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WINTERTON’S AUSTRALIAN FEDERAL CONSTITUTIONAL LAW Commentary and Materials
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WINTERTON’S AUSTRALIAN FEDERAL CONSTITUTIONAL LAW Commentary and Materials
General Editor
PETER A GERANGELOS BA LLB (Syd); LLM, PhD (UNSW) Professor of Constitutional Law, The University of Sydney
NICHOLAS ARONEY BA (UNSW); LLB, LLM (UQ); PhD (Monash) Professor of Constitutional Law, TC Beirne School of Law, The University of Queensland
SIMON EVANS BSc LLB (Syd); PhD (Cambridge) Professor, Melbourne Law School, The University of Melbourne Pro Vice-Chancellor (International), The University of Melbourne
SARAH MURRAY BA LLB (UWA); PhD (Monash) Associate Professor, School of Law, The University of Western Australia
PATRICK EMERTON BA LLB, MA (Melb) PhD (Monash) Associate Professor, Faculty of Law, Monash University
ADRIENNE STONE BA, LLB (UNSW) JSD (Columbia) Kathleen Fitzpatrick Australian Laureate Fellow Professor, Director of the Centre for Comparative Constitutional Studies Melbourne Law School, The University of Melbourne
FOURTH EDITION
LAWBOOK CO. 2017
Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW First edition (Winterton, Lee, Glass, Thomson) Second edition (Winterton, Lee, Glass, Thomson, Gerangelos) Third edition (Gerangelos, Lee, Aroney, Evans, Murray, Emerton)
1999 2007 2013
National Library of Australia Cataloguing-in-Publication entry Winterton, George, 1946–2008, author. Winterton’s Australian federal constitutional law: commentary and materials / Peter A Gerangelos, Nicholas Aroney, Sarah Murray, Simon Evans, Patrick Emerton, Adrienne Stone. Fourth ed. ISBN: 9780455239729 (pbk.) Includes bibliography references and index. Constitutional law — Australia. Constitutional history--Australia. 342.94 © 2017 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, 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 legislative material herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. The Copyright Act 1968 permits certain reproduction and publication of Commonwealth legislation. In particular, s 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For reproduction or publication beyond that permitted by the Act, permission should be sought in writing. Requests should be submitted online at www.ag.gov.au/cca, faxed to (02) 6250 5989 or mailed to Commonwealth Copyright Administration, Attorney-General’s Department, Robert Garran Offices, National Circuit, Barton ACT 2600. Editor: Zoe Haynes Product Developer: Lucas Frederick Publisher: Robert Wilson Printed by Ligare Pty Ltd, Riverwood, NSW
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FOREWORD The Hon Stephen Gageler AC Justice of the High Court of Australia Constitutional law, Sir Robert Menzies remarked, is “a unique mixture of history, statutory interpretation, and some political philosophy” (Menzies, Afternoon Light (1967), p 320). The colonial statesmen who framed the Australian Constitution in the final decade of the 19th century were conversant in political philosophy and experienced in the practical workings of government. All of them had participated in responsible government in the form in which that institution had emerged in the Australian Colonies in the preceding four decades, and many of them had a well-informed appreciation of the successes and failures which had occurred over the same period within the federal systems of the United States and Canada. The Constitution of the “indissoluble Federal Commonwealth under the Crown” which they framed, and to which the Australian people agreed before it was enacted into law by the Imperial Parliament, was a considered blend of constitutional traditions, peculiarly adapted by Australians to Australian conditions. The Australian Constitution as it so emerged at the beginning of the 20th century was a blueprint for a system of national government which would afterwards develop its own distinctively Australian identity. The young Robert Garran, then secretary to the drafting committee of the Australasian National Convention, soon to become the first Secretary of Commonwealth Attorney-General’s Department and later to become the first Commonwealth Solicitor-General, wrote of it in The Coming Commonwealth (1897), p 185, that “the Constitution is much, it must not be supposed that it is everything”. He explained: It is, in itself, merely the means to an end; merely the dead mechanical framework of national unity. The life and soul of the union must be breathed into it by the people themselves. When a Constitution has been framed and adopted, the work of Australian union will have been begun, not finished. The nation will be a nation, not of clauses and sub-clauses, but of men and women; and the destiny of Australia will rest with the Australian people rather than with the Australian Constitution. The work now in hand – the making of a Constitution – is great and important; but it is the beginning not the end. To study Australian constitutional law in the 21st century is to study the history of our nation from its inception. It is to do so through the lens of the real controversies which have from time to time divided the nation or significant sections of the nation and which have fallen for ultimate resolution in real-time by the High Court, an institution which Sir Owen Dixon noted “has always administered the law as a living instrument and not as an abstract study” (Dixon, Jesting Pilate (2nd ed, 1997), p 254) and which has changed in its make-up and outlook as the make-up and outlook of the nation has changed. It is to recognise that the structure of our national government as that structure now appears cannot be found merely in the clauses and sub-clauses of the Constitution. Constitutional law is to be found also in the outcomes of numerous forensic contests over more than a century of social and economic change and is the product of the ideas of many minds – ideas that have been forged, honed, tested and sometimes abandoned in the course of those contests. Australian constitutional law, as the late George Winterton from whom this casebook takes its name well recognised, is a subject to which teaching by the case method is therefore particularly well adapted. According to the preface of the first edition, George Winterton’s aim, and that of his original co-authors HP Lee, Arthur Glass and James Thomson, was “to analyse judicial reasoning, probe the ambit of principle and note the relevant political context through substantial commentary, notes, questions and references to literature” in a book which “deliberately eschews any ideological perspective”. That aim has been maintained, and has been admirably realised, throughout successive editions of the book. The present edition, co-authored by Nicholas Aroney, Patrick Emerton, Simon Evans, Peter Gerangelos, Sarah Murray and Adrienne Stone, is no exception. v
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This edition, the fourth, continues a tradition of open-ended academic inquiry and of academic excellence. Within topics chosen and arranged with evident regard for their practical importance and doctrinal unity, major themes are allowed to emerge though the cases themselves. Strengths and weaknesses of competing views are drawn out by the commentary and questions. Secondary references have been abstracted and are helpful, but have been kept to a strategic minimum. Primacy has appropriately been given to the primary sources. The changing authorship of Winteron’s Australian Federal Constitution Law, its changing content and its essential thematic unity through successive editions, are a metaphor for the subject-matter with which it deals, sensitively and thoroughly but without pretence of ever being able to do so definitively.
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PREFACE This book is intended primarily for teaching purposes. It therefore endeavours to cover the cases and materials in virtually any Australian Federal Constitutional Law course and Public Law course, without much excess. To this end, several additions and amendments have been made to the previous edition. This has been done by way of updating existing cases and materials more accurately to reflect the current state of the law. The book has also enhanced the restructure undertaken in the previous edition. The underlying philosophy of this book remains that of its original authors, the late George Winterton, HP Lee, Arthur Glass and James Thomson. As the original authors put it, this book aims: to cover the essential topics in some detail because in-depth analysis ensures greater insight into constitutional principle, judicial reasoning and overall assessment of the work of the High Court. The book deliberately eschews any ideological perspective. It seeks to analyse judicial reasoning, probe the ambit of principle and note the relevant political context through substantial commentary, notes, questions and references to literature. Although intended primarily for students, the work is addressed to a wider audience, especially in the commentary and notes, and in the extensive Bibliography, included to assist advanced students, scholars, judges, lawyers and other researchers. Since the last edition of this book, there have been some changes to the team of authors. Adrienne Stone has taken over the responsibility for Chapter 11 on Implied Rights and Freedoms from Emeritus Professor HP Lee (Monash University). Patrick Emerton has added Chapter 6 on External Affairs and Defence to his author responsibilities, also taking over from Professor Lee. The primary responsibility for the chapters in this book are therefore as follows: • Nicholas Aroney: Chapters 1, 12 and 14; • Patrick Emerton: Chapter 6 and the section on s 51(xxxi) in Chapter 10; • Simon Evans: Chapter 3; • Peter Gerangelos: Chapters 4, 5, 7, 9 and 13; • Peter Gerangelos and Sarah Murray: Chapter 2; • Sarah Murray: Chapters 8 and 10; • Adrienne Stone: Chapter 11. The authors wish to express their gratitude to Emeritus Professor HP Lee of Monash University for his very considerable efforts as an author of this book in its previous editions. Professor Lee was an original author with the late George Winterton, the Professor of Constitutional Law in the University of Sydney, and continued as one until the third edition. His considerable efforts in the establishment of this casebook, the excellence of his intellectual input into its substantive content, his influence in establishing its ethos of detailed examination of the cases and the law and its non-ideological perspective is hereby acknowledged. The present General Editor also acknowledges Professor Lee’s most considerable efforts in supporting the editorial work and general organisation of this work. His encouragement and support is deeply appreciated. Professor Winterton sadly passed away after the publication of the second edition. By way of acknowledgement of his inspiration for the development of this book, and his guiding influence over its underlying philosophy, method and rationale, as well as his very considerable efforts in its publication, the Winterton name continues to appear in the title of this work: Winterton’s Australian Federal Constitutional Law: Commentary and Materials. We would like to acknowledge also the very considerable efforts of those who provided us with research assistance in both the substantive text and the bibliography, in particular Sarah Bradbury and vii
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Joshua Quinn-Watson. The General Editor would like to acknowledge in particular the extensive efforts of Sarah Bradbury who assisted in the editing of this book, further research assistance, literature review and overall general editorial support. He would also like to acknowledge the Dean of the University of Sydney Law School, Professor Joellen Riley, for her support, encouragement and forbearance while the final (very time-consuming) editing and completion of the work was being undertaken. We acknowledge the very considerable support and encouragement of Mrs Rosalind Winterton, Dr Peter Winterton and the Winterton Family, as well as that of each of our respective families. We are particularly indebted to Lucas Frederick of Thomson Reuters without whose encouragement, support, patience and guidance this fourth edition might not have been completed. We are also indebted to the editorial team at Thomson Reuters for their patient and efficient work to ensure a smooth completion. Their work, and the work of all persons at Thomson Reuters who assisted them, is much appreciated. We endorse Professor Gerald Gunther’s assessment, in the ninth edition of his excellent casebook, that “constitutional law is an important, serious, endlessly intriguing and constantly enjoyable subject”. If readers of this book find at least one of those adjectives apposite, our labours will not have been entirely in vain. PETER A GERANGELOS NICHOLAS T ARONEY SARAH MURRAY SIMON EVANS PATRICK EMERTON ADRIENNE STONE May 2017
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TABLE OF CONTENTS Foreword ............................................................................................................................................... v Preface ............................................................................................................................................ vii Table of Cases .................................................................................................................................. xi Table of Statutes .......................................................................................................................... xxxv
Part I: Introduction Chapter 1: Constitutional Fundamentals ................................................................ 3 Chapter 2: States ....................................................................................................... 69
Part II: The Executive Power of the Commonwealth Chapter 3: The Executive Power of the Commonwealth and the Executive Branch .................................................................................................. 189
Part III: The Legislative Power of the Commonwealth Chapter 4: Inconsistency ........................................................................................ 319 Chapter 5: Commerce and Corporations ............................................................. 369 Chapter 6: External Affairs and Defence ............................................................. 491 Chapter 7: Commonwealth Financial Powers ..................................................... 555 Chapter 8: Freedom of Interstate Commerce ..................................................... 653 Chapter 9: Excise Duties ......................................................................................... 695 Chapter 10: Express Rights and Freedoms .......................................................... 737 Chapter 11: Implications from Representative Government: Implied Rights and Freedoms ......................................................................... 825 Chapter 12: Intergovernmental Immunities ....................................................... 957
Part IV: The Judicial Power of the Commonwealth Chapter 13: The Separation of Judicial Power .................................................. 1049
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Part V: Constitutional Interpretation Chapter 14: Constitutional Interpretation ........................................................ 1191 Appendix A: Justices of the High Court of Australia (Indicating the line of succession) ........ 1285 Appendix B: Justices of the High Court of Australia (with biographical details) .................... 1287 Index ..................................................................... .................................................................. 1293
The bibliography for this book is available from the Thomson Reuters estore at: www.thomsonreuters.com.au.
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TABLE OF CASES [Where an extract from a case is reproduced, the paragraph number at which the extract appears is in bolded type.] A A v Hayden (1984) 156 CLR 532; [1984] HCA 67 ........................... 3.30, 3.80, 3.340, 3.370, 12.380 A-G (Ex rel Lumley) v TS Gill & Son P/L [1972] VLR 22 ........................................................... 13.370 AAP Case (1975) 134 CLR 338 ........................................................................... 3.290, 3.350, 3.370 ACT Revenue, Commissioner for v Kithock Pty Ltd (2000) 102 FCR 42 ....................................... 9.80 ACTV (1992) 177 CLR 106 ................................................................. 11.60, 11.180, 11.210, 11.300 AMS v AIF (1999) 199 CLR 160 ................................................................................................ 8.170 ANA Case (1945) 71 CLR 29 ....................................................................................................... 8.30 APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 79 ALJR 1620 ....... 4.80, 8.140, 8.170, 11.170, 11.300 Abebe v Commonwealth (1999) 197 CLR 510 ....................................................................... 13.290 Abitibi Power & Paper Co Ltd v Montreal Trust Co [1943] AC 536 ............................................ 6.210 Acton v Blundell (1843) 12 M & W 324 [152 ER 1223] ........................................................... 10.110 Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 ......... 5.390, 5.410, 5.430, 7.150, 12.380, 13.140, 14.690, 14.700 Adams v United States; Ex rel McCann (317 US 269 ............................................................... 10.280 Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116 .............. 6.210, 10.340, 10.370, 14.780 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 ................................................. 2.670 Air Caledonie International v Commonwealth (1988) 165 CLR 462 .... 7.10, 7.30, 7.50, 7.60, 7.150, 7.160 Airlines of NSW Case (No 1) (1964) 113 CLR 1 ........................................................................... 4.30 Airlines of NSW Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54 ............. 4.160, 4.240, 5.140, 5.160, 6.90, 6.110, 6.135, 6.140, 6.150 Airservices Australia v Canadian Airlines International Ltd (2000) 202 CLR 133 ...... 3.230, 7.40, 7.50, 7.80, 7.160 Airlines Case see Australian National Airways Pty Ltd v Commonwealth Akar v Attorney-General (Sierra Leone) [1970] AC 853 .............................................................. 4.350 Al-Kateb v Godwin (2004) 219 CLR 562 ............................. 3.150, 13.180, 13.190, 13.530, 14.580 Alberta Government Telephone v Canadian Radio-television and Telecommunications (1989) 61 DLR (4th) 193 ..................................................................................................... 12.50 Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 ....................................... 11.150 Alexander’s Case (1918) 25 CLR 434 ......................................................................... 13.140, 13.250 Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth (1987) 162 CLR 271 ............... 14.740 Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 186 CLR 630 ........ 7.220, 7.230, 12.380 Allen v Flood [1898] AC 1 ....................................................................................................... 10.110 Alqudsi v The Queen (2016) 90 AJLR 711 ............................................................................... 10.290 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129; [1920] HCA 54 .......... 1.130, 3.370, 4.30, 5.130, 5.460, 5.470, 5.550, 6.90, 6.110, 7.130, 7.230, 11.30, 11.210, 12.30, 12.120, 12.200, 12.290, 12.380, 14.30 Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 ...................................... 14.740 American Trucking Associations, Inc v Smith 496 US 167 (1990) .............................................. 9.140 Anderson’s Pty Ltd v Victoria (1964) 111 CLR 353 .................................................. 9.50, 9.80, 9.110 Andrews v Howell (1941) 65 CLR 255 ........................................................................... 6.110, 6.210 Andrus v Allard 444 US 51 ...................................................................................................... 10.120 Animal Defenders International v United Kingdom (2013) 57 EHRR 21 ................................... 11.180 Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 ........... 3.370, 8.40, 13.320 Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 .......... 4.170, 4.180, 4.240 Appeal Relating to the Jurisdiction of the ICAO Council [1972] ICJ Rep 46 ................................ 6.150 xi
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Arthur Reginald Perera v The King [1951] AC 482 .................................................................. 14.740 Arts Heritage and Environment, Minister for v Peko-Wallsend Ltd (1987) 15 FCR 274 ............... 3.210 Asiatic Steam Navigation Co Ltd v Commonwealth (1965) 96 CLR 397 ................................. 12.400 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 ......... 2.690, 2.720, 13.440 Associated Dominions Assurance Case (1953) 89 CLR 78 ........................................................ 13.370 Association Ltd v Commonwealth (1993) 176 CLR 480 .......................................................... 10.120 Atlantic Smoke Shops Ltd v Conlon [1943] AC 550 .................................................................... 9.80 Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508 .......................... 3.120, 3.130, 3.150 Attorney-General v Jonathan Cape Ltd; Attorney-General v Times Newspapers [1976] QB 752 ...................................................................................................................................... 3.210 Attorney-General v Stewart (1817) 2 Mer 143; 35 ER 895 ...................................................... 14.530 Attorney-General v Times Newspapers ([1974] AC 273 ............................................................. 11.30 Attorney-General v Wilts United Dairies Ltd (1920) 37 TLR 884 ....................................... 3.30, 3.280 Attorney-General (Alberta) v Attorney-General (Canada) (1939) AC 117 ................................... 7.290 Attorney-General (British Columbia) v Kingcome Navigation Company (1934) AC 45 ................ 9.60 Attorney-General (Canada) v Cain (1906) AC 542 ......................................................... 3.120, 3.150 Attorney-General (Canada) v Lavell [1974] SCR 1349 ............................................................... 2.260 Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542 .......................................................... 13.70 Attorney-General (Cth) v Breckler (1999) 197 CLR 83 .............................................................. 13.50 Attorney-General (Cth) v Colonial Sugar Refining Co Ltd (1913) 17 CLR 644; [1914] AC 237 .... 3.370, 12.120 Attorney-General (Cth) v Schmidt (1961) 105 CLR 361 .................................... 5.460, 10.50, 13.290 Attorney-General (Cth) v The Queen (The Boilermakers’ Case) (1957) 95 CLR 529; [1957] AC 288 ................................................................................................................ 13.260, 13.320 Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975) 135 CLR 1 .............. 11.30, 11.60, 11.180, 11.200, 11.210, 11.230, 11.250, 10.320, 14.550, 14.560 Attorney-General (NSW) v Brewery Employees Union of NSW (Union Label Case) (1908) 6 CLR 469 ........................................................................................ 10.120, 12.80, 14.630, 14.640 Attorney-General (NSW) v Butterworth & Co (Aust) Ltd (1938) 38 SR (NSW) 195 .................... 3.140 Attorney-General (NSW) v Collector of Customs (Steel Rails Case) (1908) 5 CLR 818 ............. 12.110 Attorney-General (NSW) v Homebush Flour Mills Ltd (1937) 56 CLR 390 ............ 7.60, 7.120, 7.360, 9.120 Attorney-General (NSW) v Trethowan (1931) 44 CLR 394 ......... 2.180, 2.210, 2.220, 2.230, 2.330, 2.360, 7.10 Attorney-General (NSW) v Williams (1913) 13 SR (NSW) 295 ................................................... 3.210 Attorney-General (NT) v Chaffey (2007) 231 CLR 651 ................................................. 10.90, 10.110 Attorney-General (NT) v Emmerson (2014) 253 CLR 393 .............................. 2.570, 10.150, 13.450 Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 90 ALR 59 .................................... 4.10 Attorney-General (Ontario) v Attorney-General (Canada) [1912] AC 571 ................................ 12.120 Attorney-General (Qld) v Attorney-General (Cth) (1915) 20 CLR 148 .......................... 7.290, 12.120 Attorney-General (Qld) v Fardon [2003] QCA 416 .................................................................... 2.560 Attorney-General (Qld) v Lawrence [2013] QCA 364 ................................................................ 2.720 Attorney-General (Quebec) v Queen Insurance Co (1878) 3 App Cas 1090 ............................ 14.710 Attorney-General (SA) v Corporation of the City of Adelaide (2013) 87 ALJR 289; 295 ALR 197; [2013] HCA 3 ................................................................................................ 10.150, 11.300 Attorney-General (Vic) v Commonwealth (1962) 107 CLR 529 ............................................... 14.700 Attorney-General (Vic) v Commonwealth (1935) 52 CLR 533 ................................................... 6.210 Attorney-General (Vic) v Commonwealth (1945) 71 CLR 237 ........................... 3.290, 3.370, 12.380 Attorney-General (Vic) (Ex rel Black) v Commonwealth (The DOGS Case) (1981) 146 CLR 559 ............................................... 7.330, 7.390, 7.400, 10.250, 10.300, 10.320, 11.30, 11.210 Attorney-General (Vic); Ex rel Dale v Commonwealth (Pharmaceutical Benefits Case) (1945) 71 CLR 237 ......................................................................................... 3.310, 3.320, 3.370, 3.400 Attorney-General (Vic) v The Commonwealth (1935) 52 CLR 533; [1935] HCA 31 ..................... 3.30 Attorney-General (WA) v Australian National Airlines Commission (Western Australian Airlines Case) (1976) 138 CLR 492 ...................................................... 5.50, 5.160, 5.170, 5.560, 14.740 Attorney-General (WA) v Marquet (2003) 217 CLR 545 ................................... 2.290, 2.330, 13.190 Auckland Harbour Board v The King [1924] AC 318 ...................................................... 3.280, 3.300 Austin v Commonwealth (2003) 215 CLR 185 ................ 5.460, 5.470, 7.210, 7.220, 7.230, 12.190, 12.260 Austin v Michigan Chamber of Commerce 494 US 652 .......................................................... 11.180 xii
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Australia v Canadian Airlines International Ltd (1999) 202 CLR 133 ........................................ 10.150 Australian Agricultural Co v Federated Engine-Drivers and Firemen’s Association of Australasia (1913) 17 CLR 261 ........................................................................................... 11.210 Australian Boot Trade Employees’ Federation v Whybrow and Co (1910) 11 CLR 311 ............. 14.740 Australian Broadcasting Commission v Industrial Court (SA) (1977) 138 CLR 399 .................... 4.220 Australian Building Construction Employees’ and Builders Labourers’ Federation v Commonwealth (1986) 161 CLR 88 ....................................................... 13.430, 13.510, 13.520 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 ..... 1.210, 1.470, 8.160, 11.20, 11.30, 11.40, 11.60, 11.110, 11.130, 11.150, 11.180, 11.210, 11.280, 11.300, 12.210, 12.380, 13.290, 14.60, 14.180, 14.190, 14.570, 14.750, 14.780 Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 .............................................................................................................................. 13.80 Australian Communist Party v Commonwealth (1951) 83 CLR 1 ........... 1.360, 1.410, 3.100, 3.120, 3.210, 3.320, 5.390, 6.50, 6.210, 6.220, 6.230, 13.190, 2.330, 13.370, 14.400, 14.720 Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 232 CLR 1 .................................................................................................................................. 3.100 Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 28 ALR 257 ..... 10.320 Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 .................................................. 11.30 Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117; 286 ALR 625 ........................................................................................................ 13.450, 13.510 Australian Education Union, Re; Ex parte Victoria (1995) 184 CLR 188 ......... 7.210, 12.130, 12.220, 12.240, 12.380 Australian Insurance Staffs’ Federation v The Accident Underwriters’ Association (1923) 33 CLR 517 ............................................................................................................................. 14.620 Australian Mutual Provident Society v Goulden (1986) 160 CLR 330 ....................................... 4.270 Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29 .............. 5.40, 5.80, 5.160, 5.460, 5.550, 6.90, 8.20, 11.30, 11.60, 11.210 Australian National Airways Pty Ltd v Commonwealth (No 2) (1945) 71 CLR 115 ..................... 5.360 Australian Postal Commission v Dao (1985) 3 NSWLR 565 ..................................................... 12.380 Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 ................ 12.170, 12.260, 12.280 Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480 .... 7.10, 7.60, 7.80, 7.160, 10.120, 10.130, 10.140, 10.170 Australian Textiles Pty Ltd v Commonwealth (1945) 71 CLR 161 .............................................. 6.110 Australian Woollen Mills Pty Ltd v Commonwealth [(1954) 92 CLR 424; [1954] HCA 20 ........... 3.370
B BHP Billiton v Schultz (2004) 221 CLR 400 ............................................................................... 2.490 Bailey v Drexel Furniture Co (1922) 259 US 20 ......................................................................... 7.130 Baker v Carr [1962] USSC 48; 369 US 186 (7 Law Ed 2d 663) (1962) ..................................... 14.560 Baker v The Queen (2004) 223 CLR 513; 78 ALJR 1483 .............. 2.570, 2.590, 2.640, 5.460, 13.450 Baldwin 436 US 371 (1978) ................................................................................................... 10.440 Bank Mellat v HM Treasury (No 2) [2014] AC 700 .................................................................. 11.180 Bank Mellat [2013] UKSC 39 .................................................................................................. 11.170 Bank Nationalisation Case see Commonwealth v Bank of New South Wales ....................................... Bank of NSW v Commonwealth (1948) 76 CLR 1 ........ 3.40, 3.50, 5.60, 5.340, 5.390, 5.430, 5.460, 5.520, 5.550, 6.90, 6.110, 7.130, 7.400, 8.10, 8.30, 10.50, 10.70, 10.80, 10.120, 10.140, 10.150, 11.30, 12.190, 12.220, 14.740, 14.780 Barcelo v Electrolytic Zinc Co of Australasia Ltd (1932) 48 CLR 391 .......................................... 2.460 Barcelona Traction Case [1970] ICJR 3 ........................................................................................ 6.90 Bardolph (1934) 52 CLR 455 ......................................................................................... 3.370, 3.380 Barley Marketing Board (NSW) v Norman (1990) 171 CLR 182 ..................................... 8.100, 9.120 Barton v Commonwealth (1974) 131 CLR 477 .................. 3.30, 3.120, 3.140, 3.340, 3.150, 12.380 Bartter’s Farms Pty Ltd v Todd (1978) 139 CLR 499 .................................................................... 8.40 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 ................................................ 3.100, 13.540 Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411 .................................... 8.50, 8.60, 8.100, 9.120 Baxter v Ah Way (1909) 8 CLR 626 ................................................................... 3.440, 13.10, 13.290 Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 .......... 1.130, 3.150, 12.110, 13.110, 14.60 xiii
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Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595 ............... 4.430, 12.190, 12.270 Beal v Marrickville Margarine Pty Ltd (1966) 114 CLR 283 ............................................... 5.180, 8.40 Behrooz v Department of Immigration (2004) 219 CLR 486 ................................................... 13.200 Bell v Stewart; R v Fletcher; Ex parte Kisch (1935) 52 CLR 248 ................................................ 14.740 Bell Group NV (in liq) v Western Australia (2016) 331 ALR 408 ................................................. 4.440 Benne v Commonwealth (2007) 231 CLR 91 .......................................................................... 11.230 Bennett v President, Human Rights and Equal Opportunity Commission (2003) 134 FCR 334 ...................................................................................................................................... 3.180 Betfair Pty Ltd v Racing New South Wales (2012) 249 CLR 217 .................................... 8.140, 8.150 Betfair Pty Ltd v Western Australia (2008) 234 CLR 418 .................................. 8.120, 11.150, 11.300 Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567 ................................. 10.120 Birmingham City Council v Equal Opportunities Commission ([1989] AC 1155 ...................... 10.440 Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics 403 US 388 (1971) ....... 11.110 Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 ...................................... 4.240, 4.430 Boilermakers’ Case (HC) see R v Kirby; Ex Parte Boilermakers’ Society of Australia .............................. Boilermakers’ Case (PC) see Attorney-General (Cth) v The Queen ...................................................... Bolton v Madsen (1963) 110 CLR 264 ......................................................... 9.80, 9.90, 9.120, 9.130 Bolton, Re; Ex parte Beane (1987) 162 CLR 514 ............................................... 3.150, 11.30, 11.130 Bonser v La Macchia (1969) 122 CLR 177 ................................................................................ 2.480 Booth v Williams (1909) 9 SR (NSW) 421 ................................................................................. 3.120 Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 215 CLR 473 ............................................................................................................................... 8.120 Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453 ............ 4.290, 4.320, 4.360 Bourke v State Bank of NSW (1990) 170 CLR 276 ....................................................... 5.460, 13.290 Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107 .......... 3.100, 12.30, 12.40, 12.380 Bradley v Commonwealth (1973) 128 CLR 557 ........................................................................ 3.120 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 ....... 13.30, 13.40 Breavington v Godleman (1988) 169 CLR 41 .................................................................. 4.10, 5.550 Brewery Labels Case (Attorney-General (NSW) (Ex rel Tooth & Co Ltd) v Brewery Employees’ Union of NSW (1908) 6 CLR 469 ....................................................................... 11.30 Bribery Commissioner v Ranasinghe [1965] AC 172 ................................ 2.260, 2.330, 2.340, 2.400 Bridges v California 314 US 252 ............................................................................................. 14.740 British American Tobacco Australia Ltd v Western Australia (2003) 200 ALR 403; 77 ALJR 1566 ....................................................................................................................... 3.100, 11.110 British Broadcasting Corporation v Jones [1965] Ch 32 .................................................. 3.120, 3.110 British Imperial Oil Co Ltd v Federal Commissioner of Taxation (1925) 35 CLR 422 ................ 13.250 British Medical Association v Commonwealth (1949) 79 CLR 201; [1949] HCA 44 .... 10.120, 14.740 British Steel v Granada Television [1981] AC 1096 .................................................................... 11.60 Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337 ...... 2.450, 2.460, 4.10 Bropho v Western Australia (1990) 171 CLR 1 ............................ 3.90, 3.100, 11.130, 12.50, 12.380 Brown v Lizars (1905) 2 CLR 837 .............................................................................................. 3.120 Brown v The Queen (1986) 160 CLR 171 ...................................................... 10.270, 10.280, 11.30 Brown v West (1990) 169 CLR 195; [1990] HCA 7 ..................................... 3.30, 3.280, 3.290, 3.370 Brownlee v The Queen (2001) 207 CLR 278 ........................................................................... 10.290 Brownlee v The Queen (1997) 41 NSWLR 139 ....................................................................... 10.290 Browns Transport Pty Ltd v Kropp (1958) 100 CLR 117 .......................................... 7.30, 7.60, 9.120 Buchanan v Commonwealth (1913) 16 CLR 315 ............................................................. 7.10, 11.30 Buck v Bavone (1976) 135 CLR 110 .................................................................... 8.30, 8.180, 11.210 Buckley v Valeo 424 US 1 ................................................................................ 11.30, 11.180, 11.300 Builders’ Labourers’ Case (1914) 18 CLR 224 ......................................................................... 13.240 Builders Labourers’ Case (1957) 100 CLR 277 ........................................................................ 13.370 Builders Labourers’ Federation Case (1982) 152 CLR 25 ......................................................... 12.190 Building Construction Employees & Builders’ Labourers Federation (NSW) v Minister for Industrial Relations (1986) 7 NSWLR 372 ..................................................... 2.500, 2.520, 13.490 Bunning v Cross (1978) 141 CLR 54 ....................................................................................... 13.470 Burma Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75 ............................................ 3.120 Burns v Ransley (1949) 79 CLR 101 .................................................................... 3.120, 3.320, 6.210 Burton v Honan (1952) 86 CLR 169 ................................................ 10.140, 14.780, 13.290, 14.740 xiv
Table of Cases
Butler v Attorney-General (Vic) (1961) 106 CLR 268 ........................................... 4.310, 4.350, 4.450 Butts v O’Dwyer (1952) 87 CLR 267 ....................................................................................... 13.370
C CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] AC 1013 .......................................... 7.60 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 .................................. 13.370 CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 .... 3.110, 3.150, 13.200 Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195; [2010] HCA 27 ........... 3.30, 3.110, 3.140, 3.150 Cain v Doyle (1946) 72 CLR 409 ............................................................................................ 12.380 Cain [1906] AC 542 .................................................................................................................. 3.150 Calder v Bull 3 US (3 Dall) 386 (1798) .......................................................... 13.130, 13.150, 13.410 Cam & Sons Pty Ltd v Chief Secretary (NSW) (1951) 84 CLR 442 ............................................. 8.100 Cameron v Deputy Federal Commissioner of Taxation (1923) 32 CLR 68 ...................... 7.190, 7.240 Cameron v The Queen (2002) 209 CLR 339 .............................................................. 13.530, 13.540 Caminetti v United States 242 US 470; 61 Law Ed 442 (1917) ................................................... 5.40 Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45 ............................ 10.120 Canadian Broadcasting Corporation v Attorney-General for Ontario [1959] SCR 188 ................ 12.50 Cantwell v Connecticut (1940) 310 US 296 ............................................................................ 11.130 Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) (1992) 177 CLR 248 ..... 5.520, 9.10, 9.110, 9.120 Capital Duplicators Pty Ltd v Australian Capital Territory (No 2) (1993) 178 CLR 561 ....... 9.10, 9.70, 9.120, 9.130, 9.140 Capital TV & Appliances Pty Ltd v Falconer (1971) 125 CLR 591 ............................................... 11.30 Capital Television Case (1992) 177 CLR 106 ........................................................................... 12.210 Carr v Western Australia (2007) 232 CLR 138 ........................................................................... 3.370 Carter v Carter Coal Co (1936) 298 US 238 [80 Law Ed 1160] ................................................. 7.130 Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 ............................ 4.310, 4.350 Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 ..... 7.210, 8.70, 8.80, 8.100, 9.120, 11.180, 11.270, 11.300, 14.740 Chaplin v Commissioner of State Taxation (SA) (1911) 12 CLR 375 ........................... 12.110, 12.400 Chaplinsky v New Hampshire (1942) 315 US 568 .................................................................. 11.130 Chapman v Luminis Pty Ltd (No 4) (2001) 123 FCR 62 .......................................................... 10.110 Charles Marshall Pty Ltd v Collins ((1957) 96 CLR 1; [1957] AC 274 ......................................... 4.170 Chasemore v Richards (1859) 7 HLC 349 [11 ER 140] ............................................................. 10.110 Cheatle v The Queen (1993) 177 CLR 541 ................................................................ 10.290, 11.210 Cheng v The Queen (2000) 203 CLR 248 .................................................................... 5.460, 14.420 Cherokee Nation v US 270 US 476 (1926) ............................................................................. 13.520 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 ....... 3.20, 3.120, 3.150, 3.155, 6.150, 13.130, 13.160, 13.170, 13.180, 13.190, 13.200, 13.390, 13.450, 13.470, 13.510 Chu Shao Hung v The Queen (1953) 87 CLR 575 ..................................................... 13.170, 13.190 Church of Scientology Inc v Woodward (1982) 154 CLR 25 ..................................................... 1.360 Church of the New Faith v Commissioner of Pay-roll Tax (Vic) (1983) 154 CLR 120 .............. 10.380 Citizens United v Federal Election Commission 558 US 310 .................................................... 11.180 Clark King v Australian Wheat Board (1978) 140 CLR 120 ................................................. 8.30, 8.40 Clarke v Commissioner of Taxation (2009) 240 CLR 272 ........................................................ 12.270 Clarke v Kerr (1955) 94 CLR 489 .............................................................................................. 4.170 Clayton v Heffron (1960) 105 CLR 214 ......................................................................... 2.280, 2.410 Clough v Leahy (1904) 2 CLR 139 ................................................................................... 3.30, 3.370 Clunies-Ross v Commonwealth (1984) 155 CLR 193 ................................................... 7.400, 10.140 Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 ................................... 4.90, 4.130, 4.140 Clyne v East (1967) 68 SR (NSW) 385 ......................................................................... 2.500, 13.520 Coastace Pty Ltd v New South Wales (1989) 167 CLR 503 ............................................. 9.120, 9.130 Cobb & Co Ltd v Kropp [1967] 1 AC 141 ........................................................... 2.380, 2.430, 2.460 Coco v The Queen (1994) 179 CLR 427 .................................................................... 11.130, 13.190 Coe v Commonwealth (1993) 68 ALJR 110 ............................................................................... 1.520 Cohen v California (1971) 403 US 15 ..................................................................................... 11.130 Colbeam Palmer Ltd v Stock Affiliates Pty Ltd (1968) 122 CLR 25; [1968] HCA 50 .................. 10.120 xv
Winterton’s Australian Federal Constitutional Law
Cole v Whitfield (1988) 165 CLR 360 ..... 5.290, 5.460, 8.10, 8.40, 8.80, 8.100, 9.120, 9.130, 14.70 Coleman v Power (2004) 220 CLR 1 ........... 11.80, 11.110, 11.130, 11.150, 11.180, 11.230, 11.300 Collector v Day 78 US (11 Wall) 113 (1870) ............................................................................ 12.110 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; 24 ALR 307; 2 ALD 1 ..................................................................................................................... 13.320 Collingwood, City of v State of Victoria (No 2) [1994] 1 VR 652 ............................................... 2.500 Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 ............................ 4.170, 4.310, 4.380, 13.250 Colonial Sugar Refining [1903] St R Qd 261 ............................................................................. 7.230 Colonial Sugar Refining Co Ltd v (1912) 15 CLR 182; [1912] HCA 94 ....................................... 3.370 Colonial Sugar Refining Co Ltd v Irving [1906] AC 360 ............................................................. 7.210 Colvin v Bradley Brothers Pty Ltd (1943) 68 CLR 151 ........................................ 4.100, 4.200, 4.240 The Comalco Case see Commonwealth Aluminium Corporation Ltd v Attorney-General (Qld) ............................................................................................................................................ Combet v Commonwealth (2005) 224 CLR 494 ..... 3.270, 3.280, 3.290, 3.300, 3.350, 5.460, 7.10 Cominos v Cominos (1972) 127 CLR 588 ............................................................................... 13.370 Commercial Cable Co v Newfoundland Government [[1916] 2 AC 610] .................................. 3.370 Commercial Radio Coffs Harbour Ltd v Fuller (1986) 61 CLR 47 .................................. 4.160, 11.110 Commonwealth v Australian Capital Territory (Same-Sex Marriage Case) (2013) 250 CLR 441 .................................................................................................................................... 14.640 Commonwealth v Australian Commonwealth Shipping Board (1926) 39 CLR 1 ............ 3.320, 3.370 Commonwealth v Bank of NSW (Banking Nationalisation Case) (1949) 79 CLR 497; [1950] AC 235 ............................................................................................................. 5.60, 8.120, 8.20 Commonwealth v Bogle (1953) 89 CLR 229 ............................................... 12.320, 12.360, 12.380 Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372 ......... 3.340, 4.30, 10.250, 11.210, 12.130, 12.170, 12.320, 12.330 , 12.340, 12.380 Commonwealth v Colonial Ammunition Co Ltd (1924) 34 CLR 198; [1924] HCA 5 .................. 3.370 Commonwealth v Colonial Combing, Spinning and Weaving Co (1922) 31 CLR 421 ..... 3.30, 3.320, 3.340, 3.370, 3.440, 12.380 Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 .......................... 12.380, 12.400 Commonwealth v Grunseit (1943) 67 CLR 58 ........................................................................ 13.370 Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49 .......... 13.100, 13.110 Commonwealth v Huon Transport (1945) 70 CLR 293 ........................................................... 10.130 Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39; [1980] HCA 44 ............. 3.210, 3.370 Commonwealth v Kreglinger & Fernau Ltd and Bardsley (1926) 37 CLR 393 ............... 11.30, 14.400 Commonwealth v Limerick Steamship Co Ltd and Kidman (1924) 35 CLR 69 .......................... 2.510 Commonwealth v Mewett (1997) 191 CLR 471 ............................................................ 3.100, 3.370 Commonwealth v New South Wales (1923) 33 CLR 1 ............................................... 10.140, 11.130 Commonwealth v Newcrest Mining (WA) Ltd (1995) 58 FCR 167 .............................................. 4.10 Commonwealth v Northern Land Council (1991) 30 FCR 1 ..................................................... 3.210 Commonwealth v Northern Land Council (1993) 176 CLR 604 ..................................... 3.190, 3.220 Commonwealth v Queensland (1975) 134 CLR 298 ...................................................... 2.510, 2.560 Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 ............. 3.370, 5.250, 5.410, 5.430, 5.460, 5.470, 5.510, 6.10, 6.60, 6.110, 6.135, 6.140, 6.150, 7.180, 8.80, 10.80, 10.90, 10.110, 10.120, 10.140, 10.150, 10.440, 11.320, 12.130, 12.190, 12.210, 12.220, 12.380, 14.740, 14.780 Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 ................. 5.460, 10.110, 10.120, 10.190 Commonwealth v Western Australia (1999) 196 CLR 392; [1999] HCA 5 ......................... 3.50, 3.340 Commonwealth v Zachariassen 27 CLR .................................................................................. 12.120 Commonwealth & COR Ltd v South Australia (1926) 38 CLR 408 ..................................... 9.10, 9.50 Commonwealth & the Central Wool Committee v Colonial Combing, Spinning & Weaving Co Ltd (1922) 31 CLR 421 ........................................................................................ 3.120, 3.270 Commonwealth Aluminium Corporation Ltd v Attorney-General (Qld) [1976] Qd R 231 .......... 2.380 Commonwealth and Commonwealth Oil Refineries Ltd v South Australia (1926) 38 CLR 408 .... 9.60, 9.90, 9.120 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail (2015) 256 CLR 171 .......................... 5.510, 5.520 Communist Party Case (1951) 83 CLR 1 ................................................................................. 13.190 Concrete Pipes Case (1971) 124 CLR 468 ................................................................................. 5.460 Connelly v Director of Public Prosecutions [1964] AC 1254 .................................................... 13.470 Conroy v Carter (1968) 118 CLR 90 ......................................................................................... 7.210 xvi
Table of Cases
Cooney v Ku-ring-gai Corporation ((1963) 114 CLR 582) ....................................................... 13.370 Cooper v Stuart (1889) 14 App Cas 286 ........................................................................ 2.20, 14.530 Cormack v Cope (1974) 131 CLR 432 ........................................................................................ 7.10 Covington & Cincinnati Bridge Co v Kentucky 154 US 204; 38 Law Ed 962 (1893) .................... 5.40 Cowburn’s Case : (1926) 37 CLR 466 ......................................................................................... 4.30 Cram, Re; Ex parte NSW Colliery Proprietors’ Association Ltd (1987) 163 CLR 117 ..... 3.190, 12.380, 13.60, 13.290 Cram, Re; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 ........................... 13.40 Crane v Frohmiller 45 P 2d 955 ................................................................................................ 3.300 Croft v Dunphy [1933] AC 156 ................................................................................................. 2.460 Croome v Tasmania (1997) 191 CLR 119 ................................................................................. 4.430 Croome v Tasmania [1997] HCA 5; (1997) 191 CLR 119 ................................................. 3.420, 4.20 Crouch v Commissioner for Railways (Q) (1985) 159 CLR 22 ..................................................... 3.50 Crowe v Commonwealth (1935) 54 CLR 69 .................................................................. 7.180, 7.190 Crump v NSW (2012) 86 ALJR 623; 286 ALR 658 ................................................................... 13.520 Cunliffe v Commonwealth (1994) 182 CLR 272 ............... 5.420, 5.460, 6.150, 8.170, 8.180, 11.60, 11.100, 10.150, 11.180, 11.280, 11.300, 14.750, 14.780 Cunningham v Commonwealth (2016) 90 ALJR 1138; [2016] HCA 39 ................................... 10.190 Curran v Federal Commissioner of Taxation ((1974) 131 CLR 409) ......................................... 10.440
D The DOGS case see Attorney-General (Vic); Ex rel Black v Commonwealth ......................................... D’Emden v Pedder (1904) 1 CLR 91 ............... 5.100, 5.160, 5.230, 12.120, 12.110, 12.120, 12.380 Dalziel (1944) 68 CLR ............................................................................................................. 10.140 Damjanovic & Sons Pty Ltd v Commonwealth (1967) 117 CLR 390 .............................. 8.40, 11.210 Daniel v Paul 395 US 298 (1969) ................................................................................... 5.300, 5.310 Daniell (1920) 28 CLR 23 ......................................................................................................... 4.240 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 ...................................................................................... 11.130 Dao v Australian Postal Commission (1987) 162 CLR 317 ..................................... 4.30, 4.230, 4.430 Davies v Davies (1919) 26 CLR 348 ........................................................................................ 10.280 Davies and Jones v Western Australia (1904) 2 CLR 29 .................................. 10.400, 10.410, 10.440 Davis v Commonwealth (1988) 166 CLR 79; [1988] HCA 63 ........... 3.303.120, 3.150, 3.330, 3.340, 3.350, 3.370, 11.40, 11.280, 14.740 Dawson v Commonwealth (1946) 73 CLR 157 ................................................................ 5.80, 6.210 De Keyser’s Royal Hotel Ltd, In re; De Keyser’s Royal Hotel Ltd v The King [1919] 2 Ch 197 ..... 3.150 De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 ............ 6.50 Delohery v Permanent Trustee Co of NSW (1904) 1 CLR ........................................................ 14.530 Dempster v National Companies & Securities Commission (1993) 9 WAR 215 ........................... 4.10 Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529 ................ 7.60, 9.10, 9.50, 9.60, 9.120, 9.130 Deputy Federal Commissioner of Taxation v Truhold Benefit Pty Ltd (1985) 158 CLR 678 ......... 7.30, 7.170 Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735 .... 7.220, 7.290, 7.310, 7.360, 13.290 Devondale Cream (1968) 117 CLR 253 .................................................................................... 4.430 Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 ................................ 9.70, 9.120, 9.130 Dickson v The Queen (2010) 241 CLR 491 ............................................. 4.380, 4.420, 4.430, 4.440 Dietrich v The Queen (1992) 177 CLR 292 ............................................................................. 13.530 Dignan’s Case see Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan ......................................................................................................................................... Dingjan, Re; Ex parte Wagner (1995) 183 CLR 323 ..... 5.420, 5.430, 5.460, 10.230, 14.680, 14.780 Director of Public Prosecutions, Re; Ex parte Lawler (1994) 179 CLR 270 ...... 5.460, 10.150, 10.160, 10.170 Ditfort, Re; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 .............................. 3.120 Dixon v Attorney-General (British Columbia) (1989) 59 DLR (4th) 247 .......................... 3.50, 11.210 Dixon v London Small Arms Co (1876) 1 App Cas 632 ............................................................... 3.50 Dohnert Muller Schmidt & Co, Re; Attorney-General (Cth) v Schmidt (1961) 105 CLR ........... 10.170 Dothard v Rawlinson 433 US 321 (1977) ............................................................................... 10.440 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 ................................... 13.320 xvii
Winterton’s Australian Federal Constitutional Law
Dred Scott v Sandford 60 US 393 (1856) ............................................................................... 13.190 Drivers v Road Carriers [1982] 1 NZLR 374 ................................................................................. 2.50 Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583 ............................................... 11.320, 14.530 Duncan v Independent Commission Against Corruption (2015) 256 CLR 83 ............ 13.440, 13.450 Duncan v Louisiana 391 US 145 ............................................................................................. 10.280 Duncan v New South Wales (2015) CLR 388 .......................................................................... 13.150 Duncan v Queensland (1916) 22 CLR 556 ............................................................ 8.20, 8.40, 13.290 Duncan v Theodore (1917) 23 CLR 510 ................................................................................... 6.210 Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399 ............................................ 2.55
