In any case it may be expected, in light of the case in the next paragraph, that the very technical approach to interpretation in Wilsmore may not be followed by the present court. The provision that had been breached by the enactment of a new law in Marquet had been carelessly drafted; it provided that a Bill to amend the Electoral Distribution Act 1947 (WA) should not be presented to the Governor unless it had been passed by absolute majorities. So the Parliament passed two Bills to institute the new system; one to repeal the old Act, and another one to enact a replacement Act, and counsel for the State argued that this did not constitute an amendment. The Court held, per the joint judgment at [52], that to accept this argument would defeat the evident purpose of the section.

The challenged law is one regarding the constitution, powers or procedure of the Parliament [27.170] Since the decision in Marquet, it is even more clear than it was before that where a proposed Act does not deal with the constitution, powers or procedure of the Parliament it can be enacted even if its passage is in utter disregard of a manner and form restriction. The two cases where the passage of an Act has been restrained clearly involved Bills that were about to change the constitution and/or powers of the Parliament. In Trethowan one Bill proposed to repeal s 7A (powers) and another to abolish the Legislative Council (constitution). In Marquet the Bill was intended not just to redistribute electorates but to change the whole basis on which redistributions were made; this clearly affected the way the Assembly was constituted. Two other cases from Western Australia demonstrate the converse side of this issue. In Clydesdale v Hughes [1934] HCA 38; (1934) 51 CLR 518 the High Court held that a law changing the disqualification rules for members of the Parliament (and allowing a member in breach of the previous disqualification to continue sitting) did not change the constitution of the Parliament. In Western Australia v Wilsmore [1982] HCA 19; (1982) 149 CLR 79, Wilsmore was challenging a law that disfranchised prisoners; those Justices who discussed the issue held that, even more clearly than in Clydesdale, the law did not affect the constitution of the Parliament. Both judgments seem, with respect, correct, but it should not be assumed that matters of eligibility to be a member or to vote could never affect the constitution of the Parliament; it is surely a matter of degree. 463

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The entrenchment of many provisions of the Constitution Act 1975 (Vic) by the many subsections of s 18 (see Table 27.1) seems of doubtful effectiveness because of this criterion. Laws that privatise water supplies, interfere with the independence of the Auditor-General, or detract from the jurisdiction of the Supreme Court are not likely to be laws regarding the constitution, powers or procedure of the Parliament. The attempt to protect the jurisdiction of the Supreme Court also shows the dangers for a Parliament that is used to thinking of itself as “sovereign” when it inserts manner and form provisions. For some time after the addition of subss 18(2AA) and (2A) the Parliament enacted laws that arguably detracted from the Supreme Court’s jurisdiction, clearly without thinking for a moment about s 18. One such law was held invalid in City of Collingwood v Victoria [1993] 2 VR 66. Since then, the Parliament has gone out of its way to comply with the manner and form provisions even when they may not apply. The provisions have been described as “both unnecessary and unwieldy”34 but so far the issue of whether they are actually binding seems to have been avoided.35 The protection of the tenure of the judiciary by the traditional Act of Settlement type of clause — “can only be removed from office on an address from both houses of Parliament” — may be different. Since the existing law gives the Parliament a power, a law changing the rules for dismissal would appear to be a law regarding the powers of the Parliament. In those States where the tenure clause is entrenched — New South Wales36 and Victoria37 — the entrenchment may well be effective. Of course, if the tenure provision is not entrenched it can be impliedly amended by a law creating short-term judges, as in McCawley’s case, above.

27.6 Judicial enforcement of manner and form provisions [27.180] Like any other law enacted in breach of a constitutional requirement, a law passed in defiance, or ignorance, of a manner and form provision, will be held to be invalid by a court if challenged after its enactment. However, a special issue has arisen in manner and form cases. A common form of drafting of a manner and form section is to provide that laws for certain purposes, or repealing or amending certain sections, “shall not be presented to the Governor for signification of her Majesty’s assent”. 34 Carol A Foley, “Section 85 Victorian Constitution Act 1975: Constitutionally Entrenched Right … or Wrong?” (1994) 20 Mon U LR 110. See also Enid Campbell, “Constitutional Protection of State Courts and Judges” (1997) 23 Mon U LR 397 and John Waugh, “The Victorian Government and the Jurisdiction of the Supreme Court” (1996) 19 UNSWLJ 409. 35 HP Lee argued, in “‘Manner and Form’: An Imbroglio in Victoria” (1992) 15 UNSWLJ 516, that the provisions might be upheld under the Ranasinghe principle, and Deane J remarked in Smith v The Queen [1994] HCA 60; (1994) 181 CLR 338 that “s 18(2) was, at the time of the enactment of the Supreme Court Act in 1986, valid and effective to confer upon the provisions of Pt III of the 1975 Constitution, including s 85(3), the special status of constitutionally entrenched or controlled provisions”. However, these remarks were made before the High Court’s abrupt dismissal of the Ranasinghe principle in Marquet. 36 NSW, s 53, entrenched by s 7B. 37 Vic, s 87AAB, entrenched by subs 18(1B).

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This raises the question of whether the judiciary can, or should, issue injunctions restraining the persons who might be expected to present the Bill for assent (Parliamentary Clerks and Ministers) from doing so. The judiciary is traditionally very reluctant to intervene in the legislative process: see the cases discussed in 7.70. However, a provision that clearly states that a law “shall not be presented”, or even, as in Marquet, “it shall be unlawful to present”, is different. In Trethowan the Supreme Court had issued injunctions and then dissolved them on receiving an undertaking from the defendants that they would not present the Bills unless they won the case. In the High Court Dixon J worried about the propriety of hearing the matter, though in the end he did so, and in two later cases he was still expressing retrospective doubt. In Hughes & Vale Pty Ltd v Gair [1954] HCA 73; (1954) 90 CLR 203 his Honour remarked, “I have long entertained a doubt about the correctness of the decision” of the Supreme Court in Trethowan, but noted that perhaps it was special because the law had been in breach of an “express negative provision”. Since there was no such provision at issue here (the case was about an allegedly imminent breach of s 92) no action was taken to stop the passage of the legislation; the company would have its remedy once the law was passed. In Clayton v Heffron, his Honour repeated his doubts about Trethowan but again said perhaps it was special; this time he described s 7A as imposing a “distinct and imperative negative duty”. With respect, his acceptance of this qualification surely showed that his general doubt was overstated; it is certainly true that in general the courts should not interfere in the parliamentary process but when the Parliament has enacted a law declaring that a particular step in the process shall not be taken, it follows that the courts should enforce that by the appropriate remedies. In Bignold v Dickson (1991) 23 NSWLR 683, the New South Wales Court of Appeal, with Kirby P presiding, considered the precedents very thoroughly, and concluded that there clearly is jurisdiction to enjoin38 presentation of a Bill. However, in this case, involving a very pedantic argument about the appointment of the date for a referendum under s 7A, a breach of the section had not been established. Another way to have the courts consider the propriety of actions that might be prohibited by a manner and form provision is to seek a declaration. In McDonald v Cain [1953] VLR 411 the plaintiff alleged that the presentation of a Bill would breach s 60 of the Constitution Act 1855 (Vic) (now part of Constitution Act 1975 (Vic) subs 18(2)). The trial judge issued an injunction, but on appeal the Full Supreme Court held that the passage of the proposed Act was not in breach of the section. All discussion of remedies was therefore obiter, but O’Bryan J said that if it appeared that Ministers were prepared to contravene the law an injunction would be proper, and both O’Bryan and Martin JJ suggested that it would be proper to issue a declaration so that Ministers (and the Governor) would be aware of the Court’s view of the law. In Marquet, the Clerk of the Parliaments, who was being asked to carry out an unlawful act in breach of an entrenching section, asked for a declaration as to whether presentation to the Governor would be unlawful, and then let the political parties fight the matter out in court. 38 To issue an injunction is not to injunct, it is to enjoin.

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The Full Court of the Supreme Court of Western Australia issued declaratory orders in the form of answers to questions about the validity, and the High Court confirmed those answers. The respondents, being law-abiding citizens, took no further steps to have the Bills given assent.

27.7 Unstated considerations; democratic theory [27.190] The aspect of manner and form that has received little attention in the case law is that manner and form provisions are used for a variety of purposes, democratic and anti-democratic. The earlier ones were inserted in an attempt to preserve the veto powers of the very rich over legislation, by making it difficult to reform the Legislative Councils, or to preserve greater voting rights for rural people by entrenching zonal electoral systems. More recently they have been inserted to preserve equal voting rights and various aspects of the rule of law. Judicial decisions as to constitutionality, however, are not supposed to adjudge the merits of the legislation, so the manner and form cases have been decided on technicalities (except that Kirby J would have allowed the legislation challenged in Marquet to be enacted, because the prior law was breaching human rights). The problem is that a party or coalition that has a momentary majority in both Houses can entrench its favourite values or its own self-interest by a constitutional amendment passed by simple majorities, and then make it much more difficult for its opponents to repeal the law.39 In McGinty Gummow J remarked that “[t]here is a conceptual difficulty, to my mind, with the legitimacy of a manner and form requirement which is inserted in a written constitution otherwise than by a law made with observance of that manner and form which is thereafter to apply”, but, having stated the difficulty, brushed it aside and went on to find that the absolute majority requirement imposed by the Electoral Distribution Act 1947 (WA) was binding because the Australia Act made it so.40 There have been other remarks by High Court Justices which suggest that their Honours might be prepared to find entrenched provisions enforceable more readily, if the entrenchment itself has been endorsed by the people at a referendum.41 This kind of approach has been thrust upon the people and legislature of the Australian Capital 39 This is a violation of what Michael Detmold has called “inter-temporal equivalence”; see his The Australian Commonwealth: A Fundamental Analysis of Its Constitution, Taylor & Francis, 1985, pp 207–9. 40 The entrenched zonal system, having survived a legal challenge in McGinty and an attempt to circumvent the entrenchment in Marquet, was finally replaced by a more egalitarian system in 2005, when the government was able to get the support of absolute majorities in both Houses for the Electoral Amendment and Repeal Act 2005. 41 For example, in Durham Holdings at [76] Kirby J noted that “… it is open to the electors to influence the insertion in the federal and State Constitutions of entrenched provisions that forbid repetition of such laws” (ie, laws permitting acquisition of property on less than just terms). The example used by his Honour was the insertion of the words protecting the judiciary into s 7B of the Constitution Act 1902 (NSW) by referendum in 1992. Of course, the problem is that only the parliaments can initiate the insertion of such provisions; until asked to vote in a referendum the electors can only “influence” such amendments by lobbying and persuasion.

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Territory by s 26 of the Australian Capital Territory (Self-Government) Act 1988 (Cth). It provides that the Assembly may make an “entrenching law”, prescribing restrictions on the manner and form of making particular enactments, and that while it remains in force an enactment to which it applies has no effect unless made in accordance with the entrenching law. There is no restriction as to the type of enactment that an entrenching law can apply to. However, before the entrenching law can come into force it must be approved by a majority of the electors. A provision in the Constitution applying similar rules to the States would avoid the problem of parliaments entrenching laws that favour a particular social or geographic group that happens to hold power at the time, and would relieve the courts of the necessity to rule on the complexities of “constitution, powers and procedure” and whether the Ranasinghe principle can apply to the States of a federation.

ISSUES FOR DISCUSSION 1. Suppose a State Parliament enacts a Bill of Rights and includes a section that says: “It is not within the power of the Parliament to enact a law abrogating any of these rights unless the electors have approved the proposed law at a referendum.” (a) Could a later Parliament repeal that provision without a referendum? (b) If a later Parliament simply passed a law abrogating one of the protected rights without mentioning the above section, would it need to put the law to a referendum? Would the new law be about the power of the Parliament, or would it simply be making an assumption that the Parliament had sufficient power? 2. In Queensland, the following constitutional provisions are all entrenched and cannot be amended without a referendum: Constitution Act Amendment Act 1934 3.  (1) The Parliament of Queensland (or, as sometimes called, the Legislature of Queensland), constituted by His Majesty the King and the Legislative Assembly of Queensland in Parliament assembled shall not be altered in the direction of providing for the restoration and/or constitution and/or establishment of another legislative body (whether called the Legislative Council, or by any other name or designation, in addition to the Legislative Assembly) except in the manner provided in this section. (This is entrenched by later sub-sections of the same section, all enacted in 1934) Constitution Act 1867 2. Within the said Colony of Queensland Her Majesty shall have power by and with the advice and consent of the said Assembly to make laws for the peace welfare and good government of the colony in all cases whatsoever. 2A. (1) The Parliament of Queensland consists of the Queen and the Legislative Assembly referred to in sections 1 and 2. (2) Every Bill, after its passage through the Legislative Assembly, shall be presented to the Governor for assent by or in the name of the Queen and shall be of no effect unless it has been duly assented to, by or in the name of the Queen. (These were entrenched by the addition of s 53 in 1977.)

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Could the Parliament now enact a further manner and form provision, providing that some further provisions (say, equal enrolment electorates for the Legislative Assembly) could not be amended without a referendum, without having to put the new provision to a referendum? Which of the above sections might prevent it? 3. Do your answers to the above questions prove that this whole area is overly technical? Would you support the reform suggested in 27.190 above, or some other reform, or does it all strike a reasonable balance between flexibility and rigidity in our State systems?

FURTHER READING Gerard Carney, The Constitutional Systems of the Australian States and Territories, Camb UP, 2006 Bradley Selway, The Constitution of South Australia, Federation Press, 1997 Greg Taylor, The Constitution of Victoria, Federation Press, 2006 Anne Twomey, “Does anyone really understand manner and form?”, Conference paper at http://www.gtcentre.unsw.edu.au/sites/gtcentre.unsw.edu.au/files/mdocs/5_ AnneTwomey.pdf Anne Twomey, The Constitution of New South Wales, Federation Press, 2004 George Winterton (ed), State Constitutional Landmarks, Federation Press, 2006

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CHAPTER 28

General Effects of the Commonwealth Constitution on State Powers — Concurrent Powers, Exclusive Powers and Prohibitions

28.1 Context and overview [28.10] In the previous chapter we saw that the “internal” constitutional law of the States imposes very few restrictions on the State parliaments, and that even some of the apparent restrictions stated in “manner and form” provisions may not be binding. However, as noted in 6.50, the States owe their existence as States to the Commonwealth Constitution and are subjected by it to many limits on their powers — in fact, about as many as the Commonwealth is subjected to. That topic will be explored in the nine chapters in this Part. In this Chapter we will note the effect on the States of the grants of legislative powers to the Commonwealth, including the general effect of s 109, and in the later chapters we will consider express and implied limits on State powers (including a more detailed study of the case law on s 109).

28.2 General binding effect of the Constitution on the States [28.20] As noted in 6.50, the Constitution limits the powers of the States just as much as it limits the powers of the Commonwealth. This is emphasised in covering clause 5, which provides: 469

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This Act [the Constitution Act, including the Constitution itself] and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State.

Both aspects of this are restated in the first few sections of Chapter V of the Constitution, First, as to the supremacy of the Constitution itself: n n

section 106 continues the Constitution of each State as at the establishment of the Commonwealth, “subject to this Constitution”; and section 107 continues every power of the parliaments of the colonies as at the establishment of the Commonwealth, “unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the parliament of the State”.

Section 107 appears to have been added out of caution — surely it follows logically from s 106? A further continuation section, s 108, applies to the laws of the colonies in force at federation that relate to any matter within the power of the new Commonwealth. In so far as it applies to concurrent powers, it also seems to be stating the obvious. It has been held to have a real effect in respect of the powers that became exclusive to the Commonwealth at federation; this is discussed briefly below at 28.50. Then the supremacy of the laws made by the Parliament of the Commonwealth is restated in s 109, to be discussed in Chapter 32. The supremacy of the Constitution itself, however, needs no reinforcement by mere statute laws; in Brown v The Queen [1986] HCA 11; (1986) 160 CLR 171 Brennan J noted that clause 5 means that the provisions of s 80, about jury trial for federal offences (see 24.30–24.50), apply to State courts regardless of any Commonwealth or State statutory provision. An odd omission is that clause 5 mentions the “courts, judges and people” of the States but not their executive governments. However, (despite the views of cynics), they consist of people, so the covering clause makes them subject to the Constitution and to Commonwealth laws. For an example, see the discussion of Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 in 11.90. For possible exceptions where a Commonwealth law threatens to “destroy or curtail” the role of the States in the federation, see Chapter 33. Because of the general continuation of the pre-federation Constitutions, the States do not, unlike the Commonwealth, have to point to a “head of power” to justify a law, but they are subject to a number of restrictions. The ones to be discussed in this Chapter arise from the distribution of legislative powers between the Commonwealth and the States; some powers were expressly granted exclusively to the Commonwealth, some, it is suggested are necessarily exclusive to the Commonwealth, and other powers granted to the Commonwealth are held concurrently with the States, but s 109 provides that in a case of inconsistency the Commonwealth law prevails. Other limits on State powers (including the details about s 109) are discussed in Chapters 29 to 34. 470

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28.3 Commonwealth exclusive powers, other than s 90 [28.30] Section 52 of the Constitution provides that the Commonwealth Parliament has exclusive powers over certain matters. Although this is phrased as granting powers to the Commonwealth its main effect is to deprive the States of powers; as Menzies J remarked in Worthing v Rowell & Muston Pty Ltd [1970] HCA 19; (1970) 123 CLR 89 at 113, “the denial [of States’ power] is measured by the grant [of Commonwealth power]”, which is why these matters are discussed here rather than somewhere in Part D. The third paragraph of the section “ropes in” other matters declared to be within the exclusive power of the Commonwealth by other sections of the Constitution. One of these is section 90 which has it own chapter (Chapter 29); the others are discussed below.

The seat of government (and the Australian Capital Territory) [28.40] As will be noted in Chapter 36, the exact boundary between the exclusive “seat of government” power in para 52(i) and the territories power in s 122 is unclear. For the purposes of this Chapter, all that matters is that the States have no power to interfere in what goes on within Canberra or the Australian Capital Territory generally. There is, however, an issue about the regulation of access to the Territory from the surrounding State, New South Wales, which was discussed in Pioneer Express Pty Ltd v Hotchkiss [1958] HCA 45; (1958) 101 CLR 536. The case raised the question whether a law prohibiting unlicensed coaches travelling on New South Wales roads could apply to a journey to Canberra. Section 92 did not apply because it applies to trade, etc, among the States, and a Territory is not a State. There was a suggestion by Dixon CJ at 550, with the concurrence of Fullagar J, that there is an implication from the existence of the Australian Capital Territory that the States have no power to “forbid restrain or impede access to it”. However, their Honours held that a general coach-licensing law did not fall foul of the implication — which seems to suggest that only a direct and intentional interference would be invalid. McTiernan J, on the other hand, denied at 553 that there was any need for such an implication because the Commonwealth has ample power under s 122 to protect access to the Territory, and it had not enacted any law doing so. Note that it has since done so — the Australian Capital Territory (Self-Government) Act 1988 (Cth), s 69 provides that trade, commerce and intercourse between the Territory and a State or other Territories shall be absolutely free. A State law conflicting with that would be ineffective because of s 109 inconsistency.

Places acquired by the Commonwealth [28.50] Paragraph 52(i) also gives the Commonwealth power to make laws for places acquired by the Commonwealth for public purposes, and makes it exclusive. It is an awkward and unnecessary phrase; if read with its full force, as the High Court has tended to do, it makes an extraordinary incursion into the general powers of the States to legislate for their own people and territory, and protects no interest of the Commonwealth that 471

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could not have been achieved by a grant of concurrent power. The oddity is increased by the fact that in Svikart v Stewart [1994] HCA 62; (1994) 181 CLR 548 the High Court held, mainly by reference to the drafting history of the paragraph, that it does not prevent laws of the Territories applying on Commonwealth places found in the Territories. The States have made many unsuccessful attempts to have it read down. The problems that arose from the failure of those attempts have been solved by Commonwealth application of laws legislation, detailed below, so only a summary of the majority holdings in the cases is presented here. An “acquired place” must of course be land. It can be compulsorily acquired under para 51(xxxi), or purchased or received as a gift (Worthing above 28.30, per Windeyer J at 127). The Commonwealth’s power, and the States’ exclusion, clearly apply to Commonwealth-held freeholds and possibly to perpetual leases but not to land occupied by the Commonwealth under a short-term lease: Bevelon Investments Pty Ltd v Melbourne City Council [1976] HCA 49; (1976) 135 CLR 530. On the other hand, if the Commonwealth has acquired the land the exclusivity still applies if it then leases it to a private person or company: Allders International Pty Ltd v Commissioner of State Revenue [1996] HCA 58; (1996) 186 CLR 630. When the Commonwealth ceases to own the land State laws apply to it again (Paliflex Pty Ltd v Chief Commissioner of State Revenue (NSW) [2003] HCA 65; (2003) 219 CLR 325), though in that case stamp duty did not apply to the transfer by the Commonwealth. In Attorney-General (NSW) v Stocks & Holdings (Constructors) Pty Ltd [1970] HCA 58; (1970) 124 CLR 262, it was held that a planning scheme gazetted while land was in Commonwealth ownership could not apply because at the time the scheme was made the authorising Act was not in force over the land. There have been two main issues: n

n

A breadth issue — does the paragraph give the Commonwealth exclusive power over all laws applying to the place, or can it be read down to apply only to laws on the specific subject of acquired places, leaving other State laws in force? A timing issue — what is the effect on State laws already in force when the Commonwealth acquires a place?

As to the timing issue, there is an early decision of the Supreme Court of NSW — R v Bamford (1901) 1 SR (NSW) 337 — that held that s 108 ensures that pre-federation colonial laws survive the acquisition of a place by the Commonwealth. However, that is all that survives. In two decisions in 1970, Worthing above 28.30 and R v Phillips [1970] HCA 50; (1970) 125 CLR 93, the High Court seems to have approved Bamford but held, by 4:3 in each case, that any law that applies within a place is a law with respect to that place. Therefore, the exclusivity applies to all areas of law, and on acquisition all State laws passed before the acquisition, except for the odd pre-federation laws saved by s 108, cease to have effect. There is an excellent summary of the arguments for the broad and narrow readings of the exclusivity in Allders above per McHugh, Gummow and Kirby JJ at 667–74, which shows how evenly-balanced the arguments are, and why it is unsurprising that the judges differed in the 1970 cases. 472

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The result of Worthing and Phillips would have been that each acquired place became a semi-lawless zone (referred to by literary types as an “Alsatia”, an allusion to the zone of sanctuary in fifteenth to seventeenth century London). As this would have served no interest of the Commonwealth and would have merely allowed people to evade the ordinary laws of the State, the Commonwealth enacted the Commonwealth Places (Application of Laws) Act 1970 (Cth) in anticipation of the Phillips judgment and proclaimed it to take effect in all States on the day the judgment was handed down. Section 4 of the Act gave effect, prospectively and retrospectively, to the provisions of most State laws in each Commonwealth place, subject of course to inconsistent Commonwealth legislation. It has twice been contended that this is not a valid law under para 52(i) because it effectively abdicates the Commonwealth’s grant of exclusive power back to the State parliaments, but this has been rejected; see R v Holmes (1988) 93 FLR 405 and R v Porter (2001) 53 NSWLR 354. The High Court refused special leave in the latter case. State laws may still be inapplicable because they are inconsistent with a Commonwealth law; in R v Loewenthal; Ex parte Blacklock [1974] HCA 36; (1974) 131 CLR 338, noted in Chapter 32, a prosecution for damaging Commonwealth property under State law was dismissed because a Commonwealth law applying to the offence was held to cover such offences exhaustively. Paragraph 4(5) of the Act provided, and still provides, that the Act has no effect to impose any tax; ie, it does not apply the local State’s taxing laws to Commonwealth places. There seemed to have been a fear that a Commonwealth law applying State tax laws, which differ from State to State, would breach s 99 of the Constitution and, besides, if the Commonwealth had wanted to impose the State taxes in its acquired places, it would have needed to pass a separate Act because of s 55 of the Constitution. As the Commonwealth encouraged more commercial activity on airport land acquired by it, the States fretted at the loss of stamp duty on the leases held by the operators of the businesses. In Allders, above, Victoria had tried to impose stamp duty on the lease of a shop at Tullamarine Airport. The State argued that para 52(i) did not exclude the operation of the Stamps Act 1958 (Vic) to the lease because the duty was imposed on the “instrument” (document) and that had not been signed at the airport. The High Court held that a State law which is of general application may still be a law “with respect to” a Commonwealth place, and the Stamps Act 1958 (Vic) had a real and substantial impact upon the Commonwealth place. Again, the Commonwealth Parliament quickly assisted the States by enacting the Commonwealth Places (Mirror Taxes) 1998 (Cth), which provided that State taxing laws which were excluded from direct operation in Commonwealth places by the effect of para 52(i) were taken to apply in the places. As the taxes were now imposed by force of a Commonwealth Act, the revenue was treated as part of the Commonwealth’s Consolidated Revenue Fund but immediately paid back to the relevant State. This law was challenged in Permanent Trustee Australia Ltd v Commissioner of State Revenue (Vic) [2004] HCA 53; (2004) 220 CLR 388, in which it was held to be validly enacted under para 52(i). As with the Commonwealth Places (Application of Laws) Act 1970 (Cth) above, it was held not to be an abdication of power to the States. The main grounds 473

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of challenge — alleged non-compliance with ss 55 and 99 — and their dismissal were discussed in Chapters 19 and 23. So the effects of this awkward and unnecessary paragraph, and its debateable interpretation by the High Court, have been effectively negated by Commonwealth legislation. Overall, the position of State law in Commonwealth places is somewhat similar to the position in the three-mile “coastal waters” zone, discussed in Chapter 12 — the States can now legislate on virtually any topic in these places, but only because of enabling laws enacted by the Commonwealth. However, the Commonwealth has a plenary power to make laws regarding any topic — over the offshore zone under para 51(xxix) and over acquired places under para 52(i) — so its capacity to override State legislation if and when it wishes is even greater in these areas than it is within the ordinary parts of the States.

The Commonwealth Public Service [28.60] It is often overlooked that the express exclusive power granted in para 52(ii) refers only to the Departments of the Public Service “the control of which is by this Constitution transferred to … the Commonwealth”, ie, those few that were transferred under s 69. As noted in 19.20, the Commonwealth’s power over its current Departments is derived from para 51(xxxix) as being incidental to other paragraphs of s 51, and to s 61 and possibly other sections in Chapter II of the Constitution, and is therefore one of, or similar to, the powers “exclusive by implication” considered in 28.90. It would fairly obviously be beyond power for the States to make provisions in their laws which directly relate to the Commonwealth Public Service. However, this does not mean that the Public Service and public servants are immune from State laws of general application; see the discussion of Re Residential Tenancies Tribunal of NSW & Henderson; Ex parte Defence Housing Authority [1997] HCA 36; (1997) 190 CLR 410 in 33.50.

Raising naval or military forces [28.70] Under s 114 of the Constitution the States can, in theory, raise a naval or military force with the consent of the Commonwealth, but this is most unlikely to be given. The “trade-off ” for the States is in s 119 — the Commonwealth, with its effective monopoly of military force, is obliged to protect the States against invasion and, on the application of the executive government of the State, from domestic violence. This is discussed in Chapter 19.

Coins and legal tender [28.80] Section 115 of the Constitution provides that: “A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts.” This is often misread by vexatious litigants (and others, possibly well on the way to being declared vexatious) as meaning that our whole currency is invalid because nothing but 474

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gold and silver can be legal tender. As anyone who pays attention to the actual words can see, it applies only to the States. “A State shall not coin money” is straightforward. The prohibition on “mak[ing] anything but gold or silver coin a legal tender in the payment of debts” reads oddly to the modern mind, but it has the practical effect of preventing the States from issuing their own paper money — there is no point in issuing it if it can’t be declared legal tender. The exception for gold and silver coins may have been included because the colonies already had laws providing that such coins were legal tender, and the drafters wished to avoid any inference that these laws become invalid on Federation Day. The Commonwealth in fact has express powers relating to coinage and legal tender: the power to make laws with respect to “currency, coinage and legal tender” under para (xii) of s 51, and “the issue of paper money” under para 51(xiii). Section 115 simply makes these powers exclusive to the Commonwealth. These powers were exercised as to coinage in 1909 and as to banknotes in 1910, and it was provided that the new brass and silver coins constituted legal tender for small payments1 and the gold coins and notes for payment of any amount.2 These laws arguably “covered the field” as will be discussed in section 32.4, and any old colonial laws as to legal tender, apparently permitted by s 115, would then have become inoperative. These days s 56 of the Reserve Bank Act 1959 (Cth) provides that “Australian notes are a legal tender throughout Australia”, and s 16 of the Currency Act 1965 (Cth) provides that coins (not now made of either gold or silver, though they retain the traditional colours) are legal tender for small amounts, depending on the value of the coin. Whether the very concept of legal tender makes any sense in an age of BPay, PayPal, and direct debits between bank accounts, and whether people who insist on payment by legal tender are just as vexatious as those who think the currency is invalid, are separate issues.

28.4 Commonwealth powers said to be exclusive by implication [28.90] A number of the powers in s 51 are claimed by many authors to be exclusive by their very nature; for example, paras 51(iv) (borrowing on the credit of the Commonwealth), 51(xix) (naturalisation), 51(xxxvi) (laws changing the provisions about the Parliament, the executive and the courts that apply “until the Parliament otherwise provides”), or 51(xxxix) (the incidental power). As noted above, this would include, in particular, the Commonwealth’s power to regulate its own Public Service. But perhaps it is going too far to say that all these powers are exclusive in the strong sense, that no State law can affect the topic at all. Consider the defence power. Clearly some aspects of it are exclusive — under s 114 the States cannot raise a force without the consent of the Commonwealth, and in Joseph v Colonial Treasurer (NSW) [1918] HCA 30; (1918) 25 CLR 32 (where the State Minister had interfered with the plaintiff ’s 1 Coinage Act 1909 (Cth), s 5. 2 Coinage Act 1909 (Cth), s 5 and Australian Notes Act 1910 (Cth), s 6.

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wheat trade, in purported exercise of a prerogative power to assist Imperial defence) it was held that the prerogative powers in respect of war are exclusively vested in the Commonwealth. The reasoning of Isaacs, Powers and Rich JJ included the sentence: “In the allocation and distribution of powers effected by the Constitution of the Commonwealth the defence power is exclusively assigned to the Commonwealth”. However, in Carter v Egg & Egg Pulp Marketing Board (Vic) [1942] HCA 30; (1942) 66 CLR 557 this was qualified. This case involved a statutory State marketing board, rather than a mere exercise of the prerogative. The Commonwealth was using the “secondary aspect” of the defence power (see Chapter 19) to also regulate the egg trade. Carter alleged that the State law was inconsistent with the federal one, and also invalid as trespassing on the “exclusive” defence power. The Court held that there was no inconsistency and that the defence power is not fully exclusive. Rich and Williams JJ held that it may be exclusive as to the “primary” aspects but not as to the secondary, but the other judges seem not to have supported even that restriction on the States. Latham CJ held: There is no reason arising from the nature of the subject matter why a State should not, subject to such control as the Commonwealth Parliament may think proper to be exercised, assist the Commonwealth to the maximum in the defence of the country.

It is suggested that a similar qualification should logically apply to the claimed “exclusivity” of at least some of the other s 51 powers mentioned above. The Commonwealth is the only legislature that can legislate generally as to these matters, but the States can pass auxiliary laws without being accused of trespassing into exclusive Commonwealth territory — as long, of course, as they are not inconsistent with Commonwealth laws. If the Commonwealth’s power over Departments of the Public Service (see 28.60 above) was truly exclusive in a strong sense, the Departments would have a general immunity from the effects of State laws; but, as we shall see in Chapter 33, they do not.

28.5 Shrinking concurrent powers, and lack of easily-describable “exclusive” State powers [28.100] Subject to the slight qualification in the above section, the powers granted to the Commonwealth by s 51 are exercisable concurrently by the States. The reasons for this were recited by the majority judges in Carter’s case, above; it is implied by the contrast between the headings of s 51— “Legislative powers of the Parliament” — and s 52 — “Exclusive powers of the Parliament” — and confirmed by the declaration in s 107 that: Every power of the Parliament of a Colony shall, unless it is… exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth …

This is not quite as good as it might look to an overenthusiastic “newbie” State lawyer or politician — in particular, too much should not be read into the continuation of the colonies’/States’ powers by s 107. Many of the following points are discussed more fully 476

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in other chapters, but should be briefly noted here to complete the picture of the distribution of powers between the Commonwealth and States: n

n

n

As we saw in Chapter 17, the continuation of the States’ powers does not authorise the reading down of any particular grant of Commonwealth power under the influence of the notion that words of limitation in any one grant, and/or the effect of s 107 itself, “reserve” any powers to the States. Within each of the concurrent powers there is an obvious potential for conflict between Commonwealth and State laws if parliaments at both levels choose to exercise the power, and the conflict is resolved in favour of the Commonwealth by s 109 (see Chapter 32). If the Commonwealth exercises one of its grants of power so comprehensively that its laws are covering a “field” that occupies the full scope of the grant, a concurrent power can become effectively exclusive to the Commonwealth by force of s 109. As a consequence of the above points, the States do not have any “exclusive” powers, if one takes that to mean a topic of law-making that can be described in a simple phrase like “land titles” or “criminal law”. The Commonwealth can, for example, make laws on native title under the race power (Chapter 20) and can re-assign the title to land by acquiring it under para 51(xxxi), as long as it offers just terms. It can legislate on crimes involving interstate aircraft under para 51(i) (Chapter 18), crimes on Commonwealth places under para 52(i) (28.50, above), crimes against the postal service and telecommunications under para 51(v) (Chapter 18), crimes against national security either under the defence power or the national security power (see discussion of Thomas v Mowbray in Chapter 19), and so on.

A better word for the States’ powers is that they are residuary powers; as O’Connor J observed in Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330: [T]he Federal Parliament is like a specific legatee of powers, and the State Parliament is like a residuary legatee, and … it is a mistake to treat the internal trade of a State as forbidden to the Federal Parliament until the utmost limits of all the powers conferred on that Parliament by sec 51 have been ascertained.

So in a narrow sense, the States do have “exclusive” powers to legislate directly on some topics, but one has to describe each of those topics by a long subtractive formula such as “crimes, except for crimes on interstate aircraft and crimes against the postal service and crimes against national security …” and so on; that is, one has, in O’Connor J’s terms, to describe the residue. However, seeking to define these “exclusive” powers exactly is merely a theoretical exercise; the more relevant question is how wide the States’ power over any topic is at a given time, and that depends on what laws the Commonwealth has made up to that time. The State can make laws on the remainder of the topic, and indeed they can make laws that overlap the Commonwealth laws to some degree as long as they are not inconsistent with the latter, by any of the tests to be described in Chapter 32. 477

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legraph d te s an

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If you read the Commonwealth circles as the whole potential field of each Commonwealth power, the area outside all the Commonwealth circles is the States’ “exclusive” power. If you read the Commonwealth circles as representing all laws actually enacted at a given time that are potentially inconsistent with State laws, the areas outside them will be the area in which the States are free to legislate at that given time.

Figure 28.1 Trying to define the States’ residuary power over a topic Academic defenders of “States rights” have long complained that Commonwealth centralism has reduced the States to “the status of convenient service delivery agents for the Commonwealth”.3 There may be some truth to this in the context of the imposition of conditions upon s 96 grants to the States; we return to this in Chapter 35. However, in the Work Choices case (New South Wales v Commonwealth [2006] HCA 52; (2006) 81 ALJR 34), Kirby J echoed that complaint in the context of the interpretation of Commonwealth heads of power, at [549]: … it would be completely contrary to the text, structure and design of the Constitution for the States to be reduced, in effect, to service agencies of the Commonwealth, by a sleight of hand deployed in the interpretation by this Court of specified legislative powers of the Federal Parliament. Specifically, this could not be done by the deployment of a near universal power to regulate the “corporations” mentioned in s 51(xx).4 3 Greg Craven, “The New Centralism and the Collapse of the Conservative Constitution”, Papers on Parliament, No 44, at https://www.aph.gov.au/binaries/senate/pubs/pops/pop44/craven.pdf. 4 See 18.90 for Higgins J’s fearful anticipation of a similar breadth of the power, and 18.100 for c­ onfirmation that it had come true.

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With respect to his Honour, it is suggested that the majority decision did no more than to interpret the power to make laws with respect to trading and financial corporations according to the fairly obvious meaning of the words. As noted at 17.70, there is in fact no sign of “States’ rights”, a “federal balance” or “dual sovereignty” in the text of the Constitution; if the drafters had intended to reserve a range of powers to the States they quite forgot to say so. As the Commonwealth makes more and more laws, it follows of necessity that the States’ effective powers shrink; remember that Quick and Garran foresaw this, as cited at 17.70.

28.6 Other limits on State powers (a preview of Chapters 29–34) [28.110] In addition to limiting States powers by “collision” with Commonwealth legislative powers, the Constitution imposes some other limits, expressly or by implication. It was mentioned above that one of the exclusive powers “roped” in by para 51(iii) is the s 90 grant of exclusivity over customs and excise duties. This — along with its effect on State financial autonomy — will be discussed in Chapter 29. The other limits to be discussed in the following chapters are: n



n

n

n



In order to reinforce the uniformity of tariff policy, and the broader idea that Australia is now one nation, the following two prohibitions were imposed in terms that apply to both the States and the Commonwealth, but which, in the nature of things, are more likely to be breached by the States: – section 92 provides that trade, commerce and intercourse must be “absolutely free” (Chapter 30); and – section 117, paraphrased, provides that a citizen (“a subject of the Queen”) must not be subject to discrimination on the basis of residence out of the State where the law applies (Chapter 31). Section 109 makes a State law “invalid to the extent of the inconsistency” if it is inconsistent with a Commonwealth law. The general effect of that provision has been discussed above, but the detailed case law will be discussed in Chapter 32. In an odd conjunction of completely disparate issues, s 114 not only stops the States from raising a defence force (which was discussed above) but also imposes a symmetrical prohibition — neither the Commonwealth nor the States can impose a tax on the property of the other. The latter aspect will be discussed in Chapter 33, along with the following topic. And then there are two implied limitations affecting the States: – the States and Commonwealth have an immunity from laws of the other level of government, where the law would seriously affect their role in the federation (Chapter 33); and – since the State judiciaries have a role in the federal judicial system, an inference has been drawn that they must not be given functions which threaten their institutional integrity, or “enlist” them to implement executive decisions (Chapter 34). 479

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Part E Constitutional Law and the States

Then, to end this part, Chapter 35 will sum up the effect of the Constitution on the powers and finances of the States, and explore the pressures on the States arising from the continuing demand from some sections of the public for more uniform laws across this federated country.

FURTHER READING James Allan and Nicholas Aroney, “An Uncommon Court: How the High Court of Australia has Undermined Australian Federalism” (2008) 30 Syd LR 245 Colin Howard, “Federal Places and Exclusive Legislative Powers” (1969–1970) 9 UWALR 360 Geoffrey Lindell, “A Possible Limit on the Use of Commonwealth Places for ‘Non- Federal Purposes’: From Airports to Shopping Malls” (2004) Public Law Review 269–75 Michael Stokes, “The Role of Negative Implications in the Interpretation of Commonwealth Legislative Powers” (2015) 39 MULR 175

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CHAPTER 29

State Laws Not to Impose Customs or Excise Duties

29.1 Context and overview [29.10] In Chapter 21, we saw that the Commonwealth has been able to dissuade the States from imposing their own income taxes, and that it can impose any conditions that it likes on grants to the States. In this Chapter, we consider the further way in which the Commonwealth Constitution has limited the financial independence of the States — the prohibition on imposing customs and excise duties. We will see that the High Court has interpreted “excise” so that the States are also prohibited from raising their own revenue by imposing almost any form of taxation on transactions relating to goods. This makes the States even more dependent on Commonwealth funding. At the end of the chapter, we will see that an alternative interpretation of “excise” has been consistently advocated by minorities in the High Court, and that if this interpretation were adopted, the States could have much greater financial independence. Section 90 of the Constitution provides (with transitional parts omitted): 90. Exclusive power over customs, excise, and bounties … the power of the Parliament [ie Commonwealth Parliament] to impose duties of customs and of excise, and to grant bounties on the production or export of goods, shall become exclusive.

The section is not the actual source of the Commonwealth’s power to do these things — customs and excise duties are a form of tax, and are therefore authorised by para 51(ii), and bounties are authorised separately by para 51(iii). Section 90 simply makes the power exclusive to the Commonwealth, ie, it means a State (or a Territory, as we shall see in Chapter 36) does not have the power to impose customs or excise duties or grant bounties. This had an immediate impact on the financial independence of the States. Prior to federation, the colonies had raised between ¼ and ½ of their revenue from customs 481

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Part E Constitutional Law and the States

duties. At the moment they became States, this revenue source was cut off, though transitional provisions in ss 87, 89 and 93–97 ensured that some of the duties collected by the Commonwealth flowed to them. So the States have found it necessary to try to invent new forms of taxation. Although Dixon J once observed in Dennis Hotels Pty Ltd v Victoria [1960] HCA 10; (1960) 104 CLR 529 at [18] that “[s]ection 90 is quite unconcerned with the position of the individual. It is concerned wholly with the demarcation of authority between Commonwealth and State to tax commodities”, the challenges have been brought by private individuals or corporations subject to the State taxes. Every time the States lose a challenge to such a private person, they become more dependent upon the Commonwealth. It was held in Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) [1992] HCA 51; (1992) 177 CLR 248 that the Commonwealth exclusivity also means that the self-governing Territories cannot impose customs or excise duties either, for reasons which are discussed in more detail in Chapter 36. Hence cases involving Territory revenue-raising laws are mixed in with cases involving the States in the text below; for this purpose, though not for all purposes, a Territory can be equated with a State.

29.2 The easy parts — customs duties and bounties [29.20] A customs duty is a tax on imports, either from overseas or from another State. Since the States lost the right to impose them openly, there have been few cases on this part of s 90. In Commonwealth Oil Refineries v South Australia (1926) 38 CLR 408, however, the State had imposed a tax on petrol for the “first sale within the State”, and the Court held that it was a customs duty so far as it applied to petrol that had been imported into the State. The converse of the prohibition on customs and excise duties is the prohibition on bounties — just as the States may not burden the importation and manufacture of goods, they may not encourage their production or export by monetary payments either. Section 91 provides an exception — the States may grant “aid to or [a] bounty on the mining of gold, silver, or other metals” (why not just say “metals”?). They may also grant aid or a bounty on the production or export of other goods, but only with the consent of the Commonwealth Parliament expressed by resolution of both Houses. It might be thought that the spirit of ss 90 and 91 is that the level of government support of mining and industrial production should be decided entirely by the Commonwealth, and that the States should not compete with each other for industrial development, but should leave investment decisions to be influenced only by rational decisions as to where the best profit is to be made. However, States actively seek to promote development by offering incentives. For example, in the Central Queensland Coal Associates Agreement Act 1968 (Qld), the State gave legislative force to an agreement under which it promised to grant coal mining leases, build and operate railways to the port, provide a harbour master and give priority to the shipment of the coal, to give special rights to obtain water and so on, all to induce the Associates to open up coal mines. Coal is, of course, 482

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Chapter 29 State Laws Not to Impose Customs or Excise Duties

not a metal, and no resolution had been passed in the Houses of the Commonwealth Parliament. In Seamen’s Union of Australia v Utah Development Co (1978) 144 CLR 120 the Union argued that the State had granted “aid” in breach of s 91. The Court held that s 91 was merely facultative and did not contain a restriction on the States’ power, and that “aid” in the context of the section was limited to monetary aid. Thus, even if the Union had argued a breach of s 90, it would have failed. The States remain free to offer incentives to mining and other companies to set up business in the State, and the industries remain free to trade the States off against each other.

29.3 The more difficult phrase — duties of excise Taxes as against fees for services or for the granting of rights [29.30] One thing is clear about the concept of an excise — it is a tax on goods, at least on their production and possibly on some wider range of dealings with them. As we saw in Chapter 21, a tax, according to Latham CJ in Matthews v Chicory Marketing Board (Vic) [1938] HCA 38; (1938) 60 CLR 263, is a compulsory levy by a public authority for public purposes, and not within one of the recognised exceptions that were discussed there. Of particular significance in this context is the distinction between a tax and a fee charged by the government for the provision of services or the grant of a licence or privilege, already noted in the case of Air Caledonie International v Commonwealth (1988) 165 CLR 462 in Chapter 21. The distinction is further illustrated by the contrast between two cases, Parton v Milk Board (Vic) (1949) 80 CLR 229 and Harper v Victoria (1966) 114 CLR 361. In Parton, a levy (to use a neutral term) was imposed on retailers of milk to fund the activities of the Milk Board, which had a mixture of regulatory and promotional functions for the general advancement of the industry as a whole. However, it was held by Dixon J not to be a fee for services. He explained at 259: No doubt the administration of the Board is regarded as beneficial to what may loosely be described as the milk industry. But the Board performs no particular service for the dairyman or the owner of a milk depot for which his contribution may be considered as a fee or recompense. … The purposes for which the money is expended are extensive and cover … all the activities in which the Board may engage …

The levy satisfied the other elements of the definition of a tax, and therefore was a tax, and for reasons discussed below at 29.50, was held to be an excise. In Harper, on the other hand, it was unlawful to retail eggs that had not been graded under the control of a Board, and persons presenting eggs for grading (usually producers, but in Harper’s case a person who had bought eggs from interstate to re-sell in Victoria) had to pay a fee. As the Act ensured that the fee had to be “the proportionate part of the expenses which the Board actually incurs in testing, grading and marking all eggs 483

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Part E Constitutional Law and the States

presented to it for those purposes” (per Menzies J at 379) it was indeed a fee for services, therefore not a tax, and consequently not an excise. Many of the cases have involved fees imposed by States for the grant of a licence (or “franchise”) to carry on a business. In the first of these, Peterswald v Bartley [1904] HCA 21; (1904) 1 CLR 497, the fee was apparently a flat rate fee (the amount is not mentioned in the judgment) and was held not to be a tax or an excise. The later licence fee cases from Dennis Hotels to Ha, discussed in 29.60 to 29.80, usually involved a flat rate component to the fee as well as an ad valorem, or percentage of sales, component. In each of those cases, the flat rate part was held to be valid, and the argument focussed on whether the percentage component was a tax on goods or could really be seen as a fee for a licence. This can be summed up by saying that a fee that is seen to be a genuine fee for the issuing of a licence, by whatever line of reasoning, is not an excise. In another Harper case, Harper v Minister for Sea Fisheries (1989) 168 CLR 314, another type of fee was recognised as an exception. A number of licences were issued by Tasmania, for a fee, for abalone fishing. The permitted catch was limited, and in fact decreasing from year to year, in order to conserve the “finite but renewable” resource of abalone. Brennan J held at 335 that such a limited natural resource can be said to be public property, and that: “A fee paid to obtain such a privilege is analogous to the price of a profit à prendre; it is a charge for the acquisition of a right akin to property”. It was not a tax and therefore not an excise. Dawson, Toohey and McHugh JJ agreed with the result but commented, quoting from Air Caledonie International v Commonwealth (1988) 165 CLR 462 at [3], that it could be otherwise if the fee had “no discernible relationship with the value of what is acquired”. The cases above have all dealt with a charge imposed by a State on a person or corporation independent of the State. Under the Utilities (Network Facilities Tax) Act 2006 (ACT) and other Acts, the Australian Capital Territory government imposed pipeline and water usage fees on the ACT electricity and water body known as ACTEW, a Territoryowned corporation. ACTEW passed water, and the fees, on to the Queanbeyan City Council, which sought a declaration that the fees were an excise. In Queanbeyan City Council v ACTEW Corporation Ltd [2011] HCA 40; (2011) 244 CLR 530 at [20], the High Court accepted an argument that the exaction of money by a polity “cannot be a tax if the exaction is imposed upon an entity which, properly characterised, is indistinct from the polity itself ”, and if the fees were not a tax they of course could not be an excise. But are all taxes on goods (or commodities) excises? Is a tax only an excise if it taxes local manufacture or production, or are taxes on wholesale or retail sales also excises?

The early cases — taxes on local manufacture [29.40] The first s 90 case, Peterswald v Bartley, above 29.30, involved a challenge to a brewer’s licence fee. Griffith CJ, speaking for the whole Court, said: Bearing in mind that … the word “excise” had a distinct meaning in the popular mind, and that there were in the States many laws in force dealing with the subject, and that when

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Chapter 29 State Laws Not to Impose Customs or Excise Duties

used in the Constitution it is used in connection with the words “on goods produced or manufactured in the States,” the conclusion is almost inevitable that, whenever it is used, it is intended to mean a duty analogous to a customs duty imposed upon goods either in relation to quantity or value when produced or manufactured, and not in the sense of a direct tax or personal tax.

Though this fee was imposed on a manufacturer, it was, as noted above, apparently a flat rate fee and was therefore not “in relation to quantity or value”, so not an excise. Several later cases applied this definition; they all involved taxes on manufacture, calculated by relation to the amount manufactured. In Commonwealth Oil Refineries v South Australia (1926) 38 CLR 408, above, the part of the tax that applied to locallyrefined petrol was an excise. Then, even before being pushed out of the field of income tax in 1942 (see 21.60), the States started to get more inventive (or desperate?) in drafting their revenue-raising Acts and in arguing that they were not imposing taxes. In John Fairfax & Sons Ltd v New South Wales [1927] HCA 3; (1927) 39 CLR 139, the State’s argument that a tax on newspapers issued and sold in the State was not a tax on “goods” because its essence is the information, not the material pieces of paper, failed. The tax was an excise. In Attorney-General (NSW) v Homebush Flour Mills Ltd [1937] HCA 3; (1937) 56 CLR 390, the State law had first nationalised flour from the moment of its making, then demanded that the miller must store it for no cost, and then offered to sell it back to the miller, at a profit to the State. The Court held that the miller was under a “practical compulsion” to pay the money and therefore it was a tax. Since it was a tax, it was clearly a tax on the manufacture of goods, and invalid.

The expansion — taxes on any step towards delivery to the consumer [29.50] If the court had continued to apply the Peterswald definition, the States would have been able to impose taxes on goods at the wholesale or retail level, including what we now know as the Goods and Services Tax. If such a tax looked like it was effectively taxing only manufacture in Australia, it would probably have been seen as an indirect tax on manufacture, but if it applied to the mixed stream of local and imported goods at the higher levels of distribution it would not. As we will see in 29.120, this interpretation has consistently appealed to a minority of the High Court, but from the time of Sir Owen Dixon’s appointment in 1929, there was never a majority in its favour. Nearly all cases from that time on involve closely-split decisions, details of which will be glossed over in the following paragraphs, until we return to the line of dissent in 29.120. The first expansion of the definition was simply a relaxation of the “in relation to quantity or value” requirement. In Matthews v Chicory Marketing Board (Vic) [1938] HCA 38; (1938) 60 CLR 263 — the case from which the definition of tax introduced in 21.80 comes — a majority held that a licence fee based on the area of land planted with chicory (a cheap but bitter substitute for coffee) was an excise, as “the basis adopted for the levy has a natural, although not a necessary, relation to the quantity of the commodity produced” (per Dixon J). A similar approach was taken in Logan Downs Pty 485

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Ltd v Queensland [1977] HCA 3; (1977) 137 CLR 59 to an annual levy on the ownership of livestock. The more significant expansion was the extension of the concept to fees based on retail sales. In Parton v Milk Board (Vic) [1949] HCA 67; (1949) 80 CLR 229 — not so very long after the States had effectively lost their power to impose income tax in the Uniform Tax case (see 21.60) — the “contribution” by vendors was held to be a tax for reasons explained above at 29.30. In holding it to be an excise, Dixon J, as part of a narrow majority, said at [14]: In making the power of the Parliament of the Commonwealth to impose duties of customs and of excise exclusive it may be assumed that it was intended to give the Parliament a real control of the taxation of commodities and to ensure that the execution of whatever policy it adopted should not be hampered or defeated by State action. A tax upon a commodity at any point in the course of distribution before it reaches the consumer produces the same effect as a tax upon its manufacture or production. (emphasis added)

The emphasis has been added to draw attention to the fact that his Honour stated his conclusion, quite openly, as an assumption without offering any reasons whatsoever in support. The States have suffered the effects of this unsupported assumption ever since. In Bolton v Madsen [1963] HCA 16; (1963) 110 CLR 264, a rare unanimous judgment in this area, the whole Court endorsed the Dixonian approach, holding at [4] that: It is now established that for constitutional purposes duties of excise are taxes directly related to goods imposed at some step in their production or distribution before they reach the hands of consumers.

That is still the fundamental definition relied on by the majority in subsequent excise cases.

The legalistic qualification — criterion of liability and the “back-dating” trick [29.60] Despite the adoption of a broad definition of excise in Parton and Bolton, the States retained a considerable power to tax commodities for the next 34 years because the broad definition of excise was combined with an extraordinarily legalistic loophole. The law under challenge in Dennis Hotels Pty Ltd v Victoria [1960] HCA 10; (1960) 104 CLR 529 involved a “victualler’s licence”, for which the fee was “back-dated”; that is, the fee for the forthcoming year was calculated as a percentage of the value of the liquor bought for resale in the previous year. It was held not to be an excise, and valid, by a majority of 4:3. Kitto J introduced a “criterion of liability” test. He held at [3] that: … a tax is not a duty of excise unless the criterion of liability is the taking of a step in a process of bringing goods into existence or to a consumable state, or passing them down the line which reaches from the earliest stage in production to the point of receipt by the consumer.

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Chapter 29 State Laws Not to Impose Customs or Excise Duties

While he was realistic enough to concede that the usual practical effect would be that the licence fee would be passed on to the drinker by being factored into the retail price, he insisted that what attracted the liability for the fees was not the selling of liquor under the licence but the acceptance of the licence. The fees were taxes imposed not in respect of commercial dealings, but in respect of the acquisition of a right to engage in commercial dealings. That is, under this approach, you look at what the Act says it is charging the fee for, not at the practical effect. Two of the other judges who held the licence fee valid (Taylor and Menzies JJ) did so on somewhat more substantive grounds — since the State could prohibit sales of alcohol completely, it was granting a valuable right to the licensees, so the fee was a reasonable measure of the value of the licence, and Fullagar J, as discussed below at 29.120, held that only taxes on production were excises. However, the case was generally accepted for the next 37 years as authority for the effectiveness of the “back-dating device” (or to be more frank, back-dating trick) and as supporting the criterion of liability approach. It was quickly applied by the States to laws for the imposition of licences to sell cigarettes and tobacco and petrol, and these laws were also upheld, on the precedent of Dennis Hotels, in Dickenson’s Arcade Pty Ltd v Tasmania [1974] HCA 9; (1974) 130 CLR 177 and HC Sleigh Ltd v South Australia [1977] HCA 2; (1977) 136 CLR 475 respectively. Even in Bolton v Madsen, above, where Kitto J’s “tax on the taking of a step” approach was endorsed, the fee in question was held not to be an excise. The fee was imposed in return for a permit to use a vehicle for the carriage of goods, based on the carrying capacity of the vehicle and the distance of the proposed journey. However, it was valid at [5] because: … it is the criterion of liability that determines whether or not a tax is a duty of excise. The tax is a duty of excise only when it is imposed directly upon goods or, to put the same thing in another way, when it directly affects goods, and to establish no more than that its imposition has increased the cost of putting goods upon the market by a calculable amount falls short of establishing the directness of relation between the tax and the goods that is the essential characteristic of a duty of excise.

1960s–1990s: Criterion of liability in conflict with practical effect [29.70] Though the back-dating trick was accepted in respect of alcohol, tobacco and petrol, and could only really be justified if the criterion of liability approach was accepted as correct, differences remained within the Court. With Sir Owen Dixon’s retirement as Chief Justice and Sir Garfield Barwick’s appointment in 1964, a strong voice for assessing the validity of laws not by their ostensible criterion of liability but by their practical effect was heard on the bench. Details of majority and minority judges are not provided in discussion of the cases below, but in broad and general terms, those Justices who would have upheld a State law usually based their reasons either on criterion of liability or the old, narrower, “tax on manufacture” definition of excise and those who struck it down relied on the broad, Dixonian, Parton and Bolton v Madsen, definition plus a practical effect approach. 487

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Part E Constitutional Law and the States

The Bolton v Madsen definition clearly implied that a State sales tax would be an excise, so the States, still anxious for a revenue source independent of the Commonwealth, imposed “receipts duties” in the late 1960s. These laws made it compulsory to issue a receipt for all transactions over a threshold value, and to pay stamp duty on the issue of the receipt. Different aspects of these laws were challenged in Western Australia v Hamersley Iron Pty Ltd (No 1) [1969] HCA 42; (1969) 120 CLR 42 and Western Australia v Chamberlain Industries Pty Ltd [1970] HCA 5; (1970) 121 CLR 1 and in each case a narrow majority held that the law was in effect imposing a tax on the sale of goods, which was an excise. Even some of those who upheld the back-dating trick at the retail level held that a fee imposed on production was closer to the essence of an excise so back-dated fees were held to be invalid in M G Kailis Pty Ltd v Western Australia [1974] HCA 10; (1974) 130 CLR 245 (fish processing) and Gosford Meats Pty Ltd v New South Wales [1985] HCA 5; (1985) 155 CLR 368 (abattoirs). Similarly, the flat-rate and apparently small licence fee upheld in the original Peterswald v Bartley, above 29.30, was distinguished in Hematite Petroleum Pty Ltd v Victoria [1983] HCA 23; (1983) 151 CLR 599 — a ten-million dollar annual fee for a licence to operate a pipeline was, in the eyes of the majority, obviously too large to be an administration cost and was, equally obviously, in effect a tax on production. Much of the reasoning in the above cases made the decision in Dennis Hotels seem increasingly unpersuasive, so tobacco retailers and manufacturers tried to re-open the decision on an almost regular quadrennial or quinquennial basis. In Evda Nominees Pty Ltd v Victoria [1984] HCA 18; (1984) 154 CLR 311, the Court held that, since Dennis Hotels had been considered and applied in Dickenson’s Arcade and H C Sleigh, above, and the States had organised their financial affairs in reliance on them, it would not hear argument about the correctness of the decisions. In Philip Morris Ltd v Commissioner of Business Franchises (Vic) [1989] HCA 38; (1989) 167 CLR 399, the Court did hear full argument but the majority confirmed Dennis Hotels on two bases, that the States had relied on it and that there was a special need to regulate sales of tobacco and alcohol. In Capital Duplicators Pty Ltd v Australian Capital Territory [1993] HCA 67; (1993) 178 CLR 561, for similar reasons, the majority again refused to overrule Dennis Hotels but refused to extend the principle to a licensing fee for the production of X-rated videos. With every successive decision, the support within the Court for Dennis Hotels and the criterion of liability approach seemed weaker.