E E v Australian Red Cross Society (1991) 27 FCR 310 ................................................................. 5.510 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 .................................................... 13.540 Edwards v Clinch [1982] AC 845 ............................................................................................ 10.360 Egan v Chadwick (1999) 46 NSWLR 563 .................................................................................. 3.200 Egan v Willis (1998) 195 CLR 424 ............................ 1.210, 3.10, 3.180, 3.190, 3.270, 3.370, 5.460 Egan (1996) 40 NSWLR 650 ..................................................................................................... 3.190 Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590 .................................................... 2.260 Elliott v Commonwealth (1936) 54 CLR 657 ...................................................... 7.180, 7.190, 7.240 Embrey v Owen (1851) 6 Ex 353; 155 ER 579 ........................................................................ 10.110 Engineers’ Case see Amalgamated Society of Engineers v Adelaide Steamship Co Ltd ........................ Entick v Carrington (1765) 2 Wils KB 275 ................................................................................. 3.150 Essendon Corporation v Criterion Theatres Ltd (1947) 74 CLR 1 ............................................... 11.30 Evans v Crichton-Browne (1981) 147 CLR 169 ......................................................................... 11.30 Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311 .................................................... 9.70, 9.120 Everson v Board of Education 330 US 1 (1947) ....................................................................... 10.330 Exxon Corporation v Governor of Maryland (1978) 437 US 117 ................................................. 8.80
F F, Re; Ex parte F (1986) 161 CLR 376 ............................................................... 5.460, 7.150, 14.680 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 ................................................................... 3.210 Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1; [1965] HCA 64 .... 5.390, 5.460, 7.50, 7.70, 7.80, 7.130, 7.150, 10.150, 10.230 Falkland Islands Co v The Queen (1863) 2 Moo NS 266; [1863] Eng R 782; 15 ER 902 .......... 14.530 Fardon v Attorney-General (Qld) (2004) 223 CLR 575 ..... 2.520, 2.560, 2.570, 2.610, 2.640, 2.720, 5.460, 13.200, 13.350 Farey v Burvett (1916) 21 CLR 433 .............................................. 1.410, 3.120, 6.180, 6.190, 6.210 Farley (1940) 63 CLR 278 .................................................................... 4.30, 12.320, 12.340, 12.380 Farnell v Bowman (1887) 12 App Cas 643 .................................................................................. 3.30 Federal Election Commission v Beaumont 539 US 146 ........................................................... 11.180 Federated Amalgamated Government Railway and Tramway Service Association v NSW Railway Traffic Employees Association (Railway Servants Case) (1906) 4 CLR 488 .... 5.460, 12.110 Federated Saw Mill & Employees of Australasia v James Moore & Sons Pty Ltd (1909) 8 CLR 465 ...................................................................................................................................... 4.350 Federated Sawmill, Timberyard and General Woodworkers’ Employees’ Association (Adelaide Branch) v Alexander (1912) 15 CLR 308 .................................................... 2.510, 2.640 Fencott v Muller (1983) 152 CLR 570 .................... 5.410, 5.430, 5.510, 5.550, 5.600, 5.610, 5.620 Frost v Stevenson (1937) 58 CLR 528 ......................................................................................... 6.90 Finemores Transport Pty Ltd v New South Wales (1978) 139 CLR 338 ........................................ 8.40 Fire Commissioners (NSW), Board of v Ardouin (1961) 109 CLR 105 ...................................... 11.210 First Uniform Tax Case see South Australia v Commonwealth ............................................................. Fish Board v Paradiso (1956) 95 CLR 443 ................................................................................. 8.100 Flaherty v Girgis (1989) 63 ALR 466 .................................................................................. 4.20, 4.40 Fontana Films (1982) 150 CLR 169 .................................................................... 5.430, 5.410, 5.460 Foreman & Sons Pty Ltd, Re; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 .... 1.140, 6.110, 12.200, 12.380 xviii
Table of Cases
Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 ............. 2.570, 2.580, 2.640, 5.460, 2.640, 5.460 Fortescue Metals Group Ltd v Commonwealth (2013) 250 CLR 548 ...... 7.180, 7.220, 7.230, 7.240, 12.270 Fox v Robbins (1909) 8 CLR 115 ................................................................................................ 8.60 Fraser v State Services Commission [1984] 1 NZLR 116 .............................................................. 2.50 Fraser Henleins Pty Ltd v Cody; Crowther v Cody (1945) 70 CLR ................................................ 5.40 Fraser and Public Service Staff Relations Board, Re (1985) 23 DLR (4th) .................................. 14.570 Freightlines & Construction Holding Ltd (1967) 116 CLR 1; [1968] AC 625 ................................ 8.40 Frisby v Schultz (1988) 487 US 474 ........................................................................................ 11.150 Frome United Breweries Co Ltd. v Bath Justices [1926] AC 586 ............................................... 13.250 Frugtniet v Victoria (1997) 71 ALJR 1598; 148 ALR 320 ........................................................... 13.530 Fund State Superannuation Board of Victoria v Trade Practices Commission (1980) 49 FLR ....... 5.500
G Gallagher v Durack (1983) 152 CLR 238 ................................................................................ 14.740 Garcia v San Antonio Metropolitan Transit Authority 469 US 528 (1985) ................... 12.230, 12.340 Gardner v Dairy Industry Authority (NSW) ((1977) 138 CLR 646 .............................................. 2.670 Garnishee Case No 1 see New South Wales v Commonwealth ........................................................... Gazzo v Comptroller of Stamps (Vic) (1981) 149 CLR 227 .......................................................... 6.90 General Practitioners Society v Commonwealth (1980) 145 CLR 532 ....................... 7.30, 7.40, 7.50 Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 .... 10.80, 10.120, 10.170 Gerhardy v Brown (1985) 159 CLR 70 ...................................................................................... 4.310 Gibbons v Ogden 22 US 1; 9 Wheat 1 (1824) .................................................. 5.160, 5.310, 12.120 Gilbert v Western Australia (1962) 107 CLR 494 ............................................. 7.400, 10.230, 10.240 Gilbertson v South Australia [1978] AC 772 ................................................................. 2.500, 13.560 Goldblatt v Hempstead 369 US 590 ....................................................................................... 10.120 Gonzales v Raich 545 US 1 ....................................................................................................... 5.330 Gooding, Warden v Wilson (1972) 405 US 518 ....................................................................... 11.130 Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463 ....................................................... 10.450 Gosford Meats Pty Ltd v New South Wales (1985) 155 CLR 368 ...................................... 9.70, 9.100 Gould v Brown (1998) 193 CLR 346 ..................................... 12.10, 12.400, 13.280, 13.290, 13.300 Governor, Goulburn Correctional Centre, Re; Ex parte Eastman (1999) 200 CLR 322 ............... 13.20 Grace Brothers Pty Ltd v Commonwealth (1946) 72 CLR 269 ......................... 10.50, 10.140, 10.150 Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 ......... 5.460, 10.230, 14.420, 14.630, 14.680 Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 ........ 5.180, 5.430, 8.40, 11.60, 13.290, 14.740 Grassby v The Queen (1989) 168 CLR 1 ................................................................................. 13.470 Gratwick v Johnson (1945) 70 CLR 1 .......................................................................................... 8.40 Graves v New York; Ex rel O’Keefe 306 US 466 (1939) ........................................................... 12.180 Griffiths v Minister for Lands, Planning and Environment (2008) 235 CLR 232 ......................... 7.160 Griggs v Duke Power Co 401 US 424 (1971) .......................................................................... 10.440 Grollo v Palmer (1995) 184 CLR 348 .............................................................. 2.510, 13.310, 13.320 Gypsy Jokers Motorcycle Club Incorporated v Commissioner for Police (2008) 234 CLR 532 .... 2.600
H HA Bachrach Pty Ltd v Queensland (1988) 195 CLR 547 .............................. 13.450, 13.490, 13.510 HC Sleigh Ltd v South Australia (1977) 136 CLR 475 ............................................ 9.70, 9.120, 9.130 HV McKay Pty Ltd v Hunt (1926) 38 CLR 308 ........................................................................... 4.140 HCF Case (1982) 150 CLR ...................................................................................................... 13.110 HIH Claims Support Ltd v Insurance Australia Ltd (2011) 244 CLR 72; [2011] HCA 31 .............. 3.370 Ha v New South Wales (1997) 189 CLR 465 ....... 7.240, 8.120, 9.10, 9.50, 9.70, 9.80, 9.100, 9.110, 9.120 Hall v Braybrook (1956) 95 CLR 620 ....................................................................................... 10.270 Hamdi v Rumsfeld (2004) 72 USLW 4607 ............................................................................... 13.190 xix
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Hampton & Co v United States (1928) 276 US 394 .................................................................. 3.440 Handyside v United Kingdom (1976) 1 EHRR 737 ................................................................... 11.180 Hansen v R [2007] 3 NZLR 1 .................................................................................................. 11.170 Harbours Corporation of Queensland v Vessey Chemicals Pty Ltd (1986) 12 FCR 60 ................. 3.210 Harper v Canada (Attorney General) [2004] 1 SCR 827 ............................................. 11.180, 11.300 Harper v Minister for Sea Fisheries (1989) 168 CLR 314 .................................. 7.50, 7.70, 9.20, 9.30 Harper v Victoria (1966) 114 CLR 361 ............................................................................. 5.290, 7.40 Harris v Caladine (1991) 172 CLR 84 ........................ 2.510, 13.40, 13.100, 13.110, 13.120, 13.540 Harris v Minister of the Interior [1952] 2 SA 428; [1952] 1 TLR 1245 ............................. 2.260, 2.310 Haskins v The Commonwealth (2011) 244 CLR 22; [2011] HCA 28 ............................. 3.150, 13.210 Haylor (1957) 97 CLR 177 ........................................................................................................ 4.280 Health Insurance Commission v Peverill (1994) 179 CLR 226; [1994] HCA 8 ............ 10.110, 10.160, 10.170, 10.180 Heart of Atlanta Motel Inc v United States 379 US 241 (1964) .................................................. 5.310 Heiner v Scott (1914) 19 CLR 381 ................................................................................... 3.30, 5.520 Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599 ..... 7.320, 9.50, 9.80, 9.90, 9.110, 9.130 Henry v Boehm (1973) 128 CLR 482 ........................................................... 10.400, 10.410, 10.440 Henry Clay & Bock & Co Ltd v Eddy (1915) 19 CLR 641; [1915] HCA 33 ............................... 10.120 Herald & Weekly Times Ltd v Commonwealth (1966) 115 CLR 418 ........ 8.80, 5.390, 5.430, 14.700, 14.740, 14.780 Higgs v Minister of National Security [2000] 2 AC 228 ............................................................. 3.370 Hill v Wallace (1922) 259 US 44 [66 Law Ed 822] ..................................................................... 7.130 Hilton v Wells (1985) 157 CLR 57 ................................................................. 13.310, 13.320, 13.540 Hirabayashi v United States 320 US 81 (1943) ........................................................................ 13.190 Hirst v United Kingdom (No 2) (2006) 42 EHRR 41 ................................................................ 11.240 Hodel v Virginia Surface Mining and Reclamation Association 452 US 264 ................................ 5.310 Hodge v The Queen (1883) 9 App Cas 117 ................................ 2.50, 2.430, 3.440, 12.120, 12.380 Hogan v Hinch (2011) 243 CLR 506 ............................................................................ 2.660, 11.300 Holland v Jones (1917) 23 CLR 149 .......................................................................................... 6.210 Homebush Flour Mills Ltd (1937) 56 CLR 390 ............................................................................ 7.60 Horta v Commonwealth (1994) 181 CLR 183 ................................................................... 6.20, 6.40 Hospital Provident Fund Pty Ltd v Victoria (1953) 87 CLR 1 ........................................................ 8.40 Howard v Gosset [(1845) 10 QB 359 ........................................................................................ 3.190 Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 ........ 3.370, 3.440, 5.70, 5.80, 5.340, 5.360, 5.390, 5.410, 5.430, 5.460, 5.470, 5.550, 7.130, 12.80, 12.100, 13.10, 13.20, 13.40, 13.540, 14.700 Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 ....................... 3.230 Hughes and Vale Pty Ltd v New South Wales [No 2] (1955) 93 CLR 127 ..................................... 8.40 Hume v Higgins (1949) 78 CLR 116 ......................................................................................... 6.210 Hume v Palmer (1926) 38 CLR 441 .................................................................... 4.140, 4.400, 4.430 Hunkin v Siebert (1934) 51 CLR 538 ........................................................................................ 3.120 Hunter v Chief Constable [1982] AC 529 ................................................................................ 13.470 Hwang v Commonwealth (2005) 80 ALJR 125; 222 ALR 83 .................................................... 11.230
I ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 ....... 3.370, 7.400, 10.110, 10.120, 10.130, 10.230, 10.240 INS v Chadha 462 US 919 (1983) .......................................................................................... 13.320 Ibralebbe v The Queen [1964] AC 900 ....................................................................................... 2.50 Ilich v The Queen (1987) 162 CLR 110 ................................................................................... 10.140 Immigration, Minister for v Al Khafagi (2004) 219 CLR 664 .................................................... 13.200 Immigration and Ethnic Affairs, Minister for v Teoh (1995) 183 CLR 273 ......................... 3.120, 6.60 Incorporation Case see New South Wales v Commonwealth .............................................................. Independent Commission Against Corruption v Cunneen (2010) 239 CLR 531 ...................... 13.450 Independent Commission Against Corruption v Cunneen (2015) 89 ALJR 475 ........................ 13.450 Industrial Relations Act Case (Victoria v Commonwealth) (1996) 187 CLR 416 .... 5.460, 6.60, 6.120, 6.160, 11.250, 12.130, 14.780 Initiative And Referendum Act, In re [1919] 1 AC 935 .................................................... 2.380, 3.440 xx
Table of Cases
Insurance Commissioner v Associated Dominions Assurance Society Pty Ltd (1953) 89 CLR 78 ........................................................................................................................................ 5.550 International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 ................................................................................................ 2.610, 2.640, 13.440, 13.450 Italy v Commission of the European Economic Community (13/63) [1963] CMLR 289 ........... 10.440
J J W Hampton & Co v United States 276 US 394 (1928) ............................................................ 7.150 JT International SA v Commonwealth (2012) 86 ALJR 1297; [2012] HCA 43 ............. 10.120, 10.130 Jacobsen v Rogers (1995) 182 CLR 572 ....................................................................... 12.60, 12.380 James v Commonwealth (1936) 55 CLR 1; [1936] AC 578 ........... 7.190, 7.240, 8.30, 8.100, 10.410, 10.440 James v Cowan [1932] AC 542; (1932) 47 CLR 386 .............................................. 7.360, 8.40, 8.100 James v South Australia (1927) 40 CLR 1 .................................................................................. 8.100 Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44; [2005] HCA 50 ............................ 3.150 Jehovah’s Witnesses Case see Adelaide COmpany of Jehovah’s Witnesses Inc v Commonwealth ............................................................................................................................ Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 .................. 4.380, 4.390 Jenkins v Commonwealth (1947) 74 CLR 400 ..................................... 1.410, 6.210, 10.140, 10.170 John v Commissioner of Taxation ((1989) 166 CLR 417 .......................................................... 10.440 John Fairfax & Sons Ltd v New South Wales (1927) 39 CLR 139 ................................................. 9.50 John Holland Pty Ltd v Victorian Workcover Authority [(2009) 239 CLR 518; [2009] HCA 45 .... 3.150, 4.430 Johnson v Commissioner of Stamp Duties ([1956] AC 331 ....................................................... 2.460 Johnson v Kent (1975) 132 CLR 164; [1975] HCA 4 ...................................................... 3.30, 12.380 Johnstone v Commonwealth (1979) 143 CLR 398 .................................................................... 3.100 Jolley v Mainka (1933) 49 CLR 242 ......................................................................................... 13.290 Jones v Commonwealth (1987) 61 ALJR 348 .......................................................................... 13.310 Jones v Commonwealth [No 2] (1965) 112 CLR 206 ................................................. 10.170, 11.210 Joske, Re; Ex parte Shop Distributive and Allied Employers Association (1976) 135 CLR 194 .... 13.370 Joyce v Director of Public Prosecutions [1946] AC 347 .............................................................. 6.250 Judd v McKeon (1926) 38 CLR 380 ........................................................................... 10.350, 11.280 Judiciary and Navigation Acts, In re (1921) 29 CLR 257 ...... 2.670, 13.220, 13.230, 13.240, 13.250, 13.290, 13.300 Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 .......... 5.460, 5.520, 6.90, 6.190, 8.120, 11.60, 11.210, 14.740
K K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 .............................. 2.600, 2.640 K L Tractors Ltd, In re (1961) 106 CLR 318; [1961] HCA 8 .......................................................... 3.30 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 ........ 2.510, 2.640, 5.460, 2.560, 2.590, 2.710, 11.320, 12.380, 13.290, 13.450, 13.540, 13.560 Kakariki Case see Victoria v Commonwealth ....................................................................................... Kartinyeri v Commonwealth (1998) 195 CLR 337 ............................................ 5.460, 6.220, 10.230 Kathleen Investments (Aust) Ltd v Australian Atomic Energy Commission (1977) 139 CLR 117 ...................................................................................................................................... 5.550 Katsuno v The Queen (1999) 199 CLR 40 ............................................................................... 10.290 Katzenbach v McClung 379 US 294 (1964) .............................................................................. 5.310 Kean v Kerby (1920) 27 CLR 449 ............................................................................................ 11.250 Kendle v Melsom (1998) 193 CLR 46 ..................................................................................... 10.360 Keystone Bituminous Coal Association v DeBenedictis 480 US 470 ......................................... 10.120 Kidman v Commonwealth (1925) 37 CLR 233; [1925] HCA 55 ................................................ 3.370 Kidman (1915) 20 CLR 425 .................................................................................................... 13.150 Kimball Laundry Co v United States 338 US 1 ......................................................................... 10.120 King v Jones (1972) 128 CLR 221 ................................................................................ 10.20, 11.210 Kingswell v The Queen (1985) 159 CLR 264 ............................................... 10.260, 10.270, 10.280 Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 ........ 2.630, 13.450 xxi
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Kirkpatrick v Preisler [1969] USSC 112; 394 US 526 (22 Law Ed 2d 519) (1969) ..................... 14.560 Kirmani v Captain Cook Cruises Pty Ltd (No 1) (1985) 159 CLR 351 .......................................... 6.10 Knight v Knight (1971) 122 CLR 114 ............................................................ 13.100, 13.110, 13.450 Knowlton v Moore 178 US 41 (1900); 44 Law Ed 969 .............................................................. 7.190 Koon Wing Lau v Calwell (1949) 80 CLR 533 ................................................. 6.210, 13.170, 13.190 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 ........... 5.410, 6.10, 6.60, 6.80, 6.90, 6.100, 6.110, 6.130, 6.135, 9.140, 11.320, 12.210, 12.220, 12.380 Korematsu v United States (1944) 323 US 214 ....................................................................... 13.190 Korponey v Attorney-General (Canada) (1982) 132 DLR (3d) 354 .......................................... 10.280 Kotsis v Kotsis (1970) 122 CLR 69 ................................................................. 13.100, 13.110, 13.450 Kruger v Commonwealth (1997) 190 CLR 1; 71 ALJR 991 ........ 2.560, 4.10, 10.300, 10.360, 11.110, 11.310, 11.320, 13.180, 13.190, 13.530, 13.540 Krygger v Williams (1912) 15 CLR 366 ................................................................................... 10.350 Ku-ring-gai Co-operative Building Society (No 12) Ltd, Re (1978) 36 FLR 134; 22 ALR 621 ...... 5.500 Kuczborski v Queensland (2014) 254 CLR 51 ............................................................... 2.710, 2.720
L La Compagnie Hydraulique v Continental Heat and Light Co (1909) AC 194 ......................... 12.120 Labour Relations Board of Saskatchewan v John East Iron Works Ltd [1949] AC 134 .................. 13.60 Laker Airways Ltd v Department of Trade [1977] 1 QB 643 ....................................................... 3.120 Lamb v Cockatoo Docks & Engineering Co Pty Ltd [1961] SR (NSW) 459 ................................ 4.450 Lamshed v Lake (1958) 99 CLR 132 ....................................................... 4.10, 10.250, 10.320, 11.30 Landmark Communications Inc v Virginia 435 US 829 ............................................................ 14.740 Lane v Morrison (2009) 239 CLR 230 ..................................................................................... 13.210 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 ........ 1.160, 1.170, 1.210, 1.230, 3.170, 3.370, 3.230, 5.460, 8.120, 9.70, 9.80, 11.60, 11.130, 11.150, 11.180, 11.230, 11.300, 12.380, 14.240, 14.280 Langer v Commonwealth (1996) 186 CLR 302 ................................. 11.60, 11.250, 11.280, 11.300 Lansell v Lansell (1964) 110 CLR 353 ...................................................................................... 11.210 Launceston Corporation v Hydro-Electric Commission (1959) 100 CLR 654 ............................. 5.520 Lawrence v Fen Tigers Ltd (No 3) [2015] 1 WLR 3485 ............................................................ 11.180 Lawrence v Texas (2003) 539 US 558 ..................................................................................... 13.190 Le Mesurier v Connor (1929) 42 CLR 481 ........................ 2.510, 2.530, 2.560, 2.640, 7.310, 13.110 Leask v Commonwealth (1996) 187 CLR 579; [1996] HCA 29 .......... 5.420, 10.230, 11.250, 14.680, 14.750, 14.770, 14.780 Lee, Re (1986) 160 CLR 430 ...................................................................................... 12.220, 12.380 Leeth v Commonwealth (1992) 174 CLR 455 ........... 2.610, 7.220, 11.310, 11.320, 11.330, 12.380, 13.270, 13.530, 13.540, 14.60 Lemon v Kurtzman 403 US 602 (1971) .................................................................................. 10.330 Lendrum v Campbell (1932) 32 SR (NSW) 499 ...................................................................... 11.130 Leong v Chye [1955] AC 648 ................................................................................................. 14.530 Leong Kum, Ex parte (1888) 9 NSWR 251 ................................................................................ 3.120 Levy v Victoria (1997) 189 CLR 579 .... 11.50, 11.80, 11.90, 11.110, 11.130, 11.140, 11.180, 11.300 Lewis v City of New Orleans (1974) 415 US 130 .................................................................... 11.130 Li Chia Hsing v Rankin (1978) 141 CLR 182 ............................................................................ 10.260 Lim (1992) 176 CLR 1 .......................................................... 3.150, 13.190, 13.200, 13.490, 13.520 Ling v Commonwealth (1994) 51 FCR 88 ................................................................................ 3.120 Lingle v Chevron USA Inc 544 US 528 .................................................................................... 10.120 Lipohar v The Queen (1999) 200 CLR 485 .................................................................... 2.490, 3.150 Little v Commonwealth (1947) 75 CLR 94 ........................................... 1.410, 6.210, 13.170, 13.190 Liverpool Insurance Co (1870) 77 US 566 ................................................................................ 5.520 Liversidge v Anderson [1942] AC 206 ....................................................................................... 6.210 Liyanage v The Queen [1967] 1 AC 259 .............. 13.140, 13.400, 13.410, 13.430, 13.470, 13.490, 13.520 Lloyd v Wallach (1915) 20 CLR 299; (1915) VLR 476 ..................................................... 1.410, 6.210 Lo Pak, Ex parte (1888) 9 NSWR 221 ........................................................................................ 3.150 Lockwood v Commonwealth (1954) 90 CLR 177 ..................................................................... 3.370 Loewenthal’s Case (1974) 131 CLR 338 ................................................................................... 4.290 Logan Downs Pty Ltd v Queensland (1977) 137 CLR 59 ................................ 7.30, 7.40, 9.90, 9.130 xxii
Table of Cases
Lopez v United States 514 US 549 (1995) ................................................................................ 5.300 Lorenzo v Carey (1921) 29 CLR 243 ....................................................................................... 13.110 Love v Attorney General (NSW) (1990) 169 CLR 307 ................................................................ 4.160 Lower Mainland Dairy Products Sales Adjustment Committee v Crystal Dairy Ltd [1933] AC 168 ........................................................................................................................................ 7.30 Luton v Lessels (2002) 210 CLR 333 ...................................................................... 7.75, 7.80, 7.160
M M v M (1988) 166 CLR 69 ........................................................................................................ 2.560 M G Kailis (1962) Pty Ltd v Western Australia (1974) 130 CLR 245 ............................................. 9.70 M’Culloch v Maryland 4 Wheat 316 ......................................................................................... 5.230 M’Kendrick v Sinclair (1972) SC (HL) 25 ................................................................................... 3.120 Mabo v Queensland (1988) 166 CLR 186 ........................................................................ 4.310, 6.60 Mabo v Queensland [No 2] (1992) 175 CLR 1 ................................................................. 2.20, 11.20 MacCormick v Federal Commissioner of Taxation (1984) 158 CLR 622 ..... 7.30, 7.150, 7.160, 7.170 Macks, Re; Ex parte Saint (2000) 204 CLR 158 ............................................. 13.300, 13.450, 13.510 Magill v Magill (2006) 226 CLR 551 ....................................................................................... 13.370 Magrath v Commonwealth (1944) 69 CLR 156 ...................................................................... 10.140 Maguire v Simpson (1977) 139 CLR 362 ................................................................................ 12.340 Mandla v Dowell Lee [1983] 2 AC 548 ................................................................................... 10.440 Mandla v Dowell Lee; Bhinder v Canadian National Railway Co [1985] 2 SCR 561 ................. 10.440 Mansell v Beck (1956) 95 CLR 550 ............................................................................................. 8.40 Marbury v Madison 1 Cr 137; 2 Law Ed 118 (1803) .................. 1.390, 2.260, 3.100, 6.210, 13.320 Marcus Clark & Co Ltd v Commonwealth (1952) 87 CLR 177 ........................... 6.135, 6.200, 6.230 Maritime Union of Australia, Re; Ex parte CSL Pacific Shipping Inc (2003) 214 CLR 397 ........... 5.250, 5.460 Massey-Ferguson Industries Ltd v Government of Saskatchewan [1981] 2 SCR 413; (1981) 127 DLR (3d) 513 ......................................................................................................... 7.60, 7.80 Matter of the President’s Commission on Organised Crime: Subpoena of Scarfo 783 F 2d 370 (1986) ........................................................................................................................ 13.320 Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263 ............. 7.20, 7.30, 7.50, 7.60, 7.80, 7.150, 8.100, 9.50, 9.60, 9.80, 9.90, 9.100, 9.110, 9.120 Maxwell v The Queen (1996) 184 CLR 501 ............................................................................ 13.470 McCauley v Federal Commissioner of Taxation (1944) 69 CLR 235 ............................................. 7.60 McCawley v The King [1920] AC 691; (1920) 28 CLR 106 ...................... 2.180, 2.190, 2.210, 2.260 McClintock v Commonwealth (1947) 75 CLR 1 ......................................................... 10.140, 10.170 McCloy v New South Wales (2015) 89 ALJR 857 ............................................ 11.70, 11.180, 11.270 McClure v Australian Electoral Commission (1999) 163 ALR 734; 73 ALJR 1086 ...................... 11.110 McCulloch v Maryland 4 Wheat 316; 4 Law Ed 579 (1819) ...... 1.120, 5.160, 6.190, 7.130, 12.110, 12.340, 14.730, 14.780 McCutcheon v Federal Election Commission 188 L Ed 2d 468 ................................................ 11.180 McGinty v Western Australia (1996) 186 CLR 140 ......... 2.140, 2.330, 3.190, 11.60, 11.180, 11.200, 11.210, 11.230, 11.280, 11.320, 12.380, 13.290, 14.80, 14.130 McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 ...................................................... 6.220 McGuiness v Attorney-General (Vic) (1940) 83 CLR 73 ............................................................. 3.120 McJannet, Re; Ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620 ............................................................................................................ 5.520 McLean, Ex parte (1930) 43 CLR 472 ............................................ 4.30, 4.140, 4.280, 4.290, 4.440 McLeod v St Aubyn [1899] AC 549 ......................................................................................... 14.740 McWaters v Day (1989) 168 CLR 289 ............................................................................ 4.280, 4.430 Melbourne Corporation v Commonwealth (State Banking Case) (1947) 74 CLR 31 ...... 3.340, 5.300, 5.390, 5.410, 5.430, 5.460, 6.90, 7.130, 7.230, 7.310, 11.30, 11.210, 11.300, 11.320, 12.130, 12.170, 12.180, 12.190, 12.200, 12.220, 12.240, 12.280, 12.330, 12.340, 12.380, 14.700, 14.400, 14.550 Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 ........................................................... 2.670 Mersey Docks and Harbour Board Trustees v Cameron (1864) 11 HLC 443 .............................. 6.210 Metal Trades Industry Association of Australia v Amalgamated Metal Workers’ and Shipwrights’ Union (1983) 152 CLR 632 ..................................................................... 4.30, 4.310 Mewett (1997) 191 CLR 471 .................................................................................................... 3.100 xxiii
Winterton’s Australian Federal Constitutional Law
Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617 ................................................... 13.370 Milat v The Queen (2004) 205 ALR 338 .................................................................................. 13.540 Milicevic v Campbell (1975) 132 CLR 307 ................................................................... 5.390, 13.470 Miller v French 530 US 327 (2000) ......................................................................................... 13.510 Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 .... 8.10, 8.40, 8.180, 11.30, 11.110, 11.210 Millner v Raith (1942) 66 CLR 1 .............................................................................................. 13.140 Milne v Huber (1843) 17 Fed Cas 403 .................................................................................... 14.660 Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Ame (2005) 222 CLR 439 ........................................................................................................................ 5.460 Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Lam (2003) 214 CLR 1 ............................................................................................................................ 5.520 Minister of State for the Army v Dalziel (1944) 68 CLR 261 ...................................................... 10.60 Mistretta v United States 488 US 361 (1989) ....................................... 1.300, 2.560, 13.320, 13.330 Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 ............................................................. 2.490 Moevao v Department of Labour [1980] 1 NZLR 464 ............................................................. 13.470 Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 ................ 2.670, 3.150, 4.410, 10.460 Monis v The Queen (2013) 249 CLR 92 .......................................... 11.150, 11.170, 11.180, 11.300 Moore v Commonwealth (1951) 82 CLR 547 ........................................ 7.60, 7.160, 10.140, 11.150 Moore v Smaw (1861) 17 Cal 199 ........................................................................................... 3.140 Morgan v Commonwealth (1947) 74 CLR 421 .............................................................. 5.160, 7.180 Morrison v Olson 487 US 654 (1988) .......................................................................... 1.300, 13.220 Moss v Donohoe (1915) 20 CLR 615 ...................................................................................... 13.140 Mugler v Kansas 123 US 623 .................................................................................................. 10.120 Muir v The Queen [2004] HCA 21 .......................................................................................... 13.540 Muldowney v South Australia (1996) 186 CLR 352 ......................................... 11.60, 11.290, 11.300 Mulholland v Australian Electoral Commission (2004) 220 CLR 181 ............ 11.110, 11.170, 11.180, 11.230, 11.270, 11.330 Muller v Dalgety & Co Ltd (1909) 9 CLR 693 ........................................................................... 5.390 Munday v Gill (1930) 44 CLR 38 ............................................................................................ 10.270 Municipal Council of Sydney v Commonwealth (1904) 1 CLR 208 ................................ 7.310, 10.30 Murphy v Electoral Commissioner (2016) 90 ALJR 1027 ........................................... 11.190, 11.270 Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 .......... 3.370, 5.70, 5.80, 7.140, 7.150 Musgrove v Toy [1891] AC 272 ................................................................................................ 3.120 Mutual Film Corporation v Industrial Commission of Ohio (1915) 236 US 230; [1915] USSC 53; 59 Law Ed 552 ............................................................................................................... 3.440 Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 .......... 10.120, 10.140, 10.150, 10.170, 10.250 Mutual Pools & Staff Pty Ltd v Federal Commissioner of Taxation (1992) 173 CLR 450 .............. 9.10, 10.140
N NSW v Commonwealth [2006] HCA 52; (2006) 229 CLR 1 ...................................................... 3.450 Namibia Case [1971] ICJR .......................................................................................................... 6.90 National Federation of Independent Business v Sebelius 132 S Ct 2566 (2012) ........................ 5.330 National Labor Relations Board v Jones & Laughlin Steel Corp 301 US 1 (1937) ....................... 5.250 National Security (Economic Organization) Regulations (Shrimpton v Commonwealth (1945) 69 CLR 613 ................................................................................................................ 5.80 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 .......... 5.100, 8.160, 8.170, 11.20, 11.40, 11.60, 11.150, 11.180, 11.21011.280, 11.300, 13.290, 14.730, 14.740, 14.750 Native Title Act Case see Western Australia v Commonwealth ............................................................ Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495 .............. 10.150, 13.430, 13.450, 13.510 New South Wales v Bardolph [1934] HCA 74; (1934) 52 CLR 455 ...................... 3.210, 3.370, 3.420 New South Wales v Commonwealth (1908) 7 CLR 179 ................................................. 3.290, 3.340 New South Wales v Commonwealth (Wheat Case) (1915) 20 CLR 54 ..... 5.460, 6.20, 13.20, 13.230, 13.250, 13.270 New South Wales v Commonwealth (Garnishee Case No 1) (1931) 46 CLR 155 ..................... 12.280 New South Wales v Commonwealth (1975) 135 CLR 337 .... 2.460, 2.480, 5.390, 6.90, 6.110, 11.30 New South Wales v Commonwealth (Incorporation Case) (1990) 169 CLR 482 ............ 5.430, 5.460, 5.490, 5.510, 5.540, 5.550, 11.210, 13.240 xxiv
Table of Cases
New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1; [2006] HCA 52 .... 3.370, 4.160, 5.460, 5.520, 6.250, 11.220, 12.100, 14.80, 14.830 New South Wales v Ibbett (2006) 229 CLR 638 ........................................................................ 3.100 New South Wales v Kable (2013) 252 CLR 118 ......................................................................... 2.520 New South Wales v The Commonwealth (Hospital Benefits Case) (1983) 151 CLR 302 ............ 4.380 New York v United States 326 US 572 (1946) ............................................................ 12.180, 12.190 New York Times v Sullivan 376 US 254 (1964) .......................................................................... 11.50 Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; [1997] HCA 38 ......... 4.1010.50, 10.100, 10.110, 10.120, 10.130, 10.240, 10.250 Ngoc Tri Chau v Director of Public Prosecutions (Cth) (1995) 132 ALR 430 ............................ 13.540 Nicholas v Commonwealth (2011) 244 CLR 66 ...................................................................... 13.210 Nicholas v The Queen (1998) 193 CLR 173 ....................... 13.460, 13.470, 13.490, 13.510, 13.540 Nicholas v Western Australia [1972] WAR 168 ........................................................................... 2.500 Nintendo Co Ltd v Centronic Systems Pty Ltd (1994) 181 CLR 134 ..... 5.460, 10.50, 10.160, 10.170 Nishimura Ekiu v United States [142 US 651 ............................................................................. 3.150 Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 ........ 3.50, 10.440, 14.660 Nolan, Re; Ex parte Young (1991) 172 CLR 460 ...................................................................... 13.170 Norman v Federal Commissioner of Taxation (1963) 109 CLR 9 ............................................. 10.140 North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 90 ALJR 38 ............. 2.570 North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 ........... 2.570, 2.640, 13.390, 13.530 North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW (1975) 134 CLR 559 ....... 8.40, 8.100, 8.120, 11.150 North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 ............. 13.240, 13.290 Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555 .... 1.170, 3.170, 7.10, 7.50, 7.60, 7.70, 7.80, 7.150, 7.160 Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24; [2008] HCA 29 .... 3.150 Northern Territory v GPAO (1999) 196 CLR 553 ....................................................................... 13.20 Norton v Spooner (1854) 9 Moo PC 103 ................................................................................. 6.210
O O Gilpin Ltd v Commissioner for Road Transport and Tramways (NSW) (1935) 52 CLR 189 ....... 8.40 O’Keefe v Calwell (1949) 77 CLR ............................................................................................ 13.170 O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 .................. 4.160, 4.200, 4.240, 5.160, 5.230 O’Sullivan v Noarlunga Meat Ltd (No 1) (1956) 95 CLR 177 ........................................... 4.30, 4.240 O’Sullivan v Noarlunga Meat Ltd (No 2) (1956) 94 CLR 367 ........................................ 5.240, 5.250 O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 .................................................. 6.150, 13.240 Oates v Attorney-General (Cth) (2001) 181 ALR 559 ................................................................ 3.120 Ong Ah Chuan v Public Prosecutor [1981] AC 648 ................................................................... 1.140 Ontario Human Rights Commission v Simpsons–Sears Ltd [1985] 2 SCR 536 ......................... 10.440 Ontario Public Service Employees’ Union and Attorney-General for Ontario, Re (88) (1987) 41 DLR (4th) 1 ................................................................................................................... 14.570 Orient Steam Navigation Co Ltd v Gleeson (1931) 44 CLR 254 .............................................. 13.470 Osborne v Commonwealth (1911) 12 CLR 321 ............................ 7.10, 7.120, 7.150, 7.290, 14.700
P PJ Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382 ............. 7.390, 10.140, 10.170, 10.210, 10.250 PMA (Victoria v Commonwealth) (1975) 134 CLR 81 ............................................................... 1.200 Pacific Coal Pty Ltd, Re; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346 ............................................................................................................. 5.450, 5.460 Pacific Film Laboratories Pty Ltd v Federal Commissioner of Taxation (1970) 121 CLR 154; [1970] HCA 36 .................................................................................................................. 10.120 Palazzolo v Rhode Island 533 US 606 ..................................................................................... 10.120 Palling v Corfield (1970) 123 CLR 52 ........................................................................... 2.640, 13.150 Palmdale (1977) 140 CLR 236 ....................................................................................... 4.290, 4.340 Pankhurst v Kiernan (1917) 24 CLR 120 ................................................................................... 6.210 xxv
Winterton’s Australian Federal Constitutional Law
Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 ........... 3.10, 3.30, 3.140, 3.150, 3.290, 3.310, 3.330, 3.340, 3.350, 3.370, 5.300, 7.160, 7.170, 7.400, 7.420 Parton v Milk Board (Vic) (1949) 80 CLR 229 .................. 7.60, 7.80, 7.160, 9.50, 9.60, 9.120, 9.130 Patrick v Cobain [1993] 1 VR 290 ........................................................................................... 11.150 Patterson, Re; Ex parte Taylor (2001) 207 CLR 391; [2001] HCA 51 ...................... 1.210, 3.10, 3.370 Peacock v Newtown Marrickville & General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25 ............................................................................................................... 2.510, 13.370 Peanut Case (1933) 48 CLR 266 ............................................................................................... 8.100 Pearce v Florenca (1976) 135 CLR 507 .............................................................. 2.460, 2.480, 12.10 Pennsylvania v Wheeling and Belmont Bridge Co 54 US 518 (1852) ...................................... 13.510 Pennsylvania v Wheeling and Belmont Bridge Co 59 US 421 (1856) ...................................... 13.510 Pennsylvania Coal Co v Mahon 260 US 393 (1922) ................................................... 10.110, 10.120 Permanent Trustee Australia Ltd v Commissioner of State Revenue (2004) 220 CLR 388 ............ 7.10, 7.180, 7.210, 7.220, 7.230 Perpetual Executors & Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1 ......................................................................................... 8.40, 10.140 Peterswald v Bartley (1904) 1 CLR 497 ............................................... 9.50, 9.60, 9.90, 9.120, 9.130 Pfizer Corporation v Ministry of Health [1965] AC 512 ............................................................. 7.160 Pham v Secretary of State for the Home Department (Open Society Justice Initiative intervening) [2015] 1 WLR 1591 ........................................................................................ 11.180 Pharmaceutical Benefits Case see Attorney-General (Vic) v Commonwealth; Ex rel Dale v Commonwealth ............................................................................................................................ Philip Morris Ltd v Commissioner of Business Franchises (Vic) (1989) 167 CLR 399 ........... 9.50, 9.70, 9.120, 9.130, 9.140 Phillips v Eyre (1870) LR 6 QB 1 ................................................................................................ 3.440 Pickin v British Railways Board [1974] AC 765 ............................................................................. 2.50 Pictou, Municipality of v Geldert [1893] AC 524 ..................................................................... 14.530 Pidoto v Victoria (1943) 68 CLR 87 ................................................................... 5.430, 5.460, 13.320 Pilkington v Frank Hammond Pty Ltd (1974) 131 CLR 124 ......................................................... 8.40 Pinkstone v The Queen (2004 219 CLR 444 ............................................................................. 8.120 Pirrie v McFarlane (1925) 36 CLR 170 ....................................................................... 12.310, 12.380 Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1 ................................. 6.40, 6.50 Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 ................................... 3.230 Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 257 CLR 42 ................................................................................. 3.20, 3.30, 3.80, 3.155, 13.200 Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 ...................................................................................................................... 13.200 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 .................. 1.360, 3.450, 13.90, 13.190 Plaut v Spendthrift Farm Inc (1995) 514 US 211 ................................ 1.300, 13.470, 13.490, 13.510 Plenty v Dillon (1991) 171 CLR 635 ........................................................................................ 11.130 Pollard v The Queen (1992) 176 CLR 177 .............................................................................. 13.470 Pollentine v Bleijie (2014) 253 CLR 629 .................................................................................... 2.720 Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 ..... 2.560, 6.20, 11.330, 13.130, 13.140, 13.150, 13.210, 13.270, 13.320, 13.470, 13.510, 13.530, 13.540 Poole [No 2] v Wah Min Chan (1939) 61 CLR 218 .................................................................... 6.135 Port MacDonnell Professional Fishermen’s Assn Inc v South Australia (1989) 168 CLR 340 ....... 1.490, 2.330, 2.490 Port of Portland Pty Ltd v Victoria (2010) 242 CLR 348; [2010] HCA 44 .................................... 3.370 Porter v The King; Ex parte Yee (1926) 37 CLR 432 .................................................... 13.250, 13.290 Potter v Minahan (1908) 7 CLR 277 ....................................................................................... 13.190 Poulton v The Commonwealth (1953) 89 CLR 540; [1953] HCA 101 ..................................... 10.150 Powell v Apollo Candle Company (1885) 10 App Cas 282 .................................. 2.50, 3.440, 12.380 Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 ....................... 9.120, 13.40, 13.60, 13.370 President’s Commission on Organised Crime: Subpoena of Scaduto 763 F 2d (1985) ............ 13.320 Prince’s Case, The (1606) 8 Co Rep 1a ..................................................................................... 2.260 Printz v United States 521 US 898 (1997) ............................................................................... 12.270 Professional Engineers’ Association, Ex parte (1959) 107 CLR 208; [1959] HCA 47 ................... 3.370 Provincial Electoral Boundaries (Sask), Re [1991] 2 SCR 158 ................................................... 11.230 Public Service Association (SA) v Federated Clerks’ Union (1991) 173 CLR 132 ......................... 1.360 xxvi
Table of Cases
Public Service Association and Professional Officers’ Association Amalgamated (NSW), The v Director of Public Employment (2012) 250 CLR 343; 87 ALJR 162 ............................ 2.650, 2.690 Putland v The Queen (2004) 204 ALR 455 .............................................................................. 13.540 Pye v Renshaw (1951) 84 CLR 58 ........................................... 7.390, 7.400, 10.220, 10.230, 10.240
Q Quan Yick v Hinds (1905) 2 CLR 345 ...................................................................................... 14.530 Queen, The v Clarence (1888) 22 QBD 23 ............................................................................... 7.290 Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144 ............................. 13.250, 13.540 Queensland v Commonwealth (1977) 139 CLR 585 .................................... 11.210, 14.270, 14.290 Queensland v Commonwealth (Queensland Rainforest Case) (1989) 167 CLR 232 ................... 6.120 Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 ............... 11.30, 11.310, 12.190, 12.200, 12.210, 12.220, 12.240, 12.380 Queensland Nickel Pty Ltd v Commonwealth (2015) 318 ALR 182 .................... 7.180, 7.220, 7.240 Queensland Rail Case see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail ..................................... Quickenden v O’Connor (2001) 109 FCR 243 .......................................................................... 5.510
R R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 ................................................... 13.320 R v Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128 ............ 10.260, 10.280 R v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd (1977) 136 CLR 235 ...... 5.390, 5.430 R v Barger (1908) 6 CLR 41 ..... 7.50, 7.60, 7.100, 7.110, 7.130, 7.160, 7.180, 7.190, 7.240, 7.290, 12.80, 14.710 R v Bernasconi (1915) 19 CLR 629 ............................................................................... 10.260, 11.30 R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 ............................................ 3.150, 13.170 R v Boston (1923) 33 CLR 386 ............................................................................................... 10.360 R v Brislan; Ex parte Williams (1935) 54 CLR 262 ....................................................... 10.170, 11.210 R v Bull (1974) 131 CLR 203 .................................................................................................... 2.460 R v Burah (1878) 3 App Cas 889 ...................................... 2.50, 2.210, 2.380, 2.430, 12.120, 12.380 R v Burgess; Ex parte Henry (1936) 55 CLR 608 ......... 5.110, 5.120, 5.160, 5.360, 6.60, 6.70, 6.90, 6.110, 6.135, 6.140, 6.150, 6.160, 14.780 R v Caldwell (2009) 22 VR 93 ................................................................................................... 4.430 R v Coldham; Ex parte Australian Social Welfare Union (1993) 153 CLR 297 .............. 12.220, 12.380 R v Commonwealth Conciliation and Arbitration Commission; Ex parte Professional Engineers (1959) 107 CLR 208 ............................................................................ 14.610, 14.620 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 ...................................................................................................................................... 13.60 R v Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Section (Amalgamated Engineering Union Case) (1960) 103 CLR 368 ............................... 13.370 R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 ..... 4.110, 4.290, 4.310, 4.350, 4.430 R v Davenport (1874) 4 QSCR 99 ............................................................................................. 3.210 R v Davison (1954) 90 CLR 353 ................................. 11.270, 13.40, 13.60, 13.110, 13.170, 13.250 R v Drybones [1970] SCR 282; 9 DLR (3d) 473 ......................................................................... 2.260 R v Dublin Corporation (1878) 2 LR Ir 371 ............................................................................. 13.250 R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 ............................................................... 14.740 R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535; [1983] HCA 29 .... 3.240, 3.340, 3.370, 12.380, 13.290 R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 ....... 5.390, 5.490, 5.500, 11.210 R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 ..... 10.30, 10.260, 10.270, 13.320 R v Fletcher; Ex parte Kisch (1935) 52 CLR 248 ...................................................................... 14.740 R v Foreign Secretary; Ex parte Indian Association [1982] QB 892 ........................................... 14.660 R v Foster; Ex parte Rural Bank of New South Wales; Wagner v Gall; Collins v Hunter (1949) 79 CLR 43 ................................................................................................................. 6.135, 6.210 xxvii
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R v Frost (1839) 9 Car & P 129 ................................................................................................. 6.250 R v Gallagher; Ex parte Aberdare Collieries Pty Ltd (1963) 37 ALJR 40 ....................................... 13.40 R v Goreng Goreng (2008) 220 FLR 21 .................................................................................... 3.180 R v Governor of Durham Prison; Ex parte Hardial Singh [1984] 1 WLR 704 ............................. 13.190 R v Gray [1900] 2 QB 36 ........................................................................................................ 14.740 R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617 ...................................................... 13.60 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 .................................................... 13.450 R v Hughes (2000) 202 CLR 535; [2000] HCA 22 ........................... 3.240, 3.340, 3.370, 5.560, 6.50 R v Humby; Ex parte Rooney (1973) 129 CLR 231 ........................... 13.300, 13.450, 13.490, 13.510 R v Hush; Ex parte Devanny (1932) 48 CLR 487 ....................................................................... 6.210 R v Inhabitants of Haughton (1853) 1 El & Bl 501 .................................................................... 6.210 R v Joske; Ex parte Australian Building Construction Employees and Builders’ Labourers’ Federation (1974) 130 CLR 87 .............................................................................. 13.270, 13.540 R v Judges of the Australian Industrial Court; Ex parte CLM Holdings Pty Ltd (1977) 136 CLR 235 ...................................................................................................................................... 5.370 R v Kelly; Ex parte State of Victoria (1950) 81 CLR 64 ............................................................. 14.740 R v Kidman (1915) 20 CLR 425; [1915] HCA 58 ............ 3.150, 3.370, 4.350, 6.210, 13.130, 13.140 R v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ Case) (1956) 94 CLR 254; [1956] HCA 10 .............. 2.500, 3.370, 5.460, 7.230, 11.30, 13.20, 13.140, 13.220, 13.240, 13.250, 13.260, 13.290, 13.300, 13.320, 3.400, 13.540 R v L (1991) 174 CLR 379 ......................................................................................................... 4.110 R v LK (2010) 84 ALJR 395 ........................................................................................................ 4.430 R v Licensing Court of Brisbane; Ex Parte Daniell (1920) 28 CLR 23 ........................................... 4.60 R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 ........................................................... 4.430 R v Ludeke; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1985) 159 CLR 636; [1985] HCA 84 ................................................... 10.120, 10.140 R v Mack (1984) 44 CCC (3d) 513 ......................................................................................... 13.470 R v Members of Railways Appeals Board and Commissioner for Railways (NSW); Ex parte Davis (1957) 96 CLR 429 ..................................................................................................... 4.310 R v Minister for Agriculture, Fisheries and Food; Ex parte FEDESA [1990] 5 ECR I-4023 ........... 14.780 R v O’Halloran (2000) 182 ALR 431 .......................................................................................... 5.620 R v Oakes [1986] 1 SCR 103 ...................................................................................... 11.170, 11.180 R v Pearson; Ex parte Sipka (1983) 152 CLR 254 ................................... 10.20, 10.30, 10.40, 11.250 R v Poole; Ex parte Henry [No 2] (1939) 61 CLR 634 .................................................................. 6.90 R v Portus; Ex parte McNeil (1961) 105 CLR 537 ...................................................................... 5.390 R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 ................................................................................ 5.390, 5.460, 5.550 R v Quinn; Ex parte Consolidated Food Corporation (1977) 138 CLR 1 .................................... 2.510 R v Railways Appeals Board (NSW); Ex parte Davis (1957) 96 CLR 429 ..................................... 4.350 R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 .................... 1.170, 3.170, 13.170 R v Secretary of State for the Home Department; Ex parte Pierson [1998] AC 539 .................. 13.190 R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 ................ 13.190 R v Sharkey (1949) 79 CLR 121 ................................................................. 3.320, 6.20, 6.90, 11.210 R v Smithers; Ex parte Benson (1912) 16 CLR 99 ............................................................. 5.40, 11.60 R v Smithers; Ex parte McMillan (1982) 152 CLR 477 ............................................................... 5.290 R v Snow (1915) 20 CLR 315 .................................................................................................. 10.280 R v Snow (1917) 23 CLR 256 .................................................................................................. 13.140 R v Sutton (1816) 4 M & S 532;105 ER 931 ............................................................................. 6.210 R v Sutton (Wire Netting Case) (1908) 5 CLR 789 ................................................................... 12.110 R v Sweeney; Ex parte Northwest Exports Pty Ltd (1981) 147 CLR 259 ................................... 14.700 R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 ....................................... 10.110 R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 ............................... 6.135, 11.250 R v Trade Practices Tribunal; Ex parte St George County Council (1974) 130 CLR 533 ............. 5.390, 5.490, 5.500 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 .......... 2.510, 2.560, 13.60, 13.140, 13.320, 13.370 R v Turnbull (1958) Tas SR 80 ................................................................................................... 3.210 R v Vizzard; Ex parte Hill (1933) 50 CLR 30 ........................................................................................ R v White; Ex parte Byrnes (1963) 109 CLR 665 ..................................................................... 13.190 R v Winneke; Ex parte Gallagher (1982) 152 CLR 211 ............................................................... 4.490 xxviii
Table of Cases
R v Wright; Ex parte Klar (1971) 1 SASR 103 ........................................................................... 13.350 R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] AC 1312 ............................................................................................................................ 11.180 R (Hooper) v Secretary of State for Work and Pensions [2005] 1 WLR 1681 .............................. 3.400 R (Jackson) v Attorney General [2006] 1 AC 262 ....................................................................... 2.260 R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2015] AC 945 ....... 11.180 R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 ...................... 6.60 R (New London College Ltd) v Secretary of State for the Home Department [2013] 1 WLR 2358 .................................................................................................................................... 3.400 R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 ................................................................................................. 1.240, 6.60 RAV v City of St Paul, Minnesota (1992) 505 US 377 .............................................................. 11.130 RCA Corporation v John Fairfax & Sons Ltd [1981] 1 NSWLR 251 ............................................... 7.60 Radio Corporation Pty Ltd v Commonwealth (1938) 59 CLR 170 ............................................. 7.290 Rahim v Crawther and Kunst (1996) 17 WAR 559 ....................................................................... 4.10 Ranger Uranium Mines Pty Ltd, Re; Ex parte Federated Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656 .............................................................................................. 13.60 Rann v Olsen (2000) 76 SASR 450 .......................................................................................... 11.130 Ratilal Panachand Gandhi v State of Bombay AIR 1954 SC 388 ................................................... 7.80 Re Residential Tenancies Tribunal of NSW v Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410 .............................................................................................................. 3.90 Red Lion Broadcasting Co v FCC (1969) ................................................................................... 11.30 Redfern v Dunlop Rubber Australia Ltd (1964) 110 CLR 194 ................... 5.160, 5.280, 5.390, 5.610 Reference Re Remuneration of Provincial Court Judges (1997) 3 SCR 3 ..................................... 14.60 Reference re Electoral Boundaries Commission Act ([1991] 2 SCR 158; (1991) 81 DLR (4th) 16 ...................................................................................................................................... 11.210 Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82 .................................... 3.155, 14.420 Reg v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 ................................................... 8.40 Reg v Bull (1974) 131 CLR 203 ................................................................................................. 2.480 Reg v Humby; Ex parte Rooney (1973) 129 CLR 231 .............................................................. 13.430 Reid v Sinderberry (1944) 68 CLR 504 ...................................................................................... 6.210 Residential Tenancies Tribunal (NSW), Re; Ex parte Defence Housing Authority (Residential Tenancies Case) (1997) 190 CLR 410 ....... 3.30, 3.150, 3.230, 3.340, 3.370, 4.280, 4.430, 12.40, 12.60, 12.340, 12.370, 12.380, 12.400 Resources, Minister for v Dover Fisheries Pty Ltd (1993) 43 FCR 565 ...................................... 14.780 Retail, Wholesale & Department Store Union, Local 580 v Dolphin Delivery Ltd [1986] 2 SCR 573; (1986) 33 DLR (4th) ................................................................................ 11.30, 14.570 Richard Foreman & Sons Pty Ltd, Re; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 .................................................................................................................. 4.20, 12.310 Richardson v Forestry Commission (1988) 164 CLR 261 .... 6.120, 6.130, 6.140, 6.150, 6.160, 8.80, 10.440, 12.210, 14.780 Richardson, Re 160 NE 655 (1928) ......................................................................................... 13.320 Richardson (1988) 164 CLR 261 ............................................................................................... 6.150 Ridgeway v The Queen (1995) 184 CLR 19 ............................................................................ 13.470 Riel v The Queen (1885) 10 App Cas 675 ................................................................................... 2.50 Roach v Electoral Commissioner (2007) 233 CLR 162 .................................. 11.230, 11.250, 11.270 Roberts v Bass (2002) 212 CLR 1 ........................................................ 11.80, 11.110, 11.300, 13.540 Robertson v Seattle Audubon Society 503 US 429 (1992) .......................................... 13.490, 13.510 Robinson (TA) and Sons Pty Ltd v Haylor (1957) 97 CLR 177 .................................................... 4.240 Robtelmes v Brenan (1906) 4 CLR 395 ............................................................. 3.120, 3.150, 13.190 Robtelmes; Re Bolton; Ex parte Beane (1987) 162 CLR 514 ...................................................... 3.120 Roche v Kronheimer (1921) 29 CLR 329 ................................................................................... 3.440 Roche Products Pty Limited v National Drugs and Poisons Schedule Committee (2007) 163 FCR 451 ............................................................................................................................... 3.450 Rocla Pipes (1971) 124 CLR 468 ............................................................................................... 5.410 Rodway v The Queen (1990) 169 CLR 515 ............................................................................. 13.470 Rola Co (Australia) Pty Ltd v Commonwealth (1944) 69 CLR 185 .................................. 9.120, 13.40 Rooney (1973)129 CLR 231 ................................................................................................... 13.520 Roth v United States 354 US 476 ............................................................................................ 11.300 Rowe v Electoral Commissioner (2010) 243 CLR 1 ......................................... 10.40, 11.150, 11.250 xxix
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Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation (2011) 244 CLR 97 ............ 7.160 Ruddock v Vadarlis (2001) 110 FCR 491 .............................. 3.10, 3.110, 3.120, 3.150, 3.340, 3.370 Russell v Russell (1976) 134 CLR 495 ........................................................................................ 2.640 Russell v United States 471 US 858 (1985) ............................................................................... 5.310
S S v Bhulwana 1996 (1) SA 388 ............................................................................................... 11.170 S v Makwanyane 1995 (3) SA 391 .......................................................................................... 11.170 SGH Ltd v Commissioner of Taxation (2002) 210 CLR 51 .......................................... 12.390, 14.370 SOS (Mowbray) Pty Ltd v Mead (1972) 124 CLR 529 ............................................................... 5.290 SPSF Case (1993) 178 CLR 249 ................................................................................. 12.130, 12.220 SS Afghan: Ex parte Lo Pak (1888) 9 NSWLR 221 ..................................................................... 3.120 Salomon v Salomon & Co [1897] AC 22 ................................................................................... 5.460 Samuels v Readers’ Digest Association Pty Ltd ((1969) 120 CLR 1 .................................... 8.40, 8.120 Sauvé v Canada (Chief Electoral Officer) [2002] 3 SCR 519 ..................................................... 11.240 Savvas (1991) 55 A Crim R 241 ................................................................................................ 9.140 Scarborough v United States 431 US 563 ................................................................................. 5.300 Schmidt (1961) 105 CLR 361 ................................................................................................... 5.460 Seamen’s Union of Australia v Utah Development Co (1978) 144 CLR 120 .................. 9.130, 14.700 Seas and Submerged Lands Case see New South Wales v Commonwealth ......................................... Second Uniform Tax Case see Victoria v Commonwealth ................................................................... Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 .......................... 5.460 Shell Co of Australia Ltd v Federal Commissioner of Taxation [1931] AC 275 ............................ 13.20 Sherman v United States 356 US 369 (1958) .......................................................................... 13.470 Shrimpton v Commonwealth (1945) 69 CLR 613 .......................................................... 6.135, 6.210 Silbert v Director of Public Prosecutions (2004) 217 CLR 181 ................................................... 2.570 Silk Bros Pty Ltd v State Electricity Commission (Vic) (1943) 67 CLR 1 ......................... 2.510, 13.250 Simpsons-Sears [1985] 2 SCR ................................................................................................. 10.440 Singer v United States 380 US 24 ........................................................................................... 10.280 Singh v Commonwealth (2004) 222 CLR 322 ............................................................. 5.460, 11.230 Sloan v Pollard (1947) 75 CLR 445 ................................................................................ 1.410, 6.210 Smith v ANL Ltd (2000) 204 CLR 493 ........................................................... 10.110, 10.150, 10.190 Smith v Oldham (1912) 15 CLR 355 .......................................................................... 11.180, 11.280 Sonzinsky v United States 300 US 506 (1937) .......................................................................... 7.290 Sorby v Commonwealth (1983) 152 CLR 281 ........................................................................ 13.470 Sorrells v United States 287 US 435 (1932) ............................................................................ 13.470 Souliotopoulos v La Trobe University Liberal Club (2002) 120 FCR 584 ...................................... 6.50 South-Eastern Drainage Board (South Australia) v Saving Bank of South Australia (1939) 62 CLR 603 .................................................................................................................... 2.260, 2.400 South African Association of Personal Injury Lawyers v Heath 2001 (1) SA 883 ........................ 13.330 South Australia v Commonwealth (First Uniform Tax Case) (1942) 65 CLR 373 ............ 5.140, 6.210, 7.220, 7.290, 7.300, 7.310, 12.10, 12.130, 12.310 South Australia v Tanner (1989) 166 CLR 161 ................................................................ 8.80, 14.740 South Australia v Totani (2010) 242 CLR 1 ......................................................... 2.630, 2.640, 2.710 South Dakota v Dole 483 US 203 (1987) .................................................................................. 7.340 South Eastern Drainage Board (SA) v Savings Bank of Australia (1939) 62 CLR 603 .................. 2.360 South West Africa Cases (Second Phase) [1966] ICJR 6 ................................................... 6.90, 10.440 Southern Centre of Theosophy Inc v South Australia (1979) 145 CLR 246 .................................. 3.50 Southern Railway Co v United States 222 US 20; 56 Law Ed 72 (1911) ..................................... 5.120 Spencer v Commonwealth (2010) 241 CLR 118 .................................................................... 10.240 Sportodds Systems Pty Ltd v New South Wales (2003) 133 FCR 63 .......................................... 8.120 Sportsbet Pty Ltd v New South Wales (2012) 249 CLR 298; 286 ALR 404 ...................... 8.140, 8.150 Spratt v Hermes (1965) 114 CLR 226 ............................................................. 10.290, 11.30, 13.290 Springer v Government of the Phillipine Islands (1928) 277 US 189; 72 Law Ed 845 ................ 3.440 Stamp Duties (NSW), Commissioner of v Millar (1932) (48 CLR 618 ........................................ 2.460 Stamp Duties (NSW), Commissioner of v Owens [No 2] (1953) 88 CLR 168 .......................... 12.380 Stanton v Federal Commissioner of Taxation (1955) 92 CLR 630 ................................................ 7.60 State v Moore 69 NW 373 (1896) ............................................................................................ 3.300 xxx
Table of Cases
State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 .................................................... 3.50, 3.140, 4.10, 12.10, 12.30, 12.40, 12.60, 12.380 State Banking Case see Melbourne Corporation v Commonwealth .................................................... State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329 ...... 7.140, 11.30, 12.210 State Government Insurance Commission v Trigwell (1979) 142 CLR 617 ................... 2.670, 14.530 State Public Services Federation, Re; Ex parte Attorney General (WA) (1993) 178 CLR 249 ...... 12.210 State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282 .......... 5.430, 5.500 State Supreme Court Judges Superannuation Case see Austin v Commonwealth ............................... State for the Army, Minister of v Dalziel (1944) 68 CLR 261 ...................................................... 10.60 State of West Bengal v Anwar Ali ((1952) 39 AIR(SC) 75 .......................................................... 10.440 Steele v Defence Forces Retirement Benefits Board (1955) 92 CLR 177 ................................... 13.250 Stemp v Australian Glass Manufacturers Co Ltd (1917) 23 CLR 226 ........................................ 13.290 Stenhouse v Coleman (1944) 69 CLR 457 .................................. 1.410, 3.370, 6.200, 6.210, 14.680 Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 ....... 11.50, 11.210, 11.280, 11.300 Stewart v Ronalds [2009] NSWCA 277; (2009) 232 FLR 331 ..................................................... 3.420 Stock Motor Ploughs Ltd v Forsythe (1932) 48 CLR 128 ............................................... 4.400, 4.380 Stockdale v Hansard (1839) 9 Ad & E 1 [112 ER 1112] ............................................................. 3.190 Stolen Generations Case see Kruger v Commonwealth ...................................................................... Street v Queensland Bar Association (1989) 168 CLR 461 ............ 7.200, 8.80, 9.120, 10.10, 10.250, 10.390, 10.400, 10.420, 10.440, 11.210, 11.310, 13.20 Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 ......... 4.350, 5.350, 5.360, 5.390, 5.410, 5.430, 5.460, 5.550, 14.700 Sue v Hill (1999) 199 CLR 462 ................... 1.490, 3.40, 3.50, 3.340, 3.370, 8.120, 11.230, 14.540 Supreme Court of New Hampshire v Piper 470 US 274 (1985) ............................................... 10.440 Supreme Court of Virginia v Friedman 101 L Ed 2d 56 (1988) ................................................ 10.440 Sweedman v Transport Accident Commission (2006) 226 CLR 362 ........................................ 10.450 Swift Australian Co (Pty) Ltd v Boyd Parkinson (1962) 108 CLR 189 ................... 4.240, 5.250, 5.260 Switzman v Elbling (87) (1957) 7 DLR (2d) 337 ..................................................................... 14.570 Sydney Municipal Council v Commonwealth (1904) 1 CLR 208 ............................................... 7.290 Sykes v Cleary (1992) 176 CLR 77 .......................................................................................... 10.360
T T A Robinson & Sons Pty Ltd v Haylor (1957) 97 CLR 177 ............................................. 4.180, 4.380 TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533 ...................................................................................................................... 13.440 Tajjour v New South Wales (2014) 88 ALJR 860; 313 ALR 221 .................................... 11.180, 11.330 Tame v New South Wales (2002) 211 CLR 317 ....................................................................... 11.150 Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 ........................... 13.190 Tape Manufacturers (1993) 176 CLR 480 ............................................ 7.80, 10.110, 10.140, 10.170 Tasmania v Commonwealth and Victoria (1904) 1 CLR 329 ......................................... 11.210, 14.40 Tasmanian Breweries Case see R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd ............................................................................................................................... 13.370 Tasmanian Dam Case see Commonwealth v Tasmania (1983) 158 CLR 1 .......... 5.250, 5.430, 5.460, 5.470, 5.510, 6.10, 6.60, 6.135, 6.140, 6.150, 8.80, 10.80, 10.90, 10.110, 10.120, 10.140, 10.440, 11.320, 12.130, 12.190, 12.210, 12.220, 12.380, 14.740, 14.780 Taxation, Commissioner of v Clyne (1958) 100 CLR 246 .......................................................... 7.240 Taxation, Department of v WR Moran [1940] AC 838 ............................................................... 7.200 Taxation, Deputy Commissioner of v Moorebank Pty Ltd (1988) 165 CLR 55 ......................... 12.400 Taxation, Deputy Commissioner of v Moran (1940) AC 838; 63 CLR 338 ................................. 7.290 Taxation, Deputy Commissioner of v State Bank (NSW) [(1992) 174 CLR 219 ............................ 3.50 Taxation, Federal Commissioner of v Clyne (1958) 100 CLR 246 ................................. 7.160, 10.140 Taxation, Federal Commissioner of v Munro (1926) 38 CLR 153 ................................... 13.40, 13.50 Taxation, Federal Commissioner of v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278; [1940] HCA 13 ......................................................................... 3.30, 3.140, 12.200, 12.380 Taxation, Federal Commissioner of v Official Receiver (1956) 95 CLR 300 ............................... 10.180 Taxation, Federal Commissioner of v Sherritt Gordon Mines Ltd (1977) 137 CLR 612 ................. 7.60 Taxation (NSW), Commissioners of v Baxter (1907) 4 CLR 1087; [1907] HCA 76 ...................... 3.340 Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 ............................................................ 2.50 xxxi
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Telstra Corporation Ltd v The Commonwealth (2008) 234 CLR 210; [2008] HCA 7 .... 10.50, 10.120, 10.150, 10.190 Telstra Corporation Ltd v Worthing (1999) 197 CLR 61 ................................................. 4.380, 4.430 Teori Tau v Commonwealth (1969) 119 CLR 564 ................................................................... 10.240 Terminiello v Chicago (1949) 337 US 1 .................................................................................. 11.130 The Army, Minister for v Dalziel (1944) 68 CLR 261 ................................................................ 10.180 Theodore v Duncan [1919] AC 696 ............................................................................... 1.170, 3.170 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 .............. 5.460, 9.70, 11.40, 11.50, 11.60, 11.120, 10.160, 11.180, 11.210, 11.280, 11.300, 14.80, 14.410 Theophanous v The Commonwealth (2006) 225 CLR 101 ........................................ 10.150, 10.160 Thomas v Mowbray (2007) 233 CLR 307 ........ 2.640, 2.650, 6.160, 6.250, 8.120, 13.350, 13.370 Toogood v Spyring [1834] 149 All ER Rep 1044 ............................................................. 11.60, 11.70 Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 ............................... 5.430 Toomer v Witsell (334 US 385 (1948) ..................................................................................... 10.440 Toronto Corporation v Russell [1908] AC 493 ......................................................................... 10.280 Toy v Musgrove (1888) 14 VLR 349 .................................................................... 3.120, 3.150, 3.210 Tracey, Re; Ex parte Ryan (1989) 166 CLR 518 ..................... 4.490, 12.210, 12.270, 13.170, 13.530 Trade [1977] QB 643 ............................................................................................................... 3.150 Trade Practices Commission v Manfal (1990) 97 ALR 231 ....................................................... 12.340 Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397 ..... 7.160, 7.400, 10.80, 10.120, 10.140, 10.170 Traut v Rogers (1984) 70 FLR 17; 27 NTR 2 ............................................................................ 10.250 Trethowan v Peden (1930) 31 SR (NSW) 183 ........................................................................... 2.260 Trethowan’s Case (1931) 44 CLR 394 ....................................................................................... 2.400 Truth About Motorways (2000) 200 CLR 591 ........................................................................... 2.670 Tunnock v Victoria (1951) 84 CLR 42 ............................................................................. 7.390, 7.400 Twin City Bank v Nebeker (1897) 167 US 196 ............................................................................ 7.60 Tyler, Re; Ex parte Foley ((1994) 181 CLR 18 .......................................................................... 11.210
U US v Sioux Nation of Indians 448 US 371 ............................................................................... 13.520 Uebergang v Australian Wheat Board (1980) 145 CLR 266 ................................... 8.30, 8.40, 11.150 Uniform Tax Case see South Australia v Commonwealth .................................................................... Union Label Case see Attorney-General (NSW) v Brewery Employees Union of NSW .......................... Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 .............. 2.40, 2.50, 2.480, 6.20, 10.440, 12.10, 12.380, 14.60 Union Steamship Co of New Zealand Ltd v Commonwealth (1925) 36 CLR 130 ............ 2.90, 2.100 Unions NSW v New South Wales (2013) 252 CLR 530 ........................ 11.8011.180, 11.270, 11.300 United Building & Construction Trades v Mayor (465 US 208 (1984)) .................................... 10.440 United States v Butler 297 US 1 (1936) ........................................................................... 7.60, 7.340 United States v Constantine (1935) 296 US 287 [80 Law Ed 233] ............................................. 7.130 United States v Danks 221 F 3d 1037 ....................................................................................... 5.310 United States v Darby 312 US 100 ............................................................................................ 5.250 United States v Hill 248 US 420 .................................................................................................. 5.40 United States v Klein 80 US 128 (1871) .................................................................................. 13.510 United States v Lopez 514 US 549 (1995) ..................................................................... 5.310, 5.320 United States v Lovett 328 US 303 ......................................................................................... 13.130 United States v Morrison 529 US 598 (2000) ................................................................ 5.310, 5.320 United States v Munoz-Flores (1990) 495 US 384 ............................................................ 7.60, 7.130 United States v Sanchez (1950) 340 US 42 .................................................................... 7.130, 7.140 United States v Schooner Peggy 5 US 103 (1801) .................................................................. 13.510 United States v Singletary 268 F 3d 196 (1997) ........................................................................ 5.300 United States v Sullivan 332 US 689 (1948) .............................................................................. 5.300 United States v Wrightwood Dairy Co 315 US 110 (1942) ........................................................ 5.200 University of New South Wales v Moorhouse (1975) 133 CLR 1 .................................................. 7.60 University of Wollongong v Metwally (1984) 158 CLR 447 ............. 4.20, 4.30, 4.310, 4.330, 4.350, 4.430 Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 ........... 4.30, 12.170, 12.300, 12.320, 12.330, 12.340, 12.380, 12.400 xxxii
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V Vacher & Sons Ltd v London Society of Compositors (1913) AC 107 ...................................... 12.120 Vacuum Oil Co Pty Ltd v Queensland (1934) 51 CLR 108 ........................................................... 7.60 Vasiljkovic v Commonwealth (2006) 227 CLR 614 ....................................................... 3.340, 13.200 Veen v The Queen [No 2] (1988) 164 CLR 465 ....................................................................... 13.190 Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25; [1982] HCA 31 .................................................. 3.30, 3.370, 12.200, 12.220 Victoria v Commonwealth (Federal Aid Roads Case) (1926) 38 CLR 399 ............. 7.290, 7.310, 7.400 Victoria v Commonwealth (Kakariki Case) (1937) 58 CLR 618 ....... 4.80, 4.150, 4.270, 4.380, 4.430, 4.480 Victoria v Commonwealth (1957) 99 CLR 575 ............... 3.370, 5.160, 5.580, 7.310, 12.10, 12.200, 13.290, 14.740 Victoria v Commonwealth (Payroll Tax Case) (1971) 122 CLR 353 .............. 5.460, 6.90, 7.80, 11.30, 11.210, 12.130, 12.150, 12.190, 12.220, 12.340, 12.380, 14.430, 14.700 Victoria v Commonwealth (1975) 134 CLR 338 .................. 3.30, 3.120, 3.280, 3.310, 3.320, 3.370 Victoria v Commonwealth (PMA Case) (1975) 134 CLR 81 ................................... 2.340, 5.460, 7.10 Victoria v Commonwealth (Industrial Relations Case) (1996) 187 CLR 416 .......... 3.50, 5.440, 5.460, 6.20, 6.120, 6.150, 11.250, 12.40, 12.190, 12.240, 12.380, 14.780, 14.820 Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172; [2013] FCAFC 160 .............................................................................................................. 3.410, 3.420 Victorian Chamber of Manufactures v Commonwealth (Industrial Lighting Regulations) (1943) 67 CLR 413 ................................................................................................... 1.410, 13.40 Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 ....................... 1.170, 1.310, 3.170, 3.440, 6.200, 6.210, 11.30, 13.110, 13.250, 13.260 Virginia v Black (2003) 155 Law Ed 2d 535 ............................................................................. 11.130 Viscountess Rhondda’s Claim [1922] 2 AC 339 ........................................................................... 3.50 Viskauskas v Niland (1983) 153 CLR 280 ....................................................................... 4.260, 4.350
W W & A McArthur Ltd v Queensland (1920) 28 CLR 530 ..................................................... 5.20, 5.30 WEA International Inc v Hanimex Corporation Ltd (1987) 17 FCR 274 ........................................ 7.60 WR Moran Pty Ltd v Deputy Commissioner of Taxation [1940] AC 838; (1940) 63 CLR 338 .... 7.120, 7.130, 7.180, 7.240, 7.370 Wainohu v New South Wales (2011) 243 CLR 181 ....................................................... 2.660, 11.330 Wakim, Re; Ex parte McNally (1999) 198 CLR 511 ..... 1.300, 5.540, 12.10, 13.270, 13.290, 14.420 Walden v Administration of Norfolk Island (2007) 212 FLR 345 ............................................... 10.110 Walker v The Queen [1994] 2 AC 36 ......................................................................................... 3.120 Walsh, Ex parte [1942] ALR 359 ........................................................................ 1.410, 6.210, 13.190 Walsh, Ex parte; Re Yeats (1925) 37 CLR 36 ......................................... 3.150, 6.210, 13.170, 13.190 War Crimes Act Case see Polyukhovich v Commonwealth ....................................................... 13.170 Wards Cove Packing Co Inc v Atonio 57 LW 4583 (1989) ....................................................... 10.440 Waterhouse v Deputy Federal Commissioner of Land Tax (SA) (1914) 17 CLR 665 ................... 7.130 Waterhouse v Minister for the Arts and Territories (1993) 43 FCR 175 ..................................... 10.100 Waterside Workers Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 ......... 13.20, 13.40, 13.170, 13.250 Webb v Outtrim (1906) 4 CLR 356 ............................................................................ 12.110, 12.120 Wenn v Attorney-General (Vic) (1948) 77 CLR 84 .............. 4.280, 4.310, 4.320, 4.350, 4.380, 4.430 Wesberry v Sanders [1964] USSC 31; 376 US 1 (11 Law Ed 2d 481) (1964) ............... 11.200, 14.560 West v Commissioner of Taxation (NSW) (1937) 56 CLR 657 .............. 4.300, 11.30, 12.130, 12.170, 12.300, 12.320, 12.380, 12.390 West Lakes Ltd v South Australia (1980) 25 SASR 389 .............................................................. 2.400 Western Australia v Chamberlain Industries Pty Ltd (1970) 121 CLR 1 ..................... 9.70, 9.90, 9.110 Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373 ......... 4.310, 4.360, 4.380, 12.210, 12.270 Western Australia v Commonwealth (1975) 134 CLR 201 ............................................ 1.200, 14.290 Western Australia v Hamersley Iron Pty Ltd (No 1) (1969) 120 CLR 42 ...................................... 9.110 xxxiii
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Western Australian Airlines Case see Attorney-General (WA) v Australian National Airlines Commission .................................................................................................................................. Wheat Case see New South Wales v Commonwealth ......................................................................... White v Director of Military Prosecutions (2007) 231 CLR 570; [2007] HCA 29 ........... 3.340, 13.210 White v Director of Public Prosecutions (WA) (2011) 243 CLR 478 .......................................... 10.120 White v Weiser [1973] USSC 153; 412 US 783; 37 Law Ed 2d 335 .......................................... 14.560 Whitehouse v Queensland (1960) 104 CLR 609 ......................................................................... 9.90 Wickard v Filburn 317 US 111 (1942) ............................................................................ 5.310, 5.330 Wilcox Mofflin Ltd v New South Wales (1952) 85 CLR 488 ....................................................... 8.100 Wilkinson v Downton [1897] 2 QB 57 .................................................................................... 11.150 Willard v Rawson (1933) 48 CLR 316 ................................................................................................. Williams v Commonwealth (2012) 248 CLR 156 ......... 3.10, 3.30, 3.40, 3.145, 3.150, 3.180, 3.310, 3.350, 3.370, 3.400, 5.480, 7.420, 10.360, 10.380 Williams v Commonwealth (No 2) (2014) 252 CLR 416 ................ 3.30, 3.310, 3.400, 3.450, 5.480 Williams v Howarth [1905] AC 551 ......................................................................................... 12.120 Williams v Hursey (1959) 103 CLR 30 ....................................................................................... 5.520 Williamson v Ah On (1926) 39 CLR 95 ......................................................................... 5.390, 13.470 Wilson v McIntosh [1894] AC 129 .......................................................................................... 10.280 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 ....... 2.510, 5.460, 13.310, 13.320, 13.370, 13.470, 13.540 Wishart v Fraser (1941) 64 CLR 470 .......................................................................................... 6.210 Woolley, Re; Ex parte Applicants M276/2003 (2004) 225 CLR 1; 79 ALJR 43 ............. 13.180, 13.190, 13.200 Wooltops Case (1922) 31 CLR 421 ........................................................................................... 3.370 Work Choices Case see New South Wales v Commonwealth .............................................................. Works (WA), Minister for v Gulson (1944) 69 CLR 338 ........................................ 3.50, 12.30, 12.130 Worthing v Rowell & Muston Pty Ltd (1970) 123 CLR 89 .......................................... 12.380, 14.700 Wotton v Queensland (2012) 246 CLR 1 ................................................................................ 11.300 Wragg v New South Wales (1953) 88 CLR 353 ...................................... 5.140, 5.160, 5.290, 10.320 Wynbyne v Marshall (1997) 117 NTR 11 ................................................................................ 13.150
X XYZ v Commonwealth (2006) 227 CLR 532; [2006] HCA 25 .... 5.460, 6.10, 6.20, 6.30, 6.50, 6.160
Y Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53 .............................................................. 10.120
Z Zadvydas v Davis 533 US 678 ................................................................................................ 13.190 Zheng v Cai (2009) 239 CLR 446 ............................................................................................. 4.430
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11.230, 11.250, 11.270, 11.280, 11.300, 11.310, 14.200, 14.250, 14.560 s 25: 1.170, 1.540, 1.550, 5.460, 11.30, 11.210, 11.310, 11.320 s 27: 1.410 s 27D(1): 8.120 s 28: 1.170, 11.250 s 29: 10.30, 11.30, 11.210 s 29(4): 2.340 s 30: 1.170, 10.20, 10.30, 11.30, 11.210, 11.230, 11.250, 11.280, 11.320 s 31: 10.30, 11.30, 11.280, 7.290 s 34: 10.30 s 36: 11.170 s 39: 10.30 s 41: 5.460, 10.10, 10.20, 10.30, 10.40, 11.30, 11.210, 11.250 s 42: 10.30 s 42(a)(i): 10.230 s 43: 10.30 s 44: 1.490, 10.30, 10.80, 11.240 s 44(i): 1.490, 3.50, 11.230, 14.430, 14.540 s 44(ii): 11.130, 11.230 s 44(iv): 1.200, 10.360 s 45: 7.50, 10.30 s 46: 10.30, 11.210 s 47: 10.30, 11.210 s 48: 10.30, 11.210 s 49: 1.170, 3.170, 3.200, 11.60 s 50: 11.210 s 51: 1.140, 1.410, 2.330, 2.460, 3.120, 3.340, 3.370, 3.400, 3.440, 4.10, 4.280, 4.400, 5.160, 5.390, 5.430, 5.450, 5.460, 5.550, 6.20, 6.90, 6.110, 6.140, 7.110, 7.130, 7.360, 7.370, 7.400, 8.120, 10.50, 10.140, 10.150, 10.170, 10.200, 10.250, 10.340, 11.30, 11.130, 11.210, 11.310, 12.10, 12.80, 12.120, 12.180, 12.210, 12.380, 13.170, 13.190, 13.230, 13.250, 13.290, 14.70, 14.580, 14.670, 14.700, 14.710, 14.730, 14.750, 14.780 s 51(i): 1.140, 3.330, 3.440, 5.10, 5.20, 5.40, 5.50, 5.80, 5.100, 5.120, 5.140, 5.160, 5.170, 5.220, 5.230, 5.240, 5.250, 5.290, 5.300, 5.310, 5.330, 5.360, 5.370, 5.390, 5.460, 5.520, 7.180, 7.320, 8.30,8.40, 9.130, 12.90, 12.110 s 51(ii): 3.330, 3.340, 3.370, 5.10, 7.10, 7.50, 7.60, 7.100, 7.110, 7.120, 7.130, 7.150, 7.160, 7.170, 7.180, 7.190, 7.200, 7.210, 7.220, 7.230, 7.250, 7.270, 7.290, 7.310, 7.320, 7.350,
Commonwealth of Australia Constitution Act 1900: 2.170, 2.210, 2.640, 2.690, 3.440, 8.120, 11.30, 11.230, 12.150, 13.250, 14.430, 14.540 s 1: 1.170, 1.490, 3.10, 3.100, 3.440, 7.60, 7.70, 11.30, 13.10, 13.250, 13.260 s 1(1): 10.110 s 2: 2.380, 3.10, 3.30, 3.110, 10.30, 10.160 s 3: 10.30 s 3(1): 10.120 s 3(2): 10.120 s 4: 1.410, 2.640, 3.120, 10.30 s 4B: 10.110 s 4C: 10.110 s 5: 1.410, 3.150, 3.330 s 5(2): 1.410 s 6: 1.170, 3.80, 3.170, 11.60 s 6(1)(e): 10.250 s 6A: 4.350 s 7: 1.170, 1.410, 3.290, 3.300, 3.330, 10.30, 10.250, 10.440, 11.10, 11.30, 11.60, 11.80, 11.110, 11.130, 11.150, 11.180, 11.210, 11.230, 11.250, 11.270, 11.280, 11.300, 12.340, 14.200, 14.250, 14.560 s 7(2): 3.300 s 8: 1.170, 1.410, 3.290, 3.340, 10.30, 11.30, 11.210, 11.230, 11.250 s 8(2): 3.300 s 9: 1.410, 5.460, 11.30, 11.210 s 9(1): 1.410, 6.160 s 9(2): 1.410 s 10: 1.410, 10.30, 11.30, 11.210, 11.250 s 10(1): 1.410 s 10(1)(c): 13.320 s 11: 1.410 s 11(5): 1.410 s 11.5(7): 4.430 s 12: 1.410, 12.340 s 12(3): 10.270 s 13: 1.170, 1.410 s 14: 1.410 s 15: 5.460, 11.30, 12.340 s 15(1): 1.410 s 16: 6.120 s 18(1): 4.240 s 18(2)(b): 4.240 s 19(1)(c): 5.460 s 20: 10.30 s 24: 1.170, 10.30, 10.230, 11.10, 11.30, 11.60, 11.80, 11.110, 11.130, 11.150, 11.180, 11.200, 11.210, 11.220, xxxv
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Commonwealth of Australia Constitution Act 1900 — cont 7.360, 7.370, 9.70, 9.90, 9.100, 9.120, 9.130, 10.140, 10.440, 11.310, 11.320, 12.10, 12.80, 12.110, 12.150, 12.180, 12.250, 12.260 s 51(iii): 3.340, 5.10, 7.190, 7.200, 7.210, 7.360, 7.370, 9.70, 9.100, 9.130, 11.310, 11.320, 12.250 s 51(v): 1.410, 5.370, 5.390, 7.310, 11.210 s 51(vi): 1.410, 3.140, 5.70, 5.160, 5.460, 6.135, 6.140, 6.180, 6.210, 6.230, 6.250, 7.180, 7.290, 7.300, 10.250, 12.210, 12.380, 13.210, 14.720 s 51(vii): 5.520 s 51(ix): 12.110 s 51(xii): 3.140, 5.10 s 51(xiii): 5.10, 5.140, 5.460, 5.470, 5.520, 7.110, 7.290, 7.310, 12.10, 12.100, 12.180 s 51(xiv): 5.10, 5.460, 5.470, 7.290, 12.10, 12.80, 12.100 s 51(xv): 5.10, 12.110 s 51(xvi): 5.10 s 51(xvii): 5.470, 5.580, 10.170, 12.200, 12.380 s 51(xviii): 1.410, 5.10, 10.120, 10.170, 14.630, 14.680 s 51(xix): 3.120, 4.400, 5.390, 11.320, 11.330, 13.170, 13.200, 14.540 s 51(xx): 3.370, 3.400, 5.10, 5.150, 5.250, 5.340, 5.350, 5.360, 5.370, 5.375, 5.380, 5.390, 5.410, 5.420, 5.430, 5.440, 5.450, 5.460, 5.470, 5.480, 5.490, 5.500, 5.510, 5.520, 5.530, 5.540, 5.550, 5.560, 5.570, 5.580, 5.590, 5.600, 5.620, 6.110, 12.80, 12.90, 12.240, 14.70, 14.700, 14.830 s 51(xxi): 10.170 s 51(xxii): 7.80, 10.170 s 51(xxiii): 3.340 s 51(xxiiiA): 3.340, 3.370, 3.400 s 51(xxiv): 2.510 s 51(xxv): 5.390 s 51(xxvi): 1.540, 1.550, 4.310, 5.390, 5.410, 6.90, 6.110, 11.320, 11.330 s 51(xxvii): 3.120, 5.460, 12.110, 13.190 s 51(xxviii): 3.120 s 51(xxix): 1.140, 3.330, 4.310, 5.140, 5.460, 6.10, 6.20, 6.60, 6.80, 6.90, 6.110, 6.135, 6.140, 6.150, 6.170, 8.80, 10.250, 11.250, 12.130, 12.240 s 51(xxxi): 1.410, 5.460, 5.470, 6.110, 7.10, 7.160, 7.350, 7.390, 7.400, 7.410, 10.10, 10.50, 10.60, 10.80, 10.90, 10.110, 10.120, 10.130, 10.140, 10.150, 10.160, 10.170, 10.180, 10.190, 10.200, 10.210, 10.220, 10.230, 10.240, 10.250, 10.460, 12.10, 12.100 xxxvi
s 51(xxxii): 5.460 s 51(xxxiii): 5.460, 13.290 s 51(xxxiv): 5.460 s 51(xxxv): 1.140, 5.10, 5.160, 5.390, 5.460, 5.470, 12.120, 12.200, 12.210, 12.220, 12.240, 12.380, 13.240, 13.250, 14.740, 14.830 s 51(xxxvi): 3.30, 3.370, 7.400, 10.30, 10.230, 10.240, 11.230, 11.250, 11.280 s 51(xxxvii): 3.370, 3.400, 5.160, 5.520, 5.540, 5.560, 7.80, 7.290, 11.30, 13.290 s 51(xxxviii): 1.490, 2.150, 2.170, 2.330, 5.460, 13.290 s 51(xxxix): 1.410, 3.30, 3.310, 3.320, 3.330, 3.340, 3.350, 3.360, 3.370, 3.400, 5.100, 5.160, 5.370, 5.390, 6.210, 6.250, 7.80, 7.170, 7.290, 7.310, 7.400, 7.430, 13.230, 13.250, 13.290, 14.730, 14.740 s 51A: 1.560 s 52: 3.370, 3.440, 4.10, 5.390, 5.460, 10.340, 11.130, 12.80, 12.180, 14.670 s 52(i): 7.10, 7.180, 7.220, 7.230, 13.540 s 52(ii): 12.300, 12.380 s 53: 1.200, 2.210, 3.270, 3.280, 3.290, 3.300, 3.370, 3.420, 7.10, 7.20, 7.30, 7.60, 7.70, 7.80, 7.150, 7.160, 9.10 ss 53 to 55: 7.10, 7.60 ss 53 to 56: 3.400, 7.60 s 57: 1.200, 7.10 s 54: 3.270, 3.280, 3.290, 3.370, 7.10, 7.30, 7.50 s 54(2): 7.50 s 55: 1.410, 3.270, 3.280, 7.10, 7.30, 7.60, 7.70, 7.75, 7.80, 7.110, 7.150, 7.160, 7.290, 9.10, 9.30, 9.60, 9.120, 9.130, 10.140, 11.210, 12.380 s 56: 11.210 s 57: 3.280, 11.210 s 58: 11.210 s 59: 3.180, 11.210 s 61: 3.10, 3.30, 3.50, 3.100, 3.110, 3.120, 3.130, 3.140, 3.150, 3.180, 3.210, 3.300, 3.320, 3.330, 3.340, 3.370, 3.380, 3.400, 3.420, 3.440, 5.480, 6.60, 6.210, 6.250, 7.170, 7.400, 7.420, 7.430, 10.230, 11.30, 12.380, 13.10, 13.200, 13.230, 13.250, 13.260 s 62: 1.170, 1.200, 3.30, 3.170, 3.210, 5.390, 11.30, 11.60, 12.380 ss 62 to 65: 3.10 s 63: 1.200, 5.390 s 64: 1.170, 1.200, 1.210, 3.10, 3.30, 3.170, 3.300, 3.370, 11.10, 11.30, 11.60, 11.130, 11.180, 12.380, 12.400, 13.230, 13.320 s 65: 4.240, 10.30, 11.210 s 66: 10.30, 11.210
Table of Statutes
Commonwealth of Australia Constitution Act 1900 — cont s 67: 3.30, 10.30 s 69: 3.30, 9.130, 12.300 s 70: 3.100 s 71: 2.510, 2.590, 2.640, 3.10, 3.100, 3.440, 12.260, 13.10, 13.20, 13.40, 13.60, 13.100, 13.110, 13.140, 13.230, 13.250, 13.260, 13.290, 13.370, 13.470, 13.520, 13.540, 13.560 s 72: 2.530, 3.10, 13.20, 3.370, 13.40, 13.50, 13.60, 13.110, 13.250, 13.270, 13.320 s 73: 2.510, 2.520, 2.630, 2.660, 2.670, 3.30, 3.100, 10.30, 13.220, 13.250 s 73(1): 11.210 s 73(2): 11.210 s 74: 3.100, 14.560 s 75: 3.30, 3.100, 6.110, 13.220, 13.250, 13.290 s 75(iii): 3.30, 12.380 s 75(iv): 10.440, 12.380 s 75(v): 3.30, 3.150, 3.190, 10.360, 13.90 ss 75 to 77: 13.230 s 76: 2.600, 13.220, 13.230, 13.250, 13.290 s 76(2): 2.600 s 77: 2.510, 13.290 s 77(i): 13.110, 13.370 s 77(ii): 2.510, 13.250 s 77(iii): 2.510, 2.520, 2.540, 2.550, 2.580, 2.590, 2.640, 5.460, 12.10, 13.100, 13.110, 13.250, 13.290, 13.560 s 78: 2.510, 3.100, 12.10, 12.380 s 79: 2.510, 2.520, 3.100, 12.10, 13.110 s 80: 2.510, 4.430, 10.10, 10.30, 10.260, 10.270, 10.280, 10.290, 10.460, 11.210, 13.140, 13.150 s 81: 3.80, 3.270, 3.280, 3.300, 3.310, 3.320, 3.330, 3.370, 3.400, 7.60, 7.70, 7.80, 7.160, 7.400, 12.10, 12.380 ss 81 to 83: 3.400, 7.60, 7.70 s 82: 7.60, 7.80, 12.380 s 83: 1.170, 3.80, 3.170, 3.270, 3.280, 3.290, 3.300, 3.330, 3.340, 3.370, 3.400, 7.60, 7.70, 7.160, 7.400, 11.60, 12.10, 12.380 s 84: 3.400, 13.290 s 85: 3.400 s 86: 9.60, 9.90, 9.130, 11.310 ss 86 to 91: 3.400 s 87: 1.140, 7.270, 7.290, 7.310, 9.60, 9.90, 10.30 s 88: 7.190, 9.10, 9.70, 9.130, 11.320 s 89: 7.290 ss 89 to 91: 8.40 s 90: 1.140, 4.10, 7.60, 7.110, 7.120, 7.200, 7.270, 7.320, 7.360, 8.40, 8.120, 9.10, 9.20, 9.30, 9.50, 9.60, 9.70, 9.80, xxxvii
9.90, 9.100, 9.110, 9.120, 9.130, 9.140, 9.150, 11.130, 11.310, 12.10, 14.710 s 91: 3.140, 9.130, 9.150, 14.700 s 92: 1.410, 3.400, 5.20, 5.40, 5.160, 5.280, 5.290, 5.520, 5.530, 6.10, 6.90, 6.130, 7.10, 7.200, 7.290, 7.360, 8.10, 8.20, 8.30, 8.40, 8.50, 8.60, 8.80, 8.90, 8.100, 8.110, 8.120, 8.140, 8.150, 8.160, 8.170, 8.180, 9.70, 9.90, 9.120, 9.130, 10.10, 10.410, 10.430, 10.440, 11.110, 11.130, 11.180, 11.190, 11.300, 11.310, 11.320, 12.260, 14.70, 14.700 s 93: 7.290, 9.60, 9.90, 9.120, 9.130, 10.30 s 93(8AA): 11.230 ss 93 to 95: 8.40 ss 93 to 96: 3.400 s 94: 3.340, 3.370, 7.290 s 95: 9.120 s 96: 1.140, 3.320, 3.340, 3.360, 3.370, 3.400, 3.420, 7.220, 7.270, 7.290, 7.300, 7.310, 7.320, 7.330, 7.340, 7.350, 7.360, 7.370, 7.380, 7.390, 7.400, 7.420, 9.150, 10.30, 10.230, 10.240, 12.10 s 97: 10.30 s 98: 5.120, 12.10 s 99: 1.410, 3.340, 6.90, 7.10, 7.180, 7.190, 7.200, 7.210, 7.220, 7.230, 7.240, 7.250, 7.290, 7.350, 7.360, 8.40, 10.440, 11.310, 11.320 s 100: 5.410, 7.180, 10.440 s 101: 5.460, 13.20 s 102: 5.460, 8.40, 12.10, 12.260, 13.20 s 103: 5.460 s 103(ii): 13.20 s 105: 7.290, 13.290 s 105A: 7.290, 12.10, 12.280, 13.290 s 106: 2.130, 2.140, 2.280, 2.330, 2.640, 4.380, 7.290, 11.30, 11.130, 11.210, 11.300, 12.10, 12.210, 12.220, 12.380, 13.290 ss 106 to 107: 12.10 s 106 to 108: 3.140 s 107: 2.130, 2.140, 2.280, 2.330, 4.310, 4.380, 5.460, 6.90, 7.290, 9.10, 11.30, 11.130, 11.300, 12.90, 12.120, 12.180, 12.310, 12.380, 13.290, 14.710 s 108: 4.380, 5.460, 11.30, 12.180 s 109: 1.140, 2.90, 2.130, 2.140, 2.330, 2.460, 3.120, 3.340, 3.360, 3.370, 4.10, 4.20, 4.30, 4.40, 4.60, 4.80, 4.100, 4.110, 4.140, 4.160, 4.170, 4.200, 4.240, 4.310, 4.320, 4.330, 4.350, 4.360, 4.370, 4.380, 4.410, 4.430, 4.440, 4.450, 4.460, 5.460, 5.520, 6.60, 7.230, 8.30, 8.150, 9.10, 9.90, 9.130, 11.30, 12.10, 12.120,
Winterton’s Australian Federal Constitutional Law
Commonwealth of Australia Constitution Act 1900 — cont 12.180, 12.220, 12.300, 12.310, 12.330, 12.340, 12.380, 12.390, 12.400, 13.290, 14.700 s 111: 5.460, 10.250, 11.30, 13.290 s 114: 3.140, 3.340, 4.10, 6.90, 7.290, 10.440, 12.10, 12.260, 12.380 s 115: 3.140, 4.10, 10.440 s 116: 1.410, 3.360, 6.10, 6.90, 6.130, 7.330, 7.350, 7.390, 7.400, 10.10, 10.250, 10.300, 10.310, 10.320, 10.330, 10.340, 10.360, 10.370, 10.380, 10.440, 10.460, 11.310 s 117: 3.340, 6.90, 7.200, 7.290, 8.120, 10.10, 10.110, 10.250, 10.390, 10.400, 10.410, 10.420, 10.430, 10.440, 10.450, 11.310, 11.320, 12.260 s 117J: 10.110 s 117J(11): 10.110 s 118: 2.510 s 119: 10.440, 13.290 s 120: 9.60, 10.440, 13.290 s 121: 11.210 s 122: 3.100, 3.370, 4.10, 5.40, 5.160, 5.170, 5.360, 5.370, 5.390, 5.460, 7.80, 10.240, 10.250, 10.300, 11.30, 11.210, 11.320, 11.330, 13.250, 14.830 s 123: 5.460, 11.30 s 124: 11.30 s 124C: 11.210 s 125: 3.100 s 127: 11.320 s 128: 1.170, 1.210, 1.470, 2.170, 2.210, 2.330, 5.460, 10.30, 10.460, 11.10, 11.30, 11.60, 11.130, 11.180, 11.210, 11.300, 12.270, 14.580 s 129: 11.210 s 171: 5.460 s 189: 14.580 s 196: 14.580 s 198: 14.580 s 221: 7.310 s 299(1)(d)(ii): 14.740 Ch I: 2.560, 3.30, 3.120, 3.370, 3.440, 11.210, 13.10, 13.250, 14.160, 14.410 Ch I, Pt II: 11.210, 14.290 Ch I, Pt III: 11.210 Ch II: 2.560, 3.10, 3.20, 3.30, 3.120, 3.370, 3.440, 11.210, 13.10, 13.250, 14.160 Ch III: 1.410, 2.500, 2.510, 2.520, 2.530, 2.550, 2.560, 2.570, 2.590, 2.610, 2.640, 2.650, 2.670, 2.690, 2.700, 3.10, 3.30, 3.100, 3.120, 3.150, 3.370, 3.440, 5.460, 10.460, 11.180, 11.210, 11.310, 11.320, 11.330, 12.260, 13.10, 13.20, 13.30, 13.40, 13.80, 13.110, 13.120, 13.130, 13.140,
13.150, 13.170, 13.190, 13.200, 13.210, 13.220, 13.230, 13.240, 13.250, 13.260, 13.270, 13.280, 13.290, 13.300, 13.320, 13.330, 13.350, 13.370, 13.390, 13.440, 13.450, 13.460, 13.470, 13.490, 13.510, 13.530, 13.540, 13.560, 14.160, 14.430 Ch IV: 3.370, 3.400, 7.60, 8.40, 8.120, 9.120 Ch V: 3.100, 10.440, 11.210 Ch VI: 3.100 Ch VIA: 10.460 Ch IX: 11.210 Pt I: 14.160 Pt II: 14.160, 14.190 Pt III: 14.160, 14.190 Pt IV: 10.30, 14.160, 14.190 Pt V: 14.160
COMMONWEALTH Aboriginal and Torres Strait Islander Heritage Protection Act 1984 s 10: 13.320 s 10(1): 13.320 s 10(1)(c): 13.320 s 10(3): 13.320 s 10(4): 13.320 s 10(4)(c): 13.320 s 10(4)(d): 13.320 s 10(4)(f): 13.320 s 10(4)(g): 13.320 Acts Interpretation Act 1901 s 1: 14.830 s 6: 14.820 s 6(1): 14.830 s 8: 14.830 s 15A: 5.40, 5.50, 5.160, 5.430, 6.135, 12.240, 14.800, 14.810, 14.820, 14.830 s 15C: 13.370 Pt 7: 14.830 Pt 8: 14.830 Pt 9: 14.830 Pt 10: 14.830 Pt 12, Div 4: 14.830 Acts Interpretation Act 1904 s 4: 10.270 Agricultural Marketing Agreement Act 1937: 5.200 Air Force Act 1923: 12.300 Air Navigation Act 1920 s 4: 6.80 Air Navigation Regulations 1921: 5.140 reg 6: 5.120 reg 6(1)(f): 5.140
xxxviii
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Air Navigation Regulations 1921 — cont reg 19B: 5.160 reg 19H: 5.160 reg 198: 5.140, 5.150 reg 199: 5.140, 5.150 reg 199(4): 5.140 reg 200B: 5.140, 5.150, 5.160 Pt XIII: 5.140 Airline Pilots Agreement 1978: 4.180 Anti-Discrimination Act 1975: 4.350 Pt II: 4.350 Appropriation Act (No 1) 1974–1975: 3.320 Appropriation Act (No 1) 2005–2006 s 1: 3.290 Appropriation Act (No 3) 2006–2007: 3.370 Appropriation (HIH Assistance) Act 2001: 3.370 Australia Act 1986: 1.440, 1.470, 1.490, 1.500, 2.10, 2.110, 2.170, 2.180, 2.110, 2.150, 2.170, 2.180, 2.240, 2.250, 2.290, 2.320, 2.330, 2.340, 2.450, 2.470, 2.490, 2.640, 3.50, 3.340, 11.30, 14.540 s 1: 1.490, 3.50 ss 1 to 15: 2.160 s 2: 2.170, 2.470 s 2(1): 2.170, 2.450, 2.480, 2.490 s 2(2): 2.55, 2.170, 2.220, 2.240, 2.250, 2.310, 2.320, 2.450, 2.640 s 3: 2.170, 2.450 s 3(2): 2.170 s 4: 2.170 s 5: 2.170 s 5(a): 2.480 s 5(b): 2.240 s 6: 2.170, 2.180, 2.250, 2.290, 2.300, 2.310, 2.320, 2.330, 2.340, 2.350, 2.430 s 7: 2.170 s 8: 2.170 s 9: 2.170 s 9(1): 2.170 s 9(2): 2.170 s 15: 2.170, 2.240 s 15(3): 2.170 Pt 4A: 2.490 Australia Acts (Request) Act 1985: 2.640 Australian Bicentennial Authority Act 1980 s 22: 14.740 s 22(1)(a): 14.740 s 22(6)(d)(i): 14.740 s 22(6)(d)(ii): 14.740 s 299(1)(d)(ii): 14.740 Australian Capital Territory (Self-Government) Act 1988: 4.10
Australian Citizenship Act 1948: 14.660 Australian Citizenship Act 2007: 11.230 Australian Industries Preservation Act 1906: 5.460 s 4: 5.280 s 4(1): 5.280 s 5: 5.550 s 8: 5.550 Australian National Airlines Act 1945: 5.40, 5.160 s 4: 5.40 s 15A: 5.160 s 19: 5.40, 5.160 s 19(1): 5.40, 5.160 s 19(1)(a): 5.160 s 19(2): 5.40, 5.160 s 19(2)(a): 5.160 s 19(2)(b): 5.160 s 19(2)(c): 5.160 s 19(2)(d): 5.160 s 19B: 5.160, 5.170 s 19B(1): 5.160 s 19B(2): 5.160, 5.170 s 46: 5.40 s 46(1): 5.40 s 46(2): 5.40 s 47: 5.40 s 47(a): 5.40 s 47(b): 5.40 s 92: 5.40 s 122: 5.160 Pt XIII, Div: 5.140 Pt II, Div: 5.40 Pt IV: 5.40 Australian Securities Commission Act 1989 s 171: 13.60 s 172: 13.60 Banking Act 1945 s 48: 12.180, 12.200, 12.260 s 48(3): 12.180 Banking Act 1947: 12.190 s 92: 12.190 Bankruptcy Act 1966: 13.250 Beverage Container Act 1975 s 5B(2): 8.80 Bribery Amendment Act 1958: 2.340 Broadcasting Act 1942: 11.40, 11.110 s 95B: 11.30 s 95C: 11.30 s 95D: 11.30 s 168: 11.110 s 169: 11.110 s 214: 11.110 Pt IIID: 11.30, 11.40, 11.110 xxxix
Winterton’s Australian Federal Constitutional Law
Broadcasting Services Act 1992: 13.80 s 139(3): 13.80 s 140A(3): 13.80 s 141: 13.80 s 141(1): 13.80 s 143(1): 13.80 s 143(1)(b): 13.80 Sch 2, cl 8: 13.80
Commerce (Meat Export) Regulations: 4.200, 5.230, 5.250 s 4B: 5.230 s 5: 4.210, 5.230 reg 6(2): 4.200 Commerce (Trade Descriptions) Act 1905: 10.120 s 3: 10.120
Broadcasting and Television Act 1942: 4.220 s 15(1)(e): 4.220 s 42: 4.220 s 43(2): 4.220 s 43(6): 4.220 s 45: 4.220 s 46: 4.220 s 47: 4.220 s 48: 4.220 s 48A: 4.220 s 49: 4.220 s 50: 4.220 s 51: 4.220 s 52: 4.220 s 54: 4.220 s 55: 4.220 s 56: 4.220 s 57: 4.220 s 57(1): 4.220 s 57(3): 4.220 s 57(4): 4.220 s 58: 4.220 Pt III, Div 2: 4.220
Commonwealth Conciliation and Arbitration Act 1904–1928: 4.140, 12.120, 13.20 s 44: 4.140 Commonwealth Electoral Act 1902: 11.180
Child Support (Registration and Collection Act) 1988: 7.80 s 3: 7.80 s 10: 7.80 s 17: 7.80 s 30: 7.80 s 76: 7.80
Commonwealth Electoral Act 1918: 1.490, 3.50, 10.30, 10.40, 11.110, 11.210, 11.230 s 4(1A): 11.230 s 6: 11.250 s 7: 11.250 s 39(5): 10.30 s 45(a): 10.30 s 93: 11.300 s 93(8): 11.230 s 93(8AA): 11.230 s 106: 11.250 s 208(2)(c): 11.230 s 240: 11.280 s 268: 11.280 s 268(1): 11.280 s 268(1)(c): 11.280 s 268(3): 11.280 s 270: 11.280 s 270(2): 11.280 s 270(3): 11.280 s 274: 11.280 s 325: 11.280 s 325A: 11.280 s 326: 11.280 s 329: 11.280 s 329A: 11.280 s 330: 11.280 s 340: 11.280
Circuit Layouts Act 1989: 10.160
Commonwealth Electoral Act 1973: 11.210
Civil Aviation Act 1988: 7.50 s 66(1): 7.50 s 66(2)(a): 7.50 s 67: 7.50 s 69: 7.50 s 72: 7.50 s 73: 7.50
Commonwealth Electoral Legislation Amendment Act 1983: 11.270
Building Industry Act 1985: 13.430 Cancellation of Registration Act: 13.430
Commonwealth Electoral (Wartime) Act 1917 s 14: 4.60 Commonwealth Employees’ Rehabilitation and Compensation Act 1988 s 44: 10.80
Civil Aviation Regulations 1988 reg 100(1): 7.50
Commonwealth Franchise Act 1902: 10.30, 10.40
Claims against the Commonwealth Act 1902: 12.310
Commonwealth Grants Commission Act 1933 s 12: 7.400 s 13: 7.400
Clean Energy Act 2011: 7.240 Sch 1, Pt 3, Div 48: 7.240 xl
Table of Statutes
Copyright Amendment Act 1989: 7.60
Commonwealth Places (Mirror Taxes) Act 1998: 7.10, 7.220, 7.230 s 6(2): 7.220 s 23(4): 7.220
Corporations Act 1989: 5.540, 5.560 s 56(2): 12.400 s 82: 5.540 s 161(1): 5.560 s 162: 5.560
Commonwealth Salaries Act 1907: 12.400 Communist Party Dissolution Act 1950: 1.410, 1.420, 6.210, 13.150 s 4: 6.210 s 5: 6.210 s 5(1): 6.210 s 5(2): 6.210 s 6: 6.210 s 9: 6.210 s 10: 6.210 s 11: 6.210 s 12: 6.210 s 14: 6.210
Corporations Act 2001: 5.520, 5.550, 5.560, 13.70, 13.300 s 3: 5.560 s 4: 5.560 s 9: 5.550 s 67D: 13.70 s 112: 5.540 ss 114 to 125: 5.550 s 119: 5.540 s 123(2): 5.550 s 124(1): 3.370 s 153(1): 5.550 s 153(2): 5.550 s 153(3): 5.550 s 153(4): 5.550 s 153(5): 5.550 ss 153 to 155: 5.550 s 156: 5.550 s 158: 5.550 s 184(1): 13.450 s 657A(2): 13.70 Pt 2.2: 5.550 Div 1: 5.550
Compensation (Commonwealth Employees) Act 1971: 10.80 Competition and Consumer Act 2010: 5.370 Conciliation and Arbitration Act 1904: 1.410, 4.140, 4.170, 4.430, 5.520, 12.280, 13.250 s 28(3): 4.180 s 58: 5.460 s 65: 4.380 s 106: 12.280 s 140: 13.370
Corporations (Commonwealth Powers) Act 2001: 13.300
Conciliation and Arbitration (Electricity Industry) Act 1985: 12.200 s 6: 12.200 s 6(1): 12.200, 12.210 s 6(2): 12.200 s 7: 12.200 s 8: 12.200, 12.210 s 8(1): 12.200 s 9: 12.200, 12.210 s 9(1): 12.200 s 9(6): 12.200
Corporations Law s 731: 13.60 s 732: 13.60 s 733: 13.60 s 733(1): 13.60 s 733(3)(a): 13.60 s 733(3)(b): 13.60 s 733(5): 13.60 s 734: 13.60 s 734(1): 13.60
Controlled Substances Act 1970: 5.330
Crimes Act 1914 s 2: 13.140 s 3: 11.130, 13.140 s 4C(2): 4.430 s 4G: 4.430 s 5: 5.390 s 15G(1)(a): 13.470 s 15G(2): 13.470 s 15H: 13.470 s 15I: 13.470 s 15I(1): 13.470 s 15I(3): 13.470 s 15V(1): 13.470 s 15X: 13.470 s 23B: 11.130 s 24A: 3.320
Copyright Act 1968: 7.70 s 33: 10.120 s 34: 10.120 ss 93 to 96: 10.120 s 135ZZM(1): 7.60 s 135ZZP: 7.60 s 153E: 7.60 s 180: 10.120 s 181: 10.120 s 195AM: 10.120 s 195ANA: 10.120 s 233: 10.120 s 234: 10.120 Pt VC: 7.60 Copyright Act 1989: 7.70 xli
Winterton’s Australian Federal Constitutional Law
Crimes Act 1914 — cont s 24A(i)(c): 6.20 s 24B: 3.320 s 24D: 3.320 s 29A(1): 3.370 s 29B: 3.370 s 50BA: 6.20 s 50BC: 6.20 s 50GA: 4.290 s 86: 13.140 s 138: 13.470 s 233B: 13.470 Pt 1AA, Div 2 to 4: 11.130 Pt 1AB: 13.470 Pt 1AB, Div 2: 13.470 Pt 1AB, Div 3: 13.470 Pt 1C: 11.130