Ha — the triumph of practical effect and the end of the back-dating trick [29.80] In Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465, the back-dating trick was finally killed off. By the time of this case, the fee for a tobacconist’s licence had been raised, in steps, from 30 per cent in the time of Dickenson’s Arcade to 100 per cent, and the frequency of renewal of the licence had changed from annually to monthly. When Ms Ha, an operator of a duty-free store, challenged the validity of the licensing requirement, the States argued first that the back-dated fees were justified by precedent 488

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Chapter 29 State Laws Not to Impose Customs or Excise Duties

and alternatively that the cases from Parton and Bolton onwards were wrongly decided, and that the Court should hold that an excise was merely a tax on manufacturing. On the second, more general argument, the majority (Brennan CJ, McHugh, Gummow and Kirby JJ) held: It is clear that an objective of the movement to Federation was “inter-colonial free trade on the basis of a uniform tariff ” as this Court pointed out in Cole v Whitfield. That objective could not have been achieved if the States had retained the power to place a tax on goods within their borders. … … free trade within the Commonwealth would not have been ensured by exclusive federal fiscal control of imports, domestic production and exports. As earlier noted, the imposition of State taxes upon other inland dealings with goods as integers of commerce, even if those taxes were not protectionist, would have created impediments to free trade throughout the Commonwealth. Why should s 90 be construed so as to subvert an objective which Federation was designed to achieve? It is immaterial that the States retain taxing and other powers the exercise of which might affect the overall costs of production, sale or distribution of goods and ultimately be shared by consumers; what is material is that the States yielded up and the Commonwealth acquired to the exclusion of the States the powers to impose taxes upon goods which, if applied differentially from State to State, would necessarily impair the free trade in those goods throughout the Commonwealth. Section 51(ii) ensured that such taxes when imposed by the Parliament would be imposed uniformly throughout the Commonwealth.

That is, they confirmed Dixon J’s statement of the object for s 90 from Parton, and the definition of an excise in Bolton. However, while holding that Dennis Hotels and Dickenson’s Arcade could “stand as authorities for the validity of the imposts therein considered” their Honours held that the licensing law was now invalid; in view of the increased frequency of collection and the size of the tax imposed, it could not conceivably be regarded as a mere fee for a licence, even if it once could. Though they purported to find support for this conclusion in Kitto J’s judgment in Dennis Hotels, they clearly rejected the criterion of liability approach, noting that “in considering the validity of laws of this kind we must look at the substance and not the form”. Although Dawson, Toohey and Gaudron JJ, as discussed below, dissented as to the definition of an excise, they mentioned the criterion of liability test strictly in the past tense, and impliedly agreed that whether a charge was an excise should be assessed on its practical effect.

Consequences of Ha [29.90] The refusal to expressly overrule Dennis Hotels possibly implied that State liquor licensing laws were still valid, as the fees had only increased to about 10 per cent in most States. The States and the Commonwealth, however, took the decision as a hint that all the tobacco, liquor and petrol “franchise” laws were invalid, and the Commonwealth increased the excise duty on those commodities by an equivalent amount and provided that the amount raised should be granted to the States. 489

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Part E Constitutional Law and the States

The arrangements just referred to were subsumed into the wider funding system in 2000 when the Commonwealth introduced the Goods and Services Tax (GST), and provided that all of the receipts from it were to be granted to the States. This has put the States on a more secure financial footing than before, with rather less need to raise revenue by “creative” taxes that might breach s 90. It is therefore possible the question of excise duties will not be a live issue in future. However, if it does become relevant (and the States still complain that their revenue is insufficient, so it is possible) it is clear that the High Court will look at the practical effect of any new taxes and will no longer countenance the “back-dating” trick.

The need for a tax imposed directly on a step [29.100] There were occasional suggestions in the cases that any tax is an excise if it is “such that it enters into the cost of the goods and is therefore reflected in the prices at which the goods are subsequently sold” — Hematite Petroleum, above, per Mason J. However, this clearly goes too far. In a road transport tax case before Bolton v Madsen, Browns Transport Pty Ltd v Kropp [1958] HCA 49; (1958) 100 CLR 117, a unanimous Court observed at [8]: While the licensing fee would no doubt normally enter, like any other outgoing, into the calculation of fares and freights to be charged, … it is very clear, in our opinion, that the tax is not a tax “upon” goods, or “in respect of ” goods, or “in relation to” goods.

As Gibbs J pointed out in Hematite, many taxes, such as payroll tax, could enter into the eventual price of commodities. This more cautious approach seems to be reflected in the sentence from Ha already quoted above: It is immaterial that the States retain taxing and other powers the exercise of which might affect the overall costs of production, sale or distribution of goods and ultimately be shared by consumers.

That is, although the criterion of liability part of Bolton v Madsen may have been rejected, it is suggested that the part that emphasised that an excise is “taxes directly related to goods imposed at some step in their production or distribution” still states a useful test. If a charge is imposed, in its practical effect, on manufacture or wholesale or retail sales, it is likely to be an excise. If it affects the price of goods indirectly, like payroll tax, land tax on a factory or shop, or indeed a transport charge as in Browns Transport or Bolton, it is not likely to be an excise.

A tax on the consumer? [29.110] It will be recalled that in Bolton v Madsen, the Court held at [4] that an excise was a tax on goods “imposed at some step in their production or distribution before they reach the hands of consumers”. Therefore it occurred to one State, Tasmania, to try 490

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Chapter 29 State Laws Not to Impose Customs or Excise Duties

to impose a tax on cigarettes after reaching the consumer, that is, to impose it on the consumption of cigarettes, as well as imposing a retailers’ licence fee. (To an economist, any tax on spending is a “consumption tax” — the Goods and Services Tax was advocated as a “broad-based consumption tax” — but here we are talking about an attempt to actually tax the final act of consumption.) The problem is, how does a State efficiently collect such a tax? It could demand that people fill in an annual return of cigarettes consumed, or send inspectors out to watch people smoking — to suggest these ideas is to see how ineffective it would be. So the method hit upon by Tasmania was to provide, by regulation, a convenient option by which consumers could appoint the retailer as their agent to pay the tax to the State on their behalf. Unsurprisingly, the majority in Peterswald v Bartley, above 29.30, held that this was really taxing the movement of the goods into the hands of the consumer at the moment of sale, and the relevant regulations were invalid. No more has been heard of taxes on the act of consumption.

Given a law imposing, or authorising the imposition of, a fee/charge/ impost, ask …

Is it a tax (apply Figure 12.1)?

Does it apply Is it a tax upon It is some sort to the goods imposed of tax, but importation at some other neither customs YES NO NO of goods step in their nor excise into the production or (and s 90 Commonwealth distribution is no problem) or a state? before reaching the consumer?

NO Then it can’t be a customs or excise duty

YES It is a customs duty

YES It is an excise duty

Which Parliament enacted the law?

Commonwealth

State or territory

Perfectly valid law

Invalid: breach of s 90*

*For the application of s 90 to the territories, see Chapter 22

Figure 29.1 Duties of customs or excise 491

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Part E Constitutional Law and the States

An undercurrent of dissent — back to taxes on manufacture? [29.120] Except for the brief flash of unanimity in Bolton v Madsen, most of the cases on excise duties have been closely divided. The crucial case, Parton, was decided by a 3:2 majority and almost ever since then there has been a minority on the Court asserting that the Peterswald holding, that an excise is a tax on local production and only on local production, is essentially correct. In Dennis Hotels, Fullagar J held that the licence fees were both valid on this basis, rather than on the technicalities of criterion of operation, and Menzies J held at [7]: The guidance of the Constitution itself is … that a tax upon some dealing with goods which is neither upon importation into Australia nor upon the production or manufacture of goods in Australia, is neither a duty of customs nor a duty of excise.

In Hematite and Gosford Meats, Murphy J held that an excise is a tax on production within the State. Although this meant that he joined in the majority decision that the pipeline and abattoirs licensing fees were invalid, it meant that “a tax on wholesale or retail sale which does not discriminate between goods on the basis of their production within or without the State, [would be] neither customs nor excise”. Then, in the series of cases rearguing the validity of the back-dating trick, a group of judges consistently questioned the Parton extended definition. In Phillip Morris, Dawson, Toohey and Gaudron JJ held that there was much to be said for the Peterswald approach, but held themselves bound by Dennis Hotels to uphold the tobacco franchise fees. In Capital Duplicators, they were not so bound, and all held that a retail tax was not an excise. In Ha, in a joint judgment, they confirmed that: In the first place, there is no basis for the assumption that s 90 was intended to confer an exclusive power to impose duties of customs and excise for the purpose of giving the Commonwealth real control of the taxation of commodities and thereby power to effectuate its economic policies. If it had been intended to confer upon the Commonwealth exclusive power to tax commodities it would not have been difficult to frame a provision to that effect. But s 90 is not such a provision and in confining the exclusivity for which it provides to the imposition of duties of customs and excise it is apparent that it is part of a constitutional framework designed to achieve the objectives of a customs union. So much is suggested by the Convention Debates and by colonial legislation as it stood in the lead up to federation. … Secondly, it is plainly incorrect to assert that a tax upon a commodity at any point in the course of distribution before it reaches the consumer has the same effect as a tax upon its manufacture or production. Not only is it an incorrect assertion but it fails to comprehend that the purpose of making the power to impose excise duties exclusive to the Commonwealth was to prevent impairment by the States of the common external tariff. A tax upon the manufacture or production of goods increases the cost of those goods without effecting a corresponding increase in the cost of imported goods of the same kind. Any protection afforded by customs duties imposed upon the imported goods is thereby reduced. But a tax imposed upon a step in the distribution of goods which falls indiscriminately upon locally produced and imported goods does not have that effect …

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In response to the argument of the majority, cited above, that “the imposition of State taxes upon other inland dealings with goods … would have created impediments to free trade”, they commented: … a State tax which fell selectively upon imported goods would, of course, be a customs duty and be prohibited by s 90. A State tax which fell selectively upon goods manufactured or produced in that State would be an excise duty and be prohibited by s 90. A State tax which discriminated against interstate goods in a protectionist way would offend s 92 and be invalid. But those three instances do not exhaust the categories of taxes upon goods and do not support, as a legal conclusion, the proposition that the Commonwealth was intended to have an exclusive power to tax commodities. That is a suggestion which appears to be made in this case, but clearly a State tax — a tax upon sale, for example — which does not fall selectively upon imported goods or locally produced or manufactured goods and does not discriminate against interstate goods, offends against none of the prohibitions imposed by the Constitution. In particular, such a tax would not affect freedom of interstate trade because all goods would compete in the State on the same footing: there would be no discrimination of a protectionist kind.

In terms of the apparent intent of the drafters, or the apparent intent of the words of the Constitution, there is much to be said for these arguments. On the other hand, from the perspective of people buying and selling across different States in Australia, there is much to be said for a broader “integrated economy” argument. It would be inconvenient and annoying to have to pay different levels of tax on buying goods in different States — but Americans put up with it. It is ironic that it was Dixon J who said “[s]ection 90 is quite unconcerned with the position of the individual” (see above at 29.10), and yet it is his dictum in Parton that has done so much to make it easy for individuals to challenge State charges. For the moment, the latest precedent is clear — an excise is a tax on any step in dealings with goods. However, should the States impose taxes on wholesale or retail dealings in goods that provoke a future challenge, the argument is still open. A reconsideration of the broad definition of excise would be the single biggest step that could be taken to increase the financial autonomy of the States. Of all the issues discussed in this book, this may well be the one that is the most open for re-argument. Cross-reference: As noted in 29.10, the reasons for the holding that the Commonwealth’s exclusive power means that the Territories are also prohibited from imposing customs or excise are discussed in Chapter 36.

ISSUES FOR DISCUSSION 1. To operate a motor vehicle on public roads, you have to pay a registration fee. Obviously after the first year the “rego” is merely a charge for the right to use the vehicle, or the roads, but what about the first year’s fee for the registration of a new car, that you have to pay at or very soon after the time of paying the purchase price? Is it an excise duty? Is the fact that later years’ payments are not excise duties some help in arguing that the first payment is also not an excise, or is that not relevant? 493

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Part E Constitutional Law and the States

2. Is a mining “royalty” an excise? First consider why it is called a “royalty” — who “owns” the mineral before it is mined? But see the article by Caldalza, below. 3. Would sales taxes (or the “goods” part of goods and services taxes) imposed by the States be contrary to the apparent purpose of s 90, or to the nature of the federation as an economic union? (Think of other federations or economic unions — can the States or nations impose their own sales taxes there?) Would people doing business in more than one State find them intensely annoying? Would they rescue the States from their economic dependence on the Commonwealth? Are the last two questions relevant to the interpretation of a Constitution?

FURTHER READING Manuel Caldalza, “State Government Mining Royalties: Requited Taxes or Duties of Excise?” (2000) 7(3) Murdoch University Electronic Journal of Law, http://www. murdoch.edu.au/elaw/indices/issue/v7n3.html Rowan McMonnies, “Ngo Ngo Ha and the High Court v New South Wales: Historical Purpose in History and Law” (1999) 27 Fed LR 471 Gonzalo Villalta Puig and Roshan Chaile, “For a Narrow Interpretation of Section 90 of the Australian Constitution: The Excise Duty System as a Guarantee of Free Trade in an Internal Market” (2010) 29 UQLJ 319

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CHAPTER 30

Freedom of Interstate Trade, Commerce and Intercourse 30.1 Context and overview [30.10] Section 92 of the Constitution provides: On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

As Brennan J said in Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461 at [30]: “Sections 92 and 117 are the constitutional pillars of the legal and social unity of the Australian people just as ss 90 and 92 are the constitutional pillars of national economic unity.” The purpose of the “trade and commerce” part of this section is to supplement s 90, which prohibits the States from imposing customs duties (see Chapter 29). It goes further than s 90, and prevents the States from making “decisions adverse to the commercial and other interests of those who are not their constituents and not their taxpayers”: Betfair Pty Ltd v Western Australia [2008] HCA 11; (2008) 234 CLR 418 at [34]. The protection of interstate “intercourse” guarantees the freedom to travel and send communications across State borders, and s 117 guarantees that when you briefly visit another State, you shall not suffer discrimination compared to the residents of that State. Both parts of s 92 are subject to the qualification that the States may make regulatory laws with some aim other than the prevention of interstate trade, commerce or intercourse, as long as the effect on the trade, commerce or intercourse is relatively minor (the law is “appropriate and adapted” to the legitimate aim, or the interference is no greater than reasonably required). 495

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Part E Constitutional Law and the States

30.2 The elements: trade and commerce, intercourse, and “among the States” Trade and commerce [30.20] The phrase has the same meaning in s 92 as it does in para 51(i); it includes traffic in intangibles, the formation of contracts for the delivery of goods and transport of people, and the actual delivery and transport (see the cases discussed in 18.40). Obviously enough, manufacturing is “an essential preliminary condition to trade and commerce” but is not in itself trade (Grannall v Marrickville Margarine Pty Ltd [1955] HCA 6; (1955) 93 CLR 55, per Dixon CJ, McTiernan, Webb and Kitto JJ at 72), and a State can therefore regulate manufacture within the State without worrying about s 92.

Intercourse [30.30] “Intercourse” is derived from the Latin inter cursus, meaning running between. In addition to its popular meaning as a euphemism for sex, it can mean either travel or communication; cases on the freedom of travel or communication are discussed in section 30.4. The concept also overlaps with trade and commerce. In the Bank Nationalisation case (Bank of New South Wales v Commonwealth [1948] HCA 7; (1948) 76 CLR 1), Starke J held at [49] that: “The word ‘intercourse’ in s 92 is as applicable to commercial intercourse as to personal intercourse.”

Are the professions involved in trade? [30.40] The above question is something of a double-edged sword for professionals. If they succeed in arguing that their activities are not in trade or commerce, they avoid liability under the sections of the Australian Consumer Law that only apply to activity in trade or commerce, but they lose the possibility of any protection under s 92. In cases where Acts have used words like “trader” or “in trade or commerce”, State courts and tribunals have held, even quite recently, that the “professions” do not engage in “trade”. In R v Small Claims Tribunal; Ex parte Gibson [1973] Qd R 490, Stable J pronounced that: In the ordinary everyday understanding of the ordinary intelligent subject … the field of trade or commerce means the shop counter or the showroom floor. The word “professional” would bring to this ideal being a far different concept. He [or she] would hardly think of the doctor as practising in the field of trade or commerce.

Since that decision, there have been two suggestions by eminent lawyers, who have since served on the High Court, that professionals do indeed trade. The US Supreme Court held in 1975 that lawyers engage in trade or commerce (Goldfarb v Virginia State Bar (1975) Trade Cases 60,355), and Prof Heydon, as he then was, argued that this would 496

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Chapter 30 Freedom of Interstate Trade, Commerce and Intercourse

apply here.1 In Bond Corporation Pty Limited v Thiess Contractors Pty Ltd [1987] FCA 56; (1987) 14 FCR 215, French J, then of the Federal Court, rejected the argument that “the professional is engaged in what is ‘essentially an intellectual activity and not an activity of a commercial or mercantile kind’, and held that: Where the conduct of a profession involves the provision of services for reward, then in my opinion, … there is no conceivable attribute of that aspect of professional activity which will take it outside the class of conduct falling within the description “trade or commerce”.

However, other judges have not been willing to follow these suggestions, especially when the legal profession is involved. In King v Yurisich [2005] FCA 1277, Lander J suggested that the question will be answered differently at different stages of the solicitor’s retainer, at [396]: Where a professional person is retained to give a person (the client) professional advice, the conduct of the professional person leading up to the engagement will ordinarily be in trade or commerce. The conduct will have the necessary commercial flavour. If, after the retainer has been agreed, the professional person gives professional advice to the client pursuant to the terms of the retainer, the conduct, including the advice, may lack the commerciality necessary to characterise the conduct as “in” trade or commerce. It might be advice “in respect to” or “in relation to” trade or commerce but it will not be “in” trade or commerce.

His Honour’s decision that the actual provision of professional services was not in trade was followed by Harbison J in Walsh v Cannon [2008] VCAT 962. With respect, it is suggested that these decisions are not likely to be approved should a similar matter go to the High Court, but so far, that Court has managed to avoid deciding the issue.

Gambling as trade, commerce or intercourse? [30.50] One particular “industry” that the States frequently try to regulate is gambling. In early cases on the prohibition of the purchase of tickets in interstate lotteries (R v Connare; Ex parte Wawn [1939] HCA 18; (1939) 61 CLR 596; Mansell v Beck [1956] HCA 70; (1956) 95 CLR 550), the laws were held valid either (per McTiernan J in both cases) because gambling is not trade and commerce at all, because it was reasonable regulation of a social evil, or because the “criterion of operation” of the laws (see below) was the “aleatory” (chancy) nature of the transaction rather than the fact that it was part of interstate trade. However, in Betfair Pty Ltd v Western Australia [2008] HCA 11; (2008) 234 CLR 418, discussed in more detail below, the joint judgment observed that no submission had been made that the betting with which the case was concerned was not part of trade and commerce, and commented at [93]: “Given the evidence respecting the extensive revenues presently provided to government from licensed gambling, such 1 John Dyson Heydon, “Lawyers’ Fees and the Trade Practices Act, s 45” [1976] ACLD DT 27.

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Part E Constitutional Law and the States

a submission would have been at best incongruous”. In its 1999 Report into Australian Gambling Industries, the Productivity Commission refuted the notion that gambling was an “industry that produces nothing” and solemnly estimated that it produced a consumer benefit of at least $4.4 billion each year,2 so those of us who might suggest that gambling is just an unproductive shuffling-around of money while creaming some off the top will probably have to live with the fact that the High Court considers it a part of trade and commerce and therefore protected by s 92.

Among the States [30.60] A business that is doing business in two States is not necessarily engaged in trade among the States. In Hospital Provident Fund Pty Ltd v Victoria [1953] HCA 8; (1953) 87 CLR 1, the Fund maintained offices in several States and was accepting payments from contributors and paying out claims to them in those States. It seems from the judgment that in those days most payments were made to, and from, the office in the contributor’s State; in these days of the Internet, it might well be different. The fact that some payments were made across State borders and funds were sometimes transferred from one State to another were held to be “accidents” of the overall business, so it could not rely on s 92 to avoid an onerous Act regulating its registration in Victoria. Dixon J conceded, at 16, that “it would not be difficult to conceive of these inter-State elements growing to such dimensions as to form an essential part of the conduct of the business” but as the business was conducted at that time the interstate elements were incidental. Similarly, a barrister who might frequently fly interstate is acting under a series of separate briefs, each made in a particular State and, even if legal work is trade (as to which, see 30.40 above) it is not among the States: Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461. For a contract to be part of interstate trade, it must state “either by express stipulation or necessary implication” that the goods are to be supplied from another State — recall W & A McArthur Ltd v Queensland [1920] HCA 77; (1920) 28 CLR 530, discussed in 18.50. In that case, the company’s contracts that implied that goods might well be supplied from a Queensland source were subject to a Queensland price-fixing Act, but those that made it clear the goods were to come from Sydney were protected from the Act by s 92, as it was then interpreted. (This discriminatory benefit to interstate trade would not be available, however, under the current interpretation discussed below.)

Trade with the Territories [30.70] The section does not refer to trade between a State and a Territory, but in the exercise of its power to make laws for the Territories (s 122, Chapter 36) the Commonwealth Parliament has extended the same principle to trade with, or between, the Territories. The Northern Territory (Self-Government) Act 1978 (Cth), s 49 provides that: 2 Report, Ch 5, esp pp 5.1 and 5.2.

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“Trade, commerce and intercourse between the Territory and the States, whether by means of internal carriage or ocean navigation, shall be absolutely free”. Section 69 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) is similar but more complex — it expressly mentions trade with all the other Territories as well as the States, but does not bind the Commonwealth. As demonstrated in Sportsbet Pty Ltd v New South Wales [2012] HCA 13; (2012) 249 CLR 298, below 30.120, these sections have the same meaning as s 92 and have the same effect on State laws by virtue of s 109 as s 92 has by its direct effect.

30.3 Freedom from what? Impossibility of literal application [30.80] The prescription that trade and commerce must become absolutely free cannot have been meant literally. Taken literally, it would have robbed the grant of power to the Commonwealth in para 51(i) of all content — even interstate trading in heroin couldn’t have been made illegal. State laws would suddenly lose their force the minute someone engaged in interstate trade; no road traffic laws, for example, could apply to a truck on an interstate journey. It would have put into effect an extreme form of free enterprise theory but one that would apply only to interstate enterprise. So “absolutely” can’t have meant “absolutely free from all legal restrictions”; as the Privy Council noted in Commonwealth v Bank of New South Wales (Bank Nationalisation case) (1949) 79 CLR 497, freedom does not mean anarchy. It either meant “absolutely, but subject to some limits that depend on the discretion of the High Court and Privy Council” or it meant “absolutely free from some particular kind of restrictions”.

An abbreviated history of conflicting theories [30.90] Until 1988, most decisions reflected the first alternative above. The High Court and Privy Council applied what has been called the “individual rights theory”. Although cases decided under this approach did include some rhetoric about “civil rights”,3 and did have the effect of protecting traders from nationalisation and compulsory marketing schemes, at least where they affected interstate trade, to call it a theory implies a coherency that the cases never achieved. It can be seen in a more limited way as an approach that tried to give the section as literal a meaning as possible, while recognising that there must be some, vaguely defined, limits. Interpreting the section literally could mean that a law was held invalid as it applied to interstate trade but valid in its intrastate application, for example, price controls in McArthur’s case, above 30.60. It also meant that the Commonwealth’s attempt to nationalise the banks was invalid on the ground that it interfered with the part of their business — surely relatively small — which consisted of 3 McArthur, above, per Isaacs and Starke JJ.

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Part E Constitutional Law and the States

the interstate transfer of credit: Commonwealth v Bank of New South Wales. One might have thought that if the drafters had wanted to prohibit nationalisation of industry, rather than merely prohibiting State protectionism, they would have said so more clearly. No reason was ever offered in the judgments as to why interstate trade should be given protections that intrastate trade lacked — it was just, apparently, what the section demanded. As to the fact that there must be some limits, there were differences over the years as to whether: n n

the section bound the Commonwealth, or only the States; and whether the effect of the law on interstate trade should be assessed only by the “criterion of liability” expressed in the law or also by its practical effect on such trade.

Although most majority decisions were based on the individual rights approach, sometimes modified by the legalistic criterion of liability test, there was a constant strain of dissent suggesting that the section was only intended to prevent discrimination against interstate trade, one example being the dissent of Gavan Duffy J in the McArthur case, above 30.60. Certainly, in cases where the law did effectively discriminate against imports from other States, such as Fox v Robbins [1909] HCA 81; (1909) 8 CLR 115 (a higher liquor licence fee for selling interstate wines than local ones), Tasmania v Victoria [1935] HCA 4; (1935) 52 CLR 157 (prohibition of the import of potatoes when quarantine would have sufficiently protected against disease), and North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW [1975] HCA 45; (1975) 134 CLR 559 (all milk required to be pasteurised in New South Wales even if it had already been pasteurised just over the border), the laws were consistently struck down though in some cases only by small majorities. All three of these controversies were discussed and resolved in Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360.

Freedom from protectionist discrimination — Cole v Whitfield [30.100] In this case, all States and the Commonwealth invited the High Court to reconsider the meaning of s 92. South Australian fisheries regulations permitted the taking of crayfish once the carapace was 98.55 mm long. Tasmanian regulations prohibited the taking or possession of crays less than 105 mm long for a female, or 110 mm for a male. Whitfield and his company imported some crays from South Australia for re-selling, and some 97 of them were found to be under the Tasmanian minimum size. Cole, a fisheries inspector, prosecuted, Whitfield pleaded that the Tasmanian law was in breach of s 92, and all States and the Commonwealth intervened, generally agreeing that the “free trade” interpretation of the section should be adopted. The Court wrote a unanimous judgment. Their Honours discussed the history of the drafting of the section; in short, the phrase “absolutely free” had been suggested in Sir George Reid’s original motions and the rhetoric of that phrase had proved so powerful 500

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that it was not amended despite many warnings that it was too broad and would prove difficult to interpret. Their Honours held at [21]–[25]: Attention to the history which we have outlined may help to reduce the confusion that has surrounded the interpretation of s 92. That history demonstrates that the principal goals of the movement towards the federation of the Australian colonies included the elimination of intercolonial border duties and discriminatory burdens and preferences in intercolonial trade and the achievement of intercolonial free trade. As we have seen, apart from ss 99 and 102, that goal was enshrined in the various draft clauses which preceded s 92 and ultimately in the section itself. The expression “free trade” commonly signified in the nineteenth century, as it does today, an absence of protectionism, that is, the protection of domestic industries against foreign competition. Such protection may be achieved by a variety of different measures — eg, n n n n n

tariffs that increase the price of foreign goods, non-tariff barriers such as quotas on imports, differential railway rates, subsidies on goods produced and discriminatory burdens on dealings with imports —

which, alone or in combination, make importing and dealings with imports difficult or impossible. Sections 92, 99 and 102 were apt to eliminate these measures and thereby to ensure that the Australian States should be a free trade area in which legislative or executive discrimination against inter-State trade and commerce should be prohibited. Section 92 precluded the imposition of protectionist burdens: not only inter-State border customs duties but also burdens, whether fiscal or non-fiscal, which discriminated against inter-State trade and commerce. That was the historical object of s 92 and the emphasis of the text of s 92 ensured that it was appropriate to attain it. [Bullet points added] … As we have seen, the failure of the section to define expressly what inter-State trade and commerce was to be immune from is to be explained by reference to the dictates of political expediency, not by reference to a purpose of prohibiting all legal burdens, restrictions, controls or standards. In that context, to construe s 92 as requiring that inter-State trade and commerce be immune only from discriminatory burdens of a protectionist kind does not involve inconsistency with the words “absolutely free”: it is simply to identify the kinds or classes of burdens, restrictions, controls and standards from which the section guarantees absolute freedom. The task which has confronted the Court is to construe the unexpressed; to formulate in legal propositions, so far as the text of s 92 admits, the criteria for distinguishing between the burdens (including restrictions, controls and standards) to which inter-State trade and commerce may be subjected by the exercise of legislative or executive power and the burdens from which inter-State trade and commerce is immune. The history of s 92 points to the elimination of protection as the object of s 92 in its application to trade and commerce. The means by which that object is achieved is the prohibition of measures which burden inter-State trade and commerce and which also have the effect of conferring

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protection on intra-State trade and commerce of the same kind. The general hallmark of measures which contravene s 92 in this way is their effect as discriminatory against inter-State trade and commerce in that protectionist sense. There can be no doubt that s 92 guarantees absolute freedom of inter-State trade and commerce from all inter-State border duties and other discriminatory fiscal charges levied on transactions of inter-State trade and commerce. … But the section cannot be easily confined to such matters because protection against inter-State trade and commerce can be secured by non-fiscal measures. (Emphasis added)

The phrase most often quoted from the above passage is that s 92 outlaws “discriminatory burdens of a protectionist kind”. However, laws could discriminate against some traders and/or protect other traders on various grounds, and the later emphasised passage makes the scope of the section more clear — it invalidates laws that discriminate against interstate trade and commerce to protect intra-State trade and commerce. A better short summary may simply be to say that the section outlaws protectionist burdens, where protection means protection from interstate competition. As to whether a Commonwealth law could impose a protectionist burden, their Honours said at [30]–[32]: The impact that the interpretation favoured by history and context would have on the Commonwealth’s legislative power under s 51(i) was not closely explored in argument in the present case. … It is, however, necessary for present purposes that we make some general reference to the relationship between s 51(i) and s 92 … … experience teaches that Commonwealth legislation is often directed to the regulation of all trade within the Commonwealth’s legislative reach (eg, the Trade Practices Act 1974 (Cth)) or to the regulation of a particular trade to the extent that it is within that reach. There is far less likelihood that such regulatory legislation will properly be characterized as imposing a discriminatory burden on the trade and commerce with which it deals than is the case with State legislation which singles out inter-State trade and commerce for particular treatment. That is not to deny that a Commonwealth law which is regulatory on its face may operate so as to discriminate against inter-State trade and commerce. Even a law which applies indiscriminately to all trade and commerce within the reach of Commonwealth legislative power might, in some circumstances, impose a discriminatory burden upon inter-State trade and commerce. Plainly, however, the construction which treats s 92 as being concerned to guarantee the freedom of inter-State trade and commerce from discriminatory burdens does not involve the consequence that the grant of legislative power with respect to inter-State trade and commerce is deprived of its essential content.

That is, the section binds both Commonwealth and States, but in the nature of things, it is much less likely that a Commonwealth law will breach it. (This is why s 92 has been assigned to this Part of the book.) As to the tension between a “practical effect” approach and a focus on the “criterion of liability”, their Honours said at [33], [49]: The concept of discrimination in its application to inter-State trade and commerce necessarily embraces factual discrimination as well as legal operation. A law will

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discriminate against inter-State trade or commerce if the law on its face subjects that trade or commerce to a disability or disadvantage or if the factual operation of the law produces such a result. … In the case of a State law, the resolution of the case must start with a consideration of the nature of the law impugned. If it applies to all trade and commerce, inter-State and intra-State alike, it is less likely to be protectionist than if there is discrimination appearing on the face of the law. But where the law in effect, if not in form, discriminates in favour of intra-State trade, it will nevertheless offend against s 92 if the discrimination is of a protectionist character. A law which has as its real object the prescription of a standard for a product or a service or a norm of commercial conduct will not ordinarily be grounded in protectionism and will not be prohibited by s 92. But if a law, which may be otherwise justified by reference to an object which is not protectionist, discriminates against interState trade or commerce in pursuit of that object in a way or to an extent which warrants characterization of the law as protectionist, a court will be justified in concluding that it nonetheless offends s 92.

Applying the above reasoning to the facts of the case, the Court concluded at [51]–[52]: The question which we must now determine is whether reg 31(1)(d) of the Sea Fisheries Regulations which reveals no discriminatory purpose on its face is impermissibly discriminatory in effect. … The regulation neither operates at the border or frontier nor distinguishes between local and inter-State trade or produce. However, the limitation on the size of crayfish that may be sold or possessed in Tasmania is unquestionably a burden on the inter-State trade and commerce in crayfish caught in South Australian waters and sold in Tasmania. But does it bear the character of being discriminatory against that inter-State trade and commerce? The prohibitions against the sale and possession of undersized crayfish apply alike to crayfish caught in Tasmanian waters and to those that are imported. In that respect no discriminatory protectionist purpose appears on the face of the law. Furthermore, the object of the prohibitions, in conjunction with the prohibition against catching undersized crayfish, is to assist in the protection and conservation of an important and valuable natural resource, the stock of Tasmanian crayfish. Although the legislation operates in this way to protect the Tasmanian crayfish industry, it is not a form of protection that gives Tasmanian crayfish production or intra-State trade and commerce a competitive or market advantage over imported crayfish or the trade in such crayfish. And, even if the legislation were to give an advantage to the local trade by improving the competitive qualities of mature Tasmanian crayfish by eliminating undersized imported crayfish from the local market, the agreed facts make it clear that the extension of the prohibitions against sale and possession to imported crayfish is a necessary means of enforcing the prohibition against the catching of undersized crayfish in Tasmanian waters. The State cannot undertake inspections other than random inspections and the local crayfish are indistinguishable from those imported from South Australia. On the materials before the Court, the legislation and the burden which it imposes on inter-State trade and commerce are not properly to be described as relevantly discriminatory and protectionist.

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Compulsory acquisition of the objects of trade [30.110] As noted above, the pre-Cole v Whitfield decisions often struck down laws imposing the compulsory marketing schemes that used to be so frequently imposed on the production and sale of primary produce. For example, in Peanut Board v Rockhampton Harbour Board [1933] HCA 11; (1933) 48 CLR 266, a law that divested peanuts from their growers and vested them in the Board, which then tried to get the best price on behalf of all growers, was held invalid because it robbed the grower of “his former freedom of selling them by an ordinary transaction of commerce whether intra-State or inter-State”. After that time, however, the States, or the States and Commonwealth jointly, kept on establishing similar schemes, but often provided an exemption for contracts for interstate trade, or the marketing boards simply turned a blind eye to such contracts. After the Cole v Whitfield decision, however, the Barley Marketing Board (NSW) rescinded all exemptions and sought an injunction against a grower, Norman, restraining him from making private interstate sales to maltsters (the main buyers of barley). In Barley Marketing Board (NSW) v Norman [1990] HCA 50; (1990) 171 CLR 182, the Court held that a compulsory acquisition of crop scheme did not discriminate against interstate trade or interstate traders. The Court noted that the purpose of the scheme was to protect growers, especially small growers, against large purchasers but this did not amount to protectionism in the state-vs-state sense. Indeed, their Honours noted at [36] that the scheme could have a curious consequence: by increasing the price for New South Wales barley, “it might well enhance the competitive selling position of growers outside New South Wales”. However, reverse protectionism is not prohibited by s 92 — traders who are disadvantaged by the acts of their own State’s Government and Parliament have a remedy on polling day; those who are disadvantaged by another State’s Government and Parliament have s 92. The Court observed that some compulsory acquisition schemes could breach s 92 at [39]: If a State having a scarce resource or the most inexpensive supplies of a raw material needed for a manufacturing operation prohibited the export of material from that resource or those supplies in order to confer a benefit on its domestic manufacturers as against their out-of-state competitors, that prohibition would discriminate against interstate trade and commerce in a protectionist sense.

However, there was no such protection of local trade in this case. Just as compulsory acquisition and “single-desk” marketing schemes were rapidly going out of fashion under the National Competition Policy, the Court decided that, whatever their political and economic merits or demerits, they are not generally prohibited by s 92.

Is “levelling the playing field” protectionist? [30.120] In Cole v Whitfield, their Honours had conceded (at [48]) that sometimes the question of whether a law was discriminatory and protectionist will “depend upon 504

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judicial impression”. This was confirmed one month later in Bath v Alston Holdings Pty Ltd [1988] HCA 27; (1988) 165 CLR 411. Victoria had imposed a licence fee of 25 per cent of turnover on sellers of tobacco products, using the back-dating trick then recognised as saving the fee from being an excise under s 90, but now held invalid (see previous chapter). All other States had a similar fee except for Queensland, proud of its reputation as a low-tax State. The Victorian fee was primarily imposed on wholesalers — collection is easier that way — but if Victorian retailers imported cigarettes from Queensland, no fee would have been paid in respect of those cigarettes in any State, so Victoria imposed a fee on its retailers in respect of tobacco not bought from a Victorian wholesaler. The State argued that this was not protectionist; it was just levelling the playing field. Clearly enough, if the interstate goods enjoyed an advantage because of, say, natural climatic advantages in their State of origin, it would be contrary to the purpose of s 92 for the disadvantaged State to impose an “equalising” tax. But what of situations where the advantage is something given to the interstate traders because their home state is a “maverick”, standing out against an otherwise uniform approach to the taxing of unhealthy goods? The majority (Mason CJ, Brennan, Deane and Gaudron JJ) held that the fee was still a protectionist tax, and remarked at [21] that: … to hold that a law which protects local goods by imposing a discriminatory tax on interState goods at the retail level is consistent with s 92 because the law equalizes in favour of the local goods an advantage which the inter-State goods enjoy in their State of origin in the course of manufacture or distribution would be to disregard the critical constitutional purpose which the section is designed to serve.

In Sportsbet Pty Ltd v New South Wales [2012] HCA 13; (2012) 249 CLR 298, the joint judgment of French CJ and Gummow, Hayne, Crennan, Kiefel and Bell JJ seems to suggest disagreement with the ruling above. At [22] their Honours said: It may perhaps be said, and it is unnecessary to pursue the matter here, that, by the focus upon a “market” solely at the retail level, the majority in Bath favoured the legal operation of the tax at the expense of the practical operation of the statute as a whole.

In Bath Wilson, Dawson and Toohey JJ, in dissent, had emphasised the practical operation. They held at [4]: The plain fact of the matter is that the object of the legislation is not to favour Victorian trade at the expense of interstate trade in the product. All trade in tobacco in Victoria is subjected to the expense of the franchise fee at one point or another and the economic effect of the tax is the same, whether the tobacco is acquired by the retailer from within or outside the State.

What the dissenters seem to have overlooked — presumably because counsel had not mentioned it — was that the Victorian Act would also impose the fee on retailers who obtained cigarettes from Victoria’s neighbouring States, South Australia and 505

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New South Wales, and then the goods would be double-taxed. The equalising argument would have been more persuasive if the retailer fee was drafted to apply only to tobacco received from a wholesaler (wherever situated) who was not subject to a licence fee equal to the Victorian one. So the result in Bath may still be correct, but the remarks in Sportsbet suggest that, although equalisation against natural advantages must remain unconstitutional, equalisation against artificial advantages caused by differences in State laws may now be judged by its practical effect, and a properly-calibrated equalisation may be valid.

Regulation for legitimate purposes [30.130] In the pre-Cole v Whitfield law, an otherwise invalid law could be saved if the Court held that it was “reasonable regulation” rather than prohibition (for example, Milk Board (NSW) v Metropolitan Cream Pty Ltd [1939] HCA 28; (1939) 62 CLR 116; Mikasa (NSW) Pty Ltd v Festival Stores [1972] HCA 69; (1972) 127 CLR 617). In Cole v Whitfield, above, the Court had noted (in para [49], above) that a law which could be otherwise justified by reference to an object which was not protectionist might still have a protectionist effect. On the other hand, it concluded as to the particular law that “even if the legislation were to give an advantage to the local trade …, the agreed facts make it clear that the extension of the prohibitions against sale and possession to imported crayfish is a necessary means of enforcing the prohibition against the catching of undersized crayfish in Tasmanian waters”. It seemed that there was still some sort of a reasonable regulation exception but that the legitimacy of the regulation would be tested not against some vague standard of reasonableness, but against the extent of the law’s protectionist effect. This has since been confirmed. Castlemaine Tooheys Ltd v South Australia [1990] HCA 1; (1990) 169 CLR 436 arose from changes in the beer industry that had started to happen in the 1970s. Until the 1970s, nearly all beer (and other drinks) in Australia had been sold in refillable bottles. The bottles were collected by “bottle-ohs” (named after their call) and were washed (either by the brewer or by an intermediary who collected a fee from the brewer) and refilled. Each State had its own brewing companies, and beer was generally only sold in its State of production, so return of bottles to the brewery generally involved low transport costs. Refundable deposits had been charged on the sale of some soft-drink bottles, but even where consumers were not getting a refund of a deposit, they were aware that the bottles were the property of the manufacturer and would keep them for collection by bottle-ohs, so generally the rate of return of bottles was high. All of this changed in the 1970s. State-based brewing companies merged or were taken over by conglomerates, and became more interested in cross-border sales. Nonrefillable (one-trip, or use-once) bottles and cans for beer and soft drink were introduced. These, of course, are recyclable in the sense that they can be melted and recast into more bottles or other products, but this consumes much more energy than washing and refilling bottles. Brewers did not introduce a return system for these bottles and cans as they were of no use to them, and the glass companies did little to fill the gap. All of this meant that less bottles were collected for reuse and the number of bottles and cans 506

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thrown away by the roadside increased. In response, the South Australian Parliament passed the Beverage Container Act 1975, which commenced in 1977 and which imposed a compulsory deposit on drink containers, returnable when the container was returned to the retailer or a recycling depot. From the start, the law discriminated slightly in favour of the old refillable bottles — they were exempted by regulation while one-trip containers were subject to a five cent deposit. It so happened that the breweries in South Australia and Carlton & United (CUB) in Melbourne were still using refillables, while the Bond Corporation subsidiaries in Perth, Sydney and Brisbane had switched to one-trip bottles. Then the Bond Group breweries, including Castlemaine Tooheys, ran an effective campaign to increase their share of the South Australian market. Of course this had two effects: the potential litter problem increased and the market share of the local breweries decreased. For one or other of these reasons (or a mixture of them), the Act and Regulations were amended. Their combined effect was that buyers had to pay a 15c deposit on one-trip bottles, and retailers had to refund the deposit and store the empties, whereas buyers only paid a 4c deposit on refillables and retailers had no obligation to refund it — buyers had to take the empties to a collection depot. This discouraged retailers from stocking the Bond products, whose market share faltered. The Bond companies sought a declaration that the Act, as amended, was invalid, and obtained a unanimous judgment in their favour. Mason CJ, Brennan, Deane, Dawson and Toohey JJ noted that the crayfish regulations in Cole v Whitfield had been held valid, even if they produced some small discriminatory effect, because they were necessary for the protection of the environment, but that if the States were legislating for some legitimate State interest they were not limited to measures that were absolutely necessary at [39]–[41]: In determining what is relevantly discriminatory in the context of s 92, we must take account of the fundamental consideration that, subject to the Constitution, the legislature of a State has power to enact legislation for the well-being of the people of that State. … Accordingly, interstate trade, as well as intrastate trade, must submit to such regulation as may be necessary or appropriate and adapted either to the protection of the community from a real danger or threat to its welfare or to the enhancement of its welfare. … The question whether a particular legislative enactment is a necessary or even a desirable solution to a particular problem is in large measure a political question best left for resolution to the political process. The resolution of that problem by the Court would require it to sit in judgment on the legislative decision, without having access to all the political considerations that played a part in the making of that decision, thereby giving a new and unacceptable dimension to the relationship between the Court and the legislature of the State. An analogous field is the legislative implementation of treaty obligations under s 51(xxix) of the Constitution. The true object of the law in such a case is critical to its validity. The Court has upheld the validity of legislative provisions if they are appropriate and adapted to the implementation of the provisions of the treaty: (citations omitted). But if the means which the law adopts are disproportionate to the object to be achieved, the law has not been considered to be appropriate to the achievement of

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the object: (citations omitted). There is a compelling case for taking a similar approach to the problem now under consideration. If we accept, as we must, that the legislature had rational and legitimate grounds for apprehending that the sale of beer in non-refillable bottles generates or contributes to the litter problem and decreases the State’s finite energy resources, legislative measures which are appropriate and adapted to the resolution of those problems would be consistent with s 92 so long as any burden imposed on interstate trade was incidental and not disproportionate to their achievement. Accordingly, the validity of the 1986 legislation rests on the proposition that the legislative regime is appropriate and adapted to the protection of the environment in South Australia from the litter problem and to the conservation of the State’s finite energy resources and that its impact on interstate trade is incidental and not disproportionate to the achievement of those objects. (emphasis added)

However, their Honours held that the legislative regime was not appropriate and adapted to the stated aims of litter control or preserving the State’s energy resources. The State had conceded that the difference in deposit on the two types of bottles was greater than would be needed to ensure equal rates of return of the two types, and the manufacture of the use-once bottles, being done in other States, was consuming none of the State’s resources. This principle was applied in Betfair Pty Ltd v Western Australia [2008] HCA 11; (2008) 234 CLR 418. Until the advent of the internet, gambling had always been a State-based and State-regulated affair. As part of the States’ eternal search for new sources of revenue (see 29.20) they licensed bookmakers and imposed a turnover tax on them, and ran totalisators (“totes”) which automatically took a percentage out of the pool before declaring a dividend. Then in the 1990s, Centrebet started an online bookmaking business with a licence from the Northern Territory Government, and diverted some percentage of gambling turnover from the State-based operators, and therefore some percentage of the taxes from the States. (Also in the 1990s, privatisation mania swept Australian governments and most of the totalisator agencies were privatised, but the States still received income from them by way of a tax or licence fee.) Then Betfair arrived, offering a new form of betting on sports events. In traditional betting with a bookmaker or tote, each customer makes a bet that a particular team, horse, or dog will win, while the bookmaker or tote “lays” the bet by effectively betting that the favoured entrant will lose. Customers of a betting exchange like Betfair bet against each other, using a computerised system that matches up those wanting to bet that an entrant will win with someone else prepared to bet that it will lose. Betfair took a commission of only 2–5 per cent from each winning bet, compared to the 12.5–30 per cent “overround” (or “juice”, or “vigorish”) that a bookmaker or tote usually takes out of the pool, and therefore offered a better deal to knowledgeable gamblers. There has been concern about betting exchanges because it makes it much easier for someone to bet on a particular contestant losing, which may increase the potential for corruption, especially 508

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in multi-competitor events4 like athletics and horse- and dog-racing. The States, of course, were also worried because a betting exchange run from out of the State would cut into the betting turnover of the licensed operators within the State, and therefore the State’s revenue. After several years of negotiations, Betfair received a licence from the Tasmanian Government to conduct an exchange in that State. After a year of putting up with the lost revenue, Western Australia enacted amendments to its Betting Control Act 1954 (WA) making it illegal to bet through a betting exchange, and to publish or make available, in the State or elsewhere, a race field without approval. The latter provision would, of course, mean that Betfair could not display the “market” on Western Australian races. Betfair and one of its customers challenged the amendments under s 92. The Court unanimously held that the amendments were invalid. In a joint judgment, Gleeson CJ and Gummow, Kirby, Hayne, Crennan and Kiefel JJ engaged at [114]–[116] in a market analysis of the kind familiar in competition law, and held that the law was restricting competition in a national market in which bookmakers, the TABs and Betfair all competed. At [98]–[103], their Honours expressed some caution about the dictum in Castlemaine Tooheys, above, that whether legislation is necessary is “best left to the political process”, and held that the law should first pass a threshold test of reasonable necessity before any question of appropriateness to purpose arose. They held that loss of revenue to the State was not sufficient justification, because, if allowable, “such a justification … would support the re-introduction of customs duties at State borders” at [108]. As to the claim that betting exchanges could increase the chance of corrupt behaviour, they held at [109]–[111] that there was, at that time, no evidence of any increase in dishonest practices5 and that in any case the preferable way to counter them would be effective regulation. Heydon J concurred, with even more emphatic remarks about the latter point. These two cases illustrate something of a dilemma for the States. In both cases, there was, to some degree, a social problem, or a possible one, in need of remedy. However, there were also local businesses that stood to benefit from the legislation, and that, in all probability, had lobbied for its enactment. The presence of s 92 means that a State will have to have a very strong argument for the necessity of a law if it may look as if it was enacted to protect its own traders. However, a more recent pair of cases on interstate betting emphasises that plaintiffs still have the burden of proving that the law is discriminating against interstate trade rather than merely making life difficult for themselves. The States had continued to grapple with the problems presented by internet betting. They had long used some of 4 In two-competitor events like boxing, or two-team events like cricket or football, it is already easy for a “fixer” to back one side to lose; you back the other side to win. 5 At the time of writing it appears that there have still been no convictions in Australia for corrupt practices involving the use of Betfair. There has, however, been a disciplinary case against a jockey where the Racing Appeals and Disciplinary (RAD) Board has observed that the evidence “raises suspicions about what transpired but harbouring suspicions about his conduct is not sufficient to prove the charges”; https://cdn.racing.com/~/media/rv/files/rad-board/2010-serious-offence-hearings/rad-board-hearingresult-and-reasons---d-nikolic-20100629.pdf.

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the revenue gained from the gambling “industry” to subsidise prize moneys in the racing “industry” (whether this is a proper function of governments may be doubted, but it is a long-established practice). Now that a significant fraction of gambling revenue was being earned out of the main racing States, and the first Betfair case had held that the use of interstate facilities could not be prohibited, the New South Wales Parliament provided for a more direct link between the two “industries”. The Racing Administration Act 1998 (NSW) prohibited the use for gambling operations of “race field information” but provided that the racing control bodies, Racing New South Wales and Harness Racing New South Wales, could authorise its use for a fee. The regulations stipulated emphatic­ ally that the control bodies could not take into account the location in Australia of the applicant’s place of business. The control bodies gave licences to all applicants for a fee of 1.5 per cent of turnover, but gave a concession to those with annual turnover below a threshold, and gave TAB Ltd a complete exemption for some time by way of settling an earlier dispute. Sportsbet (an internet bookmaker from the Northern Territory) and Betfair complained that these concessions were intended to generally discriminate in favour of New South Wales operators. Betfair further complained that the 1.5 per cent fee was a much higher proportion of its “take” out of its turnover than the proportion that operators with a higher take had to pay. The Court held that the practical operation of the threshold was not to discriminate between States and that even though Betfair might be suffering from discrimination in the sense that it was more harshly treated than other kinds of gambling operators, there was no discrimination against interstate trade. (In fact during the litigation it had abandoned its original claim that it could no longer afford to take bets on NSW races.) As French CJ and Gummow, Hayne, Crennan and Bell JJ observed in Betfair Pty Ltd v Racing New South Wales [2012] HCA 12; (2012) 249 CLR 217 (Betfair v RNSW) at [46]: … emphasis upon the circumstances of particular traders, and upon features which may be accidental to those circumstances and to the interstate transactions in which the traders may engage, risks characterisation of the law in question not by its effect upon interstate trade, the constitutional issue, but by its effect upon particular traders.

The Court made a similar point about the alleged, more general, discrimination in Sportsbet Pty Ltd v New South Wales [2012] HCA 13; (2012) 249 CLR 298 (Sportsbet); there were operators in as well as outside New South Wales who were above the no-fee limit, and the concession to TAB Ltd had been made to resolve a bona fide dispute, so “the practical operation of the thresholds is not to provide a protectionist measure to insulate New South Wales on-course bookmakers from the economic burden of the fee” (at [27]). Other points made in the cases are discussed below.

Powers of regulation that could be used in a protectionist way [30.140] In Hughes and Vale Pty Ltd v New South Wales [1954] UKPCHCA 5; (1954) 93 CLR 1, the Privy Council, overruling a long line of High Court decisions, held that a law giving a State Board absolute discretion as to whether to grant licences for the operation of “public motor vehicles” breached s 92, because the discretion could be used to inhibit 510

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the freedom of interstate trade. At that time, administrative law was not as developed as it is now, and their Lordships may have felt that to hold the Act valid and then try to control the exercise of administrative discretion by administrative law remedies was open to loopholes. However, as administrative law has developed over the last 50 years, it has seemed reasonable to expect that a more flexible approach would be taken. Brennan J took this approach in Miller v TCN Channel Nine Pty Ltd [1986] HCA 60; (1986) 161 CLR 556, saying at [8] that s 92 “invalidates the operation of a law or an administrative action to the extent to which it would prohibit, restrict or burden an activity or trans­ action within the scope of the protection” (emphasis added). This was followed in AMS v AIF [1999] HCA 26; (1999) 199 CLR 160 and in Sportsbet, above, which were both brought under s 49 of the Northern Territory (Self-Government) Act 1978 (Cth) which mirrors s 92, rather than under s 92 itself. In AMS, Gleeson CJ and McHugh and Gummow JJ said at [37]: Where the law in question confers … judicial discretion, that discretion will effectively be confined so that an attempt to exercise it inconsistently with s 49 of the Self-Government Act involves, at least, an error of law which is liable to appellate correction. On that footing, the State law itself retains its validity. These conclusions follow by parity of reasoning with that of Brennan J, concerning the operation of s 92 itself …

In Sportsbet, French CJ and Gummow, Hayne, Crennan, Kiefel and Bell JJ applied the same rule to administrative discretions. However, as noted above, the decision in Betfair v RNSW was not shown to have breached s 92.

What about benefits to local traders? [30.150] The emphasis in the Cole v Whitfield test is on a law imposing a burden on interstate trade, but similar results can be achieved by giving a benefit to local trade or traders. The law challenged in Vacuum Oil Company Pty Ltd v Queensland (No 1) [1934] HCA 5; (1934) 51 CLR 108 forced importers of petrol into Queensland also to purchase a certain proportion of power alcohol (it did not direct what the purchaser was to do with the alcohol but the obvious use was to add it to the petrol). Petrol was not produced in Queensland at the time, but power alcohol was made from Queensland sugar. The law was held to breach s 92. Dixon J observed that “for the advantage of another commodity which is produced within the State, a commodity contributing to the same purpose, it burdens an imported commodity in the hands of the importer”. This is a further reminder that when a law which may produce environmental benefits is first enacted by the State whose traders have most to gain from such a law, there is a danger of breaching s 92. Similar issues may arise in respect of laws under which States give preference to local suppliers when tendering for the supply of goods or services to the State. On the other hand, States’ grants and tax concessions to attract new businesses to set up their headquarters in the State, though clearly against the spirit of an economic union, are unlikely to breach s 92 (nor are they bounties; see Seamen’s Union of Australia v Utah Development Co (1978) 144 CLR 120, noted in 29.20). 511

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The modern world — what if all traders engage in interstate trade? [30.160] Now that an increasing number of traders engage in interstate trade by using the internet, the concept of purely intra-state that might be invalidly protected by a State law is becoming more nebulous. In both Sportsbet and Betfair v RNSW, the Court pointed out that, as well as the plaintiffs, the allegedly protected parties (TAB Ltd and many of the licensed bookmakers) also engaged in interstate trade. The Court in fact invited further submissions from the parties on a series of questions addressed to how the concept of protectionism applies to trade carried on in a national market, but in the end found it not necessary to answer them (joint reasons at [57], Kiefel J at [127]). Even though there may be less of a separation between purely intra-state and interstate trade than there used to be, businesses will still have their head office in a State and may have close contact with the politicians in the States, so it will probably remain true that legislators will be susceptible to pressures from local businesspeople “which encourage decisions adverse to the commercial and other interests of those who are not their constituents and not their taxpayers” (see 30.10). State legislation passed in response to such pressures would clearly be against the spirit of a federated economy, but it does not seem that either s 92 or s 117 will be effective against it. It may be arguable that, as in Re Smithers; Ex parte Benson, below, there is an implication from the fact of federation that extends s 92, or extends beyond s 92, to such laws. If the judges find that inference a step too far, the Commonwealth would certainly have a head of power for legislation to prohibit this kind of protectionism in para 51(i). It may become necessary to use it.

30.4 Freedom of interstate intercourse [30.170] As noted above, intercourse in the context of the section means travel or communication, though the word may also include trade and commerce. This aspect of the section has been applied, once, to a Commonwealth law: see Gratwick v Johnson [1945] HCA 7; (1945) 70 CLR 1, discussed in 23.80. A similar early case involving a State law was R v Smithers; Ex parte Benson [1912] HCA 96; (1912) 16 CLR 99, in which the applicant challenged the Influx of Criminals Prevention Act 1903 (NSW), which prohibited anyone who had been convicted of an offence with a maximum penalty of one year or longer from entering New South Wales for three years after release from prison. Griffith CJ, with the agreement of Barton J, held that “the former power of the States to exclude any persons whom they might think undesirable inhabitants is cut down … by the mere fact of federation, entirely irrespective of the provisions of secs 92 and 117”. Isaacs and Higgins JJ simply relied on s 92; Higgins J held that the Act was bad because it was “pointed directly at the act of coming into New South Wales” (emphasis in original). The decision in Cole v Whitfield briefly contrasted the notion of freedom of intercourse with that of freedom of trade: “[I]t is clear that some forms of intercourse are so immune from legislative or executive interference that, if a like immunity were accorded 512

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to trade and commerce, anarchy would result”. In context, this appears to be suggesting that there is no need to establish a purpose or effect of State protectionism for a law to be invalid. Later cases have established that, similarly to the freedom of trade, the freedom can be limited for a good purpose. AMS v AIF [1999] HCA 26; (1999) 199 CLR 160 involved a challenge, as noted above, not so much to a law but to an exercise of judicial discretion under which a mother had been restrained from moving out of the State so that the father could still have ready access to the child. The Court held that the order had not paid sufficient attention to the interests of the child, as required under the Family Law Act 1975 (Cth) and the Family Court Act 1975 (WA), but also observed at [45] that it would not be invalid under s 92 unless “the impediment so imposed [to moving] is greater than that reasonably required to achieve the objects of the 1975 WA Act”. In APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322 the plaintiff was challenging a law that restricted the advertising of legal services relating to personal injury claims. Most of those who saw the advertisements would be in the State in which they were published or broadcast, but some readers or viewers would be in another State, so the law would have some effect on interstate trade and commerce, or intercourse, or both. The Court held, Kirby J dissenting, that the law was not invalid on any of the several grounds alleged, including s 92. Gleeson CJ and Mc Hugh J held that if the promotion of legal services for reward is trade and commerce (see 30.40), the law did not breach the Cole v Whitfield test, and to the extent that the law was prohibiting the advertising of services which were not part of trade or commerce, any impediment to interstate intercourse was an unavoidable consequence of regulating advertisement within the State, and was therefore no greater than reasonably required. In the “intercourse” aspect of s 92, just as in the “trade and commerce” aspect, interstate activities do not get a special immunity from laws of general application, just because of the interstate element.

ISSUE FOR DISCUSSION Should the States be allowed to regulate the gambling and horse-racing “industries” as they like, regardless of s 92? What arguments could you advance in the High Court in support of this?

FURTHER READING Eli Ball, “Section 92 and the Regulation of E-Commerce: A Casenote on Betfair Pty Ltd v Western Australia” (2008) 36 Fed L Rev 265 Anthony Gray, “State-Based Business Licensing in Australia: The Constitution, Economics and International Perspectives” (2009) 14 Deakin LR 165 Naomi Oreb, “Betting Across Borders — Betfair Pty Limited v Western Australia” (2009) 31 Syd LR 607 Amelia Simpson, “Grounding the High Court’s Modern Section 92 Jurisprudence: The Case for Improper Purpose as the Touchstone” (2005) 33 Fed L Rev 445 513

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CHAPTER 31

Discrimination against Out-of-State Residents Prohibited

31.1 Context and overview [31.10] Section 117 of the Constitution provides: A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

Like s 92 of the Constitution, this is another of the sections that ensures that Australia is not merely a customs union, but a unified nation, albeit one with laws that can differ among the States in some matters. Although interpreted narrowly until 1989, it now ensures that when Australian citizens travel from one State to another they are able to practise their trades or professions and are not subjected to residence-based limits on their rights. More broadly, it strikes down most attempts by a State to give residents of other States less rights under the law of the first State. There are exceptions for those rights, such as voting, where it follows from the existence of the States that a State should be able to limit the exercise of the right to its residents.

31.2 Range of application [31.20] The section appears in Chapter V, headed “The States”. It protects residents of a State from having a disability or discrimination imposed on them while in another State but does not say expressly whether it protects them from Commonwealth or State laws. Judges have occasionally commented that in theory both the Commonwealth and 515

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States may be bound by the section; for example, Brennan J in Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461 and Gibbs J in Henry v Boehm [1973] HCA 32; (1973) 128 CLR 482. However, in the nature of things, it is much more likely that a State will enact laws that discriminate between residents and non-residents of the enacting State than that the Commonwealth will give privileges conditioned upon State residence, and indeed all of the cases have involved challenges to State laws. That is why the section is discussed in this Part. It should be noted that the section does not prohibit all forms of discrimination. Although it was partly inspired by Art 4, s 2, of the United States Constitution, which provides that “[t]he citizens of each State shall be entitled to all privileges and immunities of citizens in the several States” (emphasis added), it was drafted more narrowly. A State is perfectly free under the section to impose a disability on or discrimination against a group of its own residents, even on grounds that would now be seen as objectionable; for example in Lee Fay v Vincent [1908] HCA 70; (1908) 7 CLR 389, where the employment of Chinese persons in Western Australian factories was regulated. Of course, a State law that discriminates on grounds of race, sex, age or disability would now be inconsistent with the relevant Commonwealth law and therefore invalid under s 109, and all of the States and Territories have their own Anti-Discrimination Acts or Equal Opportunity Acts. All that s 117 does is to prevent a State from imposing a disability or discrimination on out-of-Staters that is not equally applicable to its own residents. That is, despite the complex phrasing it can be seen as simply prohibiting laws that make State residence, or something necessarily connected with residence, a condition of receiving rights, benefits or concessions under State law.

31.3 Terms of the section “Subject of the Queen” [31.30] The section applies only to a “subject of the Queen, resident in [a] State”. Therefore it clearly gives no protection to those who are not British subjects. In Street, above 31.20, it was suggested by Toohey, Gaudron, Deane and Dawson JJ (Brennan J reserving the point) that in the constitutional context, “subject of the Queen” may now, following the approach to “alien” taken in Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178, mean only an Australian citizen. This seems consistent with Australia’s status as an independent nation but, with respect, surely does some violence to the text of the section.

“Resident in any State” [31.40] Residence in a State does not necessarily import long-term residence; as Mason CJ pointed out in Street at 485, “the use of the expression ‘resident in’ rather than ‘resident of ’ point[s] to a liberal, rather than a narrow, interpretation” of the section. 516

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In Commissioner of Taxes v Parks [1933] St R Qd 306 the Queensland Commissioner had argued that the master of an interstate trading vessel was a resident of no State at all, as he spent most of his time at sea, but the Supreme Court of Queensland held that he could be treated as a resident of New South Wales where he had his home at which he spent a few days every three weeks as well as his annual leave. A resident of a Territory gets no benefit from the section; there is no equivalent of s 117 in the Self-Government Acts for the Territories, discussed in Chapter 36. “Subject of the Queen” and “resident” are terms that apply only to natural persons. This has been noted in High Court cases (for example, Street per Brennan J) and was applied in Ceil Comfort Insulation v ARM Equipment Finance (2001) 159 FLR 310 to disentitle a corporation from relying on the section.

“Not be subject in any other State” [31.50] The above words may seem to suggest that the complainant must be in the defendant State to gain the benefit of the section, but it applies to any situation in which the complainant is trying to enforce a right under the law of the defendant State. Examples include seeking a right to practice law in a State as a “fly-in, fly-out” visitor (Henry and Street, above 31.20), claiming an exemption for tax paid on income earned in the State by an out-of-Stater (Parks, above 31.40), and resisting the application of stricter rules applying to out-of-Staters in civil or criminal proceedings (Ceil, above 31.40, and Re Loubie [1986] 1 Qd R 272, in which Spender J disregarded a law that reversed the onus of proof for bail applications made by out-of-Staters).

“Disability or discrimination” [31.60] There are lengthy discussions in the cases as to what amounts to a disability or discrimination — for example, “[d]isability is a term apt to describe an incapacity to take, exercise or enjoy a right, power or privilege” (Street per Brennan J at 505) — but it has usually been clear that the complainant is suffering a disability or discrimination. The usual case involves a privilege (a discounted tax, or a licence to engage in a trade or profession) that is available only to residents of the enacting State. So the issue in the cases has tended to be whether the complainant has been deprived of the privilege because of the lack of residence, or whether the State has a good reason for the discrimination.

31.4 What disabilities or discriminations are prohibited? The pre-1989 history [31.70] Until 1989 the tendency was to apply the section narrowly. There were two Queensland Supreme Court cases in which applicants were successful: Parks, above 31.40, where tax concessions granted only to Queensland residents were extended to 517

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residents of other States, including the usually-at-sea complainant, and Re Loubie, above 31.50. In Ceil, above 31.40, although a rule requiring security for costs against out-of-State plaintiffs was held to apply to a corporation, it would not have applied to individuals. However, in the few High Court cases, no complainant had succeeded. Even under the current interpretation, discussed below, there is a recognition that giving the section an unlimited scope would “trench upon the autonomy of the States to a far-reaching degree” (Street per Mason CJ at 491). In the cases before 1989, the High Court read the section down so as to preserve the autonomy of the States to a far-reaching degree. In Davies and Jones v Western Australia [1904] HCA 46; (1904) 2 CLR 29, a Western Australian law imposed a reduced probate duty on assets passing to beneficiaries who were “bona fide residents of and domiciled in Western Australia”. The Court accepted that this was discriminatory, but held that it was valid because it did not discriminate on the ground of residence alone, even though the concept of domicile (the place that one regards as one’s “real” home) is closely related to residence and in the case of most people coincides with their current residence. For the next 80 years, the States kept laws on their books that discriminated against out-of-State residents in various ways. Laws regulating trades and professions usually included a residence requirement (occasionally, as in the law challenged in Henry below, giving some concession to people who lived close to the border). In the pre-jet plane world these laws were not challenged. However this changed as Australians became more mobile and the economy became more integrated (one benchmark of this integration is the fact that the State stock exchanges merged into the Australian Stock Exchange in 1987). In Henry, above 31.20, a Victorian legal practitioner seeking admission to practise in South Australia, and intending to practise there on a fly-in, fly-out basis, was confronted with admission rules that required anyone who had first qualified for practice elsewhere to reside in South Australia for three months before applying, and to reside there continuously for the year after admission. The majority of the High Court held that this was valid — there might be someone already resident in South Australia who had first qualified out of the State, and that person would be subject to the same requirements as Mr Henry. Stephen J dissented for reasons which are discussed below.

The modern approach [31.80] Sixteen years later a Sydney barrister, Alexander Street (now Street J of the Federal Court), renewed the challenge to the admission rules. In this case the Queensland rules originally provided that applicants for admission must have resided in Queensland for a year and ceased practising elsewhere. After Street had commenced the proceedings the rules were amended to provide that an applicant must declare that he or she intended to practise principally in Queensland after admission. In Street (above 31.20) the High Court unanimously adopted the test suggested in dissent by Stephen J in Henry, above. Whereas the majority in Henry had compared the applicant’s situation with the situation of actual, or even remotely possible, residents of the 518

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legislating State, Stephen J had held, at 502, that the words of the section called for a different comparison: [T]he plaintiff ’s actual situation must be contrasted with a hypothetical one which differs from actuality only because it assumes the plaintiff to be a resident of South Australia; in making the comparison called for by s 117 no departure from actuality is to be made other than this one, relating to the plaintiff ’s residence. Being thus resident in South Australia but having previously been admitted to practice in Victoria, his position when wishing to use that qualification in order to gain admission to practice in South Australia is to be contrasted with his position as it is in fact. The obvious difference between that hypothetical situation and the situation with which the plaintiff is in fact confronted is that were he already resident in South Australia he would not have to abandon his existing Victorian abode so as to reside continuously in South Australia, first for three months and then for a further twelve months. This difference arises because of the express requirements of the rules.

Putting it more briefly, Mason CJ held in Street at 489 that “s 117 renders a disability or discrimination invalid if the notional fact of [the complainant’s] residence within the legislating State would effectively remove the disability or discrimination or substantially deprive it of its onerous nature”. Applying this test, their Honours held that Mr Street’s application should be dealt with as if the residence rule did not exist. He was admitted in Queensland and hundreds of other admissions of interstate practitioners followed. The practice rules of most States were soon amended to provide for easy interstate admission on application by a practitioner, and now simply provide that a person who is admitted to practice in another State may also practise in the former State. Other professions were covered by the Commonwealth and States’ Mutual Recognition Acts 1992. Their passage was largely prompted by Prime Minister Keating’s passion for competition policy reform, but may also have been influenced by the decision in Street.

31.5 Effect of breach of the section [31.90] The section does not refer to the validity of laws or the power of State (or Commonwealth) parliaments; it simply says that “a subject of the Queen … shall not be subject … to a disability or discrimination”. Therefore, in Street and other cases, the Court does not declare that an Act (or Admission Rules, authorised by an Act) is invalid; the remedy is simply a declaration that certain provisions do not apply to the applicant. However, the logical consequence is that the provisions could not apply to other people in the same situation, and that could well mean that a provision like the one in Street, which could be satisfied by Queensland residents but disqualified residents of other States, is invalid for all practical purposes. The old admission rules could still have applied to practitioners resident in a Territory, but they were repealed in recognition of the spirit of the Street decision. 519

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Part E Constitutional Law and the States

31.6 Reasonably necessary, or strictly necessary, exceptions [31.100] In Street, after unanimously agreeing that Stephen J’s test should be adopted, the judges were also unanimous in noting that the prohibition on residence requirements could not be absolute, but each explained the scope of any exceptions in different terms. The judgments can be seen as falling on a spectrum between a “reasonably necessary” test and a “strictly necessary” test. The former was suggested by Gaudron J at [26]–[28]: There are a number of circumstances in which residence may be a relevant difference justifying different treatment. It is sufficient to note one. Within our federal framework it is the status of being a “subject of the Queen” (those words being understood to refer to a subject of the Queen in right of Australia: see Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178, at p 186) and residence within a State which together signify membership of the body politic constituting that State. That membership carries with it rights to participate in the political processes of the State. Thus, in so far as a law of a State selects residence within the State as the criterion for conferral of rights to participate in its political processes, the law selects a characteristic signifying a relevant difference. And the same may be true of a law conferring a special benefit by virtue of membership of the body politic constituting the State, especially if that benefit is funded by taxes levied against its members. The more difficult question is whether, there being a relevant difference, the different treatment accorded to that difference is appropriate to it. … For present purposes the issue may be expressed as whether the different treatment is reasonably capable of being seen as appropriate and adapted to a relevant difference.

A stricter standard was proposed by McHugh J at [24]–[25]: The object of s 117 was to make federation fully effective by ensuring that subjects of the Queen who were residents of Australia and in comparable circumstances received equality of treatment within the boundaries of any State. But the existence of a federal system of government, composed of a union of independent States each continuing to govern its own people, necessarily requires the conclusion that some subject-matters are the concern only of the people of each State. And since the residents of a State and its people are basically interchangeable concepts, it follows that laws dealing with these particular subject-matters may exclude interstate residents from participation either generally or subject to conditions. The exclusion of these subject-matters from the scope of s 117 is the necessary consequence of a federal system in which each State exercises independent powers and functions within its territory for the peace, order and good government of that territory. Matters which are the concern only of a State and its people and are not within the scope of s 117 would seem to include the franchise, the qualifications and conditions for holding public office in the State, and conduct which threatens the safety of the State or its people. No doubt there are other subject-matters which are also outside the reach of s 117. But since all exceptions to the terms of that section arise by necessary implication from the assumptions and structure of the Constitution, they must be confined to the extent of the

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need for them. The question is not whether a particular subject-matter serves the object of s 117; it is whether, by necessary implication, the matter is so exclusively the concern of the State and its people that an interstate resident is not entitled to equality of treatment in respect of it.

The other judges suggested tests which appear to fall between the above extremes, but tending to the “strictly necessary” end of the spectrum; Mason J’s formulation was that the States could limit “rights naturally and exclusively associated with residence in a State” to their own residents, and Deane and Toohey JJ made similar remarks. Dawson J said that the section “does not permit a citizen to be subjected in a State to any disability or discrimination the basis of which is, not the ordinary and proper administration of the affairs of that State, but his residence in another State”. Brennan J referred to a “rational and proportionate connection” with a non-protective purpose in one paragraph (at [28]) but said that “[n]othing less than the need to preserve the institutions of government and their ability to function can justify the erection by a government of a barrier to the legal and social unity of the Australian people” three paragraphs later. A number of examples of exceptional cases were suggested by each judge. All agreed that the States must be able to limit the right to vote in State elections to State residents. Some judges suggested that residence requirements could be imposed on officers of the three branches of government (Brennan and McHugh JJ), on a “licensed victualler” who must live on the licensed premises (Mason CJ and Brennan J), or on recipients of State welfare benefits (Mason CJ, Dawson and Gaudron J) or rent subsidies (Deane J). As each of their Honours remarked, the full scope of such exceptions remains to be determined in the future on a case-by-case basis. There have been dicta in two further cases which have not resolved the issue of the scope of the exceptions. Each case has arisen from the fact that after the collapse of HIH Insurance in 1991 some of the States changed the basis of their compulsory motor vehicle insurance schemes, and then sometimes reversed the changes. At the time of the accident that led to Goryl v Greyhound Australia Pty Ltd [1994] HCA 18; (1994) 179 CLR 463, New South Wales had abolished common law damages in favour of a capped damages scheme but Queensland had not. Section 20 of the Motor Vehicles Insurance Act 1936 (Qld) provided that if a person from another State sought damages for a vehicle accident under Queensland law the damages were limited to the amount they would receive under the law of their home State. Mrs Goryl was a resident of New South Wales who had been injured in a bus accident in New South Wales, but the bus was insured in Queensland. She sued in the Queensland District Court. Under the most recent High Court cases on conflict of laws (which, most fortunately, are beyond the scope of this book), damages are assessed under the lex fori, the law of the jurisdiction in which the action is decided, rather than the lex loci delicti, the law of the place of the tort, so she was entitled to damages at the higher Queensland rate unless s 20 applied. The High Court unanimously held that s 20 discriminated against her on the basis of her residence out of the State, and was invalid. The judges other than McHugh J did not even discuss the scope of exceptions to s 117. This is unsurprising when one 521

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thinks about it. The drafters were presumably trying to stop New South Wales vehicle owners from gaining a benefit that they had not paid for, which may have been justifiable. However, the section gave residents of New South Wales lower benefits when they were injured as passengers, whether they paid third party premiums or not. McHugh J observed at [12]: With respect, the “rational and proportionate connection” test is not justified by the language of s 117 or the structure or assumptions of the Constitution. No doubt the judgments of Brennan J and Gaudron J in Street provide support for that test. In one form or another, however, other members of the Court adopted a necessary implication exception.

He held that laws as to accident damages did not fall within any exception. However, in Sweedman v Transport Accident Commission [2006] HCA 8; (2006) 226 CLR 362, where the complainant’s s 117 claim was rejected for reasons discussed below, Gleeson CJ, Gummow, Kirby and Hayne JJ observed at [66]: It is unnecessary to consider, on the footing that there was a disability or discrimination attributable to residence, whether this was appropriate and adapted (sometimes described as “proportional”) to the attainment of a proper objective.

The extent of exceptions to the s 117 principle therefore remains unclear. However, it can be assumed that, whatever the formulation of the test to be applied, the range of exceptions will not extend far, if at all, beyond the examples quoted above.

31.7 Need for the discrimination to be connected with current residence in another State [31.110] It was noted above that s 117 “can be seen as simply prohibiting laws that make State residence, or something necessarily connected with residence, a condition of receiving rights, benefits or concessions under State law”. Even after the overruling of the narrow Henry approach, this is still true — it is worth repeating that the section is not a general anti-discrimination provision; it protects only a “subject of the Queen resident in any State” from less favourable treatment than the residents of the State under the laws of that State. An early illustration of this was Lee Fay, above 31.20. A law prevented the employment of persons “of the Chinese or other Asiatic race” in a factory in Western Australia unless they had been so employed before 1 November 1903. Lee Fay was prosecuted for employing a Chinese worker who had previously been employed in a factory in Victoria, on and before that date (and who was a naturalised citizen, but that was irrelevant under the Act!). He argued that not to recognise the employment in another State was a breach of s 117, but the Court pointed out that s 117 “only applies to a person who, being resident in one State, is seeking to assert rights in another”. The worker whose rights Lee Fay was asserting was, at the time Lee Fay had employed him, a resident of Western Australia and 522

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s 117 did not apply. The law that was being challenged would now be quite objectionable on other grounds, but the logic of the application of s 117 is unchallengeable. On the other hand, a discrimination that is based on a characteristic necessarily connected with residence will breach the section. In Street, the amended rules demanded a declaration that the barrister would practise principally in Queensland. McHugh J held that “the practical impact on him of the amended Rules is that … he must abandon his present New South Wales residence and reside in Queensland”, and this was why even the amended rules were inapplicable to Street. A similar step in reasoning must be assumed to be implicit in the other judgments. On the same reasoning, the authority of Davies and Jones, above, is now questionable. In Street, Deane J held, at 532, that the distinction drawn in Davies and Jones between residence and domicile was the sort of legalism that should be avoided, and that the case should be overruled. None of the other judges expressly overruled it, but the decision is clearly inconsistent with the spirit of Street. However, the above principle cannot be taken too far. Sweedman v Transport Accident Commission, above 31.100, illustrates this. This is another vehicle accident case. By this time New South Wales had reverted to common law damages, but now Victoria had a capped damages scheme. A car registered in Victoria driven by a Victorian collided in New South Wales with a NSW-registered car negligently driven by Mrs Sweedman. The Victorians did not sue Mrs Sweedman, as they could have, under New South Wales law, but simply claimed their limited damages from the Transport Accident Commission (TAC) under the Victorian Act. The Act, however, allowed the TAC to sue the other driver for indemnity damages if the car was not registered in Victoria. Sweedman’s insurer resisted on s 117 grounds, arguing that the Act discriminated against nonVictorian residents. However, the majority (Gleeson CJ, Gummow, Kirby and Hayne JJ) held that there was no discrimination based on residence. First, the real victim of the discrimination was Sweedman’s insurer, and a corporation cannot be a “subject of the Queen”. Secondly, the ground of the discrimination was not residence but having registered a car and paid the transport accident charge in Victoria and there were cars registered in Victoria whose owners or users resided outside the State, and Victorian residents driving cars who may not have paid the transport accident charge. This may seem technical, but it cannot be denied that there is less of a necessary connection between residing in a State and registering a car there than there is between residing in a State and principally practising one’s profession in the State. The section is drafted in a technical way, and, after making due allowance for practical effect, some technicalities in interpretation seem unavoidable. Even after Street you must look for discrimination that is imposed, in practical effect, on the basis of a person’s residence. However, for a less sanguine view, see the paper referred to in the Further Reading.

31.8 Distinctions between non-discrimination sections (92, 99 and 117) [31.120] When confronted with a problem involving a law of one State and a complainant in another State, some students, and possibly some practitioners, tend to 523

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Part E Constitutional Law and the States

think immediately of s 117. However, you should consider the full story. If a person or corporation is complaining that their right to trade into the other State is affected, it is a s 92 “trade and commerce” problem. If the complaint is that crossing the border or communicating across the border is made more difficult, it is a s 92 “intercourse” problem. It is only a s 117 problem if the person: n n n

is a natural person and an Australian subject; is in the enacting State, or is trying to exercise rights under its law; and is subject to a disadvantage specifically because of their residence in another State.

A Commonwealth law is not likely to give people lesser rights in a State they are visiting, or conducting litigation in, than in their home State. If a Commonwealth law of trade, commerce or revenue applies differently within one State than within another, the complaint would be framed under s 99, because the law is not necessarily discriminating on the basis of persons’ residence.

ISSUES FOR DISCUSSION 1. If you have a student concession pass for travel in your home State, you may find that it is honoured in some other States but not in others. Is this a breach of s 117, or a permitted exception? 2. Despite the judgment in Street, are there in fact good reasons why admission authorities should be able to impose some extra conditions on lawyers whose education and experience have all been gained in another State? Does this apply particularly to practice in some areas of law?

FURTHER READING Amelia Simpson, “Sweedman v Transport Accident Commission: State Residence Discrimination and the High Court’s Retreat into Characterisation” (2006) 34 Federal Law Review 36

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32.1 Context and overview [32.10] As noted in Chapter 28, when the Constitution grants legislative powers to the Commonwealth it makes some of them exclusive to the Commonwealth but leaves the States with concurrent powers in many areas. This obviously creates potential for conflict between the laws of the Commonwealth and the States. Without s 109, the supremacy of Commonwealth laws in cases of inconsistency would logically flow from covering clause 5: This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State …

just as the doctrine of ‘federal pre-emption’1 follows from the ‘supremacy clause’ (Art VI, Cl 2) in the United States Constitution. However, after spelling out the continuation of States’ constitutions, powers, and laws in ss 106–108 the drafters thought it appropriate to state the inconsistency rule expressly in the next section: 109. When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

As noted in 28.100, in the long run this has been a more severe limit on the States’ powers than any of the express limitations studied in earlier chapters. As we will see below, whole areas of notionally-concurrent power are now occupied so completely by Commonwealth law that they have become virtually exclusive by operation of s 109. (See Figure 28.1 again, and imagine each of the areas of Commonwealth power “filling up” with laws.) 1 See, eg, McCulloch v Maryland 17 US 316 (1819) and Gibbons v Ogden 22 US 1 (1824).

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Though this section seems to set the Commonwealth and States up in competition with each other, the “enforcement”, as in the case of s 90 discussed in Chapter 29, is mainly done by private parties. As Gibbs CJ said in University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447, at 458, the section is “of great importance for the ordinary citizen, who is entitled to know which of two inconsistent laws he is required to observe”. There is indeed the very occasional case where the States are so aggrieved by a Commonwealth declaration of intention to “cover the field” that they challenge the Commonwealth law (eg, the Work Choices case below), but most of the cases are of the form: n

n

State v private party (either a corporation or a real person), with the person trying to avoid being covered by a State law by arguing that it is inconsistent with a Commonwealth law (eg, O’Sullivan v Noarlunga Meat, below 32.20, where O’Sullivan was a South Australian official); or private party v private party, with one of them relying on a State law and the other on a Commonwealth law (eg Ansett Transport Industries (Operations) v Wardley, below 32.130).

There can even be cases where the relevant Commonwealth officers may be quite happy for the State law to operate in parallel with the one administered by themselves, but the State law is struck down at the suit of a private party: see Viskauskas v Niland, below 32.110. Of course, where a Commonwealth law is in conflict with a State executive decision not specifically authorised by a State Act, s 109 plays no part; the State is simply bound, under covering clause 5, by the Commonwealth law, as in Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 noted in 11.90. As discussed in Chapter 36, similar principles apply to laws of the self-governing Territories, in the ACT because of s 28 of the Australian Capital Territory (SelfGovernment) Act 1988 (Cth), and in the Northern Territory because of s 79 of the Judiciary Act 1903 (Cth).

32.2 The need for two inconsistent, and otherwise valid, laws [32.20] The section refers to “laws” of the Commonwealth and States. Laws, of course, include delegated legislation, and it seems to have been taken for granted (eg, in O’Sullivan v Noarlunga Meat Ltd [1954] HCA 29; (1954) 92 CLR 565) that a Commonwealth regulation can override a State Act. Commonwealth industrial awards have been seen as a less obvious case, but in Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472, Dixon J was able to hold that a State Act was effectively overridden by a Commonwealth award, because it was inconsistent with the section of the Commonwealth Conciliation and Arbitration Act 1904 (Cth) that penalised any breach or non-observance of an award. However, in Airlines of NSW Pty Ltd v New South Wales (No 1) [1964] HCA 2; (1964) 526

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113 CLR 1, Taylor and Menzies JJ held that instructions or directions issued by a departmental head (in this case the Director-General of Civil Aviation) did not constitute laws of the Commonwealth “in spite of the fact that non-compliance with instructions or directions so given may constitute an offence under the Regulations” (per Taylor J at 32). Though it is certainly true that executive directions are lower down the hierarchy of laws, the distinction seems to need more explanation than their Honours offered. Obviously enough, for inconsistency to arise, there have to be two laws that are prima facie valid in the first place. If the Commonwealth law is invalid for lack of a head of power, or either of the laws is invalid for breach of a constitutional prohibition, no question of inconsistency arises. This might suggest that logically the validity of both laws should be established first, then tested for inconsistency. However, in a case where there is dispute both about the validity of a Commonwealth law and whether a State law is inconsistent with it — which is quite common in s 109 cases — a holding on either issue that goes against the party alleging inconsistency determines the matter, so the judges can decide whichever issue seems most straightforward and ignore the other. For example, in O’Sullivan v Noarlunga Meat Ltd (No 2) [1956] HCA 9; (1956) 94 CLR 367, Fullagar J, who wrote the leading judgment for the majority, decided the inconsistency point first and only then addressed the head of power point, while McTiernan J first decided that the Commonwealth regulations were valid and then that the State law was not inconsistent. In dissent, Taylor J (with whom Webb J agreed) held that the State law was not inconsistent and that therefore he did not need to address the validity of the Commonwealth regulations.

32.3 Forms of “direct” inconsistency [32.30] The High Court has referred to two principal types of inconsistency: “direct” inconsistency, where there is some sort of textual clash between the laws, and “indirect” inconsistency where the Commonwealth law is held to “cover the field” and leave no room for State laws to operate in that field at all. These are overlapping categories; the Court has sometimes drawn attention to a direct inconsistency while at the same time observing that the Commonwealth law covers the field. The various forms of “direct” inconsistency — some more direct than others — are discussed in this section, and “covering the field” is discussed at 32.90–32.140.

Express overriding of State laws [32.40] The most obvious case of inconsistency is where a Commonwealth law specific­ ally invalidates certain types of State laws or makes them inapplicable to certain persons or activities. This is often discussed as an example of the type noted below — one law forbids what another permits — but it deserves separate mention because it is such a dramatic illustration of Commonwealth supremacy. It is true, as Wilson J said, in dissent, in Mabo v Queensland [1988] HCA 69; (1989) 166 CLR 186 (Mabo No 1) at [13] that 527

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“[t]he Commonwealth Parliament does not have the power to make it unlawful for a State Parliament to pass a law of a particular kind”, but a Commonwealth law can certainly rob a State law of some, most, or all of its effect. An early example is Commonwealth v Queensland [1920] HCA 79; (1920) 29 CLR 1 in which a provision in the Commonwealth Inscribed Stock Act 1911 (Cth) that “interest derived from stock or Treasury bonds shall not be liable to income tax under any law of the Commonwealth or a State” except on certain conditions was held to override Queensland tax laws. In R v Licensing Court of Brisbane; Ex parte Daniell [1920] HCA 24; (1920) 28 CLR 23 the Liquor Act 1912 (Qld) provided that the number of liquor licences in a district could be decided by a “local option” poll. Despite the fact that a Commonwealth electoral law provided that on a Commonwealth election day, no referendum or vote was to be taken under the law of a State, the Queensland Act provided that local option polls would be taken on the day of a Senate election. When a poll was held which resulted in Ms Daniell’s licence being revoked, the Court ruled that the section of the Liquor Act was invalid and therefore the result of the poll should be ignored.2 In Australian Coastal Shipping Commission v O’Reilly [1962] HCA 8; (1962) 107 CLR 46, it was held that, whether or not Commonwealth bodies have a general implied immunity from State taxes (see Chapter 33), the Commonwealth can legislate to give a body created by statute an immunity from State taxes. Later cases have made it clear that a Commonwealth law authorising an activity that is regulated under a Commonwealth head of power can give persons engaged in the activity an immunity from State laws. For example, in Botany Municipal Council v Federal Airports Corporation [1992] HCA 52; (1992) 175 CLR 453, the Airports Corporation and its contractors were given an immunity from environmental planning laws while working on the third runway at Sydney Airport. In Telstra Corporation Ltd v Worthing [1999] HCA 12; (1999) 197 CLR 61 injuries suffered by Worthing at a time when the Telecommunications Act 1997 (Cth) provided that his employer, then the Australian Telecommunications Commission, “was not subject to any requirement, obligation, liability, penalty or disability under a law of a State to which the Commonwealth itself was not subject” were not compensable under State law. In Bayside City Council v Telstra Corporation Ltd [2004] HCA 19; (2004) 216 CLR 595, a law providing that a State law could have no effect to the extent to which it discriminated against telecommunications carriers was held to override State laws that made them subject to local government rates while exempting other utilities. In Mabo No 1 itself, the majority held that the Queensland Coast Islands Declaratory Act 1985 (Qld) was inconsistent with s 10 of the Racial Discrimination Act 1975 (Cth). This provides that where a law has the effect that “persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race”, etc, then, notwithstanding anything in that law, they shall nevertheless “enjoy that right to the same extent” as persons of the other race, etc. That is, it operates to cancel out the discriminatory effect of other laws. In Mabo No 1 the majority held that in so far as the 2 The hotel in question was in fact the Regatta, very well known to university students in Brisbane.

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Coast Islands Declaratory Act operated to extinguish the legal rights of the Miriam people it “failed”, which is as good as to say that the Act was wholly invalid. Similarly, in Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, the whole of the Land (Titles and Traditional Usage) Act 1993 (WA) was held invalid. It purported to abolish common law native title and to replace it with statutory rights which were less extensive than the rights of other landowners, and was held to be inconsistent with both s 10 of the Racial Discrimination Act 1975 (Cth), under the principle discussed in this section, and the Native Title Act 1993 (Cth), under the “covering the field” principle discussed in 32.90–32.140. The other cases where Commonwealth laws make it clear that they are intended to override State laws involve statutes that declare an intention to operate to the exclusion of State laws. These will be discussed under “cover the field” inconsistency at 32.90– 32.140 below.

Mutually contradictory commands (impossible to obey both laws) [32.50] In other cases of inconsistency, the Commonwealth law makes no reference to the existence of State laws. It may, however, still be obvious that inconsistency exists when one finds a law at one level that permits or commands something and one at the other level that forbids the same thing. The classic example is Colvin v Bradley Brothers Pty Ltd [1943] HCA 41; (1943) 68 CLR 151, where the New South Wales authorities tried to prosecute the company for employing a female to operate dangerous machinery, in breach of a State law, despite the fact that a Commonwealth award allowed it. A magistrate dismissed the charge. On appeal, the State argued that “the State legislation … relates to general social conditions and is directed to community welfare, whereas the Commonwealth award is directed only to the relations between particular employers and employees in certain industries or callings”. The High Court unanimously rejected the argument; the two provisions were clearly inconsistent.

Both laws forbid the same conduct, but create different classes of crime, defences, and perhaps penalties [32.60] Another kind of “direct” inconsistency is said to occur in the situation described in the heading. In Hume v Palmer [1926] HCA 50; (1926) 38 CLR 441, Commonwealth and State laws both penalised breaches of the rules of navigation leading to collisions. Hume had failed to give way to a harbour ferry while sailing a ship into Sydney Harbour on an interstate voyage. Even though the maximum penalty under the Commonwealth law was twice that of the State law, he appealed against his conviction for the State offence. As the Commonwealth law made the offence an indictable offence (necessarily giving the defendant a jury trial under s 80), while the State offence was triable summarily, and the penalties were different, the High Court held that the State law did not apply and allowed the appeal. There appears to be no record of whether Hume was then prosecuted under the Commonwealth regulations. It was suggested in Ex parte McLean, above 32.20, 529

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and in R v Loewenthal; Ex parte Blacklock [1974] HCA 36; (1974) 131 CLR 338 that a difference in the penalties was enough to make the laws inconsistent, but in Ex parte McLean the actual reason was that the Commonwealth award was intended to cover the field, and in Blacklock Mason J said, at 347: A difference in the penalties prescribed for conduct which is prohibited or penalized by Commonwealth and State laws has been held to give rise to inconsistency between those laws (see Hume v Palmer [1926] HCA 50; (1926) 38 CLR 441; Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472 ), at least when it appears that the Commonwealth statute by prescribing the rule to be observed evinces an intention to cover the subject matter to the exclusion of any other law.

It is therefore unclear whether a difference in penalties by itself would be enough to make laws inconsistent. In McWaters v Day [1989] HCA 59; (1989) 168 CLR 289, two laws as to the traffic offence committed by Day prescribed different penalties, but because of indications in the Commonwealth Act that it contemplated the co-existence of State laws (see below) Day’s conviction under the State law was allowed to stand. In Dickson v The Queen [2010] HCA 30; (2010) 241 CLR 491, there were several significant differences in the laws. After Dickson’s conviction of conspiracy to steal cigarettes it had been realised that, if guilty, he had committed a Commonwealth offence because the cigarettes had been in a bond store and therefore they were deemed to be property of the Commonwealth. The High Court noted at [26]–[28] that the Commonwealth offence was more limited in three ways than the Victorian offence, so the Victorian offence closed up “areas of liberty” that were left at Commonwealth law (and provided for a majority jury verdict unlike a trial under Commonwealth law), so the Victorian offence could not apply. As the Commonwealth extends the reach of its criminal laws, lawyers will have to be alert for this kind of inconsistency; the history of the Dickson case indicates that it is all too easy, at least at first instance, for all parties to take it for granted that a State law applies, and to forget to look for inconsistent Commonwealth laws. On the other hand, if lawyers are too assiduous in pursuing s 109 points, they run the risk of provoking criticism like Menzies J’s comment in Blacklock, above 32.60 at 342: “Indeed, the proceedings appear to me as no more than a lawyer’s jaunt at the public expense.”

One law confers a right or privilege, the other takes it away or modifies it [32.70] In the cases discussed in 32.40 and 32.50, it would be impossible for the parties to obey both laws, and in the ones mentioned in 32.60 it would be difficult to know just what rules should apply in the hearing and sentencing of a criminal case. There are other cases where laws impose different standards on a party and it would be quite possible to obey both, simply by observing the higher standard. However, the laws have been held to be inconsistent. This arises typically in cases of conflicting industrial awards or laws, such as Clyde Engineering Co Ltd v Cowburn [1926] HCA 6; (1926) 37 CLR 466 where the Commonwealth 530

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award entitled workers to a week’s pay after working 48 hours but a New South Wales Act provided for a 44-hour week, and Blackley v Devondale Cream (Vic) Pty Ltd [1968] HCA 2; (1968) 117 CLR 253 where a Commonwealth award provided a lower wage rate than a Victorian Wages Board determination. In the above cases, the worker or inspector argued that the laws were not inconsistent; Clyde could have observed both laws by paying Cowburn the award rate for 44 hours’ work, and Devondale could have simply paid its workers the higher of the two rates. However, the High Court reasoned that an award not only imposes a duty on an employer to grant certain conditions to a worker, it gives the employer a right not to have further duties imposed. As Knox CJ and Gavan Duffy J put it in Cowburn’s case: Two enactments may be inconsistent although obedience to each of them may be possible without disobeying the other. Statutes may do more than impose duties: they may, for instance, confer rights; and one statute is inconsistent with another when it takes away a right conferred by that other even though the right be one which might be waived or abandoned without disobeying the statute which conferred it.

The same approach was followed in Blackley. In Australian Mutual Provident Society v Goulden [1986] HCA 24; (1986) 160 CLR 330, the Life Insurance Act 1945 (Cth) regulated premiums only to the extent that they had to be approved by an actuary. When the AMP refused to make a change in Goulden’s policy on the ground of his blindness, he alleged a breach of the Anti-Discrimination Act 1977 (NSW). The High Court held that the State Act could not apply because it “would qualify, impair and, in a significant respect, negate the essential legislative scheme of the Commonwealth Life Insurance Act”. The decision in Telstra v Worthing as to Worthing’s injuries sustained when Telstra had been the Australian Telecommunications Commission was discussed in 32.40. He also had a claim for a later injury, by which time the employer had become Telstra and the relevant Commonwealth legislation was the Safety, Rehabilitation and Compensation Act 1988 (Cth). The court held that the more generous provisions of the Workers Compensation Act 1987 (NSW) could not apply, citing Blackley and Goulden. In Bell Group NV (in liq) v Western Australia [2016] HCA 21; (2016) 331 ALR 408, the High Court held, at [51]–[61], that a Western Australian Act3 under which the State had tried to hijack the proceedings of the winding-up of the Bell Group of companies was invalid on the ground that it purported to “alter, impair or detract from” the rights of the Commissioner of Taxation under the laws of the Commonwealth.

“Operational” inconsistency [32.80] An inconsistency can also seem to arise between two laws which empower the Commonwealth and State executives to take action on similar matters. In such cases, unless the Commonwealth law seems intended to cover the field, the State law will 3 Bell Group Companies (Finalisation of Matters and Distribution of Proceeds) Act 2015 (WA).

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remain effective until the Commonwealth uses its power under its own law. The classic case is Victoria v Commonwealth [1937] HCA 82; (1937) 58 CLR 618 (the Kakariki) where Victoria and the Commonwealth had both enacted laws giving a Minister or officer power to order the removal of shipwrecks. The State was concerned lest an order made under its Act should turn out, after removal had commenced, to have been invalid. Since the Commonwealth Minister had made no order, the High Court held that there was no bar to action by the State, though all Justices observed that if the Commonwealth Minister did make an order, the State action would become invalid. This has become known subsequently as “operational inconsistency”. The phrase does not appear in the judgments, though McTiernan J did observe: “The State port officer or harbour master in no way challenges the supremacy of the Federal section by proceeding to remove a wreck to which sec 329 applies, at least, until the Federal Minister puts the provisions of this section into operation”. The potential for this type of inconsistency was mentioned in Commonwealth v Western Australia (Defence Lands case) [1999] HCA 5; (1999) 196 CLR 392. The Commonwealth had sought a declaration that the Mining Act 1978 (Cth) did not apply to a defence practice area near the coast at Lancelin, north of Perth. The majority held that indeed the Act did not apply to the part of the area that was held by the Commonwealth under freehold or leasehold. As to a perimeter area, declared to be a defence practice area under the Defence Regulations though not owned by the Commonwealth, Gleeson CJ and Gaudron J held at [61] that: “The Defence Regulations do not operate to prevent entry or activity on the perimeter area, except if a defence operation or practice has been authorised by a chief of staff pursuant to reg 51(1)”. Their Honours explained that in the periods of an authorised defence practice, there would be an operational inconsistency between the Act and the Regulations. Gummow, McHugh and Hayne JJ generally agreed. The concept of operational inconsistency was also used in AMS v AIF [1999] HCA 26; (1999) 199 CLR 160 to explain the conclusion, already noted in 30.140 and 30.170, that court orders under the Family Court Act 1997 (WA) could only be made to the extent that they were not inconsistent with s 49 of the Northern Territory (Self-Government) Act 1978 (Cth). So far, then, the concept has only been used to warn State officials and judges that boundaries can be set by Commonwealth law, though no case so far has involved a transgression of one of those boundaries.

32.4 Commonwealth law “covering the field” [32.90] All of the above types of inconsistency are variously called “direct inconsistency”, “direct collision”, “textual collision”, or “actual inconsistency” — though the “impossible to obey both laws” type may seem more direct. The following type, “covering the field”, is called “indirect” by contrast. As noted above, they are overlapping categories — some of the cases already discussed above as illustrating various types of direct inconsistency will feature again below. 532

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The principle stated [32.100] The possibility that the Commonwealth could create inconsistency by covering a field of law was first stated by Isaacs J in Cowburn’s case, above 32.70. His Honour proclaimed that even though two laws could be obeyed: … surely the vital question would be: Was the second Act on its true construction intended to cover the whole ground and, therefore, to supersede the first? If it was so intended, then the inconsistency would consist in giving any operative effect at all to the first Act, because the second was intended entirely to exclude it. … If … a competent legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field.

He held that the Commonwealth award was indeed intended to cover the field, and therefore the State Act could not apply. In Ex parte McLean, above 32.20, Dixon J adopted the same approach: When the Parliament of the Commonwealth and the Parliament of a State each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes, and sec 109 applies. That this is so is settled, at least when the sanctions they impose are diverse (Hume v Palmer). But the reason is that, by prescribing the rule to be observed, the Federal statute shows an intention to cover the subject matter and provide what the law upon it shall be. If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same duties or in inflicting different penalties. The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter.

Ascertainment of Commonwealth Parliament’s “intention” [32.110] As both the above statements of the rule emphasise that the existence of the inconsistency depends on the determination of the “intention” of Parliament (a collective body consisting of people who may have different subjective intentions), “objective” ways of ascertaining the Parliament’s intent must be used. There are three main ones: (i) An express declaration in the Commonwealth Act. In Wenn v Attorney-General (Vic) [1948] HCA 13; (1948) 77 CLR 84, Wenn, a Victorian prison warder, was arguing that the Re-establishment and Employment Act 1945 (Cth) applied only to the original employment, but not subsequent promotion, of ex-service personnel, and therefore he should be given preference for promotion under a Victorian statute. However, sub-s 24(2) of the Commonwealth Act provided: “The provisions of this Division shall apply to the exclusion of any provisions, providing for preference in any matter relating 533

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to the employment of discharged members of the forces, of any law of a State”. The field was covered. The cases where the Commonwealth law provided that certain State laws were not to apply, discussed in 32.40, can also be seen as “covering the field” cases. In a number of cases (eg West v Commissioner of Taxation (NSW) [1937] HCA 26; (1937) 56 CLR 657 per Evatt J) concern has been expressed lest the Commonwealth be allowed to “manufacture” inconsistency, but there has been no case where a Commonwealth declaration of intent has failed on that ground. For example, at the time of the Work Choices case (New South Wales v Commonwealth [2006] HCA 52; (2006) 229 CLR 1), s 16 of the Workplace Relations Act 1996 (Cth) provided that the Act was intended to apply to the exclusion of State laws including State unfair contract laws, but the Act made no general unfair contract provision itself. It was still held valid and effective, as the joint judgment remarked at [370]: Section 109 may operate where the Commonwealth chooses to enact a scheme involving a more detailed form of regulation than State law provides. Equally, s 109 may operate where the Commonwealth creates a scheme involving less detailed regulation than State law provides. And s 109 may operate where the Parliament has done what it has in the new Act — to provide a more detailed scheme than State law in some respects and a less detailed scheme in other respects.

That is, the Commonwealth can choose to leave a gap in the law that the States cannot fill. It is still unclear whether a Commonwealth law could simply say “Parliament intends that the States may make no law on X”, where X was a topic within its heads of power, without making any positive provisions. It must always be remembered that the Commonwealth law must be within power. In Airlines of NSW Pty Ltd v New South Wales (No 2) [1965] HCA 3; (1965) 113 CLR 54, the Commonwealth was held to have power to impose a number of restrictive regulations on intrastate flights under s 51(i) on safety grounds but not to positively authorise an intrastate flight, and therefore it could not override the State’s refusal to grant a licence to Airlines of NSW (see the discussion of the case and its consequences at 18.70). (ii) Inference from the type of law. In some cases, the High Court infers from the very nature of the law that the Commonwealth Act must be seen to be exhaustive of parties’ rights. In R v Loewenthal; Ex parte Blacklock [1974] HCA 36; (1974) 131 CLR 338, a case involving damage to Commonwealth property, Mason J said at [14]: “It is not to be supposed that the Commonwealth law, when it formulated the relevant rule of conduct in relation to Commonwealth property and that of its public authorities, proceeded on the footing that other and different rules of conduct might be enacted in relation to such property”. In Miller v Miller [1978] HCA 44; (1978) 141 CLR 269 the husband had used an extension phone to listen in to conversations between his estranged wife and their child. It was argued that this was a breach of the Listening Devices Act 1969 (NSW), although it was clearly not a breach of the Telephonic Communications (Interception) Act 1960 (Cth). The Court held that, even if listening in on a legally-installed extension phone was the use of a “listening device” (surely a doubtful proposition!) the State Act was inconsistent with the Commonwealth Act. As Barwick CJ said at 276: 534

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In my opinion, the Australian Act does evince a clear intention to be the whole law on the matter of telephonic interception: nor should such a conclusion be surprising for the telephone system is provided and administered by an Australian instrumentality under Australian law.

He conceded that this argument was not conclusive, but it reinforced arguments based on the text of specific sections. Viskauskas v Niland [1983] HCA 15; (1983) 153 CLR 280 involved the ­interaction between the Racial Discrimination Act 1975 (Cth) and the Anti-Discrimination Act 1977 (NSW). Viskauskas, the licensee of a hotel, had allegedly refused service to three indigenous people on the ground of their race. As noted in 32.10, the Commonwealth Commissioner was quite content for the State authorities to pursue the matter, but Viskauskas appealed to the High Court, arguing that the State Act was inconsistent with the Commonwealth one. In a joint, unanimous judgment, the High Court agreed. Their Honours reasoned, at 292, that as the Commonwealth Act was based on a United Nations Convention (see 19.40): … the parties to the Convention “undertake to prohibit and to eliminate racial discrimination in all its forms”: Art 5; see also Art 2. Parties to the Convention are to “assure to everyone within their jurisdiction effective protection and remedies”: Art 6. The Commonwealth Parliament has chosen the course of itself legislating to prohibit racial discrimination, and having done so it can only fulfil the obligation cast upon it by the Convention if its enactment operates equally and without discrimination in all the States of the Commonwealth. It could not, for example, admit the possibility that a State law might allow exceptions to the prohibition of racial discrimination or might otherwise detract from the efficacy of the Commonwealth law. The subject matter of the Commonwealth Act suggests that it is intended to be exhaustive and exclusive, and this conclusion is supported by the fact that the provisions of Pt II (and especially those of s 9) are expressed with complete generality, and by the further fact that s 6 reveals an intention to bind the Crown in right of each State as well as the Crown in right of the Commonwealth. It appears from both the terms and the subject matter of the Commonwealth Act that it is intended as a complete statement of the law for Australia relating to racial discrimination.

The Parliament promptly amended the Act to provide that it was not meant, and never had been meant, to exclude the anti-discrimination laws of the States; we shall see the High Court’s response to that below in 32.120. (iii) inference from the details of the Act. In O’Sullivan v Noarlunga Meat Ltd [1954] HCA 29; (1954) 92 CLR 565 the Metropolitan and Export Abattoirs Act 1936 (SA) made it an offence to use premises in a part of the State outside the “Metropolitan Abattoirs Area” for the purpose of slaughtering stock for export without a State licence. Noarlunga Meat had established an export-only abattoir under a licence issued under the Commerce (Meat Export) Regulations (Cth). Fullagar J considered the length and detail of the Commonwealth regulations and held at [11]: 535

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… it appears to me impossible to deny that the regulations evince an intention to express completely and exhaustively the requirements of the law with respect to the use of premises for the slaughter of stock for export. The extremely elaborate and detailed character of the regulations seems to me to be itself sufficient to compel this conclusion. Almost every requirement which occurs to one as a relevant requirement is prescribed … It is clearly contemplated that, when registration has been obtained, the operations referred to in the certificate may be lawfully conducted on the registered premises. Section 52a of the South Australian Act is a clear denial of any such permission.

In Wenn v A-G (Vic), above, the amount of detail in the Commonwealth law was also taken as an indication of the Parliament’s intent to cover the field as well as the fact that the law said it excluded other laws with respect to an area described as “employment”. A similar principle was applied to the interpretation of s 28 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) in Commonwealth v Australian Capital Territory [2013] HCA 55; (2013) 250 CLR 441 — see 36.80.

Exceptions I — the Commonwealth law keeps the field open [32.120] Just as the Commonwealth can declare that it intends to cover the field, so also it can declare that it does not intend to cover the field, and this will generally be accepted, as in R v Credit Tribunal; Ex parte General Motors Acceptance Corporation [1977] HCA 34; (1977) 137 CLR 545 where s 75 of the Trade Practices Act 1974 (Cth) provided that the Consumer Protection Part of the Act “is not intended to exclude or limit the concurrent operation of any law of a State or Territory”. More recently, in response to a United Nations Convention, the Commonwealth Parliament has inserted Part 9.1 into the Commonwealth Criminal Code, dealing with drug trafficking. This not only covers importation of drugs — a traditional Commonwealth area of concern — but regulates much conduct in Australia that used to be covered only by State or Territory laws. However, s 300.4 provides that the Part is not intended to exclude or limit the concurrent operation of a law of a State or Territory, and goes on to say that it applies even if the laws are different as to penalty, fault element or defences. In Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1, where the defendant had been convicted under Victorian law, one of her grounds of appeal was that the Victorian drugs law was nevertheless inconsistent with the Commonwealth law. This ground of appeal was rejected, as s 300.4 was held to be valid and effective (though she succeeded on another ground). However, the High Court has held that the Commonwealth Parliament cannot make a declaration of its intent to share the field retrospective. As noted above, it tried to do this after Viskauskas v Niland. University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447 involved alleged acts of discrimination that had occurred before the amendment. It was held by 4:3 that the amendment could not have retrospective effect. As Gibbs CJ explained the matter at [7]: 536

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When a law of a State is inconsistent with a law of the Commonwealth and becomes, to the extent of the inconsistency, invalid, the invalidity is brought about by s 109 of the Constitution and not directly by the law of the Commonwealth (citations omitted). The Commonwealth Parliament cannot enact a law which would affect the operation of s 109, either by declaring that a State law, although not inconsistent with any Commonwealth law, shall be invalid, or that a State law which is inconsistent with a Commonwealth law shall be valid.

Two of the majority Justices, Murphy and Deane JJ, did suggest that once the Commonwealth had declared its intention not to cover the field, the State could have made a new retrospective law to apply to Mr Metwally’s situation, but it had not done so. Mason, Wilson and Dawson JJ, in dissent, protested that s 109 was supposed to be a fetter on State power, not on Commonwealth power.4 Just as the Commonwealth can clear the field expressly, so the Court can find that it has done so by implication. In West v Commissioner of Taxation (NSW) [1937] HCA 26; (1937) 56 CLR 657, a Commonwealth law provided that the Governor-General could prescribe the maximum amount of tax to which Commonwealth salaries and pensions could be subject under State laws. No regulation had been made. This was taken as a “clearing the field by implication”, and West had to pay State tax on his Commonwealth superannuation. In McWaters v Day [1989] HCA 59; (1989) 168 CLR 289, in a joint judgment, the Court held that a member of the defence force could be prosecuted for a breach of the Traffic Act 1949 (Qld), after an accident on the road system within the Enoggera Barracks. After a close reading of the Defence Force Discipline Act 1982 (Cth), their Honours held at [12] that: … the Discipline Act contemplates parallel systems of military and ordinary criminal law and does not evince any intention that defence force members enjoy an absolute immunity from liability under the ordinary criminal law.

Exceptions II — Commonwealth law does not cover the whole field [32.130] If a law covers a “field”, the field needs defining. In some cases, although the Commonwealth law covered most of a field of law, the High Court has held that it left room for State laws on peripheral matters. Although cases like Cowburn’s case (above 32.70) and Ex parte McLean (above 32.20) show that a Commonwealth industrial award is usually taken to have covered the field, it can be harder to press that argument when a State law deals with a matter that was not seen as an issue at the time of making the award. In both Collins v Charles Marshall Pty Ltd [1955] HCA 44; (1955) 92 CLR 529 and T A Robinson & Sons Pty Ltd v Haylor [1957] HCA 76; (1957) 97 CLR 177 it was held that State provisions for long service leave were not inconsistent with a Commonwealth award that did not mention the topic. In Ansett Transport 4 The dissenters’ argument is strongly supported by Professor HP Lee in “Retrospective Amendment of Federal Laws and the Inconsistency Doctrine in Australia” (1985) 15 Fed L Rev 335.

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Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; (1980) 142 CLR 237, the Court, by majority, held that the Equal Opportunity Act 1977 (Vic) was not inconsistent with a registered agreement made under the Conciliation and Arbitration Act 1904 (Cth); the Act prohibited discrimination against women in hiring and firing, and the agreement, according to the majority, only imposed procedures to be followed in cases of dismissal. Swift Australian Co Pty Ltd v Boyd Parkinson [1962] HCA 41; (1962) 108 CLR 189 can be contrasted with Noarlunga Meat, above; in Swift only five per cent of the slaughtered poultry was exported and the Court held that since the Commonwealth regulations were expressed to apply to “slaughter for export” the company was also subject to Queensland law.

Exceptions III — State law is not in the same field [32.140] In a related (possibly overlapping) class of cases, the fact that the Commonwealth seems to intend to cover one “field” does not save the challenger from being regulated by a State law that applies in a somewhat different area. We have already seen that in Airlines of NSW No 2, the Court held that the Commonwealth could regulate intrastate flights for the sake of safety but that it could not positively authorise an airline to fly an intrastate route, so the State licensing requirement, imposed for general regulation-of-competition reasons, stood with it (and therefore an airline needed a licence from both). Other cases involving Commonwealth and State laws in what might be called “adjacent fields”, where a party had to comply with both laws, include: n

n

n

n

n

Australian & International Insurances Ltd v Workers’ Compensation Commission (NSW) [1972] HCA 30; (1972) 125 CLR 470: licensing of insurance companies by the Commonwealth for general prudential purposes was not inconsistent with the State imposing conditions on the right to offer workers’ compensation insurance; Commercial Radio Coffs Harbour v Fuller [1986] HCA 42; (1986) 161 CLR 47: possession of a broadcasting licence did not entitle the licensee to build a transmitter without getting local government approval as required by State law; Forsyth v Commissioner of Stamp Duties [1966] HCA 5; (1966) 114 CLR 194: a provision of the Life Insurance Act 1945 (Cth) protecting payments under the policy to the deceased’s wife and children from his debts did not prevent application of State death duty; Stock Motor Ploughs Ltd v Forsyth [1932] HCA 40; (1932) 48 CLR 128: general provisions of the Bills of Exchange Act about the enforcement of promissory notes did not overrule a State Moratorium Act, enacted during the Depression; and New South Wales v Commonwealth [1983] HCA 8; (1983) 151 CLR 302 (the Hospital Benefits case): provisions of the National Health Act 1953 (Cth) imposing control on hospital funds for prudential purposes were not inconsistent with the States imposing a levy on the funds as consideration for providing free hospital treatment for members and nothing in the Act empowered the Minister to give a direction to funds not to pay the levy.

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Note than in many, if not all, of these cases the Commonwealth could have overridden the State law. Unlike the situation in Airlines of NSW, a Commonwealth law specifically authorising the party to engage in the activity, not pay the levy, etc, would probably have been within the incidental aspect of the power that supported the law. The fact that cases like these arise shows that the Commonwealth does not (yet?) attempt to exploit its powers to the point of total annihilation of States’ powers. There are indeed some areas of activity where, almost of necessity, there are nonintersecting Commonwealth and State “fields”. One such area is that of commissions of inquiry or Royal Commissions. In R v Winneke; Ex parte Gallagher [1982] HCA 77; (1982) 152 CLR 211, Norm Gallagher had been convicted of an offence under the Evidence Act 1958 (Vic) for failing to answer questions at a joint Commonwealth and State Royal Commission into the conduct of the Australian Building Construction Employees’ and Builders Labourers’ Federation. He argued that the State law was inconsistent with the provision of the Crimes Act 1914 (Cth) that penalised similar conduct, but the Court held that even though Mr Winneke held dual commissions there were conceptually two separate inquiries and separate Commonwealth and State laws could apply. A similar principle applies to taxation laws. As seen in 32.40, where the Commonwealth has power to create a body it is incidental to that power to say that it is not liable to State taxes; in that case s 109 applies (for example, Australian Coastal Shipping Commission v O’Reilly [1962] HCA 8; (1962) 107 CLR 46). However, where the Commonwealth and the States are both imposing taxation on the general populace (as they both imposed income tax for some decades), it is generally agreed that s 109 is unlikely to apply to “conflicts” between taxation laws. In R v Winneke, Mason J summed up the results of the Second Uniform Tax case as follows at [3]: The Commonwealth power to impose taxation is exercisable for Commonwealth purposes (s 51(ii)); it is distinct from, and independent of, the State power to impose taxation for State purposes. Accordingly, it has been said that a legal conflict between the two is an impossibility (Victoria v Commonwealth (1957) 99 CLR 575, at pp 614, 657).

32.5 Subjective and unpredictable nature of inconsistency decisions [32.150] It is probably obvious from the above that there are at least as many fine distinctions between cases in this area as in any other area of the law, and probably more. It could even be said that the cases on inconsistency do not seem particularly consistent. If you go back through this Chapter, you will almost certainly be able to pick out pairs of cases that seem contradictory, or at least to depend on very fine distinctions. This is because each case depends on the facts, and the “facts” in these cases consist of the details of two Acts of Parliament, or regulations, that may be several hundred pages long. A Commonwealth Act can easily have some sections which suggest that it is intended to cover the field and some that suggest otherwise. The allocation of an Act to a “field” can usually be done in several alternative ways. This means that the best a student, or indeed 539

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an academic or practitioner, can do, when given a new case is to draw up a list of the competing arguments, and await the Court’s decision.

32.6 Invalid “to the extent of the inconsistency” [32.160] Section 109 contains a built-in severance provision — the State law is “invalid to the extent of the inconsistency” — which means, in most cases, that it is in fact not “invalid” in the full sense of the word. In the cases about federal awards that overrode State Acts or determinations (Cowburn’s case, Blackley, Ex parte McLean), the State law still governed those workers who were not covered by the federal award. In Lamb v Cockatoo Docks & Engineering Co Pty Ltd [1961] SR (NSW) 459 (another long service leave case), most of a State award was held invalid for inconsistency but the long service leave provision survived. As is common in other areas of law, if severance makes no sense the whole law is invalid; in Wenn v Attorney-General (Vic), above 32.110, the Victorian preference law was said to have been intended to be “read as a single code” so it was in fact invalid in the full sense, at least for a time. However, the “extent of the inconsistency” includes temporal extent as well as what one might call the semantic extent. As noted at 19.110, the ex-service preference law was held valid as promoting post-war recovery in Wenn in 1948, but was held to have lost its connection with the defence power in Illawarra District County Council v Wickham [1959] HCA 18; (1959) 101 CLR 467. This was quickly followed by Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268, in which the Court held that the Discharged Servicemen’s Preference Act 1943 (Vic) had merely been “inoperative” while the Commonwealth Act had been in force, and had revived when the latter Act faded into invalidity. This did not necessarily help Butler, because issues of interpretation of the 1943 Act and its possible implied repeal by a later Victorian Act were left to be decided, but it gave us a word to substitute for “invalid” in s 109 — it means inoperative.