s 268.120: 4.430 s 270.12: 4.430 s 360.4: 4.430 s 400.16: 4.430 s 417.2: 11.150 s 417.12: 11.150, 11.160 s 471.12: 11.150 s 472.1: 4.430 s 475.1: 4.430 s 476.4: 4.430 Ch 2: 4.430 Ch 7: 4.430 Pt 5.3: 13.370 Pt 5.3, Div 104: 2.640 Div 104: 6.160, 6.250, 6.260, 13.350 Div 135: 3.370 Criminal Law (Special Provisions) Act, No 1 of 1962: 13.410 s 17: 13.410 s 21: 13.410, 13.420
Crimes Act 1926 s 16: 3.370 Crimes Amendment (Controlled Operations) Act 1996: 13.470
Crown Debts (Priority) Act 1981: 12.400
Crimes (Superannuation Benefits) Act 1989: 10.160
Customs Act 1901: 4.200, 5.290, 10.140, 10.280, 13.470 s 112: 5.80 s 233B: 13.470
Criminal Code: 2.640 s 3.1(1): 11.150 s 4.1(1)(a): 11.150 s 4.1(1)(c): 11.150 s 4.1(2): 11.150 s 5.4(4): 11.150 s 5.6(1): 11.150 s 5.6(2): 11.150 s 11: 4.430 s 11.5: 4.430 s 11.5(1): 4.430 s 11.5(2): 4.430 s 11.5(5): 4.430 s 60A: 2.710 s 60B: 2.710 s 60C: 2.710 s 70.6: 4.430 s 71.19: 4.430 s 72.5: 4.430 s 100.1: 6.250 s 101.1: 2.640 s 102.5: 2.640 s 104: 13.350 s 104.1: 13.350 s 104.4(2): 13.370 s 104.4: 2.640, 13.350, 13.370 s 104.4(1): 13.370 s 104.4(1)(c): 2.640 s 104.4(1)(c)(i): 13.370 s 104.4(1)(d): 2.640, 13.370 s 130.2(1)(a): 4.430 s 131.1: 4.430 s 131.1(1): 4.430 s 131.1(1)(b): 4.430 s 261.1: 4.430
Defence Force Discipline Act 1982 s 40(2): 4.430 s 136(b): 3.150 s 190(3): 12.210 s 190(5): 12.210 Defence Housing Authority Act 1987: 4.280, 12.380 Defence Preparations Act 1951: 6.230 s 4: 6.230 Defence Preparations (Capital Issues) Regulations 1951: 6.230 s 16: 6.230 s 17: 6.230 Designs Act 2003 s 46: 10.120 s 47: 10.120 Electoral Act 1918: 11.270 s 155: 11.250 Electoral and Referendum Amendment Act 1992 s 27: 11.280 Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006: 11.230, 11.250 Electricity Act 1976 s 67: 12.200 s 171: 12.200 xlii
Table of Statutes
Environmental Planning and Assessment Act 1979 s 26: 11.180 s 37: 11.180 ss 89D to 89E: 11.180 Pt 3, Div 4: 11.180 Equal Opportunity Act 1977: 4.240 Evidence Act 1995 s 138(1): 13.470 Excise Tariff Act 1902: 7.210 s 5: 7.210 Excise Tariff Act 1906: 7.110, 7.120 s 2: 7.110
Financial Framework Legislation Amendment Act (No 3) 2012: 3.390 Financial Management and Accountability Act 1997: 7.160 s 32B: 3.390, 3.400, 3.450, 5.480 s 44: 3.370 Financial Management and Accountability Amendment Act 1997: 3.390 Fisheries Management Act 1991 s 106: 10.160 s 106(1)(a): 10.160 Flour Tax Relief Act 1938: 7.360 Gun-Free School Zones Act 1990: 5.310
Extradition Act 1988 Pt II: 13.200
Health Insurance Act 1973: 10.180
Extradition (Foreign States) Act 1966: 3.120 s 21: 3.120
Health Insurance (Pathology Services) Amendment Act 1991: 10.180 s 20A: 10.180
Fair Work Act 2009: 5.520, 13.510 Fair Work (Registered Organisations) Act 2009: 13.510 s 6: 13.510 s 26A: 13.450, 13.510, 13.520 s 171A: 13.510 Family Law Act 1975 s 37A: 13.110 s 68B: 13.370 s 79: 13.110 s 114: 4.110, 13.350, 13.370 s 123: 13.110 Family Law (Child Abduction Convention) Regulations 1986: 6.50 Family Law Rules 2004 O 36A, r 2: 13.110 O 36A, r 2(1): 13.110 O 36A, r 7(4): 13.110 Federal Aid Roads Act 1926: 7.290, 7.310, 7.400 Federal Airports Corporation Regulations r 9(2): 4.290 reg 9(2): 4.320 Federal Court Rules 1979 O 11, r 23: 13.40 Federal Court of Australia Act 1976 s 31A: 10.240 s 31A(2): 10.240 s 53: 13.40 Federal Courts (State Jurisdiction) Act 1999: 13.300 s 6: 13.300 Federal Magistrates Act 1999: 13.120
Heritage Properties Conservation Act 1983 s 3(2): 6.135 s 6(2): 6.135 s 6(3): 6.135 s 9: 6.135 s 9(1): 6.135 s 9(2): 6.135 s 13(1): 6.135 s 21: 6.135 Human Rights (Parliamentary Scrutiny) Act 2011: 10.460 Immigration Restriction Act 1901: 3.150 Income Tax (Arrangements with the States) Act 1978: 7.320 Income Tax Assessment Act 1936: 4.440, 10.140 s 31: 7.290 s 72(1): 7.210 Income Tax Assessment Act 1942: 7.280, 7.290, 7.300, 7.310 s 31: 7.280 Income Tax Assessment Act 1997: 7.130 s 53: 7.30 Ch III: 13.350 Income Tax Regulations 1936 reg 177: 12.270 Income Tax (War-Time Arrangements) Act 1942: 7.280, 7.290, 7.300 Income Tax and Social Services Contribution Assessment Act 1936–1956: 7.310 s 221(1): 7.310 s 221(1)(a): 7.310, 7.320 Pt III, Div 9B: 7.130 xliii
Winterton’s Australian Federal Constitutional Law
Pt XII: 13.230
Independent Commission Against Corruption Act 1988 s 8(2): 13.450 s 13: 13.450 Sch 4, Pt 13: 13.450
Judiciary (Diplomatic Representation) Act 1942 s 3: 13.310 Juries Act 2000 s 46: 4.430
Industrial Relations Act 1988: 5.430, 5.460, 6.150, 12.210, 12.220, 12.240 s 4(1A): 5.430 s 6: 12.40, 12.240 s 7A(1): 12.240 s 111: 12.220, 12.230 s 127A: 5.430 s 127B: 5.430 s 127C: 5.430 s 152: 4.30 s 170AE: 12.240 s 170AH: 12.240 s 170DB: 12.240 s 170DC: 12.240 s 170DD: 12.240 s 170DE(1): 12.240 s 170DF: 12.240 s 170DG: 12.240 s 170FA: 12.240 s 299(1): 11.40 Pt VIA: 12.240
Jurisdiction of Courts (Cross-vesting) Act 1987 s 9(2): 12.400, 13.290 Law and Justice Legislation Amendment Act 1993: 13.40 Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987: 6.120 Life Insurance Act 1945: 4.270, 13.370 s 59: 13.370 s 78: 4.270 Maritime Powers Act 2013 s 3: 3.150 s 5: 3.150 s 72(4): 3.150 s 74: 3.150 Matrimonial Causes Act 1959: 13.370, 13.450 s 84: 13.370 s 86: 13.370 s 87: 13.370
Industrial Relations Amendment Act (No 2) 1994: 6.150
Matrimonial Causes Act 1971 s 5: 13.450
Industrial Relations Legislation Amendment Act (No 2) 1992: 12.220 s 5(b): 12.220
Migration Act 1958: 3.120, 3.150, 6.40, 7.10, 13.190, 13.200 s 4: 3.120 s 4B: 13.170 s 8: 3.120 s 12A: 3.120 s 31: 3.150 s 32: 3.150 s 34A: 7.10, 7.30 s 42: 3.150, 6.40 s 54L: 13.170 s 54N: 13.170 s 54P: 13.170, 13.180 s 54Q: 13.170 s 54R: 13.390, 13.470, 13.490 s 61: 3.120 s 81: 7.30 s 135ZZM: 7.60 s 189: 3.120, 13.190, 13.200 s 196: 13.190, 13.200 s 198: 3.120, 13.190 s 198AHA: 3.20, 6.40, 13.200 s 199: 3.120 ss 200 to 206: 3.120 s 229: 3.150 s 233A: 3.150 s 233C: 3.150 s 245B(2): 3.120 s 245C: 3.120
Industrial Relations Reform Act 1993: 6.150 Insurance Act 1973 s 100: 4.290 Judiciary Act 1903 s 3: 13.310 s 18: 13.40 s 23: 11.150 s 23(2)(b): 4.200 s 30: 13.230 s 30(a): 2.710 s 40(1): 10.280 s 56: 12.360 s 64: 12.340, 12.370, 12.380, 12.400 s 68: 13.540 s 79: 12.310, 12.340, 12.400, 13.450 s 79(1): 13.450 s 80: 12.340, 12.400 s 81: 13.350 s 88: 13.230 ss 88 to 94: 13.230 s 89: 13.230 s 90: 13.230 s 91: 13.230 s 92: 13.230 s 93: 13.230 xliv
Table of Statutes
Migration Act 1958 — cont s 245F: 3.120 s 249: 3.120 Pt 2, Div 6: 6.40 Pt 2, Div 7: 6.40 Pt 2, Div 8: 6.40 Pt 2A: 8.180 Pt 12A, Div 12A: 3.120 Div 4B: 13.170
Natural Resources Management (Financial Assistance) Act 1992: 10.240 Navigation Act 1912: 4.480, 13.230 s 329: 4.480, 4.490 Northern Australia Act 1926: 11.320 Northern Territory Acceptance Act 1910: 11.320 Northern Territory (Administration) Act 1910: 11.320
Migration Amendment Act 1987: 7.10 s 7: 7.30
Northern Territory (Self-Government) Act 1978: 4.10, 10.150 s 49: 8.150 s 50: 10.90
Minerals Resource Rent Tax Act 2012: 7.230 Minerals Resource Rent Tax (Imposition–Customs) Act 2012: 7.230
Parliamentary Contributory Superannuation Act 1948: 10.190
Minerals Resource Rent Tax (Imposition–Excise) Act 2012: 7.230
Patents Act 1990: 13.250 s 67: 10.120 s 68: 10.120
Minerals Resource Rent Tax (Imposition–General) Act 2012: 7.230
Patient Protection and Affordable Care Act 2010: 5.330
Motor Vehicle Standards Act 1989 s 5(1): 5.620 Narcotic Drugs Act 1967: 6.90
Pay-roll Tax Assessment Act 1941: 12.310 s 28(1): 12.310
National Airlines Act 1945 s 19B: 5.160
Petroleum (Australia–Indonesia Zone of Co-operation) Act 1990: 6.20, 10.190
National Parks and Wildlife Conservation Act 1975: 10.100 s 100(1A): 10.100
Petroleum (Submerged Lands) Act 1967: 10.190
National Security Act 1939: 1.280, 10.60, 13.370
Political Broadcasts and Political Disclosures Act 1991: 11.30, 11.110
National Security (Contracts Adjustment) Regulations: 13.370
Post and Telegraph Act 1901–1961: 12.330
Pharmaceutical Benefits Act 1944: 3.310
Poultry Industry Levy Collection Act 1965: 7.210 s 3: 7.220 s 6: 7.210, 7.220
National Security (General) Regulations 1939 reg 54: 10.60 reg 60H: 10.60, 10.70 s 26: 2.510
Racial Discrimination Act 1975: 1.540, 4.260, 4.310, 4.350, 6.90, 6.100, 13.40 s 6A: 4.350, 4.360 s 6A(1): 4.290 s 9: 6.90, 13.40 s 9(1): 6.90 ss 11 to 17: 13.40 s 12: 6.90 s 12(1): 6.90 s 15: 13.40 s 22: 13.40 s 24F: 13.40 s 25B: 13.40 s 25Z(1): 13.40 s 25Z(2): 13.40 s 25ZA(1): 13.40 s 25ZA(2): 13.40 s 25ZC: 13.40 s 25ZAA: 13.40
National Security (Subversive Associations) Regulations 1940 reg 3: 10.340 National Water Commission Act 2004: 7.400 s 42: 10.110 Nationality and Citizenship Act 1948: 14.660 Native Title Act 1993: 1.520, 1.540, 4.310 s 8: 4.290 s 11(1): 4.290, 4.310 s 11(2): 4.310 s 19: 4.310 s 23: 4.310 Natural Heritage Trust of Australia Act 1997: 10.240 xlv
Winterton’s Australian Federal Constitutional Law
Racial Discrimination Act 1975 — cont s 25ZAA(2): 13.40 s 25ZAA(3): 13.40 s 25ZAB: 13.40 s 25ZAB(1): 13.40 s 25ZAB(5): 13.40 s 25ZAC: 13.40 s 92: 6.90 s 113: 6.90 s 116: 6.90 s 128: 6.90 Pt II: 13.40 Pt III: 13.40
Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997: 12.260 s 5: 12.260 s 9: 12.260 Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Imposition Act 1997: 12.260 Superannuation Guarantee (Administration) Act 1992 s 3: 7.150 s 16: 7.160 s 71: 7.160 Pt 3: 7.160 Pt 8: 7.160
Radiocommunications Act 1983: 11.110 Radiocommunications (Transitional Provisions and Consequential Amendments) Act 1983 s 4: 11.110
Superannuation Guarantee Charge Act 1992 s 3: 7.160 s 5: 7.160 s 6: 7.160
Re-establishment and Employment Act 1945: 4.280 s 24(2): 4.290
Surplus Revenue Act 1910 s 3: 7.270
Remuneration Tribunal Act 1973: 10.190
Swimming Pools Tax Refund Act 1992: 10.140
Sales Tax Assessment Act (No 1) 1930–1953: 12.310, 12.330 s 30: 12.310
Tax Bonus for Working Australians Act (No 2) 2009: 3.330, 3.350, 5.300, 7.170 s 3: 3.370 s 5: 3.340 s 7: 3.340
Science and Research Act 1951: 3.320 Sea and Submerged Lands Act 1973: 2.460
Tax Reimbursement Act 1946–1948: 7.310 s 5: 7.310 s 11: 7.310
Seamen’s Compensation Act 1911: 2.480 Seas and Submerged Lands Act 1973: 2.460
Taxation Administration Act 1953: 3.330, 4.440 s 16(1): 3.370
Sex Discrimination and other Legislation Amendment Act 1992: 13.40 States Grants Act 1959: 7.290, 7.320
Taxation Debts (Abolition of Crown Priority) Act 1980: 12.400
States Grants (Income Tax Reimbursement) Act 1942: 7.280, 7.290, 7.300, 7.310, 7.320 s 4: 7.280
Telecommunications (Interception) Act 1979: 13.320 s 20: 13.310
States Grants (Petroleum Products) Act 1965 s 8A: 7.400
Tobacco Plain Packaging Act 2011: 10.120 s 18(1): 10.120 s 20(3): 10.120
States Grants (Petroleum Products) Amendment Act 1985: 7.400
Tobacco Plain Packaging Regulations 2011 reg 2.1.1(2): 10.120
States (Personal Income Tax Sharing) Act 1976: 7.320
Trade Marks Act 1995: 13.250 s 17: 10.120 s 20(1): 10.120 s 27: 10.120 ss 92 to 105: 10.120
Statute of Westminster Adoption Act 1942: 1.440 Superannuation Contributions Tax (Assessment and Collection) Act 1997: 12.260
Trade Practices Act 1965–1969: 5.350, 5.370, 13.370 s 6: 5.370 s 6(1): 5.370
Superannuation Contributions Tax Imposition Act 1997: 12.260 xlvi
Table of Statutes
Trade Practices Act 1965–1969 — cont s 7: 5.370 s 35: 5.350 s 36: 5.350 s 37: 5.350 s 49: 13.60 s 50: 13.60 s 52: 13.60 Trade Practices Act 1974: 3.100, 5.370, 5.460, 5.620, 8.40 s 2A: 12.40 s 2B: 3.100 s 4(1): 5.390, 5.500, 5.620 s 45(1): 5.390 s 45(5): 5.390 s 45D: 5.390, 5.430, 14.700 s 45D(1A): 5.390 s 45D(1): 5.390 s 45D(1)(a): 5.390 s 45D(1)(b): 5.390 s 45D(1)(b)(i): 5.390, 14.700 s 45D(5): 5.390 s 45D(6): 5.390 s 46: 3.100 s 47: 3.100 s 47(1): 5.500 s 75: 4.290, 4.330 s 75B: 5.610 s 82: 5.610 s 82(1): 5.610 Trade Practices Amendment Act 1977: 5.610 Training Guarantee Act 1990: 7.150 Training Guarantee (Administration) Act 1990: 7.80, 7.150, 7.290, 7.300 s 3: 7.150 s 3(1): 7.150 s 3(3): 7.150 s 5: 7.150 s 6: 7.150 s 14: 7.150 s 15: 7.150 s 18A: 7.150 s 18A(1): 7.150 s 18A(2): 7.150 s 18A(2)(a): 7.150 s 24(1): 7.150 s 31: 7.80 s 35: 7.80 s 76: 7.150 s 79: 7.80 s 221: 7.310 Pt 4: 7.80 Transport Workers Act 1928–1929: 7.190 s 3: 3.440, 3.450, 5.80 Transport Workers (Seamen) Regulations 1935: 7.190
Treaty of Peace (Germany) Act 1919 s 2: 3.440 Violence Against Women Act 1994: 5.310 War Crimes Act 1945: 13.140 s 6(1): 13.140 s 6(3): 13.140 s 9: 6.20, 13.140 s 9(1): 13.140 s 10: 13.140 War Crimes Amendment Act 1988: 6.20 War Precautions Act 1914: 6.190 War Precautions (Prices Adjustment) Regulations 1916: 6.190 War Service Land Settlement Agreements Act 1945: 10.210 Water Management Act 2000: 10.110 Waterside Employment Regulations 1931: 3.440 Wheat Industry Assistance Act 1938: 7.330, 7.360 s 14: 7.360, 7.370 Wheat Industry Stabilization Act (No 2) 1946: 13.430, 13.450 s 11: 13.450 Wireless Telegraphy Act 1905: 11.110 Workplace Relations Act 1996: 3.450, 4.380, 5.460, 13.450, 13.510 s 3: 5.460 s 4: 5.460 s 5: 5.460 s 5(1): 5.460 s 6: 5.460 s 6(1): 5.460 s 7A(1): 5.460 s 17(1): 4.380 s 18: 5.460 s 18A(1): 5.460 s 18A(2): 5.460 s 18B(1): 5.460 s 18B(2): 5.460 s 19: 5.460 s 19(1)(d): 5.460 s 30: 5.460 s 30(1)(c)(v): 5.460 s 101: 5.460 s 128: 5.470 s 152(1): 4.380 s 170LZ(1): 4.380 s 328: 5.460 s 329: 5.460 s 351: 5.460 s 356: 3.450 s 405: 5.460 s 420: 5.460 xlvii
Winterton’s Australian Federal Constitutional Law
Workplace Relations Act 1996 — cont s 448(7): 5.460 s 494(8): 5.460 s 495(7): 5.460 s 496(4): 5.460 s 497: 5.460 s 543: 5.460 s 846: 3.450 Pt 2, Div 1: 5.460 Pt 2, Div 2: 5.460 Pt 7: 5.460 Pt 8: 5.460 Pt 9: 5.460 Pt 10: 5.460 Pt 12: 5.460 Pt 12, Div 1: 5.460 Pt 12, Div 2: 5.460 Pt 23: 5.460 Pt VI: 5.460 Div 1: 5.460 Div 2: 5.460 Sch 1: 5.460 Sch 1, s 27: 5.460 Sch 1, Ch 2, Pt 2: 5.460 Sch 6: 5.460
Artesian Wells Act 1897: 10.110 Business Franchise Licences Act 1987: 9.120 s 36(2): 9.120 s 36(2AA): 9.120 s 41: 9.120 s 46: 9.120 s 47: 9.120
Workplace Relations Amendment (Work Choices) Act 2005: 3.450, 5.460 Workplace Relations and Other Legislation Amendment Act 1996: 4.30 World Heritage Properties Conservation Act 1983: 6.110, 6.120 s 2: 5.410 s 6: 6.110 s 7: 5.410 s 9: 5.410, 6.110, 6.160 s 10: 5.410 s 10(1): 5.410 s 10(2): 5.410, 5.470 s 10(2)(m): 5.410 s 10(3): 5.410, 5.470 s 10(4): 5.410, 5.420, 5.470 s 11: 5.410 s 45D(3): 5.410 World Heritage Properties Conservation Regulations 1983 s 4(2): 5.410
AUSTRALIAN CAPITAL TERRITORY Human Rights Act 2004: 10.460
NEW SOUTH WALES Anti-Discrimination Act 1977: 4.230, 4.260, 4.270, 4.350, 4.360, 10.440 s 14: 10.440 s 19: 4.260 s 31: 10.440
Community Protection Act 1994: 2.510, 2.520, 2.560, 2.590 s 3: 2.510 s 3(1): 2.510 s 3(2): 2.510 s 4: 2.510 s 5: 2.510 s 5(1): 2.510 s 7: 2.510 s 7(1): 2.510 s 7(3): 2.510 s 7(5): 2.510 s 8: 2.510 s 14: 2.510 s 15: 2.510 s 16(1): 2.510 s 16(2): 2.510 s 17(1): 2.510 s 17(1)(a): 2.510 s 17(2)(a): 2.510 s 17(3): 2.510 Companies Act 1936: 12.330, 12.380 s 282: 12.310 s 297: 12.330 s 348: 12.310 Constitution Act 1855: 3.10 Constitution Act 1902: 2.210, 2.280, 2.290, 3.190, 11.210 s 1: 2.30, 2.280 s 3: 2.280 s 5: 2.220, 2.280, 2.290, 2.310, 2.320, 2.480, 3.190, 12.310 s 5A: 3.190 s 5B: 2.280, 2.290 s 6: 2.240, 2.310 s 7: 2.210 s 7A: 2.210, 2.220, 2.230, 2.240, 2.280 s 7A(1): 2.210 s 7A(2): 2.260 s 7A(6): 2.210, 2.220, 2.230 s 18: 2.120 s 37: 2.120 s 38A: 3.190 Conveyancing Act 1919 s 109: 4.350 Crime (Criminal Organisations Control) Act 2009: 2.660 Pt 2: 2.660 Pt 3: 2.660
xlviii
Table of Statutes
Crimes Act 1900: 2.510
Independent Commission Against Corruption Amendment (Validation) Act 2015: 13.450 cl 34: 13.450 cl 35: 13.450 cl 35(1): 13.450 cl 35(2): 13.450 cl 35(3): 13.450 Pt 13: 13.450
Criminal Assets Recovery Act 1990 s 4(1): 2.610 s 10: 2.610, 13.450 s 25: 2.610 Crown Lands Consolidation Act 1913: 13.370 Defamation Act 2005 s 30: 11.150
Interpretation Act 1987 s 31: 4.450, 5.50
Election Funding and Disclosures Amendment Act 2010: 11.300
Irrigation, Water, Crown Lands and Hunter Valley Flood Mitigation (Amendment) Act 1966: 10.110 s 3(c): 10.110
Election Funding and Disclosures Amendment (Property Developers Prohibition) Act 2009: 11.300
Judges’ Pensions Amendment Act 1998: 12.260
Election Funding, Expenditure and Disclosures Act 1981: 11.180, 11.300 s 4A: 11.180 s 4A(c): 11.180 s 83: 11.300 s 87: 11.300 s 88: 11.180 s 91(2): 11.180 s 92: 11.180 s 93: 11.180 s 95(1): 11.180 s 95A: 11.300 s 95AA(2): 11.300 s 95B: 11.180 s 95G(6): 11.180, 11.300 s 95G(7): 11.300 s 95I: 11.300 s 95I(1): 11.300 s 96: 11.300 s 96D: 11.300 s 96D(1): 11.180 s 96E: 11.180 s 96G: 11.300 s 96GAA: 11.300 Pt 6: 11.180, 11.300 Pt 6, Div 2: 11.180 Pt 6, Div 2A: 11.180 Pt 6, Div 4A: 11.180, 11.300
Jury Act 1977: 10.290 Legal Profession Regulation 2002: 8.170 s 138 – 140D: 8.170 Pt 14: 8.170 Local Courts (Civil Claims) Act 1970 s 58: 13.40 Local Government Act 1919: 5.500 Long Service Leave Act 1955: 4.180 Marketing of Primary Products Act 1983 s 56: 8.100 s 56(1): 8.100 s 56(4): 8.100 s 58: 8.100 Masters and Servants Act 1902 s 4: 4.140 Mining Act 1992: 3.140 s 284: 3.140 Native Vegetation Act 2003: 10.240 Native Vegetation Conservation Act 1997: 10.240 Parliamentary Electorates and Elections Act 1912: 11.210 s 3(b): 10.30 s 20: 10.30 s 22: 11.300 s 23: 11.300
Environmental Planning and Assessment Act 1979: 4.320 Factories and Shops Act 1912: 4.100
Parliamentary Electorates and Elections Amendment Act 1926 s 9: 10.30 s 9(2): 10.30
Flour Acquisition Act 1931: 7.60 Forty-Four Hours Week Act 1925: 4.90 Independent Commission Against Corruption Act 1988 s 8(2): 13.450 Sch 4, Pt 13: 13.450 Sch 4, Pt 13, cl 34: 13.450 Sch 4, Pt 13, cl 35: 13.450
Parliamentary Electorates and Elections (Amendment) Act 1970: 11.210 Pipelines Act 1967 s 9: 9.90 s 12: 9.90 xlix
Winterton’s Australian Federal Constitutional Law
s 50(1): 10.150
Pipelines Act 1967 — cont s 25: 9.90 s 26: 9.90 s 35(1)(b): 9.90 ss 35(2) to (8): 9.90 s 35(8): 9.90
QUEENSLAND Acts Interpretation Act 1954 s 46: 5.520 Bail Act 1980: 2.710
Public Health Act 1991 s 59: 9.120
Commonwealth Aluminium Corporation Pty Ltd Agreement Act 1957: 2.380 s 4: 2.380, 2.430 s 5(4): 2.430
Racing Administration Act 1998: 8.150 Racing Administration Regulation 2005: 8.150 Residential Tenancies Act 1987: 4.280, 12.380 s 4: 12.40 s 24: 12.380
Community Protection Act 1994: 2.560 Constitution Act 1867: 2.190, 2.200 s 2: 2.560 s 9: 2.200
Sentencing Act 1989 s 13A: 2.570 s 13A(3A): 2.570
Constitution Act Amendment Act 1922: 2.150
Stamp Duties Act 1920 s 84G: 8.40
Constitution of Queensland 2001 s 51: 3.410
Supreme Court Act 1970 s 37: 2.580
Criminal Code: 2.710, 10.270 s 1: 2.710 s 3: 10.270 s 60A: 2.710 s 60B: 2.710 s 60C: 2.710 s 377: 11.60
Surveillance Devices Act 2007 s 11(1): 13.80 Valuation of Land Act 1916 s 6A(3): 10.110
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013: 2.710
War Service Land Settlement Agreement Act 1945: 7.400, 10.210
Criminal Organisation Act 2009: 2.690, 2.710 s 10: 2.690 s 86: 2.690 Pt 3: 2.690 Pt 4: 2.690 Pt 5: 2.690 Pt 6: 2.690 Pt 7: 2.690
Water Act 1912: 7.400, 10.110 s 3: 10.110 s 4B: 10.110 s 6: 10.110 Water Management Act 2000: 7.400, 10.110 Water Rights Act 1896: 10.110 Water and Drainage and Artesian Wells (Amending) Act 1906: 10.110
Dangerous Prisoners (Sexual Offenders) Act 2003 s 13)(3)(b): 2.560 s 2: 2.560 s 3(a): 2.560 s 3(b): 2.560 s 5: 2.560 s 5(3): 2.560 s 5(5): 2.560 s 6: 2.560 s 7: 2.560 s 8: 2.560 s 8(1): 2.560 s 8(2)(b): 2.560 s 12: 2.560 s 13: 2.560 s 13(1): 2.560 s 13(2): 2.560 s 13(3): 2.560
Workers’ Compensation Act 1926: 2.480 s 46: 2.480
NORTHERN TERRITORY Aboriginals Ordinance : 11.320 Criminal Property Forfeiture Act s 3: 10.150 s 44: 10.150 s 44(1)(a): 10.150 s 94: 10.150 Misuse of Drugs Act s 36A: 10.150 Northern Territory (Self-Government) Act s 6: 10.150 l
Table of Statutes
ss 7(1)(a) to (e): 5.520 s 7(1)(b): 5.520 s 7(4): 5.520 s 9(1)(a): 5.520 s 9(1)(b): 5.520 s 9(1)(c): 5.520 s 9(1)(d): 5.520 s 10(1): 5.520 s 55: 5.520 s 56(1)(a): 5.520 s 62: 5.520 s 63: 5.520 s 67: 5.520 s 69: 5.520 s 73: 5.520 s 74: 5.520 s 75: 5.520 s 76: 5.520 s 122: 5.520
Dangerous Prisoners (Sexual Offenders) Act 2003 — cont s 13(3)(a): 2.560 s 13(3)(b): 2.560 s 13(4): 2.560 s 13(4)(h): 2.560 s 13(5): 2.560 s 13(5)(a): 2.560 s 13(5)(b): 2.560 s 13(6): 2.560 s 14: 2.560 s 15: 2.560 s 16: 2.560 s 17: 2.560 s 25: 2.560 s 26: 2.560 s 27: 2.560 s 28: 2.560 s 31: 2.560 s 44: 2.560 s 45: 2.560 Pt 3: 2.560 Pt 4: 2.560
Rules of the Supreme Court: 10.430 r 27: 10.410 r 27(1): 10.410 r 27(2): 10.410 r 28: 10.410
Electoral Act 1992: 11.210 Electricity Act 1976: 12.200
Summary Offences Act 2005 s 8: 11.230
Government Owned Corporations Act 1993: 5.520
Traffic Act 1949 s 16: 4.430
Industrial Arbitration Act 1916: 2.190 s 6: 2.190
Uniform Civil Procedure Rules 1999: 2.690
Industrial Relations Act 1999: 5.520
Vagrants, Gaming and Other Offences Act 1931: 11.130 s 7: 11.130 s 7(1): 11.130 s 7(1)(c): 11.130 s 7(1)(d): 11.130, 11.230 s 7A(1)(c): 11.130 s 128: 11.130
Land Act 1962: 6.90 Liquor Act 1912 s 166: 4.60 Liquor Act 1992: 2.710 s 173EA: 2.710 s 173EB: 2.710 s 173EC: 2.710 s 173ED: 2.710
Vicious Lawless Association Disestablishment Act 2013: 2.710
Local Government (Morayfield Shopping Centre Zoning) Act 1996: 13.450
World Heritage Properties Conservation Act 1983 s 9: 6.120
Mining Royalties Act 1974: 2.380 Motor Vehicles Insurance Act s 20: 10.450
SOUTH AUSTRALIA
Queensland Rail Transit Authority Act 2013: 5.520 s 4(b): 5.520 s 5(a): 5.520 s 5(b): 5.520 s 6(1): 5.520 s 6(2): 5.520 s 6(3): 5.520 s 7: 5.520 s 7(1): 5.520
Beverage Container Act Amendment Act 1986: 8.80 s 5B: 8.80 s 5B(2): 8.80 s 7: 8.80
Beverage Container Act 1975: 8.80
Beverage Container Regulations 1976: 8.80 reg 7(b): 8.80 reg 7(c): 8.80 reg 7(d): 8.80 li
Winterton’s Australian Federal Constitutional Law
Constitution Act 1934: 11.210
Defamation Act 1957 s 16: 11.60 s 22: 11.60
Constitution Act Amendment Act (No 2) 1970: 11.210 Criminal Law Consolidation Act 1935 s 73(3): 4.110
Flour Tax Relief Act 1938: 7.360 ss 5 to 7: 7.360 s 10: 7.360
Drugs Act 1908 s 5: 2.670
Legislative Council Electoral Boundaries Act 1995: 11.210
Electoral Act 1985 s 76: 11.290 s 126: 11.290 s 126(1): 11.290
Sea Fisheries Regulations 1962 reg 17A: 9.30 Tobacco Act 1972 Pt III: 9.70
Fisheries Act 1982: 2.490
Trade Unions Act 1889: 5.520
Industrial Conciliation and Arbitration Act 1972 s 15(1)(e): 4.220
VICTORIA
Juries Act 1927 s 7: 10.280 s 7(1): 10.280 s 57: 10.290
Business Franchise (Tobacco) Act 1974: 8.60 s 10(1)(c): 8.60 s 10(1)(d): 8.60 Charter of Human Rights and Responsibilities Act 2006: 2.670, 10.460 s 7(2): 2.670 s 25(1): 2.670 s 32: 2.670 s 32(1): 2.670 s 33: 2.670 s 36: 2.670, 10.460 s 36(2): 2.670 s 36(3): 2.670 s 36(4): 2.670 s 36(5)(b): 2.670 s 36(6): 2.670 s 37: 2.670
Liquor Licensing Act 1997 s 28A: 2.600 s 28A(5): 2.600 Metropolitan and Export Abattoirs Act 1936 s 15(1)(e): 4.220 s 52A: 4.200, 5.230 Minor Offences Procedure Act 1869 s 3: 10.270 Public Service Act 1916: 3.120 Real Property Act 1886: 2.60, 2.360 s 6: 2.360 Serious and Organised Crime (Control) Act 2008 s 4(1): 2.640 s 5: 2.640 s 10(1): 2.640 s 10(1)(b): 2.640 s 14: 2.640 s 14(1): 2.640, 2.650 s 14(5): 2.640 s 14(6): 2.640 s 22: 2.640 s 35: 2.640 Pt 2: 2.640
Community Protection Act 1990: 2.510 Constitution Act 1975 s 65: 3.420 Constitution Act Amendment (Qualifications) Act 1973: 11.210 Construction Industry Long Service Leave Act 1997: 4.380
South Eastern Drainage Amendment Act 1900 s 14: 2.360
Crimes Act 1958: 4.430, 11.230 s 71(2): 4.430 s 72(1): 4.430 s 321: 4.430 s 321(1): 4.430
West Lakes Development Act 1969: 2.400 s 16: 2.400
Electoral Boundaries Commission Act 1982: 11.210 Employee Relations Act 1992: 12.220
TASMANIA Age of Majority Act 1973: 11.210
Equal Opportunity Act 1977: 4.170, 4.180, 4.280
Constitution Act 1934: 11.210
Goods Act 1928: 12.360 lii
Table of Statutes
Interpretation of Legislation Act 1984 s 6: 4.450
Electoral Act Amendment Act (No 2) 1970: 11.210
Labour and Industry Act 1958: 4.430
Electoral Amendment Act 2001: 2.330
Licensing Act 1958: 9.60 s 19: 9.60 s 19(1): 9.60 s 19(1)(a): 9.60 s 19(1)(b): 9.60
Electoral Distribution Act 1947: 2.330, 2.340, 11.210 s 2A: 11.210 s 6: 2.330, 11.210 s 9: 11.210 s 13: 2.330, 2.340
Marine Act 1928: 4.480
Electoral Distribution Repeal Act 2001: 2.330
Motor Traffic Act 1915: 12.300
Fisheries Act 1905–1975: 2.460 s 24: 2.460 s 24(1)(a): 2.460
Pipelines Act 1967: 9.90 Pipelines (Fees) Act 1981 s 2: 9.90 Prices Regulation Act 1948: 12.380
Interpretation Act 1984 s 7: 4.450
Public Sector Management Act 1992: 12.220
Misuse of Drugs Act 1981: 13.540
Serious Sex Offenders Monitoring Act 2005: 2.660
Seas and Submerged Lands Act 1973 s 14: 2.460
Summary Offences Act 1966 s 49A: 11.230
Stamp Act 1921: 12.40
CANADA WESTERN AUSTRALIA
British North America Act 1867: 14.570
Aboriginal Heritage Act 1972: 12.50
Canadian Bill of Rights 1960 s 2: 2.260
Acts Amendment (Constitution) Act 1978: 11.210 s 6: 11.210
Canadian Charter of Rights and Freedoms: 11.180 s 1: 11.170 s 3: 11.210
Acts Amendment (Electoral Reform) Act 1987: 11.210
Constitution of Canada s 35: 1.540
Betting Control Act 1954 s 24(1aa): 8.120 s 24(1AA): 8.120 s 27D: 8.120 s 27D(1): 8.120
GERMANY Treaty of Versailles: 3.440
Betting and Racing Legislation Amendment Act 2006: 8.120
INDIA
Constitution Act 1889: 2.30, 11.210 s 1: 11.210 s 2: 11.210 s 6: 11.210 s 7: 11.210 s 24: 11.210 s 30: 11.210 s 41: 11.210 s 73: 11.210 s 73(2): 11.210 s 73(2)(c): 11.210, 11.220
Constitution Art 14: 10.440
IRELAND (NATIONAL) Union with Ireland Act 1800: 2.260
NORTHERN IRELAND Northern Ireland Constitution Act 1973: 2.260
Constitution Acts Amendment Act 1899: 11.210 s 5: 2.330
UNITED KINGDOM AND IMPERIAL 18 & 19 Vict c 54: 2.30
Corruption and Crime Commission Act 2003: 2.600
18 & 19 Vict c 55: 2.30 liii
Winterton’s Australian Federal Constitutional Law
53 & 54 Vict c 26: 2.30
Irish Free State (Agreement) Act 1922: 14.540
Act for Poisoning 1531: 13.130
Merchant Shipping Act 1894 s 735: 2.170 s 736: 2.170
Act for reversing the Earl of Strafford his Attainder 1662: 13.130
New South Wales Act 1923: 2.30 s 24: 2.30 s 29: 2.30 s 31: 2.30
Act for the Attainder of Thomas Earl of Strafford 1641: 13.130 Australia Act 1986: 1.440, 1.470, 1.500, 2.10, 2.170, 2.180, 2.640, 11.30, 14.540 s 1: 1.490 s 2(1): 2.480 s 2(2): 2.55 s 5(a): 2.480
New South Wales Constitution Act 1855: 2.280, 2.290 s 4: 2.280, 2.290 Parliament Act 1911: 2.260
Australian Colonies Duties Act 1873: 8.40
Parliament Act 1949: 2.260
Australian Constitutions Act 1842: 2.30
Reform Act 1832: 3.190
Australian Constitutions Act 1850: 2.30 s 32: 2.30
Riot Act 1715: 6.250 Royal Assent Act 1967: 2.260
Australian Courts Act 1828: 2.30
Royal Mines Act 1688 s 3: 3.140
Bill of Rights 1688: 2.260, 3.70 s 4: 3.270 Bill of Rights 1689: 3.280, 12.380
South Africa Act 1909: 2.310 s 152: 2.310
British Nationality Act 1948: 14.660
Statute Law Revision Act 1863: 13.130
British North America Act 1867: 11.30, 12.180, 14.700
Statute of Westminster 1931: 1.440, 1.460, 2.170, 2.310, 2.450, 2.460 s 2: 2.170 s 2(2): 2.260 s 3: 2.170 s 4: 1.490, 2.170, 2.260 s 5: 2.170
Canada Act 1982: 14.540 Colonial Laws Validity Act 1865: 1.440, 1.450, 1.460, 2.60, 2.210, 2.330, 2.400 s 1: 2.210 s 2: 2.70, 2.80, 2.100 s 3: 2.70 s 5: 2.70, 2.80, 2.170, 2.180, 2.210, 2.220, 2.230, 2.240, 2.250, 2.260, 2.270, 2.280, 2.290, 2.300, 2.310, 2.320, 2.330, 2.340, 2.350, 2.360, 2.370, 2.380, 2.390, 2.400, 2.460, 2.470, 2.640
Treason Act 1351: 6.250 Union with Scotland Act 1706: 2.260
UNITED STATES Agricultural Adjustment Act s 601: 5.200
Commonwealth of Australia Constitution Act 1900 (63 & 64 Vict c 12): 1.10, 2.510, 3.100, 3.370 s 3: 2.130, 3.100 s 4: 3.100 s 6: 3.100 s 5: 12.120
American Convention on Human Rights (Pact of San José) Art 9: 13.140 Sherman Act s 1: 5.200 Tobacco Inspection Act s 511: 5.200
Corrupt and Illegal Practices Prevention Act 1883: 11.180
United States Constitution: 3.440 s 1: 10.450 s 2: 10.440, 11.200 s 7: 10.440 s 30: 10.440 Art I: 11.200, 13.10 Art II: 13.10
European Communities Act 1972: 2.260 Human Rights Act 1998: 10.460, 11.170 Hunting Act 2004: 2.260 Ireland Act 1949: 14.540 liv
Table of Statutes
Convention for the Protection of the World Cultural and Natural Heritage: 6.120
United States Constitution — cont Art III: 13.10 Art IV: 10.440, 10.450 Art VI: 10.360 s 2: 10.290 s 2(3): 10.280, 10.290 s 3: 10.300
European Convention for the Protection of Human Rights and Fundamental Freedoms Art 7: 13.140 International Covenant on Civil and Political Rights Art 7: 13.190, 13.200, 14.60 Art 9: 13.190, 13.200 Art 10: 13.190, 13.200
TREATIES AND CONVENTIONS Airline Pilots Agreement 1978: 4.170 s 6: 4.170 cl 6: 4.170 cl 6B: 4.170 cl 22: 4.170
Protocol Relating to the Status of Refugees: 3.120 Statute of the International Court of Justice Art 38: 14.580
Convention Relating to the Status of Refugees (1951 Refugee Convention): 3.120
Universal Declaration of Human Rights Art 11(2): 13.140
lv
PART I: INTRODUCTION Chapter 1: Constitutional Fundamentals ................................................ 3
PARTI
Chapter 2: States .................................................................................... .. 69
CHAPTER 1 Constitutional Fundamentals [1.10]
INTRODUCTION .......................................................................................................... 4
[1.20]
DEMOCRATIC FEDERALISM ......................................................................................... 7 [1.20]
Federal and democratic foundations ......................................................... 7 [1.30] [1.50] [1.70] [1.90]
[1.110]
Federalism as a principle of constitutional interpretation ...................... 15 [1.120] [1.140]
[1.160]
McCulloch v Maryland .................................................................... 16 The Decline of Federalism ................................................................ 17
Representative and responsible government .......................................... 21 [1.170]
[1.190]
Federalist No 39 ............................................................................... 7 Annotated Constitution of the Australian Commonwealth ................... 9 Federalism in Australia and in Other Nations .................................... 11 The Federal Model .......................................................................... 14
Lange v ABC ................................................................................... 21
The constitutional status of responsible government ............................ 22 [1.200] [1.210] [1.230]
Parliament, the Executive and the Governor-General ......................... 23 Responsible Government and the Australian Constitution .................. 25 Law and Convention ...................................................................... 27
[1.250] CONSTITUTIONAL GOVERNMENT .......................................................................... 29 [1.250]
Separation of powers ................................................................................ 29 [1.260] [1.280] [1.300] [1.320]
[1.330]
30 34 35 44
Rule of law .................................................................................................. 45 [1.340] [1.360]
[1.370]
Constitutionalism and the Separation of Powers ............................... A New Perspective on Separation of Powers ...................................... Interpretational Methodologyin Separation of Powers Jurisprudence ................................................................................. Rethinking the Constitutionality of Delegated Legislation ..................
Ethics and the Public Domain .......................................................... 46 Plaintiff S157/2002 v Commonwealth ............................................. 47
Judicial review and constitutional rights .................................................. 48 [1.390] [1.410]
Marbury v Madison ........................................................................ 49 Australian Communist Party v Commonwealth ................................. 51
[1.430] SOVEREIGNTY ............................................................................................................. 58 [1.440] [1.450] [1.470] [1.490]
[1.510]
Sovereignty of Parliament ............................................................... The Statute of Westminster 1931 .................................................... Australian Capital Television v Commonwealth ................................. Sue v Hill .......................................................................................
58 58 61 61
Indigenous Australians ............................................................................... 63 [1.520] [1.540] [1.550]
Sovereignty and Indigenous Peoples ................................................ 63 Reconciliation and the Constitution ................................................. 65 Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution ............................................................................. 67
3
Part I: Introduction
INTRODUCTION [1.10] Constitutional law is conventionally understood to be the law that identifies and
regulates the institutions of government within a society. Broadly understood, a constitution is something that establishes and regulates any kind of organisation, including business corporations, voluntary associations, religious societies, and so on. In its more specific sense, constitutional law is concerned with the civil or public institutions of the modern state. The governing institutions of modern states exercise various legal powers, principally the power to make law, the power to execute the law, and the power to resolve disputes over the meaning and application of the law. In most countries today, including Australia, constitutional law vests these powers in separate institutions, usually known as the legislature, the executive and the judiciary. As in many other countries, much of Australia’s constitutional law is contained in, or derived by a process of interpretation from, a written constitution. However, as a country that was colonised by Britain and inherited as much of the common law of England as was applicable at the time, Australian constitutional law also includes and is premised upon aspects of the common law of the United Kingdom, a body of law that is not based on a single written document. Many of the legal developments which flow from the constitutional conflicts that occurred in England in the 17th century remain relevant to Australian constitutional law and practice, such as the sovereignty of Parliament and its supremacy over the Executive, the institutional independence of the Judiciary, and the practices of parliamentary responsible government that developed especially following the democratic Reform Acts of the 19th century. The Commonwealth of Australia is a federation of six previously existing, self-governing colonies, now called States. The federation was brought into existence by the Commonwealth of Australia Constitution Act 1900 (UK) following the agreement of the political leaders and voters of the six colonies. This special British statute consists of nine sections, the last of which contains what is called the “Constitution of the Commonwealth of Australia”. This is what people usually mean when they refer to the “Australian Constitution”. However, each of the Australian States also has its own constitution, a special Constitution Act enacted by the legislature of each State. The principles of federalism and (to a lesser extent) the separation of powers, both derived from the United States of America, were very influential in the design of Australia’s Constitution, and American cases relating to issues of federalism and other matters are frequently considered relevant to the interpretation of the Australian Constitution. The benefits of a written constitution are significant, but merely having a written constitution does not necessarily guarantee that the powers of government will be exercised in a manner that is subject to the law. Constitutionalism encompasses the ideas and values which inspire written constitutions and continue to animate them. Constitutionalism stands for the idea that governmental power must be legally restrained in order to diminish the possibility of its abuse. Without constitutional limits, governmental power may degenerate into arbitrariness or tyranny. Constitutional government exists when constitutional values and principles are put into practice. In this sense, constitutionalism is closely related to, if not identical with, the rule of law. As commonly understood, the rule of law exists when the powers of government are only exercised in accordance with pre-existing law. It is this body of pre-existing law which is in a fundamental sense the constitution of a country. Consider this practical illustration. Police officers have the power to charge you with a traffic violation if you violate the traffic laws. They are not authorised to exercise legislative power (ie, to make the law right there and then, on the side of the road and then proceed to charge you) and they are not authorised to exercise judicial power (ie, to make a final and conclusive determination that you have in fact 4
[1.10]
Constitutional Fundamentals
CHAPTER 1
breached the law and have an obligation to pay the fine). According to the principle of the separation of powers, legislative power is ordinarily vested separately in the Parliament, executive power is vested separately in the Executive (usually exercised through delegates, such as police officers) and judicial power is vested separately in the Courts. The Australian Constitution and, to a lesser extent, the Constitutions of the Australian States provide for the separation of powers by separately establishing legislative, executive and judicial institutions and investing them with legislative, executive and judicial power respectively. A healthy constitutional system of government depends upon this relationship between constitutional law and the exercise of clearly defined and limited powers of government. The constitutional system works properly when you can only be obliged to pay a fine if you have in fact breached a law which has been enacted by a legislature, which has been executed by the executive (such as the police), and which has been determined by a judge to apply to your case. Only if all three components of the constitutional system concur can you be coerced. The separation of powers – when it is operating properly – is thus a very important way in which liberty from the exercise of arbitrary power by government can be preserved and protected. Another fundamental dimension of the Australian constitutional system is the fact that the Commonwealth of Australia is a federation of six constituent States. This means that the Commonwealth and the States each have their own constitutional systems of government, with the State systems distinct from, and yet integrated with, the Commonwealth as a whole. The States were established as mutually independent self-governing colonies prior to the formation of the Commonwealth and it was the States that took the initiative to bring the Commonwealth into being. They did this by first agreeing to send representatives to two federal conventions, one held in 1891, the other in 1897–98, at which a written constitution for the proposed federation was drafted. The second convention composed a Constitution Bill which eventually satisfied the governments and legislatures of the six colonies and was ultimately approved by the voters in each colony. Following its approval in Australia, the Constitution Bill was then conveyed to the Colonial Office in London for ultimate enactment into law by the British Parliament at Westminster. Thus enacted, the Australian Constitution provides for the establishment of a set of governing institutions at a federal level (principally the Commonwealth Parliament, the Federal Executive Government and the High Court of Australia) and confers specific and limited legislative, executive and judicial powers upon each of these institutions respectively. The powers conferred are specific and limited because it was understood that the States would continue to function as self-governing political communities, and that the Commonwealth would only exercise governing power in relation to the specific matters that were agreed to be conferred upon it by the governments and peoples of the States. Federalism, like the rule of law and the separation of powers, is fundamental to the system of constitutional law that operates in Australia. Of similar importance is the form and composition of the various institutions of government which operate at both a State and a Commonwealth level. Since classical times, it has been conventional to distinguish between the rule of the one (µοναρχια, monarchy), the rule of the few (αριστοκρατια, aristocracy) and the rule of the many (δηµoκρατια, democracy). In classical thought, monarchy simply meant the rule of an individual person. A monarch might therefore be elected, and that election might be either by a few or by many members of the society. Similarly, aristocracy did not necessarily mean the rule of a hereditary nobility; they too, might be elected. While in most European countries, including England and Scotland, both the nobility and the monarchy were hereditary, in some city states of Europe, such as Florence, Venice and Geneva, the members of the ruling council in the city were at times elected, albeit on the basis of a limited franchise. No state was purely monarchical, aristocratic or democratic, and the balance between the three elements was always complex [1.10]
5
Part I: Introduction
and subject to change. It is, therefore, possible, and indeed very common, for constitutional systems to be mixtures of all three basic forms of government. Moreover, in the classical analysis, the rule by the one, the few, or the many could be either for the good of the political community as a whole (and thus legitimate), or for the personal or sectional interests of those who ruled (and thus illegitimate). Special terms were used to identify legitimate or illegitimate rule. In fact, the term “democracy” was reserved by Aristotle for the bad form of the rule of the many, whereas today we usually use the term in either a neutral or positive sense. But that there could be good and bad forms of all three types of government, and that there could be mixtures of all three types, is the most important point. Indeed, Aristotle thought that for most countries, a mixed system of government is best, principally because, just as one could never be sure of finding a wise and virtuous individual or small group of rulers, nor could one be sure that the whole body of people would always govern themselves in a manner that was just and fair to everyone. It was usually better if there was a mix of monarchy, aristocracy and democracy so that each group could restrain the excesses of the others. The Australian system of government is often called “democratic” for several reasons. First, the preamble to the federal Constitution accurately recites that the Constitution came into being only after “the people” of the six States “agreed to unite” in a “federal commonwealth”. Secondly, the Constitution requires that members of the Commonwealth Parliament are to be “chosen” by “the people”, voting in regular elections. Less obviously, the Constitution also lays the foundations for a system in which the executive power of the Commonwealth, formally vested in the Queen, is in practice exercised on the advice of a Prime Minister and other Ministers of the Crown who have the confidence and support of a majority in the lower house of Parliament. Moreover, the Constitution can only be formally amended at a referendum in which a majority of the people of the Commonwealth as a whole, as well as a majority of people in a majority of States, agree with the proposed change. Australia is partly a direct democracy because the people are able to express their views directly on proposals put to referendum for the amendment of the Constitution; and it is partly a representative democracy because the people elect members of Parliament to make laws and form governments on their behalf. Other aspects of the constitutional system are more monarchical and aristocratic. Most evidently, Australia is a constitutional monarchy. The executive power of both the Commonwealth and the States is legally vested in the Queen and exercised by the Governor-General and the State Governors, all of whom are formally appointed by the Queen. The Queen is a constituent member of each of the Parliaments of the Commonwealth and the States and is formally the head of the judicial system. Laws cannot be passed without her assent, expressed through the Governor-General and State Governors, and judges are formally appointed by the Governor-General and the State Governors in the name of the Queen. However, all of these powers are in practice exercised by the Governor-General and the State Governors on the advice of Ministers who themselves have the support of, and are politically responsible to, the relevant Parliament. This system of parliamentary responsible government exists, not because the law of the constitution requires it, but because it is a well-established constitutional convention. Responsible government is the way in which the monarchical and aristocratic elements of the Australian constitutional system are democratised. And yet, the result is still a government by “the few” in the sense that it concentrates executive, legislative and judicial power in the hands of a small group of individuals. Thus, despite the far-reaching democratisation of the Australian constitutional system, judges are not popularly elected and they are certainly not expected to act in accordance with the directions of the executive government. Rather, judges are chosen for their demonstrated integrity, skill, knowledge and wisdom in the application of the law. Once appointed, they are 6
[1.10]
Constitutional Fundamentals
CHAPTER 1
deliberately insulated from the other institutions of government so that they can perform their vital function of ensuring the proper interpretation and application of the law in a manner that is independent of political interference or influence. The underlying reason for this is that the rule of law and constitutional government depend, in practice, upon the independence of the judiciary. A very important function of the courts is the exercise of judicial review, which occurs when judges scrutinise executive action or statutes enacted by the Parliament to determine whether they are in accordance with the law. Much of Australian constitutional law consists of decisions made by the courts exercising this power of judicial review of legislation. This chapter begins by explaining ideas and principles of democracy and federalism; it then turns to the separation of powers, the rule of law and the associated practice of judicial review.
DEMOCRATIC FEDERALISM Federal and democratic foundations [1.20] James Madison, one of the most important framers of the United States Constitution,
in an influential essay written to encourage its ratification, defended the “federal” and “national” characteristics of the proposed Constitution in the following terms.
Federalist No 39 [1.30] J Madison, “Federalist No 39”, in C Rossiter (ed), The Federalist Papers (New American Library, New York, 1961), pp 243-244 In order to ascertain the real character of the Government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the Government are to be introduced. On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the People of America, given by deputies elected for the special purpose; but on the other, that this assent and ratification is to be given by the People, not as individuals composing one entire Nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, – the authority of the People themselves. The act, therefore, establishing the Constitution, will not be a National, but a Federal act. That it will be a Federal, and not a National act, …the act of the People, as forming so many independent States, not as forming one aggregate Nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the People of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the Legislative authority, but by that of the People themselves. Were the People regarded in this transaction as forming one Nation, the will of the majority of the whole People of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the People of the United States. Neither of these rules has been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a Federal, and not a National Constitution. The next relation is, to the sources from which the ordinary powers of Government are to be derived. The House of Representatives will derive its powers from the People of America; and the People will be represented in the same proportion, and on the same principle, as they are in the Legislature of a particular State. So far the Government is National, not Federal. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on [1.30]
7
Part I: Introduction
Federalist No 39 cont. the principle of equality in the Senate, as they now are in the existing Congress. So far the Government is Federal, not National. The Executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. The eventual election, again, is to be made by that branch of the Legislature which consists of the National representatives; but in this particular act, they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. From this aspect of the Government, it appears to be of a mixed character, presenting at least as many Federal as National features. The difference between a Federal and National Government, as it relates to the operation of the Government, is supposed to consist in this, that in the former, the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the Nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the National, not the Federal character; though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only. So far the National countenance of the Government on this side seems to be disfigured by a few Federal features. But this blemish is perhaps unavoidable in any plan; and the operation of the Government on the People, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a National Government. But if the Government be National with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers. The idea of a National Government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful Government. Among a People consolidated into one Nation, this supremacy is completely vested in the National Legislature. Among communities united for particular purposes, it is vested partly in the general, and partly in the municipal Legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed Government cannot be deemed a National one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true, that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide is to be established under the General Government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword, and a dissolution of the compact; and that it ought to be established under the General, rather than under the local Governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated. If we try the Constitution by its last relation, to the authority by which amendments are to be made, we find it neither wholly National, nor wholly Federal. Were it wholly National, the supreme and ultimate authority would reside in the majority of the people of the Union; and this authority would be competent at all times, like that of a majority of every National society, to alter or abolish its established Government. Were it wholly Federal, on the other hand, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the Plan of the Convention is not founded on either of these principles. In requiring more than a majority, and particularly, in computing the proportion by States, not by citizens, it departs from the National, and advances towards the Federal character: in rendering the concurrence of less than the whole number of States sufficient, it loses again the Federal, and partakes of the National character. The proposed Constitution, therefore, is, in strictness, neither a National nor a Federal Constitution, but a composition of both. In its foundation it is Federal, not National: in the sources from which the 8
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Federalist No 39 cont. ordinary powers of the Government are drawn, it is partly Federal, and partly National: in the operation of these powers, it is National, not Federal: in the extent of them, again, it is Federal, not National: and, finally, in the authoritative mode of introducing amendments, it is neither wholly Federal nor wholly National.
Notes&Questions
[1.40]
1.
What did Madison mean by “federal” and “national”? Using Madison’s terminology, to what extent is the Australian Constitution “federal” or alternatively “national” in character? On the influence of Madison’s essay on the framers of the Australian Constitution, see N Aroney, The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution (Cambridge University Press, 2009), pp 73-78, 107, 111-2, 124-8. 2. In the original text of Madison’s essay the archaic form “fœderal”, instead of “federal”, was used. This reflects the etymological derivation of the term from the Latin fœdus, which means treaty, covenant or compact: D Elazar, Exploring Federalism (University of Alabama Press, 1987), p 5. What influence do you suppose the origin of the Australian federation (that is, an agreement among several self-governing colonies) has on the terms, structure and meaning of the Constitution? For a detailed discussion, see Aroney, The Constitution of a Federal Commonwealth, chs 7-11. Consider the following observations made by John Quick and Robert Garran, two important framers of the Australian Constitution, regarding the reference in the preamble of the Australian Constitution to the agreement of the people of the Australian colonies to unite in a “Federal Commonwealth”.
Annotated Constitution of the Australian Commonwealth [1.50] John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (Angus and Robertson, Sydney, 1901; reprinted Legal Books, Sydney, 1975), pp 332-334 332 The Federal idea … pervades and largely dominates the structure of the newly-created community, its parliamentary executive and judiciary departments. 333 “Federal” generally means “having the attributes of a Federation.” By usage, however, the term Federal has acquired several distinct and separate meanings, and is capable of as many different applications. In this Act, for example, the term Federal is used first in the preamble, and next in clause 3, as qualitative of the Commonwealth, considered as a political community or state; in various sections of the Constitution it is employed as descriptive of the organs of the central government. This use, in an Act of Parliament, of one term in reference to two conceptions so entirely different as state and government, is illustrative of the evolution of ideas associated with Federalism. In the history of Federation the word seems to have passed through several distinct stages or phases, each characterised by a peculiar use and meaning. At the present time the several shades of thought which the word, according to usage and authority, is capable of connoting are often blended and confused. These meanings may be here roughly generalized as a preliminary to a separate analysis: (1)
As descriptive of a union of States, linked together in one political system.
(2)
As descriptive of the new State formed by such a union.
(3)
As descriptive of a dual system of government, central and provincial.
(4) As descriptive of the central governing organs in such a dual system of government. The first, and oldest, of these meanings directs attention emphatically to the preservation of the identity of the States; the second implies a division of sovereignty – a State composed of States; the [1.50]
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Part I: Introduction
Annotated Constitution of the Australian Commonwealth cont. third asserts that the duality is a matter of government, not of sovereignty; whilst the fourth asserts nothing, but is merely a convenient form of nomenclature. (1)
A UNION OF STATES – The primary and fundamental meaning of a federation (from the Latin foedus, a league, a treaty, a compact; akin to fides, faith) is its capacity and intention to link together a number of coequal societies or States, so as to form one common political system and to regulate and co-ordinate their relations to one another; in other words a Federation is a union of States, subject to the preservation of state entity and state individuality within defined limits. Such a union as that of the United States called into existence a central government to deal with the general affairs of the union, but there was some discussion and doubt among publicists whether, as its resultant, it established a new State. The phrase “federal union,” or the abstract noun “Federation,” described the bond of union between the “United States,” but was silent as to whether the States so united formed a single composite State. It was contended that the union fell short of the attributes of a perfect State; that the original sovereignty of the component States remained unimpaired except to the extent of the power transferred to the union – a doctrine which was the battle ground of parties in America for many years before the Civil War. This was the sense in which the word “federal” is used in the Federalist, and in the early constitutional history of the United States.
(2)
A FEDERAL STATE – In a secondary sense, the word “federal” is applied to the composite state, or political community, formed by a federal union of States. It thus describes, not the bond of union between the federating States, but the new State resulting from that bond. It implies that the union has created a new State, without destroying the old States; that the duality is in the essence of the State itself that there is a divided sovereignty, and a double citizenship. This is … the sense in which the phrase “a Federal Commonwealth” is used in this section and in the preamble. The word “Federation,” which was primarily synonymous with the abstract “federal union,” is now frequently used as synonym for the concrete “Federal State.”