ISSUES FOR DISCUSSION 1. In Metwally, Deane J said at [3]: … s 109 is not concerned merely to resolve disputes between the Commonwealth and a State as to the validity of their competing claims to govern the conduct of individuals in a particular area of legislative power. It serves the equally important function of protecting the individual from the injustice of being subjected to the requirements of valid and inconsistent laws of Commonwealth and State Parliaments on the same subject.



On the other hand, Mason J said at [13]: The section is not a source of individual rights and immunities except in so far as individual rights and immunities are necessarily affected because the section renders inoperative a State law which is inconsistent with a Commonwealth law.

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Is there nevertheless something to be said for Deane J’s argument? Consider a case like Noarlunga Meat — should a business have to be bothered with two sets of regulations and answer to two sets of officials? Does this sort of consideration justify a broad application of the “cover the field” test, despite the criticisms of Morabito and Strain in the Further Reading below? 2. Where the Commonwealth and States are both enacting laws to remedy a problem such as racial discrimination, should the courts be less ready to find that the Commonwealth law covers the field than they are when the laws concern the regulation of business matters? Or would this introduce an undesirable “political” note into constitutional interpretation?

FURTHER READING Peter Hanks, “Inconsistent Commonwealth and State Laws: Centralising Government Powers in the Australian Federation” (1986) 16 Fed L Rev 107 Geoffrey Lindell, “Grappling with Inconsistency between Commonwealth and State Legislation and the Link with Statutory Interpretation” (2005) 8 Const Law & Policy Rev 25 Vince Morabito and Henriette Strain, “The Section 109 “Cover the Field” Test of ­Inconsistency: an Undesirable Legal Fiction” (1993) 12 U Tas LR 182

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CHAPTER 33

Commonwealth and State Legislative Powers over Each Other, and Their Limits — Intergovernmental Immunities

33.1 Context and overview [33.10] In a federation a question naturally arises — since there are legislatures and executive governments at the sub-national level, and a legislature and executive at the national level, should the executive government at one level be bound by the laws made by the legislature of the other level? According to covering clause 5, the laws of the Commonwealth apply within the States, to the courts, judges and people of the States, which clearly implies that they generally apply to the executive officers of the States — but can there be necessary exceptions and do they apply to the States as bodies politic? There is also a question in the other direction — though the Commonwealth Parliament can declare that the bodies that it sets up are immune from State law (see 18.60, 19.20 and 32.40), what happens when it does not? Are Commonwealth bodies within a State then subject to the laws of the State? In Australia there is one mutual immunity expressed in the Constitution — the Commonwealth and States cannot impose taxes on each other’s property — but otherwise the text does not address the above questions and they have had to be answered by the courts. If one assumed that the Constitution had set up a system of strict “dual sovereignty” (an American concept, rejected by the High Court),1 the answers to the questions would seem to be “no”. On the other hand, the rule of law ideal suggests that 1 See Windeyer J in the Payroll Tax case, Victoria v Commonwealth [1971] HCA 16; (1971) 122 CLR 353 at 395.

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governments should be bound by the same laws as the ordinary citizens. As we saw in 11.80–11.90, within each jurisdiction the presumption of “Crown” (ie, executive) immunity from statute has been “eclipsed” in the last few decades, and replaced by a near-presumption that the government is bound by statutes. As foreshadowed there, it would seem to follow that the State governments should obey the laws of the Commonwealth as well as their own State laws, and that a reverse principle should apply to the Commonwealth government where it has not been given an immunity by Commonwealth law, unless there was a good reason, derived from the nature of the federation, why they should not have to. As we will see in this Chapter, that is more or less how the law has eventually developed, though the pendulum swung through extremes for much of the last century. The early Justices of the High Court adopted a doctrine of general inter-governmental immunity, in line with the “dual sovereignty” approach to the Constitution. This was “exploded” in the Engineers’ case (Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129), which was interpreted for some time as providing for total dominance of Commonwealth laws over the States. However, a more moderate doctrine of implied immunities — implied only where the implication seems to be really demanded by the federal nature of the Constitution — has since re-emerged.

33.2 An express immunity — Commonwealth and States not to tax each other’s property [33.20] After providing that the States shall not raise a military force, s 114 of the ­Constitution abruptly switches to another topic: A State shall not … impose any tax on property of any kind belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of any kind belonging to a State.

Note that this applies only to one kind of tax among many — a tax on property. As later sections of this Chapter will show, the States are not generally immune from other forms of Commonwealth taxation and Commonwealth bodies can probably, in principle, be subject to State taxation, although, as already noted at 18.60, 19.20 and 32.40, many Commonwealth bodies have been expressly immunised from State taxes by the Commonwealth law that created them. Against that background, why the drafters included just this one, limited, express immunity is unclear, except that there were precedents from other federations (a similar one was stated in the British North America Act 1867 and similar but broader immunities had been held by the Supreme Court to be implied in the United States Constitution).2 2 A list of the American cases known to the drafters is provided in John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth, Angus & Robertson, 1901 (reprinted Legal Books 1976), pp 949–50.

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What is a tax “on property”? [33.30] It is hard to point to any “literal” meaning of a “tax on property”, because, as both Gibbs CJ and Dawson J explained in Queensland v Commonwealth (Fringe Benefits case) [1987] HCA 2; (1987) 162 CLR 74, neither goods nor property can pay a tax; only a person who has some relation with the goods or property can pay the tax. A “tax on property”, most broadly interpreted, could refer to a tax imposed on any dealings with the property or any income derived from it. However, if there is no literal meaning there is at least an obvious one — a tax that is related to the ownership or holding of property. That is in fact how the High Court has consistently interpreted the phrase. The obvious examples of taxes on property are land tax and local government rates (the imposition of which are authorised by State laws). In Sydney Municipal Council v Commonwealth [1904] HCA 50; (1904) 1 CLR 208 the Council argued that the prohibition did not apply to it, but the Court held that if the State could not tax property it could not delegate the power to councils. In City of Essendon v Criterion Theatres Ltd [1947] HCA 15; (1947) 74 CLR 1 the Court held that the Commonwealth was not liable to pay rates as the occupier of land; whether the owner was liable depended on the finer points of the old presumption that laws do not bind “the Crown”, which need not be discussed here. There are less clear examples and border-line cases. In the first case, Attorney-General (NSW) v Collector of Customs (NSW) (Steel Rails case) [1908] HCA 28; (1908) 5 CLR 818, the High Court held that a customs duty was not a “tax on property” as contemplated by the section. Griffith CJ noted that taxes imposed “upon operations or movements of property” were not taxes on property, and O’Connor J held at 844 that the section conferred an immunity from a tax on property “in its strict sense”, that is, from “an exaction made in respect of the holding or ownership of property”. In the Fringe Benefits case, the Court held (Gibbs CJ dissenting) that the Commonwealth fringe benefits tax imposed on State employees for their use of cars and houses provided by the State was not a tax on the State’s property. A clear case of the application of the section arose in Deputy Federal Commissioner of Taxation v State Bank of NSW [1992] HCA 6; (1992) 174 CLR 219. Under sales tax law, where a business consumes items that it has made in-house, they are subject to sales tax just as if it has bought the items. However, this was held not to apply to forms printed in-house by the State Bank, as this would be a tax on the use by the Bank of its own property. In another decision on the same day, South Australia v Commonwealth [1992] HCA 7; (1992) 174 CLR 235 the majority held that the South Australian Superannuation Fund Investment Trust (SFIT) was exempt from tax on capital gains arising from the sale of properties but not on interest earned from lending money. In Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation [1993] HCA 69; (1993) 178 CLR 145 the Court held that the income of a trust for the victims of accidents was “in equity … the income of the private citizens who are the beneficiaries of the trust … and in form … the income of the Registrar, in his capacity as trustee”. Therefore, a tax on the income was not a tax on the property of the State either in form or in substance. 545

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In the Fringe Benefits case, Mason, Brennan and Deane JJ remarked that this ordinary meaning interpretation “gives a powerful measure of protection to the financial integrity of a State without preventing the Commonwealth from taxing every form of trans­ action to which a State is a party”. State Treasurers may doubt that it actually gives the States a “powerful” protection, but it does give them some protection, and if the drafters had meant to give them more they quite failed to say so. In fact the section subjects those local governments where the Commonwealth occupies more land than average to a substantial and unfair burden. The Commonwealth has more recently recognised this and adopted a policy of making payments in lieu of rates. In particular, all Commonwealth Government Business Enterprises are required to do so by the Competitive Neutrality Policy Statement 1996.3

What agencies count as “the Commonwealth” or “a State”? [33.40] Clearly the ordinary executive Departments of the Commonwealth and States are immune from having their property taxed by the other level of government. However, parliaments also set up statutory bodies (“instrumentalities”) to perform government functions or even to provide services like banking and insurance. The question then arises — do these count as the Commonwealth or the State, as the case may be, for the purpose of s 114? In State Bank of NSW (above 33.30) the Court unanimously held at [20] that since: … the Constitution refers to the Commonwealth and the States as organizations or institutions of government in accordance with the conceptions of ordinary life, it must follow that these references are wide enough to denote a corporation which is an agency or instrumentality of the Commonwealth or a State as the case may be.

The question had nothing to do with whether the Bank was carrying on functions traditionally seen as governmental; it was “is the State carrying on banking through its statutory corporation, the State Bank?” Since the answer was clearly “yes”, the Bank was entitled to the immunity. On the other hand, when Suncorp was still a Queensland government-owned insurance company, its building society subsidiary SGH Ltd was held not to be a part of the State because some of its depositors held shares, Suncorp could not direct it to act in disregard of the interests of depositors, and its objects referred only to the interests of members and depositors: SGH Ltd v Commissioner of Taxation [2002] HCA 18; (2002) 210 CLR 51.

33.3 The early history of implied intergovernmental immunities, very briefly [33.50] In cases decided by the first three High Court Justices (Griffith CJ and Barton and O’Connor JJ), a doctrine of reciprocal immunities was said to be implied in the 3 See archive.treasury.gov.au/documents/275/PDF/cnps.pdf.

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Constitution — not implied in any specific features of the text, but implied by “necessity” from the federal structure. In D’Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91 their Honours held that a Tasmanian receipts duty could not apply to the receipt given by D’Emden for his salary as Deputy Postmaster-General. In Deakin v Webb [1904] HCA 57; (1904) 1 CLR 585 and Baxter v Commissioners of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087 the same three Justices held that the salaries of Commonwealth officers could not be subject to State income taxes. After hints in the earlier cases that the doctrine applied reciprocally, the Court confirmed that view in the Railway Servants’ case4 and held that “State instrumentalities” were immune from Commonwealth legislative power, or at least from the power under para 51(xxxv). Even as the Court was announcing these doctrines it was qualifying them almost to the point of contradiction. We have seen that in the Steel Rails case (above 33.30) the New South Wales government had to pay customs duty on its import of property. Griffith CJ remarked that a number of other powers of the Commonwealth were “of such a nature that [their] effective exercise manifestly involves a control of some operation of a State Government” and that then the doctrine would have no application. The joint judgment in the Engineers’ case (above 33.10) rejected these implications. The general dicta about the true principles of constitutional interpretation have been quoted at 8.20. As to the implication of the immunity of instrumentalities, Knox CJ and Isaacs, Rich and Starke JJ noted that they were allegedly derived from a principle of necessity, but declared that this was “itself referable to no more definite standard than the personal opinion of the Judge who declares it”. With Higgins J concurring, they held that State industrial enterprises were subject to the dispute-resolution (and award-making) process under the Commonwealth Conciliation and Arbitration Act 1904 (Cth). Though the main issue in the Engineers’ case related to the immunity of “instrumentalities”, its major permanent impact, as we saw in Chapter 17 and throughout Part D, came from its rejection of the kind of reasoning that supported the doctrine of State reserved powers. Ironically, it was the doctrine that was more specifically at issue in the Engineers’ case that was later partly revived. Dixon J (later CJ) led the way, with statements that were generally made obiter. In West v Commissioner of Taxation (NSW) [1937] HCA 26; (1937) 56 CLR 657 he said: Since the Engineers’ Case a notion seems to have gained currency that in interpreting the Constitution no implications can be made. Such a method of construction would defeat the intention of any instrument, but of all instruments a written constitution seems the last to which it could be applied.

The extremity of the particular implication that his Honour managed to find will be examined in the next section, along with the modern High Court’s “explanation” of his more extreme statements. However, the authority of the above statement is unchallenged. We met other implications made with its authority in Chapters 14 and 15. 4 Federated Amalgamated Government Railway & Tramway Service Association v New South Wales Railway Traffic Employees Association [1906] HCA 94; (1906) 4 CLR 488.

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33.4 The modern doctrine of implied immunities Protection of the executive capacities of the Commonwealth from State laws [33.60] In a line of cases after West, Dixon J took the process of implication to an extreme by attempting to revive an extremely strong immunity of the Commonwealth from State laws. In City of Essendon (above 33.30) he said at 22: “To describe the establishment of the Commonwealth as the birth of a nation has been a commonplace. It was anything but the birth of a taxpayer.” In Re Richard Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation [1947] HCA 45; (1947) 74 CLR 508 at 530 he suggested that since the Commonwealth was newly created by the Constitution, the continuation of the States’ former colonial powers gave them no power “to regulate the legal relations of this new polity”. In Commonwealth v Bogle [1953] HCA 10; (1953) 89 CLR 229 Fullagar J made a similarly extreme statement of the Commonwealth’s immunity from State laws at 259. In case this made it seem as if the Commonwealth was totally above the law, Dixon J qualified the immunity doctrine in Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (in Liq) [1940] HCA 13; (1940) 63 CLR 278 — while the Commonwealth was not generally subject to State statutes it could be “affected by the condition of the general law”. As the case was about competing claims of the Commonwealth and New South Wales as to the right to priority for their debts in the winding-up of a company, it was sufficient for his Honour to add that: “There is … a clear distinction between the general law, the content or condition of which, though a matter for the legislatures of the States, may incidentally affect Commonwealth administrative action, and, on the other hand, governmental rights and powers belonging to the Federal executive as such”. This emphasis on the fact that the Commonwealth’s prerogative rights could not be affected by State law was adopted by the majority in Commonwealth v Cigamatic Pty Ltd (in liq) [1962] HCA 40; (1962) 108 CLR 372. The above line of cases, or at least the broader dicta in them, seemed inconsistent with Pirrie v McFarlane [1925] HCA 30; (1925) 36 CLR 170 in which the Court had held, Isaacs J dissenting, that a member of the RAAF was subject to the Victorian law requiring drivers of vehicles to have a driver’s licence, even though he had been driving a RAAF car at the command of his superior officer. This only occurred because the Defence Act had no specific provision that would overrule the State law. It now makes provision for Defence drivers licences, which make the holding of a State one unnecessary. The apparent conflict among the cases was largely resolved, and the extremity of Dixon CJ’s approach somewhat watered down, in Re Residential Tenancies Tribunal of NSW and Henderson; Ex parte Defence Housing Authority (Defence Housing case) [1997] HCA 36; (1997) 190 CLR 410. Mr and Mrs Henderson had leased their house to the DHA, but were trying to enforce their rights under the Residential Tenancies Act 1987 (NSW). The majority of the Court held that the DHA was subject to the law (and that the State law was not inconsistent with anything in Commonwealth law). With Brennan CJ concurring, Dawson, Toohey and Gaudron JJ observed: 548

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It is necessary at the outset to observe a distinction between the capacities of the Crown on the one hand, by which we mean its rights, powers, privileges and immunities, and the exercise of those capacities on the other. In referring to the capacities of the Crown so defined, we are speaking of the same thing of which Dixon J spoke when he used the words “capacity or functions” in West v Commissioner of Taxation (NSW). … The purpose in drawing a distinction between the capacities of the Crown and the exercise of them is to draw a further distinction between legislation which purports to modify the nature of the executive power vested in the Crown — its capacities — and legislation which assumes those capacities and merely seeks to regulate activities in which the Crown may choose to engage in the exercise of those capacities. There is nothing in the principles recognised in Melbourne Corporation v Commonwealth or in any extrapolation of those principles to be found in the judgment of Dixon J in Uther or in the reasons of the majority in Cigamatic which would suggest that the Crown or its agents enjoy any special immunity from the operation of laws of general application, State or federal. Indeed, the contrary is affirmed. The rule of law requires such a result. In A v Hayden Murphy J described as elementary the principle that: The executive power of the Commonwealth must be exercised in accordance with the Constitution and the laws of the Commonwealth. The Governor-General, the federal Executive Council and every officer of the Commonwealth are bound to observe the laws of the land. Of course, the laws of the land are not confined to the laws of the Commonwealth but include the common law and the statute law in force in each of the States. … Whilst the principle that executive power must be exercised in accordance with the law applies to both Commonwealth and State governments, the Commonwealth enjoys a paramount position within its area of legislative competence because of s 109 of the Constitution. A valid Commonwealth law will prevail over any inconsistent State law. Thus, if there had been a law validly enacted under the defence power relieving servicemen of the obligation to hold drivers’ licences when acting in the execution of their duties, the result in Pirrie v McFarlane would have been different.

Due to the great respect that Dixon CJ commands, the above passage is expressed as a deferential explanation of his words in the earlier cases. However, it really amounts to a strong qualification of — in fact, a retreat from — the extremity of his views. As suggested in 33.10, the rule now is that the rule of law prevails even when the issue is whether the Commonwealth is subject to a State law, unless the federal nature of the Constitution really demands an exception. This more general subjection of the Commonwealth to law from all sources is in line with the developments as to the recognition of the effect of s 64 of the Judiciary Act 1903 (Cth) discussed in 11.70, as well as the “eclipse” of general “Crown” immunity discussed in 11.80–11.90. Of course the Commonwealth always has the benefit of s 109 and the power to “immunise” its activities from State law, as recognised in the last paragraph of the extract above. For this reason a broad implied immunity seems simply unnecessary. 549

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Protection of the existence and functions of the States from curtailment by Commonwealth laws [33.70] After the Engineers’ case (above 33.10) the power of the Commonwealth commenced its inexorable growth at the expense of the States. In the First Uniform Tax case (South Australia v Commonwealth [1942] HCA 14; (1942) 65 CLR 373) the States protested that the scheme would diminish their powers and Latham CJ conceded that that was true. But, he added: … it cannot be denied that Commonwealth legislation may be valid though it does in fact weaken or destroy, and even is intended to weaken or destroy, some State activity. Sec 109 shows that this must be so in many cases. Commonwealth laws have in fact put an end to the existence of State Courts of Bankruptcy and State Patent, Trade Mark and Copyright Departments. The Commonwealth laws are not invalid on that account. They have produced the results stated just because they are valid.

In Melbourne Corporation v Commonwealth (State Banking case) [1947] HCA 26; (1947) 74 CLR 31, however, a limit was established. A section of the Banking Act 1945 (Cth) had provided that a bank could not conduct banking business for a State or a local government without the consent of the Treasurer, and the Treasurer had given notice that he was about to specify that only the Commonwealth Bank could provide banking for the City of Melbourne. The majority, McTiernan J dissenting, held that the section was invalid. The majority Justices cited American case law that supported the notion that in a federation “neither government may destroy the other nor curtail in any substantial manner the exercise of its powers”. In addition, Dixon J emphasised that the law discriminated against the States: There is thus a law directly operating to deny to the States banking facilities open to others, and so to discriminate against the States or to impose a disability upon them. The circumstance that the primary prohibition is laid upon the banks and not upon the States does not appear to me to be a material distinction. It is just as effectual to deny to the States the use of the banks and that is its object.

However, his Honour had remarked earlier that a rule against the imposition of special burdens upon the States applied particularly to the federal taxation power. Latham CJ observed that he found it difficult to understand “how ‘discrimination’ in a precise sense can be shown in a law applying only to one person or class of persons in respect of a particular subject matter”, and held that: [T]he reason why such legislation is invalid is that what is called “discrimination” shows that the legislation is really legislation by the Commonwealth with respect to a State or State functions as such and not with respect to the subject in respect of which it is sought to bind the State … It is upon this ground, in my opinion, that what is called “discriminatory” legislation may properly be held to be invalid.

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The next case, Victoria v Commonwealth (the Payroll Tax case) [1971] HCA 16; (1971) 122 CLR 353 involved taxation, as the name implies, so according to Dixon J’s remark, above, the discrimination point was particularly relevant. As the payroll tax, then imposed by the Commonwealth,5 applied equally to all employers including the States, it neither discriminated against them nor curtailed the exercise of their powers, and so the challenge failed. The issue was also raised in the series of environmental protection cases mainly dealing with the external affairs power (Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 and Richardson v Forestry Commission [1988] HCA 10; (1988) 164 CLR 261) but, although the existence of some limit on Commonwealth power was accepted, the Court held that it had not been breached in either case. The suggested prohibition of laws that discriminate against the State governments was applied to strike down a law in Queensland Electricity Commission v Commonwealth [1985] HCA 56; (1985) 159 CLR 192. In order to promote the resolution of a strike in the Queensland electricity industry, the Commonwealth Parliament had inserted a section in the Conciliation and Arbitration Act 1904 (Cth) providing that disputes with Queensland electricity authorities were to be heard by a Full Bench of the Conciliation and Arbitration Commission, rather than a single Commissioner, and that the usual provisions about deferring to a State arbitration body if it was handling the dispute did not apply. This was the case in which Mason J summed up the previous law in terms often quoted: [T]he principle is now well established and … it consists of two elements: (1) the prohibition against discrimination which involves the placing on the States of special burdens or disabilities; and (2) the prohibition against laws of general application which operate to destroy or curtail the continued existence of the States or their capacity to function as governments …

The Court unanimously held that the amending Act was invalid on the discrimination ground, though it clearly did not threaten the State’s capacity. The “curtail the capacity” ground was applied to limit the scope of Commonwealth industrial awards in Re Australian Education Union; Ex parte Victoria [1995] HCA 71; (1995) 184 CLR 188. In a joint judgment Mason CJ and Brennan, Deane, Toohey, Gaudron and McHugh JJ confirmed earlier suggestions that a State could be made generally subject to an award as to the terms of employment of its public servants (see 18.190), but that there were limits. A redundancy clause could not be included, because that could interfere with the State’s power to control its budget, and there was a further limit: … also critical to a State’s capacity to function as a government is its ability, not only to determine the number and identity of those whom it wishes to engage at the higher levels of government, but also to determine the terms and conditions on which those persons 5 The Commonwealth abandoned payroll tax in 1971 and invited the States to impose it instead, as a small step towards reducing Vertical Fiscal Imbalance.

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shall be engaged. Hence, Ministers, ministerial assistants and advisers, heads of departments and high level statutory office holders, parliamentary officers and judges would clearly fall within this group.

Two more recent cases have now cast doubt on the separate existence of the “discrimination” limb, as well as protecting States’ control over the conditions of judges and Members of Parliament. In Austin v Commonwealth [2003] HCA 3; (2003) 215 CLR 185 a Commonwealth law imposed a tax on State judges by reference to a purelynotional annual value of superannuation benefits they were prospectively receiving from the States. The Court (Kirby J dissenting) held it invalid, because it could make it more difficult for the States to attract judges, though their Honours’ analyses differed. Gaudron, Gummow and Hayne JJ held that there was no separate “discrimination” limb, though the existence of a special burden on the States could lead to a conclusion that their capacity to function was being attacked, and indeed did so in this case. Kirby J (in dissent) agreed, and French CJ seems to have agreed (“discrimination is an aspect of a wider principle”), while McHugh J argued that the precedents clearly demonstrated its existence but conceded that perhaps little turned on the point. The test suggested in the joint judgment — “whether, looking to the substance and operation of the federal laws, there has been, in a significant manner, a curtailment or interference with the exercise of State constitutional power” — was applied in Clarke v Commissioner of Taxation [2009] HCA 3; (2009) 236 CLR 573 where the superannuation surcharge law (amended after Austin v Commonwealth), was held not to validly apply to Members of State Parliaments. As Dixon J observed in the State Banking case, “the subject has no vocabulary of technical terms possessing a precise and settled connotation and the use of expressions of indefinite and variable meaning is unavoidable”. That is, we are possibly doomed to living with competing formulations of the basis and precise extent of the States’ immunity, and with the suspicion that the judges’ decisions as to whether a particular law goes too far is simply a matter of impression. However, away from the borderline, wherever that may be, there are clear cases. Jacobsen v Rogers [1995] HCA 6; (1995) 182 CLR 572 involved an argument as to whether search warrants issued under Commonwealth law could be exercised against State premises. As the case occurred before the High Court’s announcement that the presumption against binding the Crown had been “eclipsed” (see 11.90), most of the argument turned on whether an intention to bind the Crown was to be found in the Act. Having established that the Act bound the Commonwealth executive, the joint majority judgment tersely concluded at [20] that: Once it is seen that the Commonwealth intended by s 10 to bind its own executive government, there is no reason to suppose that it did not intend to bind the executive governments of the States. To reach any other conclusion would suggest that the Commonwealth intended to curtail the investigation and prosecution of offences against its laws where the States are concerned but not where the Commonwealth itself is concerned. In the enactment of s 10 the legislature must be taken to have relied upon the full extent of its legislative power which, by virtue of s 109 of the Constitution, prevails over any conflicting State legislation.

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No argument as to State immunity was seriously explored. In everyday matters it is now taken for granted that the States are subject to Commonwealth law. It is noteworthy that in Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168, Queensland demurred to Koowarta’s claim that the government’s refusal to transfer land to his group breached the Racial Discrimination Act 1975 (Cth), on the ground that the Act was outside the legislative power of the Commonwealth, but made no reference to any more general claim of immunity from Commonwealth laws.6 Cross-reference: The issue in this Chapter, as to whether a State as body politic can sometimes be immune from a Commonwealth law, is of course quite distinct from the issue of whether a Commonwealth law discriminates between States or part of States as geographic areas. That issue is discussed in section 23.2.

ISSUES FOR DISCUSSION 1. Is it fair that the Commonwealth, with its access to funds, should be immune from paying rates to councils for real property that it owns or occupies? If it were to withdraw the voluntary payments in lieu of rates, can you think of any argument that would prevent s 114 from protecting it, or would a constitutional amendment be the only cure? 2. Since the Commonwealth has a large range of legislative powers, and the advantage of s 109, does it need any protection by way of giving it an implied immunity?

FURTHER READING Anthony Gray, “Immunity of the Crown From Statute and Suit” (2010) 9 Canb LR 1 Amelia Simpson, “State Immunity from Commonwealth Laws: Austin v Commonwealth” [2011] UNSW Law Research Series 47, at www.austlii.edu.au/au/journals/ UNSWLRS/2011/47.htm Anne Twomey, “Federal Limitations on the Legislative Power of the States and the Commonwealth to Bind One Another” (2003) 31 Fed L Rev 507

6 See the procedural history recited, for example, by Gibbs CJ at 177.

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CHAPTER 34

Independence of State and Territory Courts and Judges 34.1 Context and overview [34.10] We saw in 27.70 that the doctrines currently governing the “internal” constitutional law of the States do not include an enforceable separation of powers. We also saw in 27.80 that even if a State Constitution seems to guarantee the tenure of judges it can be overridden by a later Act that appoints a judges for a limited term, though it was tentatively suggested in 27.170 that “doubly-entrenched” sections referring to dismissal only on the petition of both Houses of Parliament may be binding. However, the State courts have a federal role; under ss 71 and 77 of the Commonwealth Constitution, the Commonwealth can invest the State courts with federal judicial power. We have already seen two consequences of this. In 26.110 we saw that, for quite some time, the High Court has held that when the Commonwealth invests the State courts with federal power it must “take them as it finds them”. As to the effect on State laws, in 11.130 we noted that the references to Supreme Courts in the Constitution imply that Supreme Courts with the jurisdiction that existed in 1901 must continue to exist, and that this includes their full jurisdiction to grant administrative law remedies, unfettered by “privative” clauses: Kirk v Industrial Relations Commission [2010] HCA 1; (2010) 239 CLR 531. Another doctrine affecting State laws has been developed since 1996. For the courts to remain appropriate “repositories” of federal power, the State Parliaments cannot foist inappropriate powers on the State courts or limit their independence. That is the topic of this Chapter.

34.2 The impact of the Commonwealth Constitution on State courts — first statement [34.20] It had in fact been suggested even before 1996 that there was something in the essential nature of State courts that could not be altered by legislation, without making 555

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them inappropriate recipients of federal power. In Kotsis v Kotsis [1970] HCA 61; (1970) 122 CLR 69, Barwick CJ had observed that “the reference to the Supreme Courts of the States in ss 73(ii) and 77(iii) is to the then highest court in the judicial hierarchy of the State composed entirely of judicial officers, known generally as judges”, and that if this composition were to be changed in a “radical” way the Supreme Courts “would not satisfy, in my opinion, the references in the Constitution to the Supreme Courts of the States”. His Honour did not say whether the “radical” changes would be valid within the State jurisdiction but that the changed courts could not play a part in the federal system, or whether the changes would be invalid for contravening the implication in the Constitution that there must something in each State still recognisable as a Supreme Court. In Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 the majority of the Court drew the latter conclusion. Kable involved a challenge to an unusual Act. Gregory Kable, in gaol for the manslaughter of his wife, had been making threats against the witnesses at his trial that alarmed the authorities, so the New South Wales Parliament enacted the Community Protection Act 1994 (NSW). It provided that, on application by the Director of Public Prosecutions, a specified person could be detained in prison if the person was more likely than not to commit a serious act of violence and the detention was appropriate for the protection of the community. The order would be effective for six months but the DPP could apply for another order as the first one was about to expire. As originally drafted, the Act was in general terms so that it could apply to any person who would be dangerous upon release, but in response to concerns on civil-libertarian grounds, some sections were amended in its passage through Parliament to apply only to Kable. In particular, the objects section was amended to provide: The object of this Act is to protect the community by providing for the preventive detention (by order of the Supreme Court made on the application of the Director of Public Prosecutions) of Gregory Wayne Kable.

Kable had already served one six-month period of detention. When the DPP applied for the detention to continue, Kable not only defended the application successfully, but belatedly challenged the validity of the Act. The High Court held, by a 4:2 majority, that it was invalid.1 Gaudron, McHugh and Gummow JJ all agreed that since the Commonwealth Parliament can invest the courts of the States with federal judicial power under ss 71 and 77, “Ch III of the Constitution impliedly prevents the Parliament of a State from conferring powers on the Supreme Court of a State which are repugnant to or inconsistent with the exercise by it of the judicial power of the Commonwealth” (per Gaudron J at [2]), and “no State or federal parliament can legislate in a way that might undermine 1 Kable, naturally enough, then sued the State for false imprisonment. The case progressed slowly through the court hierarchy, and finally in June 2013 the High Court ruled that the original judicial order prolonging his imprisonment had been valid until set aside, and therefore Kable’s detention had been lawful: NSW v Kable [2013] HCA 26; (2013) 252 CLR 118.

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the role of those courts as repositories of federal judicial power” (per McHugh J at [19]). Therefore something very similar to the “incompatibility” test from Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 (see 26.50) applied. Toohey J held that since Kable had raised the constitutional argument, the State Court had actually been exercising federal judicial power, and therefore the Grollo test applied directly. Since that will apply any time a party to a purely State matter raises a claim that a law breaches the Commonwealth Constitution, such a condition will always be satisfied; it has therefore been accepted in later cases that it is not an additional requirement. As to why the Act failed the standard now set for State laws, all four majority judges placed emphasis on the fact that the Act provided for detention without proof of guilt (compare Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1, discussed in 25.60), and was therefore giving the court a prohibited non-judicial power. Toohey and McHugh JJ also emphasised the stated object of the Act, to provide for Kable’s detention. Gaudron J also noted that the Act applied only to Kable and that it contained a mixture of inconsistent provisions, some of a civil and some of a criminal nature. McHugh J commented on the government and Parliament’s apparent intention at [30]: [T]hose who initiated and passed the Act plainly expected and intended that the imprisonment of the appellant would continue after the expiration of his sentence for the manslaughter of his wife. The object of the Act, its ad hominem nature and the grounds and method of proof of the s 5 order together with the provision for s 7 interim orders leave no other conclusion open. Why else would the executive government have introduced legislation into the Parliament which is directed only to the appellant and which expressly states that its object is to protect the community by providing for the detention of the appellant unless the government intended that he should be kept in prison?

Although his Honour remarked that nobody who had read the judgments in response to the DPP’s two applications could doubt the independence and impartiality of the judges, its validity had to be assessed as at the time of its enactment, and the above indications of its intended effect made it invalid.

34.3 A period of consolidation and second thoughts [34.30] As we saw in Chapter 14, after the High Court has announced a new principle, there is commonly a period in which, depending on one’s point of view, the court becomes overcautious about applying it beyond the facts of the first case, or litigants try to push the principle too far and deservedly fail. This certainly happened after Kable. There was one case in the decade after Kable in which the Kable principle was used to strike down a law. In Re Criminal Proceeds Confiscation Act 2002 [2003] QCA 24; [2004] 1 Qd R 40, s 30 of the Act in question required the Supreme Court to hear an application for an order dealing with alleged proceeds of crime in the absence of the property owner (who might be the alleged criminal or an innocent third party). The owner could then 557

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apply to have the order varied, but the onus of proof of the significant facts was on the owner. The Court of Appeal held that this was so different from the usual procedure for obtaining ex parte orders for the preservation of property pending litigation that it “so interfere[d] with the essential character of the exercise of judicial power as to make the provision invalid”. However, in other cases Kable was distinguished. In H A Bachrach Pty Ltd v Queensland [1998] HCA 54; (1998) 195 CLR 547 an Act had been passed to specifically allow the development of a shopping centre, making an objector’s planned appeal to the Supreme Court futile. The High Court held that this was a simple application of the principle that legislatures can change the law, even if that affects pending litigation or appeals from decisions of the lower courts (compare 26.140). Such a law would be valid even if enacted by the Commonwealth Parliament (unlike the BLF case discussed in 26.140, it did not directly interfere with the case before the Supreme Court), and therefore it was valid when enacted by a State Parliament. This was followed in Duncan v Independent Commission Against Corruption [2015] HCA 32; (2015) 256 CLR 83 (also noted as to retrospectivity in 13.80), where French CJ and Kiefel, Bell and Keane JJ cited H A Bachrach and the cases discussed at 26.140 and concluded, at [26], that: “It is now well settled that a statute which alters substantive rights does not involve an interference with judicial power contrary to Ch III of the Constitution even if those rights are in issue in pending litigation.” In Silbert v DPP (WA) [2004] HCA 9; (2004) 217 CLR 181, another confiscation of criminal proceeds law was challenged. The Western Australian version provided that a person who had died before a charge of serious crime had been resolved was deemed to have been convicted. However, the court was not to make a confiscation order unless satisfied beyond reasonable doubt that the person had committed the offence. The task left to the court was therefore not antithetical to the exercise of judicial power. Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 involved New South Wales legislation that had first allowed prisoners sentenced to life imprisonment to apply for a fixed non-parole period, and then been amended to withdraw that right from some who had committed particularly serious crimes unless they could show “special reasons”. It was challenged on a variety of grounds, not all consistent with each other, that the majority rejected. Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575 was another case regarding preventative detention. The Queensland drafters had learned from the mistakes of the New South Wales Parliament, so the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) was worded to apply to “a particular class of prisoner” (those convicted of sexual offences against children), even though it was known that it had been enacted specifically in response to the imminent release of Fardon. The dangerousness of the prisoner’s release had to be determined “by cogent evidence to a high degree of probability” — not quite the criminal standard of proof but certainly higher than the balance of probabilities required in the Kable legislation. The Court, Kirby J dissenting, held that the Act was valid. As well as relying on the differences in drafting, the reasons also showed a shift in the Court’s approach to extended detention at the end of a term of 558

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imprisonment. The majority now accepted that the assessment of future “dangerousness” was quite a common judicial task that arose in bail applications, apprehended violence orders and other cases. The Justices who discussed Kable now explained it in terms of the Act having been ad hominem legislation, and observed that there were many exceptions to the “detention only as punishment” principle and that the judiciary could be given the power to order detention for a further term after punishment without breaching the Kable principle. As to just what that principle was, Callinan and Heydon JJ cited various formulations from Kable, variously emphasising the integrity of the judiciary as an institution, or the appearance of impartiality. Gleeson CJ said at [23] that: In some of the reasons in Kable, references were made to the capacity of the legislation there in question to diminish public confidence in the judiciary. Those references were in the context of a statute that was held to impair the institutional integrity of a court and involve it in an ad hominem exercise.

McHugh J explained at [35] that the Act was valid because: Nothing in the Act gives any ground for concluding that it impairs the institutional capacity of the Supreme Court to exercise federal jurisdiction that the Federal Parliament has invested or may invest in that Court.

His Honour added at [43] that: Kable is a decision of very limited application. That is not surprising. One would not expect the States to legislate, whether by accident or design, in a manner that would compromise the institutional integrity of their courts.

In Baker, decided on the same day as Fardon, Kirby J remarked at [54] that Kable was being treated “as a constitutional guard-dog that would bark but once”. However, though the range of application had been limited, the principle had not been overruled and was still alive, to bark another day.

34.4 Application to the tenure of State and Territory judges [34.40] In 2004–2006, there were two cases that focused not on the powers given to State judicial officers, but on their tenure, and indeed the tenure of Territorial judicial officers as well. Prior to North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; (2004) 218 CLR 146, the previous Chief Magistrate of the Northern Territory had resigned, and Bradley, not certain that he wanted the job for a long term, accepted appointment on the basis that he would serve for only two years. Although the appointment specified no term, a determination of his rate of payment was made for two years only. The Legal Service argued that his independence from the government would be hampered by the fact that he would have to renegotiate his pay if he wanted to serve for more than two years. A joint judgment of six Justices accepted, as if self-evidently true, 559

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the Legal Service’s arguments that: (i) a Territory court could exercise the judicial power of the Commonwealth; and (ii) a court capable of exercising the judicial power of the Commonwealth should be, and appear to be, an independent and impartial tribunal. Having thus established that the Kable principle applied not only to State courts but to Territorial courts, and not only to Supreme Courts but to magistrates, their Honours then applied the “interpretive principle of constitutional conformity” referred to in 8.60, and managed to interpret the Magistrates Act 1977 (NT) to comply with the Kable principle. They noted that the Act had the objectives of making it clear that magistrates were independent of the Public Service and of also giving them independence and security of tenure, and therefore interpreted it to mean that the Administrator would be obliged to make a new determination of Bradley’s salary should he decide to continue in office, even though it said nothing of the sort. They observed that the determination of “the permitted minimum criteria for the appearance of impartiality” was difficult, but on their interpretation of the Act, were satisfied that the criteria were met in this case. The Court again avoided specifying the minimum criteria in Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45. After an acting judge of the Supreme Court of New South Wales had held that Forge and others had committed breaches of the Corporations Law, Forge argued that the appointment of the acting judge was invalid in that it compromised the independence of the Court. The New South Wales government had indeed been relying heavily on appointments of acting judges to keep the Supreme Court functioning; the 44 tenured judges on the Court had been supplemented by 20 appointments of acting judges in the one year. However, unlike the practice in earlier decades of appointing barristers for a short term, the government was now appointing retired judges. It may be thought that, already having a pension, they would feel less pressure to keep the government happy by making favourable decisions than some barristers might feel. Kirby J, however, felt at [124] that the practice made the Court as a whole “beholden to the Executive for regular short-term reappointments of core numbers of the judiciary”, simply so that the Court could continue to function. By a 6:1 majority, Kirby J dissenting, the High Court rejected Forge’s argument. Gummow, Hayne and Crennan JJ reasoned that the strict tenure requirements of s 72 did not apply to State courts, and at [93] that: “The institutional integrity of State Supreme Courts is not inevitably compromised by the appointment of an acting judge”. They observed, however, at [93], that: … the institutional integrity of the body may be distorted by such appointments if the informed observer may reasonably conclude that the institution no longer is, and no longer appears to be, independent and impartial as, for example, would be the case if a significant element of its membership stood to gain or lose from the way in which the duties of office were executed.

In both cases the principle of impartiality had been confirmed, although the legislation was not held to have necessarily impaired it. No doubt counsel are now keeping statistics on acting judges to confirm that they show no bias towards the executive 560

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government. If any should show bias, even in State matters, it would certainly make the particular judges inappropriate to sit on federal cases and may make the vesting of federal powers in the court as a whole less appropriate.

34.5 The dog regains its bark — cases on criminal gangs [34.50] In recent years, as evidence and rumours of the involvement of “bikie” gangs in organised crime have accumulated, State Parliaments have resorted to increasingly strict — some would say draconian — legislation to control them. The laws have focused on the compulsory dismantling of fortified headquarters and on forbidding members to meet each other, and have been attacked as a breach of fundamental rights, especially the freedom of association. However, we do not have a Bill of Rights in this country and, as shown in the discussion of Tajjour v New South Wales [2014] HCA 35; (2014) 254 CLR 508 (see 12.160) the fact that a law is allegedly in breach of the International Covenant on Civil and Political Rights is not a ground of invalidity. In any case, article 22 of the ICCPR, after stating a general guarantee of freedom of association, permits restrictions on its exercise “which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others”. A law preventing meetings of gang members might well satisfy the qualification, if drafted with more specificity than the gang laws enacted so far. However, in an attempt to make everything seem fair and reasonable, the legislation has usually involved the judiciary in the making of some of the orders, and then it has sometimes excessively directed judges as to how to carry out their duties, in breach of the Kable doctrine. As a result, many provisions of the Acts have been held invalid or only saved from invalidity by generous interpretation. Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 was discussed as an example of such “interpretation” in 8.60; an Act appeared to prevent judicial review of a declaration by the Commissioner of Police that information should be kept confidential, and to prevent any reference to the information by the court, but the High Court read the provisions down. A South Australian Act challenged in K-Generation Pty Limited v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 also involved secrecy provisions, but in this case the Act said the court “must take steps” to maintain the confidentiality of criminal intelligence, but left it to the court to decide what steps to take. The High Court unanimously held that it was valid. Several cases followed in which the High Court held that State laws had interfered too much with the independence of the judiciary, either generally or in respect of specific incidents of the usual exercise of judicial power. The Serious and Organised Crime (Control) Act 2008 (SA), challenged in South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1, blatantly directed a judge to make an order in certain circumstances. First, the Attorney-General could “declare” an organisation if he or she was satisfied that: (a) its members engaged in serious criminal activity; and (b) the organisation represented 561

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a risk to public safety and order. Then s 14 provided that the court must, on application by the Commissioner, make a control order against a person if the court was satisfied that the person was a member of a declared organisation. All that had to be proved in the court hearing was that the person was a member, not that the Commissioner’s declaration was supported by facts or that the member was involved in the criminal side of the gang’s activities. A control order prohibited the person from associating with other persons who were members of declared organisations, possessing weapons, etc. By 6:1, Heydon J dissenting, the High Court held that the law was “enlisting” the Court to implement executive decisions, with no real power to decide the person’s guilt on the evidence. Two other cases involved rather more narrow interferences with specific aspects of the usual judicial task, but were still held invalid. The Criminal Assets Recovery Act 1990 (NSW) provided that the Crime Commission could apply for a restraining order on property probably acquired by crime; it could apply ex parte and the Supreme Court must grant the order if satisfied of reasonable grounds for suspicion that the property was proceeds of crime. The Act had no specific provision for a person subject to an order to quickly apply for its discharge; a lengthy process was prescribed for getting control of the property back, with the onus of proof on the applicant. In International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 the majority held that this was invalid — the Court was deprived of its power to ensure fairness between parties, and that was “repugnant” to the judicial process. Heydon J concluded at [165] that the legislation did not “take the Supreme Court as it found it”, apparently extending the requirement imposed on the Commonwealth Parliament (see 26.110) to the State Parliaments. The dissenters (Hayne, Crennan and Kiefel JJ) held that the ability to apply promptly for discharge of an order could be implied from general principles, despite the absence of a specific provision in the Act. In Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181, New South Wales legislation attempted to avoid the application of the Kable doctrine, apparently understood by the drafters to apply only to courts as institutions, by empowering a judge, as persona designata, to declare an organisation to be one that engaged in criminal activity, and then to make control orders. In this case the flaw was that the judge was not required to give reasons. The majority held that the giving of reasons is an essential feature of judicial office, whether the judge is sitting as part of a court or as persona designata. The next case again showed the capacity of the Queensland drafters to learn from the mistakes of others. Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 involved a challenge to the Criminal Organisation Act 2009 (Qld). It was similar to the Act challenged in Totani, but involved the Supreme Court in both making the declaration that an organisation was a criminal organisation and in making control orders It also had echoes of the Act discussed in Gypsy Jokers, in that evidence declared to be “criminal intelligence” could be kept secret, but the Police Commissioner did not make the declaration himself; he had to apply to the Court. If the information was declared to be criminal intelligence, it was to be heard in closed court, with the respondents excluded. The High Court held that it was valid, as the Court would keep control of 562

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the proceedings at all times. At [88] French CJ conceded that the provisions for closed hearings and the secrecy attaching to criminal intelligence “undoubtedly represent incursions upon the open court principle and procedural fairness”, but noted: The Supreme Court, however, retains its decisional independence and the powers necessary to mitigate the extent of the unfairness to the respondent in the circumstances of the particular case. It retains the responsibility to determine what weight, if any, to give to criminal intelligence and, in particular, hearsay evidence relating to information provided by informants.

Both French CJ and Gageler J showed particular concern about the possibility that evidence might be declared to be secret criminal intelligence in one hearing and then later used as evidence in a closed hearing for the making of control orders, but relied on the Supreme Court’s power, preserved by Chapter III of the Constitution, to control its own proceedings to avoid unfairness. Gageler J perhaps expressed it the more strongly, at [177]: Procedural fairness has a variable content but admits of no exceptions. A court cannot be required by statute to adopt a procedure that is unfair. A procedure is unfair if it has the capacity to result in the court making an order that finally alters or determines a right or legally protected interest of a person without affording that person a fair opportunity to respond to evidence on which that order might be made.

After that reminder, one may wonder if any judge will be prepared to issue a control order supported only, or mainly, by secret criminal intelligence. After a widely-publicised “bikie brawl” on the Gold Coast, the Queensland Parliament cast caution in drafting to the wind and passed a further suite of laws,2 which applied to members of “criminal organisations”. The definition of criminal organisation had three paragraphs, two of which were in objective language and would be determined by a court, but then there was also a provision that allowed a Minister to declare an entity to be a criminal organisation by regulation. Some provisions drastically increased the penalties for a range of offences, if the convicted person was a member of a criminal organisation; for an office-bearer of a gang, 25 years would be added to the sentence, even if the maximum sentence for the offence was only six months.3 A second group of provisions made it an offence for two or more members of a criminal organisation to be together in a public place, or a prescribed place including a gang headquarters, or to wear gang insignia in licensed premises. A third group reversed the onus of proof for such persons when seeking bail. A member of the Hell’s Angels challenged the provisions in Kuczborski v Queensland [2014] HCA 46; (2014) 254 CLR 51. As the second group of 2 One had the short title of the Vicious Lawless Association Disestablishment Act 2013 (Qld) (the “VLAD Act”). The drafters presumably meant “dissolution” or “disassociation”, and were apparently ignorant of the fact that “disestablishment” has usually been reserved for the act of withdrawing the “established” status of a religious body, in the sense referred to in s 116 (see 24.90). 3 VLAD Act, s 7.

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provisions could have an immediate effect on the plaintiff ’s freedom of action, he had standing to challenge them. By a 6:1 majority, the Court held that the provisions did not breach the Kable principle. Crennan, Kiefel, Gageler and Keane JJ remarked, at [235]–[238], that the laws were expressed in “tendentious language” but that the language concealed their true legal effect; unlike the effect of a declaration in Totani, the executive declaration of a body as a criminal organisation was only “to establish an ingredient of an offence, the contravention of which must still be proved in the ordinary way”, and there were defences available by which the defendants could contest the accuracy of the declaration. The fact that the defences involved a reversal of the onus of proof did not breach the Nicholas principles (see 26.120). French CJ and Bell J concurred. Hayne J dissented, holding, at [116], that the provision of the three different paths to establishing that an entity was a criminal organisation treated an executive proclamation as equivalent to a judgment of the courts. Since the plaintiff, not having been charged with any offence, was held not to have standing to challenge the first or third groups of provisions, as noted in 7.40, the gang members would have to wait until someone was charged to challenge them. Such a challenge would test the limits of the principles underlying Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381, discussed in 26.130. Having found no interference with judicial power in an Act imposing a five-year minimum sentence, the court would be asked to extend the principle to one imposing a 25-year minimum on some persons for their association with, and leadership of, other persons.

34.6 Jurisdiction of State industrial tribunals [34.60] While the gang cases were helping to draw boundaries around the Kable principle, it arose in other kinds of cases as well. Two cases involved State laws limiting the discretion of State industrial tribunals. For a century the States have had their own industrial arbitration tribunals and industrial courts to hear matters that are not in the federal arbitral jurisdiction. They still exist, though since the referral of power over disputes in private enterprise, noted in 18.140, their jurisdiction has been limited to State public servants and local government employees. In some States the arbitral tribunals and courts have had overlapping memberships; in New South Wales the judicial functions are actually vested in something called “The Commission in Court Session”, and although s 151A of the Industrial Relations Act 1996 (NSW), added belatedly in 2004, provides that its name is to be the “Industrial Court of New South Wales” all other references to it in the Act defy that provision and still refer to it as the “Commission in Court Session”. The penal provisions of the Industrial Relations Act 1996 (NSW) are to be enforced in an “industrial court”, meaning either the “Commission in Court Session” or an Industrial Magistrate.4 Until the Kable doctrine was announced it was assumed that the Boilermakers doctrine discussed in 26.50 did not apply to the States and that 4 Industrial Relations Act 1996 (NSW), s 356.

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therefore the overlapping membership was not a problem. The announcement of the Kable principle of course cast doubt on that assumption. When the New South Wales Parliament inserted a new subsection 146C(1) into the Industrial Relations Act 1996 (NSW), providing that the Industrial Relations Commission must “give effect to any policy … that is declared by the regulations to be an aspect of government policy that is required to be given effect to by the Commission” when making or varying any award or order, the public service unions challenged its validity, alleging a breach of the Kable principles. In Public Service Association and Professional Officers’ Association Amalgamated of NSW v Director of Public Employment [2012] HCA 58; (2012) 250 CLR 343 (PSA/POA), the High Court rejected the challenge. Although the drafting of the new section was perhaps unwise in referring to “government policy”, French CJ noted at [45] that the effect was simply, and unexceptionally, a case of the Commission being required to apply the law. The other Justices agreed. Heydon J observed that the new section was “a perhaps excessively colourful and triumphalist grant of regulation-making power. But it is no more than a grant of regulation-making power”. In Queensland a similar change had been made to the Industrial Relations Act 1999 (Qld). In Australian Workers’ Union of Employees, Queensland v Queensland [2012] QCA 353; [2014] 1 Qd R 257 a challenge was rejected for similar reasons. Five of the Justices in PSA/POA observed that there was nothing necessarily wrong with a State law that created a mixed arbitral/judicial body; indeed the Union had not challenged it on that basis.5 It seems, however, that the potential still exists for a challenge on a basis not pressed in the case. As noted above, the Kable principle is either derived from the principle in Grollo (see 34.20 above) or is very similar to it, and one of the kinds of incompatibility noted in Grollo was “a permanent and complete … commitment to the performance of non-judicial functions” (which indeed was the flaw in the old Commonwealth “Court” of Arbitration exposed in Boilermakers). In a challenge, not to the arbitral functions of a State Commission but to the penal powers of the “Commission in Court Session” it may still be arguable that a State “court” cannot be a part-time court, as to spend most of its time as a non-court impairs its institutional integrity or the appearance of it. The New South Wales government may have awoken to this possibility; it has announced its intention to abolish the Industrial Court and transfer its jurisdiction to the State’s Supreme Court.6

34.7 Other criminal laws — extending sentences, forfeiture again, and “paperless arrests” [34.70] While the gang cases proceeded, the Queensland and Northern Territory ­Parliaments continued to enact laws that tested the borders of the Kable principle, and 5 French CJ at [36], Hayne, Crennan, Kiefel and Bell JJ at [57]. 6 See www.smh.com.au/business/workplace-relations/nsw-government-to-integrate-industrial-court-withsupreme-court-20160823-gqytdk.html.

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plaintiffs continued to try to use the principle as an indirect way of preventing breaches of human rights. After serving several periods of extended detention, in 2013 Robert Fardon (see 34.30 above) finally persuaded a judge that it would be safe to release him under a strict supervision order. The Parliament promptly passed the Criminal Law Amendment (Public Interest Declarations) Amendment Bill 2013, providing that if an application for the further detention of a sex offender is refused by the Court, the Attorney-General can make one instead. It was just as promptly held invalid in A-G (Qld) v Lawrence [2013] QCA 364; [2014] 2 Qd R 504, where the Court of Appeal held that it was repugnant to the institutional integrity of the Court to ask it to make an order with the threat of an override by the Attorney-General hanging over it. In Attorney-General (NT) v Emmerson [2014] HCA 13; (2014) 307 ALR 174, on the other hand, the challenged law was perfectly valid. The law was a forfeiture provision rather like those in Re Criminal Proceeds Confiscation Act 2002 and Silbert, discussed above in 34.30. However, it came on appeal from the Northern Territory where there is a “statutory para (xxxi)” in s 50 of the Northern Territory (Self-Government) Act 1978 (Cth), demanding just terms for the acquisition of property. Emmerson had been convicted of drug trafficking and had been subject to a forfeiture order under the Misuse of Drugs Act (NT). Although the Northern Territory Supreme Court held that the forfeiture provision itself was valid, the majority (Riley CJ dissenting) held that it was so harsh that it effectively “recruited” the Court to give effect to legislative policy. A 6:1 majority of the High Court unanimously held that the law did no such thing; it set criteria of which the Court had to be satisfied, which was “an unremarkable example of conferring jurisdiction on a court to determine a controversy between parties” (at [60]). Gageler J dissented as to the just terms issue and noted that therefore he did not have to decide the Kable issue. Pollentine v Bleijie [2014] HCA 30; (2014) 253 CLR 629 was a case not about a new Queensland law but one of long standing, and not about the continued detention of sexual offenders but about orders, at the time of conviction, for their indefinite detention. Even before the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) had been enacted, s 18 of the Criminal Law Amendment Act 1945 (Qld) had been in place. Subsection (1) allowed a trial judge to direct two or more medical practitioners to inquire as to the mental condition of a person found guilty of an offence of a sexual nature committed upon or in relation to child. Where the medical practitioners reported that the offender was incapable of exercising proper control over his or her sexual instincts, subs (3) allowed the trial judge to direct the offender to be detained in an institution during Her Majesty’s pleasure. Subsection (5) required the offender to be detained and not to be released until the Governor in Council was satisfied on the report of another two legally qualified medical practitioners that it was expedient to release the offender. Pollentine argued that s 18 was incompatible with the institutional integrity of the State courts, in that it “outsourced” sentencing to the executive. He tried to draw a distinction between a life sentence (where the prisoner is generally subject to release on parole or licence after a time) and an order for detention during Her Majesty’s pleasure. The High Court held unanimously that the law was valid. In a joint judgment, six Justices explained 566

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(at [44]–[45]) that the original imposition of the sentence was a matter of applying “ordinary principles of statutory construction and judicial decision making”, and the decision as to release was not made at the unconfined discretion of the executive but was “dependent upon demonstration by medical opinion of the abatement of the risk of reoffending”. This was similar to the power that the court had had since 1800 “to decide whether an offender is fit to stand trial or was criminally responsible for an alleged crime [or], on proof of unfitness or insanity, to direct the indeterminate detention of that offender”. “Law and order” concerns in the Northern Territory gave rise to another case. In order to clear unruly persons off the streets, a new Division 4AA was added to the Police Administration Act (NT). It included s 133AB, which authorised police to take people into custody if they were found to be committing a range of minor offences, and to hold them for four hours, or, if intoxicated, until no longer intoxicated. On the expiry of that period, the person could be released unconditionally, or with an infringement notice, or on bail, or could be taken before a justice. The section was described as authorising “paperless arrests”, though that was accurate only if the unconditional release option was exercised. The power has of course been applied particularly to indigenous people.7 Its validity was challenged, but confirmed, in North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41; (2015) 256 CLR 569. In a joint judgment, French CJ and Kiefel and Bell JJ accepted a government submission that the section essentially did not mean what it seemed to mean. Applying the “principle of legality” (see 13.70), their Honours held (at [36]–[38]) that the section should be read with existing provisions that required an arrested person to be taken to court as soon as practicable. Hence it did not breach the Lim doctrine about executive detention, nor did it impair the institutional integrity of the courts. Keane, Nettle and Gordon JJ generally agreed. Gageler J dissented, quoting French CJ’s warning about the principle of legality in his judgment in International Finance Trust Company Ltd, discussed in 34.50 above: The court should not strain to give a meaning to statutes which is artificial or departs markedly from their ordinary meaning simply in order to preserve their constitutional validity. There are two reasons for this. The first is that if Parliament has used clear words to encroach upon the liberty or rights of the subject or to impose procedural or other constraints upon the courts its choice should be respected even if the consequence is constitutional invalidity. The second reason is that those who are required to apply or administer the law, those who are to be bound by it and those who advise upon it are generally entitled to rely upon the ordinary sense of the words that Parliament has chosen. To the extent that a statutory provision has to be read subject to a counterintuitive judicial gloss, the accessibility of the law to the public and the accountability of Parliament to the electorate are diminished. Moreover, there is a real risk that, notwithstanding a judicial gloss which renders less draconian or saves from invalidity a provision of a statute, the provision will be administered according to its ordinary, apparent and draconian meaning. 7 See Anna Rienstra, “The ‘paperless arrest’: Chapter III and police detention powers in the Northern Territory”, https://auspublaw.org/2015/11/the-paperless-arrest/.

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Indeed, one must wonder whether it is at all likely that the Northern Territory administration has now embarked on a retraining program to instruct police officers about the true meaning of s 133AB, so that they will become astute to take arrested persons before a court as soon as practicable.