(3)
A DUAL SYSTEM OF GOVERNMENT – In recent years it has been argued that the word “federal” is inappropriately and inexactly used when applied to a State or 334 community; that there is no such thing as a federal State; that if there is a State at all it must be a national State; that any political union short of the principal attribute of statehood and nationhood, viz: sovereignty, is a mere Confederacy; and that “federal” can only be legitimately used as descriptive of the partition and distribution of powers which is peculiar to a federal system. Federal, it is said, is properly applied to denote a dual but co-ordinate system of government, under one Constitution and subject to a common sovereignty, in which one State employs two separate and largely independent governmental organizations in the work of government; the whole governing system, central and general, as well as provincial and local, constituting the federal government; the central and general government being one branch, and the provincial and local governments forming the other branch of the governing organization. … Hence, according to this view, the expression “Federal Government” means not the central and general government alone, not the provincial and local governments alone, but the governing system, central and general, as well as provincial and local, as parts of one whole government under one Constitution.
(4)
CENTRAL GOVERNMENT OF A DUAL SYSTEM – The term “federal” is often used as descriptive of the organs of the central and general government, such as the Federal Parliament, the Federal Executive, and the Federal Supreme Court. In this sense the word is in common use in the United States as synonymous with national. This use of the word has no important bearing on federal history or theory.
FEDERAL AND CONFEDERATE – But in whichever of the above meanings the adjective “federal” is used, in modern usage it is distinguishable from the adjective “confederate.” “Federal” is used of a type of union, or government, or State, in which the general and local governments are co-ordinate within their respective spheres, and both act directly on the citizens. “Confederate” is applied to a type of union, or government, known as a confederacy, in which the central government is incomplete – usually having only legislative powers – and its laws and ordinances are directed to the States, not to 10
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Annotated Constitution of the Australian Commonwealth cont. the citizens. Such a union is little more than a league or treaty between independent States, and does not create a new State, nor even, in the complete sense of the word, a new government; but merely provides a representative organization for the purpose of promulgating decrees and making requisitions upon the members of the league. It has no power to enforce its decrees or requisitions. This was the fundamental infirmity of the Confederacy of the United States which existed before the adoption of the Federal Constitution.
Notes&Questions
[1.60]
1.
Do you agree with Quick and Garran that the federal idea “pervades and largely dominates the structure” of the Australian Constitution? Considering the various references to federalism in the Constitution, which of them coincides with the idea of a “union of states”, a “federal state”, a “dual system of government” and the “central government of a dual system”? See Quick and Garran, pp 334-340 and compare C Saunders, “Constitutional Arrangements of Federal Systems” (1995) 25(2) Publius: The Journal of Federalism 61.
2.
How would you compare the importance of federalism with that of other ideas in the Constitution, such as the rule of law, the separation of powers and representative democracy? Is it possible to say that one of these ideas is more important or fundamental than another?
3.
Are Quick and Garran correct to suggest that there is no such thing as a “federal state” and that if there is a state at all it must be a “national” one? Can the “national state” idea make sense of all of the features of the Constitution? What, then, did the framers mean when they said that the people of the colonies had agreed to unite themselves into a “federal commonwealth”? For a discussion, see N Aroney, The Constitution of a Federal Commonwealth (Cambridge University Press, Cambridge, 2009), pp 1-8, 337-345, 368-369. The historical development of the notion of federalism and the influence of the United States experience in particular, are discussed by Professor Thomas Fleiner-Gerster.
Federalism in Australia and in Other Nations [1.70] T Fleiner-Gerster, “Federalism in Australia and in Other Nations”, in G Craven (ed), Australian Federation: Towards The Second Century (Melbourne University Press, Melbourne, 1992), pp 15-28 (most footnotes omitted) Throughout history, federalism has been: • a check against the exercise of excessive power by the central government; • a means to protect minorities; • a system to guarantee freedom and independence to local communities; • a constitutional framework to facilitate unification by small and weak nation states without the destruction of their national identity and sovereignty; • a possible means of safeguarding small democracies within greater democracies; • an attempt to prevent the creation of huge and inhuman bureaucracies through decentralisation to small authorities controlled by their citizens; • a mechanism to give citizens the opportunity to participate in the decision-making process at the local level. …18… [1.70]
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Part I: Introduction
Federalism in Australia and in Other Nations cont. United States federalism was based not on some political theory of decentralisation but on an urgent and pragmatic need for “a more perfect union” with a republican form of government (Harold Laski, The Problems of Federalism (1931), p 50). The 19 unique and creative ideas of the founding fathers of the United States were based on the conviction that it is possible to combine republican principles on a national level without destroying the self-determination and self-government of local units. The “revolutionary” character of the United States Constitution lay in its combination of federalism and republicanism. … The idea of establishing a national government based on dual sovereignty by leaving residual power to local governments was new, though Montesquieu had earlier developed basic principles regarding the concept of dual sovereignty itself: “In this form of government several political bodies consent to become citizens of a state bigger than that which they wanted to form. It is a society of societies which forms a new entity that can grow by the addition of new members, until its power guarantees the security of those who are united.” … Prior to the establishment of the United States, it had been believed that the only possible form of republican government was a highly centralised model. This centralised model, later bolstered by the adherence of France following the Revolution, greatly influenced European nations seeking to establish republican rule in the 19th and 20th centuries. … 20 … According to European thought, while political powers may be separated, they cannot be equal. There must, in general, be one primary legislative power that controls and supervises the other authorities. French doctrine stresses that while powers must be separated, they may not be used as checks against each other. Thus, for instance, the courts have no right to check legislative power, nor can they control administrators to ensure that they have not been acting ultra vires. In France, consequently, the entire control of administrative action lies in a special body, the Conseil d’Etat, which follows a newer administrative law model. … Considering this view of separation of powers, it is not surprising that the concept of dual sovereignty was not supported in European doctrine. Even in terms of pragmatic politics, it was not possible to develop mechanisms for dual sovereignty because the tradition of a monarch as head of state was inconsistent with the concept of separate but equal powers. Yet only by adopting this idea could the United States develop its presidential system, and establish it as a major alternative to parliamentary government. By introducing the concept of dual sovereignty, the United States Constitution provided a viable alternative form of republican government. The important feature of United States federalism is this concept of dual sovereignty combined with separation of powers. This combination supported the development of a system of “checks and balances” within the federal government, as well as between federal and State governments. … 23 Perhaps history, more than theory, explains differences among federal systems. Some federations, such as the United States and Switzerland, emerged from a confederation of sovereign States. In these countries, the individual states had enjoyed original sovereignty but transferred certain powers to the federal government, while retaining residual power. By contrast, federal nations that evolved from centralised systems, such as Austria, certain Commonwealth countries (eg, India), and – to a degree – the Federal Republic of Germany, developed federalism through decentralisation. Residual power in these countries was originally located in the emperor, king, or governor, and remained in the central state. According to monarchical tradition, residual power rests in the Crown, which is the “foundation of justice”, and thus lies in a centralised institution. In Switzerland, however – as in the United States – this power belongs to the cantons and is based on the democratic authority of local assemblies. Thus the power of the central government in Switzerland has been built up from the bottom, not directed down from the top. In the Commonwealth of Australia, the States were originally colonies but with essentially unlimited powers. Sovereign nations creating a federal union must decide what authority will be transferred to the central government by determining which powers are required by that government to rule effectively. A federal union created in this manner must take account of the expectations of its member states. Dual sovereignty therefore is perhaps best suited to – or is more likely to emerge in – those federal nations whose local units enjoyed original sovereignty prior to confederation. On the other hand, in a federal system formed through decentralisation, the central government will exercise greater control over the division of power. Local units will be granted powers and some degree of autonomy, but not so much as to interfere with the responsibilities of the central government to the citizenry as a whole. Even if the outcome of divided power sometimes seems the same, as if one views the glass as 12
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Federalism in Australia and in Other Nations cont. half-empty or half-full, there remains a difference in the quality of power-sharing resulting from a federal nation’s historical background. A state that is sovereign 24 before it joins a federal system has a unified historical foundation, established concepts of citizenship, a court system and political parties, which retain local significance following confederation. That historical legacy and the social, political or cultural traditions may not be shared by the entire federal society. Federal governments that emerged from centralised states are also likely to have different conceptions of the character of the federal constitution, different procedures for ordaining the constitution, and different procedures regarding constitutional amendment. In the United States, Australia and Switzerland, the constitutions were adopted along State lines: in the United States, ratification by the constituent units was required, while in Australia, referenda were held among the electors of the colonies …. Constituent cantons, states and colonies had and continue to have in these federations a decisive role in the adoption of a constitutional amendment. In most other federal states, the constitution may be modified by the national legislative chambers alone, and does not depend upon the consent of individual member states. Bicameralism was not a United States invention and is not a United States monopoly. Bicameral legislatures exist in unitary as well as in federal states. … 25 Hamilton and Madison [defended] the Senate as the house representing State interests and symbolising State sovereignty (Hamilton, Federalist Papers (no 9); Madison, Federalist Papers (no 39)). According to the Federalist Papers, bicameralism is also a means for ensuring democracy. “It doubles the security to the people by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient” (Madison, Federalist Papers (no 62)). The United States bicameral system has been a suggestive model. Switzerland had no bicameral tradition, and whether there should be one chamber or two was a continuing issue in Swiss history. In that history, and in the continuing debates, the influence of the United States Constitution is clear. Most federal constitutions provide for two legislative houses. … However, … [m]ost federal states have [also] been influenced by the Westminster model, where one legislative chamber (as in the Commonwealth of Australia) has complete control over the government. As it is the responsibility of parliaments to control and dismiss the government, granting equal power to two houses was viewed as inviting serious conflict. The United States founding fathers granted the Senate powers similar to those held by the Privy Council in England. This may be one reason why the House of Representatives was given special responsibility over bills raising revenue, whereas the Senate has greater power in the ratification of treaties and the appointment of judges and high-ranking executive branch officials. Because this tradition of unequal division of power did not exist in Switzerland, no attempts were made to 26 provide the “federal chamber” (the one in which representation is on a state basis) with greater privileges than the other chamber. Switzerland appears to be the only federal nation that has adopted both the idea of equal state representation in one house, and the concept of equal authority for both houses. …
[1.80]
Notes&Questions
Fleiner-Gerster claims that federalism promotes a number of important values. Do you agree with each item on the list that he proposes? The allocation of powers between the central government and the states is a crucial aspect of any federal system. How this issue was dealt with in Australia at the constitutional conventions of the 1890s is discussed by Professor Michael Crommelin.
[1.80]
13
Part I: Introduction
The Federal Model [1.90] M Crommelin, “The Federal Model”, in G Craven (ed), Australian Federation: Towards The Second Century (Melbourne University Press, Melbourne, 1992), pp 39-44 (footnotes omitted) 39 The Australasian Federation Conference in 1890 toyed briefly with two methods for allocating powers to government, one exemplified by the Canadian Constitution, the other by the United States. 40 The Canadian approach found little favour, then and later. As Playford said in Sydney in 1891: “When we first met in Melbourne two forms of constitution were promulgated, one based on the Canadian Constitution, and the other not so based. The first idea was to have a constitution in which the powers of the local legislatures were strictly defined, the residuum of power to rest entirely with the federal government. At that time I objected to that, and pointed out that we should most strictly define and limit the powers of the central government, and leave all other powers not so defined to the local legislatures.” The intent of the founders was clear: to curtail strictly the scope of national power. The United States approach was seen as the better means for achieving this end. As Deakin said in 1891: “We should fail in our duty if we did not embody in our draft such distinct limitation of federal power as would put the preservation of state rights beyond the possibility of doubt”. Dr Cockburn declared, at the same Convention: “With regard to the powers that are to be conceded to the central authority, and the powers that are to remain with the states I do hope that no attempt will be made to define the powers which are not surrendered by the individual states; because to define means to limit …”. No such attempt was made, then or later. Senate control over the exercise of the powers of the national government raised an important question concerning the relationship between the legislative and executive branches of that government. In particular, was responsible government compatible with a requirement of consent by the States, through the Senate, to the exercise of Commonwealth legislative power? Sir Samuel Griffith thought not. In his speech upon the Parkes resolutions in Sydney in 1891, he said: “…We propose to have an executive government having possibly, and having probably, seats in Parliament. How shall we guarantee that the machine will work if we insist that these ministers shall hold their offices in form as well as in reality, by 41 the will of one house only? Does not the possibility of a very serious deadlock occur here to every hon gentleman at once?” The solution for Griffith lay in “a constitution so elastic as to allow of any necessary development that may take place”. Sir John Downer proposed a more radical departure from English constitutional tradition: “The method adopted in Switzerland might be resorted to. The two houses might meet as one – the senate and the house of representatives – and appoint their ministry, who should retain office – there it is for three years – for a time to be determined. That would be a government which would have the confidence of the house, not responsible in the ordinary sense, and it would impinge upon our English notions to that extent; but still, I think, a government much more consistent with the federation which is to be brought about than a government which can only properly exist under an empire.” However, the Griffith approach prevailed in 1891. In 1897 the Barton resolutions maintained this open position. On that occasion, Baker opposed the entrenchment of responsible government: “A Constitution should be of historical growth, and not be manufactured. Although I am fully impressed with that idea, I am afraid that if we adopt this Cabinet system of Executive it will either kill Federation or Federation will kill it; because we cannot conceal from ourselves that the very fundamental essence of the Cabinet system of Executive is the predominating power of one Chamber.” But support for responsible government was strong, as exemplified by O’Connor: Now, I say that responsible government …is a form of government for which we have a hereditary preference; … it is a form of government the working of which we understand thoroughly; and it is a form of government to supplant which by something else which the people do not understand would mean, I think, the introduction of a dangerous experiment … So I take it as a principle that in the work of making this Constitution, whatever form the Federation may take, it must be a form consistent with the working of responsible government. … 42 That necessarily means a limitation in the power of the House which represents the States. 14
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The Federal Model cont. Isaacs was characteristically blunt in his identification of the problem: “There can be no doubt that the principle of equal powers of the Houses of Legislature is foreign to the principle of responsible government. … We cannot have the two”. … 43 The structure employed for allocation of powers to the Commonwealth and the States is asymmetrical. Commonwealth powers are specified. State powers are not. Subject to a few notable exceptions, Commonwealth powers are concurrent rather than exclusive. So too are State powers. Within the realm of concurrent power, Commonwealth legislation prevails over inconsistent State legislation. Demarcation of legislative powers thus depends entirely upon the meaning attributed by the High Court to the language employed in the Constitution to specify Commonwealth legislative powers. That language is necessarily imprecise, notwithstanding the aspirations of the participants in the Constitutional Conventions. … Moreover, the failure to specify any exclusive State powers means that there is no express constraint upon the meaning that may be attributed to those general words of definition of Commonwealth powers. The asymmetry in the allocation of powers to the Commonwealth and the States lies in the fact that while the Commonwealth is guaranteed a measure of legislative power lying beyond the reach of the States, no comparable guarantee is extended to the States.… 44 [T]he role of political parties and [the] diminish[ed] … role of the Senate… was predicted by Deakin in Adelaide in 1897: “Although our special Senate is to be created nominally to protect State interests and rights, as a matter of fact and history, if we trust to American experience, we can say that State rights will never be more dependent upon the State Councils of Australia than they will be in the House of Representatives; and they will be fought for as earnestly in the House of Representatives as in the States Council … We shall have party government and party contests in which the alliances will be among men of similar opinions, and will be in no way influenced by their residence in one State or another. The guardianship of State interests is so secure under these conditions that their protection in any special way becomes comparatively immaterial.” … … The function envisaged for the Senate of providing the consent of the States to the exercise of Commonwealth legislative powers requires a diffusion of power which is fundamentally at odds with the concentration inherent in responsible government. The Senate is inevitably cast in the role of a house of review rather than a house of the States. Although the control of the exercise of Commonwealth legislative powers, for the purpose of limiting their impact upon the States, may well be a consideration in the conduct of review, it could scarcely be regarded as the predominant consideration. The result is a model that fails to provide an effective limitation upon the powers of the national government.
[1.100]
1. 2.
Notes&Questions
How might the “asymmetry in the allocation of power to the Commonwealth and the States” affect the interpretation of Commonwealth powers? Many of the framers of the Constitution believed that responsible government “will either kill Federation or Federation will kill it”. What is the tension between federalism and responsible government? Was the prediction accurate? If so, which died and which survived? Consider B Galligan, “The Founders’ Design and Intentions Regarding Responsible Government”, in P Weller and D Jaensch (eds), Responsible Government in Australia (Drummond, Melbourne, 1980).
Federalism as a principle of constitutional interpretation [1.110] How we should understand the federal character, or the “federal balance”, of our
Constitution is a recurring question. It has spawned a long list of explanatory concepts. The political scientists speak, for example, of “co-ordinate federalism”, “co-operative federalism”, “concurrent federalism”, “coercive federalism” and “fiscal federalism”. But at the beginning [1.110]
15
Part I: Introduction
of the debate over the meaning and interpretation of the Australian Constitution was the question whether the federation would be understood as deriving its origin from an agreement among (the people of) the constituent States or one based upon the consent of the people of Australia considered as a (undifferentiated) whole. The tension between these two ideas was recognised and articulated by Chief Justice John Marshall in one of the most celebrated decisions of the Supreme Court of the United States.
McCulloch v Maryland [1.120] McCulloch v Maryland 17 US (4 Wheat) 316 (1819) at 402–405 402 … The powers of the General Government, it has been said, are delegated by the States, who alone are truly sovereign, and must be exercised in subordination to the States, who alone possess supreme dominion. 403 It would be difficult to sustain this proposition. The convention which framed the Constitution was indeed elected by the State legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation or pretensions to it. It was reported to the then existing Congress of the United States with a request that it might “be submitted to a convention of delegates, chosen in each State by the people thereof, under the recommendation of its legislature, for their assent and ratification.” This mode of proceeding was adopted, and by the convention, by Congress, and by the State legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively and wisely, on such a subject – by assembling in convention. It is true, they assembled in their several States – and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments. From these conventions the Constitution derives its whole authority. The government proceeds directly from the people; is “ordained and established” in the name of the people, and is declared to be ordained, “in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure 404 the blessings of liberty to themselves and to their posterity.” The assent of the States in their sovereign capacity is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it, and their act was final. It required not the affirmance, and could not be negatived, by the State Governments. The Constitution, when thus adopted, was of complete obligation, and bound the State sovereignties. … For, “in order to form a more perfect union,” it was deemed necessary to change this alliance into an effective Government, possessing great and sovereign powers and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The Government of the Union then … is, 405 emphatically and truly, a Government of the people. In form and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.
[1.130]
1.
16
Notes&Questions
As between “the States” and “the people”, to whom does Marshall CJ ascribe ultimate sovereignty? Does this discount the possibility that “the peoples of the States” might represent the ultimate democratic authority upon which the Constitution is based? Forrest McDonald, States’ Rights and the Union: Imperium in Imperia 1776–1876 (University Press of Kansas, Kansas, 2000), pp 8-9, has claimed that the US Constitution is neither “a compact … among sovereign states … nor a Lockean compact between ruler and ruled, nor even a compact of the whole people among [1.120]
Constitutional Fundamentals
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CHAPTER 1
themselves. It [is] a compact among peoples of different political societies, in their capacities as peoples of the several states. Such a compact was undreamed of in political philosophy.” To what extent is the Australian Constitution a compact among people or peoples? And how much does the fact that it is contained in a statute of the British Parliament complicate the picture? Consider the subtle differences between the following statements. Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1104–1105: [The Constitution] partakes both of the character of an Act of Parliament and of an international agreement made between the people of the several self-governing Australian Colonies, and also between the people of those Colonies collectively and the United Kingdom, for the Preamble recites that “The people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of the Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established.”
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 142: It is therefore, in the circumstances, the manifest duty of this Court to turn its earnest attention to the provisions of the Constitution itself. That instrument is the political compact of the whole of the people of Australia, enacted into binding law by the Imperial Parliament, and it is the chief and special duty of this Court faithfully to expound and give effect to it according to its own terms, finding the intention from the words of the compact, and upholding it throughout precisely as framed.
On the significance of these two cases for the future of Australian federalism, and the difference that subtle variants in the conceptual foundation of the Constitution can make in its interpretation, see Chapters 12 and 14. Sir Harry Gibbs discusses some of the implications in the following extract.
The Decline of Federalism [1.140] H Gibbs, “The Decline of Federalism” (1994) 18 University of Queensland Law Journal 1 at 1–8 (some footnotes omitted) 1 There can be no doubt that the framers of the Australian Constitution intended that it should establish a federal government in the true sense. … The purpose of this paper is to discuss the extent to which that intention has been defeated with the result that the Constitution has progressed, or perhaps one should say degenerated, in the direction of centralisation. … There is of course no academic model to which a federation must conform, but a polity cannot be called federal unless the regional governments – that is, 2 in Australia the States – have powers which the central government is not able to render inoperative and unless the regional governments have the ability to provide themselves with the finances necessary to enable their powers to be exercised. Under the Constitution as it has been interpreted by the High Court, it seems that neither of these conditions exists. If that is so, the reason why Australia remains a federation is not because in legal theory its Constitution is now federal in character, but because in practice the political influence of the States, and perhaps the strength of public opinion, is such that the nation remains a federation for practical purposes. The question whether the States have powers and functions which are independent of the Commonwealth, or which cannot be destroyed or substantially impaired by the exercise of Commonwealth powers, depends on the manner in which the powers conferred on the Commonwealth by the Constitution are interpreted. If the powers of the Commonwealth are capable of indefinite expansion it must follow that the powers of the States are at risk of annihilation. Ever since 1920 the powers of the Commonwealth have been interpreted in a way that attaches no real [1.140]
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Part I: Introduction
The Decline of Federalism cont. significance to the constitutional position of the States. Two strands of theory, in particular, have led to this position. First, there is the principle, enunciated by O’Connor J in the Jumbunna case, and often since applied that: “[W]here it becomes a question of construing words used in conferring a power … on the Commonwealth Parliament, it must always be remembered that 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 in the narrower sense, the Court should … 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. … The view that the words of a Constitution should be given a generous interpretation had been suggested by Marshall CJ in Gibbons v Ogden and has subsequently been accepted by the Privy Council in interpreting the constitutional provisions of former British Colonies (Ong Ah Chuan v Public Prosecutor [1981] AC 648 at 670). The second principle, laid down in the Engineers’ Case, is on its face equally unsurprising. That is, that the words of the Constitution are to be read in their natural sense and “if the text is explicit, the text is conclusive”. In that case the Court did appear to acknowledge that when the text is ambiguous, recourse must be had to the context and scheme of the Constitution but in reaching its decision it gave no weight to the fact that the Constitution was that of a federation and not of a unitary state. As Dixon CJ subsequently pointed out in Melbourne Corporation v Commonwealth the effect of the Engineers’ Case was that a power to legislate with reference to a given subject enables the Parliament of the Commonwealth to make laws which, upon that subject, affect the operation of the States and their agencies. A constitutional power conferred on the Commonwealth will not be read down by reference to an assumption that some specific heads of power were granted or reserved to the States (In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 530). However, the High Court has held that the legislative powers of the Commonwealth are subject to an implied limitation that they cannot be exercised in a manner which would be inconsistent with the continued existence of the States and their capacity to 3 function or which would involve a discriminatory attack upon a State in the exercise of its executive authority. … It was recently said in Australian Capital Television Pty Ltd v Commonwealth that the inference to be drawn from the continuance of the States as independent bodies politic with their own constitutions and representative legislatures is that, subject to a plain intention to the contrary, the powers of the Commonwealth do not extend to interfering in the constitutional and electoral processes of the States. Those implied restrictions on Commonwealth power have not, however, been held to require that any limit should be placed on the powers of the Commonwealth in response to the need to preserve the scope of the legislative powers of the States. Only a grudging and minimal recognition is allowed to the fact that the Constitution is federal in character when the question arises how the words of the Constitution which grant powers to the Commonwealth should be construed. The fact that the Constitution is a federal one has been allowed to play no significant part in determining the meaning and scope of the various powers conferred by s 51 of the Constitution. It may well be that the federal context of the Constitution in itself provides little assistance in deciding upon the scope of some of the provisions of the Constitution. Section 109, for example, which has the effect that a Commonwealth law prevails over a State law to the extent of any inconsistency between them, has been of great importance in strengthening Commonwealth power at the expense of that of the States. It is obviously necessary in any federal constitution that some provision should be made, either expressly or by implication, for the situation in which the laws of the central and regional legislatures conflict. Even if the powers of the Commonwealth Parliament are strictly confined, direct inconsistency with State law can arise. However, the principle formulated by Isaacs J in Clyde Engineering Co v Cowburn and adopted in subsequent cases, that there is inconsistency when the Commonwealth legislature expressly or impliedly evinces an intention to cover the whole field, and a State legislature assumes to enter to any extent on the same field, has been most influential in ensuring the predominance of Commonwealth power at the expense of that of the States. The adoption of that test no doubt indicates that the Courts have favoured a centralist point of view rather than a federal one. Nevertheless, logically it can hardly be said that the fact that the Constitution is federal in character indicates either that the wider test of inconsistency should be adopted or that it should not. 18
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The Decline of Federalism cont. Similarly, it may be said that the federal nature of the Constitution provides no sure guide in deciding whether many of the provisions of s 51 of the Constitution which confer powers on the Commonwealth Parliament should be given a wider or narrower meaning. For example, the fact that Australia is a federation gives no indication of the extent to which the powers conferred on the Commonwealth with reference to “trade and commerce with other countries, and among the States” (s 51(i)), or “foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth” (s 51(xx)) should be given a wider or narrower meaning. On the other hand, it may be that too little attention has been paid to the context of the Constitution, and that generosity of interpretation was carried a little far, in the line of decisions that held that a union can cre- 4 ate an industrial dispute extending beyond the limits of any one State, within s 51(xxxv) of the Constitution, by making a demand on employers in different States, even if an employer on whom the demand is made has no argument with his or her own employees and does not employ any member of the union which made the demand. That question may, however, be no more than academic if, as the Commonwealth claims, and as appears possible, the Commonwealth has power to regulate the conditions of employment of any employees by recourse to the power given by s 51(xxix) of the Constitution. That power, to legislate with regard to “external affairs”, has been given an interpretation “which … proceeds without regard to the context of par (xxix) in s 51 and to the federal character of the Constitution” to repeat the words of Wilson J in Richardson v Forestry Commission. … Under Australian law the Executive can enter into and ratify treaties without the authority or approval of the Parliament. There is no limit to the matters that may be dealt with by a treaty and the Executive is free to enter into an international agreement binding Australia to conduct its internal affairs in a particular manner, even though the Parliament has no power, apart from that given by s 51(xxix) to legislate with regard to such affairs. The result is that the legislative power of the Commonwealth can be expanded by Executive action and the expansion can be wide enough to extend over almost all, if not all, of the matters within State legislative power. The grant of power to the Commonwealth by s 51 becomes quite irrelevant. … 5 … The doctrine that the Commonwealth cannot legislate in a way that is inconsistent with the continued existence of a State becomes rather a mockery if the Commonwealth nevertheless has power to legislate in a way that will enable it if it wishes to render most or all State powers ineffective. It appears no exaggeration to say that the combined effect of s 51(xxix) and s 109 is that the Commonwealth can annihilate State legislative power in virtually every respect. Mr D F Jackson, QC has rightly observed “that in the future the issue between State and Commonwealth Governments is more likely to be whether the Commonwealth power should be exercised, rather than whether it exists. In other words, the resolution of the issue is likely to be by political, rather than by legal, means” (D F Jackson, “Federalism in the Future: The Impact of Recent Developments” (1984) 58 Australian Law Journal 438 at 447). There is another constitutional provision which has enabled the Commonwealth to invade many areas which under the Constitution one would expect to be within the province of the States. That is s 96 which provides that: “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”. The opening words of the section, and the reference to ten years which also appears in s 87 (the Braddon clause) suggests, as Sir Owen Dixon has said, that it may well be that s 96 was conceived by the framers as a transitional power. However, … it is established that a grant of financial assistance and the conditions to which it is subject will be valid although a State is bound to apply the money to a defined purpose which is outside the power of the Commonwealth to effect directly. Thus, although the Commonwealth is not given any express power by the Constitution to deal with such matters as the provision of roads, health, education, housing or legal aid, grants are made to the States to be applied for those purposes subject to very detailed conditions as to the way in which the States should perform their functions. … 6 In actual practice the States raise for themselves less than half of the revenue they need for their own purposes. … On the other hand, the Commonwealth raises more than 75% of all taxes levied in Australia although its expenditure only represents about 50% of all governmental expenditure…. [This] puts the financial relationship between the States and the Commonwealth out of balance. The result is a reduction of accountability, because the Commonwealth raises money although it is not [1.140]
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Part I: Introduction
The Decline of Federalism cont. responsible for the way in which it is spent while the States spend money although they are not responsible for the manner in which it is raised. Another provision which has been interpreted in a way that imposes difficulties for the States in their financial arrangements is s 90 which makes the power of the Commonwealth Parliament to impose duties of customs and excise exclusive. The expression “duties of excise” is one which has no fixed connotation and it has been necessary to attribute some rather artificial meaning to the expression where it appears in s 90. It seems apparent that it was originally intended that there should be a close connection between duties of excise and duties of customs but in a number of High Court cases effect has been given to the view that the section was intended to have some wider economic purpose with the result that the scope of the section, and accordingly the extent of the limitation of the taxing power of the States, has been broadened. … 7 It will be seen that there are grave dangers, in theory, to the survival of a true federal system in Australia and considerable deficiencies in practice, in the working of the system. Unfortunately, the values of federalism are not widely understood. … In the case of a nation, such as Australia, which covers a far flung geographical area, a federal system enables that level of government which ought to be most directly concerned with the ordinary affairs of the people – that is the States – to be close enough to the people to have a true understanding of local feeling and local needs. Although there are those who urge that the Commonwealth would benefit if it had increased powers to control the economy, economists such as Professor Kasper have persuasively argued the superior advantages of competitive federalism (W Kasper, “Making Federalism Flourish”, in Upholding the Constitution, vol 2 (Melbourne: The Samuel Griffith Society, 1993), p 167; W Kasper, “Competitive Federalism, May the Best State Win”, in Restoring the True Republic (St Leonards: Centre for Independent Studies, 1993), p 53). Experience of the management of the economy by the Commonwealth does not necessarily inspire complete confidence in the superior virtues of centralised economic power. Nor, for that matter, does the increased influence of the Commonwealth on such matters formerly managed by the States as education make one believe that it will always be beneficial to give increased powers to Canberra. Whatever views may be held on these matters one argument which seems to me to be quite unanswerable is that there is little or no likelihood that the States will be abolished in the foreseeable future, and that accordingly the federal system for which our Constitution was designed to provide should be made to work effectively and without a costly and inefficient duplication of effort. The nature of the malady is apparent, but it is not so easy to prescribe the remedy. … I have inevitably been reminded of the well known lines of Virgil (Aeneid, VI, 126): “Facilis descensus Averno … Sed revocare gradum, superasque evadere ad auras, Hoc opus, hic labor est. (Easy is the descent to Avernus, but to retrace one’s footsteps, and ascend again to the upper air – that is the labour, that is the toil).” … 8 In the end, the best hope for the survival of federalism in Australia lies in the recognition, by politicians of all parties and at all levels of government, and by the public, of the value, and indeed the necessity, of the maintenance of a real, workable federal system in Australia. … [O]ne can only hope that the weaknesses of the present system will be appreciated and that an effort will be made to make the Constitution work more as it was intended by the framers to do.
[1.150]
1. 2.
3.
20
Notes&Questions
Do you agree that the preconditions for federalism do not exist in Australia today? Which provisions of the Constitution in particular does Sir Harry Gibbs use to exemplify his argument that since 1920 the Constitution has been interpreted in ways which give no real significance to the constitutional position of the States? For recent assessments of the work of the High Court in relation to federalism see L Zines “Changing Attitudes to Federalism and its Purpose”, in R French, G Lindell and C Saunders (eds) Reflections on the Australian Constitution (Federation Press, Sydney, 2003); G Winterton, “The High Court and Federalism: A Centenary Evaluation”, in P Cain (ed), Centenary Essays for the High Court of Australia (LexisNexis Butterworths, [1.150]
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Sydney, 2004), p 197; J Allan and N Aroney, “An Uncommon Court: How the High Court of Australia Has Undermined Australian Federalism” (2008) 30 Sydney Law Review 245. On the challenges that Australian federalism presently faces, and possible reforms, see P Kildea, A Lynch and G Williams (eds), Tomorrow’s Federation: Reforming Australian Government (Federation Press, Sydney, 2012) and G Appleby, N Aroney and T John (eds), The Future of Australian Federalism: Comparative and Interdisciplinary Perspectives (Cambridge University Press, Cambridge, 2012).
Representative and responsible government [1.160] The High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR
520 spoke of representative and responsible government as fundamental to the Australian Constitution.
Lange v ABC [1.170] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 557–559 (some references omitted) Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ: 557 Sections 7 and 24 of the Constitution, read in context, require the members of the Senate and the House of Representatives to be directly chosen at periodic elections by the people of the States and of the Commonwealth respectively. This requirement embraces all that is necessary to effectuate … the free election of representatives at periodic elections. What is involved in the people directly choosing their representatives at periodic elections, however, can be understood only by reference to the system of representative and responsible government to which ss 7 and 24 and other sections of the Constitution give effect. That the Constitution intended to provide for the institutions of representative and responsible government is made clear both by the Convention Debates and by the terms of the Constitution itself. … Section 1 of the Constitution vests the legislative power of the Commonwealth in a Parliament “which shall consist of the Queen, a Senate, and a House of Representatives”. Sections 7 and 24 relevantly provide: 7. The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. … 24. The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators. Section 24 does not expressly refer to elections, but s 25 makes it plain that the House of Representatives is to be directly chosen by the 558 people of the Commonwealth voting at elections. Other provisions of the Constitution ensure that there shall be periodic elections. Thus, under s 13, six years is the longest term that a senator can serve before his or her place becomes vacant. Similarly, by s 28, every House of Representatives is to continue for three years from the first meeting of the House and no longer. Sections 8 and 30 ensure that, in choosing senators and members of the House of Representatives, each elector shall vote only once. The effect of ss 1, 7, 8, 13, 24, 25, 28 and 30 therefore is to ensure that the Parliament of the Commonwealth will be representative of the people of the Commonwealth. Other sections of the Constitution establish a formal relationship between the Executive Government and the Parliament and provide for a system of responsible ministerial government a system of government which, “prior to the establishment of the Commonwealth of Australia in 1901 … had become one of the central characteristics of our polity” (Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 114). Thus, s 6 of the Constitution requires that there be a session of the Parliament at least once in every year, so that 12 months shall not intervene between the last sitting in one session and the first sitting in the next. Section 83 ensures that the legislature controls [1.170]
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Part I: Introduction
Lange v ABC cont. supply. It does so by requiring parliamentary authority for the expenditure by the Executive Government of any fund or sum of money standing to the credit of the Crown in right of the Commonwealth, irrespective of source (Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555 at 572–573, 580–581, 590–591, 597–598). Sections 62 and 64 of the Constitution combine to provide for the executive power of the Commonwealth, which is vested in the Queen and exercisable by the Governor-General, to be exercised “on the initiative and advice” (Theodore v Duncan [1919] AC 696 at 706) of Ministers and limit to three months the period in which a Minister of State may hold office without being or becoming a senator or member of the House of Representatives. Section 49 of the Constitution, in dealing with the powers, privileges and immunities of the Senate and of the House of Representatives, secures the freedom of speech in debate which, in England, historically was a potent instrument by which the House of Commons defended its right to consider and express opinions on the conduct of affairs of State by the Sovereign and the Ministers, advisers and servants of the Crown (see Campbell, “Parliament and the Executive”, in Zines (ed), Commentaries on the Australian Constitution (1977) 88 at 91). Section 49 also provides the source of coercive authority for each 559 chamber of the Parliament to summon witnesses, or to require the production of documents, under pain of punishment for contempt (see R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157). The requirement that the Parliament meet at least annually, the provision for control of supply by the legislature, the requirement that Ministers be members of the legislature, the privilege of freedom of speech in debate, and the power to coerce the provision of information provide the means for enforcing the responsibility of the Executive to the organs of representative government. In his Notes on Australian Federation: Its Nature and Probable Effects (1896), p 17, Sir Samuel Griffith pointed out that the effect of responsible government “is that the actual government of the State is conducted by officers who enjoy the confidence of the people”. That confidence is ultimately expressed or denied by the operation of the electoral process, and the attitudes of electors to the conduct of the Executive may be a significant determinant of the contemporary practice of responsible government (Reid and Forrest, Australia’s Commonwealth Parliament (1989), pp 319, 337–339). Reference should also be made to s 128 which ensures that the Constitution shall not be altered except by a referendum passed by a majority of electors in the States and in those Territories with representation in the House of Representatives, taken together, and by the electors in a majority of States.
[1.180]
Notes&Questions
For discussion of the implications which have been drawn from the notions of representative and responsible government, see Chapter 11. What other freedoms in your view might be required for an effective system of representative and responsible government? Compare J Kirk, “Constitutional Implications from Representative Democracy” (1995) 23 Federal Law Review 37 and J Goldsworthy, “Constitutional Implications Revisited” (2011) 30 University of Queensland Law Journal 9. The constitutional status of responsible government [1.190] Although recent judicial decisions of the High Court have shed considerable light on
the question, the precise constitutional status of responsible government remains a complex and pressing question. Is it mere convention? Is the general principle itself legally entrenched, with its application – the exact principles which emanate from it – determined by convention? Are the principles which emanate from it to be regarded as entrenched constitutional rules? If so, does this apply to those principles which are indisputable and core, or does it apply to all principles, even those which remain uncertain? These are important questions generally. In particular, they are fundamental in the determination of whether any particular breach thereof 22
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is subject to judicial review. Also, is it in fact desirable from a policy perspective that such fundamental principles in our constitutional arrangements should be frozen in the form of constitutional rules, given that they have themselves been a prodigy of flexible adaptation to the evolution of our political arrangements? Will freezing them not hamper the evolution of responsible government in line with political and constitutional developments? Professor George Winterton was of the view that the principles of responsible government, being implied constitutional principles, were indeed enforceable.
Parliament, the Executive and the Governor-General [1.200] G Winterton, Parliament, the Executive and the Governor-General (Melbourne University Press, Melbourne, 1983), pp 1-5 (most footnotes omitted) 1 CONFLICT OF PRINCIPLES The Australian Constitution embodies four great constitutional principles: representative government, federalism, the separation of powers, and responsible government under the Crown. Representative government is common to all democratic polities, but the other three are not and, indeed, coexist in Australia in a state of uneasy equilibrium. Federalism and the legal separation of powers were derived from the Constitution of the United States, whereas responsible government was borrowed from Britain and the federating Australian colonies. As will be seen, much of the uncertainty surrounding federal executive power in Australia stems from the contradictions inherent in the simultaneous operation of the British and the American principles. The constitutional implications of federalism and the separation of powers conflict with those of responsible government in three important respects. A Written constitution and responsible government under the Crown The division of governmental powers involved in the American doctrines requires a written constitution. It would not be practically feasible to divide powers between different political structures (as in federalism) or governmental organs (as in the separation of powers) without a reasonably detailed document allocating the powers among them. There is no inherent inconsistency between responsible government under the Crown and a written constitution, 2 because the written instrument could, in theory, spell out the requirements of responsible monarchical government, as it does those of the American principles. But constitution-makers of the (British) Commonwealth have experienced considerable difficulty in committing to paper the requirements of responsible government, and their efforts have not been marked by conspicuous success. Essentially, the difficulty is that, while the core of the British principle of responsible government is clear, the edges are fuzzy and ill-defined. Clearly, as was demonstrated in 1979 – in March in the United Kingdom and in December in Canada – when the government loses a vote of confidence in the House of Commons it must advise a general election or resign. But as one moves from that core of the principle of responsible government the position becomes steadily less clear. So, for example, it was recently observed that there are at least three reasonably authoritative views regarding a government’s obligations upon defeat in the House of Commons, all of which are “constitutional myths”. Similarly, in “normal times”, when Parliament has granted adequate Supply and the government commands a majority in the lower House of Parliament, the Queen or the Governor-General has no independent discretion and may act only on the governments advice. But is this also the position when things are not running so smoothly, when the government lacks guaranteed Supply and faces a hostile majority in the Senate? Apart from uncertainty regarding the actual content of the conventions of responsible government, the founders faced an additional difficulty in framing written rules about the monarchy: should they prescribe on paper the theory or the practice? A great gulf separates the theory of the British monarchy from its actual operation. Arguably, in theory, the Queen’s powers have almost the same ambit as those claimed by Charles I: it might be argued that she could exercise all the Crown’s common law or statutory powers on her own initiative, without taking or acting on advice (unless a statute provided otherwise), and could veto proposed legislation passed by both Houses. But the real position is very different: all the Queen’s powers are exercisable only on the advice of her Ministers (except, perhaps, [1.200]
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Part I: Introduction
Parliament, the Executive and the Governor-General cont. the so-called “reserve powers” of the Crown), and her power to veto Bills has fallen into disuse, if it still exists at all. In short, the theoretical powers of the Crown must be seen in the light of a history in which the principal events are the beheading of Charles I and the deposition of James II, the growth of parliamentary 3 supremacy and its political corollary, ministerial responsibility to Parliament, and the development of the House of Commons as a truly representative chamber with far greater powers than the House of Lords. The framers of the Australian Constitution were clear that, as far as the monarchy was concerned, they wanted to reproduce in Australia the actual, and not the theoretical, British position. But they were afraid of appearing gauche and uneducated in British eyes, and it was feared that British lawyers would ridicule an attempt to spell out on paper the real position of the Crown in 1900. … So, despite the misgivings of some 18 the framers used language to describe some of the powers of the Crown that even James I might have applauded. They were prepared to do so because, having enshrined responsible government in the Constitution, they believed that no constitutional lawyer could suggest for a moment that the powers conferred on the Governor-General were to be taken literally. … In short, it is seen that, while responsible government under the Crown is compatible with a written constitution – which federalism and the separation of powers require – committing to paper the implications of responsible government is difficult, and prescribing the powers of the Crown requires even greater care. The decision to express the theoretical, rather than the actual position of the 4 Crown may have lightened the draftsmen’s task, but it was a serious and dangerous mistake, which sowed the seeds for future constitutional conflict. The first harvest occurred in 1975 (when the Governor-General dismissed the Government, which was unable to secure Supply from the Senate), but it is unlikely to have been the last. Whereas in the largely unwritten British Constitution the “conventions” restraining the Monarch’s independent discretion have to contend only with other unwritten rules, such as the Royal prerogative, in Australia the principles of responsible government (most of which are not expressed in the Constitution) must compete with powers expressly conferred on the Governor-General. In such a situation, it can be an uphill battle to maintain that the unwritten principles should prevail – as the events of 1975 demonstrated. Thus, in his “Detailed Statement of Decisions” of 11 November 1975, Sir John Kerr wrote: “The Constitution must prevail over any convention because, in determining the question how far the conventions of responsible government have been grafted on to the federal compact, the Constitution itself must in the end control the situation.” But it would be erroneous to overstate the framers’ reticence on the details of responsible government under the Crown. As will be seen, responsible government, even if not clearly expressed in the document, has a constitutional status greater than mere “convention”; it is clearly implied in the Constitution by ss 44(iv), 62, 63 and 64. Of course, the Constitution is generally, but not always not explicit on the details of the institution. For example, it does not state that the government is responsible to Parliament, nor whether responsibility is to the Senate as well as to the House of Representatives, but even here the constitutional lawyer who bears in mind the constitutional environment of the framers, and remembers that the Constitution is a British statute, can find the answer hinted at in ss 53, 57, 62 and 64. The Governor-General’s obligation to act only on advice is inferred much more easily from ss 62 and 64, so it is inaccurate – and misleading indiscriminately to lump together all the elements of responsible government as mere “conventions”. Sir John Kerr, in the passage quoted, was referring to an alleged “convention … that the Senate must never … reject an appropriation bill”; in view of the language of the Constitution, he may have had little choice but to ignore the alleged convention. But the same is not true of the elements of responsible government implied in the Constitution. Like all constitutional implications, they must be applied unless the 5 language of the document is clearly to the contrary. With the greatest respect, Professor Geoffrey Sawer is not correct in asserting that it is “certain” that the High Court would not hold that as a matter of law the Governor-General’s power under s 64 is normally exercisable only on ministerial advice (subject to the possible survival of an emergency “reserve power”, in the Governor-General to act without advice). High Court dicta on similar powers [see Gibbs J in PMA (Victoria v Commonwealth) (1975) 134 CLR 81 at 156; Jacobs J in 24
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Parliament, the Executive and the Governor-General cont. Western Australia v Commonwealth (1975) 134 CLR 201 at 278] suggest a willingness to give constitutional status to some, at least, of the elements of responsible government. Professor Geoffrey Lindell has argued that the position taken by Winterton (above) has been vindicated by developments since then.
Responsible Government and the Australian Constitution [1.210] G Lindell, Responsible Government and the Australian Constitution – Conventions Transformed into Law? (Federation Press, Sydney, 2004), pp 1-7 (footnotes omitted) Scope of this paper: I wish to discuss an aspect of those cases [Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 and Lange v Australian Broadcasting Corporation (1997) 189 CLR 520] which … concerns the effect of the implications drawn by the Court from… the system of responsible government which is also provided for in the Constitution. In particular, the paper focuses on the extent to which the rules of responsible government have now become judicially enforceable. …2 Background: Before 1992 there was clearly no shortage of judicial authority to suggest that responsible government formed part of the Australian Constitution. The view I had taken in the past was that such authority, to the extent that it was not merely rhetorical, went no further than to recognise rather than enforce the rules that governed that concept. I preferred to think that leaving aside the express requirement that Ministers were required to be members of the Parliament in s 64, the Constitution was deliberately structured to make it possible to permit compliance with the rules of responsible government without necessarily requiring such compliance. To the extent that those rules could operate consistently with the Constitution they operated according to their general tenor ie as rules of convention and not lay. My view was that these rules were too vague to operate as rules of law, except perhaps for the basic principle of collective responsibility. I also thought that conventions had the advantage of flexibility which allowed them to evolve and develop without reference to the electors voting at a constitutional referendum … [I]t seems clear that the High Court is now willing to draw implications from provisions in the Constitution that partially recognise the system of representative government known as responsible government. For example, in the Nationwide News case, Deane and Toohey referred to the possibility of deriving implications from “the general doctrines of government which underlie the Constitution and form part of its structure” given the fact that “the doctrine of responsible government can arguably be seen as a (further) main general doctrine underlying the Constitution as a whole” (at 69-705). The other doctrines mentioned were federalism and the separation of judicial power and representative government. There are clear remarks in the unanimous judgment of the High Court in Lange that strongly point to this possibility such as the ample reference made to provisions which either partially recognise responsible government or those which could not be understood without reference to the same. (at 557–559). In addition there are the remarks that begin by stating “Whatever the scope of implications arising from responsible government …” (at 561). Finally, in this 3 connection, it is difficult in principle to distinguish between the ability to draw implications from representative government and those from the particular kind of representative government known as responsible government, at least if my previous approach is not accepted. If this is correct, it would seem to follow that some rules of constitutional convention have now become transformed into rules of law so as to become constitutionally entrenched. (As was also recognised by Professor Zines although he treats the rules of constitutional convention derived from responsible government as legally binding and enforceable only to the extent that they exist for the purposes of furthering representative government: L Zines, The High Court and the Constitution (4th ed, 1997), pp 249-51. … Professor Winterton favoured the legal enforceability of the main features of responsible government even before the Nationwide News and Lange cases.) It should be stated at the outset that this paper is written on the assumption that the issues canvassed in the paper are justiciable [1.210]
25
Part I: Introduction
Responsible Government and the Australian Constitution cont. so as to enable the courts to declare and enforce any conventional rules which should now be seen to be rules of law. It is true that there are dicta in Council Civil Service Unions v Minister for Civil Service suggesting that, despite advances in judicial review, some prerogative powers are not by their very nature susceptible to judicial review such as, for example, the appointment and dismissal of Ministers and the dissolution of Parliament. In my view it is dangerous to think this would now be sufficient to prevent the judicial enforcement of the implications discussed here or that the standing of appropriate litigants to maintain such litigation would not be recognised. In the first place it is possible that the dicta assume that relevant rules in the United Kingdom are based only on constitutional conventions. There have also been a growing number of cases in newer British Commonwealth countries which have treated such issues as justiciable once the rules sought to be declared and enforced have been identified as rules of law. In addition the view expressed by 4 leading commentators to the Joint Select Committee on the Republic Referendum was that the reserve powers and the conventions which regulated their exercise are subject to judicial review, at least to the extent that they exist for the purposes of furthering representative government. It is possible that what may still remain as a residue of non-justiciability concerns the application of the rules of administrative law such as those which deal with procedural fairness and the exercise of a power for an improper purpose and also the validity of elections which ensue as the result of the exercise of the power of the Governor-General to dissolve both Houses. Leaving those matters aside, however, it suffices for present purposes to indicate that it is not fanciful to assume the availability of judicial relief to declare and enforce the legally binding aspects of the rules of responsible government under the Australian Constitution. Meaning and interpretation of responsible government: The possibility of implications being drawn by the High Court from the system of responsible government and the extent to which the rules of responsible government have now become judicially enforceable mean that much will turn on the definition of responsible government and how that concept is judicially interpreted. …[T]here is much to be said for the view [of Professor Winterton] that: “Essentially the difficulty is that, while the core of the British principle of responsible government is clear, the edges are fuzzy and ill-defined.” Putting that difficulty to one side, the essential or core elements of the concept consist in my view of the notion that: 5 (1) The Crown’s representative should act in accordance with the advice of Ministers who are members of the Parliament subject to any exceptions created by the reserve powers enjoyed by the Crown’s representative. (2) Those Ministers must collectively and individually command the confidence of the House of Representatives, although what is left of the notion of individual ministerial responsibility remains somewhat attenuated. This has left a gap or vacuum which has had to be filled by administrative law reforms. There are other ancillary or incidental aspects which also form part of that core definition and these consist of Cabinet solidarity and Cabinet secrecy. The objections to entrenchment to which I referred earlier are not without significance even if the concept is to be recognised as being constitutionally entrenched in the full sense. The objection based on the loss of the dynamic character of conventional rules has been partially met by the High Court’s emphasising that the concept is dynamic and capable of evolving. Thus, in Egan v Willis ((1998) 195 CLR 424 at 451 [41] per Gaudron, Gummow and Hayne and see also similar remarks in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 403 [17] per Gleeson CJ, 460 [212] per Gummow and Hayne JJ) three justices said: “It should not be assumed that the characteristics of a system of responsible government are fixed or that the principles of ministerial responsibility which developed in New South Wales after 1855 necessarily reflected closely those from time to time accepted at Westminster.” I suggest that what was said about New South Wales is equally applicable to the Australian Constitution and the date of its adoption. If that was not the case, the same Constitution would have the effect of freezing into our constitutional arrangements dated understandings of ministerial responsibility. An example of this would be the notion of public servants being seen as only 26
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Responsible Government and the Australian Constitution cont. “accountable to the public through the accountability of ministers and cabinet to parliament”. The potential for that flexibility is further underlined by the remarks of Gleeson CJ when he indicated that 6: “[R]esponsible government is a concept based upon a combination of law, convention, and political practice. The characteristics of responsible government are not immutable” (Re Patterson; Ex parte Taylor at [21]). … Whatever the difficulties, constitutional orthodoxy suggests that the entrenchment should extend to the core or essential aspects of responsible government as they were understood in 1900 – as distinct from the way it operated in its non-essential or accidental aspects at that time. The latter are left to evolve by convention and practice unencumbered by the need to obtain the approval of the electors at a referendum under s 128 of the Constitution. It seems an extreme application of the principles of progressive interpretation to allow the core or essential aspects to operate by reference to the same processes. It is unlikely that the entrenchment of the essential elements of responsible government, as a legally binding part of the Constitution, is conditional and dependent upon their continued operation as rules of mere convention and political practice. It is true that the distinction between essential and non-essential characteristics of constitutional terms is not without its difficulties. Nevertheless, it is one which has been regularly used in the judicial interpretation of constitutional provisions which define the scope of legislative powers, as well as in more recent times, restrictions on those powers. The same approach is likely to be applied to the judicial interpretation of the entrenched part of responsible government. It is possible that the Court may seek to meet the other objection I also outlined earlier based on vagueness by relying on the response of the Court 7 in Lange when it chose to emphasise the need to ground implications in the text and structure of the Constitution. Thus, the whole Court said in that case: “Under the Constitution, the relevant question is not, ‘What is required by representative and responsible government?’ It is, ‘What do the terms and structure of the Constitution prohibit, authorise or require?’” (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567). This could prove to be an additional useful device for rejecting the vague aspects of the doctrine of responsible government …
[1.220]
Notes&Questions
While there are numerous cases in which the High Court has said that responsible government forms part of the Australian Constitution, and there are some significant cases in which the Court has derived implications from the system of representative and responsible government established by the Constitution, are there any cases in which the Court has enforced a particular rule of responsible government, such as the convention that the Governor-General must ordinarily act on the advice of responsible ministers who have the confidence of the Parliament? Professor Nicholas Aroney has argued that there are as yet no such cases.