34.8 Can courts be given novel powers? Declaring Acts to be inconsistent with human rights principles [34.80] In 2006, Victoria enacted the Charter of Human Rights and Responsibilities Act 2006 (Vic). As noted in 13.90, this attempts to strike a balance between guaranteeing fundamental rights and the principle of parliamentary sovereignty. It lists a number of the standard civil and political rights and provides in s 32 that, so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. Section 36 then provides that if the Supreme Court is of the opinion that a provision cannot be interpreted consistently with a human right, it may make a declaration to that effect, referred to by the clumsy phrase a “declaration of inconsistent interpretation”. In Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1, the appellant had been convicted of possession of drugs for the purpose of sale, by the application of cascading “deeming” provisions — her boyfriend’s drugs were deemed to be in her possession because they were on her property, and they were deemed to be for sale because they amounted to a trafficable quantity. She appealed to the Supreme Court for either acquittal or a declaration of “inconsistent interpretation”, failed, and appealed to the High Court. On appeal, the High Court held that on the proper interpretation of the deeming provisions, the onus was still on the prosecution to prove possession for sale, so the appeal was allowed and everything said about s 36 was obiter. However, all judges except Bell J discussed whether a State court could be given power to make a “declaration of inconsistent interpretation”. In the High Court it had been pointed out for the first time that the original trial had been a federal matter because she had moved to Queensland before the presentment had been filed — which made it technically a matter between a State and a resident of another State (Constitution, para 75(iv)), even though she had been charged and committed for trial in Victoria — so this issue was discussed on federal separation of power principles rather than the Kable derivation from them. All Justices agreed that the making of such a declaration would not be an exercise of ordinary judicial power. Gummow, Hayne and Heydon JJ held that the power could not validly be exercised, at least where the court was exercising federal jurisdiction. Crennan and Kiefel JJ held that it would not be a “declaration” of the type normally given by courts of law, but a mere expression of opinion, and that such declarations should not normally be made in criminal cases because it would signal that a person had been legally but unjustly convicted (which is indeed the whole point of the declaration — to give exactly that signal to Parliament!). French J held that the making of a declaration, though not within judicial power, would be ancillary to it and therefore valid (see the Boilermakers’ 568

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formula at 26.50), but that since it would not be a “judgment, decree, order or sentence” the High Court could not hear an appeal from it (see 26.100). With respect, this seems to be applying the traditional notion of judicial power in a more static way than the new way that has been readily accepted in the nation from which we inherited our traditions of government. A declaration of “inconsistent interpretation” involves the weighing up of the words and effect of a statute against some clearly-stated (and, for what it is worth, widely-accepted) legal principles — a classic exercise of judicial power. In Britain, the House of Lords and its successor the Supreme Court, having no written Constitution, would have to accept such jurisdiction even if they found it invidious, but there has been no suggestion that they have found it invidious, and the Parliament, having invited judicial criticism of its laws by enacting the Human Rights Act 1998 (UK), usually responds to a declaration by improving the law.8 It is to be hoped that a more flexible approach can be taken in later Australian cases.

34.9 Two conclusions — uncertainty of application of the Kable test, and asymmetry of separation of powers in the States [34.90] As this Chapter demonstrates, the exact reach of the Kable principle remains unclear. Gabrielle Appleby has observed that the “inherent uncertainty of the principle, together with its almost constant reformulation and re-explanation” has led to much confusion.9 Greg Taylor has gone all biblical about it and suggested that it was “conceived in sin and shaped in iniquity”.10 However, it seems that the Kable doctrine is here to stay. There are at least some clear cases where a State law has interfered so egregiously with the independence or integrity of the courts that it clearly had to be held invalid — for example a case like Totani where the executive made the real decision and a court was “enlisted” to lend a veneer of impartiality to it. The confusion has not been helped by the tendency of plaintiffs to try to use the principle as a proxy Bill of Rights, to attack legislation that arguably breaches fundamental rights although it does not distort the role of the judiciary. The problem when plaintiffs argue breaches of Kable and fail is that, as Taylor points out, there is generally a “regrettable tendency” among some people to believe that “anything that is held constitutional must therefore also be unobjectionable”,11 and thus those who hear of the judgment will think “nothing wrong with that, 8 See United Kingdom Parliament, Human Rights Joint Committee, Seventh Report (2015), http://www. publications.parliament.uk/pa/jt201415/jtselect/jtrights/130/13006.htm, Ch 4, at 4.13: “There is therefore only one outstanding declaration of incompatibility where the Government has yet to remedy the incompatibility … That declaration was made more than eight years ago.” 9 Gabrielle Appleby, “The High Court and Kable: A Study in Federalism and Rights Protection” (2014) 40 Mon ULR 673. 10 Greg Taylor, “Conceived in Sin, Shaped in Iniquity — The Kable Principle as Breach of the Rule of Law” (2015) 34 UQLJ 265. 11 Taylor, above n 13, at 265–6.

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then” and abandon or suppress other grounds of criticism. We can only hope that as further cases are decided a sharper boundary line will begin to emerge. It should also be emphasised that even when the principle does apply it only works one way; the judges cannot be given tasks that threaten their independence (or, arguably, the appearance of their independence) from the executive, but there is no bar to the executive being given judicial power, or to the Parliament exercising it itself. As McHugh J pointed out at [31] in Kable: The Parliament of New South Wales has the constitutional power to pass legislation providing for the imprisonment of a particular individual. And that is so whether the machinery for the imprisonment be the legislation itself or the order of a Minister, public servant or tribunal. Moreover, there is no reason to doubt the authority of the State to make general laws for preventive detention when those laws operate in accordance with the ordinary judicial processes of the State courts.

It was just that if the Parliament involved the court in making the orders it could not impose requirements on the court that would compromise its institutional impartiality. Similarly, according to current doctrine, State Parliaments could directly impose control orders on members of gangs; they simply cannot try to make the orders seem just and reasonable by involving the judiciary and then tying their hands. As seen in the discussion of Duncan v New South Wales [2015] HCA 13; (2015) 255 CLR 388 in Chapter 27, a State Parliament can enact something that looks very like a Bill of Pains and Penalties, and probably can enact a law that is really one. That is, by comparison with the doctrines applying to the Commonwealth, the States are subjected to something rather like the Boilermakers and Grollo principles and something almost exactly like the Nicholas principles, all in Chapter 26, but they are not subject to the Wheat case/ J W Alexander principles in 25.30. Perhaps one day someone will successfully argue that by entrusting judicial tasks to the executive, or by directly legislating in place of judicial decisions, Parliament may detract so much from the role of the independent judiciary as to make it an unsuitable repository of federal judicial power. Simply to state that argument shows what a long chain of logical links is needed to support it, but it may not be completely untenable — eventually.

ISSUES FOR DISCUSSION 1. As McHugh J observed in Kable, nobody who had read the judgments in the DPP’s two applications for Kable’s extended detention could doubt that the judges were doing their best to be impartial. Should the Act, therefore, have been declared invalid, just because some of the drafting was carelessly expressed to make it look as if the outcome of the applications was pre-determined? Which was the worst feature of the Act — that it only applied to Kable, that the purpose was expressed as to “provide for the preventive detention of Gregory Kable”, or that it provided for extended detention after the expiration of a sentence at all? 570

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2. Given that judges in the United States routinely declare laws invalid for being inconsistent with the Bill of Rights, and that judges in the United Kingdom can declare laws to be inconsistent with human rights standards without affecting their validity, is it inconsistent with notions of judicial power for State judges to make declarations, having no legal effect, that an Act is inconsistent with one of a number of listed rights?

FURTHER READING Rebecca Ananian-Welsh, “Kuczborski v Queensland and the Scope of the Kable Doctrine” (2015) 34 UQLJ 47 Gabrielle Appleby, “The High Court and Kable: A Study in Federalism and Rights Protection” (2014) 40 Mon ULR 673 Brendan Gogarty and Benedict Bartl, “Tying Kable Down: The Uncertainty about the Independence and Impartiality of State Courts Following Kable v DPP (NSW) and Why it Matters” (2009) 32 UNSWLJ 75 Anthony Gray, “Due process, natural justice, Kable and organizational control legislation” (2009) 20 Pub LR 290 Hugo Leith, “Turning Fortifications into Constitutional Bypasses: Gypsy Jokers Motorcycle Club Inc v Commissioner of Police” (2008) Fed L Rev 251 Brendan Lim, “Laboratory Federalism and the Kable Principle” (2014) 42 Fed L Rev 519 Natalie Skead and Sarah Murray, “The Politics of Proceeds of Crime Legislation” (2015) 38 UNSWLJ 455 Hannah Solomons, “Pollentine v Bleijie: Kable in Pieces” (2015) 37 Syd LR 607 Chris Steytler and Iain Field, “The ‘Institutional Integrity’ Principle: Where Are We Now, and Where Are We Headed?” (2011) 35 UWALR 227 Greg Taylor, “Conceived in Sin, Shaped in Iniquity—The Kable Principle as Breach of the Rule of Law” (2015) 34 UQLJ 265 Fiona Wheeler, “Constitutional Limits on Extra-Judicial Activity by State Judges: Wainohu and Conundrums of Incompatibility” (2015) 37 Syd LR 301

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CHAPTER 35

A Final Note on the States, and the Drive for More Uniform Laws

35.1 Context and overview [35.10] We have seen in the last few chapters that the Commonwealth Constitution places many limitations on the powers of the States, and that the greatest is probably the inconsistency provision in s 109. The effect of s 109 had already been foreshadowed in 17.70 and 28.100 — as the Commonwealth makes more laws, the area left open to the States shrinks. In this final chapter of Part E, the theme for the States is “there’s good news and there’s bad news”. We start with a confirmation of the debilitating effect of the financial provisions of the Constitution on the States, but then consider the wide range of functions that the State governments and legislatures still exercise. We then return to the theme noted in 17.80 — that what ordinary citizens and businesses want is not a “competitive” diversity in laws, but greater uniformity, and consider ways in which the States can achieve this, not by referring power to the Commonwealth, but by cooperating with the Commonwealth and each other.

35.2 States’ financial dependence [35.20] The complaint that the States have been reduced to “service delivery agencies for the Commonwealth” was noted in 28.100. If this is true in respect of some of their functions, it is not mainly because of the Commonwealth’s use of its ordinary legislative powers; it is because of its financial dominance. The fact is that under the Constitution as it has worked out in practice (at least as long as the High Court keeps interpreting, or misinterpreting, s 90 to include sales taxes), the States simply cannot raise enough “own source” revenue to provide all the services expected of them. They therefore need 573

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250

$billion

$billion Public order and safety Transport and communications

200

150

Education

100

Health

50 Other expenses

0

State expenses by function

Cwlth grants 44.7% (VFI)

State ownsource revenue 55.3%

250

Other Cwlth grants

200

GST

150

Other revenue Royalties Sales of Goods and Services

100

Own-source tax revenue

State revenue

50

0

Figure 35.1 States’ expenses, own-source revenue and Commonwealth contributions (Source: Department of Prime Minister and Cabinet, former website on Reform of the Federation White Paper as it was in August 2016)

to have their funds topped up by revenue from the Commonwealth. Figure 35.1 shows the extent of this dependency. The figure shows totals across all States; other data shows that Tasmania and the Northern Territory receive over 60 per cent of their income from the Commonwealth. By its provision that the whole of the GST revenue is to be passed on to the States, the Commonwealth has tried to give it the appearance, or the effect, of a State tax, but in fact it is not — but it is passed on to the States without conditions as to how it must be spent. Nearly all of the “Other Commonwealth grants” are “tied” grants under s 96, ie “special purpose payments”. The Commonwealth even bypasses the States completely in some areas of activity. It funds universities and some vocational education and training, and dictates terms to the providers in considerable detail, under the Higher Education Support Act 2003 (Cth), despite the lack of any head of power relating to education. It has taken over control of residential aged care, originally under the National Health Act 1953 (Cth) and more recently under the Aged Care Act 1997 (Cth). Universities were funded indirectly for a while by s 96 grants in which the State was used as a “mere conduit pipe” (see 21.160), and nursing homes were originally funded via the payment of sickness and hospital benefits to the residents (see 20.70). More recently, the Commonwealth has made direct grants to the institutions under its supposed appropriations power. Since the decision in Williams v Commonwealth [2014] HCA 23; (2014) 252 CLR 416 it has gone back to special purpose grants under s 96 for the Chaplaincy Scheme, and may (or may not, as noted in 21.220) have to do so eventually for some of the other schemes that it funds directly — but even if it does so it will be able to dictate terms as to how the money is spent. 574

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The Commonwealth cannot only use its financial power to dictate how the States spend money; it can also use it to induce the States to make desired laws in their supposedly exclusive areas; in the area of crimes, for example, the Commonwealth was threatening at one time to withdraw road funding from States where the “prescribed content of alcohol” (PCA) for drink-driving offences was above 0.05 per cent. Now, unsurprisingly, all States have the same 0.05 per cent limit.

35.3 The continuing functions of the States [35.30] Even after allowing for the Commonwealth’s intrusions into State legislative power and its use of its financial dominance, there is plenty left for State legislatures and those who administer State laws, to do. Land titles and criminal law may not be totally exclusive State powers, but State Real Property Acts or Land Titles Acts and Crown Lands Acts, or simply Lands Acts, still govern the ownership of, and registration of title to, most of the land within the States, and breaches of State Crimes Acts or Criminal Codes still account for most of the criminal matters. The States do still provide most of the more direct services to the public, and make most of their own decisions in doing so. As a couple of leading political scientists have commented: The states, now joined by the Northern Territory and the Australian Capital Territory, continue to deliver the great bulk of the day-to-day services expected of government — health, education, transport, the maintenance of public order, land use and the host of regulations affecting social and economic transactions of all kinds. … Over the last forty years, policy in an increasing array of subjects has been shaped by the preferences of the Commonwealth but its involvement in most fields has been indirect. It is state and territory public servants who staff hospitals and schools, provide fire and police services, and regulate traffic, urban growth and local government.1

According to a former State Premier, on a typical day 2.268 million children will be taught in State school classrooms and about 120,000 people will be treated as nonadmitted patients in State public hospitals.2 Not only do the States staff hospitals and schools and regulate traffic, they still make most of the decisions about where to build a new hospital, school or road, though they may indeed have to negotiate with the Commonwealth for the funding before they can have the building done. As law students will have noticed, the State Parliaments have not folded their tents and silently stolen 1 Campbell Sharman and Jeremy Moon, “Introduction”, in Jeremy Moon and Campbell Sharman (eds), Australian Politics and Government: the Commonwealth, the States and the Territories, Cambridge University Press, 2003, pp 1, 5. 2 Hon Anna Bligh, “What has Federalism Ever Done for Us?”, in John Wanna, Critical Reflections on Australian Public Policy; Selected Essays, ANU E Press, Ch 3 at http://epress.anu.edu.au/anzsog/critical/ html/frames.php.

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away; whole law subjects are based on State Crimes Acts or Criminal Codes,3 Real Property Acts or Land Titles Acts, Trusts Acts, Wills Acts or Succession Acts, Evidence Acts, rules made under Supreme Court Acts or a Uniform Civil Procedure Act, and so on. As the passage quoted above goes on to say: “This means that, notwithstanding the financial dependence of the states on Commonwealth transfers for much of their revenue, the states still play a critical role in the formation, execution and administration of public policy”. And, one might add, the making of law.

35.4 Continuing pressure for uniform laws, and the States’ response [35.40] As noted in 17.80, despite the highly theoretical advantages of diversity among State laws, most people are just irritated by it and would prefer uniform laws across the nation. Sometimes the Commonwealth and States even see it as being in their own interests to cooperate. Under the Council of Australian Governments (COAG), a range of Ministerial Councils — previously 22 now reduced to eight4 — has been set up to consider law reform in general and harmonisation of laws in particular. The predecessors of these councils, such as the Standing Committee of Attorneys-General,5 produced a number of agreements which resulted either in more uniform legislation being enacted or the referral of powers to the Commonwealth so that it could enact laws having nationwide effect. We already noted the existence of the Commonwealth’s “referred matters” power in Chapter 17, and a couple of examples of its use in Chapters 18 and 20; here we discuss other methods or achieving something closer to uniformity in the law or its administration.

Cooperation between Commonwealth and States — joint executive bodies or non-judicial tribunals [35.50] Although the Constitution sets the Commonwealth and the States up as rivals for power in some senses, it does not forbid them from cooperating. The referral of legislative powers under para 51(xxxvii) (see 17.80) and the joint power to make laws removing Imperial “hangovers” (5.70 and 12.100) are two formal and complex forms of cooperation. There are less formal methods, especially when the Commonwealth and States decide to cooperate by both giving powers to an executive officer or a non-judicial body. In 1946, long before the Commonwealth dared to use the corporations power to resolve industrial disputes, the Commonwealth and New South Wales both enacted 3 However, as the recent cases of Dickson v The Queen [2010] HCA 30; (2010) 241 CLR 491 and Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 (both discussed in Chapter 32) demonstrate, Criminal Law teachers are going to have to start paying attention to the Commonwealth Criminal Code, and practitioners will have to consider it, at least briefly, before every criminal case. 4 See https://www.coag.gov.au/coag-councils. There is also the Treaties Council, which for some (or no) reason is not counted among the eight. 5 Now the Law, Crime and Community Safety Council.

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laws called the Coal Industry Act 1946, under which they jointly set up a Coal Industry Tribunal. This was empowered to hear industrial disputes in the coal industry, if they were wholly in New South Wales by the State Act, and if they extended beyond the limits of any one State by the Commonwealth Act. After the Tribunal had operated for 36 years, it made a decision which annoyed an employer, and the validity of the Acts and existence of the Tribunal were challenged in R v Duncan; Ex parte Australian Iron & Steel Pty Ltd [1983] HCA 29; (1983) 158 CLR 535. The Court dismissed the challenge unanimously. Gibbs CJ noted at 553 that: The Constitution effects a division of powers between the Commonwealth and the States but it nowhere forbids the Commonwealth and the States to exercise their respective powers in such a way that each is complementary to the other. There is no express provision in the Constitution, and no principle of constitutional law, that would prevent the Commonwealth and the States from acting in cooperation, so that each, acting in its own field, supplies the deficiencies in the power of the other, and so that together they may achieve, subject to such limitations as those provided by s 92 of the Constitution, a uniform and complete legislative scheme. … legislation of the Commonwealth Parliament, otherwise within power, is not invalid because it establishes, jointly with a State, one body which derives its powers from the State as well as from the Commonwealth.

There are many other examples of such cooperation, either by the Commonwealth and States jointly setting up a body, or by one jurisdiction first establishing the body and the others then conferring powers on it. The Commonwealth and one or more States have even jointly established Royal Commissions to inquire into possible breaches of the law (especially industrial law) or bodies to enforce cooperative legislative schemes. Cases have confirmed that they are valid, but they have to be particularly careful to avoid transgressing jurisdictional limits. For example, Victoria v Australian Building Construction Employees’ & Builders Labourers’ Federation [1982] HCA 31; (1982) 152 CLR 25 involved a joint Commonwealth-Victorian Royal Commission into the conduct of the defendant Union. The Federal Court had ordered the Commission to suspend its hearings because they might prejudice an application for the deregistration of the Union about to commence in the Court. The majority of the High Court held that in the circumstances the continuation of the Commission hearings would not be in contempt of the Court, but dicta of several Justices suggested that in other circumstances it might be possible that a Royal Commission could be in contempt of court, and its hearings could be restrained (see Gibbs CJ at 61, Stephen J at 71–2, and Mason J at 94). In R v Hughes [2000] HCA 22; (2002) 202 CLR 535 the High Court unanimously held that a scheme under which the Commonwealth Director of Public Prosecutions was given power to prosecute breaches of the then-cooperative scheme establishing the Corporations Law (briefly noted at 18.110) was valid. However, in a joint judgment, six Justices noted at [31] that the parliaments would have to be careful when establishing such schemes: It may be accepted that, subject to what may be the operation of negative implications arising from the Constitution, for example Ch III, in the exercise of the incidental power

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Part E Constitutional Law and the States

the Parliament may permit officers of the Commonwealth holding appointments by or under statute to perform functions and accept appointments in addition to their Commonwealth appointments. [There are] two further propositions. The first is that a State by its laws cannot unilaterally invest functions under that law in officers of the Commonwealth; the second is that a State law which purported to grant a wider power or authority than that the acceptance of which was prescribed by Commonwealth law would, to that extent, be inconsistent with the Commonwealth law and invalid under s 109 of the Constitution.

As the reference to “negative implications arising from … Ch III” in the above passage reminds us, the Court had already drawn the line at fully cross-vesting the jurisdiction of courts, in Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511, because of a very specific argument about the breadth of federal jurisdiction (see 26.40). However, where it comes to cooperatively giving powers or functions to executive officers or bodies, there is no such limit, and many cooperative schemes exist.6

Cooperation between Commonwealth and States — cooperative legislative schemes [35.60] The schemes noted in the previous section often involved legislation, specifically to empower an executive officer or body to perform functions for the Commonwealth and a State or States. Here we consider laws whose main effect is to regulate the conduct of private citizens or corporations. Where the States have agreed, with or without the Commonwealth, to make the laws more uniform, there are two main methods. Under either method one jurisdiction usually enacts a law that the others agree will be the model. Then the other jurisdictions can simply copy it (adoption by copying, or the enactment of “mirror laws”) or they can enact adoption or application Acts which refer to the model Act and provide that it, with or without modifications, applies as part of the law of the local jurisdiction (adoption by reference). The “mirror laws” approach was in vogue in the late twentieth century. The Uniform Companies Acts were enacted in all the States in 1961 or 1962, and Companies Ordinances in the ACT and Northern Territory in 1962 and 1963. The problem was that companies law is an area that needs constant amendments as flaws and loopholes are discovered, and over the next 30 years the “uniform” acts became less and less uniform which was why the States all adopted the “Corporations Law” (which was the remains of the Corporations Act 1989 (Cth) after the incorporation provisions had been removed, as noted in 18.110) in 1990, before finally referring power to the Commonwealth in 2001. A similar problem occurred with the so-called “Ipp reforms” to tort law, which were implemented with many variations in detail across the States, and as we saw in Chapter 31 fundamental things like whether a State has no-fault insurance for vehicle 6 For comprehensive lists of those existing as at May 2004, most of which still exist, see Anne Twomey, The Constitution of New South Wales, Federation Press, 2004, pp 837–9.

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accidents have been changed and then reversed in some States. A couple of uniform laws that have stayed fairly stable over the years are the Petroleum (Submerged Lands) Acts 1982 and the Crimes at Sea Act 1998, both of various jurisdictions. The States’ Defamation Acts are now almost uniform, and Uniform Evidence Acts are in force in the Commonwealth’s own jurisdiction and in New South Wales, Tasmania, Victoria, the Australian Capital Territory and the Northern Territory.7 Likewise, the Australian Road Rules, drafted by the National Transport Commission (a statutory body established by the National Transport Commission Act 2003 (Cth)) have been adopted by copying them as regulations (under the various relevant Acts) in all States except Western Australia, with only minor variations.8 The approach that has become more common over the last few years is for one “lead” jurisdiction to enact a law and for the others to pass “adoption” or “application” Acts. The lead jurisdiction can be the Commonwealth, as in the case of both the competition and consumer protection aspects of the Competition and Consumer Act 2010 (Cth), where State laws generally called “Competition Policy Reform Acts” have adopted the “Schedule Version” of Part 4 of the Commonwealth Act and State Fair Trading Acts have applied the Australian Consumer Law, which is Schedule 2 of the Commonwealth Act. In other cases, the lead jurisdiction is a State; for example the Co-operatives National Law which was first enacted in New South Wales and has been applied in all States except Queensland and Western Australia, and the Heavy Vehicle National Law which was first enacted in Queensland and has been applied everywhere except Western Australia and the Northern Territory.9 As the examples indicate, the trend is now to name the central law a “National Law” in anticipation that it will eventually become that; however, adoption by all States can take some time.10 The common “adopted” provisions do not even need to be an enacted law; in the case of building standards all States have given legal force to the Building Code of Australia, published by the Australian Building Codes Board. 7 The Australasian Parliamentary Counsel’s Committee maintains a list of all uniform legislation, whether made by referral, mirroring or adoption, at www.pcc.gov.au/uniform/National Uniform Legislation table.pdf. 8 Some of the variations are significant; eg, in NSW rule 10-1 applies the criminal responsibility provisions of the Commonwealth Criminal Code, whereas in Queensland there is no such rule and therefore the State’s own criminal responsibility provisions apply. 9 There is a potential inconsistency problem here. There is also a Commonwealth Act, the Interstate Road Transport Act 1985 (Cth), which applies mainly to “B-doubles” and authorised the Federal Interstate Registration Scheme (FIRS). The Intergovernmental Agreement on Heavy Vehicle Regulatory Reform lists the repeal of that scheme as one of the “milestones to be achieved by late 2012” (see https://www. coag.gov.au/content/intergovernmental-agreement-heavy-vehicle-regulatory-reform), but at the time of writing it has not happened. 10 Note also the existence, in at least some States, of the Education and Care Services National Law, the Health Practitioner Regulation National Law, the Marine Safety (Domestic Commercial Vessel) National Law, the Rail Safety National Law, and the Community Housing Providers National Law. The list may not be complete, and may be added to in future years or indeed some may be subtracted; nearly all States enacted an Occupational Licensing National Law in 2011 but it was not implemented and then COAG decided to keep separate State occupational-licensing Acts but to supplement them with a series of Mutual Recognition (Automatic Licensed Occupations Recognition) Acts.

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These approaches do not simplify the law as much as optimists might think or their protagonists might say. For one thing, they make reading the law less simple than reading a simple State Act; for example, even in New South Wales, the lead jurisdiction of the Co-operatives Law, you find yourself reading a Co-operatives (Adoption of National Law) Act 2012 (NSW) of 24 machinery sections and then find that the actual National Law is an Appendix to the Act. Because they are enforced by up to six State and two Territory agencies rather than one federal agency, the Adoption Acts need to have many sections defining the role of State personnel and the way penalty provisions are enforced under the local Crimes Act or Criminal Code. Despite the title “National” Law, the States often amend them to suit local conditions or administrative preferences, to such a degree that the Adoption Act could well be called an Adaptation Act. For example the Heavy Vehicle (Adoption of National Law) Act 2013 (NSW) contains 30-odd roledefining sections, then a Schedule 1 listing 43 modifications of the National Law itself and a Schedule 2 making two modifications to the national regulations. Fortunately for the sanity of NSW truck-drivers and their lawyers, the Parliamentary Counsel’s Office has produced a consolidated version of the law as it applies in NSW.11 The National Transport Commission has indeed acknowledged that there is concern “about the complexity of the existing investigative and enforcement powers provisions” in the Heavy Vehicle laws and is conducting a review of those provisions.12 The making of regulations for these “national” laws is more complex than for normal Acts; for example s 730 of the Heavy Vehicle National Law provides: “For the purposes of this section, the designated authority is the Queensland Governor acting with the advice of the Executive Council of Queensland and on the unanimous recommendation of the responsible Ministers.” In light of the cases in the previous section confirming that one jurisdiction can give powers to an officer of another jurisdiction, this is probably valid, though it must be said that the previous cases have not involved the highest office-holder in a State, the Governor.13 The provisions for scrutiny and disallowance of regulations by the various Parliaments are also more complex.14 Where there is a Commonwealth version of a law as well as the State and Territory versions, the question of whether the Commonwealth version applies will still involve a search for a head of power. When Part 5 of the previous Trade Practices Act 1974 (Cth) was re-jigged as the Australian Consumer Law, there was much publicity about what a great simplification it was. However, the Commonwealth version, as authorised by s 131 of the Competition and Consumer Act 2010 (Cth), still only applies to the conduct 11 See http://www.legislation.nsw.gov.au/#/view/act/2013/42a or http://www.austlii.edu.au/au/legis/nsw/ consol_act/hvnl277/. 12 National Transport Commission Media Release, 19 October 2016, at https://www.ntc.gov.au/about-ntc/news/ media-releases/ntc-calling-for-input-on-potential-reforms-to-investigative-and-enforcement-powers/. 13 The probable validity may be reinforced by s 33 of the Constitution of Queensland 2001 (Qld) which provides: “The Governor is authorised and required to do all things that belong to the Governor’s office under any law.” (emphasis added) 14 Readers are invited to try to reconcile s 17 of the Heavy Vehicle National Law Act 2012 (Qld) and s 8 of the Heavy Vehicle (Adoption of National Law) Act 2013 (NSW).

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of trading or financial corporations, or of natural persons when engaged in interstate, overseas or Territorial commerce, or while using postal or telephonic services, radio or TV broadcasts, etc. In the odd cases where parties see some jurisdictional advantage in pleading a breach of the Commonwealth version, they will have to check whether the defendant or the defendant’s conduct fits into one of the constitutional categories and plead the relevant details, or risk making the same mistake that the TPC made in Swan v Downes (1978) 34 FLR 36, noted in 18.80. It seems that, for lawyers, life in a federation is not meant to be easy.

FURTHER READING Geoff Anderson, “The Council of Australian Governments: A New Institution of Governance for Australia’s Conditional Federalism” (2008) 31 UNSWLJ 493 Gerard Carney, “Uniform Personal Property Security Legislation for Australia: A Comment on Constitutional Issues” (2002) 14 Bond LR 1 Gerard Carney, “Uniform Personal Property Security Legislation for Australia: A Comment on Constitutional Issues” (2002) 14 Bond LR 5 Justice Robert French, “The Future of Federalism: the Incredible Shrinking Federation, Voyage to a Singular State?” [2008] Federal Judicial Scholarship 17 (database, at www. austlii.edu.au/au/journals/FedJSchol/2008/17.htm); also published in Gabrielle Appleby et al (eds), The Future of Australian Federalism: Comparative and Interdisciplinary Perspectives, Camb UP, 2012, Ch 3 Justice Robert French, “The Referral of State Powers” (2003) 31 UWALR 19 Annemieke Jongsma, “Do Uniform Schemes of Legislation Undermine State Sovereignty?”, research paper at http://www.aspg.org.au/research_papers/Parliamentary%20Law,%20Practice%20andProcedure%20-%20JONGSMA.pdf Paul Kildea and Andrew Lynch, “Entrenching ‘Cooperative Federalism’: Is it time to formalise COAG’s place in the Australian Federation?” (2011) 39 Fed L Rev 103 Kenneth Wiltshire, “Australian Federalism: The Business Perspective” (2008) UNSWLJ 583

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PART F THE TERRITORIES Chapter 36. Commonwealth Power over the Territories, and the Self-Government Acts

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CHAPTER 36

Commonwealth Power Over the Territories, and the Powers of the Self-governing Territories 36.1 Context and overview [36.10] The drafters of the Constitution assumed that the Commonwealth would need to take responsibility for sparsely-populated or underdeveloped areas in or outside Australia, such as the Northern Territory (then belonging to South Australia) and Papua (then jointly administered by Britain and Queensland). They therefore included a power to acquire territories, and a power to make laws for the government of terri­ tories. Some Territories (the capital T indicates a specific defined and named Territory) are still governed directly by the Commonwealth. Some have been given independence and some have been granted greater or lesser degrees of self-government. This Chapter discusses the law regulating the government of Territories, and in particular the constitutional and statutory rules limiting the powers of the self-governing Territories.

36.2 Acquisition of territories by the Commonwealth [36.20] Section 122 of the Constitution begins with: The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth …

Internal territories [36.30] To reinforce s 122, s 111 expressly provides that the States can surrender territory to the Commonwealth. At the conclusion of the colonial “carve-up” of Australia (see 584

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Chapter 3), a piece of the original “greater New South Wales” had been left over, to the north of South Australia and between Queensland and Western Australia. This was annexed to South Australia as its Northern Territory by the Act that completed the “carve-up”, the Australian Colonies Act 1861. South Australia surrendered it and the Commonwealth accepted it by the Northern Territory Acceptance Act 1910 (Cth). Section 125 provides that the “seat of government” shall be within “territory which shall have been granted to or acquired by the Commonwealth”, within New South Wales and not less than 100 miles from Sydney. Although the logical place would have been where the nation’s main north-south and east-west transport routes cross at Parkes or Dubbo, it was assumed by nearly all the politicians that the capital should be in some cool place in the south of New South Wales,1 and after much consultation and several changes of mind, the Australian Capital Territory was chosen,2 New South Wales agreed to surrender it, and it was accepted by the Seat of Government Acceptance Act 1909 (Cth). Parts of the Jarvis Bay Territory were included in the original Australian Capital Territory, more was added in 1910, and a separate Jervis Bay Territory Acceptance Act was enacted in 1915. Since the seat of government is to be within the Territory, it seems that “the seat” is less than the Territory — possibly the central areas of Canberra, or possibly just the locations of the Parliament and the scattered executive buildings. The Commonwealth has both an exclusive power over the “seat of government” under para 52(i) and exclusive power to make laws for territories surrendered by the States under s 111; since the introductory words to the two sections differ, there have been suggestions that the outer limits of the powers are different.3 However, since the Commonwealth has consistently relied on the Territories power when enacting laws about the Australian Capital Territory,4 the distinction hardly seems to matter. Note that there is a conceptual distinction between the Commonwealth’s power to acquire “territory” under s 111 and its power to acquire “property” (including what para 52(i) refers to as “places”) under para 51(xxxi). The acquisition of territory (which 1 For a sardonic reference to the assumption that “the height of human achievement and intellectual endeavour can be reached only in a cold climate” see Michael Coper, “Search for the Nations Capital — but where is the ‘Seat of Government?’“ [2010] ALTA Law Research Series 2 http://www.austlii.edu.au/au/ journals/ALRS/2010/. 2 See Roger Pegrum, The Bush Capital: How Australia Chose Canberra as its Federal City, Watermark Press, 2008. 3 JQ Ewens, “Where is the Seat of Government?” (1951) 25 ALJ 532. 4 See Re Governor, Goulburn Correctional Centre; Ex part Eastman [1999] HCA 44; (1999) 200 CLR 322. The Parliament Act 1974 (Cth) may have been enacted under the “seat of government” power, but it could be supported quite sufficiently by the Territories power or as a law that is incidental to the execution of the sum of the Parliament’s powers. It adds another term — the “Parliamentary Zone” — which is at least defined clearly — see s 3. The High Court Act 1979 (Cth) provides in s 14 that the seat of the High Court “shall be at the seat of Government in the Australian Capital Territory”. As the High Court is, in one sense, an arm of government and, in another sense, something quite separate from “the government” that guards the people and the Constitution from the government, the addition of “seat of government” is as unnecessary as it is vague.

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Part F The Territories

we naturally think of as creating a specific, named, Territory) under s 111 can only follow from voluntary surrender by the State, whereas the whole point of para 51(xxxi) is that the Commonwealth can acquire a place compulsorily,5 but must pay “just terms”. However, since the Commonwealth has exclusive legislative power over the “seat of government” and acquired places under para 52(i), and over surrendered territory under s 111 itself, the effect of either kind of acquisition is similar.6 In either case, it can turn its exclusive power into a mere power of oversight by enacting an Application of Laws Act for Commonwealth places (see 28.50) or a Self-Government Act for Territories (see below). A doubt about the validity of the acquisitions of the internal Territories was raised, and dismissed, in Paterson v O’Brien [1978] HCA 2; (1978) 138 CLR 276. Paterson claimed that the acquisition of the Territories from the States had been invalid, because s 123 provides that the “limits of a State” can only be changed with the approval of the majority of the electors of the State, and there had been no such referendum to ratify the surrenders by South Australia and New South Wales of parts of their territory. The argument gained some plausibility because s 122 is separated from s 111 and, oddly, placed in the Chapter headed New States. However, the Court did not call upon counsel for the Commonwealth to answer Paterson’s argument and unanimously held that sections 111 and 123 were “quite disparate, dealing with quite different matters and powers”. Even though the surrender of the territory by the State did have the effect of altering the limits of the State, this was not an alteration effected by Commonwealth legislation under section 123; indeed acceptance under s 111 could be done by the Commonwealth executive.

External territories [36.40] The Commonwealth also acquired a number of external territories which had previously been British possessions — Papua (previously controlled jointly by Britain and Queensland) in 1906,7 Norfolk Island (previously under the authority of the Governor, but not the legislature, of New South Wales) in 1914,8 and the Cocos Islands and Christmas Island (previously administered from the Colony Singapore) in 1955 and 1958.9 A number of places inhabited only by scientific research teams and weather station operators — the Antarctic Territory, Macquarie and Heard Islands, Ashmore and Cartier Islands and the Coral Sea Islands — were also formally made into Territories. 5 Indeed, see the suggestions in 22.80 that the paragraph applies only to compulsory acquisitions (but note the doubts also expressed there). 6 Since s 125 refers to “territory which shall have been granted to or acquired by the Commonwealth”, it seems that the Commonwealth could have acquired the Australian Capital Territory compulsorily under para 51(xxxi) — see Moens & Trone, Lumb, Moens & Trone’s The Constitution of the Commonwealth of Australia Annotated, 8th ed, LexisNexis Butterworths, 2012, p 469 — but in fact agreement was reached and New South Wales surrendered the territory under s 111. 7 Papua Act 1905 (Cth). 8 Norfolk Island Act 1913 (Cth). 9 Cocos (Keeling) Islands Act 1955 (Cth) and Christmas Island Act 1958 (Cth).

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In some of those cases, there had previously been confusion as to whether they were claimed by Britain, Australia, or a State of Australia, but eventually the transfer to the Commonwealth was achieved by consent of all parties.10 The New Guinea Territory (the part to the north of Papua) and Nauru were seized from German control early in World War I, and were governed under a mandate from the League of Nations after the war. In this way, Australia found itself a colonial power, with responsibility for the welfare of millions of indigenous people — and the opportunity to exploit their natural resources. This arguably affected the interpretation of the territories power11 and its interaction with the power-limiting sections in the Constitution in Australia’s earlier years — see 36.90–36.140 below.

36.3 The Commonwealth’s legislative power under s 122 [36.50] Once the Commonwealth has acquired a Territory, s 122 of the Constitution provides: The Parliament may make laws for the government of any territory … and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

This is a “plenary” power, unlimited by subject matter, in contrast to the Commonwealth’s powers under ss 51 and 52. Section 125 appears to assume that the Australian Capital Territory must remain a territory “which shall be vested in and belong to the Commonwealth”, but other Territories can be admitted as States under s 121, and three external Territories have been granted their independence (two of them combined into one nation) under the Nauru Independence Act 1967 (Cth) and the Papua New Guinea Independence Act 1975 (Cth). The power to grant representation in the Parliament was noted in 15.40. As to laws “for the government” of a territory, the Parliament can legislate directly for the Territories or it can legislate to give them self-governing institutions, as it has done by the Northern Territory (Self-Government) Act 1978 (Cth) and the Australian Capital Territory (Self-Government) Act 1988 (Cth). Norfolk Island was given a limited degree of self-government for some time under the Norfolk Island Act 1979 (Cth), but that has now been replaced by the arrangements discussed below. In case the power to do the above things needed confirmation, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame [2005] HCA 36; (2005) 222 10 For much more detail of the acquisition of all the external territories, see Alan Kerr, A Federation in These Seas: An account of the acquisition by Australia of its external territories, Attorney-General’s Department, 2009. 11 In Jolley v Mainka [1933] HCA 43; (1933) 49 CLR 242 and Ffrost v Stevenson [1937] HCA 41; (1937) 58 CLR 528, Evatt J held that the Commonwealth laws for the mandated Territories were supported by the external affairs power but not by s 122. However, this was a minority view. As Latham CJ explained in Ffrost¸ the Governor-General’s role in accepting the mandate meant that the territory had been “placed by the Queen under the authority of … the Commonwealth” — and in the alternative it had been “otherwise acquired”.

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CLR 439, a joint judgment of six Justices noted that Ame had not challenged the granting of independence, and remarked that the concession was wisely made. In Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) [1992] HCA 51; (1992) 177 CLR 248, the plaintiff likewise did not challenge the granting of self-government, and even the Justices who dissented on the main issue (discussed below), observed that the power “is wide enough to enable Parliament to endow a Territory with separate political, representative and administrative institutions, having control of its own fiscus (treasury)”. In Berwick Ltd v Gray [1976] HCA 12; (1976) 133 CLR 603, the High Court held that the Commonwealth could impose income tax on residents of Norfolk Island, even though the revenue was going into the Commonwealth’s Consolidated Revenue Fund rather than being kept apart for the Island; the power was a plenary power (per Mason J at 607) and the Island was part of the Commonwealth (per Barwick CJ at 606). In Bennett v Commonwealth [2007] HCA 18; (2007) 231 CLR 91, the Court unanimously held that a Commonwealth law changing the qualification to vote for the Norfolk Island legislature was valid under s 122. Once a Territory has been granted independence or, hypothetically, admitted as a State, s 122 will no longer apply, but where a Territory has merely been granted selfgovernment, the Commonwealth still retains the power to override its laws, or to amend its Self-Government Act; examples are discussed in the next section.

36.4 Extra-territorial Commonwealth laws under the Territories power, and their effects on State laws [36.60] Sections 51 and 52 both preface their lists of powers by defining them as powers to make laws “for the peace, order and good government of the Commonwealth”. On the other hand, s 122 grants the Commonwealth power to make laws “for the government of any territory”. Could this imply that the Commonwealth cannot make laws under the power that apply outside the Territory? Though there have been suggestions to the contrary, it seems not. In Attorney-General (WA) v Australian National Airlines Commission [1976] HCA 66; (1976) 138 CLR 492 a narrow majority held that, although the Commonwealth could not authorise its own airline to carry intrastate passengers on an interstate flight (see 18.70), it could authorise the carrying of intrastate passengers on a State–Territory flight, where it was necessary to ensure the profitability of the flight. Stephen J held that the incidental reach of para 51(i) was necessarily limited to preserve the distinction between “trade and commerce among the States” and other trade and commerce (cf Gibbs J, quoted at 18.70), but held at 513 that the majority in Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132 (discussed below) had “placed beyond doubt the proposition that, if otherwise within power, a law enacted under s 122 might operate within a State and, being a law of the Commonwealth, would prevail over State law”. His Honour was the only Justice to draw a distinction between the two categories of flights, but both parts of his judgment seem these days to state settled law. 588

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There is, as with most things, a limit. In the Bicentennial case (Davis v Commonwealth [1988] HCA 63; (1988) 166 CLR 79), the mere fact that the Bicentennial Authority had been incorporated in the Australian Capital Territory was not enough to make the sections prohibiting the use of certain phrases a law for the Territory (and, as we saw in 13.60 and 17.50 there was insufficient connection with any other head of power). A few months earlier Deane J had said (in Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41 at 137) that: “There may be grounds for arguing that … the Commonwealth legislative power ‘for the government of ’ an internal Territory should be treated as subject to territorial limitations corresponding with those applying to the legislative powers of the States”. If his Honour was suggesting that a “connection test” similar to the one that applies to the States (see 12.90–12.110) should apply to s 122 laws, this seems unexceptionable; if he was suggesting anything stricter it seems, with respect, wrong. It is not only Commonwealth laws of a non-“constitutional” nature enacted under s 122 that can apply within the States; although each constituting Act may seem to be enacted solely for the territory, they can apply within the States as well, and they can override State Acts by application of s 109. In Lamshed v Lake, above, the High Court held by majority that an earlier “statutory s 92”, then in the Northern Territory (Administration) Act 1910 (Cth), was a valid law and overrode a South Australian law restricting the use of trucks on a “controlled route” (ie, one in competition with the railways). It should also be recalled that some Justices have suggested that, quite apart from any “statutory s 92” that the Commonwealth might enact, there is an implied right of access to the seat of government at Canberra; see Pioneer Express Pty Ltd v Hotchkiss, discussed at 28.40.

36.5 “Constitutions” of the self-governing Territories — the Self-Government Acts [36.70] The Self-Governing Acts of the two self-governing Territories are, in effect, the Constitutions of the Territories12 — laws enacted by a superior power that bind their organs of government and that their legislatures cannot amend. They establish democratically-elected Legislative Assemblies, with power to make laws for the peace, order and good government of the respective Territory.13 The Australian Capital Territory (Self-Government) Act 1988 (Cth) contains a unique provision, s 26, which provides that a law of the Territory may include a restriction on the manner and form of amendment of a specified law. The laws that could be affected by such an entrenching law are not limited, as in the case of the States, to laws affecting the constitution, powers or procedure of the legislature. However, the law imposing the restrictions must be approved by referendum before it becomes binding. The only such Act approved by the electors so far is mentioned in the next paragraph. 12 Referred to in the following text as the “constituting Acts”, and referred to in subsequent footnotes simply as ACT, or NT respectively. 13 ACT s 22, NT s 6.

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Some basics of the electoral systems are provided for in the constituting Acts, but each Territory has enacted its own Electoral Act to fill in the details.14 The Australian Capital Territory has decided to elect its Assembly by proportional representation, previously electing five members from each of two electorates and seven from the other, changing to five members from each of five electorates at the election that was held in October 2016. The principle of proportional representation is entrenched against being amended without the approval of the majority of the electors or a two-thirds majority of the Legislative Assembly (and the entrenchment is itself entrenched by the same formula) by the Proportional Representation (Hare-Clark) Entrenchment Act 1994 (ACT). The Northern Territory elects one member per district, with optional preferential voting. Each Territory has an Executive Council, whose responsibility to the Assembly is implemented by a provision that money shall not be expended unless authorised by law.15 In the case of the Australian Capital Territory, responsible government is further codified by a provision that the Chief Minister must be elected by the Assembly.16 However, each of the Acts establishes a guided form of responsible government. The Northern Territory has an Administrator appointed by the Governor-General, who is quite like a State Governor, although the relevant Commonwealth Minister can give the Minister instructions.17 The Australian Capital Territory has neither Governor nor Administrator; laws are enacted by the Legislative Assembly with no need for assent, and the Executive is simply the Chief Minister and other Ministers.18 Each Territory also has a Supreme Court, which, in each case was originally created by a Commonwealth Act whose existence has been continued or re-enacted as an enactment of the Territory, and which has been further amended by the Territory legislature.19 The fact that they are now local statutes seems to answer the tricky question of whether the Territory courts are affected by s 72 of the Commonwealth Constitution, discussed in 36.110 below — they are not, but they are subject to the doctrine arising from Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, discussed at length in Chapter 34.

36.6 “State-like” limits on the powers of the self-governing Territories [36.80] It can be seen from the above that the self-governing Territories are something quite like States but they are not States. The express constitutional limits on State powers do not apply to them, and there has been debate (discussed below at section 36.7) as 14 15 16 17 18

Electoral Act 1992 (ACT), Electoral Act (NT). ACT s 58, NT s 45. ACT s 40. NT s 32. ACT s 39. See Geoffrey Lindell “The Arrangements for Self-Government for the Australian Capital Territory; A Partial Road to Republicanism in the Seat of Government” (1992) 3 Pub LR 5. 19 Supreme Court Act 1933 (ACT), Supreme Court Act (NT).

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to whether the limits on Commonwealth powers apply to them. However, as part of its plenary power over the Territories, the Commonwealth Parliament can impose similar limits on their legislatures, and indeed can go further and prohibit specific classes of laws. The Australian Capital Territory and Northern Territory are subject to a guarantee of freedom of trade and commerce between the Territory and the States — a “statutory s 92” — in their Self-Government Acts;20 these limit the power of the Territory legislatures and, as seen above in 36.60, the powers of the State Parliaments as well. Both Territories are subject to a “statutory para 51(xxxi)” guaranteeing the payment of just terms when property is acquired.21 To emphasise the fact that “self-government” is only guided self-government, after the Northern Territory enacted the Rights of the Terminally Ill Act 1995, the Commonwealth amended both the constituting Acts to exclude laws permitting euthanasia from the powers of the legislatures.22 There is one exception to the statement above, that express constitutional limits on State powers do not directly apply to the Territories. As noted in Chapter 29, the limit on the States’ powers in s 90 is expressed in reverse, by making the Commonwealth’s power to levy duties of customs and excise exclusive. In Capital Duplicators Pty Ltd v Australian Capital Territory (No 1), above 36.50, the question was whether this prevented a selfgoverning Territory from imposing an excise. Mason CJ and Dawson and McHugh JJ held that if it should impose an excise “the territory legislature … would be exercising legislative power which is referable to, derived from and part of the power of the Parliament which is made exclusive by s 90”. However, the majority (Brennan, Deane, Toohey and Gaudron JJ) held that once a representative legislature has been established in a Territory, its laws are enacted under a new “general legislative capacity” and not as some sort of delegated legislation of the Commonwealth, and that therefore s 90 excluded the ­Territories just as much as the States from imposing an excise. Though this limited the powers of the Territories, it may have potential, as discussed in 36.90–36.140, for ensuring that the Territories are seen as more State-like, and are therefore immune from constitutional limits that apply to the Commonwealth Parliament. Territorial laws are also invalid if inconsistent with a Commonwealth law, though s 109 does not apply. In the case of the Australian Capital Territory, this is because a “statutory s 109” is provided in the form of s 28 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) which provides that: A provision of an enactment has no effect to the extent that it is inconsistent with a [Commonwealth law or legislative instrument], but such a provision shall be taken to be consistent with such a law to the extent that it is capable of operating concurrently with that law.

In Commonwealth v Australian Capital Territory [2013] HCA 55; (2013) 250 CLR 441, the High Court held that the Marriage Act 1961 (Cth) was “a comprehensive and 20 ACT s 69, NT s 49. 21 ACT s 23, NT s 50. 22 ACT s 23, NT s 50A.

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exhaustive statement of the law of marriage” and therefore the Marriage Equality (Same Sex) Act 2013 (ACT) could not operate concurrently with it. Though their Honours did not use the term “covering the field”, the decision is clearly parallel to the cases on the covering the field test in s 109 (see 32.90). The Northern Territory (Self-Government) Act 1978 (Cth) has no such provision, but s 79 of the Judiciary Act 1903 (Cth) provides that a court exercising federal jurisdiction in a Territory shall be bound by the laws of the Territory “except as otherwise provided by … the laws of the Commonwealth”. In Northern Territory v GPAO [1999] HCA 8; (1999) 196 CLR 553, the High Court held that that produces the same effect as s 109. Here, however, it was held that there was no inconsistency and therefore the Community Welfare Act 1975 (NT) was binding on the Family Court of Australia. We will see below in 36.120 that the full federal separation of judicial power does not apply to Territory courts, because they are not federal courts. However, they are capable of exercising federal jurisdiction, so as we saw in Chapter 34, it was held in North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; (2004) 218 CLR 146 that the Kable doctrine applies to laws of the Territories affecting the courts of the Territories. Again, the self-governing Territories are not States but in many respects they are quite like States.

36.7 Do the limits on Commonwealth power apply to laws made (by the Commonwealth or the Territories) under the Territories power? [36.90] Another inference from the difference between the lead-in words23 of ss 51 and 122 has been suggested; that the limitations on Commonwealth power such as the “right” to jury trial, trial by a tenured judge, freedom of religion and just terms only apply where the Parliament is making laws for the “peace, order and good government of the Commonwealth” and not when it is making laws “for a territory”. The distinction relies on a notion held by the earlier Justices of the High Court that in s 51 “laws for … the Commonwealth” means laws for the six States rather than for the broader nation. It was first drawn in Buchanan v Commonwealth [1913] HCA 29; (1913) 16 CLR 315, in which it was held that s 55 did not apply to a law for Norfolk Island despite its apparent general language; section 55 is there to protect the Senate from “tacking” by the House of Representatives (see 21.110), but Norfolk Island had no senators. Then it was applied in a case on appeal from the then Territory of Papua, R v Bernasconi [1915] HCA 13; (1915) 19 CLR 629. The Ordinances of Papua defined Bernasconi’s alleged offence as an indictable offence, but provided for trial by the Chief Magistrate sitting alone. Bernasconi appealed, arguing that the s 80 guarantee of jury trial applied because 23 The general words in a section of an Act that lead into, and qualify, a paragraphed list, are referred to by some judges as the “chapeau” of the section (French for hat). Confusingly, other judges use “chapeau” for a section heading. It is suggested that, though “lead-in words” may sound less literary, its meaning is more obvious and certainly less ambiguous.

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he had been prosecuted for an offence, if not against a law of the Commonwealth, at least a law authorised by the Commonwealth. The High Court dismissed his appeal. Isaacs J offered policy arguments which would now be seen as, at least, politically incorrect: he held that a Territory is “in a state of dependency or tutelage, and the special regulations proper for its government … are left to the discretion of the Commonwealth Parliament” which could be trusted to deal with the population “without fencing them round with what would be in the vast majority of instances an entirely inappropriate requirement of the British jury system”. Griffith CJ presented the question as more of an analytical exercise: In my judgment, Chapter III is limited in its application to the exercise of the judicial power of the Commonwealth in respect of [the] functions of government as to which it stands in the place of the States, and has no application to territories. Sec 80, therefore … relates only to offences created by the Parliament by Statutes passed in the execution of those functions which are aptly described as “laws of the Commonwealth.” … I do not think that in this respect the law of a territory can be put on any different footing from that of a law of a State. The power conferred by sec 122, although conferred by the same instrument, stands on a different footing. … In my opinion, the power conferred by sec 122 is not restricted by the provisions of Chapter III of the Constitution, whether the power is exercised directly or through a subordinate legislature.

By the 1950s, it had been suggested that not only did s 80 not apply to Commonwealth laws for the Territories but neither did the limits imposed by s 116 (freedom of religion) or para 51(xxxi) (just terms) — the cases are noted below. However, the doctrine that the Territories power was a “disparate power”24 had been challenged by Dixon CJ in the Airlines Nationalisation case and Lamshed v Lake (both cited above for the more specific issue in the cases) and by Barwick CJ and Windeyer and Menzies JJ in Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226. Most recently, the “disparate power” theory was rejected, at least in the context of para 51(xxxi), in Wurridjal v Commonwealth [2009] HCA 2; (2009) 237 CLR 309. As noted in 22.40, the conclusion as to the need for just terms partly turned on the words “for any purpose in respect of which the Parliament has power to make laws”; clearly enough, once the disparate power theory is rejected, making laws for a Territory is one of those purposes. French CJ also noted that the common law presumption that “statutes are not to be construed to effect acquisition of property without compensation”, when applied to the interpretation of the Constitution, reinforced the view that para 51(xxxi) controlled s 122. To generalise from this, once there is an assumption that the territories power is not fundamentally different from the Commonwealth’s “federal” powers, and that the people of a Territory can “enter into the full participation of Commonwealth constitutional 24 See Leslie Zines, “‘Laws for the Government of any Territory’: Section 122 of the Constitution” (1966) 2 Fed L Rev 72 at 73.

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rights and powers” (R v Bernasconi, above), it can be expected that the Court will resume its normal practice of reading the words and working out what they mean, subject to any of the normal presumptions of statutory interpretation.

Just terms [36.100] As noted in 22.40, para 51(xxxi) was once held not to apply to acquisitions made under s 122 and, just as in Bernasconi, the leading case, Teori Tau v Commonwealth (1969) 119 CLR 564, involved the denial of rights to the indigenous people of an external territory. Since Wurridjal v Commonwealth [2009] HCA 2; (2009) 237 CLR 309, this is no longer good law. Note that the decision did not change the rule about laws made by the Parliament of the Territory rather than the Commonwealth Parliament; Territorial laws already had to provide just terms because the constituting Acts expressly say so, as discussed above.

Jury trial and tenure of judges [36.110] Section 72 says that “Justices of the High Court and of the other courts created by the [Commonwealth] Parliament” must have tenure, and s 80 provides for trial by jury for “any offence against any law of the Commonwealth”. The decision in Bernasconi, above 36.90, held that the jury trial provision did not apply to trials in Papua New Guinea. Since then the High Court has upheld laws providing for trial by a magistrate whose tenure was at the pleasure of the Governor-General (Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226), or by an acting judge of the ACT Supreme Court: Re Governor, Goulburn Correctional Centre; Ex parte Eastman [1999] HCA 44; (1999) 200 CLR 322. With respect, it is not entirely clear from the judgments whether the non-applicability of ss 72 and 80 was based on the fact that the laws were made under the authority of s 122 or because they were made by the territorial legislative body. As to the tenure of judges, note that in Bradley, above 36.80, the High Court was insistent that a Territory judge or magistrate must not be subject to pressures that impaired the institutional integrity of the court, but that the provisions in place for Bradley’s tenure and salary were sufficient. It is submitted that the actual decisions can be supported simply by applying the reasoning of the majority in Capital Duplicators, above 36.50, that a territorial legislature enacts laws for the Territory under its own “general legislative capacity”, not as a delegate of the Commonwealth, and that therefore its powers are no more limited by ss 72 and 80 than the powers of the State Parliaments are. If a territorial court is established, or territorial offences are created, directly by Commonwealth legislation under s 122, as is still the case in the non-self-governing Territories, it is submitted, since the rejection of the “disparate power” doctrine, that ss 72 and 80 should now be seen to apply.

Separation of powers [36.120] One of the plaintiff ’s many arguments in Kruger v Commonwealth (Stolen Generations case) [1997] HCA 27; (1997) 190 CLR 1 was that territorial courts were 594

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federal courts and therefore subject to the full constitutional separation of powers. This was rejected by the Court. Dawson J expressed it about as emphatically as possible: … the judicial power exercised in the territories is not the judicial power of the Commonwealth within the meaning of Ch III. Courts created under s 122 are not federal courts nor do they exercise federal jurisdiction. They are not required to be constituted in accordance with Ch III and, since it is from the terms of Ch III and the position which it occupies in the constitutional structure that the requirement of a separation of powers flows, it follows that that doctrine has no application in the territories.

The plaintiffs in North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41; (2015) 256 CLR 569 tried to reopen the decision in Kruger. Gageler and Keane JJ expressly confirmed the reasoning in Kruger at [104]–[118], and the other Justices, having held that the challenged provisions did not authorise nonjudicial detention of persons, said that the issue did not arise. Gageler J noted at [115] that the holding in Bradley, that the Kable doctrine applied in the ­Territories (noted above in 36.80) would have been redundant if the federal separation of power doctrines applied to Territory laws.

High Court’s original and appellate jurisdiction over Territories [36.130] When the Australian Capital Territory was first established, the Parliament gave original jurisdiction over matters arising in the Territory to the High Court. Dixon J, sitting at first instance, accepted that this was valid in Federal Capital Commission v Laristan Building and Investment Co Pty Ltd [1929] HCA 36; (1929) 42 CLR 582. In Spratt v Hermes, above 36.90, Barwick CJ remarked at 241 that, whether or not the Parliament could give the High Court jurisdiction on Territory matters under s 122, it could certainly do it where the matter arising in a Territory fell within the topics in ss 75 or 76. As the Parliament now recognises that the High Court is now kept busy enough hearing appellate matters, this is less likely to arise in future. Section 73 provides that the High Court has jurisdiction to hear appeals from Justices exercising the Court’s original jurisdiction, from certain State Courts, and from “any other federal court, or court exercising federal jurisdiction”. There is no mention of courts of the Territories. A “federal court” appears to be a narrower notion than a court “created by the Parliament” which was the crucial phrase in the cases on s 72, above. The High Court has held in many cases that territory courts are not “federal courts” and therefore a right of appeal from territory courts to the High Court does not exist under s 73, but that such a right can be granted by the Parliament under s 122 (eg, Porter v R; Ex parte Chin Man Yee [1926] HCA 9; (1926) 37 CLR 432, Spratt v Hermes, above 36.90). Consistently with this, the Court has held that an appeal must meet the conditions set by the legislation creating a right of appeal; there is no additional, “constitutional”, right of appeal under s 73: Capital TV & Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591. 595

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Freedom of religion [36.140] Though the issue has never been central to the outcome of a case, there have been conflicting dicta as to whether laws made under s 122 are subject to s 116. As part of his statement of a general “integrationist” approach in Lamshed v Lake, above 36.60, Dixon CJ suggested, at 143, that they would be. In Attorney-General (Vic); Ex rel Black v The Commonwealth [1981] HCA 2; (1981) 146 CLR 559, Gibbs J doubted whether s 116 had any application to laws made under s 122 but in saying that he was influenced by the decision in Bernasconi, now of doubtful authority. In Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 Toohey, Gaudron and Gummow JJ suggested that s 122 would be restricted by the religious freedom guarantees (at 85, 122–3, 162 and 166–7) but Dawson and McHugh JJ differed. It is again submitted that by combining the reasoning from Capital Duplicators and Wurridjal, the modern conclusion should be that a Commonwealth law for a Territory is subject to s 116 but that a law of a territorial legislature is not, unless the Commonwealth chooses to insert a “statutory s 116” in the relevant constituting Act.