Law and Convention [1.230] N Aroney, “Law and Convention”, in B Galligan and S Brenton (eds), Constitutional Conventions in Westminster Systems: Controversies, Changes and Challenges (Cambridge University Press, 2015), pp 24-28, 38-40 (references omitted) 24 The modern, technical use of the term “convention” is a creature of the nineteenth century. …. But it was Dicey, drawing on Freeman, who stamped upon the term its current technical sense, when he asserted that the British constitution consists of two kinds of “rules”: first, “law” or legal rules in the “strictest sense”, ie, rules that are enforceable by the courts and, secondly, “conventions, understandings, habits, or practices” which “regulate [the] conduct” of political actors but are not [1.230]
27
Part I: Introduction
Law and Convention cont. judicially enforced and have not been codified into law by legislation … . Dicey’s insistence on the distinction between law and convention, and the criteria by which he distinguished them (ie, enforcement by the courts and legislative codification), provides an indication of the influence of legal positivism on his thought … . The significance he ascribed to the role of convention is, however, also a measure of the extent to which he sought to integrate the historical perspectives of those like Burke, Hume and Freeman, who emphasised the role of custom and tradition in the evolution of British society and government, with the insights of those like Hearn and Bagehot, who had drawn attention to the vital role of conventions in the contemporary operation of the Westminster system … . Synthesising these perspectives, Dicey argued that the term “constitutional law” had to be understood to embrace both “law” (ie, that which is enforceable by the courts) and “convention”, which he also referred to as legally unenforceable “constitutional morality” … . However, the sharp distinction that Dicey proposed … has been the subject of much criticism, usually related to doubts about the theory of law upon which the distinction is based. It is said that law is ultimately no different from convention because both law and convention consist of rules which regulate conduct, and law, like convention, ultimately rests on customs, understandings, mores, and practices of political morality. From this point of view it is argued that conventions can be treated as if they are law. They can be acknowledged and taken into consideration by the courts. They may even “crystalize” into law and be enforced as such by the courts... . An example of legal enforcement remains something of a “holy grail” … . 38 As in Canada, there are no Australian cases in which the specific content of a convention has been enforced as such. Moreover, while there are several cases where the existence of conventions have been regarded as relevant and important considerations in the court’s reasoning, because the High Court of Australia does not have advisory jurisdiction, it has not been asked to opine on the existence and content of a convention in the overtly political manner that has occurred in Canada. Rather, in 39 Australia conventions have come into judicial reasoning in the course of resolving a legal question that arisen for determination … . One the most significant examples of the High Court’s approach to conventions is to be found in the line of decisions known as Freedom of Political Communication cases. In the most authoritative of these, Lange v ABC ((1997) 189 CLR 520), the High Court of Australia unanimously concluded that the Australian Constitution, by virtue of its provision for a system of representative democracy, necessarily implies the existence of a constitutionally enforceable guarantee of freedom of communication in relation to political matters. The main thrust of the reasoning in the case was based upon particular features of the text and structure of the Australian Constitution … . According to the Court, the system of representative democracy that operates under the Constitution consists of two distinguishable structural principles: “representative government” and “responsible government.” Representative government consists of a system of constitutional rules which require that the legislative powers of the Commonwealth are vested in a bicameral Parliament that is directly chosen by the people of the Commonwealth voting in regular elections. Several specific provisions of the Constitution combine to require the operation of such a system as a matter of enforceable constitutional law. On the other hand, according to the Court, the principle of responsible government rests upon a combination of both specific rules contained in the written constitution and the familiar Westminster conventions of parliamentary responsible government practised and recognised generally by Australian political actors. These principles constituted the twin foundations for the inference that the Constitution necessarily implies the existence of a legally enforceable freedom of political communication. Indeed, the doctrine of responsible government played a crucial role in the Court’s reasoning because it supported the extension of the implied freedom to communications, not only concerning the conduct of elected members of Parliament, but also about the performance of Ministers of State in the exercise of their executive powers and responsibilities. But while Lange relied upon the conventions of responsible government as an essential step in its reasoning, the case did not involve the 40 direct enforcement of a particular conventional duty. Nor did it rely upon them as an isolated “system of conventions” but as part of a complete system of government established by the Constitution as a whole. The existence of the written constitution, as setting out a coherent “plan” of government, shaped the entire structure of the reasoning. No 28
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Law and Convention cont. question arose as to a possible inconsistency between a particular constitutional rule of law and a particular constitutional convention; both elements were construed as part of a coherent constitutional scheme. If the case had involved an alleged contradiction between a rule contained in the written constitution and a conventional rule, the Court would have been placed in a situation similar to that which confronted the Canadian Supreme Court in the Patriation reference. Given the way in which the Court distinguished between “representative government” and “responsible government”, it seems the most likely from the reasoning of the Australian High Court that a distinction between law and convention would for these purposes have been maintained. In Egan v Willis, for example, the High Court relied upon the Westminster conventions of collective and individual ministerial responsibility to Parliament to support the conclusion that the upper house of the New South Wales Parliament, just as much as the lower house, has an inherent power to hold Government Ministers to account by requiring them to answer questions and to produce documents, backed up by a capacity to impose sanctions for breach of such requirements such as by temporary expulsion of a member from Parliament. However, in coming to this conclusion, the Court maintained the distinction between “convention and parliamentary practice” on one hand and rules having “legal or constitutional status” on the other, and emphasised that responsible government is an evolving set of practices, not legally enforceable rules. For further background on the decision not to spell out the details of responsible government in the Constitution, particularly in the light of the federal issues associated with the powers of the Senate, see Aroney, The Constitution of a Federal Commonwealth (2009), pp 193-206, 210-214, 237-239.
[1.240]
Notes&Questions
In R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, the Supreme Court of the United Kingdom stated: “[141] It is well established that the courts of law cannot enforce a political convention. … [144] Attempts to enforce political conventions in the courts have failed. … [146] Judges … are neither the parents nor the guardians of political conventions; they are merely observers. As such, they can recognise the operation of a political convention in the context of deciding a legal question …, but they cannot give legal rulings on its operation or scope, because those matters are determined within the political world. … [151] In reaching this conclusion we do not underestimate the importance of constitutional conventions, some of which play a fundamental role in the operation of our constitution. … But the policing of [the] scope and the manner of … operation [of conventions] does not lie within the constitutional remit of the judiciary, which is to protect the rule of law.”
CONSTITUTIONAL GOVERNMENT Separation of powers [1.250] A division of powers can be of two sorts. There can be a separation of powers
according to territory. This is the division of powers which makes a federal system possible. But there can also be a separation of powers. Professor Maurice Vile has provided an authoritative and much quoted account of the history of the idea of the separation of powers and its relationship to constitutionalism. The following extract discloses the variety of political ideas captured by the doctrine. [1.250]
29
Part I: Introduction
Constitutionalism and the Separation of Powers [1.260] M Vile, Constitutionalism and the Separation of Powers (2nd ed, Liberty Fund, Indianapolis, 1998), pp 1-20 (footnotes omitted) 1 … Western institutional theorists have concerned themselves with the problem of ensuring that the exercise of governmental power, which is essential to the realisation of the values of their societies, should be controlled in order that it should not itself be destructive of the values it was intended to promote. The great theme of the advocates of constitutionalism, in contrast either to theorists of utopianism, or of absolutism, of the right or of the left, has been the frank acknowledgment of the role of government in society, linked with the determination to bring that government under control and to place limits on the exercise of its power. Of the theories of government which have attempted to provide a solution to this dilemma, the doctrine of the separation of powers has, in modern times, been the most significant, both intellectually and in 2 terms of its influence upon institutional structures. It stands alongside that other great pillar of Western political thought – the concept of representative government – as the major support for systems of government which are labelled “constitutional”. For even at a time when the doctrine of the separation of powers as a guide to the proper organisation of government is rejected by a great body of opinion, it remains, in some form or other, the most useful tool for the analysis of Western systems of government, and the most effective embodiment of the spirit which lies behind those systems. Such a claim, of course, requires qualification as well as justification. The “doctrine of the separation of powers” is by no means a simple and immediately recognisable, unambiguous set of concepts. On the contrary it represents an area of political thought in which there has been an extraordinary confusion in the definition and use of terms. … 12 A major problem in an approach to the literature on the doctrine of the separation of powers is that few writers define exactly what they mean by the doctrine, what are its essential elements, and how it relates to other ideas. Thus the discussions about its origin are often confused because the exact nature of the claims being made for one thinker or another are not measured against any clear definition. Some kind of preliminary analysis of the doctrine and its elements is therefore necessary before we step into the vast mass of material that history presents to us. The process of definition of a “pure doctrine” of the separation of powers will of necessity have an arbitrary quality, and no doubt other opinions can be put forward as to what constitutes the “essential doctrine”, on the one hand, and what are modifications of, and deviations from, it, on the other. However, no value judgment is intended in putting forward a particular definition, except to say that it is considered the most useful formulation for the purposes we have in mind. It is labelled the “pure doctrine” simply to indicate that it represents a coherent, interrelated set of ideas, with the complicating factors of related theories removed. … 13 A “pure doctrine” of the separation of powers might be formulated in the following way: It is essential for the establishment and maintenance of political liberty that the government be divided into three branches or departments, the legislature, the executive, and the judiciary. To each of these three branches there is a corresponding identifiable function of government, legislative, executive, or judicial. Each branch of the government must be confined to the exercise of its own function and not allowed to encroach upon the functions of the other branches. Furthermore, the persons who compose these three agencies of government must be kept separate and distinct, no individual being allowed to be at the same time a member of more than one branch. In this way each of the branches will be a check to the others and no single group of people will be able to control the machinery of the State. This stark, extreme doctrine we shall then label the “pure doctrine”, and other aspects of the thought of individual writers will be seen as modifications of, or deviations from, it. It is true, of course, that the doctrine has rarely been held in this extreme form, and even more rarely been put into practice, but it does represent a “bench-mark”, or an “ideal-type”, which will enable us to observe the changing development of the historical doctrine, with all its ramifications and modifications, by referring to this constant “pure doctrine”. We shall not go as far as to say that only a thinker who fully subscribes to the above formulation is a “separation of powers theorist”, for this would exclude most of those who have written on the subject and whose intentions were closely in line with the general ethos of the doctrine, but clearly all these elements must be present to some extent for a writer to be considered in this category. Many writers have of course contributed to the development of the theory by evolving one or more elements of it, 30
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Constitutionalism and the Separation of Powers cont. without being separation of powers theorists – indeed, whilst rejecting the doctrine. Thus the idea of the functions of government has been evolved in large part by the theorists who implicitly or explicitly rejected other essential elements of the doctrine. 14 … The first element of the doctrine is the assertion of a division of the agencies of government into three categories: the legislature, the executive, and the judiciary. The earliest versions of the doctrine were, in fact, based upon a two-fold division of government, or at any rate upon a two-fold division of government functions, but since the mid 18th century the threefold division has been generally accepted as the basic necessity for constitutional 15 government. We may not today take the scriptural authority that John Sadler in 1649 propounded as the basis for a threefold division – “And why may not the Sacred Trinity be shadowed out in Bodies Politick, as well as in Naturall?” – but something of a mystical quality seems still to surround this method of organising the agencies of government. In the 18th century the idea of a balance or equilibrium in the system of government which depended upon the ability of any two of King, Lords, and Commons being able to prevent the third from exceeding the proper limits of its power, provided a basis for the idea, at any rate, of an odd number, rather than an even number, of governmental agencies, but today such a justification seems to have disappeared entirely, and in fact it is often difficult to force the manifold agencies of a modern system of government into these three categories. Nevertheless this division does reflect important, continuing elements in liberal democratic theory. The growth of three separate branches of the government system in Britain reflected in part the needs of the division of labour and specialisation, and partly the demand for different sets of values to be embodied in the procedures of the different agencies, and in the representation of varying interests in the separate branches. This aspect of the doctrine, although usually assumed by political theorists rather than explicitly developed, is clearly central to the whole pattern of Western constitutionalism. The diffusion of authority among different centres of decision-making is the antithesis of totalitarianism or absolutism. Thus in the totalitarian State every aspect of the State machine is seen merely as an extension of the party apparatus, and subordinate to it. A continuous effort has to be made to prevent any division of the machine from developing its own interest, or from creating a degree of autonomy in the taking of decisions. In practice the pressures which operate against this attempt to maintain a single monolithic structure are too strong, for the price in inefficiency which has to be paid is too high, and of necessity rival centres emerge in the bureaucracy and in industry or else- 16 where. But the “ideal” of the totalitarian state is that of a single all-embracing agency of government. The “separation of agencies”, therefore, is an essential element in a theory which assumes that the government must be checked internally by the creation of autonomous centres of power that will develop an institutional interest. Without the other elements of the doctrine of the separation of powers being present we might still expect some limitation on the ability of a single group to dominate the government if separate agencies are established. Even if the personnel of the agencies overlap, powerful influences may arise to create divergences of interest within the government. Differing procedures introduce differing values and different restraints; the emergence of an “institutional interest”, the development of professionalism, the influence of colleagues and traditions, all provide the possibility, at least, of internal checks. Separate agencies, composed of distinct bodies of men even where functions are shared can be made representative of different groups in the community, and so, as with bicameral legislatures, provide the basis of a check upon the activities of each of them. The second element in the doctrine is the assertion that there are three specific “functions” of government. Unlike the first element, which recommends that there should be three branches of government, this second part of the doctrine asserts a sociological truth or “law”, that there are in all governmental situations three necessary functions to be performed, whether or not they are in fact all performed by one person or group, or whether there is a division of these functions among two or more agencies of government. All government acts, it is claimed can be classified as an exercise of the legislative, executive, or judicial functions. The recommendation then follows that each of these functions should be entrusted solely to the appropriate, or “proper”, branch of the government. This view of the “functions” of government is extremely abstract, and some of the attempts to justify this threefold division have reached a very high degree of abstraction indeed. It may be distinguished from the very different view of the functions of government which enumerates them [1.260]
31
Part I: Introduction
Constitutionalism and the Separation of Powers cont. as, for example, the duty of keeping the peace, of building roads, or of providing for defence. These we might label the “tasks” of government in order to distinguish them from the more abstract notion of function. In the period before Locke and Montesquieu firmly established this abstract view of the functions of government there were two main 17 streams of thought, in one of which the word “power” was used to describe the function of legislating, or executing the law, and in the other a more practical view was taken of the multiplicity of government acts by dividing up the “attributes of sovereignty” into six, seven or more categories, which included, as well as making laws, such tasks as the control of the coinage, or the appointment of standard weights and measures. The triumph of the more abstract conception of the “powers” or functions of government in the 18th century, and its later development and ramifications, was of great importance for the way in which later writers approached the problems of government structure. In the 20th century this view of the nature of the functions of government has been subjected to severely critical analysis, but the vocabulary of the doctrine still dominates our everyday usage and our way of thinking about the nature of the operations of government. The third element in the doctrine, and the one which sets the separation of powers theorists apart from those who subscribe to the general themes set out above but are not themselves advocates of the separation of powers, is what, for want of a better phrase, we shall describe as the “separation of persons”. This is the recommendation that the three branches of government shall be composed of quite separate and distinct groups of people, with no overlapping membership. It is perfectly possible to envisage distinct agencies of government exercising separate functions, but manned by the same persons; the pure doctrine here argues, however, that separation of agencies and functions is not enough. These functions must be separated in distinct hands if freedom is to be assured. This is the most dramatic characteristic of the pure doctrine, and is often in a loose way equated with the separation of powers. The final element in the doctrine is the idea that if the recommendations with regard to agencies, functions and persons are followed then each branch of the government will act as a check to the exercise of arbitrary power by the others, and that each branch, because it is restricted to the exercise of its own function will be unable to exercise an undue control or influence over the others. Thus there will be a check to the exercise of the power of government over “the people” because attempts by one branch to exercise an undue degree of power will be bound to fail. This is, of course, the whole aim and purpose of the doctrine, but it is just here that the greatest theoretical difficulty is to be found; and as a result what we have 18 termed the pure doctrine has therefore been modified by combining it with some rather different doctrine to produce a complex amalgam of ideas about the limitations to be placed upon government authorities. The pure doctrine as we have described it embodies what might be called a “negative” approach to the checking of the power of the agencies of government. The mere existence of several autonomous decision-taking bodies with specific functions is considered to be a sufficient brake upon the concentration of power. Nothing more is needed. They do not actively exercise checks upon each other, for to do so would be to “interfere” in the functions of another branch. However, the theory does not indicate how an agency, or the group of persons who wields its authority, are to be restrained if they do attempt to exercise power improperly by encroaching upon the functions of another branch. The inadequacy of the controls which this negative approach to the checking of arbitrary rule provides, leads on to the adaptation of other ideas to complement the doctrine of the separation of powers and so to modify it. The most important of these modifications lies in the amalgamation of the doctrine with the theory of mixed government, or with its later form, the theory of checks and balances. The connections between these theories will be examined more fully in the ensuing chapters; from an analytical point of view the main consideration is that these theories were used to import the idea of a set of positive checks to the exercise of power into the doctrine of the separation of powers. That is to say that each branch was given the power to exercise a degree of direct control over the others by authorising it to play a part, although only a limited part, in the exercise of the other’s functions. Thus the executive branch was given a veto over power of legislation, or the legislative branch was given the power of impeachment. The important point is that this power to “interfere” was only a limited one, so that the basic idea of a division of functions remained, modified by the view that each of the branches could exercise some authority in the field of all three functions. This is the amalgam of the doctrine of the 32
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Constitutionalism and the Separation of Powers cont. separation of powers with the theory of checks and balances which formed the basis of the United States Constitution. Related to this, and to its predecessor in time, is an amalgam of the doctrine of the separation of powers with the theory of mixed government to produce a partial separation of functions. That is to say that one function, the legislative, was to be shared, but other functions were to be kept 19 strictly separate. This was a basic element in 18th-century English constitutionalism, the theory of balanced government. These modifications of the doctrine have of course been much more influential than the doctrine in its pure form. … Two further concepts must be mentioned which have not figured to any great extent in the literature on the separation of powers, but whose relationship to the doctrine is of great importance. The first, an extremely ancient concept, is the idea of procedure as a check to the exercise of power. The belief that “due process” is an essential part of constitutional government is of great antiquity, and it runs parallel with ideas of mixed government and the separation of powers, but has relatively rarely been explicitly linked with 20 those ideas and made an integral part of those theories. The second notion, a much more modern one, is the idea of process in government. This term, although used in different ways, indicates an awareness that government and politics do not consist in the automatic operation of formal procedures, but that there is a whole complex of activities around these procedures which determines the exact way in which they will be operated, sometimes in fact bringing about through the medium of the procedure exactly the reverse of what the procedure was intended to achieve. The concern of political studies with the role which political parties and groups play in the processes of government makes it impossible any longer to discuss a theory like that of the separation of powers purely in terms of the more formal, legal institutions of government. If the theory has anything to offer it must be able to cope with the complexities of “politics” as well as the structure of governments. The long history of the doctrine of the separation of powers reflects the developing aspirations of men over the centuries for a system of government in which the exercise of governmental power is subject to control. It illustrates how this basic aspiration towards limited government has had to be modified and adapted to changing circumstances and needs. It offers a rich mass of material, of human thought and experience, on a subject which remains today a matter of vital importance. To follow the course of this history should be of interest in itself, but it is also an essential step towards the understanding of the ideas of the past which have helped to shape our own, and towards the reformulation of these ideas into a more coherent theoretical approach to the nature of modern constitutional government.
[1.270]
Notes&Questions
1.
It is often claimed that the principle of separation of powers is embodied in the Australian Constitution. But in the light of Vile’s discussion, what directly follows from this assertion? On this point see J Finnis, “Separation of Powers in the Australian Constitution: Some Preliminary Considerations” (1968) 3 Adelaide Law Review 159.
2.
Is there a separation between legislative and executive powers or functions in Australia? Can there be such a separation under a system of responsible government? See Winterton, Parliament, the Executive and the Governor-General (1983), pp 64-71 and G Winterton, “The Relationship between Commonwealth Legislative and Executive Power” (2004) 25 Adelaide Law Review 21.
3.
Distinguish between (1) arguments for the value of the separation of powers based on restricting the possibility of tyranny (eg, Madison, Federalist No 47, (2) arguments based on the legitimacy of each branch in exercising particular powers and (3) arguments based on institutional competence (the expertise or “knowledge” of each branch). In considering the question of which branch of government has the [1.270]
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Part I: Introduction
institutional competence to decide which issues, note the following remarks of N Barber, “Prelude to the Separation of Powers” (2001) 60 Cambridge Law Journal 59 at 72: Separation of powers encourages us to consider various interconnected structural factors that affect the competency of institutions in the performance of their tasks. First, the composition and skills of an institution must be examined: the knowledge and experience of the actors within it. Secondly, the scope of the institution’s informationgathering powers may be of interest; some bodies are better than others at gathering different types of information. Thirdly, the manner of the institution’s decision-making process may be significant; some issues may lend themselves well to expert decisionmaking, others will be better allocated to amateur processes which have the virtues of openness and inclusivity. This point leads on to a fourth consideration: the vulnerability of the institution to outside pressures. Whether this is considered an advantage or a danger will depend both on the particular issue before the decision-maker and on our understanding of the nature and importance of citizens’ participation in decision-making.
4.
Is there a tension between the modern regulatory state and the principle of the separation of powers? For a recent restatement of the argument that the separation of powers is the most fundamental safeguard for the preservation of liberty, see S Ratnapala, “Separation of powers: Cornerstone of liberty under law”, in S Ratnapala and G A Moens (eds), Jurisprudence of Liberty (2nd ed, LexisNexis, Sydney, 2011). Just which understanding of the separation of powers doctrine is in place in the Australian Constitution? Sir Anthony Mason has discussed this point.
A New Perspective on Separation of Powers [1.280] A Mason, “A New Perspective on Separation of Powers” (1996) 82 “Canberra Bulletin of Public Administration” 1 at 2–8 (some footnotes omitted) 2 The lesson of history is that the separation of powers doctrine serves a valuable purpose in providing safeguards against the emergence of arbitrary or totalitarian power. The lesson of experience is that the division of powers is artificial and confusing because the three powers of government do not lend themselves to definition in a way that leads readily to a classification of functions. The difficulty of precise definition arises from the impossibility of defining each of the three powers in a way that reveals them as mutually exclusive concepts. As well as legislators, judges make law, if only in a minor way. The Executive also makes law pursuant to statutory authority. Judges and courts, other than federal courts, exercise administrative functions. Legislatures convict and punish for contempt. And administrators and administrative tribunals determine a range of disputes. This problem, arising from the inherent absence of mutual exclusivity in the three powers, has become more acute as the processes of government have become more complex. A specialist tribunal, such as the Australian Broadcasting Authority, which is primarily an administrative authority, may be authorised to issue prescriptive rulings and to conduct hearings in relation to alleged violation of conditions of licences or prescriptive codes of conduct. In the interests of efficiency, good administration and informed decision-making a combination of functions may be highly desirable. Even in the conduct of hearings, particularly in relation to specialist and technical subjects, much is to be gained from the strong participation of experts who have a mastery of those subjects. In the light of these problems, a purposive functional approach to the separation of powers provided for by the Australian Constitution has much to commend it. The doctrine should operate to maintain and enhance the system of representative and responsible government brought into existence by the Constitution and to ensure the maintenance of the rule of law by an independent judiciary whose responsibility it is to determine justiciable controversies. Apart from creating a federal system under the Crown and providing for a separation of powers, the principal objects of the Constitution were to provide for a system of representative and responsible government and the maintenance of the rule of law by an independent judiciary. 34
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A New Perspective on Separation of Powers cont. The incorporation of the separation doctrine in the Australian Constitution The framers of the Australian Constitution, without perhaps perceiving precisely what they were doing or the difficulties inherent in the exercise, adopted the separation framework contained in the United States Constitution. However, they departed from that framework by providing for responsible government according to the Westminster model, thereby compromising the separation of legislative and executive powers. It is likely that the Convention delegates did not appreciate that there was great difficulty in classifying governmental functions according to the tripartite division demanded by the separation doctrine. Their ignorance in this respect may have been due to the fact that in Great Britain, owing to the supremacy of the legislative power, there had been no occasion for the courts to distinguish between the functions (Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901), p 720). Likewise, the framers of the Constitution did not perceive that a strict separation of powers might, on top of the federal distribution of powers, result in an unacceptable fragmentation of the powers of government. Such a fragmentation could lead to weak inefficient government, a complaint sometimes voiced in the United States. Contrast what actually happened in Australia during the Second World War when under the National Security Act 1939 (Cth) the Executive made wide-ranging regulations for the government of the country in wartime. … 8 Notwithstanding our contradictory approach to the separation of powers, stemming from our treatment of it as a classification of functions, closer attention to the doctrine might enhance the role and standing of Parliament. At the same time, closer attention to the purposes which the separation of judicial power serves may throw light on what is legitimate and permissible in terms of executive functions undertaken by courts and judges. The separation doctrine will protect individual legal process rights and, operating as a guide or influence, it can play a useful part in shaping public law principles and the role of the courts. Yet, the very abstraction of the concepts involved in the doctrine which are elements in the doctrine, will continue to create problems for judges and lawyers whose task is to expound the constitution.
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Notes&Questions
This article recommends a “purposive functional approach to the separation of powers provided for by the Australian Constitution”. What are the purposes of the doctrine? If judges adopt such an approach, what objective criteria might they apply? The following article by Professor Peter Gerangelos addresses this question, as well as examining the dichotomy between formalist and functionalist approaches to the separation of powers doctrine.
Interpretational Methodology in Separation of Powers Jurisprudence [1.300] P A Gerangelos “Interpretational Methodology in Separation of Powers Jurisprudence: The Formalist/Functionalist Debate” (2005) 8(1) Constitutional Law and Policy Review 1 at 3–20 2 … Formalism: The fundamental tenet of the formalist position is that the nature of each branch can be defined with sufficient clarity and mutual exclusivity to enable the setting up of a rigid demarcation between the three branches … This reinforces the separation of personnel and functions, and the maintenance of the institutional independence of the branches. More moderate versions acknowledge the difficulty in providing a definition attaining complete mutual exclusivity and make allowance for a degree of fluidity at the edges. Nevertheless, a core of meaning is thought to exist and is regarded as being capable of being defined conceptually – although history, custom, usage and tradition play a role and each function so defined is considered capable of being hermetically sealed off from the others. Any act of any of the branches will be declared unconstitutional if it usurps, or even in a minor way trespasses into, the functions belonging to another branch. However, in those hard cases where the breach is minor, merely technical and justifiable on public policy grounds such as the efficient [1.300]
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Part I: Introduction
Interpretational Methodology in Separation of Powers Jurisprudence cont. operation of government, this can become an issue of some nicety … In Australia, the Boilermakers’ principle that Ch III courts cannot be 3 vested with non-judicial power unless it is incidental to judicial power, and the judicial reasoning upon which it was based, remains a classic example of the formalist approach. Judicial and academic criticism of the principle as unnecessary, inconvenient and one which creates inefficiencies in the functioning of government would not, under a formalist approach, ameliorate the strictness with which the doctrine is applied. For the majority in that case, “[t]he basal reason why such a combination is constitutionally inadmissible is that Chap III does not allow powers which are foreign to the judicial power to be attached to the courts created by or under that chapter for the exercise of the judicial power of the Commonwealth” (R v Kirby; Ex parte Boilermakers’ Society of Australia at 288) … It is clear that it matters not what the practical consequences may be in any particular instance so long as the structural and functional boundaries are maintained. Any balancing of the benefits achieved in the instant case on public policy or efficiency grounds, against the seriousness of what amounts to a breach of the doctrine, remains anathema to the formalist. Formalism, however, cannot be entirely dismissed as mere pedantry. In the context of the separation of powers doctrine, the method may be grounded in the rationale that only a strictly applied separation can uphold its underlying values; that is, the maintenance of liberal, representative government, an independent judiciary, the rule of law and the civil liberties benefits which flow in their train. If the rigours of this approach are ameliorated, even for the best of policy reasons, these values will be threatened by the gradual yet inexorable erosion of the essential boundaries, even though this may not be apparent in a particular case. Therefore, in the hands of its more enlightened exponents, there is a recognised purposive element to the rigours of formalism. Scalia J, writing the opinion of the Court in Plaut v Spendthrift Farm Inc (1995) 514 US 211 at 239–240) stated that: “In its major features it is a prophylactic device, establishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict … Separation of powers, a distinctively American political doctrine, profits from the advice authored by a distinctively American poet: good fences make good neighbours.” Th[is] … adds a purposive element to formalism which redeems its otherwise unyielding and artificial rigidity … It is a creeping tyranny, a “death by a thousand cuts” to liberal representative government, which the formalist fears…. While this approach may result in unfortunate results in the instant case, the fear of a piecemeal erosion of the separation of powers doctrine and its rationale should not be underestimated. This purposive element comes more to the fore in the US, given the indisputably central place given to the separation of powers doctrine in the whole constitutional settlement. In light of the more ambiguous position of the separation of powers doctrine in the Commonwealth Constitution, this purposive underpinning may stand on less certain ground … Functionalism: All variants [of functionalism], however, eschew formalism’s maintenance of the rigid division of branches based on precise conceptual definitions, seeking rather to apply the separation of powers doctrine by taking into account factors external to purely conceptual analysis. Thus, in any particular instance … [the formalist’s concerns] would be outweighed by public policy factors, efficiency and the maintenance of good government. The issue for 4 functionalism is the degree of liberality which should be adopted in applying the separation of powers doctrine. It is sufficient for present purposes to note the two main variants which have emerged. The “internal functionalist approach” [which is the mainstream approach] will not regard as unconstitutional an act of one branch which does not fall within the scope of its own branch power unless “it is found to reach some unspecified level of intensity” whereby it “undermine[s] another branch’s performance of its essential function” and allows for the accretion of excessive power to the usurping branch … Classic illustrations … can be found in the majority reasoning of the US Supreme Court in Morrison v Olson (1988) 487 US 654 and Mistretta v United States (1989) 488 US 361 … The High Court’s jurisprudence reveals a flexible, eclectic approach, combining elements of pragmatism, public policy considerations, tradition and history with the more strictly formalist legal analysis, as exemplified by Boilermakers, based on the text of the Constitution, its structure and its resemblance to the US Constitution. Given the interplay of these various factors, it is not possible, nor necessarily desirable, to attempt to locate the High Court’s jurisprudence in either a formalist or functionalist “school”, although this very 36
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Interpretational Methodology in Separation of Powers Jurisprudence cont. eclecticism tells against the advocacy of a uniform formalist position … While Boilermakers’ exerted a strong jurisprudential influence in the direction of formalism, at least with respect to judicial power (a tendency which is still evident, (eg Re Wakim; Ex parte McNally (1999) 198 CLR 511)) the degree (some would say excess) of formalism evident in that case was in many respects innovative … 5 … [Even the] strictly formalist approach to the Boilermakers’ principle can be impugned: [As stated by Professor Zines] The conclusion the court arrived at cannot be reached by mere reflection on the distribution of powers in the first three chapters. One is led inevitably to policy or analogy. British and colonial history leads to a different conclusion. The United States analogy was seen, particularly by the High Court, as the appropriate one (but without an extensive examination of the working of that system and its use of legislative courts). Yet in relation to the legislative and executive power, British history, principles of responsible government and the needs of effective government have been treated as overriding what some of the judges believed to be the proper analytical interpretation of the text. What is therefore at issue and what is at the root of the judgments in the Boilermakers Case is the question, what desirable arrangements of power in the Commonwealth’s sphere are consistent with the text. Professor George Winterton has similarly adopted a critical position with respect to the formalism of Boilermakers’: “Clearly, any attempt to enforce a rigid separation of governmental functions or powers flies in the face of reality and must fail”. 6 … The broader application of a purposive functional approach was supported by Sir Anthony Mason in the abovementioned article, arguing that “a purposive functional approach to the separation of powers provided by the Australian Constitution has much to commend it”. … He noted … the “difficulty of precise definition [which] arises from the impossibility of defining each of the three powers in a way that reveals them as mutually exclusive concepts”. Moreover, “[t]his problem has become more acute as the processes of government have become more complex”. Even though this debate has been fuelled by the degree of formalism evident in Boilermakers’, that is not to deny that it may also have been part of the broader movement away from formalism … Writing in 1997, Zines noted: “In many areas of constitutional law there can be discerned a rejection of technical formulae or criteria, a more open application of policy considerations, more examination of historical material, occasional balancing of conflicting social interests and a more general denunciation of ‘form’ as against ‘substance’.” … 7 … The limitations of the formalist/functionalist dichotomy: … Formalism, as well as functionalism, can be purposive in its own way, making the determination of which is the most appropriate a vexed one. This recognition of a purposive element to formalism is indicative that absolute reliance on the text alone, that is, an uncompromising textual formalism as a basis for defining separation of powers principles, appears to be on the wane. It remains the view of the writer that the flexible, pragmatic approach to these questions as exhibited by Zines, Winterton and Mason, and the eclectic position of the High Court, reflects more accurately the relatively tentative position of the separation of powers doctrine in the Commonwealth Constitution compared with the US. This is not to say that the writer espouses a functionalist position universally; rather that the formalism/functionalism divide is inadequate alone to resolve such a multi-dimensional issue, particularly in Australia. At best, it can be said that each approach contains useful elements which can be used with discrimination across issues. The writer, however, does share the fears of the formalists of a piecemeal and inexorable erosion of the protections afforded by the separation of powers doctrine if a functionalist approach is applied too liberally, at least where core functions (especially judicial) are concerned. To this extent, there may be a very useful role for a purposive formalist approach in relation to those branch functions which are indisputably core. Beyond these, however, where precise lines of demarcation remain vague, a more purposive functional approach is certainly warranted. This may be perceived to be too nice a position, but it does provide some basis for a reasonable accommodation between the two schools … 8 … [Mason, for example,] acknowledged the possibility of locating some definitional core to judicial functions, thus meeting to some degree the definitional imperatives arising from the legal entrenchment of the separation of powers doctrine. “Some functions are inescapably exercises of judicial power”, he conceded … Some reconciliation may therefore be possible with the formalists at least at the level of core branch functions … [1.300]
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Part I: Introduction
Interpretational Methodology in Separation of Powers Jurisprudence cont. Purposive nature of the separation of powers doctrine: Although a trite observation, at the broadest level the separation of powers doctrine in all its myriad forms and variations is purposive in nature … [T]he division of power which the doctrine advocates is at its core purposive. This purposive core must inform even the formalist approach to separation of powers jurisprudence. After all, the definition of the “functions” of the respective branches emerged and evolved from the experience of government, not from an exclusively theoretical, abstract consideration of their essence or nature. Nevertheless, some degree of abstract conceptual analysis becomes unavoidable for constitutional lawyers when the doctrine is entrenched in a written constitution and thus brought into the sphere of legal rules. It is essential if courts are to be able to adjudicate on questions of interbranch interference and usurpation … 9 … The fact that the doctrine itself is clearly purposive, and normative, relegates the dispute between formalism and functionalism to a narrower sphere of relevance: the determination of those more precise legal principles and constitutional limitations which regulate the interbranch relationship in light of the purposes which the doctrine, entrenched in a written constitution, is perceived as fostering in any particular polity … Clearly, the doctrine must operate in the context of the other constitutional principles which were incorporated in the Constitution, most notably representative and responsible government. Mason put it succinctly when he stated that the role of the separation of powers doctrine is “to maintain and enhance the system of representative and responsible government brought into existence by the Constitution and to ensure the maintenance of the rule of law by an independent judiciary whose responsibility it is to determine justiciable controversies” … Moreover, given the passive role of the judicial branch and its more vulnerable position vis-a-vis the legislature, a stricter separation of the judicial from the non-judicial branches would be consistent with the doctrine’s purposes as stated above; and, to that extent, the high formalism of Boilermakers’ is capable of at least 10 some justification. Indeed, if the purpose of the doctrine is to protect judicial independence and the rule of law, which is indisputable, the formalist line is at least respectable … Is the separation of judicial power a special case? Nevertheless, the question of the separation of judicial power cannot escape these broader difficulties [with formalism]. … First, a legal separation of judicial power was not part of the British inheritance, an inheritance which did not in any event place much store by written constitutions, with their accompanying legalism and rigidities. The prevailing influence from that quarter was the maintenance of judicial independence primarily in terms of institutional independence: that is, the emphasis was on the maintenance of judicial independence to interpret and apply the common law “by the protection of tenure and remuneration (afforded statutory protection eventually in the Act of Settlement 1701 in 1701) as opposed to the protection of judicial power in a functional sense.” …12 Definition and the formalist approach: The major weakness in the formalist approach … is the difficulty in providing complete and mutually exclusive definitions of the functions of each of the branches on the basis of conceptual analysis. If this cannot be achieved, at least at some fundamental level, the formalist approach of strict enforcement of the separation of powers doctrine is seriously undermined. Leading commentators, such as Mason, regard this as “impossible”, at least in a comprehensive way. Zines made the point that “there is no clear warrant for the view that all functions can be subsumed under the categories ‘legislative’, ‘executive’ and ‘judicial’”. Winterton noted that any attempted enforcement of a rigid separation of the functions or powers of government “flies in the face of reality and must fail”, referring to similar opinions expressed by numerous justices, and indeed quoting even from the majority in Boilermakers’ that it was “absurd to speak as if the division of powers meant that the three organs of government were invested with separate powers which in all respects were mutually exclusive.” … While the accuracy of the above conclusions cannot be denied, they encounter one significant difficulty when it has been authoritatively held that the separation of powers doctrine is legally entrenched and must be applied strictly, as it has been in Australia (especially in relation to judicial power). This “impossibility” must somehow be reconciled with the imperative towards some form of workable, mutually exclusive (at least at some level) definition of branch functions. It is a difficulty which is inevitable in the doctrine’s “transition from tenet of political philosophy to legal rule”. … Formalist judgments such as Boilermakers’ and Plaut were based on the premise that some enforceable boundary was achievable, at least at some level, and was indeed a natural consequence of 38
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Interpretational Methodology in Separation of Powers Jurisprudence cont. the entrenchment of the doctrine. As Sawer pointed out, the effect of Boilermakers’ was to give meaning to the tripartite structure of the Constitution such that it “must in general be regarded not as a convenience of drafting nor as directory, but as a series of mandatory propositions implying negatives”. For these “mandatory propositions implying negatives” to be enforced, some form of distinguishing definition must be given to each of the branches (at least at some level); even if one were to reject the uncompromising 13 formalism of Boilermakers’. This of course does not preclude the recognition of exceptions, as has in fact occurred. In the view of the writer, this imperative may be met if indisputably core functions belonging to each of the branches can be located and precisely defined. … If this can be achieved, it will provide the minimum requirements for the enforcement of the separation of powers doctrine, as legal rule, while due recognition to be given to the “impossibility” of a comprehensive, mutually exclusive definition covering all possible functions. This, of course, will mean that a purposive formalist approach will be possible at the level of core functions, while purposive functionalist considerations may (and should) apply beyond this level. The critical question remains: how are these core functions to be identified? Towards a resolution … Moderate functionalists would concur with this proposition in light of their acknowledgment that there may be some branch functions which are so fundamental that to make allowance for interbranch intermingling of functions where these are concerned would undermine the integrity of branch power. A strict formalist approach, however, is not entirely consistent with the uncertainties surrounding the intentions (or lack thereof) to entrench the doctrine as a legal rule in the Commonwealth Constitution; nor does it sufficiently take into account the difficulties in providing completely mutually exclusive definitions of branch power. Any approach which is adopted must be sufficiently flexible in order to be consistent with the history, tradition and the (at times countervailing) British constitutional principles which found their way into the Constitution; and with the abovementioned uncertainties. This may be unsatisfactory to formalists concerned with the piecemeal erosion of the protections that can only be afforded by strict separation. However, if there is an uncertain intention in the first place to entrench the separation of powers doctrine in the Constitution, much of the justification for the purposive formalist position melts away … On the other hand, the problem with functionalism still remains that of providing sufficiently objective criteria by which to determine the limits to be imposed on the intermingling of functions which it allows. The question of which interpretive technique is preferable depends, to a large extent, on the precise elements of branch power under consideration. It is already the case that functionalist considerations are far more influential in defining the precise relationship between legislative and executive power … as compared with those pertaining to that between judicial and non-judicial power, where a (purposive) formalist position can be more easily accommodated. While formalism can be easily reconciled with attempts to define core branch functions, functionalism can only be so reconciled if it can be established that the alleged usurpation or interference with the core functions so defined will, in all circumstances, constitute so serious a threat to the integrity of branch power that it must not be allowed. To achieve such a reconciliation [it must be determined] whether it is possible at all to isolate certain branch functions as core or fundamental … so that their absolute protection without exception is supported whether a formalist or functionalist approach is adopted. 14 The identification of fundamental elements of branch power: A very useful starting point lies in Zines’s observation that in order to come to terms with these definitional imperatives the tendency of the High Court is to proceed by way of identifying what is a “typical” function of each of the powers, while at the same time acknowledging that these typical functions may not necessarily describe all functions exercisable by each branch. This attempt to locate the typical constitutes some movement towards establishing at least a minimum degree of mutual exclusivity in definition. … The definition of the judicial function variously attempted by the High Court “emphasises” the making of a binding and authoritative determination about rights in a legal controversy between parties, such determination having the “quality” of “conclusiveness”. The typical or usual nature of legislative power, by contrast, is that which is concerned with “the laying down of rules of some degree of generality directing the behaviour of persons for the future”. Also contrasted is the exercise of executive or administrative discretion as it is “primarily” concerned with future rights and duties. In relation to the executive [1.300]
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Interpretational Methodology in Separation of Powers Jurisprudence cont. function to execute and maintain the Constitution and the laws of the Commonwealth, “it will be necessary to make determinations of existing rights and duties” and “at times a ‘controversy’ may be involved and administrative proceedings may be provided so that the parties may be heard”. However, such a determination will differ from judicial power to the extent that it lacks that critical element of finality, the “quality of ‘conclusiveness’” which belongs exclusively to it …. Zines’ concludes: “[I]n these matters the courts have been guided largely by history, the values involved in the separation of powers and by social policy; as well as by strict analysis.” … It therefore seems possible to attempt a sufficiently precise and exclusive definition by reliance on the identification of the “typical” or “pre-eminent” functions of each branch. In relation to judicial power, Zines was able to locate and articulate a definition containing the following core elements: the conclusive adjudication of controversies between parties in litigation resulting in an authoritative and binding declaration of their respective rights and duties according to existing law. Such a power, in its fullness, could only be vested in a Ch III court. Sawer had previously recognised these same features “the conclusive decision of a dispute between two or more persons by a third person as to their legal rights, powers, privileges and the like, the decision being governed by a legal standard assumed to exist before the decision is given” – as constituting core judicial functions. Moreover, Sawer recognised these elements of judicial power as being, “[o]n a more empirical view the non-transferable part of judicial activity”. If it is possible to recognise such “non- transferable” elements of branch activity, the formalism/functionalism divide certainly begins to narrow at the level where this becomes possible. Given the importance of such functions, formalism may come into its own with its insistence that no usurpation of such a complete power is permissible under the separation of powers doctrine. Although one cannot envisage functionalist compromises on this point in light of the significance of the power to the overall integrity of the branch, formalism’s rigour does provide a surer safeguard at these fundamental levels. However … [i]n relation to legislative and executive power, because of the immense difficulty (if not impossibility) in defining conceptually the latter power in particular, one is invariably reduced to resorting to the most mundane and straightforward aspects of each. For example, one can speak of the enactment of primary legislation (leaving aside the question of delegated legislation) within the institutional and procedural framework of Parliament as a core function of the legislative branch, which cannot be 15 usurped either by officers of the executive or by federal judges. In relation to executive power, one may refer to, as core: …the capacity to accomplish physical tasks within the limits of the law. For example, the government may carry…out public works on Crown land using funds already appropriated for the purpose by Parliament. As [Professor] Suri Ratnapala has pointed out, this “purely executive action that does not involve the making of a juristic decision”, or indeed any exercise of the core function of the legislative branch. But are the elements relied upon to identify core branch functions so mundane, and their usurpation so unlikely, that the very exercise of identification becomes rather a sterile one? The centre of strife, where the great separation of powers issues contend, such as in the hard cases of delegated legislation, quasi- judicial/legislative administrative tribunals, arbitral bodies and persona designata scenarios, lies elsewhere. Referring to executive power, for example, Winterton pointed out that the functions performed by the executive branch clearly involve much more than the mere routine execution of enacted laws and include the exercise of a vast array of discretionary powers conferred by statute, some clearly legislative in character, some more akin to judicial powers, and generally carrying on the business of government through the exercise of powers conferred by the Constitution, by statute or by the prerogative. Reliance on the procedural and institutional context: Added to this is the concern that even the definition of the “typical” can be an uncertain process, leading to considerable variation in opinion. It is suggested that greater precision in defining the typical may be achieved by placing explicit reliance on the procedural or institutional context in which these typical functions are exercised … By the juxtaposition of the procedural/institutional with the purely functional aspect, a more refined position may be adopted with respect to defining core branch power … 16 … [U]se can and should be made of the relevant procedural and institutional context in which branch functions are commonly, or usually, exercised as part of the attempt to locate what is essential and exclusive to each branch. For 40
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Interpretational Methodology in Separation of Powers Jurisprudence cont. example, while it can be said that judges do “make law” during the process of declaring it or interpreting it, their role in this regard is passive, limited by the fact that they do so in the context of the resolution of particular legal disputes within the procedural parameters of litigation, limited by the legal issues raised by the parties, limited by precedent and guided by other legal authority. Their law-making role is thus incidental to the declaration of rights and obligations pursuant to existing law in the resolution of a particular legal dispute in a courtroom setting. Similarly, while Parliament may delegate some part of its law-making function to the executive in certain circumstances, the making of delegated legislation would be ancillary to the executive’s primary, essential role of executing the laws. It is inconceivable that Parliament could abrogate its legislative functions entirely, or that civil servants (or federal judges) could replace members of Parliament to enact primary legislation pursuant to normal parliamentary procedure; surely a core legislative function which, in its procedural and institutional context, cannot be abrogated or usurped. In relation to the typical judicial function of deciding legal controversies finally and conclusively, the legislature may, for example, overrule a decision by enacting legislation which changes the law. However, it cannot itself review, in the manner of an appeal court, the outcome of a decision as between the parties or order a retrial or revision of a final judgment. This would be an indisputable usurpation of a core judicial function which would constitute a breach of the separation of powers doctrine under both a formalist and a functionalist approach … This juxtaposition of the conceptual with the procedural and institutional received the very considerable support of Vile, who noted that while on the one hand “it is not possible to allocate particular functions exclusively to each branch of government”, on the other: “it is possible to say that there is a function which is more appropriate to a particular procedure, to attempt to restrict each branch to particular procedures, and therefore to make one function the dominant concern of the branch … 17 … Thus, we can accept that the rulemaking function is exercised in some degree by all branches of government, but nevertheless assert that the legislature should be concerned only with rulemaking of a general kind and that the rules it makes should be binding on both the policy branch and the administration and subject to being over-ruled by the judiciary only on the grounds of their having offended against certain basic constitutional principles” … [Redish noted that] “[t]he executive branch, on the other hand … is confined to the function of ‘executing’ the law. Such a function inherently presupposes a pre-existing ‘law’ to be executed. Thus, the executive branch is, in the exercise of its ‘executive’ power, confined to the development of means for enforcing legislation already in existence. Hence, every exercise of executive power not grounded in another of the executive’s enumerated powers must be properly characterized as enforcement of existing legislation … [U]nless some other specifically delegated executive branch power applies, the executive branch must be exercising that creativity, judgment, or discretion in an ‘implementational’ context. In other words, the executive branch must be interpreting and/or enforcing a legislative choice or judgment; its actions cannot amount to the exercise of free-standing legislative power.” By taking into account the institutional and procedural context, it is possible to provide some form of mutually exclusive definition of core functions, which must remain inviolable in the hands of the respective branches. The examples provided by Vile and Redish above do furnish a very significant basis for establishing core functions even for the legislative and executive power within these institutional procedural parameters. So put, the major critique of the functionalist as opposed to the formalist position, the impossibility of mutually exclusive definition, begins to melt away … However, when it comes to the executive power, Winterton’s observations make any attempt at even a core definition very difficult if not impossible: “[E]ven in a purely Anglo-American context there are no functions inherently ‘executive’ in nature. Besides referring to powers expressly or impliedly granted by the constitution, ‘executive power’ in abstract is meaningless; its content depends entirely upon the frame of reference employed to determine the scope of executive power. The futility of attempting to define the ambit of federal executive power by allusion to abstract notions of ‘executive power’ and not by reference merely to expressly conferred powers and the prerogative is ‘demonstrated’ by the poor result of endeavours to do so; the conclusion reached is the apparently tautologous one that ‘executive’ functions are those governmental functions which are neither ‘legislative’ nor ‘judicial’. This ‘definition’ is not only unhelpful, but also unsatisfactory because it ignores ‘secondary’ or ‘incidental’ [1.300]
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Interpretational Methodology in Separation of Powers Jurisprudence cont. functions which may be exercised by more than one branch. Moreover, a generalisation from this formulation of ‘executive’ power can lead to the dangerous notion that the executive may do whatever it is not forbidden to do. This conceit cannot be maintained in Australia, where the scope of ‘the executive power of the Commonwealth’ conferred by s 61 of the Constitution is determined by reference to the prerogative, which cannot mark the boundary between legislative and executive powers because it is inherently subject to legislation.” Winterton has further pointed out, compellingly, that any attempt, even by such an eminence as Sir Owen Dixon, to enforce a strict legal separation of executive and legislative power has foundered on the shores of responsible 18 government, the implications of which cannot be limited purely to the political sphere … In light of Winterton’s detailed analysis of the nature of executive power, it would appear that even an attempt to limit the adoption of a formalist approach to “core” executive functions using the procedural context is doomed … Conclusion: In sum, any attempt to identify core executive functions to provide the entrée for the adoption of a formalist approach, with respect to its separation, is caught between the Scylla of the uncertainty (to put it most mildly) of the existence of an entrenched legal separation of legislative and executive power, and the Charybdis of the inability to define inherently “executive power”. Even assuming legal separation, purposive functionalism appears the only possible approach. It should be borne in mind that the purposive rationale of separation of powers formalists is undermined in the Australian context by the lack of clear indication that the separation of powers doctrine, in so far as the non-judicial powers were concerned, was regarded as essential for the maintenance of the type of government set up by the Commonwealth Constitution … Unless compelling arguments can be made to overcome the difficulties identified by Winterton, the identification of core branch functions to which a formalist approach might be taken must be reserved for the separation of judicial power and legislative power. The position is uncomplicated in relation to judicial power as there are no 19 countervailing doctrines in this regard, except perhaps the appeals to efficiency and good administration. When it comes to judicial power, a purposive formalist approach might be adopted to afford a surer protection to the following principles, all of which are based on the core definition of the power, reinforced by the procedural and institutional context of litigation. The most fundamental principle is that the judicial power of the Commonwealth … may only be vested in Ch III courts. … However, it does not necessarily follow that the Boilermakers’ principle itself … needs to be upheld and maintained pursuant to formalist rigour … A Bill of Attainder, on the other hand, as a clear usurpation of judicial power, would clearly breach the separation of powers doctrine. So would any attempt by the non-judicial branches to intervene directly in legal proceedings (whether current, pending or future) to direct an outcome or to review a final decision in the manner of an appeal court, amending final orders, ordering retrials, or hearing legal disputes at first instance (beyond the narrow exceptions outlined above based on usage). Maintaining these principles with formalist rigour would not undermine parliamentary competence to overrule a Ch III court’s declaration of the law in a particular case by enacting contrary legislation, to reverse the outcome of particular litigation by retrospective general legislation which alters the rights and obligations on which it was based, or to amend the law which is applicable in pending or future litigation by legislative amendment (as opposed to a [mere] direction [to the court]) even if such legislation is directed specifically at those litigants and affects their rights and obligations being considered by the judicial branch. These are very significant principles which must be afforded absolute protection. But beyond these fundamental principles … the separation of judicial power should be applied pursuant to a purposive functional approach. For example, it seems eminently sensible, with respect, to adopt the view of Mason above in relation to judges performing non-judicial functions by dispensing with the artificial persona designata doctrine and determining the issue on the basis of whether the non-judicial functions which the judge is required to perform are compatible with judicial functions. As for legislative power, its definition is relatively straightforward. As de Smith has pointed out, “[t]he term ‘legislative’ does not give rise to a great deal of difficulty in practice, for most of us can recognise legislation when we see it” … But it is clear from the various examples mentioned above that, so defined, this power cannot be hermetically sealed off in-the hands of Parliament given the licence granted to the Executive with respect to delegated legislation, the making by judges of “rules of 42
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Interpretational Methodology in Separation of Powers Jurisprudence cont. court”, the fact that judges sometimes “make law” when deciding cases (even when ostensibly they are declaring it or interpreting it), and the fact that, as de Smith pointed out, “the boundary line between a not very ‘general’ legislative rule and particular administrative decisions affecting many people can become so blurred as to be imperceptible”. However, if reliance is placed on the institutional and procedural factors accompanying the “typical” exercise of legislative power that is, the enactment of primary legislation by Parliament pursuant to proper parliamentary procedure – this power can be regarded as such a core and fundamental exercise of legislative power that its absolute protection in the hands of the legislative branch can be supported by the adoption of a purposive formalist approach. That is not to deny that pursuant to functionalism the interbranch violation of such a power would almost inevitably lead to separation of powers censure. Therefore, leaving aside the vexed question of executive power (where it seems that there is no alternative than to adopt a purposive functionalist approach [even] assuming its legal separation is entrenched), it is possible to reach the following conclusions. • The proper level of operation of the purposive formalist approach is the level of core legislative and judicial powers, the main instances of which were mentioned above. It is at this level that formalism’s concern for piecemeal erosion of the values 20 upheld by the doctrine must be taken seriously and therefore applied with rigour. In this context, it cannot be denied that formalism does constitute a surer safeguard. • It may be stated that at such a fundamental level, it is inconceivable that even pursuant to a purposive functional approach any allowances would be made for interbranch intrusions. This is because the negative effect on the integrity of branch power would certainly reach the requisite level of intensity to trigger functionalism’s rejection of it. To the extent that that is the case, one might posit the disappearance of the formalist/functionalist divide at this level. That is, it seems a reasonable proposition that whichever approach is taken, the result would be the same … To provide this limited role to formalism is consistent with the uncertain position of the separation of powers doctrine in the Australian constitutional context. While this role may be regarded as minor, that is so because it is unlikely that egregious interferences with branch power will occur. On the other hand, if a broader historical view is taken, it could be said that this very unlikelihood is all the more reason to insist upon formalist rigour, to ensure that it remains unlikely. It is worth recalling that just such interventions and usurpations of core branch power are historical realities, not mere hypotheticals. Indeed, such egregious interferences with judicial power did not occur in the distant past only, as evidenced by the Burmah Oil case and in the Plaut case, decided in 1965 and in 1995 respectively. While the former interference could not be invalidated, the latter was able to be held unconstitutional because it occurred in a jurisdiction which entrenched the separation of powers doctrine, and the majority judges adopted a purposive formalist approach to the doctrine in relation to this core aspect of judicial power.
[1.310] Some delegation of law-making powers from the legislature to the executive would
seem inevitable in a modern democracy. How is this delegation compatible with the separation of powers doctrine? How broad a delegation of power can the separation of powers doctrine tolerate? On these points consider Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 (see [3.440]). The Dignan approach is questioned in R Ratnapala and J Crowe, Australian Constitutional Law: Foundations and Theory (Oxford University Press, Melbourne, 2012), pp 123-132 and in the following extract. The basic question is, does it serve the purposes of a separation of powers doctrine? Does it properly take account of the competence of the various institutions?