36.8 Norfolk Island — a Territory treated almost as part of a State [36.150] From 1979 until 2015, Norfolk Island was also self-governing with its own Legislative Assembly and Executive Council, although in a more limited way than the Australian Capital Territory and Northern Territory: the relevant Commonwealth Minister could give instructions to the Administrator as to certain matters, which overrode the advice of the Executive Council. However, the Commonwealth Government felt that the Island had not become self-sufficient and that it was paying too much to subsidise its self-governing status, so from 1 July 2016 this has changed, and the Island is treated in many respects as if it is a part of New South Wales, with its own Regional Council. Under the Norfolk Island Act 1979 (Cth) as it now stands,25 laws of the Commonwealth and of New South Wales generally apply on the island (ss 18 and 18A), but ordinances can be made by the Governor-General (on the advice of the Commonwealth Government, of course) which qualify or override the application of those laws (s 19A). Old ordinances and Acts made by the 1979–2015 Legislative Assemble stay in force (s 16A) but may be repealed by a new ordinance (subs 17(3)). There is also the usual provision for the making of regulations (s 77), and if inconsistent with an ordinance, the regulation prevails.

25 The principal amendments were made by the Norfolk Island Legislation Amendment Act 2015 (Cth), with further amendments made by the Territories Legislation Amendment Act 2016 (Cth). Great care will have to be used when referring to the pre-2015, self-government-enabling, version of the Act as compared to the new version, since, despite the comprehensive nature of the amendments, the short title of the principal Act was not amended.

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A Norfolk Island Regional Council has been elected, under the provisions of the Local Government Act 1993 (NSW) as modified,26 and New South Wales Government departments will take responsibility for the delivery of many services once arrangements have been made between the Commonwealth and State Governments. However, it is still, in law, a Commonwealth Territory. Functions of Ministers under applicable New South Wales laws will be performed by the “responsible Minister” (currently the Minister for Infrastructure and Regional Development), Islanders will vote as part of one of the Australian Capital Territory electorates, the Island still has its own Court of Petty Sessions and Supreme Court, police services are provided by the Federal Police, and even the State laws as applied on the island “are, in a constitutional sense, laws of the Commonwealth in force in Norfolk Island”.27 Islanders now have to pay income tax, but Centrelink services and Medicare benefits are available. Travel between Norfolk Island and the rest of Australia will be domestic travel, and passports will no longer be required. The change in status has been controversial in Norfolk Island, and a group has petitioned the United Nations to declare the island a “non-self-governing territory” and therefore, presumably, within the purview of the UN Decolonisation Committee, but Berwick Ltd v Gray and Bennett v Commonwealth, cited above in 36.50, make it clear that in Australian law the island is subject to whatever legislation the Commonwealth Parliament chooses to enact under s 122, and as we saw in 12.150, in Australian law the Parliament and Government are not bound by international law or the rulings of international agencies. It is pretty clear that the new arrangements are binding. For lawyers on the Island, and for those who visit the Island when the courts are in session, the problems over the next few years will not be constitutional problems. Instead they will involve sorting out the relationship between Commonwealth laws, New South Wales laws, old ordinances and Norfolk Island Acts, and new ordinances, as prescribed by provisions of the Norfolk Island Act 1979 (Cth). (And indeed some of the issues about the relationships between the laws will be very like s 109 constitutional problems.) It is to be hoped that someone will maintain a good database of Norfolk Island laws!

ISSUES FOR DISCUSSION 1. Should one’s rights to jury trial for federal offences and to receiving just terms when one’s property is seized depend on whether one lives in a State or a Territory? (Answer this both as a matter of policy and of interpreting the words of the relevant sections of the Constitution.) Considering the more recent case law, do you think this distinction will be maintained in the future? Do these anomalies about Territories suggest that at least some of the Constitutional guarantees should apply to laws of the Commonwealth and the States and Territories? 26 See the Norfolk Island Applied Laws Ordinance 2016. It seems that the proper style for referring to a NSW law as modified to apply in Norfolk Island is, for example, the Local Government Act 1993 (NSW)(NI). 27 Explanatory Statement to the Norfolk Island Applied Laws Ordinance 2016; see https://www.legislation. gov.au/Details/F2016L00729/Explanatory Statement/Text.

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2. The Northern Territory has a population of only about 240,000, including about 136,000 eligible voters, and only raises about 26 per cent of the money that it spends from its own sources, the rest coming from the Commonwealth. Should an area be required to have some minimum level of population and/or own-source revenue before it is permitted to become a State?

FURTHER READING AJ Brown, “When Does Property Become Territory? Nuclear Waste, Federal Land Acquisition and Constitutional Requirements for State Consent” (2007) 28 Adel LR 113 Gerard Carney, The Constitutional Systems of the Australian States and Territories, Camb UP, 2006 James Crawford and Donald R Rothwell, “Legal Issues Confronting Australia’s Antarctica” (1990–1991) 13 Australian Year Book of International Law 53 Laurie Fittock, “Convicted on a Majority Verdict: The Tipiloura Case” (2004) 6 Indigenous Law Bulletin 18 Christopher Horan, “Section 122 of the Constitution: A ‘Disparate and Non-Federal’ Power” (1997) 25 Fed L Rev 97 Stephen McDonald, “Territory Courts and Federal Jurisdiction” (2005) 33 Fed L Rev 57 Graham Nicholson, “The Concept of ‘One Australia’ in Constitutional Law and the Place of Territories” (1997) 25 Fed L Rev 281

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PART G POSSIBLE CHANGES TO THE FEDERATION Chapter 37. New States, and Changing the Boundaries of States Chapter 38. Formal Alteration of the Constitution — the Record So Far and Current Issues

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New States, and Changing the Boundaries of States

37.1 Context and overview [37.10] The Constitution and the federation it created have existed for 115 years. Although there have been some changes in the approach to interpreting the Constitution and a lessening in the feeling of dependence on Britain, in their general outline both the Constitution and the federation have seen little change; just a few sections have been textually amended and the six original States remain the only States. In this Part, we study the provisions of the Constitution which provide for the possibility of structural change by admitting more States, and for making more, and possibly more significant, textual amendments to the Constitution. This Chapter considers new States and the next one discusses the amendment process.

37.2 Admitting new States and/or changing the boundaries of existing ones — a hotch-potch of sections [37.20] Chapter VI of the Constitution is headed “New States”. Its provisions are as follows: 121. The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit. [Section 122, oddly placed here, is the one about Territories discussed in the previous chapter.] 123. The Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of the majority of the electors of the State voting upon the

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question, increase, diminish, or otherwise alter the limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to any State affected. 124. A new State may be formed by separation of territory from a State, but only with the consent of the Parliament thereof, and a new State may be formed by the union of two or more States or parts of States, but only with the consent of the Parliaments of the States affected.

By themselves, ss 121 and 124 hang together well — s 121 is the general provision and includes the admission of whole entities that had not previously been part of the Commonwealth (eg, a Territory, or a colony that might have held aloof from federation and then decided to join later) and s 124 is more specific, covering the case, expressly foreshadowed by the drafters, of “calling new states into existence throughout their immense territory, as the spread of population required it”.1 The insertion between them of ss 122 and 123, however, is odd and (like the positioning of s 116 in the Chapter about “The States”) suggests that the drafters and delegates were getting impatient to just get the thing finished by the time they got to the end of the document, and had ceased paying attention to little things like logical structure. Reading s 123 literally, it could impose an additional condition on the formation of a new State by separation of territory from an existing one, on top of the condition imposed by s 124. All commentators from Quick and Garran onwards have resolved this by concluding that the formation of a new State is covered solely by s 124 and that s 123 applies only to the shifting of boundaries2 (in which case it is as out of place in a Chapter on new States as s 122 is). This interpretation appears to be confirmed by the decision in Paterson v O’Brien [1978] HCA 2; (1978) 138 CLR 276, which held that s 123 had no impact on a State’s surrender of territory under s 111: see 36.30. This resolves the apparent clash but it is still odd — for, say, the Riverina to become a new State it only needs the consent of the New South Wales Parliament but a transfer of the area to Victoria needs the approval not only of both Parliaments but also the electors of both States. And to move the boundary at Coolangatta/Tweed Heads by a few kilometres or even by a city block or two would apparently need the approval, not just of those affected by the change, but a majority of all the electors of Queensland and New South Wales. 1 Sir Henry Parkes, quoted in Anna Rienstra and George Williams, “Redrawing the Federation: Creating New States from Australia’s Existing States” (2015) 37 Syd LR 357 at 360. 2 John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth, H Clark Pty Ltd, 1901 (reprinted Legal Books, 1976), p 975; Gabriel Moens and John Trone, Lumb Moens & Trone The Constitution of the Commonwealth of Australia Annotated, 8th ed, LexisNexis Butterworths, 2012, pp 467–8; Chris Tappere, “New States in Australia: The Nature and Extent of Commonwealth Power Under Section 121 of the Constitution” (1987) 17 Fed L Rev 223 at 226–7; Rienstra and Williams, n 1 above at 367–8.

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37.3 The imposition of terms and conditions [37.30] It will be noted that s 121 says that when the Parliament admits or establishes new States it may impose “such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit”. As far as the Senate is concerned, this means that the Parliament could give a new State any number of senators that it thinks reasonable, as the prescription of equal numbers per State in s 7 only applies to “Original States”. If a State were to be split into two or three, there would be room for debate as to whether the equality requirement applies to the whole original area, or to the part that retains the name of the Original State. Consideration of this can be postponed until such a split happens! As to the House of Representatives, however, the Parliament seems to have no discretion as to numbers of members, as s 24 requires that they be proportional to the State’s population. However, the minimum of five members would not apply, as the guarantee also applies only to Original States. As to other terms and conditions, the limits imposed by the Constitution on the powers of the States (see Chapters 28–34) apply regardless of whether the State is an Original State or a new one, so there would be no room for variation there. On the other hand, the continuation of States’ Constitutions and powers in ss 106–107 only applies to “a colony which becomes a State”, so if, for example, a new State were to be formed from an existing one (eg, Northern Queensland) or from several (say, a State of the Murray– Darling Basin), it seems that the establishment Act could do many of the things that the Imperial Acts granting self-government to the colonies (see sections 3.4 and 3.5) used to do. That is, it could establish the initial State Constitution, probably as a Schedule to the Act, as well as granting statehood. As Rienstra and Williams point out,3 it can be assumed that a new State would have to have a Parliament and a Supreme Court. But would the Parliament’s power have to be as “plenary and ample” as those of the present States? It is arguable that an establishment Act could include some initial “manner and form” provisions entrenching fundamental aspects of the new Constitution. Whether the enforceability of those provisions would be subject to the pedantries involved in the application of s 6 of the Australia Act 1986 (Cth) (see 27.130) would be a nice point — the words of the section refer to States in general and the definition of “State” in s 16 includes new States, but the history of its enactment suggests that it was intended to apply only to those States that had previously been under the Imperial thumb. Further, the fact that it was enacted under the special power in para 51(xxxviii) may mean that it can only apply to the latter States. One thing that seems clear, however, is that once the new State had been established the Commonwealth could impose no further conditions upon it; it would be a State like other States with its powers limited only by “manner and form” provisions in its own Constitution and by the limits imposed on all States by the Commonwealth Constitution. 3 Rienstra and Williams, n 1 above at 371–2.

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37.4 The only semi-live issues — North Queensland and the Northern Territory [37.40] At times in the past, there have been calls for Queensland to be split into three States, Western Australia into two, and for separate States to be created for the Riverina, the Monaro district or New England. The history, and general fizzling-out, of these movements is ably told by Rienstra and Williams.4 There have occasionally been muted calls for the Australian Capital Territory to become a State but s 125 provides that the seat of government “shall be within territory which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth”. It is true that the reference to “territory” does not say “a Territory” or “a federal territory”, but the phrase about belonging to the Commonwealth seems to be incompatible with the Territory becoming a State. That leaves as the only claims for statehood that are live, or at least not completely comatose, the claims for the Northern Territory and some part of the north of Queensland. It is debateable whether the “spread of population” (Parkes’s phrase, quoted above) yet justifies statehood for the Northern Territory; indeed the ineptitude of its last government has led to calls in the press for self-government to be revoked and for it to be given something like the new status of Norfolk Island, a series of councils with local government-like powers under the general control of the Commonwealth.5 Northern Queensland has a rather larger population and economy; its main problem is that the Queensland government is reluctant to let it go.6 Economists differ about what population is necessary for a new State to be viable; indeed one has said that: “The idea that Australia needs another small state without a big city in it I think is crazy … Saddling those struggling regional areas with massive bureaucracies is not the way to get them out of … trouble”.7 However, it must be conceded that Queensland is an enormous State and that having the capital in its extreme south-east corner is not what one would do if it were being created today. Perhaps the way forward in the medium future is for a State of Northern Australia to be created, consisting of the Kimberly district of Western Australia, the Northern Territory and the north and west of Queensland. As long as the State governments could be persuaded to support it, the 4 Rienstra and Williams, n 1 above at 373–80. 5 Ken Parish, “Suspend Northern Territory self-government!” at https://blogs.crikey.com.au/northern/ 2015/02/09/suspend-northern-territory-self-government/; Madonna King, “Juvenile justice disgrace shows it’s time to take back the Territory”, Canberra Times, 27 July 2016, at http://www.canberratimes. com.au/comment/that-thinking-feeling/juvenile-justice-disgrace-shows-its-time-to-take-back-theterritory-20160727-gqfa8m.html. 6 Indeed when a motion in support of the separation of North Queensland was moved in the Queensland Parliament on 15 September 2016, it failed to get enough votes for the result of the division to be officially recorded; see http://www.parliament.qld.gov.au/documents/hansard/2016/2016_09_15_WEEKLY.pdf at pp 3619-25. 7 Jason Murphy, quoted at http://www.abc.net.au/news/2016-04-01/push-for-north-queensland-to-becomea-separate-state/7293548.

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first step could be done by surrendering parts of the two States under s 111. Then the territories could be consolidated and “elevated” to Statehood by the Commonwealth under s 124, with no need for further involvement of the States or referenda of their people. Of course, it goes without saying that this should not be done without the consent of the people in the affected area, but the Constitution imposes no need for a formal referendum.

37.5 Calls for the process to be made easier [37.50] It is clear that if there is any merit in calls for new States, the existing provisions of the Constitution throw some obstacles in the way. Politicians like to hang onto power, and this extends to not wanting to surrender power even over the remoter reaches of their territory, so a Parliament in Brisbane with about 10 to 11 Members from the north of the State is not likely to vote to support a move for a new State in the north. As Rienstra and Williams conclude: The Constitution should be amended so that popular support for the creation of a new state from an existing state, manifested in referenda, provides an additional means of forming a new state. This amendment … would better reflect the framers’ intentions by allowing for the creation of new states when the view that a new state is appropriate is held by the public, if not by state parliaments.8

However, as they immediately concede, “[i]n the short term, the prospect of a popular movement garnering sufficient support for the creation of a new state from an existing state is remote” — and while that remains so there is unlikely to be much interest in a reform of the process to facilitate a purely hypothetical popular demand for a hypothetical new State. If interest ever increases, an amendment to s 123 should be considered as well; the people of a State may have some interest in whether a part of a State is to be lost to a bordering State, but giving them a veto over any boundary change, whether substantial or quite minor, is quite disproportionate.

FURTHER READING Greg Carne, “We of the Never Never? Constitutional Misconceptions and Political Realities in Pre-Constituting the State of the Northern Territory” (2013) 16 SCULR 41 Anna Rienstra and George Williams, “Redrawing the Federation: Creating New States from Australia’s Existing States” (2015) 37 Syd LR 357 Chris Tappere, “New States in Australia: The Nature and Extent of Commonwealth Power Under Section 121 of the Constitution” (1987) 17 Fed L Rev 223 8 Rienstra and Williams, n 1 above at 386.

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CHAPTER 38

Formal Alteration of the Constitution — the Record So Far and Current Issues

38.1 Context and overview: a Constitution that can be changed but isn’t often changed [38.10] A constitution can hardly limit government power if it can be changed easily by a parliament that is dominated by the government of the day so, as Kelsen said (see 1.10), usually “a change in the constitution is made more difficult than the enactment or amendment of ordinary laws”. On the other hand, as Quick and Garran pointed out with uncharacteristic melodrama, “a Constitution which did not contain provision for its amendment … would be doomed to collapse ignominiously, and without hope of reconstruction. It would be bound to break beneath the pressure of national forces which it could not control or resist”.1 Therefore, as noted at 4.50, after spelling out the powers and structure of the new federal government, and providing that the colonies continued as States but subject to new limits imposed by the Constitution, the drafters included the special “manner and form” in s 128 for the enactment of alterations to the Constitution. It will be noticed, however, that we have only discussed a few new or changed sections as we have worked through the provisions of the Constitution in this book; in fact only eight out of 44 proposals have been approved by the people. In this Chapter, we look briefly at the details of s 128, and then consider the way that the conduct of referendums2 is affected by the Referendum (Machinery Provisions) Act 1984 (Cth) and by political factors. We then consider some current issues about possible constitutional changes. 1 John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth, H Clark Pty Ltd, 1901 (reprinted Legal Books, 1976), pp 988–9. 2 See Dot Wordsworth, “Why the plural of referendum must be referendums” at http://www.spectator. co.uk/2016/07/why-the-plural-of-referendum-must-be-referendums/.

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38.2 Section 128 — the referendum with the double majority [38.20] As noted at 4.50 and 6.10, s 128 provides that the Constitution can only be amended if a proposal, passed by an absolute majority3 of each House of the Parliament or by one House twice,4 is then approved by the “double majority” of the electors — a majority across the Commonwealth and majorities in a majority of the States. Of course with only six States, a majority of States does not just mean (as it does in Switzerland) a little over 50 per cent; it means a two-thirds majority, four States out of six.5 The section provides that the proposed alteration shall be “submitted” to the electors and does not use the word “referendum”, but although referendum and plebiscite mean basically the same thing6 a kind of faux pedantry has evolved under which dogmatists insist that the word “referendum” is used for votes on constitutional alterations and “plebiscite” for non-binding votes testing public opinion. The double majority requirement was seen as a potential safeguard for the “smaller” (ie, less populous) States — which are also, being further away from the Melbourne– Canberra–Sydney axis, the “outlying” States. The point was supposed to be that a proposal that attacked their interests would not be able to be passed over their objections, even if a huge majority of the people of New South Wales and Victoria was in favour. In addition, the sixth paragraph of s 128 provides: No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law.

Since the “limits” (boundaries) of the States are not defined in the Constitution, it is hard to see how an alteration of the Constitution — even an amendment in general terms of ss 123 and 124, which refer to alterations in the limits of the States — could “increase, diminish or otherwise affect” any specific State so as to need a majority in that State. The reference to limits of States therefore seems pointless. However, an alteration of the minimum number of members would clearly affect Tasmania (unless the total number were first increased so that Tasmania had five without needing to 3 The absolute majority requirement must logically apply to the stage at which a House gives its final approval to the Bill after having considered all amendments, ie, the “third reading” — compare Geoffrey Sawer, Australian Federal Politics and Law, 1901–1929, MUP, 1956, p 54. 4 As shown in 6.10, in practice this means the House of Representatives twice. 5 In 1974 an alteration was proposed under which a “yes” vote in just half the States would be enough. It was only approved by a majority in New South Wales. 6 Actually, if we stuck to the original meanings of the words, referendum — the thing that is to be referred — should refer to the topic of the vote, and plebiscite — a decree made on behalf of the plebs — to the outcome. So if we think our modern usage should reflect the original Latin, we should say that the Constitution has been altered by plebiscite.

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Chapter 38 Formal Alteration of the Constitution — the Record So Far and Current Issues

apply the minimum requirement)7 and any departure from the equality of the number of senators per original State would diminish the “proportionate” (ie disproportionate) representation of all of the less-populous of those States, and would again affect Tasmania the most. This is a grave departure from the principle of equality of voting rights, but it was the price that the populous States paid to get the others to agree to federation.

Amendment of s 128 itself [38.30] Being part of the Constitution, s 128 itself can be amended, though the sixth paragraph is subject to the special requirement noted above. Prior to 1977, only the electors in the States could vote. In 1977, the section was altered so that a proposed alteration must, since then, be submitted “in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives”. The Territory votes count towards the satisfaction of the overall majority requirement, but whether or not an alteration is supported in particular Territories is irrelevant; the proposal still needs to be supported by an overall majority and by a majority in four of the six States. In Buzzacott v Gray [1999] FCA 1525 (a challenge to the holding of the republic referendum brought on a range of grounds, all equally feeble), Von Doussa J held, obiter, that “s 128 is wide enough to provide a procedure for the alteration of any section of the Constitution including s 128”.

38.3 The history of proposed alterations — tendency for change to be rejected, and suggested reasons and remedies [38.40] Leading members of the Constitutional Convention thought that they had created a relatively flexible Constitution. As Mr Barton put it, “the Australian process [of amendment] is very much more easy than the American process”.8 Easy or not, the process has not resulted in many amendments. Out of 44 separate proposals approved by the Parliament and put to referendums on 19 different polling days, only eight have been approved by the people.9 This cannot be “blamed” (if it is regarded as a matter for blame) on the double majority requirement. Only five of the failed proposals have gained majority support but failed to be passed in a majority of States; of these, only four fitted the pattern that the double-majority requirement was intended to guard against, 7 On the population figures as at June 2016, the number of seats in the House of Representatives would have to be increased to 210 before Tasmania would be proportionally entitled to just over four-and-a-half members, or five after rounding up. 8 Australasian Federal Convention Melbourne 1898, Official Record of the Debates, (Reprinted Legal Books, 1986), Vol IV, p 750. See also Mr Higgins at p 720: “It is more difficult to make an amendment of the Constitution in America than it will be here.” 9 See the table at http://www.aec.gov.au/elections/referendums/Referendum_Dates_and_Results.htm.

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Part G Possible Changes to the Federation

having been approved in the populous States but rejected in at least three of the other States.10 The other 39 have simply failed to gain majority support across the country. In the early days of the federation, there was in fact a pattern of the outlying States supporting proposals for increased Commonwealth powers but the populous States (and Tasmania, and the overall majority) rejecting them; in 1913, Queensland, Western Australia and South Australia approved six proposals11 and in 1919 Queensland and Western Australia joined Victoria in approving two more.12 The reasons for the rejection of the proposals must be sought in factors other than a particular suspicion of change in the States that are far from Canberra. Of course, those who have been opposed to the proposed changes would say that they were simply bad changes. Many of them involved giving increased powers to the Commonwealth, and although the discussion at 17.80 showed that many people in Australia are irritated by non-uniform laws it is easy to stir up fears of giving “too much power to Canberra”. Even when the people do want change, sometimes the wrong one has been offered: see the discussion of the republic referendum of 1999 at 38.70 below. Then there is the requirement for the “yes” and “no” cases. Under the Referendum (Machinery Provisions) Act 1984 (Cth), s 11, those members and senators who voted for or against a Constitution Alteration Bill in Parliament can prepare arguments of up to 2000 words for and against the alteration, and the Electoral Commission must post a copy of those arguments to each elector. This was clearly enacted in an attempt to ensure that the electors can make an informed choice; however, it also provides an opportunity for those opposed to change (or those who see a political advantage in opposing change, regardless of their view about the merits of a proposed change) to base their arguments on emotion and misrepresentation rather than on reason. As an adviser to the Australian Local Government Association has warned his officers: Constitutional amendment supporters must be aware that in such campaigns, there is no requirement that the arguments keep to the facts. Amendment opponents very often distort the arguments and exaggerate the dangers, with the aim of frightening the voters. There have been many times when this has occurred. The Aviation proposal (1937) was designed to give the Commonwealth power to make laws with regard to aviation. However, the NO case supporters pushed the argument much further than the government expected, claiming that the proposal would ‘ruin the state railway systems’ and ‘bankrupt country towns’. The two earlier Local Government cases featured similar distortion of the facts by opponents. Opponents of the Commonwealth making grants to local government (1974) asserted that the referendum was 10 Two questions about new Commonwealth powers in 1946 were supported in Western Australia as well as in new South Wales and Victoria, and the idea of abandoning fixed terms for senators so that the terms of newly-elected senators would start soon after an election was supported in South Australia as well as the two populous States in 1974, but only in the populous States in 1984. 11 Wider powers over trade and commerce, corporations, industrial matters, railway disputes and the nationalisation of monopolies. 12 Extension of war-time powers, and nationalisation of monopolies.

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“an underhand attempt to put Canberra’s bureaucratic fingers into every one of Australia’s Council Chambers”. In the recognition of local government case (1988) the proposal was described as being “a legal minefield that will keep the High Court busy for years”. Such exaggerated claims can be difficult to rebut.13

In an attempt to counter this, those writing the “yes” cases have tended to try to keep the “emotional temperature” low, by writing bland and unengaging arguments.14 After conducting a campaign of public education and consultation about the Constitution throughout the 1990s, the Constitutional Centenary Foundation (CCF) commented, in its final report, that it had found: “There is a demand for clear, impartial information on the meaning and intent of referendum proposals. No-one finds the ‘yes/no’ cases helpful, in their present form”15 (emphasis added). Instead, when Local Constitutional Conventions discussed the theme of “The Constitution As A National Symbol” in 1997 and 1998, six out of eight of them recommended that: “Clear, impartial material, written in plain language, should be given to voters when a referendum is held, to help people to understand what proposals are about”.16 As the former Chair of the Foundation wrote after the event: [P]eople must be able to trust the information that is prepared and disseminated in terms both of impartiality and of quality. This is not necessarily achieved by putting the protagonists on the body responsible for the information campaign. On the contrary it is preferable to involve people who are respected for their knowledge, integrity and public commitment and who have no particular stake in the outcome. In New Zealand the panel that prepared the public information for the plebiscites on the electoral system was headed by the Ombudsman, who in New Zealand is a highly respected, apolitical figure. Members of the panel need not be lawyers although they should have high quality legal and constitutional expertise available to them, to ensure that the public can rely on the accuracy of the information distributed to them.17

John Uhr also suggested mechanisms for providing a more balanced flow of information to voters — a bipartisan Parliamentary Committee to pilot alteration proposals 13 Scott Bennett, “Local Government and the Australian Constitution”, paper delivered at the Local Government Constitutional Summit, Melbourne, December 2008. See http://alga.asn.au/site/misc/alga/ downloads/constit-rec/Local_Government_and_the_Australian_Constitution.pdf. 14 Uhr quotes two leading participants in the republic debate as expressing their despair at their own side’s arguments — monarchist Michael Kirby critical of the blatant dishonesty of the No case, and republican Barry Jones critical of the dumbing down of the Yes case; John Uhr, “Rewriting the Referendum Rules”, Ch 13 of John Warhurst and Malcolm Mackerras (eds), Constitutional Politics; the Republican Referendum and the Future, UQ Press, 2002, at pp 177–8. 15 Constitutional Centenary Foundation, Report on a Decade of Experience, 2000, p 31. 16 Constitutional Centenary Foundation, Local Constitutional Conventions — Report, 2000, p 5. 17 Cheryl Saunders, “Insights from the Experience of the Constitutional Centenary Foundation”, Chapter 14 of John Warhurst and Malcolm Mackerras (eds), Constitutional Politics; the Republican Referendum and the Future, UQ Press, 2002.

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through the Parliament, and a Referendum Commission to oversee the conduct of the campaign and to monitor advertisements in an attempt to crack down on the most deceptive claims.18 However, human nature being what it is, any attempt at reform will draw out crazy claims in opposition. (For some of the claims made during the republic campaign, see 38.70 below.) It is up to the proponents to meet them head-on, instead of just assuming that everyone will see that they are self-evidently ridiculous. Those arguing for change in recent campaigns seem never to have learned what students are taught about writing argumentative essays19 — that instead of just reciting the arguments for one’s own side, you acknowledge the arguments coming from the other side and show how and why they are wrong. Some structural features of the way proposals have to be put to a referendum may also militate against their success. Section 128 provides that the referendum must be held between two and six months after the proposal has been passed by the Parliament. Of necessity, a specific set of textual amendments has to be proposed; once a government has had a proposal passed through Parliament, it commits itself to a referendum date and even if the “no” campaign exposes serious flaws in the proposal every government so far has doggedly plugged on towards a defeat that has looked more inevitable as the referendum date has approached. A government that wishes to promote change should have laid the groundwork well before the passage of the proposed alteration,20 but it should also be ready to withdraw a proposal if flaws are exposed in it, pass a modified proposal through Parliament, and start the two–six months period running again — but the constraints of the three-year term would make that difficult unless the government has started the procedure early in its term, or unless it is prepared to continue the battle in the following term.

38.4 Recent and current issues Constitutional recognition of Australia’s Indigenous people [38.50] Insofar as the Constitution acknowledges that it has any pre-history, all that it mentions is that there were some colonies in existence in Australia, and that the people had decided to federate. It does not say so expressly, but it is generally consistent with the assumption that some British colonies had been founded in an empty land, apart from the terse references to the existence of “the aboriginal race” who were not included in the race power, and “aboriginal natives” who were not to be counted among the numbers of the people for the purposes of apportioning representatives among the States. This has come to seem inappropriate to many people in recent times. 18 John Uhr, n 14 above, at pp 191–5. 19 See https://www.kibin.com/essay-writing-blog/argumentative-essay-outline/ or any one of many other websites on this topic. 20 See the suggestions by Saunders in the chapter cited in n 17 above, at pp 206–8.

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A Council for Aboriginal Reconciliation was established in 1992 (the year of the Mabo21 decision). As various options were explored, some campaigners focussed on the idea that the Indigenous people should be expressly recognised in the Constitution. “Recognition” can have a range of meanings — to some, it means that there should be a preamble to the Constitution (like those added in the last 20 years to some of the State Constitutions)22 recognising and honouring the prior occupation of the land by Indigenous people; to others it means the inclusion of more substantive provisions giving the Parliament the power to make laws for the benefit of Indigenous people or directly recognising their claims in the Constitution. In 2010, the Gillard Government appointed an Expert Panel on Constitutional Recognition of Indigenous Australians to report on ways of achieving recognition. It its Report23 it discounted the idea of a new preamble, for reasons discussed (and refuted) in the next section, but recommended: n n

n

n

the repeal of s 25 and para 51(xxvi) (the “race power”); insertion of a new s 51A, with its own preamble, giving the Commonwealth Parliament power to make laws with respect to Aboriginal and Torres Strait Islander peoples; insertion of a new s 116A, invalidating Commonwealth, State or Territory laws that discriminate on the grounds of race, colour or ethnic or national origin with an exception for laws for overcoming disadvantage or protecting culture, language or heritage of a group; and insertion of a new s 127A, declaring that the national language is English but that the indigenous languages are part of our national heritage.

The Report was then considered by a Parliamentary Select Committee,24 which endorsed the proposals for repeal of s 25 and para 51(xxvi), and offered several options for a replacement “persons power”. The matter then stagnated while other matters engaged the Parliament’s attention. In December 2015, Prime Minister Turnbull announced the appointment of a Referendum Council to advise on “next steps towards a referendum to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution”.25 Indigenous opinion is divided as to whether constitutional recognition is preferable to the long-held ambition for recognition by a treaty, or makarrata, or whether both should be sought. The Prime Minister had expressed 21 Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1. 22 For example, Constitution of Queensland 2001, preamble; Constitution Act 1902 (NSW), s 2. The spirit of these acknowledgments is usually quickly sabotaged by a section declaring that nothing in the fine words creates a legal right or can be used to interpret other provisions of the Constitution — eg, Queensland s 3A, NSW sub-s 2(3). 23 The Expert Panel’s website has disappeared but at the time of writing the Report is displayed at http:// www.recognise.org.au/wp-content/uploads/shared/uploads/assets/3446_FaHCSIA_ICR_report_text_ Bookmarked_PDF_12_Jan_v4.pdf. 24 See http://www.aph.gov.au/~/media/Committees/Senate/committee/jscatsi_ctte/final_report/report.pdf. 25 http://www.malcolmturnbull.com.au/media/referendum-council-membership.

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the hope that it might be possible to hold a referendum on 27 May 2017, the 50th anniversary of the earlier referendum extending the “race” power, but this no longer seems possible. Readers are advised to follow the news media and the Referendum Council’s website26 for further developments.

A new Preamble and some words of local enactment [38.60] In Chapter 5, we traced the gradual development of Australian independence and the High Court’s acceptance that whatever may be the origin of our constitutional norms “they are now to be traced to Australian sources”.27 However, the form of the Constitution remains at odds with our independent status; it is still, on its face, s 9 of a British Act that, on its face, gets its force from its enactment by Her Majesty “by and with the advice and consent of the Lords … and Commons”. It is possible, in hindsight, to rationalise this from a nationalistic perspective and read the introductory words of clause 9 (“The Constitution of the Commonwealth shall be as follows:”) as the words specifically enacting the Constitution and as wishing us goodbye on our journey to independence but it would be better if the first page or two did not need so much retrospective re-interpretation. In Cheryl Saunders’s report on the experience of the CCF, she noted: The Foundation encountered no support for retaining the casing of the British Act in which the Constitution presently is found. Not surprisingly, it found broad acceptance for the need for the Constitution to say that Australian government draws its legitimacy from the people.28

The eight Local Conventions noted above at 38.40 unanimously concluded that: “The Constitution should specifically state that it draws its authority from the people of Australia”. One of them concluded that the Constitution should have a “mission statement”, but six of them preferred that it should have its own preamble.29 The question of a new preamble arose in relation to the republic debate in 1998–1999. A new preamble was proposed in a separate referendum from the main one about changing to a republic. Based on a draft by the poet Les Murray and then modified within the Prime Minister’s office, it ended up as neither good poetry nor sound legal prose, was subject to general ridicule, and received only a 39.4 per cent “yes” vote. It was also criticised on technical grounds. The Constitutional Convention had recommended the inclusion of a new preamble at the front of the text of the Constitution itself, but had also recommended that the original preamble and enacting words should be left in place. The nearest thing to an Australian re-enactment, the delegates said, should be a 26 https://www.dpmc.gov.au/indigenous-affairs/constitutional-recognition/referendum-council. 27 Attorney-General (WA) v Marquet [2003] HCA 67; (2003) 217 CLR 545, per Gleeson CJ, Gummow, Hayne and Heydon JJ at [66]. 28 Saunders, n 17 above, at 211. 29 Constitutional Centenary Foundation, Local Constitutional Conventions — Report, 2000, p 3.

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statement that we the people “commit ourselves to this Constitution”. “Commit to” is not far from “submit to”. As Winckel pointed out,30 the choice of words was “indicative of a constitution being imposed from above, rather than one being authorised by the will of the people.” Winterton and McKenna remarked that: “A Constitution with two preambles, contradictory in both substance and style, would be clumsy and confusing”.31 Recollection of this criticism recently led the Expert Panel on Constitutional Recognition of Indigenous Australians to reject the idea of a new preamble for the Constitution, and instead to recommend the even odder alternative of a preamble for just one section.32 However, the above criticisms only apply if a new preamble is to be placed in the Constitution without new enacting words that make it clear that the Constitution “draws its authority from the people of Australia”, as the Local Conventions recommended. The power to amend the “internal” text of the Constitution clearly extends to placing new provisions at the head of the text, before the words, “This Constitution is divided as follows:—”. There could be no confusion if a phrase, combining enacting words with a supreme law clause, were inserted in that place, stating something like: We the people … affirm and declare that this Constitution continues to have force as the supreme law of the land and that it is binding on all legislatures, executive governments, courts, judges and people within Australia and in all places where Australian law applies.

If something like that were inserted, other more “preambular” recitals could be inserted, in the gap in the above words, recognising things like prior occupation of the land by Indigenous people, the importance of the rule of law and constitutionalism, and our determination to live together in mutual respect under the Constitution.33 The recitals could include anything else that was thought appropriate, bearing in mind Winckel’s stipulation that the purpose of a preamble is to “introduce the law that follows and [to] provide background information or reasons for the enactment”.34 If some sort of preamble, and new enacting words and a supreme law clause, were added at the start of the actual Constitution as suggested, the earlier parts of the British Act would not contradict them; the British Act would simply become irrelevant. In the author’s opinion, the Constitution could then simply be seen as having been “floated 30 Anne Winckel, “A 21st Century Constitutional Preamble — An Opportunity for Unity rather than Partisan Politics” (2001) 24 UNSWLJ 636. 31 George Winterton and Mark McKenna, “Two Preambles is Stretching the Mateship”, The Australian, 22 April 1999, p 13. 32 See the Report, n 23 above, at 153. The proposal was odd, and indeed ungrammatical, in that it suggested a preamble featuring verbal phrases beginning with “Recognising …”, “Acknowledging …” and so on, with no indication of who was doing the recognising and acknowledging. As Dixon CJ might have said, of all instruments, a written Constitution should be the last to include dangling participles! 33 See the author’s own proposal at https://auspublaw.org/2016/05/reasons-not-to-be-scared/. 34 Winckel, n 30 above.

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free” of the British Act by a “legal revolution”.35 In case there was any lingering doubt in the minds of those who cannot shake off the influence of A V Dicey (see 2.90), we could, in the same referendum, add a section to the Constitution similar to s 26 of the Constitution Act 1986 (NZ), which declares that certain enactments of the Parliament of the United Kingdom (including the New Zealand Constitution Act 1852) have ceased to have effect as part of the law of New Zealand. New Zealanders now have no doubt that their Constitution is “autochthonous”, ie, home-grown. It is time for Australians to have the same constitutional self-confidence. But then, in New Zealand the Parliament was able to enact the 1986 Constitution itself. Here the politicians would have to be willing to put a proposal to the people by which the people would declare that they are the sovereign enactors of the Constitution; so far our politicians have seemed reluctant to do that.

An Australian republic [38.70] The proposal for a change to a republic was voted down in 1999. Despite opinion polls showing that the majority of Australians wanted to change Australia to a republic, a monarchist Prime Minister manipulated the process so that a different model of republic was offered from the one that the majority of the people preferred.36 Campaigners for a republic did not help by attacking each other’s “models”. Proponents of a directlyelected President argued that if we allowed politicians to choose the President, he or she would tend to be politically biased, while those arguing for choice by the Parliament seemed to believe that the people were so shallow that they would elect Kylie Minogue or Eddie Maguire.37 In fact, in the many democracies in other parts of the world which are “parliamentary republics” (ie, where the executive is formed from among the Members of Parliament and the President appoints a Prime Minister and is otherwise largely a figurehead) about half of them let the people vote for President and the other half leave it to the Parliament.38 And nearly always, under both systems, the President is indeed 35 For an earlier article advocating a legal revolution, see Mark Moshinsky, “Re-Enacting the Constitution in an Australian Act” (1989) 18 Fed L Rev 134. However, Moshinsky was suggesting that the Parliament could re-enact the Constitution as a local Act. Instead, it would be far more consistent with the history and spirit of the Constitution if the people were to approve and participate in a re-enactment. 36 Polls before the referendum that showed a preference for a directly-elected President were confirmed by Gow, Bean and McAllister’s Australian Constitutional Referendum Study with 3400 respondents, conducted just after the referendum. The gateway to the results of the study is at http://politicsir. cass.anu.edu.au/research/projects/electoral-surveys/australian-election-study/other-studies/acrs-1999. To download the results, you need to register as a user. 37 For these and other silly arguments refuted, see John Pyke, “Let’s leave hysteria to the monarchists”, Ch 11 of John Uhr (ed), The Case For Yes, Federation Press, 1999, at 78. 38 Ironically, the author first learned of the variety of constitutional arrangements in parliamentary republics from a book by Malcolm Turnbull: The Reluctant Republic, William Heinemann Australia, 1993, Appendix Three. Having ably shown that both systems of selecting a President worked equally well, Turnbull then nailed his colours to the mast of appointment by Parliament and led the campaign for a republic to a quite unnecessary defeat.

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a former party-politician39 — but always he or she immediately abandons party bias and acts as an impartial appointer-of-Ministers, just like the Queen in England or a Governor-General or Governor in Australia. The only difference between the two models is that one is more emotionally concordant with the belief in the sovereignty of the people and the other is less so. Then there were the misconceptions either peddled by the monarchists or spontaneously arising among the less-well-informed among the people. Saunders40 quotes some that were solemnly stated to her: “Australia is not yet ready for independence” or “Australia is too young to go out on its own” — when we have been independent since 1939 or soon after. Some “raised concerns whether ‘England will still help us with things like East Timor’ if we were to become fully independent”, when in fact Britain’s help with East Timor had been minimal; its contribution to the post-independence force (“INTERFET”) was less than that of Australia, New Zealand, Thailand or even little Fiji. “Some voters”, she reported, “apparently believe that the present position of head of state in Australia has the capacity to keep elected representatives honest and to restrain abuse of power, including the enactment of legislation that infringes human rights” — a view that suggests that people have learned their constitutional theory more from children’s stories about Kings and Queens and from Disney princess movies than from a study of history and modern political systems! Another fear was that if we became a republic all “Crown land” would be automatically transferred to the Indigenous people. She concluded that: “It is impossible to know how widespread these misunderstandings are. The Foundation encountered them often enough to suggest that they might be more pervasive than we like to think, or hope.”41 The republic issue is, presumably, not dead; it is still officially supported by the Labor Party and the Greens and the Prime Minister, at the time of writing, is the man who led the push for a republic last time around. It is to be hoped that next time a change to a republic is proposed, the debate will be based more on facts about how systems of government work, in Australia and in other democratic nations, and what is concordant with Australia’s political ethos, and less on fairy tales.

A Bill of Rights? [38.80] As noted many times throughout the book, Australia does not have a Bill of Rights in the Constitution; the drafters were quite confident that the MPs and Ministers of the future would be good sound chaps like themselves, who would never dream of enacting laws that impinged on the liberties of “the subject”. As shown throughout the book, we do have a guarantee of judicial independence at Commonwealth and State 39 One exception was the direct election by the voters of Mary McAleese, a former Law Professor and law-reform campaigner, as President of Ireland from 1997 to 2011. Again this refutes the notion that the people are so facile that they will elect a pop start or TV personality. 40 Saunders, n 17 above, at 205–6. 41 Saunders, above n 17 at 206.

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level, the guarantee of “just terms”, a few weak express guarantees of rights, and the rather stronger implied rights to vote and to hear political arguments before voting. We do have a liberal-democratic tradition featuring the rule of law, under which the executive cannot assume arbitrary powers, and the judges are perhaps using the “principle of legality” to read down Acts that weaken our rights more frequently and more strongly. The “watchdog organisation” Freedom House gave us a score of 40/40 for political rights and 58/60 for civil liberties for the year 2016.42 However, since the executive governments necessarily control at least the “lower” House of the corresponding Parliaments, it is generally easy enough for them to sponsor the passage of laws giving excessive powers to the police, to intelligence agencies and “Border Force”, or even to Ministers. If the Act shows an intention to abrogate rights clearly enough, the judges will not read the Act down; remember Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196, discussed in 13.80. Because of our “dualist” approach to international law (12.150), we can sign treaties like the International Covenant on Civil and Political Rights (ICCPR) and the Convention Relating to the Status of Refugees and then blithely fail to implement them into national law.43 We have acceded to the First Optional Protocol to the ICCPR, which allows for Australians to take a complaint to the United Nations Human Rights Committee, but often when a complaint is upheld the government’s response has been, as Charlesworth puts it, “combative”.44 The complaints that have been upheld by the Human Rights Committee and dismissed by the government include, unsurprisingly, complaints about immigration detention, the treatment of Indigenous prisoners, and discrimination against gay people. The Freedom House report, above, also noted failings in the areas of anti-terrorism laws and the treatment of Indigenous people, and the fact that we are a “destination country” for people-trafficking and that laws to deal with this have only recently been strengthened. In light of the perceived deficiencies in our protection of human rights, three main remedies have been suggested: 1. a Commonwealth Act, enacted under the external affairs power, to turn the provisions of the ICCPR into enforceable law. This would override State and Territory laws, but of course would not override Commonwealth laws because it would be impliedly repealed by any later such law that was inconsistent with it; 2. an “interpretive” Human Rights Act along the lines of the New Zealand and United Kingdom ones discussed at 13.90, which would codify and possibly strengthen 42 See https://freedomhouse.org/report/freedom-world/2016/australia. 43 This is, in itself, a breach of Article 2, clause 2, of the ICCPR which provides: “Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant”. 44 See Hilary Charlesworth, “Human Rights: Australia versus the UN”, Democratic Audit of Australia Discussion Paper 22/06 at http://apo.org.au/files/Resource/20060809_charlesworth_aust_un.pdf.

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the “principle of legality” where Commonwealth laws are concerned. As noted at 13.100, this was recommended by the Brennan Committee but the government rejected the main recommendation in favour of an improved parliamentary scrutiny process; and 3. the incorporation of a true Bill of Rights into the Constitution by referendum. The first and second responses would not be truly constitutional (though if implemented they would certainly generate some constitutional case law), so they will not be discussed further. There is currently no serious debate about a constitutional Bill of Rights, but, in case one starts up again, the following are the main arguments that will arise: Against n n n

Inflexibility in two senses: – a Bill tends to enshrine the values of an earlier generation – it prevents the legislature from being able to respond quickly in an emergency, eg in the cases of the sudden rise of al-Qa’ida and then ISIS. A Bill gives the last word on sometimes-controversial issues to unelected judges, not to our elected representatives. Having a Bill makes the process of appointing judges to the highest court even more politicised than it already is — especially if the nominees have to go through a confirmation process in a highly-politicised chamber like the US Senate.

In Favour n n n

n

Even if a Bill is no longer needed as a defence against utter tyranny, it can still be useful in defence of minorities against hysteria and “moral panics”. Having a code of rights for everyone to read is more certain than relying on the judicial development of the common law. As to inflexibility in the first sense above, except for the right to bear arms the values entrenched in the United States Bill of Rights are not out of date, but are basic values of liberal democracy. Even in the United States the Bill could be amended (though by a time-consuming process that does not directly involve the people). Despite the constant complaints from some quarters about the US Bill and its judicial interpretation, there has never been a serious attempt to change a word of it. As to inflexibility in the second sense, perhaps that’s a good thing — as Benjamin Franklin is believed to have said: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety”.45 In any case, a clause like Article 15 of the European Convention on Human Rights, allowing derogation from some of the listed rights “to the extent strictly required by the exigencies of the situation” … “in time of war or other public emergency threatening the life of the nation” could be included.

45 The words come from a letter presumed to have been written by Franklin.

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n

n

n

As to the “unelected judiciary”, the whole point of the tenured judiciary, as first implemented in the Act of Settlement (see 2.70), was to defend ordinary people against a power-mad executive that can’t tell the difference between opposition and sedition! Lawyers, though they may have biases, have been trained to consider both sides of an argument; our elected representatives have an unfortunate tendency to vote as their party leaders tell them and consider the short-term rather than the long-term. As Alexander Hamilton said, the judiciary is “the least dangerous branch”46 of government. In this country, judges do not go through a combative confirmation process. The Justices of the High Court are indeed appointed by the executive of the day, but insofar as there is any bias in the selection process, it has, in the past, focussed on the candidates’ position on States’ “rights” versus centralism47 and not on their position on authoritarianism versus civil liberties. Justices appointed by both major parties have agreed on the developments as to free speech and voting rights discussed in Chapters 14 and 15, and those appointed in future could be expected to interpret a Bill of Rights in a sensible and balanced manner. Finally, it is argued that the existence of a Bill has an educative value — citizens, police and politicians are made more aware of what our rights are. It helps to develop a “culture” of rights.

A possible first small step — a prohibition of discriminatory laws [38.90] The way the “pros and cons” are presented above may suggest that the author is in favour of the addition of a Bill of Rights to the Constitution — and indeed, on balance, that is true. However, as noted above, the “rights landscape” is in fairly good condition except for the problems affecting Indigenous people and asylum seekers — so perhaps the most urgent need is not for a full list of rights but for provisions that seek to ensure that the rights that most of us (the “mainstream”) already enjoy are available to all, without discrimination. It is notable that most of the major human rights documents contain a section that declares that all of the listed rights are to be enjoyed by all persons “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.48 If rights need greater protection, perhaps the greatest need is for a section guaranteeing that the rights that are generally enjoyed by the “mainstream” are also equally available to minorities (and to women, who although not a minority have historically had less rights). As noted above at 38.50, the Expert Panel on Constitutional Recognition of Indigenous Australians suggested the addition of a section 116A to the Constitution, 46 In Number 78 of The Federalist Papers (1788, many editions). 47 See Anne Twomey, Book Review of “Inside the Mason Court Revolution: The High Court of Australia Transformed by Jason L Pierce” (2007) 31 MULR 1174. 48 ICCPR, Art 2(1). Compare the Canadian Charter of Rights and Freedoms, s 15(1) and the European Convention on Human Rights, Art 14.

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outlawing discrimination on racial grounds. The then Prime Minister, Tony Abbott, said that at first glance he was opposed to it as it would amount to a “one-clause Bill of Rights”.49 However, it is suggested that if there is one clause of a Bill of Rights that we most need it is an anti-racial-discrimination one. Then, perhaps, others could be added prohibiting discriminatory laws on the other grounds listed in Art 2(1) of the ICCPR. After that we could consider whether we need to spell out which rights are equally protected, but we might collectively decide that the list of rights is well-enough understood already (see, for example, the list of those protected by the “principle of legality” at 13.80) and the only extra constitutional provisions that had been necessary were guarantees of equality.

Constitutional recognition of local government [38.100] Local government is generally referred to as the third level of government in Australia. There are those who dispute this, saying that it is just “a means used by the state governments for exercising aspects of their own administrative governmental functions”50 but this, while true as far as it goes, does not support the writer’s conclusion; if a level of government can delegate some powers to a group of more local elected bodies (as it can, according to the Privy Council)51 then there is nothing wrong with saying it has created another “level” of government. The existence of local governments is somewhat precarious — they can be merged without their consent,52 and they can be suspended and have their functions performed by an Administrator for claimed inefficiency or corruption.53 This has led to calls for some form of constitutional recognition of local government. Many of the States have responded by including a section in the relevant Constitution Act saying “there shall continue to be a system of local government”54 or even by providing that a Bill for the abolition of local government cannot be enacted without approval by referendum.55 The sections usually go on to make it clear 49 See “Pressure on Tony Abbott to engage for change”, Weekend Australian, 21–22 January 2012, at http:// www.theaustralian.com.au/national-affairs/indigenous/pressure-on-abbott-to-engage-for-change/ news-story/b4b4b59b78004615b098e59c61f9be19. 50 David Mitchell, “Why Local Government Should Not Be Recognised in the Constitution”, Quadrant Online, April 2012, at https://quadrant.org.au/magazine/2012/04/why-local-government-should-not-be-recognisedin-the-constitution/. 51 As noted at 27.60, Hodge v The Queen [1883] UKPC 59; (1883) 9 AC 117, a case about a local licensing board, is the one of the Burah/Hodge/Apollo trilogy that comes closest to the situation of a local government. 52 For example, Local Government Act 1993 (NSW) ss 218A–218F. 53 For example, Local Government Act 1993 (NSW) s 255. 54 Constitution Act 1934 (SA), s 64A; Constitution Act 1934 (Tas) s 45A; Constitution Act 1975 (Vic) s 74A, Constitution Act 1902 (NSW) s 51, Constitution of Queensland 2001 s 70. 55 Constitution Act 1934 (SA), subs 64A(3); Constitution Act 1975 (Vic) subs 18(1B); Constitution of Queensland 2001 s 78.

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that the State Parliament has complete discretion as to the details of whatever laws it might make about local government.56 The above provisions of course guarantee nothing; except in Victoria, even the provisions “requiring” a referendum are only singly entrenched and, as discussed at 27.150 even a doubly-entrenched provision is probably ineffective if the law breaching its strictures is not about the constitution, powers or procedure of the Parliament. So lobbyists have resorted to asking for recognition in the Commonwealth Constitution. In 1988, there was a proposal to add a new section which would provide: Each state shall provide for the establishment and continuance of a system of local government, with local bodies elected in accordance with the laws of the state and empowered to administer, and to make by-laws for their respective areas in accordance with the laws of the state.

It received a 33.6 per cent “yes” vote. In 1974 there had been a more limited proposal to empower the Commonwealth to grant money directly to local government bodies, which was also not approved, and that idea was revived in 2011 by an Expert Panel on the Constitutional Recognition of Local Government. A Constitution Alteration Bill was presented to Parliament to amend s 96 to provide that grants could not only be made to a State, but also to “a local government body formed by a law of a State”. By including the last seven words, the drafters hoped to avoid any suggestion that the amendment was usurping or directing the States’ right to legislate generally with respect to local government. If successful, the amendment would have validated a series of programs under which the Commonwealth had been making grants to local government, bypassing the States, the validity of which had been thrown into doubt by the Williams cases57 discussed at 21.210. In the hurly-burly of politics as the 2013 election approached, the referendum did not proceed. Many councillors are still keen to have some form of “constitutional recognition” (and particularly to have the legality of the direct grants from the Commonwealth made clear)58 so the issue may be revived at some future time. It will of course be opposed by traditionalists and defenders of States’ “rights”.59 The issue arouses passions on both sides, but one has to wonder whether ordinary voters care much whether grants (and directions as to what 56 The extreme example is s 74B of the Constitution Act 1975 (Vic), which lists 15 sub-topics of local government law that can be regulated at the Parliament’s discretion. 57 Williams v Commonwealth (No 1) [2012] HCA 23; (2012) 248 CLR 156 and Williams v Commonwealth (No 2) [2014] HCA 23; (2014) 252 CLR 416. 58 See the resolutions of the National General Assembly of Local Governments at www.alga.asn.au/site/ misc/alga/downloads/events/2016NGA/2016_Resolutions.pdf. Many of them call for indexation of, or increases in, direct grants from the Commonwealth to local governments and Resolution 69 continues the call for a referendum to amend the Commonwealth Constitution to recognise local government. It is clear that local councillors have little regard to the niceties of the Williams cases, or to States’ “rights”, as long as the money is forthcoming. 59 For reactions to the proposal in 2012–2013 see http://www.smh.com.au/national/a-little-local-difficultyfor-reform-20120113-1pzb5.html and http://ipa.org.au/news/2909/big-implications-in-council-vote.

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to spend them on) pass direct from the Commonwealth to local councils, or whether they are funnelled through the State Treasuries. If the protagonists of “recognition” cannot persuade the voters that it matters, change is unlikely to happen.

Repairing the federal fiscal imbalance, without a formal amendment [38.110] As we have seen in several previous chapters, there is a complete mismatch between the revenue-raising capacities of the Commonwealth and States and the division of administrative responsibilities between them (see Figure 35.1 for a graphic reminder of the problem). For some years from 2013–2016 the Commonwealth Government was notionally conducting an inquiry into “the Reform of the Federation” in which it said it was considering adjustments of the roles of Commonwealth and States “within the existing Constitutional framework”.60 In practice, the changes that were suggested involved the States taking over more responsibilities and imposing more State taxes, which naturally triggered complaints by the States. In April 2016, the Turnbull Government abandoned the idea of issuing a white paper although it claimed that ideas would continue to be progressed in discussions between the Commonwealth, State and Territory Treasuries.61 The prospect of significant reforms emerging from such a process seem bleak. However, there are two obvious things that could be done, while staying “within the existing Constitutional framework” that would immediately correct the “vertical fiscal imbalance”. They have both been mentioned in earlier chapters; one would involve the Commonwealth using a power that it has had for 70 years and has persistently ignored, and the other would involve the High Court correcting what is arguably a persistent misinterpretation of the Constitution. The most obvious possibility has already been mentioned at 20.60; on the clear and obvious reading of para 51(xxiiiA) the Commonwealth could take over all public provision of medical and dental services, with or without the consent of the States, without further constitutional amendment. To administer a nation-wide public hospital system, the Commonwealth would, of necessity, have to strengthen the present network of region-based health boards, thus setting up a precedent and indeed a case-study from which we could learn whether a system of regions rather than States would work more responsively and efficiently.62 A takeover of health would also, at one stroke, cure the “Vertical Fiscal Imbalance” (VFI) in the federation, at least if one accepts 60 As is usual when a government changes a policy, it has obliterated all traces of the past from government web sites. At the time of writing (October 2016) the main Issues Paper can still be found on the Australian Healthcare and Hospitals Association site at ahha.asn.au/sites/default/files/docs/policy-issue/rotf_ issues_paper_1_-_a_federation_for_our_future.pdf. 61 See http://www.abc.net.au/news/2016-04-28/malcolm-turnbulls-$5-million-tax-white-paper-scrapped/ 7367204. 62 For a thorough discussion of the possibility of moving to regional governments, see AJ Brown and JA Bellamy, Federalism and Regionalism in Australia; New Approaches, New Institutions?, ANU E-Press, 2006, at http://press.anu.edu.au/publications/series/australia-and-new-zealand-school-government-anzsog/ federalism-and-regionalism. For a much more sceptical view (“It is the detail of such proposals that is usually their undoing”), see Anne Twomey, “Regionalism — A Cure for Federal Ills?” (2008) 31 UNSWLR 467.

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the Commonwealth’s story that it collects the GST on behalf of the States; note that Figure 35.1 shows that the amount spent by the States on health is greater than the amount received in Commonwealth grants other than the proceeds of the GST. If the Commonwealth were to take over health, it could abolish all the tied grants to the States, and the States would be better-off financially and more autonomous (and scandals in the delivery of health services would embarrass a Commonwealth Minister rather than a State Minister!). The other thing that could be done without formal change to the Constitution depends on the High Court. As noted in Chapter 29, the Court has often held State sales taxes, and taxes similar to sales taxes, invalid by a majority of only 4:3 (and on one occasion by a three-all decision with the Chief Justice having a casting vote), and the majority views have been based on nothing much more than Dixon J’s dogmatic and utterly unsupported assertion that s 90 was intended to give the Commonwealth a monopoly of the “taxation of commodities” (see 29.50). If the Court were to adopt the alternative approach — that a tax on goods is an excise only if it discriminates between imported goods and local ones — the States could impose the GST, and the VFI would really disappear. If this would cause annoyance to traders who have become used to having only one agency collecting the tax, the Commonwealth and States could make arrangements so that the Australian Tax Office still collected the tax, but this time genuinely on behalf of the States rather than notionally. Grants to equalise State resources, however, would now have to come out of the Commonwealth’s other revenues.

The federal distribution of powers — the most obvious formal amendment [38.120] As noted at 38.40 above, many of the alterations that have been proposed and rejected over the years have involved an expansion of Commonwealth powers. If the Commonwealth is ever again game to ask the electors for additional power, there is one option that stands out by its obviousness. There may have been a point to having different laws for interstate and intrastate trade back in the days when we had separate State beer companies and separate stock exchanges and a break of railway gauge at Albury, but those days are gone — these days more and more businesses trade in many States (with odd consequences for the application of s 92 that we noted at 30.160). It was noted in 17.80 that of all the people who are irritated by State-to-State variations in laws in recent decades, the business community is the most irritated. Despite recent academic urging,63 the High Court is probably unlikely to disregard the limiting words “with other countries, and among the States” at the end of para 51(i). However, a proposal to remove them by constitutional amendment would probably have widespread support among national business organisations (and therefore the Liberal Party could hardly oppose it, as it has 63 For example, David Mccann, “First Head Revisited: A Single Industrial Relations System under the Trade and Commerce Power” (2004) 26 Syd LR 75. Michael Stokes even suggests, somewhat paradoxically, that the trade and commerce power should be read more broadly while the corporations power should be read more narrowly, in “The Role of Negative Implications in the Interpretation of Commonwealth Legislative Powers” (2015) 39 MULR 175.

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often opposed expansion of Commonwealth powers in the past). This would enable the Commonwealth to make, and Commonwealth authorities to enforce, general laws about all trade and commerce within the country. (Anyone who has had to work out the interaction between the Competition and Consumer Act 2010 (Cth) and the various State Fair Trading Acts and Competition Reform Acts would also heave a sigh of relief.) There are certainly many other improvements that can be made to the working of federation by cooperative action between Commonwealth and States as discussed at 35.60, but this is one area where, it is suggested, it is time for an overriding Commonwealth power. With the implementation of the three suggestions in this section and the previous one — one depending on the Commonwealth taking the initiative, one depending on the High Court seeing the light, and one on the Commonwealth Parliament and the electors — it is suggested that we could have a federation that operates much more rationally and with a better fiscal balance by, say, the year 2020.

FURTHER READING The Alteration Process in General Gregory Craven, “Would the Abolition of the States be an Alteration of the Constitution under Section 128?” (1989) 18 Fed L Rev 85 Paul Kildea and Rodney Smith, “The Challenge of Informed Voting at Constitutional Referendums” (2016) 39 UNSWLJ 368 Ron Levy, “‘Deliberative Voting’: Realising Constitutional Referendum Democracy” [2013] Public Law 555 James A Thomson, “Altering the Constitution: Some Aspects of Section 128” (1982–1983) 13 Fed L Rev 323 A Bill of Rights? Frank Brennan, Legislating Liberty: A Bill of Rights for Australia?, UQ Press, 1998 Hilary Charlesworth, Writing in Rights: Australia and the Protection of Human Rights, UNSW Press, 2002 Seweryn (Sev) Ozdowski, “The Content of an Australian Bill of Rights”, speech given at Bill Of Rights Conference, Friday 21 June 2002, at https://www.humanrights.gov.au/ news/speeches/content-australian-bill-rights-dr-sev-ozdowski-oam-2002 James A Thomson, “An Australian Bill of Rights: Glorious Promises, Concealed Dangers”, (1994) 19 MULR 1020 Federalism Brian Galligan, “Processes for Reforming Australian Federalism” (2008) 31 UNSWLJ 617 Scott Guy, “Overcoming the Institutional and Constitutional Constraints of Australian Federalism: Developing a New Social Democratic Approach to the Federal Framework” (2006) 34(2) Fed L Rev 319

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Index Aboriginal and Torres Strait Islander peoples see Indigenous Australians Absolute power cases challenging, [2.60] divine right of kings, [2.60] historical concept, [2.20], [2.60] Acquisition of property on just terms Aboriginal land, [22.50], [22.60] acquirer need not be Commonwealth, [22.90] acquisition by State, [22.110] authorised by Commonwealth law, [22.110] acquisition, meaning, [22.120] extinction of rights distinguished, [22.150] forfeiture distinguished, [22.120] limitation of rights distinguished, [22.140] resolution of competing claims distinguished, [22.130] taxation distinguished, [22.120] acquisition of territory distinguished, [36.30] acquisition under law, [22.70] acquisitions subject to, [22.70]–[22.150] adjusting value of acquired lands, [22.60] business, application to, [22.50] cases about, [1.40] chattels, [22.50] choses in action, [22.50] Commonwealth–State agreement, [22.110] companies, cases by, [1.40] defence power and, [19.100], [22.70]

exploration rights, cancellation of, [22.150] extinction of rights created by statute, [22.150] fines excluded, [22.120] forfeiture, whether applies to, [22.120], [34.70] gold mine, land over, [22.100] grant and limitation of power, [22.10], [22.20] “Historic Shipwrecks” clause, [22.40], [22.160] human rights protection, [13.30] interpretation of power, [17.40], [22.50], [22.120] just terms, [22.60] land, [22.50], [22.60] law drafters side-stepping effect of, [22.160] limitation of power, [22.10], [22.20] limitation of rights distinguished, [22.140] mineral rich land, [22.100] monetary value of property, [22.60] negotiated acquisitions, application to, [22.80] outcomes where law fails to provide just terms, [22.20] acquisition declared invalid, [22.20] adjustment of amount of compensation, [22.20] whole Act declared invalid, [22.20] overview, [22.10] places acquired by the Commonwealth, [28.50] possession of land, [22.50] “practical compulsion” treated as legal, [22.80]

prerogative power to acquire, not applicable where, [22.70] property, meaning, [22.50] protection of property rights, [22.10] purpose of acquisition, [22.30] resolution of competing claims distinguished, [22.130] State acquisition by, [22.110] acquisition from, [22.100] taxation excluded, [22.120] territories power, application to laws under, [22.40], [36.90], [36.100] two heads of power required, [22.30] wartime, [19.100], [22.60] water allocations under bore licences, [22.150] Administrative law remedies challenges to executive power based on, [1.20], [11.120] Governor in Council, decisions in name of, [11.150] constitutionalisation, [11.120] High Court jurisdiction, [13.40] judicial review, [2.120], [7.20], [11.130], [11.140] privative clause decisions, [11.120], [11.140] State laws, [13.40] supervisory writs, [1.20], [11.60], [11.120] Aliens see also Immigration and emigration abrogation of executive power, [11.110] citizens of other Commonwealth nations as, [5.110], [8.40] citizenship see Citizenship definition, [5.50], [5.110], [8.40], [19.170]

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Aliens continued deportation, [19.140], [19.150], [19.160] aliens power, [19.150] cases about, [1.40] immigration power, [19.150], [19.160] detention, [10.40], [11.110], [19.170], [25.60] court ordering release, [25.50], [25.60] judicial power, [25.40], [25.50] punitive, whether, [25.60] immigrant, compared, [19.140], [19.160] naturalization and aliens power, [11.110], [19.140], [19.170] exclusive power, [28.90] naturalization laws, [19.140] off-shore processing, [25.60] power of exclusion, [10.30], [10.40], [19.150], [19.170] abrogation by statute, [11.110] executive, exercise by, [10.30] without legislation, [10.30] refusal of entry, [19.140], [19.170] scope of power, [19.170] Tampa case, [11.110] wrongful imprisonment, [10.40] Alteration of Constitution alteration Bill, [6.10] assent to, [9.80] amending authority, [6.10] arguments for and against, [38.40] Bill of Rights, [38.80], [38.90] chain of command, [5.90] disagreement between Houses on passage of proposed law, [5.90] double majority requirement, [2.130], [4.30], [6.10], [38.20], [38.40] federal distribution of powers, [38.120] fiscal imbalance, repairing, [38.110] Governor-General’s role, [6.10], [9.40] history of proposed alterations, [38.40]–[38.120] importance of provision for, [38.10] Indigenous Australians, [38.50] Expert Panel on Constitutional Recognition of, [38.50], [38.60], [38.90]

proposed amendments concerning, [38.50] race power, inclusion in, [20.80], [38.50] recognition of, [38.50] infrequency of, [38.10] local government, recognition of, [38.100] manner and form provision, [38.10], [38.20] amendment of, [38.30] method of, [6.10] number of proposals approved, [38.10] only Parliament can propose, [6.10] preamble, [38.60] proposed by Senate but opposed by House of Representatives, [9.40] protection for interests of States, [6.10] ratified by vote of electors, [4.50], [6.70] referendum, [4.10], [4.50], [6.10], [38.20] double majority required, [2.130], [4.30], [6.10], [38.20], [38.40] Governor-General putting to, [6.10], [9.40] information on proposals, [38.40] Swiss model, [2.10], [2.130], [4.20], [4.30], [4.50] “yes/no” campaigns, [38.40] republic proposal, [38.70] rigid v flexible constitution, [1.20] sovereignty of the people and, [5.80], [5.90] Swiss referendum model, [2.10], [2.130], [4.20], [4.30], [4.50] tendency for rejection, [38.40] UK Parliament, [5.30], [5.90] ultimate authority, [5.90] United States model, [2.110] voting power at referendums, [5.90] Amendment of Constitution see Alteration of Constitution Appeals administrative bodies to judicial bodies, [26.80] appellable matters, [4.70] High Court jurisdiction, [26.100] judgment, decree, order, or sentence, from, [26.100], [34.80]

non-judicial bodies, to, [25.80] Privy Council, to, [4.70], [5.20] abolition, [5.50] Appropriation of money see also Taxation amendment of Bills, [16.30], [16.40] annual appropriations, [11.40] Appropriation Act, [11.40], [11.50] approval of Parliament, [10.20], [11.20] Australian Assistance Plan (AAP) case, [21.190], [21.200] Bills, [21.70] amendment of, [16.30], [16.40] introduction of, [16.20], [21.70] procedure for passing, [16.30], [21.70]–[21.130] Senate cannot initiate, [16.20], [16.30], [21.70] budget objectives, [11.50] by law, [6.60], [11.20] colonial constitutions, [3.100] conditions on spending of sum, [11.40] Consolidated Revenue Fund, [11.40], [21.30], [21.80], [21.140] executive, for use of, [21.180] legislative process, [16.10]– [16.40], [21.70]–[21.100] breach of provisions, [16.40], [21.90], [21.130] introduction of Bills, [16.20] Senate cannot initiate Bills, [16.20], [16.30], [21.70] special rules, [16.10], [16.30] limits on executive power, [11.10]–[11.50], [21.190] major heads of power, under, [21.180] nationhood power, [11.50], [21.200] nature of appropriations, [21.190] outcome appropriations, [11.50] Pharmaceutical Benefits case, [20.60], [21.190], [21.200] power to spend see Spending power purposes of the Commonwealth, for, [21.190] refund of money collected in breach of Constitution, action for, [11.70] responsible government, [6.60], [11.20] special appropriations, [11.40]

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specificity of purpose, [11.50] spending power see Spending power spending without relevant appropriation, [11.40] State Constitutions, [11.20] student allowances, for, [10.20] Tax Bonus case, [21.200] university funding, [21.230] validity of, [21.190] Aristotle, [2.20], [2.70], [2.110] Athenian democracy, [2.20], [2.140] Attorney-General certifying no legal objection to grant of assent, [9.80] fiat, [7.40] right to intervene in litigation, [7.20] standing, [7.40] Audit application of State laws, [6.40]

judicial recognition, [5.60] modern attitudes replacing colonial presumptions, [5.110] powers subject to Imperial law, [5.30], [5.50] recognition of complete, [5.10] sovereignty of the people, [5.80], [5.90] status in Constitution avoiding colonial status, [5.20] colony with internal sovereignty, [5.30] status of Imperial legislation, [5.30], [5.40], [5.70] Statute of Westminster, [5.40], [5.50] termination of power of UK Parliament, [5.70] wars, [5.30], [5.40]

Australian Capital Territory see Territories

Australian Natives Association, [4.40] Bagehot, Walter, [2.80], [6.40], [9.20], [9.60]

Australian Constitution see Commonwealth Constitution

Balfour Declaration, [5.40], [5.50], [9.130]

Australian Federation Leagues, [4.40]

Banking power bank, definition, [18.160] corporations power, overlap with, [18.160] interpretation, [17.40] scope, [18.160]

Australian independence abolition of anomalies, [5.70] Australia Act 1986, [5.70], [5.80] extraterritorial laws, [12.100], [12.110] Australia (Request and Consent) Act 1985, [5.70] authority of Constitution, [5.80]–[5.100] Balfour Declaration, [5.40], [5.50], [9.130] binding authority of Constitution and, [5.80] citizenship, [5.50] constitutional consequences, [5.110] court system, [5.50] Crown, use of term, [5.110] drafters of Constitution, intent of, [5.20] evolution of, [5.20]–[5.70] external sovereignty, [5.30], [5.40] Governor-General’s powers, [5.50] internal sovereignty, [5.30] international law, state in eye of, [5.50]

Bankruptcy and insolvency power incidental matters, [18.180] scope, [18.180] source of power for Bankruptcy Act, [1.50], [18.180] taxation power and, [21.60] Barton, Edmund, [4.30], [4.40], [4.70], [5.20], [38.40] Bentham, Jeremy, [2.140], [3.40] Bicameral parliament Australia, [4.30] colonies, [3.50], [3.60], [3.80] England, [2.30] States, [27.30] abolition of one House, [27.90] Bill of Attainder Parliament not to enact, [13.40], [25.50]

Bill of Pains and Penalties Parliament not to enact, [13.40], [25.50], [27.70] Bill of Rights absence in Australia, [6.70], [12.160], [13.70] arguments for and against, [38.80] Australian Capital Territory, [13.90] Brennan Committee recommendation for, [13.100] Canada, [13.90] common law, [13.70], [13.80] New Zealand, [13.90] prohibition of discriminatory laws, [38.90] proposal for, [38.80], [38.90] United Kingdom, [2.40], [2.60], [2.70], [11.20], [11.60], [11.160], [13.90] United States, [2.110], [13.90], [38.80] Victoria, [13.90], [34.80] Bills of exchange and promissory notes power, [18.160] Blackstone, William, [3.30], [3.50], [10.20] Bodin, Jean, [2.60] Boilermakers’ principle, [26.50], [26.90], [34.80], [34.90] Bounties see Customs, excise and bounties Breach of constitutional rights no independent tort of, [7.60] United States, [7.60] British constitutional history Act of Settlement 1701, [2.70], [3.110], [11.160] Agreement of the People, [2.100] Anglo-Saxon liberty, [2.30] Bagehot, [2.80], [6.40], [9.20], [9.60] bicameral parliament, [2.30] Bill of Rights, [2.40], [2.60], [2.70], [11.20], [11.60], [11.160], [13.90] cabinet government, [2.80] Case of Proclamations, [2.60] Charter of Liberties, [2.30] Coke, [2.60], [2.70], [2.90], [10.20] colonial system based on, [2.10] common law, [2.50] Court of Chancery, [2.50]

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British constitutional history continued curia regis, [2.50] democracy, [2.30], [2.60], [2.140] Dicey, [2.90] divine right of kings, [2.60] due process of law, [2.30] eighteenth century, [2.70] Equity, [2.50] executive power, [2.70], [2.80] Glorious Revolution, [2.60], [2.90], [2.100] judicial independence, [2.70] limits on executive power, [2.60] Locke, [2.100] Magna Carta, [2.30], [2.40], [2.50], [2.90], [2.100] Montesquieu, [2.70]–[2.110], [25.10] nineteenth century, [2.80] parliamentary sovereignty, [2.90], [2.120], [13.10] prerogative power of monarch, [2.60], [10.20] Prohibitions del Roy, [2.60] responsible government, [2.80] revolutionary concepts, [2.100] right to vote, [2.70], [2.80], [2.140] rule of law, [2.70], [2.90] separation of powers, [2.50] seventeenth century, [2.60] British/Imperial Parliament amendment of Australian Constitution, [5.30] assenting to Bills, [9.70] bicameral, [2.30] Constitution enacted by, [4.70], [5.20], [5.80], [6.30] dissolution or prorogation, [9.70] assenting to Bills after, [9.70] end of sovereignty in Australia, [5.80] executive power, [2.70], [2.80] extraterritorial laws, [12.70] Imperial legislation Constitution as, [5.90], [6.30], [6.50] legislative powers subject to, [5.30], [5.50] status in Australia, [5.30], [5.40], [5.70] power to make laws for colonies, [3.20] sovereignty, [2.90], [2.120], [5.80] Business acquisition on just terms, [22.50]

Canada Charter of Rights and Freedoms, [13.90] King-Byng affair, [9.130] responsible government, [2.80], [3.60] Certiorari, [7.60], [11.60], [11.120] Chose in action acquisition on just terms, [22.50] Citizenship see also Aliens; Immigration and emigration Australian, [5.50], [19.140] Australian community, becoming member of, [19.160] British subjects, [5.50], [5.110], [8.40], [19.140] definition of citizen, [5.110], [8.40], [19.140], [19.170] laws, [19.140], [19.160], [19.170] naturalization and aliens power, [11.110], [19.140], [19.170] renunciation, [19.170] revocation, [19.170] Clark, Andrew Inglis, [4.30], [6.70] Coke, Sir Edward, [2.60], [2.70], [2.90], [10.20] Colonial Australia Aboriginal people, [3.30] Australian Constitutions Act (No 1) 1842, [3.50] Australian Constitutions Act (No 2) 1850, [3.60], [3.90] bicameral parliament, [3.50], [3.60], [3.80] boundaries of colonies, [12.80] British ideas imported to, [2.10] carve-up, [36.30] Colonial Laws Validity Act 1865, [3.120], [4.70], [5.40], [5.70], [27.10], [27.30] constitutions see Colonial constitutions defence, [4.20] delegated legislation, [12.30] democracy, [3.50] disadvantages of separate colonies, [4.20] flexible constitution, [1.20] formation of colonies, [3.60] governments executive power, [3.100] subservient to Imperial Parliament, [3.110] Governors, [3.40], [3.50], [3.70], [3.100]

inter-colonial conferences, [4.20] laws repugnant to English law, [3.50], [3.120] Legislative Councils, [3.40], [3.50], [3.80] legislative independence, [12.10] New South Wales, [3.30], [3.40], [3.50], [3.60] penal settlements, [3.40] plenary powers, [12.10], [12.30], [12.60], [27.10] Queensland, [3.60] railway gauges, [4.20] reception of English law, [3.50] responsible government, [2.10], [3.60], [3.100] right to vote, [3.80], [4.50] rule of law, [1.20] self-governing systems, [2.10] South Australia, [3.30], [3.40], [3.50], [3.60], [3.120] Supreme Courts, [3.50], [3.70], [3.110] Tasmania, [3.40], [3.50], [3.60] territories, creation of, [36.30] undemocratic governments, [3.10] Victoria, [3.60] voting rights, [2.140], [3.80] Western Australia, [3.30], [3.40], [3.50], [3.60] Colonial Constitutions amendment, [3.50], [3.60], [3.80], [3.90] manner and form requirements, [3.90], [3.120], [27.20] UK Parliament’s power, [3.60] appointment of public servants, [3.100] appropriation of money, [3.100] bicameral parliaments, [3.60], [3.80] common features, [3.70] continuation of, [6.50] date of commencement, [3.60] drafting of, [3.60], [3.80] entrenched provisions, [3.90], [3.120], [27.20] executive power, [3.100] general legislative power, [3.90] Governor, [3.100] judiciary, [3.110] Legislative Councils, [3.80] New South Wales, [3.60], [3.90] parliamentary control of finance, [3.100] re-constitution of legislatures, [3.70]

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repugnancy doctrine, [3.120], [5.30] responsible government, [3.60], [3.100] right to vote, [3.80], [4.50] rule of law, [1.20] saving of, [6.50], [27.10] Tasmania, [3.60], [3.90] Colonisation America, [3.20], [3.30] applicable legal system, [3.20] Australia see Colonial Australia conquered/settled distinction, [3.20] delegated legislation in colonies, [12.30] “desart and uncultivated” lands, [3.30], [3.50] European powers, by, [3.20] law of, [3.20] plenary powers of colonies, [12.10], [12.30], [12.60] power to make laws for colonies, [3.20] rights of prior inhabitants ignored, [3.30], [3.40] “settled” colonies, [3.20], [3.40] treaties with inhabitants, [3.20] “uninhabited” countries, [3.20], [3.30], [3.50] Commonwealth Constitution acceptance of authority, [5.80] alteration see Alteration of Constitution appellable matters, [4.70] approval by States, [4.60], [4.70] background, [4.10]–[4.60] bicameral parliament, [4.30] British preamble, [5.90], [6.30], [38.60] Chapters, [4.30] colonial status avoided in, [5.20] “compact” between States, [17.70] construction of Acts to be subject to, [8.60] covering clauses, [4.70], [6.30], [33.10] democratic principle, [2.10], [4.50], [6.70] “dignified part”, [9.20] division of powers see Division of powers drafting, [4.10]–[4.60] independence, with view to, [5.20] “efficient part”, [9.30]

enacting words, [6.30] enactment by Imperial Parliament, [4.70], [5.20], [5.80], [6.30] express limits on powers, [1.20] Imperial Act, part of, [5.90], [6.30], [6.50], [38.60] interpretation see Interpretation of Constitution lack of change since federation, [37.10] language, [6.40] law wholly governed by, [15.10] legal sovereign, [5.90], [5.100] legislative powers see Legislative powers “living force”, [8.40], [15.70] national capital, [4.60] new States, [37.20]–[37.50] preamble, [5.90], [6.30] proposal for new, [38.60] referendums to approve, [4.60], [4.70] representative government, [5.80] rights, protection of, [1.40] rigid/inelastic, [1.20] separation of powers see Separation of powers source of binding authority, [5.10], [5.80]–[5.100] sovereignty of the people, [5.80], [5.90] States alteration of boundaries of, [37.20] binding on, [28.20] “compact” between, [17.70] effect on, [6.50], [17.70], [28.10], [35.10] legislative powers subject to, [28.20] new, [37.20]–[37.50] rights of, [17.70] State Constitutions subject to, [28.20] status of Australia in, [5.20], [5.30] supreme law, [5.10], [6.20], [6.50], [8.10], [28.20] transitional-plus-permanent provisions, [6.40] US Constitution, aspects based on, [4.30] validity, [5.100] Commonwealth Parliament see Parliament

Commonwealth places acquired place, [28.50] exclusive power over, [19.20], [21.110], [28.50] State taxes in respect of, [21.110], [28.50] Commonwealth–State cooperation Constitution not forbidding, [35.50] cooperative legislative schemes, [35.60] harmonisation of laws, [17.80], [35.40] improvements to working of federation, [38.110] joint executive bodies, [35.50] joint power to remove Imperial “hangovers”, [5.70], [35.50] non-judicial tribunals, [35.50] referral of legislative power, [17.80], [18.110], [35.50] Royal Commissions, [35.50] uniform laws, [35.40], [35.60] adoption/application Acts, [35.60] cooperative legislative schemes, [35.60] customs, excise and bounties, [23.20] divorce laws, [20.20] Ministerial Councils to consider, [35.40] “mirror laws” approach, [35.60] pressure for, [35.40] regulations for, [35.60] Commonwealth–State immunities “dual sovereignty” approach rejected, [33.10] implied intergovernmental immunities, [8.20], [11.90], [33.50]–[33.70] Commonwealth executive protected from State laws, [33.60] early history, [33.50] Engineers’ case, [8.20], [8.50], [17.70], [33.10], [33.50] instrumentalities, [19.20] modern doctrine, [33.60], [33.70] State executive protected from Commonwealth laws, [33.70] taxation, [21.20], [33.70] interpretation of Constitution, [8.20], [8.50]

629

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Commonwealth–State immunities continued overview, [33.10] private parties, actions by, [1.40] tax on property, [21.20], [33.10]–[33.40] agencies as “Commonwealth” or “State”, [33.40] Commonwealth not to tax State property, [23.10], [28.110], [33.20] customs duty, whether, [33.30] express immunity, [33.20] government instrumentalities, [33.40] land tax, [33.30] meaning, [33.30] mutual immunity, [33.10] rates, [33.30] sales tax, [33.30] State not to tax Commonwealth property, [23.10], [28.110], [33.20] Communist Party case Constitution as supreme law, [6.20], [6.50] defence power, [19.120], [19.130] heads of power, [17.20] rule of law, direct appeal to, [11.160] separation of powers, [25.50] Compulsory acquisition freedom of interstate trade, [30.110] just terms see Acquisition of property on just terms Conciliation and arbitration power Engineers’ case, [18.190] extraterritorial laws, [12.130] interpretation, [18.190] scope, [18.190] workplace relations laws, [19.50] Consolidated Revenue Fund, [11.40], [21.30], [21.80], [21.140] Consorting laws freedom of association and, [14.140] freedom of political discussion and, [14.100] inconsistent with international law, [12.160] Constitution see Commonwealth Constitution

Constitutional Conventions Australasian Federal Convention, [4.50] delegates, [4.30] drafting of Constitution, [4.10], [4.30]–[4.60] first (1891), [4.10], [4.30] second (1897–8), [4.10], [4.50] Constitutional corporation see Corporations power Constitutional government definition, [1.10] Constitutional law applied, [1.50] development, room for, [1.60] mindset, [1.30] practical applications, [1.40] Constitutional litigation Attorney-General fiat, [7.40] right to intervene, [7.20] standing, [7.40] costs, [7.80] Court’s reluctance to interfere, [7.70] interest in matter, [7.40] interpretation of Constitution see Interpretation of Constitution jurisdiction, [7.20] additional, conferral of, [7.20], [7.30] federal court other than High Court, [11.130] matter, need for, [7.30], [7.40] power to define, [7.30], [7.130], [11.140] justiciable controversy, [7.30] law applied unconstitutional, [7.20], [7.60] leading cases, [1.40] legal persons, [7.50] locus standi, [7.40] matter, need for, [7.30], [7.40] parties, [7.50] government instrumentalities, [7.50] legal persons, [7.50] names of, [7.50] organisations, [7.40], [7.50] private persons, [1.40], [7.40] phrases and concepts from Constitution, [1.50] political protest, form of, [1.50] private persons, by, [1.40], [7.40]

remedies, [7.60] flexible (equitable), [2.50] standing, [7.40] unconstitutionality as defence, [7.20], [7.60] validity of law see Constitutional validity Constitutional validity actions in reliance on an invalid statute, [7.60] challenges to see Constitutional litigation Communist Party case, [6.20], [6.50], [11.160] declaration that law invalid, [7.60] High Court power make, [6.20] implicit, [7.60] judicial power, [25.40] law void ab initio, [7.60] standing to apply for, [7.40] electoral laws, [14.30], [14.40], [15.50], [15.60] freedom of political discussion and, [14.10], [14.50], [14.80] presumption of constitutional conformity, [14.120] proportionality test, [14.80] inconsistency with Constitution, [6.20], [8.10] interpretation of Constitution see Interpretation of Constitution invalid parts of statutes, [8.60] reading down, [8.60], [8.70] severance of, [8.60], [8.70] striking out, [8.70] judicial review and, [2.120] litigation concerning see Constitutional litigation Marbury v Madison principle, [2.120], [6.20] need for questioning, [1.60] resisting arrest conviction where law found invalid, [7.60] unconstitutionality as defence, [7.20], [7.60] unlawful arrest where law found invalid, [7.60] wrong parliament, law made by, [1.40] Constitutional writs see Supervisory writs Constitutionalism definition, [1.10] federal system, [1.30] mindset, [1.30] underpinning all legal practice, [1.50]

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Constitutions changing, [1.20] definition, [1.10] “dignified part”, [2.80], [6.40], [9.20] “efficient part”, [2.80], [9.30] flexible, moveable or elastic, [1.20] functions of, [1.10] rigid, stationary, or inelastic, [1.20] Contempt executive power to punish, [25.60], [25.90] judicial power to punish, [25.40], [25.80] Cook, Captain James, [3.30] Cooperation between Commonwealth and States see Commonwealth–State cooperation Copyrights, patents and trade marks power circuit layouts, inclusion of, [8.40], [18.180] interpretation, [8.40], [17.40] jurisdiction of courts, [26.30] scope, [18.180] Corporations power banking power, overlap with, [18.160] bankruptcy power and, [18.180] bodies politic created by States, [18.140] class of legal person, dealing with, [18.90] constitutional corporation, [18.20], [18.100], [18.130], [18.200] individuals dealing with, [18.120], [18.200] what is, [18.130], [18.200] foreign corporations, [18.90], [18.110] identifying, [18.130] formation of corporations, [18.110] Huddart Parker, [18.20], [18.90], [18.200] Incorporation Case, [18.110] individuals, laws affecting conduct of, [18.120], [18.200] interpretation, [8.80], [17.40] national corporations law, [18.20], [18.100] national system employers, [18.20], [18.100], [18.140]

posts and telegraphs power used with, [18.20] referral of power by States, [18.110] reserved State powers doctrine and, [18.20], [18.90] scope, [18.90], [18.100] States creating non-corporate entities, [18.140] trade and commerce power used with, [18.20] trade practices legislation, [18.20] trading and financial corporations, [18.20], [18.90], [18.130] cases on whether party is, [1.40], [18.130] identifying, [18.130] individuals dealing with, [18.120] regulation of trading and financial activities of, [18.90] winding up provisions in Corporations Act, [18.180] Work Choices, [1.40], [18.20], [18.100], [18.110], [18.130], [28.100] Costs constitutional litigation, [7.80] follow the event, [7.80] Court of Disputed Returns, [15.90], [25.90] Courts see also Judges; Judicial power appeals from administrative bodies to, [26.80] Ch III courts, [25.20], [25.30] Commonwealth law giving jurisdiction to, [26.20] judicial power only to be exercised by, [6.60], [25.30] limits on jurisdiction of, [26.20] chameleon principle, [25.110], [26.70], [26.80] cross-vesting of jurisdiction, [26.40] discretionary powers, [26.90] evidence, power to make laws about, [26.120] federal courts, [26.20] High Court see High Court jurisdiction, [26.30], [26.40] State matters not to be heard by, [26.40]

Territories, jurisdiction over, [36.130] federal jurisdiction, courts exercising non-judicial power, limits on exercise of, [26.20], [26.50] State courts see State courts High Court see High Court incidental power to make laws about procedure, [26.120] independence see Judicial independence judicial power see Judicial power jurisdiction see also High Court accrued, [26.40] Acts specifying, [26.30] constitutional interpretation, [7.20], [26.30] cross-vesting, [26.40] federal courts, [26.20] federal matters, [26.30] limits on, [26.20] matters, over, [26.20] Parliament’s power to regulate exercise of, [26.10] State courts see State courts legislative power to create, [25.10] minimum sentences, [26.130] non-judicial powers see also Judicial independence discretionary powers, [26.90] incompatibility doctrine, [26.50], [26.60], [34.20] judicial tasks regarded as non-judicial but acceptable, [26.60] limits on exercise of, [26.20], [26.50]–[26.90] power to regulate proceedings, [26.120] procedure, power to make laws about, [26.120] proleptic judicial review, [26.60] State courts see State courts State laws not to interfere with institutional integrity, [25.10], [26.120] Courts martial defence power, scope of, [19.120] judicial power, whether exercising, [25.60], [25.90] Crown civil actions against, [11.70] copyright in legislation, [10.20] immunity see Crown immunity use of term, [5.110], [9.160], [11.80]

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Crown immunity Bropho case, [11.80], [11.90] common law general immunity, [11.70] derivative, [11.90] government, application to, [11.80] immunity from statute, [11.80], [11.90] Commonwealth–State immunities see Commonwealth–State immunities disappearance of, [9.160], [10.20], [11.80], [33.10], [33.60] immunity from suit, [11.60] abolition of, [11.70] inconsistent with Constitution, [11.70] judicial review, from, [11.150] presumption, [11.80], [11.90] rule of law, whether contrary to, [11.90] Currency, coinage and legal tender exclusive power of Commonwealth, [28.80] issue of paper money, [18.160], [28.80] legislative power, [18.160], [28.80] States not to coin money, [28.80] Customs, excise and bounties bounties, [29.20] power to grant, [23.20], [29.10] States not to grant, [29.20] uniformity, [23.20] collection before Bill passed, [11.30] customs duty, [29.20], [29.110] imports, tax on, [29.20], [29.110] laws imposing, dealing only with, [21.120] petrol, [29.20] delegated legislation, [12.40] discrimination between States prohibited, [23.20] excise duty, [29.30]–[29.120] alcohol, [29.60], [29.70], [29.90] back-dating fees, [29.60], [29.70], [29.80], [29.120] consumption tax, [29.110] criterion of liability test, [29.60], [29.70], [29.100] definition, [29.10], [29.30] determining whether tax is, [29.110]

entering into cost of goods, [29.100] fees based on retail sales, [29.50] laws imposing, dealing only with, [21.120] licence/franchise fees, [29.30]–[29.120] petrol, [29.40], [29.60], [29.70], [29.90] State sales tax as, [21.120], [29.70] tax/fee distinction, [29.30], [29.40], [29.50] tax imposed directly on a step, [29.100] tax on local manufacture, [29.40], [29.70], [29.120] tax on step towards delivery, [29.50], [29.110] tobacco, [29.60]–[29.90], [29.110], [29.120], [30.120] victualler’s licence, [29.60] exclusive power of Commonwealth, [6.50], [29.10] freedom of interstate trade and, [29.80] grants to States out of income, [4.60], [21.150] limits on powers, [1.40], [23.10] power to impose, [6.50], [29.10] retrospective effect of laws, [11.30] States loss of revenue, [6.50], [29.10] metals, duty on, [29.20] prohibition on imposing, [29.20], [29.120] receipts duties, [29.70] removal of powers, [6.50], [21.10], [21.20], [21.60], [21.150], [29.10], [29.20] Territories not to impose, [29.10] transitional provisions, [6.40] uniformity, [23.20] Deadlocks on parliamentary Bills amendments to Bill, [4.60] Commonwealth Parliament, [16.50]–[16.70] double dissolution, [9.140], [16.50]–[16.70] validity of election after, [16.70] fails to pass, meaning, [16.70] Governors’ role, [9.30], [16.70] joint sitting, [16.50], [16.60] judicial interference, [16.70]

multiple Bills, [16.60] resolution of, [16.50]–[16.70] s 57 procedure, [16.50]–[16.70] justiciability of steps, [16.60], [16.70] three-month gap between stages, [16.70] State Constitutions, [27.30] trigger Bills, [16.50], [16.60] Deakin, Alfred, [4.70], [5.20], [16.50] Defamation freedom of political discussion and, [7.60], [14.30], [14.40] uniform laws, [35.60] Defence forces Chief of Defence Force, [9.40] Commonwealth obliged to protect States, [28.70] courts martial, [19.110], [25.60], [25.90] exclusive power to raise, [28.70], [28.90] Governor-General as commander in chief, [9.40] Minister of Defence, [9.40] Secretary of Department of Defence, [9.40] Defence power acquisition on just terms and, [19.100], [22.70] Capital Issues case, [19.120] central purpose of power, [19.130] Communist Party Case, [19.120], [19.130] Defence (Transitional Provisions) Acts, [19.110] domestic use of armed forces, [19.130] exclusive power to raise military force, [28.70], [28.90] external enemies, protection against, [19.130] freedom of interstate intercourse, subject to, [23.80] freedom of religion and, [24.110] future dangers, preparing for, [19.120] internal security, [19.130] interpretation, [17.50] invalid parts of statutes, [8.70] naval and military defence, [19.90], [19.130] overview, [19.90] peacetime, [19.120], [19.130] postwar recovery, [19.110]

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prerogative powers and, [28.90] principle of legality, [19.100] purposive grant, [17.50], [19.90] religious group proscribed under, [19.100], [24.110] sedition, [19.130] taxation laws, [19.100] terrorism, [19.130] unqualified power, [5.20] wartime, [19.100], [23.80] Delegated legislation abdication of legislative powers, whether, [12.40] British approach, [12.30], [12.40] by-laws, local governments’ power to make, [27.60] colonies, [12.30] Commonwealth, [12.40] controversy between government and Senate, [12.40] definition, [12.20] delegation of power to executive, [12.10], [12.20] disallowance, [12.20], [12.40] drafting, [12.20] Henry VIII clauses, [12.20] regulations, [12.20] separation of powers and, [12.20], [12.40] States, [12.30], [27.60] Democracy Bills of Rights and, [13.90] Constitution, theme of, [2.10], [4.50], [6.70] “directly chosen by the people”, [13.50], [15.60] England, [2.30], [2.60], [2.140] Greece (Athenian), [2.20], [2.140] indirect, [4.30] prevalence of the democratic principle, [13.50] Rome, [2.20] sovereignty and, [5.90] Detention executive power, limits on, [13.40], [25.60] indefinite, [25.60], [34.70] preventive, [26.70], [34.20] unconstitutional, [25.60] unlawful non-citizens, [10.40], [11.110], [19.170], [25.60] court ordering release, [25.50], [25.60] judicial power, [25.40], [25.50] off-shore processing, [25.60] punitive, whether, [25.60] without trial, [13.40], [25.60]

Dicey, AV, [2.90], [5.50], [10.10], [10.20], [11.60], [11.160], [13.90], [38.60] “Directly chosen by the people” democratic principle, [13.50], [15.60] implied freedom of political discussion, [9.10], [13.50], [14.10], [14.40], [27.100] informed choice, [9.10], [13.50], [14.10], [14.40], [15.50] real choice, [13.50], [15.50] representative government, [27.100] State electoral laws, [27.100] Discretionary power Australian Act 1986 and, [5.70] independence, drafters’ view to, [5.20] manner and form provisions, [27.130] reservations as to use of, [5.70] Discrimination between States see Discrimination between States discriminatory laws, [20.110] proposed prohibition, [38.50], [38.90] out-of-State residents see Discrimination against out-of-State residents race power and see also Race power detrimental laws, [20.10], [20.80], [20.110] discriminatory laws, [20.110] laws generally prohibiting discrimination, [20.90] racist laws race power, under, [20.10], [20.80], [20.110] Racial Discrimination Act preventing, [27.110] s 117 not prohibiting, [31.20] State power to enact, [27.110] Discrimination against out-of-State residents accident damages, [31.100], [31.110] all discrimination not prohibited, [31.20], [31.110] application of section, [31.20] Australian citizens, [31.30] modern approach, [31.80] narrow, [31.10], [31.70]

natural persons, [31.40] pre-1989 approach, [31.70] residence requirements, [31.40] bar admission rules, [31.70], [31.80], [31.90] breach not invalidating law, [31.90] Commonwealth laws, whether protection from, [31.20] complainant in defendant State, [31.50] disability or discrimination, [31.60] connected with resident in other State, [31.110] meaning, [31.60] prohibited, [31.70], [31.80] discrimination between States compared, [31.120] effect of breach, [31.90] exceptions to prohibition, [31.100] determination on case-by-case basis, [31.100] right to vote, [31.10], [31.100] fly-in, fly-out visitor, [31.50], [31.70] freedom of interstate trade compared, [31.120] interpretation, [31.30]–[31.60] disability or discrimination, [31.60] resident in any State, [31.40] subject in any other State, [31.50] subject of the Queen, [31.30] length of residence, [31.40] probate duty, [31.70] prohibition, [6.50], [6.70], [23.70], [31.10] rational and proportionate connection test, [31.100] reasonably necessary, [31.100] resident in any State, [31.40] right to vote, [31.10], [31.100] s 117 as pillar of legal and social unity, [30.10], [31.10] State laws, protection from, [31.20] State legislative powers, limit on, [28.110] strictly necessary, [31.100] subject of the Queen, meaning, [31.30], [31.100] tax concessions, [31.50], [31.70] Territory residents not covered, [31.40]

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Discrimination against out-of-State residents continued trade or profession, right to practise, [31.10], [31.50] discriminatory laws, [31.70] legal practitioner, [31.50], [31.70], [31.80], [31.90] US Constitution compared, [31.20] Discrimination between States bounties, [23.20] carbon tax, [23.40] cases about, [1.40] discrimination against out-of-State residents compared, [31.120] grants, [23.30] improper reason, for, [23.40] interpretation, [8.80], [23.40] laws of trade, commerce and revenue, [23.10], [23.20] Minerals Resource Rent Tax, [23.40] particular localities, [23.50] parts of States, [23.50] preference, [23.20], [23.40], [23.50] prohibition, [23.10], [23.20] purposive interpretation, [23.40] revenue laws, [23.30] sorts of discrimination prohibited, [23.40] specific heads of power affected, [23.30] taxation, [21.20], [23.20], [23.30] uniform laws, [23.20] US Constitution, [23.40] zone offsets, [23.50] Divine right of kings cases challenging, [2.60] England, [2.60] historical concept, [2.20], [2.60] Division of powers balance, no attempt at, [17.70], [28.100] cases about, [1.40] Commonwealth powers see Legislative powers exclusive see Exclusive powers of Commonwealth concurrent powers, [28.100], [32.10] cooperation not forbidden, [35.50] limits imposed, [6.50] list of topics, [1.20], [6.50] State powers see State legislative powers

States’ rights, [6.50], [17.70], [28.100] Work Choices case, [28.100] Divorce and matrimonial causes power adjustment of property rights, [20.40] custody and guardianship of children, [20.30] informal marriage-like relationship, [20.40] interpretation, [17.40] marriage power, interaction with, [20.30] custody of children, [20.30] limiting effect on, [17.40] overlaps and gaps in jurisdiction, [20.30] Matrimonial Causes Act 1959, [20.20] Registrars’ power to issue decrees, [1.50], [25.120] sterilisation of intellectually disabled child, [20.30] uniform divorce laws, [20.20] Dixon, Sir Owen, [1.30], [5.50], [5.80], [8.80], [19.130], [29.70], [33.60], [33.70] “Dual sovereignty”, [17.70], [28.100], [33.10] Due process of law, [2.30] Elections access to electoral roll, [13.50] apportionment of Members between States, [15.30] challenges to validity of, [15.90], [15.120] closing date for enrolments, [15.60] Commonwealth Electoral Act 1918, [15.20] Court of Disputed Returns, [15.90], [25.90] courts’ reluctance to interfere with, [15.120] “directly chosen by the people”, [9.10], [13.50], [14.10], [14.40], [15.50], [27.100] disputed, jurisdiction over, [15.90] duty to enrol and vote, [15.20] electoral districts, [15.20] courts’ reluctance to interfere, [15.120] inequality of votes, [15.70]

electoral system, [15.20] Australian Capital Territory, [36.30] boundary conditions, [15.20] cases about, [1.40] Constitution not prescribing details, [15.20] courts’ reluctance to interfere, [15.120] power to make laws about, [8.80], [15.20] eligibility for election, [15.20], [15.80] disqualification, [15.80]–[15.110] jurisdiction over, [15.90] eligibility to vote, [15.20], [15.50] enrolment to vote, [15.20], [15.60] equal vote, right to, [15.70] first federal elections, [4.70] freedom of political discussion see Freedom of political discussion gerrymander, [27.100] Hare-Clark method, [15.20] informed choice, [9.10], [13.50], [14.10], [14.150], [15.50] jurisdiction over electoral matters, [15.90] maintaining democratic legitimacy of parliament, [7.70] one vote one value, [15.30], [15.70], [27.100] preferential voting, [15.20] proportional representation, [15.20], [15.120] quota, [15.20], [15.40] real choice, [13.50], [15.50] right to vote see Right to vote single transferable vote (STV) method, [15.20] State electoral laws, power to make, [15.20] racist laws, [27.110] unfair laws, [27.100] zonal systems, [27.100] surplus votes, [15.20] validity of electoral laws, [14.30], [14.40], [15.50], [15.60] vexatious litigants, [15.120] Engineers’ case conciliation and arbitration power, [18.190] inter-governmental immunities, [8.20], [8.50], [17.70]

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interpretation of Constitution, [8.20], [8.40], [8.50], [10.50], [18.190] reserved State powers, [17.70], [18.10] England see United Kingdom Excise duties see Customs, excise and bounties Exclusive powers of Commonwealth borrowing, [28.90] coins and legal tender, [28.80] Commonwealth places, [19.20], [21.110], [28.50] concurrent power becoming effectively exclusive, [28.100] customs, excise and bounties, [6.50], [29.10] defence, [28.70], [28.90] depriving States of powers, [28.30] implication, by, [28.90] incidental power, [28.90] naturalisation, [28.90] naval or military services, [28.70], [28.90] public service, [19.20], [28.60] s 52, list in, [17.20], [28.30] seat of government, [28.40], [36.30] Executive see also Executive power bound by statute, [11.80], [11.90] Cabinet, [9.20], [9.30], [9.60] challenges to, [1.20] civil actions against, [11.70] Constitution anticipating, [11.70] coercive actions, [10.20] colonial governments, [3.100] Crown, use of term, [9.160] delegated legislation, [12.20] delegation of law-making power to, [12.10] “dignified part”, [6.40], [9.20], [11.150] “directly chosen by the people”, [9.10] “efficient part”, [9.30] election of, [9.30] extraordinary crises, [9.140] first elections, [4.70] immunity from statute, [11.80], [11.90] Commonwealth–State immunities see Commonwealth–State immunities

disappearance of, [9.160], [10.20], [11.80] presumption, [11.80], [11.90] immunity from suit, [11.60] abolition of, [11.70] independence of judiciary from see Judicial independence loss of support mid-term, [9.130] Ministers see Ministers no confidence motion, [9.130] non-coercive actions, [10.20] Parliament see Parliament power of see Executive power Prime Minister/Premier see Prime Minister or Premier right to sue, [11.70] vesting of power in, [6.60], [10.20] Executive Council appointments to, [9.30] Governor-General advised by, [9.20], [9.30], [9.40] assent, as to, [9.80] Governor in Council, [9.30], [9.40] quorum for meeting of, [9.30] Executive power see also Executive assumption of existence, [10.20] coercive, [10.20], [10.30] Commonwealth Constitution, [10.20] division between Commonwealth and States, [10.50] exclusion of aliens, [10.30] Governor see Governor; Governor-General incidental power and, [10.50] judicial power distinguished, [25.80] limits on, [1.20], [11.10] appropriation and taxation, [11.20]–[11.50] rule of law see Rule of law Ministers see Ministers nationhood power and, [10.50] “natural person” powers, [10.20] non-coercive, [10.20] prerogative powers, [10.20]–[10.50] abrogation by statute, [10.20], [11.100], [11.110] coercive actions requiring, [10.20], [10.30] definition, [10.20], [10.30] division between Commonwealth and States, [10.50]

executive prerogatives, [10.50] preferences, immunities and exceptions, [10.50] proprietary rights, [10.50] regulation by statute, [11.100], [11.110] subsumed by statute, [10.20] Prime Minister see Prime Minister or Premier public servants, exercised by, [9.20], [10.10], [10.20] Queen as figurehead, [9.20], [10.20] responsible government, [9.30], [9.40], [9.50] s 61 as direct source, [10.30] scope of, [10.20] source of, [10.20]–[10.50] spending money, [11.10], [11.20] State Constitutions, [10.20] State executives, [10.20], [10.50], [11.10] taxation, [11.10] vesting in government, [6.60], [10.20] External affairs power acquisition on just terms under, [22.40] customary international law, enforcing rules of, [19.80] extraterritorial laws, [12.130], [12.140] international law, laws to internalise, [12.150] interpretation, [8.80], [19.50] matters external to Australia, [12.130], [19.30], [19.80] matters of international concern, [19.40], [19.80] nexus requirement, [12.130] overseas sex offences, [12.140] scope, [19.30]–[19.80] Tasmanian Dam case, [19.40], [19.60], [19.80] treaty implementation, [19.40]–[19.80] conformity with treaty or recommendation, [19.60] matter of international concern, [19.40], [19.80] recommendations of international bodies, [19.70] UN Security Council, obligations imposed by, [19.80] unqualified, [5.20]

635

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Extraterritorial laws Australia Act 1986 (Cth), [12.100], [12.110] coastal waters, [12.100] Commonwealth, [12.130] agreements with States, [12.100] external affairs power, [12.130], [12.140] trade and commerce power, [12.130] contravention of principles of international law, [12.70], [12.150] external affairs power, [12.130], [12.140] fisheries laws, [12.90], [12.100], [12.120] industrial arbitration power, [12.130] Off-Shore Settlement, [12.100] power to make, [12.10], [12.70] presumption against, [12.10], [12.70], [13.80] principle of legality, [12.10], [13.80] Seas and Submerged Lands Act case, [12.80], [12.130] States, [12.80]–[12.100], [27.60] agreements with Commonwealth, [12.100] boundaries of, [12.80] coastal waters, [12.100] conflict between laws of, [12.120] connection test, [12.90], [12.110], [12.120] conspiracy offence, [12.110] criminal statutes, [12.110], [12.120] fisheries, [12.90], [12.100], [12.120] laws for peace, order and good government, [12.90], [12.110] pre-1980, [12.80] since 1980-1986, [12.100] “stronger nexus” test, [12.120] territorial seas, [12.80]–[12.100] Statute of Westminster, [12.70] taxation, [12.90] territorial seas, [12.80]–[12.100] trade and commerce power, [12.130] war crimes, [12.130] Family law challenges to validity, [1.50] federal jurisdiction exercised by State courts, [26.110]

Federation Australasian Federal Convention, [4.50] Australasian Federation Conference, [4.20] Australian Federation Leagues, [4.40] Constitutional Conventions, [4.10], [4.30] constitutionalist mindset, [1.30] Corowa Plan, [4.40], [4.60], [6.70] drafting Constitution, [4.10]–[4.60] independence, with view to, [5.20] Federal Council, [4.20] first elections, [4.70] improvements to working of, [38.110] lack of change since, [37.10] new States, [37.20]–[37.50] reasons for, [4.20] United States federal system, [2.10] Fiscal imbalance financial dependence of States, [35.20] repairing, [38.110] vertical (VFI), [38.110] Fisheries coastal waters, powers in respect of, [12.100] conflict between laws of States, [12.120] extraterritorial laws, [12.90], [12.100], [12.120] freedom of interstate trade, [30.100] Foreign corporations see Corporations power Forfeiture acquisition on just terms, whether applies, [22.120], [34.70] confiscation of criminal proceeds, [34.30], [34.50], [34.70] Kable doctrine, [34.30], [34.50], [34.70] Freedom of association consorting laws, [14.140] freedom of political communication and, [14.140] Freedom of information freedom of political communication and, [14.130]

Freedom of interstate trade advertising of legal services, [30.170] benefits to local traders, [30.150] betting systems, [30.50], [30.130] business in two States, [30.60] cases about, [1.40], [7.20] Cole v Whitfield, [30.90]–[30.130], [30.150], [30.170] communication across State borders, [30.10], [30.30] compulsory acquisition schemes, [30.110] constitutional pillar of legal, social and economic unity, [30.10] criterion of liability, [30.90], [30.100] defence power in wartime subject to, [23.80] discrimination prohibition compared, [31.120] discriminatory burdens of a protectionist kind, [30.100] judicial impression, [30.120] legitimate regulation causing, [30.130], [30.140] preference to local traders, [30.150] excise duties and, [29.80] fisheries, [30.100] gambling, [30.50], [30.130] increase in interstate trade, [30.160] individual rights theory, [30.90] infringement of, [7.20] intercourse among States, [23.80], [30.10], [30.30], [30.170] advertising of legal services, [30.170] communication, [30.10], [30.30] discrimination prohibition compared, [31.120] exclusion of undesirable inhabitants, [30.170] meaning, [30.30] travel, [23.80], [30.10], [30.30] interpretation, [30.80]–[30.100] “absolutely free”, [30.80], [30.100] conflicting theories, [30.90] literal, [30.80], [30.90] practical effect approach, [30.100] interstate elements incidental to business, [30.60] levelling playing field, [30.120] petrol, [30.150]

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professions, application to, [30.40] protectionism, prohibiting, [30.90]–[30.160] qualification for laws with minor effect, [30.10] reasonable regulation, [30.130] refundable bottle deposits, [30.130] regulation for legitimate purposes, [30.130] administrative law, [30.140] permitted, [30.20] protectionist effect, [30.130], [30.140] s 92 providing for, [6.50], [23.70], [30.10] State legislative powers limited by, [28.110], [30.160] Territories, [30.70] theoretical application, [23.70] tobacco licence fees, [30.120] trade among the States, [30.60] trade and commerce, [30.20], [30.40] travel across State borders, [23.80], [30.10], [30.30] Freedom of movement presumption against interference with, [13.80] Freedom of political discussion ACTV, [5.80], [14.20], [14.40], [14.50], [14.90] administrative decisions, validity of, [14.120] advertising during election periods, [14.20] application for benefit of individuals, [14.50], [14.170] campaign donation limits, [13.50], [14.60]–[14.90] equal opportunity to participate in debate, [14.70], [14.90] property developers, [14.70], [14.90] proportionality test, [14.80] charitable trusts, law of, [14.110] codes of ethics and, [14.130] compatibility testing, [14.80] consorting law, [14.100] corruption allegations, [14.50] defamation and, [7.60], [14.30], [14.40] democratic principle, [13.50] “directly chosen by the people”, [9.10], [13.50], [14.10], [14.40], [27.100]

discovery of implication, [14.20] electoral laws, validity of, [14.30], [14.40] equal opportunity to participate in debate, [13.50], [14.70] donation limits and, [14.70], [14.90] free speech and, [1.40], [14.100] presumption against interference with, [14.120] freedom of association and, [14.140] freedom of information and, [14.130] homophobic remarks, [14.160] immigration law and, [14.30] implied, [5.100], [9.10], [13.60], [14.20] informed choice and, [9.10], [13.50], [14.10], [14.150] insulting words, [8.70] interpretation, [8.50], [8.70] Lange/Coleman principles, [14.40], [14.50], [14.60], [14.80], [14.100], [14.120] legitimate purpose, [14.40], [14.60] limitation of government power, [14.40], [14.170] manner of achieving end, [14.50] McCloy, [14.10], [14.50], [14.70]–[14.90], [14.120], [14.170] media corporations, cases by, [1.40] menacing, harassing or offensive, [14.60] Nationwide News, [1.40], [5.80], [14.20], [14.50] New Zealand affairs, [14.40] non-political communications, extension to, [14.100] positive vs negative right, [14.170] postal service, use of, [14.60] proportionality test, [14.80] qualified freedom, [14.40], [14.80] representative and responsible government and, [14.50] restricted communication not political, [14.60], [14.100] right to vote and, [14.150] secrecy requirements, conflict with, [14.130] source of rights, whether, [14.170] sovereignty of the people, [5.80], [5.90] States, [6.50], [13.50], [14.40]

Street Preachers case, [14.60] test for validity of law, [14.10], [14.50], [14.80] presumption of constitutional conformity, [14.120] proportionality test, [14.80] regulations, [14.120] suitable, necessary and adequate in balance, [14.80] Theophanous, [5.80], [14.30], [14.40] Freedom of religion see Religion Freedom of speech English Bill of Rights, [2.60] freedom of political communication and, [1.40], [14.100] presumption against interference with, [13.80], [14.120] proportionality requirement, [13.60] reluctance to interpret powers to allow suppression of, [13.60] US First Amendment, [14.100] Gambling freedom of interstate trade, [30.50], [30.130] Glorious Revolution, [2.60], [2.90], [2.100] Government constitutional, [1.10] executive see Executive legislature see Parliament mixture of forms, [2.20] representative, [5.80], [14.50], [27.100] responsible see Responsible government three arms of, [1.10], [6.60] State Constitutions, [27.40] Governor see also Governor-General advice to, [9.80], [9.90] appointment, [9.20] appointment of Ministers, [9.20], [9.30] assent to legislation, [9.70], [9.80] advice on, [9.80] dissolution, after, [9.70] procedure, [16.20] colonial, [3.40], [3.50], [3.70], [3.100] dismissal of Premier, [9.140] Lang dismissed by Game, [9.140]

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Governor continued executive power, [9.10]–[9.40] Governor in Council, [9.30], [9.40] challenges to decisions of, [11.150] regulations made by, [12.20] loss of confidence in government, actions on, [9.130] Parliament, role as part of, [9.70] reserve powers, [9.90] role of, [9.30], [9.40], [9.70] State constitutions assuming existence of, [9.20], [27.40] Governor-General see also Governor advice to, [9.80], [9.90] assent, as to, [9.80] Executive Council, by, [9.20], [9.30], [9.40] meaning, [9.90] near-deadlock after election, [9.100] who provides, [9.90] amendments to Bills, recommending, [9.40] appointment of Ministers, [9.20], [9.30], [9.40] assent to legislation, [9.40], [9.70], [9.80], [16.20] advice on, [9.80] dissolution, after, [9.70] procedure, [16.20] command in chief of naval and military forces, [9.40] constitutional amendments, role in, [9.40] putting to referendum, [6.10], [9.40] discretion in exercising powers, [9.40] dismissal of Prime Minister, [9.40], [9.140] Whitlam dismissed by Kerr, [9.140] dissolution of Parliament, [9.40], [9.70] assenting to Bills after, [9.70] double dissolution, [9.140], [16.50] vote of no confidence in government, [9.130] executive power, [9.10]–[9.40] notionally delegated to, [10.20], [10.30] Governor-General in Council, [9.40] challenges to decisions of, [11.150] regulations made by, [12.20]

loss of confidence in government, actions on, [9.130] Munro-Ferguson, [9.90] Parliament, role as part of, [9.70] parliamentary deadlock or crisis, role in, [9.30] parliamentary privilege not extending to, [15.20] powers of, [5.50], [9.40] Prime Minister recommending new, [9.50] prorogation of Parliament, [9.40], [9.70] advice from Attorney-General, [9.150] assenting to Bills after, [9.70] reserve power to grant or refuse, [9.150] Queen’s representative, [10.20] representative of British government, [5.30] reserve powers, [9.40], [9.90] responsible government, enforcer of, [9.40], [9.90] role of, [9.30], [9.40], [9.70] salary, [6.40]

Griffith, Sir Samuel, [3.120], [4.30], [4.40], [5.20], [6.50] Grundnorm, [5.100] Habeas corpus historical use of writ, [2.50] release of prisoners, use for, [2.50], [25.50] Hamilton, Alexander, [2.110], [2.120], [38.80] Hasluck, Sir Paul, [9.30] Health Commonwealth takeover of health services, [20.60] nation-wide public hospital system, [20.60], [38.110] repairing fiscal imbalance by, [38.110] health services power see Pensions, benefits and health services insurance, [18.170] State powers, [35.30] Henry VIII clauses, [12.20]

Governor in Council, [9.30], [9.40]

Hickman principle, [11.120], [11.140]

Grants to States conditions, [21.10], [21.160] discretion to impose or not, [21.160] lack of restraint on, [21.150] consequences for States, [21.170] customs and excise income, out of, [4.60], [21.150] discrimination, [23.30] DOGS case, [21.160], [24.90] federal aid roads, [21.160] financial dependence, [35.20] GST receipts, [21.170], [29.90], [35.20], [38.110] literal interpretation of s 96, [21.160] s 89 and s 93, [21.150] s 96, [4.60], [21.10], [21.150], [21.220], [35.20] special purpose payments, [21.170], [21.220] Surplus Revenue Acts, [21.150] tied grants, [21.160], [21.170], [35.20] unconditional grants, [21.160], [21.170] university funding, [21.230]