[1.310]
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Rethinking the Constitutionality of Delegated Legislation [1.320] D Meyerson, “Rethinking the Constitutionality of Delegated Legislation” (2003) 11 Australian Journal of Administrative Law 45 at 52–54 (footnotes omitted) 52 Montesquieu rightly stressed the dangers to the citizen should power become concentrated in any one branch of government. He saw that dividing power is a way of controlling it. In fact, as Vile points out, the dispersion of power among different centres of decision-making is at the heart of Western constitutionalism and is the antithesis of totalitarianism. As Vile says, “in the totalitarian State every aspect of the State machine is seen merely as an extension of the party apparatus, and subordinate to it … the ‘ideal’ of the totalitarian state is that of a single all-embracing agency of government”. In the particular context of legislative-executive separation, we know that the legislative and executive branches are closely connected in a parliamentary system of government and we also know that for reasons of practical necessity it is impossible to confine the executive to the performance solely of executive tasks. But this does not mean that the ideal of dividing legislative and executive power is altogether illusory. On the contrary, it is clear that if we allow the unlimited transfer of legislative powers to the executive we run the risk of subverting the rule of law ideal, fundamental to the control of government, that those who carry out the law should be restrained by those who make it. If we return to the strategy hypothesised in Plaintiff S157/2002 v Commonwealth in the migration context – that where privative clauses prove ineffective in ousting the jurisdiction of the courts over migration decisions, judicial supervision might nevertheless be successfully evaded by delegating to the Minister the power to make whatever regulations he or she might think suitable for controlling the entry of aliens into the country – this provides an example of how delegation “running riot” can present just such a threat of the oppressive exercise of power. Despite the tentative opinion expressed in the joint judgment in Plaintiff S157, it is hard to see why this could not be characterised as a law with respect to aliens. The problem with it is rather that the hand-over of such subjectively framed and unstructured discretionary power undermines the ideal of the control of government, which it is, in part, the purpose of the separation of powers to secure. If the executive is given the power to determine the fundamental policy of the law, the idea of government by “law” – of power constrained by legal norms announced in advance – has been dispensed with. In its place is the exercise of power undirected by a legal framework and, since there is little for the notion of ultra vires to get a grip on, virtually unreviewable for excess by the courts. The same is a fortiori true where, by use of a “Henry VIII” clause – a clause empowering the executive to amend primary legislation – a statute gives the delegate unfettered power to subvert the delegating Act or another Act by subordinate legislation. This is the “executive despotism” Lord Hewart rightly feared. Some may wish to respond to this argument by saying that there are other ways to achieve the end of limited government than by enforcing a doctrine of legislative-executive separation. They may claim, in particular, that the doctrine of Cabinet responsibility operates in the British system as a functionally similar check on the abuse of power. But while it is true that in earlier times there may have been no need to fear a concentration of power in any one branch of government, this is no longer the case today. Up until the mid-19th century in Britain, the legislature and executive, although closely connected, also co-operated in a way which made it possible to achieve both effective and limited government. The possibility of a “balance”, or a relationship of equality between Cabinet and Parliament, was achievable then because the absence of powerful mass political parties and party discipline in Parliament preserved the independence of the members of Parliament to whom those who exercised executive power were accountable. But the balance of power has shifted and the executive has in more recent times come to control the legislative activities of Parliament. As Brennan J explained in his article, “The Purpose and Scope of Judicial Review”, “[t]he doctrine of the supremacy of Parliament, a central doctrine in our constitutional law, is now a buttress of executive 53 power, for the members of the executive government, on whose political skills the fortunes of the parliamentary majority greatly depend, control the allegiance of that majority”. The threat of the concentration of power is as a result acute today and the separation of powers doctrine all the more important in its potential to reduce it. Once it is appreciated that the purpose of the doctrine is, in part, to serve as a guarantee of individual political liberty and the rule of law, it becomes clear that there is a constitutional basis for a rule against legislation which delegates wide-ranging legislative powers 44
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Rethinking the Constitutionality of Delegated Legislation cont. without providing any standards indicating how they are to be exercised. Such a rule would be in line with the recent cases on judicial power, whose focus, as has been explained, is on the normative basis of the separation of powers doctrine. There is, furthermore, another value served by the separation of powers which bolsters the conclusion that the executive does not, under the Constitution, have the unfettered power to make law. One of the reasons why the framers of the Constitution vested legislative, executive and judicial power in separate organs of government is that certain organs are more suitable for the performance of certain governmental tasks. Consider the adjudication of controversies according to the law. It is obvious why the framers gave this task to federal judges: it is only federal judges whom the Constitution insulates from removal from office and diminution of remuneration. Since their tenure and salary are secure, they can be relied on to “do right to all manner of people according to law without fear or favour, affection or ill-will”. If we now ask why the framers should have vested legislative power in a Parliament “chosen by the people”, it must be because they thought the people’s elected representatives particularly well-suited to the exercise of the “open-ended discretion to choose ends” which is the essence of the legislative task. This is, of course, a well-established view, connected with our democratic conception of the legitimacy of law. In a representative democracy we give the right to make law primarily to those who have a mandate from the people and we do so because we think that decisions about contentious issues of social, political and economic importance – migration decisions are once again a good example – should be taken by those who are most directly account – able to the people. In addition to these facts about accountability, there is also a further consideration which explains why the Constitution vests the legislative power of the Commonwealth in Parliament. Parliament is an assembly characterised by the fact that its proceedings take place in public and also, as Jeremy Waldron points out, by its large membership by comparison with the other branches of government. In vesting legislative power in such an assembly the framers clearly sought to ensure that important social and political decisions would be made after vigorous and open debate in public between those speaking for the full spectrum of rival interests and different views. Recognising, to use Waldron’s words, that “the community for which law is made is essentially plural, and in its essence incapable of representation by a single voice”, the framers saw that it is essential to law’s authority that it should emerge from an assembly of hundreds of members, deliberating the pros and cons of alternative policies in accordance with parliamentary procedures. 54 Without formal parliamentary endorsement the legislative measures proposed by the executive would therefore not enjoy the legitimacy and authority of law, and the principle that the legislature is primarily responsible for making law in a democratic society is therefore of fundamental constitutional importance. It does not, of course, imply that Parliament has to make law in all the detail which is required. But it does imply that Parliament’s core function of formulating social and political policy cannot, without putting at risk fundamental democratic values and the legitimacy of law, be delegated carte blanche to another body.
Rule of law [1.330] The notion “rule of law” can be defined in many ways. A V Dicey, Introduction to the
Study of the Law of the Constitution (8th ed, MacMillan & Co, London, 1915), pp 183-191, identified three meanings (footnotes omitted): [I]n the first place, that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts [184] of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint. … [1.330]
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Part I: Introduction
We mean in the second place, when we speak of the “rule of law” … not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary Courts, has been pushed to its utmost limit. With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. … There remains yet a third and a different sense in which the “rule of law” or the predominance of the legal spirit may be described as a special attribute of English institutions. We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result, from the general principles of the constitution.
For contemporary discussions of the meaning of the “rule of law” see G Walker, The Rule of Law: Foundation of Constitutional Democracy (Melbourne University Press, Melbourne, 1988); P Craig, “Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework” (1997) Public Law 467; A Marmor “The Rule of Law and Its Limits” (2004) 23 Law and Philosophy 1; M Krygier, “The Rule of Law: Legality, Teleology, Sociology”, in G Palombella and N Walker (eds), Re-locating the Rule of Law (Hart Publishing, Oregon, 2008). Lon Fuller in The Morality of Law (Yale University Press, New Haven, 1969) offers a much used discussion of the rule of law. His account starts with the insight that if law is to fulfil its role of subjecting human conduct to rules, it must have certain features, of which he lists eight: (1) there must be general rules, (2) these should be made public, (3) they should not be retrospective, (4) they should be clear, (5) they should not be contradictory, (6) they should not require the impossible, (7) they should have a degree of permanence, (8) there should be a congruence between the action of officials and the declared rules. To what extent is each of these eight principles achievable in a modern legal system? Professor Joseph Raz discusses the rule of law in the following extract.
Ethics and the Public Domain [1.340] J Raz, Ethics and the Public Domain: Essays in the Morality of Law and Politics (Clarendon Press, Oxford, 1994), pp 373-374 [The] major features [of the rule of law] are its insistence on an open public administration of justice, with reasoned decisions by an independent judiciary, based on publicly promulgated, prospective, principled legislation. On this understanding, the principle of the rule of law is directed primarily at the judiciary and other subordinate legal institutions such as the police, prosecution service, and administrative authorities. It directs them to apply statutory and common law faithfully, openly, and in a principled way. The principle of the rule of law also applies to the legislature, and directs it (and the courts to the extent that they develop and change the law) to make laws which could be faithfully applied, ie to make them reasonably clear in formulation, and coherent and transparent in purpose. It also directs them to establish and maintain a system of courts, and other legal institutions, which are capable of observing the requirements of the rule of law. [On the vexed question of the relationship between the rule of law and the sovereignty of Parliament, Raz adds (374-375):] You may think that, on my understanding, the rule of law has a simple relationship to democratic government. It makes the legislature supreme. But this is far too simple a view. Mine is not the theory that courts should have no share in making and developing the law. I am an advocate, not an opponent, of both judicial discretion and judicial power to set precedents, which between them give 46
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Ethics and the Public Domain cont. the courts considerable law-making power. There are two ways in which this view of the rule of law reinforces democracy. On the one hand it requires legal institutions to be loyal to legislation emerging from a democratic legislature, thus enhancing its power. But the rule of law also sets limits to majoritarian democracy, represented in the legislature. It requires principled, as well as faithful, adjudication. This point requires a little amplification. Principled decisions are reasoned and public. As such they become known, feed expectations, and breed a common understanding of the legal culture of the country, to which in turn they are responsive and responsible. The courts are not formally accountable to anyone, but they are the most public of government institutions. They are constantly in the public gaze, and subject to public criticism. Thus their decisions both mould the public culture by which they are judged and are responsive to it. The requirement of public, principled justification is not a demand for great philosophical sophistication. On the whole, judges who become philosophically ambitious are bad judges. The requirement is for justification in terms of the common legal culture of the country concerned. It is a requirement for justification by reference to the common values and shared practices of the legal culture. [On the relationship of the rule of law to individual rights Raz states (376):] There is one apparent omission from this account of the rule of law which may surprise some readers. I have said nothing about the importance of the protection of basic civil rights to the rule of law. This is not because the rule of law can flourish while basic civil rights are violated. It is because their protection is partly presupposed and partly implied by the points made above. Since my discussion of the moral and political significance of the rule of law is confined to its function in democratic societies, those political and civil rights without which no democracy can prosper are here presupposed. Since the rule of law assures individuals of bureaucratic justice, it implies conformity with many civil rights which guarantee the fair process of the law. Finally, and most importantly, in insisting on the integration of legalisation and other current measures with legal tradition enshrined in doctrine, the rule of law respects those civil rights which are part of the backbone of the legal culture, part of its fundamental traditions.
[1.350]
Notes&Questions
1.
Does Raz adequately explain the relationship between the rule of law and the sovereignty of Parliament? On the implications for judicial interpretation of the Constitution, see Chapter 14. 2. Raz speaks of basic civil rights as something presupposed in a democratic society. Presumably this is a point about how things usually are. At times a deeper claim is made for the rights/rule of law relationship. For example, Jurgen Habermas argues for their mutual dependency. See his “Constitutional Democracy” (2001) 29 Political Theory 766. Chief Justice Gleeson briefly discussed the rule of law as an interpretive principle in the following case.
Plaintiff S157/2002 v Commonwealth [1.360] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 492–493 (some footnotes omitted) Gleeson CJ: 492 … [28] In such a context, the following established principles are relevant to the resolution of the question of statutory construction. [29] First, where legislation has been enacted pursuant to, or in contemplation of, the assumption of international obligations under a treaty or international convention, in cases of ambiguity a court should favour a construction which accords [1.360]
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Part I: Introduction
Plaintiff S157/2002 v Commonwealth cont. with Australia’s obligations … [30] Secondly, courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment … As Lord Hoffmann recently pointed out in the United Kingdom … for Parliament squarely to confront such an issue may involve a political cost, but in the absence of express language or necessary implication, even the most general words are taken to be “subject to the basic rights of the individual” … [31] Thirdly, the Australian Constitution is framed upon the assumption of the rule of law (Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 193, per Dixon J). Brennan J said (Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 70): “Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.” [32] Fourthly, and as a specific application of the second and third 493 principles, privative clauses are construed “by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied” (Public Service Association (SA) v Federated Clerks’ Union (1991) 173 CLR 132 at 160, per Dawson and Gaudron JJ).
Judicial review and constitutional rights [1.370] In Australia, as in many other countries, judicial bodies have the power to decide
whether executive action or legislation conforms to the law, including the law of the Constitution. This function is widely understood to be necessary in order to maintain the rule of law, at least in relation to executive action. Alexander Hamilton famously observed of this power (Federalist No 78, p 465): Whoever attentively considers the different departments of power must perceive that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
[1.380]
1.
Notes&Questions
What do you make of the “least dangerous branch” argument? For a now classic discussion, see A Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2nd ed, Yale University Press, New Haven, 1986). In jurisdictions in which a constitution sets out a number of basic rights, the power of judicial review is likely to be more controversial. The merits or demerits of the judicial vindication of constitutional rights is a frequently debated topic. Here it is sufficient to note two central ideas or examples: (1) the argument of Marbury v Madison, the first and influential justification for judicial review; and (2) the Communist Party Case, an important Australian example.
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Marbury v Madison [1.390] Marbury v Madison 5 US (1 Cranch) 137 (1803); 2 Lawyers’ Edition 60; at 176–180 (US) [The outgoing President Adams signed the commission which appointed Marbury a justice of the peace. The commission remained undelivered and the new President (Jefferson) refused to deliver it to Marbury. Marbury applied to the Supreme Court for a writ of mandamus to compel the new Secretary of State (Madison) to deliver the commission. In deciding that the Constitution did not authorise the granting of this remedy Marshall CJ (for the court) stated the following.] Marshall CJ: 176 The authority, therefore, given to the Supreme Court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised. The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it. 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 government of the United States is of the latter description. The powers of the 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? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts pro- 177 hibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. Between these alternatives there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. This theory is essentially attached to a written constitution, and, is consequently, to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject. If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. 178 So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the [1.390]
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Marbury v Madison cont. 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 given to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. 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. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection. The judicial power of the United States is extended to all cases arising under the constitution. 179 Could it be the intention of those who gave this power, to say that in using it the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained. In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey? There are many other parts of the constitution which serve to illustrate this subject. It is declared that “no tax or duty shall be laid on articles exported from any state.” Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the constitution, and only see the law? The constitution declares “that no bill of attainder or ex post facto law shall be passed”. If, however, such a bill should be passed, and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavours to preserve? “No person,” says the constitution, “shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act? From these, and many other selections which might be made, it is apparent, that the framers of the consti- 180 tution contemplated that instrument as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: “I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as, according to the best of my abilities and understanding agreeably to the constitution and laws of the United States.” Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime. It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument. The rule must be discharged.
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Notes&Questions
State in outline the argument made by Marshall CJ for judicial review. Are you convinced that it simply follows from the ordinary functions of a court that it should enforce its reading of the constitution as “superior law” against the co-equal legislative and executive branches? Is Marshall CJ’s statement any improvement on Alexander Hamilton’s Federalist No 78? When courts are considering the legitimacy and practice of judicial review, is it useful to distinguish questions about federalism from questions of constitutional rights – and both of these from possible legislative and executive incursions into matters which affect the courts and their jurisdiction? See J Choper, Judicial Review and the National Political Process (Chicago University Press, Chicago, 1980); Ely, Democracy and Distrust (1980). In arguments for and against the practice of judicial review, there is a difference between arguments based on the anti-democratic character of the review court and those based on a lack of judicial competence to evaluate economic and social matters. How do the ideas and values relevant to this question figure in arguments about methods of constitutional interpretation? For further discussion, see Chapter 14.
Australian Communist Party v Commonwealth [1.410] Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 178–202, 253–268 [The recitals of the Communist Party Dissolution Act 1950 (Cth) stated (in part): 4. “And whereas the Australian Communist Party, in accordance with the basic theory of communism, as expounded by Marx and Lenin, engages in activities or operations designed to assist or accelerate the coming of a revolutionary situation, in which the Australian Communist Party, acting as a revolutionary minority, would be able to seize power and establish a dictatorship of the proletariat:” 5. “And whereas the Australian Communist Party also engages in activities or operations 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:” 6. “And whereas the Australian Communist Party is an integral part of the world communist revolutionary movement, which, in the King’s dominions and elsewhere, engages in espionage and sabotage and in activities or operations of a treasonable or subversive nature and also engages in activities or operations similar to those, or having an object similar to the object of those, referred to in the last two preceding paragraphs of this preamble:” 7. “And whereas certain industries are vital to the security and defence of Australia (including the coal-mining industry, the iron and steel industry, the engineering industry, the building industry, the transport industry and the power industry):” 8. “And whereas activities or operations of, or encouraged by, the Australian Communist Party, and activities or operations of, or encouraged by, members or officers of that party and other persons who are communists, are designed to cause, by means of strikes or stoppages of work, and have, by those means, caused, dislocation, disruption or retardation of production or work in those vital industries:” … Section 4 of the Act declared the Australian Communist Party unlawful and dissolved it. Affiliated organisations, which in the opinion of the Governor-General were prejudicial to the security of the Commonwealth, were also declared unlawful and dissolved (s 5). The Governor-General had a similar discretion under ss 9 and 10 to disqualify individuals from holding public office or office in a trade union. All the judges, apart from Latham CJ, found that the Act was not supported by the defence power or any other power (that is, s 51(xxxix) as matters incidental to the executive power).] Dixon J: 178 It will be seen from the foregoing account of s 5 that it provides tests of communistic connection or affiliation which must be satisfied in fact before the body becomes liable to be declared unlawful and it prescribes the manner in which the body may apply to the courts if it denies that it [1.410]
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Australian Communist Party v Commonwealth cont. possesses a character fulfilling the tests … Two things appear to me to be clear about this. The first is that it leaves to the opinion of the Governor-General in Council every element involved in the application of the proposition. Thus it would be for the Governor-General in Council to judge of the reach and application of the ideas expressed by the phrases “security and defence of the Commonwealth”, “execution of the Constitution”, “maintenance of the Constitution”, “execution of the laws of the Commonwealth”, “maintenance of the laws of the Commonwealth” and “prejudicial to”. In the second place the expression by the Governor-General in Council of the result in a properly framed declaration is conclusive. In the case of the Governor-General in Council it is not possible to go behind such 179 an executive act done in due form of law and impugn its validity upon the ground that the decision upon which it is founded has been reached improperly, whether because extraneous considerations were taken into account or because there was some misconception of the meaning or application, as a court would view it, of the statutory description of the matters of which the Governor-General in Council should be satisfied or because of some other supposed miscarriage. The prerogative writs do not lie to the Governor-General. The good faith of any of his acts as representative of the Crown cannot be questioned in a court of law. … 182 What may be of more importance is that, as with s 5(2), the authority which subs (2) of s 9 is designed to confer on the Governor-General in Council would enable him to express a conclusive decision covering every element involved in the application to a given case of any or every limb of the alternatives contained in the formula concerning the actual or potential prejudicial activities of the person declared. The consequences which ensue from the making of a declaration under s 9 in reference to a person are given by ss 10, 11, 12, 13 and 14. Briefly the person declared becomes incapable of holding an office or employment under the Commonwealth or an authority of the Commonwealth, whether incorporated or not, and, if the Governor-General declare an industrial organization to be one to which s 10 applies, then he cannot hold any office in that organization or in any branch of it. The section may be so applied to an organization if a substantial number of its members are employed in a vital industry. The vital industries are coal mining, iron and steel, engineering, building, transport, power and any other industry which, in the opinion of the Governor-General in Council is vital to the security and defence of Australia. As the declaration of the prejudicial nature of a man’s actual or probable activities may be made before or after the declaration of a vital industry and as at the time when the second is made he may be in process of appealing 183 from the first declaration on the ground that s 9(1) does not apply to him, and, further, as he may be an officer of the industrial organization when the later of the two declarations is made, special provisions are made for these various contingencies. The effect is to suspend him pending the final outcome and then, if the declaration against him stands, to vacate his office. For the purpose of his rights to any superannuation or retirement benefit, it is enacted that he shall be deemed to have resigned (s 11(5)). An injunction may be granted against him restraining him from performing any act, duty or function or exercising any right as the holder of an office in such an industrial organization. While a declaration against him is in force, the man may not contract or agree with the Commonwealth in respect of any services on his part for reward (s 14). It is to be noticed that s 9 is not limited to persons who occupy or are likely to be appointed to or engaged for any of the offices or employments mentioned in s 10(1) or who contract for services with the Commonwealth or are likely to do so. It enables the Executive to make a declaration against anybody falling within the description of subs (1) of s 9, although there may be no prospect in his case of a situation to which the consequences are relevant ever arising. The Act is to remain in operation until the Governor-General makes a proclamation that its continuance is no longer necessary. He must be satisfied that it has ceased to be necessary for the security and defence of Australia and for the execution and maintenance of the Constitution and of the laws of the Commonwealth (s 27). The duration of the Act is therefore indefinite and the power of the Governor-General under s 5(2) and his power under s 9(2) will remain exercisable for possibly a long time after the occurrence of the facts which in the former case bring the body of persons within the application of s 5 and in the latter case the individual within the application of s 9. From the foregoing discussion of the Act and its meaning it will be seen that in the cardinal provisions the Act proceeds against the bodies and persons to be affected, not by forbidding a particular course of conduct or creating particular offences depending on facts so that the connection or want of connection with a subject matter of Federal legislative power may appear from 52
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Australian Communist Party v Commonwealth cont. the nature of the provision, but in the case of the Australian Communist Party itself by direct enactment and in the case of affiliated organizations and persons by empowering the Executive to act directly in a parallel manner. In the one case there is the judgment of the legislature itself that the body is to be dissolved as unlawful and 184 in the other cases there is the judgment of the Executive that the affiliated bodies are to be similarly dissolved as unlawful or that a declaration shall be made against the persons who are to be thereby disqualified for certain classes of post. The consequences ensue automatically, the dissolution of the bodies, the forfeiture of their property and the unlawfulness of conduct tending to keep them or their activities alive, the loss of office by the individuals, their disqualification and their incapacity to contract with the Commonwealth for services. The Commonwealth Parliament has power to legislate with respect to the public service and under s 51(xxxv) it may impose conditions upon the registration of industrial organizations under the Commonwealth Conciliation and Arbitration Act 1904. But I shall put aside for subsequent examination the possibility of a justification being found in these powers for s 10(1) and in relation to it of s 9. Subject to this reservation the validity of the chief provisions of the statute can find no support unless in the power to make laws with respect to the defence of the Commonwealth or in s 51(xxxix) or in an implied power to legislate for the protection of the Commonwealth against subversive action and preparation. For otherwise the subject with which the law deals, the dissolution as unlawful of voluntary and corporate associations of people, whether because of their purposes and tendencies or for other reasons, and the disqualification of persons for descriptions of employment, does not in itself form part of any of the enumerated powers of the Parliament. Further, it cannot in itself, that is to say, because of its nature, lie within the defence power. It can fall within it, if at all, only as a means to accomplish or further some end which because of its nature is within the proper scope of defence. In the same way it can fall within the power to legislate against subversive actions and designs only as a means to the end for which that power exists. That is to say, constitutional support for the law must be sought not within what may be called the substance of any power but in the authority of the Parliament to enact what is ancillary or calculated to being about an end within its legislative competence. … 192 If the Act can be supported by a train of reasoning of such a kind it must be under the defence power or not at all. The other power is concerned primarily with the protection of Federal authority against action or utterance by which it may be overthrown, thwarted or undermined. It covers, needless to say, conduct antagonistic to the maintenance of Federal institutions and authority, whether its source is abroad or at home, but its central purpose is to allow the legislature to deal with manifestations of subversive conduct within Australia. Wide as may be the scope of such an ancillary or incidental power, I do not think it extends to legislation which is not addressed to suppressing violence or disorder or to some ascertained and existing condition of disturbance and yet does not take the course of forbidding descriptions of conduct or of establishing objective standards or tests of liability upon the subject, but proceeds directly against particular bodies or persons by name or classification or characterization, whether or not there be the intervention of an Executive discretion or determination, and does so not tentatively or provisionally but so as to affect adversely their status, rights and liabilities once for all. It must be borne in mind that it is an incidental or ancillary power, not a power defined according to subject matter. I have said before that in most of the paragraphs 193 of s 51 of the Constitution 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): Stenhouse v Coleman ((1944) 69 CLR, at 471). In a law operating upon or affecting such a given subject matter or fulfilling such a given description, as the case may be, the legislature is at large in the course it takes, that is provided it observes the restrictions arising from specific constitutional provisions such as s 55, Chapter III, ss 92, 99 and 116. But, in considering whether a law is incidental to an end or operation, no such test is supplied. It would, for example, be quite erroneous to say first that communism is within the incidental power and next that therefore any law affecting communism is valid. The power is ancillary or incidental to sustaining and carrying on government. Moreover, it is government under the Constitution and that is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in [1.410]
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Australian Communist Party v Commonwealth cont. 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. Nor do I think that if a wider basis for the power than s 51(xxxix) is accepted, the power itself would extend to a law like the present Act, using as it does, the legislature’s characterization of the persons and bodies adversely affected and no factual tests of liability and containing no provision which independently of that characterization would amount intrinsically to an exercise of the power. To deal specifically with named or 194 identifiable bodies or persons independently of any objective standard of responsibility or liability might perhaps be possible under the power in the case of an actual or threatened outburst of violence or the like, but that is a question depending upon different considerations. The foregoing discussion narrows the inquiry as to possible support for the validity of the legislation to what may briefly be described as the use of the defence power against communism as such, that is treating communistic character and connections as at once the sufficient and the sole substantial ground for invoking the defence power for the purpose of a declaration by statute that the Party was unlawful and dissolved and, subject to the Executive discretion, for a similar declaration concerning affiliated bodies and a declaration of disqualification for individuals. The central purpose of the legislative power in respect of defence is the protection of the Commonwealth from external enemies and it necessarily receives its fullest application in time of war. It is a legislative power and therefore affords but the means of establishing all the legal machinery and making all the legal provisions considered necessary and appropriate for the purpose. The responsibility for the practical measures taken in order to protect the country must belong to the Executive. The prosecution of a war is of necessity an executive function and has always been so conceived. It is needless after our recent experiences of war to enlarge upon the extent to which it is necessary in modern war to transfer both power and responsibility to the Executive. The conduct of such a war carries with it the direction and control of men and their affairs in every aspect capable of affecting in any degree the prosecution of the war. A conspicuous purpose of legislation in exercise of the defence power must be to invest the Executive, for the purpose of carrying on a war, with the necessary powers, legislative and administrative. The delegation of legislative power has involved no difficulty because, as I have already said, not only is there a definite war but any exercise of the delegated power is examinable against s 51(vi). But, under the delegated power, and sometimes by direct enactment, the very widest discretions are vested in ministers, administrative boards and officers and in officers of the armed services. Common experience, therefore, shows that, in time of war at all events, a provision made by or under statute is not regarded as necessarily outside power because a minister or an agency of the executive is authorized according to his or its opinion of the relation of some act, matter or thing to defence or some aspect of defence to give directions or determina- 195 tions in derogation of the freedom of action and the personal rights of men and of associations of men. For example, I think that at this date it is futile to deny that when the country is heavily engaged in an armed conflict with a powerful and dangerous enemy the defence power will sustain a law conferring upon a minister power to order the detention of persons whom he believes to be disaffected or of hostile associations and whom he believes that it is necessary to detain with a view to preventing their acting in any manner prejudicial to the public safety and the defence of the Commonwealth: see Lloyd v Wallach (1915) 20 CLR 299; Ex parte Walsh [1942] ALR 359; and Little v Commonwealth (1947) 75 CLR 94, at 102–104. The reason is because administrative control of the liberty of the individual in aspects considered material to the prosecution of a war is regarded as a necessary or proper incident of conducting the war. One man may be compelled to fight, another to perform directed work, a third may be suspected of treasonable propensities and restrained. But what 54
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Australian Communist Party v Commonwealth cont. the defence power will enable the Parliament to do at any given time depends upon what the exigencies of the time may be considered to call for or warrant. 196 At the date of the royal assent Australian forces were involved in the hostilities in Korea, but the country was not of course upon a war footing, and, though the hostilities were treated as involving the country in a contribution of force, 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. I think that the matter must be considered substantially upon the same basis as if a state of peace ostensibly existed. Is it possible, however, to sustain the Act on the ground that under the influence of events the practical reach and operation of the defence power had grown to such a degree as to cover legislation providing no objective standard of liability relevant to the subject of the power but proceeding directly first by the pronouncement of a judgment by means of recitals and then in pursuance of the recitals acting directly against a body named, and bodies and persons described, in derogation of civil and proprietary rights? … 198 The question remains, however, whether nevertheless, by reason of the application of s 4 and s 5(2) and s 9(2) to the Communist Party, affiliated bodies and communists as such, a sufficient connection with the defence power can be established on the footing that recent events had at the date of the Act called the defence power into such wide play as to supply a constitutional justification for the form of the Act. Although this question was not developed in the argument before us, it must be decided. In deciding it there are three considerations to be urged in support of an affirmative answer. They complement one another. In the first place it may be said that the proper view of the defence power is that in a situation such as events had created when the Act became law the power places within the authority of the legislature the decision of all the questions concerned with the defence of the country which may determine legislative action, questions affecting the extent of the operation of the constitutional power. It may be said, further, that public events of common knowledge, without more, made it a matter for the decision of the Parliament what was the real nature of the activities and designs of the Australian Communist Party, of kindred bodies and of communists, what part they played in the dangers considered to threaten the country and what and how great those dangers were. In such a view the decision of the Parliament is to be seen in the recitals and in the provisions of the Act. The decision it would be said leaves no room for any question of power. In the second place it is a commonplace that while the extent of the operation and the application of a power, including the defence power, must be decided by the Court, the reasons why it is exercised, the opinions, the view of facts and the policy upon which its exercise proceeds and the possibility of achieving the same ends by other measures are no concern of the Court. In the third place, in all matters relating to defence, not only does the responsibility lie with the Executive Government and thus ultimately with Parliament, but the information at the command of the Government, which often cannot be made public, places it in a special position to judge of what the public interest requires. 199 In all the cases concerning the validity of statutory regulations made for the war of 1914–1918 and for the war of 1939–1945 the principle was acknowledged or assumed that it was for the Executive Government to decide what was necessary or expedient for the purpose of the war and in doing so to act upon its opinion of the circumstances and conditions that existed and of the policy or course of action that should be followed. Variously formulated as the tests have been for deciding whether regulations made under the war powers were within the power to make laws with respect to defence, they have uniformly been based upon the principle that there is to be no inquiry into the actual effect the regulation would have or be calculated to have in conducing to an end likely to advance the prosecution of the war and that it was at least enough if it tended or might reasonably be thought conducive or relevant to such an end. But, in Farey v Burvett (1916) 21 CLR 433, at 442 Griffith CJ said: “In making the inquiry the Court cannot shut its eyes to the fact that what could not rationally be regarded as a measure of defence in time of peace may be obviously a measure of defence in time of war.” Barton J said: “It is argued that the defence power has the same meaning at all times, whether in peace or in war. I doubt that, but it may not be necessary to determine it, for the true question is whether many things that cannot aid defence in peace and when no enemy is in view, are not urgently necessary when an enemy has arisen who must be defeated if the nation, or family of [1.410]
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Australian Communist Party v Commonwealth cont. nations, is to live” (at 448). His Honour’s view treated the power as possessing a fixed meaning with a changing application, as a fixed concept with a changing content. It would, I think, be an error to draw a definite line between a period after the commencement of actual hostilities and the period before they commence. It is inappropriate to the altered character of war and the changes that appear to have taken place in the manner of commencing war. Imminence of war will enlarge the application of the fixed concept of defence. I have now completed my statement of the train of reasoning in support of the Act based upon ss 4, 5(2) and 9(2) as laws with respect to communism. I believe that, from the form in which I have stated the reasoning, its full force will appear. But, after giving much consideration to the question whether it will suffice to sustain the Act I have reached the conclusion that it will not. The reasons for that conclusion may be briefly given. When s 4 names a voluntary association, declares it unlawful and by force 200 of the Act dissolves it, and when ss 8 and 15(1) attach the consequence of deprivation of property and s 7 attaches the consequence of a restriction of the civil rights of the members, it provides for matters which, considered as specific subjects, are not of their own nature within any of the enumerated powers of the Commonwealth Parliament and prima facie lie only within the province of the States. If the operation of the law upon the right of association, the common property and the civil rights of the members were made by the statute to depend upon the actual existence or occurrence of any act, matter or thing having a specific relation to the purposes of the power with respect to defence, then, notwithstanding that the immediate subject of the provision did not of its own nature form part of the subject matter of the power, the provision would be brought within it as ancillary to the main purpose of the power. Again, prima facie no opinion of the Parliament as to the actual existence or occurrence of some matter or event which would provide a specific relation of the subject of a law with power can suffice to give the law that relation. It would, for example, be impossible for the Parliament by reciting that a society for research in radio physics planned or carried on experiments causing or likely to cause an interference with wireless transmission to bring within s 51(v) (postal, telegraphic, &c services) an enactment naming the society and dissolving it brevi manu. It would be impossible to bring under s 51(xviii) (patents) a direct grant of a monopoly for a specified manufacturing process by reciting that it was an invention. The pronouncements by Parliament which the recitals in the Act contain, combined with the declaration of unlawfulness and decree of dissolution made by s 5 and the forfeiture imposed by s 15(1), were said by the plaintiffs to amount together to an invasion or usurpation of judicial power. In the case of s 15(1) it was also said that, except by a lawful exercise of judicial power, such a forfeiture could not be imposed by reason of s 51(xxxi) of the Constitution. As I am deciding the case on the ground of want of affirmative legislative power, I shall not deal with these arguments, but I mention them because they illustrate the substantial effect and nature of the provisions in question. There should be no confusion about the essential nature of the connection with the defence power which the recitals seek to supply. Essentially it consists in the past acts, the tenets and opinions and the present propensities or tendencies of persons and associations of persons. Where legislation, subordinate or principal, purporting to exercise the defence power has stated the purpose for which it was enacted 201 or adopted, this expression of purpose has received effect. In relation to a power largely directed to purpose its importance is evident. It is true that the expression of the nature and existence of the purpose has left open the question whether nevertheless the legislation failed as an exercise of the defence power, because of the nature of the provisions, the prevailing situation, the facts, the remoteness of the means adopted from the avowed object, or some other consideration. But here, so far as the preambles express the existence and the nature of the purpose animating the legislation, that may be conceded. It is, however, but a small step. What is in question is so much of the recitals as concern not the opinions and purposes of the legislature, but the opinions and purposes of the persons against whom the provisions are directed and their past actions. Again, the case is not one where a course of conduct is required or forbidden but only a knowledge of facts outside judicial notice would enable the Court to see how the pursuit of that course of conduct would promote or prejudice, as the case may be, an object within the defence power. It is enough to mention Sloan v Pollard (1947) 75 CLR 445 and Jenkins v The Commonwealth (1947) 74 CLR 400, at 402, the facts of which provide sufficient illustrations. In such a case the result which the rule laid down produces or is calculated to produce is within the defence power and all that is lacking is an 56
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Australian Communist Party v Commonwealth cont. understanding of the process of causation between the conduct prescribed or prohibited and the result. That can be proved. There is no need to stop to inquire precisely how much effect a recital by the legislature of facts of such a nature should receive; for it is not this case. But, to my mind, recitals of such a character, stating how a law will operate, or for that matter recitals stating the purpose for which an enactment is made, stand on an altogether different footing from what is the essential matter here. The essential matter here is a statement to the effect that persons or bodies of persons have been guilty of acts which might have been penalized in advance under the defence power and have a propensity to commit like acts, this being recited as affording a supposed connection between the defence power and the operative provisions enacted, provisions dealing with the persons or bodies directly by name or description. At the risk of repetition it is perhaps desirable to add that the case is not one where the legislation is dealing with a subject matter undeniably within power. If the legislature directly dissolved a marriage between named parties, it would at all events be dealing with divorce, whatever other objections might be found 202 to the Act. If it directly enacted that a named alien should be deemed naturalized or that a person or persons named or described should be denied the use of the postal, telegraphic and telephonic services, it would likewise be upon the very subject of power. Whatever recitals it thought fit to make would have such effect as it was taken to intend, and whatever conditions it imposed would be valid, subject always, of course, to the relevance of positive restrictions that might be found elsewhere in the Constitution. It must be evident that nothing but an extreme and exceptional extension of the operation or application of the defence power will support provisions upon a matter of its own nature prima facie outside Federal power, containing nothing in themselves disclosing a connection with Federal power and depending upon a recital of facts and opinions concerning the actions, aims and propensities of bodies and persons to be affected in order to make it ancillary to defence. It may be conceded that such an extreme and exceptional extension may result from the necessities of war and, perhaps it may be right to add, of the imminence of war. But the reasons for this are to be found chiefly in the very nature of war and of the responsibility borne by the government charged with the prosecution of a war. “The paramount consideration is that the Commonwealth is undergoing the dangers of a world war, and that when a nation is in peril, applying the maxim salus populi suprema lex, the courts may concede to the Parliament and to the Executive which it controls a wide latitude to determine what legislation is required to protect the safety of the realm” – per Williams J, Victorian Chamber of Manufactures v Commonwealth (1943) 67 CLR 413.
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Notes&Questions
How did the court deal with the possible argument that the Communist Party Dissolution Act 1950 (Cth) infringed basic political rights? Could the States have validly enacted the same legislation? Could they do so now? Justice Fullagar in his reasoning, extracted below at [6.210], stated that “in our system the principle of Marbury v Madison is accepted as axiomatic”. For discussion of the grounding of the practice of judicial review in the Australian constitution, see J Thomson, “Constitutional Authority for Judicial Review: A Contribution from the Framers of the Australian Constitution”, in G Craven (ed), Convention Debates (1891–1898): Commentaries, Indices and Guide (Legal Books, Sydney, 1986), p 173 and B Galligan, “Judicial Review in the Australian Federal System: Its Origin and Function” (1979) 10 Federal Law Review 367. For discussion of the constitutional principle that the Commonwealth cannot recite itself into power – “The stream cannot rise above its source” – see Stellios, Zines’s The High Court and the Constitution (6th ed, Federation Press, Sydney, 2015), ch 11. For an analysis of the case placing it in its political and social context, see G Winterton, “The Significance of the Communist Party Case” (1992) 18 Melbourne University Law [1.420]
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Review 630 and R Douglas “A Smallish Blow for Liberty? The Significance of the Communist Party Case” (2001) 27 Monash University Law Review 253.
SOVEREIGNTY [1.430] What is “sovereignty” and what institution or institutions exercise it? A V Dicey
articulated one of the most influential, and debated, accounts of the sovereignty of the British Parliament.
Sovereignty of Parliament [1.440] A V Dicey, “Sovereignty in Parliament”, in Introduction to the Study of the Law of the Constitution (8th ed, MacMillan & Co, London, 1915), pp xviii-xix (footnotes omitted) xviii … The sovereignty of Parliament is, from a legal point of view, the dominant characteristic of our political institutions. And my readers will remember that Parliament consists of the King, the House of Lords, and the House of Commons acting together. The principle, therefore, of parliamentary sovereignty means neither more nor less than this, namely that “Parliament” has “the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament,” and further that this xix right or power of Parliament extends to every part of the King’s dominions … How does the idea of parliamentary sovereignty relate to and operate within Australia? Sir Owen Dixon discussed these questions in the light of the Colonial Laws Validity Act 1865 and the Statute of Westminster 1931, both British statutes which, to different degrees, confirmed the powers of the Parliaments of the British colonies and dominions, such as Canada, Australia and New Zealand, and acknowledged to a certain extent their constitutional and political independence. The Statute of Westminster 1931 was extended to Australia by the Statute of Westminster Adoption Act 1942 (Cth), effective from 3 September 1939. Australia’s constitutional independence from the United Kingdom was subsequently further secured by the Australia Acts 1986 (UK) and (Cth), but Dixon’s analysis of the two earlier statutes remains an important and influential discussion of the fundamental issues.
The Statute of Westminster 1931 [1.450] O Dixon, “The Statute of Westminster 1931”, in Jesting Pilate: and Other Papers and Addresses (collected by Judge Woinarski) (Law Book Company, Sydney, 1965; 2nd ed, William S Hein & Co, Buffalo, New York 1997), pp 82-87 82 … An inquiry into the source whence the law derives its authority in a community, if prosecuted too far, becomes merely metaphysical. But if the theoretical answer be adopted by a system of law as part of its principles, it will not remain a mere speculative explanation of juristic facts. It will possess the capacity of producing rules of law. Its incorporation into the body of the law may lead to consequences of much practical importance. The doctrine that the supreme law of the United States derives its authority from the people is an example. It has supplied a principle of American constitutional law. The several organs of government established by law appear to those who examine them in the light of this principle as agencies to whom the people have entrusted powers residing in the people. Accordingly the agent’s authority cannot be delegated. We have seen during the last two years more than one example of the application by the Supreme Court of the United States of this constitutional dogma. Its application has contributed in no small measure to the invalidation of laws, which, in the view of the government of the country, were demanded by a great emergency. But the legislature was held powerless to enact them. That powerlessness is in part a consequence of the incorporation into the American legal system of an abstract theory of the source whence the law 58
[1.430]
Constitutional Fundamentals
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The Statute of Westminster 1931 cont. derives its authority. In the legal system of British possessions no speculative or artificial explanation of its basis has hitherto found a place. Without enquiring why it should be so, English lawyers have accepted the traditional principle on which that system rests. It was the accepted doctrine of our system that the King in Parliament had absolute authority over the law and that all places acquired by the Crown in right of the Crown’s British sovereignty must be subject to that, authority. In a newly acquired territory a form of government might be established either by statute made under this legislative authority or by an exercise of the prerogative of the Crown. In either case, the supremacy of the Parliament at Westminster remained. The new legislature was subordinate. If any of its laws came into conflict with a statute of the British Parliament operating in the dependency, that statute prevailed and the local law could have no effect. The Powers of the local legislature might, of course, be limited by the instrument creating it. An attempt on its part to go beyond those limits would be void. If the instrument were 83 an Order-in-Council made under the prerogative, the invalidity of the attempt would rest upon nothing but absence of power, that is, it would arise from the ordinary legal doctrine of ultra vires. But if it were a statute of the British Parliament, the invalidity might be put upon two grounds. It might be attributed not only to mere lack of positive power, but also to repugnancy to the statute of the sovereign legislature. The supremacy of that legislature in respect of any part of the Dominions of the British Crown cannot be abandoned. No doubt British Territory may be ceded or otherwise put from under the jurisdiction of the Crown. But, while it remains under the Crown, it must, according to the theory which has hitherto obtained, be subject to the power of the Imperial Parliament. In other words, allegiance to the British Crown carried with it subjection to the ultimate legislative authority of the King in Parliament. The prevalence of the judicial authority of the King-in-Council may be said to have corresponded with the supremacy of the legislative power of the King-in-Parliament. The authority in judicial matters which the Council retained in respect of the plantations enabled it to hear and determine appeals from all Courts in the possessions beyond the seas. But this power, prerogative in its nature, was subject to the legislative control of the British Parliament. In fact the statutes of 1833 and 1844 do regulate the manner in which the prerogative is exercised. In such a legal structure the derivative character of colonial constitutional law made it unnecessary to seek for any theoretical foundation for its authority. But the development of the constitutional conventions that accompanied and followed the grant of self-government served almost to hide from view the legal doctrine which ascribed ultimate authority to the British Parliament. The Colonial Laws Validity Act 1865, had conferred upon every Colonial representative legislature a constituent power enabling it to make laws respecting its own constitution, powers and procedure. It had given every Colonial legislature also plenary power to establish courts of justice. It had abolished the doctrine ascribed to the common law denying to Colonial legislatures power to make laws repugnant to the fundamental principles of English law. It is true that it had expressed in statutory form the principle that any colonial law repugnant to any Act of the British Parliament extending to the Colony, or to any order or regulation made under such an Act, should, to the extent of the repugnancy, be void. But the British Parliament so sparingly exercised its residual authority that, in practice, the restraint thus stated was seldom encountered in the Dominions. 84 These were the legal principles on which the Imperial system rested when the Statute of Westminster was enacted. … 86 … The purpose of the main provisions of the Statute is to abrogate the rules of law which were thought to be inconsistent with the existence of complete legal autonomy and complete legal equality. The accomplishment of this object by legislation was necessarily difficult. For, in the first place it brought the promoters of the Statute face to face with the only limitation there is upon the omni-competence of the Imperial Parliament. The limitation necessarily arises from that Parliament’s supremacy over the law. No law it makes can deprive it of supremacy over that law. The last expression of its legislative will repeals all prior inconsistent laws. So long, therefore, as the Dominions remained under the jurisdiction of the British Crown, the theoretical power of the Parliament at Westminster to make laws extending to them could not be extinguished. In the second place, the Dominions did not all desire that the power should be extinguished. Except by its exercise, no way exists of amending the Constitution of Canada. No power of amendment is conferred by the British North America Acts of 1867 to 1930. If Canada seeks a constitutional alteration her only course is to invoke the supreme power of the Imperial Parliament, [1.450]
59
Part I: Introduction
The Statute of Westminster 1931 cont. and the Dominion and the Provinces have found themselves unable to agree on the substitution of any other method. The States of Australia have in the past found it necessary to appeal to the legislative power of the Parliament at Westminster and may do so again. The framers of the Statute, therefore, contented themselves with endeavouring to insure that it would not be exercised except upon the request of the Dominions. But this device would not give quasi-autonomy or quasi-equality in law so long as statutes of the Imperial Parliament, existing or future, prevailed over Dominion legislation. It was, therefore, considered necessary to attempt to reverse the rule of paramountcy and to enable the legislature of the Dominion to enact laws which should prevail over the statutes of the Parliament at Westminster. There are difficulties again in the execution of this purpose, although, perhaps, the difficulties are not so evident. First, the proposed rule could not prevent the Imperial Parliament from afterwards enacting a statute containing some sufficient expression of intention that it should operate in a Dominion, notwithstanding any law of the Dominion to the contrary. Such a statute would necessarily prevail over local statutes even if subsequently enacted. Indeed Canada could not have it otherwise. Any future statute by which, at the request of the Dominion and Provinces, the British Parliament may amend the Canadian Constitution must have paramountcy over Canadian legislation. For, if it were open to the Dominion Parliament to legislate inconsistently with it, the amendment would not possess the controlling force necessary in a rigid Con- 87 -stitution. Again, it is by no means inconceivable that in Australia the States, or one of them, might find it desirable to obtain an Imperial statute for some purpose which may by that means be more readily achieved. The States would not wish that an Imperial statute of this kind should be subject to the overriding authority of the Federal Legislature. In the second place, the constitutions of the Dominions (other than Newfoundland) consist in Imperial statutes. Powers of amendment are conferred by these constitutions except that of Canada. But various limitations are imposed upon the power; and, in any case, a power to make laws inconsistent with a constating instrument is not necessarily the same as the power to amend it. Thus, in the project of removing the binding force of Imperial statutes, there is inherent the question, what binding force will a Dominion constitution then possess? It will be seen that, at this point, we touch the fundamental question to which in the beginning I referred. Anything that touches so profound a question arouses instinctive misgiving. Whether for this reason or because it was feared lest the Statute should prove a Greek gift or for deeper motives of policy, three of the Dominions sought a means of securing themselves from its application. Australia, New Zealand and Newfoundland obtained the insertion of a section in the nature of a proviso to the effect that none of its positive provisions should extend to any of those Dominions as part of its law unless its Parliament adopted the provision. Even then the Dominion might repent. So it was provided that the adoption of a provision might be revoked.
[1.460]
1.
2.
60
Notes&Questions
According to Sir Owen Dixon, in what did the “sovereignty” of the British Parliament consist? Is it possible for a sovereign legislature to grant sovereignty to another legislature? Can this be done while preserving “legal continuity” or does the acquisition of sovereignty require a “legal revolution”? As explained by Dixon, how do the Colonial Laws Validity Act 1865 and the Statute of Westminster 1931 illustrate the difficulties in achieving complete independence? Are any of Australia’s political institutions “sovereign”? Is sovereignty consistent with the rule of law? Consider the views of Joseph Raz, extracted at [1.340]. Is it consistent with federalism? Consider the analysis of Quick and Garran, extracted at [1.50]. Is it consistent with democracy and individual rights? Consider the reasoning of Mason CJ in Australian Capital Television v Commonwealth. [1.460]
Constitutional Fundamentals
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Australian Capital Television v Commonwealth [1.470] Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 137–139 (footnotes omitted) Mason CJ: 137 … The very concept of representative government and representative democracy signifies government by the people through their representatives. Translated into constitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their representatives. In the case of the Australian 138 Constitution, one obstacle to the acceptance of that view is that the Constitution owes its legal force to its character as a statute of the Imperial Parliament enacted in the exercise of its legal sovereignty; the Constitution was not a supreme law proceeding from the people’s inherent authority to constitute a government, notwithstanding that it was adopted, subject to minor amendments, by the representatives of the Australian colonies at a Convention and approved by a majority of the electors in each of the colonies at the several referenda. 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. 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.
[1.480]
Notes&Questions
1.
For discussion of the constitutional idea of popular sovereignty, see G Lindell, “Why Is Australia’s Constitution Binding? – the Reasons in 1900 and Now, and the Effect of Independence” (1986) 16 Federal Law Review 29; G Winterton, “Popular Sovereignty and Constitutional Continuity” (1998) 26 Federal Law Review 1; N Aroney, “A Public Choice? Federalism and the Prospects of a Republican Preamble” (1999) 21 University of Queensland Law Journal 205; S Evans, “Why Is the Constitution Binding? Authority, Obligation and the Role of the People” (2004) 25 Adelaide Law Review 103.
2.
On sovereignty generally, see G Marshall, Parliamentary Sovereignty and the Commonwealth (Clarendon Press, Oxford, 1957); J Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Oxford University Press, Oxford, 1999); N Walker (ed), Sovereignty in Transition (Hart Publishing, Oregon, 2003).
Sue v Hill [1.490] Sue v Hill (1999) 199 CLR 464 at 486-488, 490-492 (some footnotes omitted) [Section 44(i) of the Commonwealth Constitution provides that any person who “is a subject or citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; … shall be incapable of being chosen or of sitting as a senator”. Henry Sue petitioned the High Court, in its capacity as the Court of Disputed Returns under the Commonwealth Electoral Act 1918 (Cth), for an order that Heather Hill was incapable of being elected as a member of the Senate because at the time of her nomination she was a subject or citizen of a foreign power, namely the United Kingdom. Gleeson CJ, Gaudron, [1.490]
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Part I: Introduction
Sue v Hill cont. Gummow and Hayne JJ, McHugh, Kirby and Callinan JJ not deciding, held that the United Kingdom was a “foreign power” within the meaning of s 44(i) and that Hill’s election was therefore invalid.] Gleeson CJ, Gummow and Hayne JJ: 486 … [47] At the material time, Mrs Hill was regarded as a British citizen by the statute law of the United Kingdom …. 487 … [48] The expression “a foreign power” in s 44 does not invite attention to the quality of the relationship between Australia and the power to which the person is said to be under an acknowledgment of allegiance, obedience or adherence or of which that person is a subject or a citizen or entitled to the rights and privileges of a subject or citizen. That is, the inquiry is not about whether Australia’s relationships with that power are friendly or not, close or distant, or meet any other qualitative description. Rather, the words invite attention to questions of international and domestic sovereignty. … [50] In Bonser v La Macchia, Windeyer J referred to Australia having become “by international recognition … competent to exercise rights that by the law of nations are appurtenant to, or attributes of, sovereignty”. His Honour regarded this state of affairs as an instance where “[t]he law has followed the facts”. It will be apparent that these facts, forming part of the “march of history”, received judicial notice. They include matters and circumstances external to Australia but in the light of which the Constitution continues to have its effect and, to repeat Windeyer J’s words, “[t]he words of the Constitution must be read with that in mind”. … 488 … [52] The changes to which Windeyer J referred did not require amendment to the text of the Constitution. Rather, they involved: “in part, the abolition of limitations on constitutional power that were imposed from outside the Constitution, such as the Colonial Laws Validity Act 1865 (Imp) and restricting what otherwise would have been the proper interpretation of the Constitution, by virtue of Australia’s status as part of the Empire. When the Empire ended and national status emerged, the external restrictions ceased, and constitutional powers could be given their full scope.” … 490 … [59] It may be accepted that the United Kingdom may not answer the description of “a foreign power” in s 44(i) of the Constitution if Australian courts are, as a matter of the fundamental law of this country, immediately bound to recognise and give effect to the exercise of legislative, executive and judicial power by the institutions of government of the United Kingdom. However, whatever once may have been the situation with respect to the Commonwealth and to the States, since at least the commencement of the Australia Act 1986 (Cth) this has not been the case. … [60] As to the further exercise of legislative power by the Parliament of the United Kingdom, s 1 of the Australia Act states: 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. [61] The recital to the Australia Act indicates that it was enacted in pursuance of s 51(xxxviii) of the Constitution, the Parliaments of all the States having requested the Parliament of the Commonwealth to 491 enact the statute. Section 51(xxxviii) empowers the Parliament, subject to the Constitution, to make laws for the peace, order and good government of the Commonwealth 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. The Australia Act was enacted before s 51(xxxviii) had been construed in Port MacDonnell Professional Fishermen’s Assn Inc v South Australia (1989) 168 CLR 340. Apparently out of a perceived need for abundant caution, legislation of the Westminster Parliament was sought and passed as the 1986 UK Act (see Zines, Constitutional Change and the Commonwealth (1989) at 20-21). … [63] of the Australia Act does not purport to exclude, as a matter of the law of the United Kingdom, the effect of statutes thereafter enacted at Westminster. Rather, it denies their efficacy as part of the law of the Commonwealth, the States and the Territories. … 492 … [64] The expression in s 1 of the 1986 UK Act “[n]o Act of the Parliament of the United Kingdom passed … shall extend, or be deemed to extend” was used in s 4 of the Statute of Westminster 1931 (UK). Provisions such as s 1 may present doctrinal questions for the constitutional law of the United Kingdom, in particular for the dogma associated with Dicey’s views as to the sovereignty of the Parliament at Westminster. Professor Sir William Wade 62
[1.490]
Constitutional Fundamentals
CHAPTER 1
Sue v Hill cont. pointed out more than forty years ago that Dicey never explained how he reconciled his assertions that Westminster could destroy or transfer sovereignty and the proposition that it could not bind future Parliaments. The effect in the United Kingdom of any amendment or repeal by the United Kingdom Parliament of s 1 would be for those adjudicating upon the constitutional law of that country. But whatever effect the courts of the United Kingdom may give to an amendment or repeal of the 1986 UK Act, Australian courts would be obliged to give their obedience to s 1 of the statute passed by the Parliament of the Commonwealth. [65] It follows that, at least since 1986 with respect to the exercise of legislative power, the United Kingdom is to be classified as a foreign power.
[1.500]
Notes&Questions
Why did Gleeson CJ, Gummow and Hayne JJ adhere to the Commonwealth version of the Australia Act 1986 rather than the UK version? Indigenous Australians [1.510] As we have seen with notions such as the rule of law or constitutional rights, the
starting point in modern liberal democracies is that all persons are equal – all are equal before the law, all (adult citizens) have the right to vote, etc. Bearing in mind this starting point, should our Constitution recognise Australia’s Indigenous peoples and should Australia’s political institutions provide specifically for Aboriginal political representation and/or self-determination? And, if so, how might this be done? “Self-determination” can be understood in many different ways. The following extract, written by Justice Robert French, then of the Federal Court, before he was appointed Chief Justice of the High Court, discusses self-determination as a claim for sovereignty.