High Court appeal to, [26.100] administrative body, from, [26.80] judgment, decree, order, or sentence, from, [26.100], [34.80] appeal to Privy Council from, [4.70], [5.20] abolition, [5.50] appointment of judges, [25.20] constitutional writs, [5.110], [7.20] Court of Disputed Returns, [15.90] Crown, use of term, [9.160] guardian of Constitution, [9.30] interpretation of Constitution jurisdiction, [7.20] principles see Interpretation of Constitution special hearing, [7.20] judicial power vested in, [25.20] judicial review powers, [7.20], [11.130], [11.140] jurisdiction of, [6.20], [7.20], [7.30] appellate, [26.100] Commonwealth law giving, [13.40], [26.20]

Grey, Earl, [3.60], [3.100], [4.20]

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cross-vesting, [26.40] electoral matters, [15.90] federal matters, [25.30] limits on, [26.20] “matters”, [7.30], [7.40], [26.20] Territories, over, [36.130] non-judicial power, exercising, [26.20], [26.50] power to declare laws invalid, [6.20] remittal of matter to other court, [26.30], [26.40] removal of case to, [7.20] remuneration of judges, [25.20] special hearing, [7.20] tenure of judges, [25.20] Territories, jurisdiction over, [36.130] “Historic Shipwrecks” clause, [22.40], [22.160] Human rights Bills of see Bill of Rights clear statement rule, [13.70] colonisation and, [3.20] common law recognition, [13.70], [13.80] declaring Acts inconsistent with, [34.80] deficiencies in protection of, [38.80] direct and indirect protection, [13.20] equal protection of the law, [6.70] express protection, [13.30], [24.10] fair trial, [13.40], [13.80] freedom of association, [14.140] freedom of movement, [13.80] freedom of religion see Religion freedom of speech see Freedom of speech International Covenant on Civil and Political Rights, [13.90] Australian law not subordinate to, [14.10] failure to implement, [38.80] laws inconsistent with, [12.160] retrospective laws, [12.50] international law, [13.90] enforceability in Australia, [12.160] laws inconsistent with see International law judicial independence and, [13.40], [34.70] declaring Acts inconsistent with, [34.80]

jury trial, [6.70], [13.30] Parliamentary Joint Committee on, [13.100] presumption against abrogation of, [6.70], [9.10], [13.70], [13.80] principle of legality, [13.70], [13.80], [34.70] proportionality requirement, [13.60] protection of, [1.40], [13.10] deficiencies in, [38.80] “quasi-constitutional”, [12.160], [13.10], [13.70], [13.90] State laws interfering with, [13.40] statement of compatibility, [13.100] torts law protecting, [13.70] voting see Right to vote weak protection of, [13.30], [22.10], [24.10] Immigration and emigration see also Aliens; Citizenship abrogation of executive power, [11.110] Australian community, becoming member of, [19.160] deportation, [19.140], [19.150], [19.160] aliens power, [19.150] cases about, [1.40] immigration power, [19.150], [19.160] detention see Aliens emigration power, [19.150] human rights, [13.40], [19.160] immigrant, concept of, [19.140], [19.160] immigration power, [19.160] legislative power, [11.110], [19.140] naturalisation laws, [19.140] refusal of entry, [19.140], [19.170] retrospective laws, [12.60] White Australia policy, [20.80] Implied freedom of political discussion see Freedom of political discussion Implied intergovernmental immunities see Intergovernmental immunities

Incidental power executive power, laws in furtherance of, [10.50], [17.50] executory power, [17.50] interpretation, [17.40], [17.50] judicial power, laws incidental to execution of, [26.120] laws incidental to execution and maintenance of Constitution, [10.50] proportionality of laws under, [17.50] purposive grant, [17.50] retrospective laws, [12.50] spending power and, [21.190], [21.210] trade and commerce power and, [17.50], [18.60] Inconsistency of Commonwealth and State laws cases about, [1.40] classes of crime, defences and penalties, [32.60] Commonwealth industrial awards, [32.20], [32.70] covering the field, [32.130] Commonwealth law covering the field, [28.100], [32.30], [32.40], [32.90]–[32.140] adjacent field, State law in, [32.140] allocation to field, [32.150] clearing the field by implication, [32.120] declaration that not intended, [32.120] definition of field, [32.130] exceptions, [32.120]–[32.140] exhaustive of parties’ rights, [32.110] express declaration in Act, [32.110] industrial awards, [32.130] inference from details of Act, [32.110] inference from type of law, [32.110] intention of Parliament, [32.110] non-intersecting Commonwealth and State fields, [32.140] not covering whole field, [32.130] operational inconsistency and, [32.80] principle, [32.100] State law not in same field, [32.140]

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Inconsistency of Commonwealth and State laws continued Commonwealth laws prevail, [6.50], [28.20], [32.10] concurrent powers leading to, [28.100], [32.10] direct inconsistency, [32.30]–[32.90] drug offences, [32.120] express overriding of State laws, [32.40] immunity from State laws, [32.40] indirect inconsistency, [32.30], [32.90] Commonwealth law covering the field, [32.30], [32.90]–[32.140] industrial awards, [32.20], [32.70] mutually contradictory commands, [32.50] operational inconsistency, [32.80] overview, [32.10] penalties for offences, [32.60] private parties, actions by, [1.40], [32.10] racial discrimination, [32.40], [32.110] right or privilege conferred and taken away or modified, [32.70] State executive decision not authorised by State Act, [32.10] State law invalid, [7.40], [32.10], [32.160] to the extent of the inconsistency, [32.160] State powers, limit on, [28.110], [32.10], [35.10] subjectiveness of decisions, [32.150] unpredictability of decisions, [32.150] validity of both laws, [32.20] Inconsistency with Constitution laws invalid, [6.20], [8.10] severance of invalid parts, [8.60], [8.70] Independence Australia see Australian independence judiciary see Judicial independence Indigenous Australians acquisition of property on just terms, [22.60] NT Intervention case, [22.40], [22.50], [22.60]

anti-discrimination provision, proposed, [38.50], [38.90] colonisation and, [3.30] Constitution Act 1890 (WA), [3.120] discriminatory laws, [20.110] proposed prohibition, [38.50], [38.90] Expert Panel on Constitutional Recognition of, [38.50], [38.60], [38.90] Native Title Act case, [20.90], [20.100], [20.110] proposed amendments concerning, [38.50], [38.90] race power, [20.10], [20.80]–[20.110] discriminatory laws, [20.110] exclusion of aboriginal race, [20.10], [38.50] laws deemed necessary, [20.100] laws for benefit of, [20.110] proposed repeal, [38.50] removal of exclusion, [20.80], [38.50] special laws, [20.90] racist State laws, [27.110] recognition in Constitution, [38.50] Tasmanian Dam case, [20.90], [20.110] voting rights, [27.110] Industrial arbitration judicial and arbitral powers distinguished, [25.70] power see Conciliation and arbitration power Insurance power, [18.170] Intergovernmental immunities capacities and exercise of, distinguished, [33.60] Commonwealth executive protected from State laws, [33.60] curtailing capacity, [33.70] defence force members, [33.60] discrimination against State governments, [33.70] “dual sovereignty” approach rejected, [33.10] early history, [33.50] Engineers’ case, [8.20], [8.50], [17.70], [33.10], [33.50] instrumentalities, implied immunity of, [19.20] interpretation, [8.20], [8.50] modern doctrine, [33.60], [33.70]

payroll tax, [33.70] private parties, actions by, [1.40] reciprocal implied immunities, [11.90], [33.50] State executive protected from Commonwealth laws, [33.70] taxation, [21.20], [33.70] Internal security defence power, [19.130] International Covenant on Civil and Political Rights Australian law not subordinate to, [14.10] failure to implement, [38.80] First Optional Protocol, [38.80] laws inconsistent with, [12.160] protection of human rights, [13.90] retrospective laws, [12.50] International law Australia as state in eye of, [5.50] Australia’s dualist relationship with, [12.150], [38.80] external affairs power see also External affairs power customary international law, enforcing rules of, [19.80] laws to internalise, [12.150] matters of international concern, [19.40], [19.80] treaty implementation, [19.40]–[19.80] failure to implement, [38.80] human rights see Human rights laws inconsistent with, [12.150], [12.160], [38.80] consorting law, [12.160] extraterritorial laws, [12.70] human rights and freedoms, [12.160], [13.10] power to make, [12.10], [12.150] principle of legality, [12.10], [13.80], [38.80] refugees, treatment of, [12.150] States, [12.10], [27.60] presumption against breach of, [12.10], [12.150], [13.80] Interpretation of Constitution acquisition on just terms, [17.40], [22.50], [22.120] Airlines Nationalisation case, [8.20], [17.30] alien, definition of, [5.50], [5.110], [8.40] banking power, [17.40] broad interpretation, [8.40], [8.80]

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centralists, [8.80] changing meaning of words, [8.40] characterisation of laws, [17.30], [21.40] citizen, definition of, [5.110], [8.40] conciliation and arbitration power, [18.190] connotation/denotation distinction, [8.40] constitutional conformity principle, [8.70] copyrights, patents and trade marks power, [8.40], [17.40] corporations power, [8.80], [17.40] defence to prosecution, [7.20] discrimination against out-of-State residents, [31.30]–[31.60] discrimination between States, [8.80], [23.40] “distributive operation” of words, [8.70], [18.20] divorce power, [17.40] “elasticity” of Constitution, [8.40] Engineers’ case, [8.20], [8.40], [8.50], [10.50], [18.190] external affairs power, [8.80], [19.50] flexible approach, [8.20], [8.40] freedom of political communication, [8.50] grants of power, [17.30]–[17.50] characterisation of laws, [17.30] limits in one grant affecting others, [17.40] literal interpretation, [8.80], [17.30] purposive grants, [17.50] High Court jurisdiction, [7.20], [7.30], [8.10] implications from text and structure, [8.50] intent of drafters, [8.20], [8.40] inter-governmental immunities, [8.20] invalid parts of statutes, [8.60] reading down, [8.60], [8.70] severance of, [8.60], [8.70] striking out, [8.70] judges, by, [6.70] differing interpretations, [8.80] jurisdiction, [7.20], [8.10] additional, conferral of, [7.20], [7.30]

jury trial, right to, [8.40] narrow interpretation, [24.40] strict interpretation, [24.50] legislative power grants of, [17.30]–[17.50] limits on, [8.20], [17.60] liberal, [8.40] literalism, [8.80], [17.30], [17.60] “living force” approach, [8.40], [15.70] ordinary principles of legal interpretation, [8.20] original intent, [8.40] overruling earlier cases, [8.30] political aspect, [8.80] precedent, [8.30] presumption against abrogation of rights, [6.70], [9.10] procedures, [7.20] progressive approach, [8.40] property, meaning, [22.50] purposive interpretation grants of power, [17.50] limits of power, [17.60] qualifying phrase, [17.40] reading down, [8.60], [8.70] removal of case to High Court, [7.20] right to make laws about electoral system, [8.80] right to vote, [24.20] severance of invalid parts, [8.60], [8.70] States–righters, [8.80] status of Constitution, [8.20] taxation power, [17.30], [21.40] telecommunications power, [8.40], [17.40] trade and commerce power, [17.40], [18.40] Judges acting judges, [34.40] appointment, [25.20] independence see Judicial independence judicial power to be exercised only by, [6.60], [25.10], [25.30] limits on jurisdiction of, [26.20] non-judicial powers see also Judicial independence appeals from administrative bodies to judicial bodies, [26.80] incompatibility doctrine, [26.50], [26.60], [34.20] judicial tasks regarded as non-judicial but acceptable, [26.60]

limits on exercise of, [26.20], [26.50]–[26.90] persona designata doctrine, [26.50], [26.60], [34.50] remuneration, [25.20] retirement age, [25.20] tenure, [13.40], [25.20], [25.30], [38.80] State judges, [27.40], [27.80], [34.10] territories power, application to laws under, [36.110] Territory judges, [34.40], [36.70], [36.110] Judicial independence see also Separation of powers Act of Settlement 1701, [2.70], [3.110], [38.80] acting judges, [34.40] “bikie” gang laws, [34.50] colonies, [3.110] confiscation of proceeds of crime, [34.30], [34.50], [34.70] consequences, [13.40] control orders, [26.70], [34.50] court not to proceed in manner inconsistent with, [26.120] English system, [2.70], [25.10] Entick v Carrington, [2.70], [2.90], [10.10], [11.60] federal courts, [26.10], [26.50]–[26.90] human rights and, [13.40], [34.70] declaring Acts inconsistent with, [34.80] impartiality, [34.40] incompatibility doctrine, [26.50] Grollo test, [26.60], [34.20], [34.90] indefinite detention, [25.60], [34.70] judges only to exercise judicial power, [6.60], [25.10], [25.30] Kable principle, [6.50], [25.20], [27.70], [34.20]–[34.70] organised crime laws, [34.50] State courts, [34.20]–[34.50] State tribunals, [34.60] Territory judges, [34.40], [36.70] uncertainty of application, [34.90] Nicholas principles, [26.110], [26.120], [34.90]

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Judicial independence continued non-judicial powers, [26.10], [26.50]–[26.90] appeals from administrative bodies to judicial bodies, [26.80] control orders, [26.70], [34.50] incompatibility doctrine, [26.50], [26.60], [34.20] judicial tasks regarded as non-judicial but acceptable, [26.60] limits on exercise of, [26.20], [26.50]–[26.90] persona designata doctrine, [26.50], [26.60], [34.50] preventive detention, [26.70], [34.20] warrants, issue of, [26.60] organised crime laws, [34.50] paperless arrests, [34.70] State courts and judges, [25.20], [27.40], [34.10]–[34.90] institutional integrity, [34.40], [34.70] Kable principle, [25.20], [34.20]–[34.90] laws not to interfere with integrity of, [25.10], [26.120], [27.70], [34.10] novel powers, [34.80] Territory judges, [34.40], [36.70] Judicial power adjudgment and punishment of criminal guilt, [25.40], [25.90] adjudication and administration, [25.30], [25.80] appeals to non-judicial bodies, [25.80] arbitral power distinguished, [25.70] authoritative decisions, [25.80] Boilermakers’ principle, [26.50], [26.90], [34.80], [34.90] Ch III courts, [25.20], [25.30], [26.20] Commonwealth law giving jurisdiction to, [26.20] limits on jurisdiction of, [26.20], [26.50] only to be exercised by, [6.60], [25.30] chameleon principle, [25.110], [26.70], [26.80] changing laws during litigation, [26.140] Committees of Reference, [25.70]

Commonwealth Court of Conciliation and Arbitration, [25.30], [26.50] contempt, punishing for, [25.40], [25.80] exceptional power of executive, [25.60], [25.90] Court of Disputed Returns, [15.90], [25.90] courts martial, [25.60], [25.90] courts vested with, [25.20] Ch III courts, [25.20], [25.30], [26.20] High Court see High Court jurisdiction see Courts State see State courts creation of new laws distinguished, [25.70] criminal laws, minimum sentences, [26.130] deciding of controversies, [25.80] declaration of invalidity of Act, [25.40] definition of, [25.20], [25.40] detention of non-citizens, [25.40] release from, [25.50] detention without trial, [25.60] economic factors, decisions based on, [25.100] executive power distinguished, [25.80] existing law, applying, [25.70], [25.80] federal courts, vested in, [6.60], [25.20] finality of decisions, [25.80] general qualifications, [25.110] High Court see High Court human rights issues, [13.40] incidental power to make laws about procedure, [26.120] independence of judiciary see Judicial independence industrial matters, [25.70] injunctions, grant of, [25.40] judges alone to exercise, [6.60], [25.10], [25.30] judicial functions, [25.40], [25.80] jurisdiction of courts see Courts Kable principle see Kable principle legislative power distinguished, [25.70] liberty of citizens, decisions affecting, [25.40] Masters, [25.120] military tribunals, [25.60], [25.90] minimum sentences, [26.130]

nature of, [25.40]–[25.80] Nicholas principles, [26.110], [26.120], [34.90] non-judicial bodies not to exercise, [25.10], [25.30] non-judicial power distinguished arbitral power, [25.70] borderline cases, [25.110] exceptions, [25.60], [25.90] executive power, [25.80] legislative power, [25.70] non-judicial power exercised by judges see Judicial independence overview, [25.10] Parliament not to exercise, [25.50] parliamentary privilege, [25.90] power to define jurisdiction, [25.20] power to make laws incidental to execution of, [26.120] preventative detention, [26.70] public policy decisions, [25.100] Public Service disciplinary tribunals, [25.110] recovery of land, orders for, [25.40] Registrars, [25.120] retrospectively validating invalid decisions, [26.140] separation of, [6.60], [25.10], [25.40] State courts exercising federal see State courts State industrial tribunals, [34.60] Tasmanian Breweries case, [25.40], [25.70], [25.80], [25.100] Judicial review administrative law concept, [2.120], [11.130] Crown immunity, [11.150] “dignified part” of government, decisions of, [11.150] freedom of political communication and, [14.130] Governor in Council, decisions in name of, [11.150] jurisdiction High Court, [7.20], [11.130] power to define, [11.130], [11.140] State Supreme Courts, [11.140] laws limiting grounds of, [26.120] legislation, of, [2.120] Marbury v Madison principle, [2.120], [6.20] power of, [7.20], [11.130]

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privative clause decision, [11.120], [11.140] proleptic (anticipatory), [26.60] State legislation, [11.140] writs see Supervisory writs Judiciary see Courts; Judges; Judicial power Jury trial appeal against acquittal by jury, [24.50] English Bill of Rights, [2.60] guarantee of right to, [24.10], [24.30] ineffectuality, [6.70], [13.30], [24.40], [24.50] State offences, not applicable to, [27.120] Territory courts, [36.110] indictable offences, [24.30] created by Commonwealth law, [24.50] guarantee only for, [6.70], [13.30], [24.30] individual right, [1.40] interpretation of Constitution, [8.40] narrow interpretation, [24.40] strict interpretation, [24.50] Magna Carta, [2.40], [24.30] majority v unanimous verdict, [24.50] role in structure of government, [24.50] State laws about, [24.50] State offences, not applicable to, [27.120] summary offences with lengthy gaol terms, [24.40] territories power, application to laws under, [36.90], [36.110] waiver of, [24.50] Kable principle judicial independence, [6.50], [25.20], [27.70], [34.20]–[34.70] organised crime laws, [34.50] State courts, [34.20]–[34.50] State tribunals, [34.60] Territory judges, [34.40], [36.70] uncertainty of application, [34.90] Kelsen, Hans, [1.20], [5.100], [38.10] Kingston, Charles, [4.30], [4.70], [5.20]

Legislation default commencement date, [12.50] delegated see Delegated legislation power to make see Legislative power process for making see Legislative process retrospective see Retrospective laws validity see Constitutional validity Legislative instruments see Delegated legislation Legislative powers acquisition on just terms see Acquisition of property on just terms aliens see Aliens appellable matters, [4.70] appropriation see Appropriation of money banking, [17.40], [18.160] bankruptcy and insolvency, [1.50], [18.180] bills of exchange and promissory notes, [18.160] business regulation powers, [18.10] cases about, [1.40] Commonwealth, [17.20]–[17.60] exclusive powers see Exclusive powers of Commonwealth federal limitations on, [23.10] purposive grants, [17.50] referral of matters to, [17.80], [18.110], [35.50] relying on several powers in one Act, [18.20] Commonwealth places, [19.20], [21.110], [28.50] conciliation and arbitration, [18.190] concurrent powers, [28.100], [32.10] copyrights, patents and trade marks, [8.40], [17.40], [18.180] corporations see Corporations power currency, coinage and legal tender, [18.160], [28.80] delegation to executive, [12.10]–[12.40] division between Commonwealth and States see Division of powers

divorce see Divorce and matrimonial causes power “dual sovereignty”, [17.70], [28.100] emigration see Immigration and emigration exclusive see Exclusive powers of Commonwealth executive power and, [10.50] extent, cases about, [1.40] external affairs see External affairs power extraterritorial laws see Extraterritorial laws federal limitations on, [23.10] financial powers, [21.10] groups of, [18.10] heads of power, [17.20] “helping” powers, [20.10] immigration see Immigration and emigration insurance, [18.170] interpretation of grants, [17.30]–[17.50] characterisation of laws, [17.30], [21.40] limits in one grant affecting others, [17.40] literal interpretation, [8.80], [17.30] purposive grants, [17.50] interpretation of limits, [8.20], [17.60] laws relying on several powers, [18.20] leads of power, [6.50] limits on, [1.20], [6.50], [12.10], [17.20] interpretation of, [8.20], [17.60] list of topics, [1.20], [6.50], [17.20] marriage see Marriage power money, regulating, [18.160] nation state powers, [19.10] naturalisation and aliens see Aliens non-limited aspects, [12.10] overview, [17.10] pensions see Pensions, benefits and health services private parties, actions by, [1.40] proportionality requirement, [13.60] public service, [19.10], [19.20] referral to Commonwealth, [17.80], [18.110], [35.50] retrospective laws see Retrospective laws separation of, [6.60] social powers, [20.10]

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Legislative powers continued sources of, [17.10] States see State legislative powers taxation see Taxation telecommunications see Postal, telephonic, telegraphic services power trade and commerce see Trade and commerce power vesting in Parliament, [6.60], [12.10] weights and measures, [18.180] Legislative process amendment of rules, [16.10] assent, [16.20] advice as to, [9.80] altering constitution, [9.80] Bill not supported by government, [9.80] certification that no legal objection, [9.80] dissolution, after, [9.70] Governor-General, [9.40], [9.70], [9.80], [16.20] presentation of Bill for, [16.20] prorogation, after, [9.70] Committee stage, [16.20] Consideration in Detail stage, [16.20] deadlocks see Deadlocks on parliamentary Bills debating Bill, [16.20] financial legislation see also Taxation amendment of proposed laws, [16.30], [16.40] introduction of Bills, [16.20], [21.70] Senate cannot initiate, [16.20], [16.30], [21.70] special rules, [16.10], [16.30] First Reading, [16.20] introduction of Bills financial Bills, [16.30] lower House, [16.20] upper House, [16.20] Introductory stage, [16.20] joint sitting, [16.50] deadlock, [16.50]–[16.70] double dissolution, after, [16.50] majority vote, [16.20] judicial interference, [16.70] majority vote, [16.20] normal process, [16.20] overview, [16.10] quorum for vote, [16.20] reading of Bill, [16.20]

Second Reading, [16.20] special rules, [16.10] tax laws see Taxation Third Reading, [16.20] voting, [16.20] Legislature see Parliament Local government by-laws, power to make, [27.60] constitutional recognition, [38.100] Expert Panel on Constitutional Recognition of, [38.100] State Constitutions recognising, [38.100] Locke, John, [2.100] Locus standi, [7.40] Magna Carta Agreement of the People and, [2.100] amendment, [2.90] common pleas, [2.50] effect of, [2.40] history, [2.30] jury trial, [2.40], [24.30] Mandamus, [5.110], [7.60], [11.60], [11.120] Manner and form provisions agreement with executive government distinguished, [27.140] amendment of Constitution, [38.10], [38.20] Australia Act, [27.130] binding, whether, [27.130]–[27.180] challenged law actually in breach, [27.160] enactment, manner and form of, [27.140] later parliaments, on, [27.130] law regarding constitution, powers or procedure of Parliament, [27.170] mandatory, must be, [27.140] protected from ordinary amendment, [27.150] cases about, [1.40] Colonial Laws Validity Act, [27.130] democratic theory, [27.190] higher law, subject to, [27.130] judicial enforcement, [27.180] non-abdication requirement, [27.140]

political agreement distinguished, [27.140] presentation of Bills, [7.70] self-entrenching, [27.150] sources of authority to make, [27.130] special majority, [27.140] State laws, [27.20], [27.30], [27.80] amendment of Constitutions, [27.20], [27.150], [27.160] binding, whether, [27.130]–[27.180] constitution, powers and procedure of parliament, about, [27.90], [27.130], [27.170] tenure of judiciary, protection of, [27.170] Marbury v Madison principle, [2.120] adoption in Australia, [6.20] Marriage power bigamy, creating offence of, [20.20] consequences of marriage, [20.20] definition of marriage, [20.40] divorce power, interaction with, [17.40], [20.30] custody and guardianship of children, [20.30] limiting effect, [17.40] legitimating children, [20.20] Marriage Act 1961, [20.20] religious freedom and, [24.90] same-sex marriage laws, [20.50] inconsistent Territory and Commonwealth laws, [36.80] Military tribunals see Courts martial Ministers advising role, [9.60] appointment of, [9.30], [9.40] Cabinet, [9.20], [9.30], [9.60] decision-making, [9.60] disagreeing with decision of, [9.50] role of, [9.30] cabinet government, [2.80], [9.60] collective decision-making, [9.60] collective responsibility, [9.50] executive power exercised by, [9.10]–[9.30], [9.50], [10.10], [10.20] first Ministers, [4.70]

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individual responsibility, [9.50] members of Parliament, must be, [6.60], [9.20], [9.50] ministerial responsibility, [9.50] Prime Minister or Premier see Prime Minister or Premier responsible government, [9.50] State constitutions, [9.50] supported by majority in lower House, [9.30], [9.40], [9.50], [11.10] Montesquieu’s model, [2.70]–[2.110] separation of powers, [2.100], [6.60], [12.20], [12.40], [25.10] US system based on, [2.80], [2.110], [12.40] Moore, W Harrison, [4.50], [6.70] Moots/folkmoots, [2.30] National capital see also Seat of government amendments to Bill, [4.60] National security defence power see Defence power rule of law and, [11.160] Nationhood power executive power and, [10.50] spending of money, [10.50], [21.200], [21.210], [21.220] university funding, [21.230] Naturalisation and aliens see Aliens New Zealand Bill of Rights, [13.90] Constitution, [38.60] extraterritorial laws, [12.70] freedom of political discussion extending to, [14.40] responsible government, [3.60] voting rights for women, [2.140] Non-citizens see Aliens; Immigration and emigration Northern Territory see Territories Organised crime laws “bikie” gangs, [34.50] confidentiality of criminal intelligence, [34.50] confiscation of proceeds of crime, [34.30], [34.50] control orders, [26.70], [34.50] judicial independence, [34.50] Kable principle, [34.30], [34.50] terrorism see Terrorism

Parkes, Sir Henry, [4.20] Parliament apportionment of Members between States, [15.30] attempts to prevent presentation of Bill to, [7.70] Australian Capital Territory, representation of, [15.40] blocking of supply Bills, [9.140] Clerk of the Parliaments, [9.80] constitution of, [15.10], [15.20] Court’s reluctance to interfere with processes of, [7.70] deadlocks see Deadlocks on parliamentary Bills disqualification, [15.80]–[15.110] after election, [15.110] allegiance to foreign power, [15.80], [15.100] bankrupt, [15.80], [15.100] cases interpreting, [15.100] “common informer”, [15.110] consequences, [15.110] conviction of offence, [15.80], [15.100] disqualified when elected, [15.110] jurisdiction over, [15.90] office of profit under Crown, [15.80], [15.100] pecuniary interest in agreement, [15.80], [15.100] sitting while disqualified, [15.100], [15.110] subject or citizen of foreign power, [15.80], [15.100] treason, attainted of, [15.80], [15.100] dissolution of, [9.60], [9.70] assenting to Bills after, [9.70] Governor-General’s power, [9.40], [9.70], [9.130] vote of no confidence in government, [9.130] double dissolution, [9.140], [16.50]–[16.70] elections see Elections eligibility for election, [15.20], [15.80] disqualification, [15.80]–[15.110] jurisdiction over, [15.90] Governor/Governor-General’s powers, [9.40], [9.70] appointing session times, [9.40] assent to legislation, [9.70], [9.80], [16.20] dissolution, [9.40], [9.70]

double dissolution, [9.140], [16.50] prorogation, [9.40], [9.70], [9.150] joint sitting, [9.40], [16.50], [16.60] cases about, [1.40], [7.70] deadlock, [16.50]–[16.70] double dissolution, after, [16.50] majority vote, [16.20] law-making process see Legislative process legislative power vesting in, [6.60], [12.10] limits on legislative powers, [1.20] Ministers as members of, [6.60], [9.20], [9.50] Northern Territory, representation of, [15.40] number of members, [15.20], [15.30] passing legislation see Legislative process plenary power, [12.10] prorogation, [9.40], [9.70], [16.70] assenting to Bills after, [9.70] reserve power to grant or refuse, [9.150] Queen part of, [9.80], [15.20] recall, Governor’s power to, [9.150] sessions, [9.40] Territories, representation of, [15.40] Parliamentary privilege, [25.90] Parliamentary sovereignty British concept, [2.10], [2.90], [9.10], [13.10] colonial governments, [2.10] rule of law compared, [1.30] Pensions, benefits and health services acquisition on just terms and, [20.60] addition of s 51(xxiiiA), [20.10], [20.50] authorisation of payment of, [20.60] benefits, provision of, [20.60], [20.70] “civil conscription” conditions on receipt of benefits amounting to, [20.70] laws not to authorise, [20.50], [20.60]

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Pensions, benefits and health services continued Commonwealth takeover of health services, [20.60] nation-wide public hospital system, [20.60], [38.110] repairing fiscal imbalance by, [38.110] invalid and old-age pensions, [20.50] School Chaplains Program case, [20.60], [21.190] scope of powers, [20.60] university funding, [21.230] Plato, [2.20] Postal, telephonic, telegraphic services power corporations power used with, [18.20] interpretation, [8.40], [17.40] laws relating to services regulated under, [18.150] “other like services”, [18.150] scope, [18.150] trade and commerce power used with, [18.20] Precedent countervailing circumstances, [8.30] interpretation of Constitution, [8.30] overruling earlier cases, [8.30] ratio of decision, [8.30] Prerogative powers abrogation by statute, [10.20], [11.100], [11.110] acquisition on just terms not applicable, [22.70] British monarch, [2.60], [10.20], [10.30] coercive actions requiring, [10.20], [10.30] defence power and, [28.90] definition, [10.20], [10.30] detention of “irregular arrivals”, [10.40], [11.110] division between Commonwealth and States, [10.50] executive power of Commonwealth, [10.20]–[10.50] executive prerogatives, [10.50] preferences, immunities and exceptions, [10.50] priority of Crown debts, [10.50] proprietary rights, [10.50]

regulation by statute, [11.100], [11.110] royal prerogative, [2.60], [10.20], [10.30], [10.50] subsumed by statute, [10.20] Tampa case, [11.110] Prerogative writs see Supervisory writs Prime Minister or Premier appointment, [9.90] Bjelke-Petersen, [9.110] decision-making, [9.60] dismissal, [9.40], [9.110], [9.140] Governor’s power, [9.40], [9.90] Lang dismissed by Game, [9.140] Whitlam dismissed by Kerr, [9.140] election of, [9.30] executive power, [9.20]–[9.60] Hughes, [9.120] loss of support mid-term, [9.130] recommending new GovernorGeneral, [9.50] replacement mid-term, [9.110] reserve powers of Governor, [9.90] resignation mid-term, [9.110] matter of principle, [9.120] Principle of legality abrogation of rights, [6.70], [9.10], [13.70], [13.80], [38.80] breach of international law, [12.10], [12.150], [13.80], [38.80] “common law Bill of Rights”, [13.80] defence power and, [19.100] extraterritoriality, [12.10], [12.70], [13.80] intention of parliament, interpreting, [13.80] paperless arrests, [34.70] retrospectivity, [12.10], [12.50], [13.80] Privative or ouster clauses executive power limited by, [11.120] Hickman principle, [11.120], [11.140] privative clause decision, [11.120], [11.140] State laws, [11.140] Privy Council appeals abolition, [5.50] High Court, from, [4.70], [5.20]

Prohibition, [5.110], [7.60], [11.60], [11.120] Property acquisition on just terms see Acquisition of property on just terms definition, [22.50] tax on see Commonwealth–State immunities Proportionality test freedom of political discussion, laws affecting, [14.80] incidental power, laws under, [17.50] purposive powers, [13.60] suitable, necessary and adequate in balance, [14.80] treaty implementation, [19.60] Public Service appointment of public servants, [3.100] Departments, [19.20] exclusive power of Commonwealth, [19.20], [28.60] executive power exercised by, [9.20], [10.10], [10.20] implied immunity of instrumentalities, [19.20] inherent power to administer, [19.10] Purposive powers freedom of speech and, [13.60] proportionality requirement, [13.60] Queen executive power notionally vested in, [10.20], [10.30] figurehead, as, [9.20] parliamentary privilege not extending to, [15.20] part of Parliament, [9.80], [15.20] prerogative powers, [10.20], [10.30] Quick, Dr John, [4.30], [4.40] Race power Aboriginal race, [20.80]–[20.110], [38.50] discriminatory laws, [20.110] exclusion, [20.10], [38.50] laws for benefit of, [20.110] removal of exclusion, [20.80] special laws for people of, [20.90] detrimental laws, [20.10], [20.80], [20.110]

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laws deemed necessary, [20.100] laws generally prohibiting racial discrimination, [20.90] manifest abuse, [20.100], [20.110] Native Title Act case, [20.90], [20.100], [20.110] Pacific Island Labourers Act 1901, [20.80] proposed repeal, [38.50] race, meaning, [20.90] special laws for people of any race, [20.80], [20.90] Tasmanian Dam case, [20.90], [20.110] White Australia policy, [20.80] Referendum alteration of Constitution, [4.10], [4.50], [6.10], [38.20] double majority required, [2.130], [4.30], [6.10], [38.20], [38.40] Governor-General putting to, [6.10], [9.40] information on proposals, [38.40] Swiss model, [2.10], [2.130], [4.20], [4.30], [4.50] “yes/no” campaigns, [38.40] approving draft Constitution, [4.60], [4.70] Referral of legislative power, [17.80], [18.110], [35.50] Regulations see Delegated legislation Reid, Sir George, [4.60], [4.70], [21.150], [30.100] Religion defence power and, [19.100], [24.110] definition, [24.70] DOGS case, [21.160], [24.90] English laws about, [2.70], [2.90] establishment of, [24.90] free exercise of, [24.110] freedom of, [24.60]–[24.120] guarantees of, [6.70], [13.30], [24.10], [24.60] limits on Commonwealth for protection of, [24.60] presumption against interference with, [13.80] States, whether applicable to, [27.120], [27.150] territories power, application to laws under, [36.90], [36.140]

grants to States, [21.160], [24.90] imposing observance of, [24.100] Jehovah’s Witnesses case, [19.100], [24.70], [24.80], [24.110] laws for prohibited purpose, [24.80]–[24.120] establishing religion, [24.90] imposing observance, [24.100] prohibiting free exercise, [24.80], [24.110] test for Commonwealth office, [24.120] marriages, [24.90] prohibiting free exercise of, [24.80], [24.110] protection against interference with, [24.60] religious test for Commonwealth office, [24.120] right to have no religion, [24.100] School Chaplains Program case, [21.190], [21.210], [21.220] separation of Church and State, [6.70], [21.210], [21.220] States, application of protections, [27.120], [27.150] tax exemptions for religious bodies, [24.70] US Constitution, [6.70], [24.90] Representative government, [5.80] electoral laws, [27.100] freedom of political discussion and, [14.50] Republic parliamentary republics, [38.70] proposal for change to, [38.70] Repugnancy doctrine Australian laws, [5.30] colonial laws, [3.50], [3.120] Colonial Laws Validity Act 1865, [3.120] Reserved State powers doctrine corporations power and, [18.20], [18.90] Engineers’ case rejecting, [17.70], [18.10] trade and commerce power, interpretation of, [17.40] Resisting arrest law found invalid, upholding conviction where, [7.60] Responsible government appropriation of money, [6.60], [11.20]

Australian colonies, [2.10], [3.60], [3.100] British concept, [2.10], [2.80] Canada, [2.80], [3.60] Commonwealth Constitution, [4.10] dismissal of Whitlam and, [9.140] executive power, limits on, [9.30] freedom of political discussion and, [14.50] government responsible to lower House, [9.140] Governor as enforcer of, [9.40], [9.90] Ministers members of Parliament, [6.60], [9.20], [9.50] ministerial responsibility, [9.50] supported by majority in lower House, [9.50] New Zealand, [3.60] separation of powers and, [25.10] State Constitutions, [27.40] Retrospective laws changing laws during litigation, [26.140] conduct between time of offence and trial, [25.50] criminal offences, [12.50] immigration, [12.60] Independent Commission Against Corruption powers, [12.60] International Covenant on Civil and Political Rights, [12.50] power to make, [12.10], [12.50] presumption against, [12.10], [12.50], [13.80] principle of legality, [12.10], [13.80] rule of law and, [12.50] States, [12.10], [27.60] taxation, [11.30], [12.60] undesirability, [12.50] validating invalid decisions, [26.140] war crimes, [12.60] Right to vote Australia, [2.140], [15.20] British citizens, [15.20] cases about, [1.40] colonial constitutions, [3.80], [4.50] constitutional protection of, [1.40]

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Right to vote continued discrimination against out-of-State residents, [31.10], [31.100] disqualifications, [15.20], [15.50] electoral laws affecting, [15.50] England, [2.70], [2.80], [2.140] equality of voting power, [15.70] guarantee of, [13.30], [24.10], [24.20] informed choice, [9.10], [13.50], [14.10], [14.150] prima facie right, [15.50] prisoners, [15.50] property qualification rules, [3.80] racist State laws, [27.110] restrictive interpretation, [24.20] State electoral roll, persons on, [24.10] State limiting right, [31.10] universal adult suffrage, [15.50], [15.70] weak protection of, [13.30], [24.10] women, [2.140], [4.50], [15.50] Rivers States’ rights to waters of, [23.60] Commonwealth laws not to abridge, [23.10], [23.60] Roman law, [2.20] Royal Commissions Commonwealth–State cooperation, [35.50] jurisdictional limits, [35.50] Royal prerogative see Prerogative powers Rule of law administrative law remedies, [1.20], [11.120]–[11.150] Aristotle, [2.20], [2.70], [2.110] armed forces and, [19.130] Dicey, [2.90], [10.10], [11.60], [11.160] direct appeal to, [11.160] doctrine, [1.20] England, [2.70], [2.90] executive power subject to, [9.10], [11.60]–[11.160] judicial review, [11.130], [11.140] liberal-democratic tradition, [38.80] national security and, [11.160] retrospective laws and, [12.50] right to sue government, [11.70] source of doctrine, [2.20]

supervisory writs, [11.60] underpinning all legal practice, [1.50] United States, [2.110] Same-sex marriage laws constitutionality, [20.50] inconsistent Territory and Commonwealth laws, [36.80] Seas and Submerged Lands Case, [1.40], [5.20] control of territorial sea, [5.50], [12.80] extraterritorial laws, [12.80], [12.130] interpretation of Constitution, [8.80] Seat of government Australian Capital Territory, choice of, [36.30] exclusive power, [28.40], [36.30] territories power and, [28.40], [36.50] Sedition defence power, [19.130] Self-incrimination, privilege against presumption against exclusion of, [13.80] Separation of powers cases about breaches of, [1.40] Communist Party case, [25.50] companies, cases by, [1.40] delegated legislation and, [12.20], [12.40] judicial independence see Judicial independence judicial power, [6.60], [25.10], [25.40] justification, [25.40] legislature, executive and judiciary, [6.60] Montesquieu’s model, [2.70]–[2.110], [6.60], [12.20], [12.40], [25.10] overview, [4.10], [6.60] responsible government and, [25.10] States, [27.70], [34.90] asymmetry of, [34.90] Constitutions not having enforceable, [27.40], [27.70], [34.10] rights, protection of, [25.40] territories power, application to laws under, [36.120]

Service, Sir James, [4.20], [4.30] Socrates, [2.20] Sovereignty of States, [6.50], [17.70] Sovereignty of the people, [5.80] amendment of Constitution, [5.80], [5.90] qualification of theory, [5.90] Spending power see also Appropriation of money appropriation required, [10.20], [21.10], [21.30], [21.180]–[21.220] Australian Assistance Plan (AAP) case, [21.190], [21.200] authorising statute, need for, [21.220] incidental power and, [21.190], [21.210] limits on executive power, [11.10]–[11.50], [21.190] national purposes, [21.200] nationhood power, [10.50], [21.200], [21.210], [21.220] nature of appropriation, [21.190] ordinary and well-recognised functions, [21.220] School Chaplains Program case, [21.190], [21.210], [21.220] Tax Bonus case, [21.200] university funding, [21.230] validity of appropriation, [21.190] Standing, [7.40] State Constitution Acts amendment, [27.80] changing constitution of parliament, [27.90] manner and form requirements, [27.20], [27.30], [27.80] matter not entrenched, [27.80] power of, [27.20], [27.80] referendum, [27.90] appropriation of money, [11.20] cases about, [1.40] colonial times see also Colonial Constitutions colony becoming state, [37.30] entrenched provisions, [3.90], [3.120] re-enactment since, [27.20] Commonwealth Constitution prevails over, [6.50] disputes over passage of Bills, [27.30]

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entrenched provisions, [3.90], [3.120], [27.20], [27.30], [27.170] executive government, [27.40] Governor, assuming existence of, [9.20], [27.40] legislative powers see State legislative powers local government, recognition of, [38.100] not supreme law, [6.50], [8.10], [27.20] re-enactment since federation, [27.20] saving of, [6.50], [27.10] separation of powers not enforceable, [27.40], [27.70], [34.10] source of legislative powers, [27.30] summary of contents, [27.20] tenure of judges, [27.40], [27.80] three branches of government, [27.40] State courts administrative law remedies, [13.40], [34.10] Commonwealth Constitution, impact on, [34.20] cross-vesting of jurisdiction, [26.40], [26.110] federal jurisdiction, [26.30], [26.110] appropriate repositories of, [34.10], [34.20] bankruptcy matters, [26.110] closed court, [26.110] exercising, [6.60] family law matters, [26.110] federal matters, [26.30] Nicholas requirement, [26.110] non-judicial powers, limits on exercise of, [26.20], [26.50] vesting in, [6.60], [13.40], [25.20], [26.110] High Court may remit matters to, [26.30] independence, [25.20], [27.40], [34.10]–[34.90] Kable principle, [6.50], [25.20], [27.70], [34.20]–[34.90] industrial courts, [34.60] judicial review, [11.140] laws not to foist inappropriate powers on, [34.10] novel powers, [34.80] preventive detention, [34.20] recognition of, [25.20], [34.10] tenure of judges, [27.40], [27.80]

State industrial tribunals Commission in Court Session, [34.60] jurisdiction of, [34.60] State laws areas covered by, [35.30] by-laws, local governments’ power to make, [27.60] Commonwealth Constitution, subject to, [28.20] Commonwealth places, taxes relating to, [21.110], [28.50] Commonwealth protected from see Intergovernmental immunities conflict between, [12.120] cooperation between Commonwealth and States, [35.50] Crimes Acts/Criminal Codes, [35.30] electoral laws, power to make, [15.20] racist laws, [27.110] unfair laws, [27.100] extra-territorial Commonwealth laws, effect, [36.60] extraterritorial see Extraterritorial laws freedom of religion provisions not applicable, [27.120] harmonisation, [17.80], [35.40] human rights, interfering with, [13.40] implied immunity of instrumentalities, [19.20] judicial processes, not to interfere with see Judicial independence jury trial guarantee not applicable, [27.120] Lands Acts, [35.30] power to make see State legislative powers racist laws, [27.110] taxation see Taxation unfair electoral laws, [27.100] uniform laws, [35.40], [35.60] adoption/application Acts, [35.60] cooperative legislative schemes, [35.60] customs, excise and bounties, [23.20] divorce laws, [20.20] Ministerial Councils to consider, [35.40] pressure for, [35.40] regulations for, [35.60]

State legislative powers see also State laws areas covered by, [35.30] authorised by ss 106 and 107 Commonwealth Constitution, [27.30] Commonwealth Constitution, subject to, [28.20] concurrent powers, [28.100], [32.10] constitution, powers and procedure of parliament, laws about, [27.90] manner and form requirements, [27.90], [27.130] constitutional limits, not subject to, [27.120] Constitutions conferring, [27.30] continuation of colonial powers, [28.100] delegation, [12.30], [27.60] division not balances, [17.70] education, [35.30] electoral laws, [15.20], [27.100] exclusive powers, lack of, [28.100] extraterritorial laws see Extraterritorial laws freedom of interstate trade limiting, [28.110], [30.160] freedom of religion provisions not applicable, [27.120] head of power not required, [27.50], [28.20] health, [35.30] implied limitations, [28.110] law breaching international standards, [12.10], [27.60] laws for peace, order and good government, [12.90], [27.30], [27.50] extraterritorial laws, [12.80], [12.90] limits on power, [27.70] meaning, [27.50] plenary and ample power, [27.50] taxation power as part of, [21.20] laws which bind later parliaments, [27.130] limits on, [27.70], [28.110] manner and form see also Manner and form provisions amendment of Constitution, [27.20], [27.80] binding, whether, [27.130]–[27.170] judicial enforcement, [27.180] sources of authority to make, [27.130]

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State legislative powers continued money Bills to originate in lower House, [27.40] anti-tacking provisions, [27.40] plenary and ample, [27.50], [27.110] racist laws, [27.110] referral to Commonwealth, [17.80], [18.110], [35.50] residuary powers, [28.100] retrospective laws, [12.10], [27.60] taxation see Taxation State Parliaments bicameral, [27.30] abolition of one House, [27.90] Commonwealth Constitution, powers subject to, [28.20] constitution of, [15.10] power to change, [27.90] deadlock resolution procedure, [27.90] disputes over passage of Bills, [27.30] double dissolution, [27.30] laws about constitution, powers and procedure, [27.90] manner and form requirements, [27.90], [27.130], [27.170] Legislative Council, [27.30] legislative powers see State legislative powers money Bills to originate in lower House, [27.40] saving of, [27.10] self-generated powers, [27.30] States acquisition of property on just terms by State, [22.110] from State, [22.100] alteration of boundaries of, [37.20] arguments for getting rid of, [17.80] Bills of Rights, [13.90] boundaries, [12.80] bounties, prohibition on, [29.20] Commonwealth Constitution alteration of boundaries of, [37.20] binding on, [28.20] “compact” between States, [17.70] effect on, [6.50], [17.70], [28.10], [35.10] legislative powers subject to, [28.20] new States, [37.20]–[37.50] State Constitutions subject to, [28.20]

Commonwealth grants to see Grants to States continuing functions of, [35.30] cooperation with Commonwealth see Commonwealth–State cooperation corporations power non-corporate entities, attempts to create, [18.140] referral to Commonwealth, [18.110] customs and excise duties loss of revenue from, [6.50], [29.10] metals, duty on, [29.20] prohibition on imposing, [29.20], [29.120] receipts duties, [29.70] removal of power, [6.50], [21.10], [21.20], [21.60], [21.150], [29.10], [29.20] definition includes new States, [37.30] delegated legislation, [12.30], [27.60] discrimination based on residence in, [6.50], [6.70] discrimination between see Discrimination between States division of powers, effect, [6.50] effect on Constitution on, [6.50], [17.70] electoral laws, power to make, [15.20] expenses and revenue, [35.20] extraterritorial laws see Extraterritorial laws financial dependence, [35.20] fiscal imbalance, [38.110] freedom of political communication, [6.50], [13.50] freedom of trade between see Freedom of interstate trade grants to see Grants to States GST proceeds, [21.170], [29.90], [35.20], [38.110] internal doctrines of constitutional law, [27.10] laws of see State laws legislative powers see State legislative powers limits on powers, [1.20], [6.50] new States, [37.20]–[37.50] admission or establishment of, [37.20], [37.30] claims for, [37.40] colony becoming state, [37.30] definition includes, [37.30]

formation of, [37.20] procedure, [37.50] representation in Parliament, [37.30] terms and conditions, [37.30] parliaments see State Parliaments powers taken away from, [6.50], [28.30] referral of power to Commonwealth, [17.80], [18.110], [35.50] reserved powers doctrine, [17.40], [17.70], [18.10] corporations power and, [18.20], [18.90] Engineers’ case rejecting, [17.70], [18.10] revenue from Commonwealth, [21.170], [29.90], [35.20] rights of, [17.70] rivers, rights to waters of, [23.10], [23.60] saving of parliaments, [6.50], [27.10] separation of powers, [27.70], [34.90] asymmetry of, [34.90] Constitutions not having enforceable, [27.40], [27.70], [34.10] protection of rights, [25.40] social powers left to, [20.10] sovereignty, [6.50], [17.70] taxation see Taxation territory surrendered to Commonwealth, [36.20], [36.30] Statute of Westminster, [5.40], [5.50] extraterritorial laws, [12.70] Supervisory writs administrative law remedies, [11.60], [11.120] cases applying for, [7.20] certiorari, [7.60], [11.60], [11.120] constitutional writs, [5.110], [11.60], [11.120] effect of, [7.60] Hickman principle, [11.120], [11.140] mandamus, [5.110], [7.60], [11.60], [11.120] privative clause decision, [11.120], [11.140] prohibition, [5.110], [7.60], [11.60], [11.120] rule of law and, [11.60] strict interpretation of powers, [11.120]

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Supreme Courts colonies, [3.50], [3.70], [3.110] States see State Courts Territories, [36.70] tenure of judges, [34.40], [36.70] Swiss Constitution amendment, [2.10], [2.130] referendum model, [2.10], [2.130], [4.20], [4.30], [4.50] federal structure, [2.130] Taxation see also Appropriation of money acquisition on just terms not applicable, [22.120] Air Caledonie case, [21.80], [21.100] amendment of Bills, [16.30], [16.40] anti-tacking provisions, [21.110] States, [27.40] Territories, [36.90] approval of Parliament, [11.20], [11.30], [21.50] bankruptcy, priority in, [21.60] Bills, [21.70] amendment of, [16.30], [16.40] introduction of, [16.20], [21.70] procedure for passing, [16.30], [21.70]–[21.130] Senate cannot initiate, [16.20], [16.30], [21.70] unamendable, [16.40] breach of provisions, [16.40], [21.90], [21.130] carbon tax, [21.40], [23.40] characterisation of laws, [17.30], [21.40] charge challenged as being tax, [21.20] collection of tax before Bill passed, [11.30] Commonwealth laws controlling State taxation, [21.60] company taxation, [21.50] Consolidated Revenue Fund, [11.40], [21.30], [21.80], [21.140] constitutional issues, [21.20] constitutional prohibitions, [21.20] customs duties see Customs, excise and bounties defence power and, [19.100] definition, [16.30], [21.80] discrimination against out-ofState residents, [31.50], [31.70]

discrimination between States, [21.20], [23.20], [23.40] excise duties see Customs, excise and bounties extraterritorial laws, [12.90] FBT case, [21.40], [21.50] fees distinguished from taxes, [21.80] fiscal imbalance, [38.110] Goods and Services Tax (GST) consumption tax, [29.110] excise duty distinguished, [29.50] grants to States from, [21.170], [29.90], [35.20], [38.110] immunities see Commonwealth– State immunities implied immunity from non-property taxes, [21.20] interpretation of grant of power, [17.30], [21.40] law dealing with the imposition of, [21.110] law imposing only one subject of, [21.120] legislative process, [16.10]–[16.40], [21.70]–[21.130] breach of provisions, [16.40], [21.90], [21.130] special rules, [16.10], [16.30] limits on executive power, [11.20], [11.30] Minerals Resource Rent Tax, [23.40] receipt by public authority for public purpose, [21.80] relationship between Commonwealth and States, [21.20] retrospective laws, [11.30], [12.60] sections of Constitution dealing with, [21.20] separate law, imposition by, [21.20], [21.70] States Commonwealth places, taxes relating to, [21.110], [28.50] discrimination between, [21.20], [23.20] financial dependence, [35.20] GST proceeds, [21.170], [29.90], [35.20], [38.110] immunities see Commonwealth–State immunities legislative power, [21.10], [21.20] revenue from sales tax, [21.120], [29.70], [35.20]

structure of taxation Acts, [21.110] subject of, [21.120] Tape Manufacturers case, [21.80], [21.100] tax, what constitutes, [21.30] taxation power, [21.10]–[21.60] taxes imposed since federation, [21.30] taxing provision included in non-tax law by amending Act, [21.100] Training Levy case, [21.40], [21.140] wartime, [19.100], [21.60] without authorisation of Parliament, [11.30] Telecommunications power see Postal, telephonic, telegraphic services power Territorial seas extraterritorial laws, [12.80]–[12.100] power to legislate in respect of, [12.80]–[12.100] State boundaries, [12.80] Territories acquisition by Commonwealth, [36.10], [36.20] acquisition on just terms distinguished, [36.30] validity of, [36.30] Australian Capital Territory, [36.30] Constitution, [36.70] electoral system, [36.70] limits on powers, [36.80] Self-Governing Act, [36.50], [36.70] self-government, [36.50] external territories, [36.40] extra-territorial Commonwealth laws, [36.60] State laws, effect on, [36.60] freedom of trade between States and, [30.70] High Court jurisdiction over, [36.130] internal territories, [36.30] judges, [34.40], [36.70] laws inconsistent with Commonwealth laws, [36.80] limits on powers, [36.80] Nauru, [36.40], [36.50] new States, becoming, [37.20], [37.40]

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Territories continued Norfolk Island, [36.50], [36.50], [36.150] change in status, [36.150] limits on Commonwealth power, [36.90] self-government from 1979 to 2015, [36.150] treated as if part of NSW, [36.150] Northern Territory, [36.30] becoming State, [37.40] Constitution, [36.70] limits on powers, [36.80] Self-Governing Act, [36.50], [36.70] self-government, [36.50] Papua New Guinea, [36.40], [36.50], [36.90] power to acquire, [36.10], [36.20] power to make laws for, [36.10], [36.50] acquisition on just terms and, [22.40], [36.90], [36.100] Commonwealth places and, [28.50] connection test, [36.60] extra-territorial Commonwealth laws under, [36.60] freedom of religion and, [36.140] jury trial and, [36.110] limits on Commonwealth power, applicability, [36.90] plenary power, [36.50] seat of government and, [28.40], [36.50] separation of powers and, [36.120] tenure of judges and, [36.110] representation in Parliament, [36.50] seat of government, [28.40], [36.30], [36.50] self-governing Territories, [36.50] Constitutions, as, [36.70] limits on powers, [36.80] Self-Governing Acts, [36.50], [36.70] separation of powers, [36.120] States may surrender, [36.20], [36.30] Supreme Courts, [36.70] tenure of judges, [34.40], [36.70]

Terrorism control orders, [26.70] defence power, [19.130] preventative detention, [26.70] refusal of re-entry, [19.170] renunciation of citizenship, [19.170] Things (popular assemblies), [2.30] Trade and commerce power air safety laws, [18.70] alteration, proposed, [38.120] constitutional trade and commerce, [18.30], [18.200] corporations power used with, [18.20] extraterritorial laws, [12.130] Imperial law, subject to, [5.30], [5.50] incidental power and, [17.50], [18.60] interpretation of, [17.40], [18.40] interstate trade and commerce, [18.30], [18.40] contract made in, [18.80] domestic trade of States distinguished, [18.70] invalid parts of statutes, [8.70] laws supported by, [18.60] limiting words, removal of, [38.120] matters within a State, application of laws to, [18.70] overseas trade and commerce, [18.30] posts and telegraphs power used with, [18.20] scope, [18.60] shipping cases, [5.50] trade and commerce, meaning, [18.40] trade practices legislation, [18.80] US Constitution equivalent, [18.70] Trade practices legislation cases under, [1.50] Concrete Pipes case, [1.40], [1.50], [18.20] corporations power and, [18.20] interpretation of powers, [17.30] multiple heads of power, [18.20] trade and commerce power, [18.80] Trading or financial corporations see Corporations power

Treaty implementation “appropriate and adapted” test, [19.60] conformity with treaty or recommendation, [19.60] enforceable treaties, [19.40], [19.50] external affairs power, under, [19.40]–[19.80] ILO Conventions, [19.50], [19.60] ILO recommendations, [19.70] Industrial Relations case, [19.50], [19.60], [19.70] Koowarta, [19.40], [19.80] matter of international concern, [19.40], [19.80] recommendations of international bodies, [19.70] signing and ratification, [19.50] Tasmanian Dam case, [1.40], [19.40], [19.60], [19.80] true object of law critical to validity, [30.130] Twomey, Anne, [9.80], [9.100], [9.140], [9.150] Ultra vires acts cases about, [1.40] challenging, [1.10], [1.20] United Kingdom Bill of Rights, [2.40], [2.60], [2.70], [11.20], [11.60], [11.160], [13.90] Constitution, [1.20], [2.80] “dignified part”, [2.80] “efficient part”, [2.80] flexible, [1.20] Montesquieu’s ideal, [2.70], [2.80] constitutional history see British constitutional history judicial review, [2.120] Parliament see British/Imperial Parliament United States Articles of Confederation, [2.110] Bill of Rights, [2.110], [13.90], [38.80] breach of constitutional rights tort, [7.60] Constitution see United States Constitution election of President, [2.80], [2.110] electoral college, [2.80], [2.110] English colonies becoming, [3.20], [3.30]

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federal system, [2.10], [2.110], [2.130] marriage and divorce laws, [20.10] Montesquieu’s theory, [2.80], [2.110], [12.40] state constitutions, [2.110] War of Independence, [2.110]

separation of Church and State, [6.70], [24.90] separation of powers, [2.80], [2.110], [12.40] supremacy of, [2.110], [2.120] trade and commerce power, [18.70]

United States Constitution acquisition of property on just terms, [22.10] amendment of, [2.110] Chapters, [4.30] Congress, model for, [4.30] discrimination against out-ofState residents, [31.20] discrimination between States, [23.40] equal representation of States in Senate, [15.70] freedom of religion, [24.90] freedom of speech (First Amendment), [14.100] laws inconsistent with, [2.110], [2.120] legislative powers, [2.120], [13.10] limitations on powers, [23.10] Marbury v Madison principle, [2.120] preamble, [5.90] proportional representation, [15.70]

University funding appropriation/spending power, [21.230] grants to States, [21.230] heads of power, [21.230] Vane, Sir Henry, [2.100], [4.40] Vattel, Emmerich de, [3.20], [3.30] Voting see Elections; Right to vote War Australian independence and, [5.30], [5.40] crimes extraterritorial law, [12.130] retrospective law, [12.60] defence power in times of, [19.100] acquisition on just terms, [19.100], [22.60] freedom of interstate intercourse, subject to, [23.80] postwar recovery, [19.110]

taxation laws, [19.100], [21.60] World War I, [5.30], [5.40], [19.100] World War II, [5.40], [19.100] Water allocations under bore licences, whether acquisition, [22.150] coastal waters, extraterritorial laws, [12.100] States’ rights to waters of rivers, [23.60] Commonwealth laws not to abridge, [23.10], [23.60] statutory schemes for trading in water rights, [23.60] Weights and measures power, [18.180] Winterton, George, [10.20], [10.30] Witenagemot, [2.30] Work Choices Case Commonwealth and State governments, between, [1.40] corporations power, [18.20], [18.100], [18.110], [18.130], [28.100] multiple heads of power, [18.20] national system employers, [18.20], [18.100], [18.140], [18.190]

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