Sovereignty and Indigenous Peoples [1.520] R French, “The Constitution and the People”, in R French, G Lindell and C Saunders (eds), Reflections on the Australian Constitution (Federation Press, Sydney, 2003), pp 78-79 78 It is a feature of sovereignty that it tends to exclusivity. Supreme authority, which is its essence, has that character. This is a difficulty underpinning debate about a treaty with Australia’s indigenous people. It has been argued that implicit in the nature of a treaty is recognition of another sovereignty, a nation within Australia. The common law of native title as enunciated in Mabo (No 2) did not involve any yielding of sovereignty. It rested upon the non-justiciable proposition that the Crown acquired sovereignty over the land upon its annexation of the Australian colonies. The acquisition of that sovereignty, however, did not operate directly upon the traditional laws and customs of indigenous people or the relationship with land and waters to which they give rise. The common law in its recognition of those traditional relationships with land does not do so. Nor do the statutory provisions of the Native Title Act 1993 (Cth) which provides for recognition and protection of native title, validation of past invalid acts affecting native title and extinguishment of native title in certain circumstances. To speak of recognition is in one sense to personify the law and to attribute to it a cognitive function. Avoiding personification and cognitive metaphors, recognition can be regarded as the outcome of the application of rules under which certain rights arising at common law are ascertained which are vested in an indigenous community by virtue of its relationship to land or waters. Extinguishment by executive or legislative action is the result of the exercise of the non-indigenous sovereignty which bars or qualifies common law recognition. Importantly it has nothing to say about traditional law or custom or the relationship of Aboriginal people to their land. There is a question whether the concepts of sovereignty so far discussed have any relevance in describing the relationship between 79 indigenous people and their country under traditional law and [1.520]
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Part I: Introduction
Sovereignty and Indigenous Peoples cont. custom and their relationships with each other. Sovereignty is a colonising term. Nevertheless, some indigenous leaders have used it to designate what they maintain is their ongoing traditional responsibility for and ownership of country. In Coe v Commonwealth the applicant purported to sue on behalf of the Aboriginal community and nation of Australia. He asserted membership of the Wiradjeri Tribe and authority from it and other tribes and the whole Aboriginal community and nation to bring the action. He pleaded, inter alia: “6A. Clans, tribes and groups of Aboriginal people travelled widely over the said continent now known as Australia developing a system of interlocking rights and responsibilities making contact with other tribes and larger groups of Aboriginal people thus forming a sovereign Aboriginal nation.” The High Court (Gibbs and Aickin JJ, Jacobs and Murphy JJ dissenting) held that Mason J had rightly dismissed Mr Coe’s application for leave to amend his statement of claim and that his appeal from that order should be dismissed. In so holding Gibbs J acknowledged that the correctness of Milirrpum v Nabalco Pty Ltd, which had denied that the common law could recognise rights and interests in land held by Aboriginal people, would be an arguable question if properly raised. As to the sovereignty claim he said: “The Aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside. They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the law of the Commonwealth, or of a State or Territory, might confer upon them. The contention that there is in Australia an Aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain (Coe v Commonwealth at 408).” Jacobs J said of those parts of the statement of claim which disputed the validity of the Crown’s claim of sovereignty and sovereign possession that they were: “Not matters of municipal law but of the law of nations and are not cognisable in a court exercising jurisdiction under that sovereignty which is sought to be challenged (at 410).” That judgment was given some 13 years or so before Mabo (No 2). Revisiting the Coe pleading in 1993 Mason CJ said [80]: “Mabo (No 2) is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are ‘a domestic dependent nation’ entitled to self government and full rights … or that as a free and independent people they are entitled to any rights and interests other than those created or recognised by the laws of the Commonwealth, the State of New South Wales and the common law (Coe v Commonwealth (1993) 68 ALJR 110 at 115).” The judgments cited make plain the irreconcilability of conflicting claims to sovereignty. That is not to say that the model of recognition derived from the common law of native title may not be suggestive of an approach to an agreement between the Commonwealth and indigenous Australians which does not involve any compromise of sovereignty however that term is understood. Such an agreement could recognise and acknowledge traditional law and custom of indigenous communities across Australia, their historical relationship with their country, their prior occupancy of the continent and that there are those who have maintained and asserted their traditional rights to the present time. This is a cultural reality which can be accepted without compromising, symbolically or otherwise, Australia’s identity as a nation. And if that traditional relationship should be asserted by some in terms of sovereignty, that is sovereignty under traditional law and custom. It may have meaning in that universe of discourse. It can even be accepted in that context, without being in any way inconsistent with the Commonwealth Constitution or the laws made under it.
[1.530]
Notes&Questions
Justice French (as he then was) states that “sovereignty is a colonising term”. What follows from this? For example, does it mean that this idea can never properly represent indigenous understandings of sovereignty? Belinda Wells and John Doyle discuss ways in which our Constitution might recognise and protect the values of Aboriginal and Torres Strait Islander peoples. 64
[1.530]
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Reconciliation and the Constitution [1.540] B Wells and J Doyle, “Reconciliation and the Constitution”, in E Johnston, M Hinton and D Rigney, Indigenous Australians and the Law (Cavendish Publishing, Sydney, 1997), pp 196-198, 206-211 (footnotes omitted) 196 We turn now to consider the more specific issue of self-determination within the Australian context. Aboriginal and Torres Strait Islander peoples assert the right to self-determination on the basis that at the time of the arrival of the British just over 200 years ago, their ancestors had been living in Australia for thousands of years, with control over every 197 aspect of their lives. …In a broad sense, the principle of self-determination is the common fabric through which is threaded the various strands of indigenous rights. As each thread is put into place, the fabric as a whole becomes stronger, more durable. Three main strands of indigenous rights have been identified as: • autonomy rights: which focus upon the right of indigenous peoples to determine the way in which they live and control their social, economic and political systems; • identity rights: which relate to the right to exist as distinct peoples with distinct cultures; and • territory and resource rights: which encompass such things as land entitlements, the right to resources of that land, and the use of those resources. Each of these strands is made up of many threads, and not all of them will be susceptible to the setting of precise and uniform legislative standards. For example, in the area of “autonomy rights”, it may be more appropriate to implement the principle of autonomy through a series of regional agreements which are tailored to the wishes and needs of each particular Aboriginal community. Secondly, the “identity rights” would include the right to protection of items and areas of cultural significance, which is currently regulated by State and Commonwealth legislation. However, this category would also include the right to recognition of Aboriginal customary law, which is an area that is largely unregulated (and therefore unrecognised). The Australian Law Reform Commission has recommended the recognition by our legal system of Aboriginal customary laws, but favoured the adoption of different approaches to different areas of the law, rather than a “broad brush” approach. And, in relation to the third main strand of rights – “territory and resource rights” – the Native Title Act 1993 (Cth) now represents legislative recognition of some, but not all, aspects of this category. Here, the common law may continue to play an important role in resolving areas of detail. 198 It is important to recognise that many of the indigenous rights would be collective rights: by their nature, capable of assertion only by a group (or by an individual or individuals on behalf of a group). The Australian legal system is largely unfamiliar with the idea of group rights. It will always be an extraordinarily difficult task to determine the appropriate balance between group rights and individual rights, both in a general sense (if some type of standard is to be drafted), and in a particular case. For example, Dodson highlights the difficulties posed by an indigenous community’s decision to protect its people from alcohol by declaring the community to be “dry”: “On the one hand are the rights of the community to determine how it will live, to protect its members from harm, and to preserve its culture – rights which are guaranteed under the International Covenant on Civil and Political Rights. On the other are the rights of the individuals to buy or to sell alcohol.” And so, it seems likely that different mechanisms will be advocated or thought appropriate for protecting different indigenous rights. Nonetheless, Dodson emphasises that the indigenous rights must be recognised, and that that recognition must have constitutional force. In his view, constitutional protection is necessary in order to prevent economic interests (eg, those of large resource companies) from too easily persuading the government of the day to override fundamental indigenous rights. Constitutional recognition of such rights would clearly also play a symbolic and educative role, so that Australians will no longer think in terms of “a hierarchy of rights, a hierarchy of knowledge”, with Aboriginal rights and knowledge at the bottom – valued least. So, have other countries provided such constitutional protection of indigenous rights? We turn to look at the position in the United States, New Zealand, and Canada. … 206 In Australia, there are already “reconciliation documents” of sorts. There are regional agreements which have been negotiated by governments, commercial enterprises, and indigenous peoples. The agreements have tended to be [1.540]
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Part I: Introduction
Reconciliation and the Constitution cont. less comprehensive in their coverage of issues than their Canadian equivalents and have “variable legal bases, some statutory, others not”. Secondly, the people of the Torres Strait Islands are in the process of “achieving greater autonomy through the development of a development plan” and through the creation of a new body, the Torres Strait Regional Authority. The Native Title Act 1993 (Cth) encourages the development of regional agreements in relation to land and waters. In Canada, the rights (and the extinguishment of rights) set out in such agreements are constitutionally protected. They are more likely to encompass rights associated with 207 indigenous self-government. Incorporation of such rights may, however, be within reach in Australia, since both Torres Strait Islanders and Northern Territory Aborigines are agitating for greater power “to make decisions about social, cultural, economic, and environmental matters” within their regions. Regional agreements are able to include solutions which are appropriate to local needs. They tend to focus on land use and protection of cultural heritage, and may in the future include grants of local government-type powers. Recognition of Aboriginal and Torres Strait Islander perspectives on such issues contributes to indigenous self-determination. As we have discussed, there are many strands which make up self-determination, and not all are appropriate to all people in all circumstances. Self-government over a defined territory is a realistic goal for some discrete communities, but not for city-based indigenous people. Some indigenous people regard programmes to combat alcoholism and to increase community employment as contributing to personal and collective self-determination, regardless of whether they are administered by an indigenous organisation or not. Others reject any suggestion that Commonwealth-funded statutory authorities such as ATSIC can contribute, through their representative nature and their programmes, to indigenous self-determination. So, opinion will differ on the appropriate mechanisms for implementing general principles such as the right to self-determination and the need to protect cultural heritage. Nonetheless, in our view consideration should be given to according legal recognition to such principles. Politicians and public speakers may express views on the moral entitlements of Aboriginal and Torres Strait Islander peoples, but greater 208 attitudinal change is worked by rights which are not only legally recognised but legally enforceable. The decision in Mabo (No 2) and the impact of s 35 of the Canadian Constitution are obvious examples of this. A starting point would be to include in the constitution some acknowledgment of the prior occupation and dispossession of Aboriginal and Torres Strait Islander peoples in Australia. As Professor Daes has said: “In the culture of a nation, as in the psychology of individuals, the first step towards healing and reconciliation is honesty about the past.” The preamble to the constitution could set the constitution in context by referring to this history, and to the special status of the indigenous peoples as the “first Australians”, and also by describing the aspirations and the diverse cultural backgrounds of Australians today. ATSIC has put forward for consideration a preamble which includes these various elements. Secondly, we agree with the Constitutional Commission that s 51(xxvi) of the Constitution should be amended so that there is an explicit power in the Commonwealth to make laws with respect to “Aborigines and Torres Strait Islanders”. The Constitutional Commission also recommended that s 25 of the Constitution should be repealed because of its discriminatory basis. Section 25 states that where a State law causes “persons of any race” to be disqualified from voting at particular State elections, those persons will not be counted when calculating the population of the State or the Commonwealth. In our view, the provision is anachronistic, and should have been put forward for repeal at the time of the 1967 referendum. Moving beyond the existing clauses of the constitution, we next consider the suggestion that a non-discrimination provision should be entrenched in the constitution. During the debates on the Native Title Bill 1993 (Cth), Aboriginal people recognised the importance of the guarantees against racial discrimination contained in the Racial Discrimination Act 1975 (Cth), but also their vulnerability as ordinary statutory provisions. As Fr Brennan SJ has suggested, the principle could be included as part of a more general guarantee (against Commonwealth and State laws and practices) of 209 “freedom from discrimination on the ground of race, colour, ethnic or national origin, sex, marital status … political, religious or ethical belief”, or sexuality, or age. The components of constitutional change that we have mentioned thus far could be described as comprising a “minimalist” position. Such change would not threaten traditional assumptions about the need to accommodate Aboriginal and Torres Strait Islander people within our existing system of representative government, in a way that is fair and 66
[1.540]
Constitutional Fundamentals
CHAPTER 1
Reconciliation and the Constitution cont. non-discriminatory. We could add to this, two other possibilities: the reservation (by constitutional amendment) of a certain number of Senate seats for indigenous representatives, and the enactment of a Bill of Right. To what extent have Wells and Doyle’s arguments been taken up? Consider the following report of the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples.
Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution [1.550] Department of Families, Housing, Community Services and Indigenous Affairs, Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Report of the Expert Panel, Recommendations (Canberra, 2012), p xviii 1.
That section 25 be repealed.
2.
That section 51(xxvi) be repealed.
3.
That a new “section 51A” be inserted, along the following lines: Section 51A Recognition of Aboriginal and Torres Strait Islander peoples • Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples; • Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; • Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples; • Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples; the Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.
The Panel further recommends that the repeal of section 51(xxvi) and the insertion of the new “section 51A” be proposed together. 4.
That a new “section 116A” be inserted, along the following lines: Section 116A Prohibition of racial discrimination (1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin. (2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.
5.
That a new “section 127A” be inserted, along the following lines: Section 127A Recognition of languages (1) The national language of the Commonwealth of Australia is English.
[1.550]
67
Part I: Introduction
Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution cont. (2) The Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of our national heritage.
Notes&Questions
[1.560]
1.
2.
Why did the expert panel choose not to recommend that the Constitution be amended to recognise Aboriginal and Torres Strait Islander sovereignty, a treaty with indigenous peoples, or special representation for Australia’s indigenous peoples in the Parliament? Why did it choose not to recommend the insertion of a new preamble at the beginning of the Australian Constitution recognising Australia’s indigenous peoples? For the full text of the report, see http://www.recognise.org.au/expert-panel-report. Would the preamble to the proposed s 51A be effective in limiting the legislative power that the proposed section would confer? Professor Anne Twomey has observed (“The Preamble and Indigenous Recognition” (2011) 15(2) Australian Indigenous Law Review 1 at 17): The Expert Panel was wise in avoiding the many problems that would have arisen if it had attempted to alter the existing Preamble or insert a new general preamble in the Commonwealth Constitution. By confining its statement of recognition to preambular words that introduce a substantive change in the text of the Constitution, it avoided the controversy involved in deciding what other matter should be included in a preamble, avoided a contentious debate about common values, confined the interpretative application of the preamble to a particular provision rather than the Constitution as a whole and ensured that the preambular words introduced and explained a new provision in the Constitution. The Expert Panel does appear to assume, however, that the reference to “advancement” in the preambular words to proposed section 51A will act as a form of qualification on the grant of power in that section and that a court will assess future laws with respect to Aboriginal and Torres Strait Islander peoples by reference to whether or not, overall, they are for the “advancement” of those peoples. This gives rise to two contentious questions, to which the answers are unknowable in advance of such an amendment being enacted and tested in the courts. First, would a court use the preamble of section 51A to qualify the scope of the power? Secondly, if it does so, how would it apply the concept of advancement and how would this affect the validity of laws? For example, if a law was regarded as overall for the advancement of Aboriginal and Torres Strait Islander peoples, but was later amended so that the balance tipped the other way, would the entire law be rendered invalid? The answers to such questions cannot be known until the provision is tested in the High Court and that cannot occur until after it has been approved by a referendum and become part of the Constitution. Hence if this provision were put to a referendum in this form, voters would be asked to approve it without being certain of its consequences. This is asking a lot more of voters than mere willingness to recognise Aboriginal and Torres Strait Islander peoples in the Constitution.
68
[1.560]
CHAPTER 2 States [2.10]
THE ESTABLISHMENT OF REPRESENTATIVE AND RESPONSIBLE GOVERNMENT ........................................................................................................... 70 [2.20]
[2.40]
Federal Constitutional Law, An Introduction ...................................... 70
THE LEGISLATIVE POWER OF COLONIAL LEGISLATURES ....................................... 72 [2.40]
General and plenary legislative powers ................................................... 72 [2.50]
[2.60]
[2.70]
[2.90]
Colonial Laws Validity Act 1865 (UK) ............................................... 74
The meaning of repugnancy .................................................................... 75 [2.100]
[2.120]
Union Steamship v King .................................................................. 73
Repugnancy to English law and the Colonial Laws Validity Act 1865 (UK) ............................................................................................................. 74
Union Steamship v Commonwealth ................................................. 75
Responsible government in the colonies ................................................. 75 [2.120]
Federal Constitutional Law, An Introduction ...................................... 75
[2.130] FEDERATION ............................................................................................................... 76 [2.140]
The legal status of the States vis-à-vis the Commonwealth .................. 77
[2.150] POST-FEDERATION STATE CONSTITUTIONS ........................................................... 78 [2.160] [2.170]
Australia Act 1986 (Cth) ................................................................. 79 Australia Act 1986 – Some Legal Conundrums ................................. 80
[2.180] PARLIAMENTARY SOVEREIGNTY AND MANNER AND FORM ................................ 83 [2.190] [2.210] [2.230]
[2.250]
Parliamentary sovereignty ......................................................................... 94 [2.260] [2.280]
[2.300]
The British Grundnorm: Parliamentary Supremacy Re-examined .................................................................................. 96 Clayton v Heffron ......................................................................... 103
The reconstitution alternative ................................................................. 107 [2.310] [2.330]
[2.350]
McCawley v The King ..................................................................... 85 Attorney-General (NSW) v Trethowan .............................................. 86 Attorney-General (NSW) v Trethowan .............................................. 92
An Overview of Manner and Form in Australia ................................ 107 Attorney-General (WA) v Marquet ................................................. 109
Limits on the power to enact manner and form provisions pursuant to s 6 of the Australia Act ............................................................................. 114 [2.360] [2.380] [2.400]
South Eastern Drainage Board v Savings Bank of Australia .............. 115 The Comalco Case ........................................................................ 116 West Lakes v South Australia ......................................................... 118
[2.420] THE ABDICATION OF LEGISLATIVE POWER ........................................................... 120 [2.430]
An Overview of Manner and Form in Australia ................................ 121
[2.450] STATE PARLIAMENTS AND EXTRA-TERRITORIAL LAWS ......................................... 123 [2.460] [2.480]
Pearce v Florenca .......................................................................... 124 Union Steamship v King ................................................................ 128
[2.500] STATE COURTS AND THE SEPARATION OF JUDICIAL POWER .............................. 130 69
Part I: Introduction
[2.510] [2.560] [2.590] [2.610] [2.640] [2.670] [2.690] [2.710]
Kable v DPP (NSW) ...................................................................... 131 Fardon v Attorney-General (Qld) .................................................... 143 Australian States: Cinderellas No Longer? ...................................... 157 International Finance Trust v NSW Crime Commission .................... 160 South Australia v Totani ................................................................ 163 Momcilovic v The Queen ............................................................... 174 Assistant Commissioner Condon v Pompano .................................. 178 Kuczborski v Queensland .............................................................. 181
THE ESTABLISHMENT OF REPRESENTATIVE AND RESPONSIBLE GOVERNMENT [2.10] Together with the Commonwealth, the constituent elements in the Australian federal
system are the States. Each State has its own constitution and legislature. The Commonwealth Constitution regulates the States’ inter-relationship and their relationship to the Commonwealth. Prior to the establishment of the Commonwealth in 1901, the States were self-governing British colonies with a high degree of legal and political autonomy, although ultimately subject to the legal authority of the United Kingdom Parliament (referred to as the Imperial Parliament) as were the other colonies and possessions within the British Empire. Representative and responsible government was extended to the Australian colonies by Imperial legislation or local legislation enacted pursuant thereto. Even after federation in 1901, the States remained subject to the United Kingdom’s paramount legislative competence, and did so until 1986 when the Australia Acts 1986 (UK and Cth) were enacted. The British element in the constitutional evolution of the States was reinforced by the reception of English common law and statute law – so much as was relevant to their circumstances – in the early colonial period.
Federal Constitutional Law, An Introduction [2.20] K Booker, A Glass and R Watt, Federal Constitutional Law, An Introduction (2nd ed, Butterworths, Sydney, 1998) pp 9-10. British colonies The constitutional structure of government in Australia has roots in the establishment, development and administration of colonies in the country. … A claim in the name of the Crown was made again … on 26 January 1788 by Governor Phillip on the establishment of the colony of New South Wales. By 1829 a combination of formal assertions of legal sovereignty and the founding of more settlements put the entire continent under the sovereignty of the British Crown. [2.2] At common law, for constitutional law purposes, British colonies are classified as settled, conquered or ceded: 6 Halsbury’s Laws of England (1991, 4th ed reissue), para 978; Cooper v Stuart (1889) 14 App Cas 286 at 291 (PC). A settled colony [as the Australian colonies were regarded] is one that is formed by the British settlement of an uninhabited region or a region that does not have an established system of law. … In a settled colony the settlers are thought of as carrying law with them. The law received into the colony in this way is so much of the common and statute law of England as is suitable to the circumstances of the colony. As well as this body of law applicable by reception, the law of a settled colony includes any British statutes that have been enacted with the intention that they should apply in the colony so as to prevail over other laws, if any, on the same subject matter. Imperial statutes of that kind are said to be applicable by paramount force. A statute may apply by paramount force in the colony whether it is enacted before or after the acquisition of the colony. … When an issue about the reception of law in New South Wales was being considered by the Privy Council in Cooper v Stuart (1889) 14 App Cas 286 the classification of the colony as a settled colony was considered to be obvious … The reasoning of Cooper v Stuart (and other cases on the doctrine of 70
[2.10]
States
CHAPTER 2
Federal Constitutional Law, An Introduction cont. terra nullius) was re-examined in Mabo v Queensland [No 2] (1992) 175 CLR 1, a case in which the High Court recognised that a form of native land title survived the assertion of British sovereignty over Australia. It was held that the doctrine of terra nullius was no longer part of Australian law. Although … the case assumes the validity of the assertion of British sovereignty.
[2.30] The earliest established colony, New South Wales, originally under a military form of
government, was granted civil government in 1823 by the Imperial Parliament pursuant to the New South Wales Act (4 Geo IV c 96). It established a Legislative Council (s 24) consisting of five to seven members appointed by the Crown from amongst the residents of the colony to advise the Governor. When acting on the advice of the Council, the Governor was vested with power to make laws and ordinances for the peace, welfare and good government of the colony, subject to the requirement that they not be “repugnant” to “the Laws of England”, or to the Act itself, and any Charters, Letters Patent or Orders in Council which were issued pursuant to it. Pursuant to the Act, Letters Patent were issued by the Crown, and promulgated on 17 May 1824, which established the Supreme Court of New South Wales. The Chief Justice was required to certify to the Governor that any proposed law or ordinance complied with the abovementioned repugnancy provisions (s 29); all laws and ordinances were to be laid before the Imperial Parliament (s 31) and the Monarch was vested with power to disallow any Act or Ordinance within three years. This initial pattern of government was eventually mirrored in all the other Australian colonies in their initial stages of development. The direct power of the colonial Governors diminished as responsible government expanded and a bicameral legislature was established with a representative lower house possessing general legislative competence. Thus, in 1828, pursuant to the Australian Courts Act 1828 (UK) (9 Geo IV c 83), the size of the Legislative Council in New South Wales was expanded, together with its power relative to that of the Governor. The disapproval of a majority of the Council effectively vetoed the enactment of any legislation supported by the Governor, whereas hitherto, in emergencies at least, the vote of one member in support of the Governor was sufficient for the enactment of legislation. The Act also provided that all English law, both common law and statute, in force in England at the time was applicable to the colony – to the extent, at least, that the circumstances of the colony would allow. However, in 1842, by the Australian Constitutions Act 1842 (UK) (5 & 6 Vict c 76), the Imperial Parliament legislated to provide some form of representative government in New South Wales. Two thirds of the members of the Legislative Council were now to be elected. The Governor and Council were empowered to increase the number of members of the Council. However, the right to vote was subject to property qualifications. In addition to various limitations on the legislative competence of the Governor acting on the advice of the Council, the repugnancy limitations remained. Moreover, responsible government still eluded the colony. The Governor essentially controlled colonial finances and still had the discretion to veto local legislation. In short, the Governor was ultimately responsible to the British Government. In 1850 the Australian Constitutions Act 1850 (UK) (13 & 14 Vict c 59) provided for a separate Legislative Council for the Port Phillip district of New South Wales (to become Victoria) and reformed the existing legislatures of South Australia and Van Diemen’s Land (Tasmania) to allow for elected members along similar lines to New South Wales. The Act also provided (s 32) that upon the establishment of Legislative Councils as provided for by the Act, the legislatures of these colonies, as well as that of Western Australia, were to have constituent power, that is, the power to alter their constitutions and to set up bicameral legislatures, subject to the royal assent. The respective Governors, acting with the advice and [2.30]
71
Part I: Introduction
consent of these Councils, were given broad and general legislative power to “make laws for the peace, welfare, and good government” of their respective colonies, subject to certain very specific exceptions and subject to the usual repugnancy limitations. Thus, they were granted a plenary general legislative power, in addition to their constituent power, subject to limitations and specific exceptions. Although dissatisfied with these exceptions, the colonies were given the significant power to frame their own constitutions. New South Wales and Victoria were the first to do so, not without some obliging assistance from the Imperial Parliament. The Imperial Parliament enacted enabling acts in 1855 which broadened the power of colonial legislatures to amend their constitutions: 18 & 19 Vict c 54, referred to as the New South Wales Constitution Statute (to distinguish it from the Act it enabled) in the case of New South Wales, and, in the case of Victoria, 18 & 19 Vict c 55. The locally drafted Constitution Acts for each colony were contained in the schedules to the respective Imperial Acts. Thus was effected the granting of general legislative power to the future States as well as constituent power, subject of course to the maintenance of the ultimate legal authority of the Imperial Parliament. The New South Wales Constitution Act, s 1, provided that the new bicameral legislature – consisting of the Legislative Council together with a new Legislative Assembly – had the competence to “make laws for the peace, welfare and good government” of the colony. Its Victorian counterpart provided (s 1) that the new bicameral legislature had the competence “to make laws in and for Victoria in all cases whatsoever”. The 1855 Imperial legislation also provided that the Queen in Council was empowered to create a separate colony out of the northern part of New South Wales, leading to the Order in Council in 1859 which established the colony of Queensland with the same type of legislative arrangements as those in New South Wales. Similar constitutional arrangements were to be made for South Australia and Tasmania, with the legislatures having a general legislative competence and the colonial executive to be responsible to the colonial parliaments. (For a detailed examination of these developments, see R D Lumb, The Constitutions of the Australian States (5th ed, University of Queensland Press, Brisbane, 1991) and G Carney, The Constitutional Systems of the Australian States and Territories (Cambridge University Press, Melbourne, 2006), ch 2.) Western Australia was granted responsible government along similar lines in 1890 pursuant to the enabling Imperial statute 53 & 54 Vict c 26 which contained the Western Australian Constitution Act 1889.
THE LEGISLATIVE POWER OF COLONIAL LEGISLATURES General and plenary legislative powers [2.40] The powers of the colonial legislatures in Australia mirrored those granted by the
Imperial Parliament to other more developed colonies within the British Empire in the 19th century. This vesting of legislative power was variously expressed in those provisions which enabled colonial legislatures to legislate for the “peace, welfare [or order] and good government” of the colony or simply, as in the case of Victoria, “in and for” the colony “in all cases whatsoever”. Similar forms of words were standard British usage in enabling Imperial statutes and colonial constitutional enactments. The Privy Council consistently interpreted this “peace, welfare and good government” formula broadly to refer simply to a general plenary legislative power and not as words of limitation which could become the basis for legal challenges to the validity of legislation on the basis that it was not for the “peace, welfare and good government” of the colony. In Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, the High Court, in a unanimous joint judgment, reviewed the authorities and considered the nature of the power of State parliaments. 72
[2.40]
States
CHAPTER 2
Union Steamship v King [2.50] Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 9 Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ: 9 The power to make laws “for the peace, welfare, and good government” of a territory is indistinguishable from the power to make laws “for the peace, order and good government” of a territory. Such a power is a plenary power and it was so recognised, even in an era when emphasis was given to the character of colonial legislatures as subordinate law-making bodies: R v Burah (1878) 3 App Cas 889; Hodge v The Queen (1883) 9 App Cas 117; Powell v Apollo Candle Company (1885) 10 App Cas 282; Riel v The Queen (1885) 10 App Cas 675. [These cases] decided that colonial legislatures were not mere agents or delegates of the Imperial Parliament. …Viscount Radcliffe, speaking for the Judicial Committee, described a power to make laws for the peace, order and good government of a territory as “connot(ing), in British constitutional language, the widest law-making powers appropriate to a Sovereign”: Ibralebbe v The Queen [1964] AC 900 at 923. These decisions and statements of high authority demonstrate that, within the limits of the grant, a power to make laws for the peace, order and good government of a territory is as ample and plenary as the power possessed by the Imperial Parliament itself. That is, 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. … Whether the exercise of that legislative power is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law (see Drivers v Road Carriers [1982] 1 NZLR 374, at 390; Fraser v State Services Commission [1984] 1 NZLR 116 at 121; Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 at 398), a view which Lord Reid firmly rejected in Pickin v British Railways Board [1974] AC 765 at 782, is another question which we need not explore.
[2.55]
Notes&Questions
The High Court appeared to have left open the question whether “rights deeply rooted in our democratic system of government and the common law” could be used as a limitation on the legislative competence of a parliament otherwise vested with plenary power. This particular notion has survived the period of the ascendancy of classical Diceyian notions of parliamentary supremacy. Even though it is a proposition which has not received authoritative acceptance, at least since the Glorious Revolution of 1688 in England, it remains surprisingly resilient. Perhaps there is some comfort in the notion that there might be a deeply rooted higher law which will stand in the way of a parliament determined to pass Acts which are so abhorrent that they offend, at some deep and fundamental level, basic and universal notions of human decency and civility. In the Australian constitutional context, the issue presented itself again for consideration in Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399, in which Gaudron, McHugh, Gummow and Hayne JJ appear to have suggested that the recognition of such fundamental rights would be incompatible with s 2(2) of the Australia Acts 1986 (Cth and UK) (at 410) which vested in State parliaments the same legislative competence that the United Kingdom had with respect to the States. Kirby J also appeared to reject any ongoing relevance of such fundamental rights (at 432, although see G Winterton, “Justice Kirby’s Coda in Durham” (2002) 13 Public Law Review 165). Callinan J reserved his position on this question (at 433). (On this question generally, see G Winterton, “Constitutionally Entrenched Common Law Rights: Sacrificing Means to Ends?”, in C Sampford and K Preston (eds), Interpreting Constitutions (Federation Press, Sydney, 1996); L Zines, “A Judicially Created Bill of Rights” [2.55]
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Part I: Introduction
(1994) 16(2) Sydney Law Review 166; TRS Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford University Press, Oxford, 2001); J Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Clarendon Press, Oxford, 1999), ch 10.) It is therefore unlikely that a fundamental rights principle will prevail as a limitation on State legislative power. Repugnancy to English law and the Colonial Laws Validity Act 1865 (UK) [2.60] The precise scope of the repugnancy limitation on colonial legislatures vis-à-vis English
law was open to varying interpretation. The issue came to a head as a result of the over-zealous use of the limitation by Mr Justice Boothby of the Supreme Court of South Australia to invalidate a number of South Australian statutes. His invalidation of parts of the Real Property Act 1886 (SA) in particular, which sought to introduce the new Torrens Title system, produced quite some consternation in government circles. The South Australian Government eventually sought advice from the Imperial law officers in order “to be relieved from a condition of the gravest constitutional embarrassment”. (E G Blackmore, The Law and Constitution of South Australia (SA Government Printer, Adelaide, 1894), p 64. It is apt to note that Blackmore, on the title page, quoted from Thucydides, The Peloponnesian War, Bk 1, p 34: “Colonists are not sent abroad to be the slaves of those left behind, but to be their equals.”) In response the report of the English Law Officers, Roundell Palmer (later the Earl of Selborne LC) and R P Collier, recommended Imperial legislation to clarify the precise scope of the repugnancy limitation to avoid future confusion, and also perhaps to avoid the embarrassment of colonial governments having again to beseech imperial authorities to rid them of turbulent judges. The result was the Colonial Laws Validity Act 1865 (UK) (28 & 29 Vict c 63). It was an affirmation of the constituent and plenary power of colonial legislatures within the overall context of the legislative supremacy of the Imperial Parliament.
Colonial Laws Validity Act 1865 (UK) [2.70] Colonial Laws Validity Act 1865 (UK), ss 2, 3 and 5 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 repugnant to any Order or Regulation made under Authority of such Act of Parliament, or having in the Colony the Force and Effect 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. 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 … 5. Every Colonial Legislature shall have, and be deemed at all times to have had, full Power within its Jurisdiction to establish Courts of Judicature, and to abolish and reconstitute the same, and to alter the Constitution thereof, and to make Provision for the Administration of Justice therein; and every Representative Legislature shall, in respect to the Colony under its Jurisdiction, have, and be deemed at all Times to have had, full Power to make Laws respecting the Constitution, Power, and Procedure of such Legislature; provided that such Laws 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.
74
[2.60]
States
Notes&Questions
[2.80]
1.
2.
CHAPTER 2
Section 2 made it clear that it was repugnancy to an Imperial statute, not a domestic statute or English law, applicable to the colony – “but not otherwise” – which constituted the ground for invalidity of colonial statutes. Section 5 expressly confirmed the power of every colonial “Representative Legislature” over its own constitution. The proviso contained in the last paragraph to s 5 makes provision for what is commonly referred to as “manner and form” constraints. This enabled colonial legislatures to introduce special procedures – eg, special majorities, joint sittings of the houses, a referendum – which had to be observed before a Bill could become law, thus restricting or binding a future parliament. However, the manner and form constraints applied only to laws respecting the “constitution, power, and procedure” of the legislature.
The meaning of repugnancy [2.90] The concept of repugnancy is very similar to the concept of “inconsistency” in s 109 of
the Commonwealth Constitution. In Union Steamship Co of New Zealand Ltd v Commonwealth (1925) 36 CLR 130 (at 148) Isaacs J stated that “repugnancy” is equivalent to inconsistency or “contrariety”. Higgins J, in the same case, also considered its meaning.
Union Steamship v Commonwealth [2.100] Union Steamship Co of New Zealand Ltd v Commonwealth (1925) 36 CLR 130 at 155–156 Higgins J: 155 The object of the Act of 1865 was … to make it clear that a colonial legislature, acting for the colony in pursuance of the powers of legislation conferred, might act freely and without constraint from London, excepting only so far as a British Act, applying or extending to the colony, definitely contradicted the colonial legislation. This view is supported by the expression that the Act of 1865 was “the charter of colonial legislative independence” (AV Dicey Law of the Constitution, 5th ed, p 99). The British Parliament by the Act of 1865 expressly confined the principle of invalidity for repugnancy to repugnancy between the local law and some definite provision of a British Act extending to the colony; and prevented the local Act from being treated as invalid in all its sections and provisions if it were invalid in one. Hence the words in s 2, “to the extent of such repugnancy, and not otherwise”.
Notes&Questions
[2.110]
The repugnancy provisions of the CLVA continued to bind the Australian colonial legislatures, and later the States, until 1986 when the enactment of the Australia Acts 1986 (UK and Cth) removed the repugnancy provisions. The Australia Act 1986 will be discussed in more detail below. Responsible government in the colonies
Federal Constitutional Law, An Introduction [2.120] K Booker, A Glass and R Watt, Federal Constitutional Law, An Introduction (2nd ed, Butterworths, Sydney, 1998) at [2.14]-[2.17] [2.14] Responsible government, as applied to parliamentary systems modelled on the Westminster system, means that government, though formally carried out in the name of the Crown, in reality is [2.120]
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Part I: Introduction
Federal Constitutional Law, An Introduction cont. conducted by Ministers who are members of parliament. Under responsible government, apart from some special situations where the Crown is said to have reserve powers, the Crown acts on the advice of the Ministers who take responsibility for government and who are accountable to parliament… [2.15] It is difficult to define responsible government succinctly because it is a collection of principles which are part law and part convention and practice. The principles are not static, they evolve as the reality of the conduct of government changes and there are differences in the way responsible government operates in the various governmental systems that are organised on Westminster lines. … In its contemporary form in Australia, responsible government is a system in which a group of parliamentarians who command majority support in parliament form an executive government by being commissioned as Ministers of the Crown. Where the parliament is bicameral the government must command majority support in the Lower House. By convention there is a chief Minister – the Prime Minister in the Commonwealth government, the Premier in State governments and the Chief Minister in the Northern Territory [and ACT] government. The chief Minister is the political head of the government and presides over a body called the Cabinet which makes all the important policy decisions. The Cabinet consists of all the Ministers or an inner core of them. The Ministers, acting in accordance with Cabinet policies, are responsible for executive government in the sense of being in charge of administrative activities and they are responsible to parliament by being accountable for their actions as Ministers and the actions of the public service departments they control. For most purposes, Crown Representatives (the Governor-General, State Governors and the Administrator of the Northern Territory) are figureheads who do not possess any independent discretion in the exercise of authority vested in them. [2.16] … The constitutions under which the colonies acquired self-government contain vaguely worded sections that assume the existence of responsible government. For example, s 37 of the Constitution Act adopted for New South Wales in 1855, gave the Governor the power to appoint “the officers liable to retire from office on political grounds”. This is a nebulous reference to the commissioning of Ministers who are responsible to parliament. Section 18 prohibited members of the Legislative Assembly from holding any office of profit under the Crown but exempted “official members of the Government” including the Colonial Secretary, Colonial Treasurer, Auditor General, Attorney-General and Solicitor General. In other words they could be appointed to salaried positions as Ministers of the Crown and also sit in the Lower House. It is clear from the political circumstances in which the Act was drafted that it was intended to establish offices and institutions suitable for the implementation of responsible government and a system of responsible government was established in New South Wales when the Act came into force. Read in its historical context the Act must be interpreted as implicitly authorising responsible government.
FEDERATION [2.130] The framing of the Commonwealth Constitution, and the establishment of the
Commonwealth of Australia, was the culmination of much thought and public debate on the desirability of creating a federal state from amongst the British colonies in the antipodes. Commercial benefits and defence were major considerations in this regard. The transition from idea to reality received considerable impetus in the 1890s from the Constitutional Conventions which included delegates from the various Australian colonies. The architecture of the future federation was left almost entirely in Australian hands. The transformation of the Australian colonies into States within the new Commonwealth of Australia was achieved when the proclamation was made by Queen Victoria on 17 September 1900 pursuant to s 3 of the Commonwealth of Australia Constitution Act 1900 (UK): “the people of New South Wales, Victoria, South Australia, Queensland, Tasmania and … Western Australia shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia” on and after 1 January 1901. 76
[2.130]
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CHAPTER 2
The States retained a considerable degree of legislative independence. Their legislatures continued to enjoy plenary power, including constituent power, although upon federation they were still subject to the CLVA as was the newly nascent Commonwealth itself. In addition, their legislative competence was made subject to the new Commonwealth Constitution. Section 106 declared that “subject to this Constitution”, the Constitution of each State shall continue as at the establishment of the Commonwealth. Section 109 provided that where 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.” The Constitution, by s 107, sought to preserve the legislative competence of the State Parliaments, providing that: “Every power of the Parliament of a Colony which has become or becomes a State shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the States, as the case may be.” The legal status of the States vis-à-vis the Commonwealth [2.140] As the States originated as Crown colonies, a number of issues relating to the legal
status of the States vis-à-vis the Commonwealth are worth considering. (For a concise analysis, see Booker, Glass and Watt (2nd ed, 1998), ch 14 and Stellios (Zines, 6th ed 2015) at 503–509.) Section 106 of the Commonwealth Constitution provides: The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.
This section makes it clear that State constitutions are to be preserved, as are the constituent powers of the States, although now rendered subject to the Commonwealth Constitution. Section 107 of the Commonwealth Constitution provides: Every power of the Parliament of a Colony which has become or becomes a State shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the State, as the case may be.
It is thus made clear that existing powers of the States shall continue, although this does not apply to those heads of legislative power which the Constitution now vests exclusively in the Commonwealth Parliament. State laws are rendered inoperative to the extent of their inconsistency with Commonwealth laws pursuant to s 109. Also, State legislative power is rendered subject to limitations which may be implied in the Commonwealth Constitution; but only to the extent that such limitations are applicable to the States (Dawson J in McGinty v Western Australia (1996) 186 CLR 140 at 189). Furthermore, s 107 has not been accepted by the High Court as the basis upon which to establish any principle of reserved State powers. Certain issues have been raised in relation to s 106 and the extent to which it may be a limit on Commonwealth power, for which see the abovementioned references to Booker, Watt and Glass and to Zines. In relation to s 106, Professor Zines (Stellios, Zines (6th ed 2015) at 507–508) has written: Once the general approach to the Engineers’ case is accepted the only way to treat s 106 as a limitation on Commonwealth power is by the artificial reading down of s 106 … In principle, the only reason for such an exercise is the federal nature of the Constitution, namely as a safeguard for the continued existence and independence of the States. Yet, the Court, when faced with this question, has generally relied on implied limitations. The restrictions on Commonwealth power discussed earlier in this chapter are based on the view that the Constitution read as whole predicates the continued existence and independence of the States. It is suggested that if what is regarded as at stake is a federal principle it would be preferable to approach that issue by a direct application of that principle as one embodied in the [2.140]
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Commonwealth Constitution as a whole rather than by endeavouring to eke out the phrase of “Constitution of each State” in s 106 a solution. The substantive considerations should not be bogged down in the process of determining whether a particular matter is or is not part of the State’s “Constitution”, nor should that conceptual issue be used to disguise the fundamental question of State existence and capacity to function. From a textual viewpoint the phrase “subject to this Constitution” in s 106 should be taken as referring to all other provisions in the Constitution, including federal powers that necessarily alter the operation of the State’s Constitution and not as reserving any powers that necessarily alter the operation of the State’s Constitution and note as reserving any powers or immunities to the States. The similar phrase in s 51 should be construed as a reference to all those provisions that are expressed as a restriction of Commonwealth powers. Even if the words “subject to this Constitution” in s 106 are not regarded as referring generally to s 51, they are apposite for ensuring that where the fulfilment of the purpose of a Commonwealth power requires interference with State constitutional rules, the Commonwealth has power to do so, as in cases that may arise under the wartime defence power. This approach was adopted by the High Court with regard to s 51(xxxviii) on the assumption that s 106 might restrict the powers of the Commonwealth (Port MacDonnel Professional Fisherman’s Association Inc v South Australia (1989) 168 CLR 340; Attorney-General (WA) v Marquet (2003) 217 CLR 545). In Port MacDonnel the law clearly affected State Constitutions in the sense suggested, but it was not inconsistent with State independence or its capacity to function as a unit of the federation. The latter was the important issue. Indeed in most cases the considerations that the Court should take into account seem much the same whether one relies on implied restrictions or s 106. The latter provision, however, tends to divert attention away from the basic issue, which is the federal structure of the Constitution and its actual operation. What purpose does s 106 serve if it does not amount to a restriction on federal power? It certainly confirms as an “underlying principle of Australian federalism” (a phrase used by Windeyer J in relation to s 107 [in R v Phillips (1970) 125 CLR 93 at 116] that the structure and powers of the States continue as before, subject to the restrictions and enlargements in the Constitution. It also provides a basis, among other provisions, for inferring the federal nature of the Constitution and the implied restrictions on Commonwealth power arising therefrom. (See Barwick CJ in New South Wales v Commonwealth (1975) 135 CLR 337 at 372 and Murphy J in Bistricic v Rokov (1976) 135 CLR 552 at 566.)
POST-FEDERATION STATE CONSTITUTIONS [2.150] After Federation, State legislatures retained their power to amend their constitutions.
Currently, in all State Constitutions, the legislature consists of the Queen, a popularly elected lower house referred to as a Legislative Assembly or House of Assembly, and, in all States except Queensland, a popularly elected upper house referred to as a Legislative Council. The Queensland Parliament abolished its Legislative Council in 1922 pursuant to the Constitution Act Amendment Act 1922 (Qld). The legal independence of the States was enhanced by the Australia Act 1986 (Cth), with identical legislation being enacted by the United Kingdom Parliament. Each of the States requested the enactment of the Commonwealth legislation pursuant to s 51(xxxviii), as well as requesting the Commonwealth to request and consent to the identical United Kingdom legislation. The Australia Act 1986 contained a number of important provisions affecting the States, including the removal of the repugnancy limitations imposed on State Parliaments by CLVA. Subject to the Commonwealth Constitution, their plenary legislative power was confirmed and they were vested with any legislative powers the United Kingdom Parliament may have exercised in relation to them.
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Australia Act 1986 (Cth) [2.160] Australia Act 1986 (Cth), ss 1 – 15 An Act 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 … 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. 2 Legislative powers of Parliaments of States (1) 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. (2) It is hereby further declared and enacted that the legislative powers of the Parliament of each State include all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State but nothing in this subsection confers on a State any capacity that the State did not have immediately before the commencement of this Act to engage in relations with countries outside Australia. 3 Termination of restrictions on legislative powers of Parliaments of States (1) The Act of the Parliament of the United Kingdom known as the Colonial Laws Validity Act 1865 shall not apply to any law made after the commencement of this Act by the Parliament of a State. (2) No law and no provision of any law made after the commencement of this Act by the Parliament of a State shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future Act of the Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Parliament of a State shall include the power to repeal or amend any such Act, order, rule or regulation in so far as it is part of the law of the State. … 5 Commonwealth Constitution, Constitution Act and Statute of Westminster not affected Sections 2 and 3(2) above: (a) are subject to the Commonwealth of Australia Constitution Act and to the Constitution of the Commonwealth; and (b) do not operate so as to give any force or effect to a provision of an Act of the Parliament of a State that would repeal, amend or be repugnant to this Act, the Commonwealth of Australia Constitution Act, the Constitution of the Commonwealth or the Statute of Westminster 1931 as amended and in force from time to time. 6 Manner and form of making certain State laws Notwithstanding sections 2 and 3(2) above, 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. 7 Powers and functions of Her Majesty and Governors in respect of States (1) Her Majesty’s representative in each State shall be the Governor. (2) Subject to subsections (3) and (4) below, all powers and functions of Her Majesty in respect of a State are exercisable only by the Governor of the State. [2.160]
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Australia Act 1986 (Cth) cont. (3) Subsection (2) above does not apply in relation to the power to appoint, and the power to terminate the appointment of, the Governor of a State. (4) While Her Majesty is personally present in a State, Her Majesty is not precluded from exercising any of Her powers and functions in respect of the State that are the subject of subsection (2) above. (5) The advice to Her Majesty in relation to the exercise of the powers and functions of Her Majesty in respect of a State shall be tendered by the Premier of the State. 8 State laws not subject to disallowance or suspension of operation … 9 State laws not subject to withholding of assent or reservation … 10 Termination of responsibility of United Kingdom Government in relation to State matters After the commencement of this Act Her Majesty’s Government in the United Kingdom shall have no responsibility for the government of any State. 11 Termination of appeals to Her Majesty in Council … 12 Amendment of Statute of Westminster Sections 4, 9(2) and (3) and 10(2) of the Statute of Westminster 1931, in so far as they are part of the law of the Commonwealth, of a State or of a Territory, are hereby repealed … 15 Method of repeal or amendment of this Act or Statute of Westminster (1) This Act or the Statute of Westminster 1931, as amended and in force from time to time, in so far as it is part of the law of the Commonwealth, of a State or of a Territory, may be repealed or amended by an Act of the Parliament of the Commonwealth passed at the request or with the concurrence of the Parliaments of all the States and, subject to subsection (3) below, only in that manner. (2) For the purposes of subsection (1) above, an Act of the Parliament of the Commonwealth that is repugnant to this Act or the Statute of Westminster 1931, as amended and in force from time to time, or to any provision of this Act or of that Statute as so amended and in force, shall, to the extent of the repugnancy, be deemed an Act to repeal or amend the Act, Statute or provision to which it is repugnant. (3) Nothing in subsection (1) above limits or prevents the exercise by the Parliament of the Commonwealth of any powers that may be conferred upon that Parliament by any alteration to the Constitution of the Commonwealth made in accordance with section 128 of the Constitution of the Commonwealth after the commencement of this Act.
Australia Act 1986 – Some Legal Conundrums [2.170] H P Lee, “Legislative Comment – The Australia Act 1986 – Some Legal Conundrums” (1988) 14 Monash University Law Review 298 at 298–304 (most footnotes omitted) 2. Mechanisms for Enacting the Legislation … 299 The Australia Act 1986 – Some Legal Conundrums The following steps were therefore agreed upon as necessary to implement the agreement to sever the remaining constitutional links between Australia and the United Kingdom Parliament, Government and judicial system. The Parliament and Government of every State would: (1)
Request the Commonwealth Parliament, pursuant to section 51(38) of the Commonwealth Constitution, to enact its Australia Act.
(2)
Request and consent in accordance with constitutional convention to the United Kingdom Parliament enacting its Australia Act.
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Australia Act 1986 – Some Legal Conundrums cont. (3)
Request and consent to the Commonwealth Parliament in turn requesting and consenting to the United Kingdom Parliament enacting its Australia Act. The request and consent of the Commonwealth Parliament to the Australia Act of the United Kingdom is required by section 4 of the Statute of Westminster.
Section 51(xxxviii) empowers the Commonwealth Parliament to make laws with respect to the “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.” Given the existence of doubts about this provision the utilisation of alternative mechanisms ensures that the legislation is beyond challenge. The main consequence of using alternative mechanisms is the existence of two Australia Acts, one enacted by the United Kingdom Parliament and the other by the Commonwealth Parliament. Both Acts are identical in all material respects and were proclaimed to come into force simultaneously. 3. Position Prior to the Australia Act 1986 To appreciate the significance of the changes wrought by the Australia Act 1986, the position prior to its coming into force should be considered … [The writer noted that the Statute of Westminster 1931 was made applicable only to the Commonwealth, not the States, and continued:] 300 The key aspects of the Statute of Westminster 1931 were that the CLVA was no longer applicable to the Commonwealth (s 2(1)), that a Commonwealth law was not “void or inoperative” on the ground of repugnancy to a British Act and that the Commonwealth Parliament could repeal or amend British laws extending to the Commonwealth (s 2(2)). It also provided that the United Kingdom Parliament could not legislate in relation to the Commonwealth unless the Commonwealth had “requested and consented” to the enactment (s 4). Section 3 of the Statute of Westminster 1931 is also important for it expressly provides as follows: “It is hereby declared and enacted that the Parliament of a Dominion has full power to make laws having extra-territorial operation”. As the discussion below will indicate, the doctrine of extra-territorial legislative incompetence of the States may be one of the as yet unresolved conundrums arising from the enactment of the Australia Act 1986. The other point to be made at this stage is the important and controversial s 5 of the CLVA, which provided as follows: “… every representative legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers and procedure of such legislature; provided that such laws have been passed in such manner and form as may from time to time be required by any Act of Parliament, [301] Letters Patent, Order in Council, or Colonial law for the time being in force in the said Colony”. 4. Changes Arising from the Australia Act 1986 (i) The United Kingdom Parliament
(ii)
The first important change brought about by the Act was the termination of the power of the United Kingdom Parliament to make laws having effect as part of Australian law. This is implicitly provided for in the following terms by s1: … Removal of Limitations on the Legislative Powers of the State Parliaments Section 3 of the Australia Act 1986 is modelled on s 2 of the Statute of Westminster 1931. The CLVA is rendered inapplicable to any law made by the Parliament of a State after the commencement of the Australia Act 1986. In consequence, the restriction which prevented the States from legislating inconsistently with United Kingdom legislation extending to the States is terminated. Subsection 3(2) makes it clear that the common law doctrine of repugnancy is excluded and that State Parliaments can enact legislation repugnant to the laws of England or to existing or future United Kingdom Acts. It is also expressly provided that the powers of the State Parliaments include the power to repeal or amend these United Kingdom Acts insofar as they form part of the law of a State: s 3(2). However, it should be noted that s 3(2) is subject to ss 5 and 6 of the Australia Act 1986. Section 5 qualifies s 3(2) by making the grant or declaration of State legislative power [2.170]
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Australia Act 1986 – Some Legal Conundrums cont. contained therein subject to the Commonwealth of Australia Constitution Act and the Commonwealth Constitution. Subsection 3(2) does not operate so as to give any force or effect to a provision of an Act of a State Parliament that would repeal, amend or be repugnant to the Australia Act 1986, the Commonwealth of Australia Constitution Act, the Commonwealth Constitution or the Statute of Westminster 1931, as amended and in force from time to time. Subsection 3(2) is also subject to s 6 which preserves the substance of s 5 of the CLVA. Thus, a law made after the commencement of the Australia Act 1986 by a State Parliament respecting the “constitution, powers or procedure” of the Parliament shall be of no 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 commence 302 ment of the Act. This provision keeps alive the issue of the powers of a State Parliament in relation to “entrenchment” provisions. The full power to make laws of the State Parliaments is described in s 2(1) as follows: 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. Subsection 2(2) removes any “other limitations on the legislative powers of the States that might exist by reason of their former colonial status”. Subsection 2(2), however, also provides that it does not confer upon any State any capacity that the State did not have immediately before the commencement of the Australia Act 1986 to engage in relations with countries outside Australia. Section 2 is also subject to ss 5 and 6 of the Australia Act 1986. According to the Explanatory Memorandum to the Australia Acts (Request) Bill 1985, s 2(1) corresponds to s 3 of the Statute of Westminster 1931. The conundrum which is posed by s 2(1) arises from the fact that there is a slight difference in wording from s 3 of the Statute of Westminster 1931 which simply provides as follows: It is hereby declared and enacted that the Parliament of a Dominion has full power to make laws having extra-territorial operation. Subsection 2(1) contains the words “for the peace, order and good government of that State.” When the course of decisions in Australia relating to the doctrine of extra-territorial legislative incompetence of the State Parliaments is considered it will be seen that the territorial restrictions on the State Parliaments have been attributed to the “peace, order and good government” formula in the State constitutions. The conundrum that is posed is whether s 2(1) has effectively displaced the doctrine which curbs the legislative capacity of the State Parliaments. Section 4 of the Australia Act 1986 expressly repeals ss 735 and 736 of the United Kingdom Merchant Shipping Act 1894, insofar as they are part of the law of a State. Section 4, which corresponds to s 5 of the Statute of Westminster 1931, makes it necessary for the States to enact special legislation to free themselves from the restrictions of ss 735 and 736 of the Merchant Shipping Act 1894, under which certain State laws on merchant shipping require the confirmation of the Queen acting on the advice of United Kingdom Ministers, or must be reserved for the signification of the Queen’s pleasure. Another restriction on the competence of the State Parliaments which has been terminated relates to those rules governing the disallowance of State laws or the withholding of assent to such laws. Sections 8 and 9 of the Australia Act 1986 put to an end the mechanisms dating from colonial days whereby supervision of the legislation enacted by State Parliament was achieved. 303 Section 8 ensures that a State Act that has been assented to by the State Governor is not subject to disallowance by the Queen. The section also prevents the suspension of operation of a State law pending the signification of the Queen’s pleasure. Subsection 9(1) provides that any law or instrument requiring a Governor to withhold assent from any Bill passed by a State Parliament in accordance with any prescribed manner and form requirement, shall be of no effect. Subsection 9(2) precludes the operation of any law or instrument which requires the reservation of any State Bill for the signification of the Queen’s pleasure. 82
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Australia Act 1986 – Some Legal Conundrums cont. (iii)
Powers and Functions of the Queen and Governors in respect of the States
(iv)
... The most significant change brought about by s 7 is the termination of the position under which the Queen was advised by United Kingdom Ministers, following recommendations by the State Premiers to the Foreign and Commonwealth Office of the United Kingdom Government. The Queen is now to be advised directly by the Premier of a State in relation to the exercise of her powers and functions in respect of the State. ... Termination of Appeals to the Privy Council
(v)
304 The thrust of section [11] is to remove the remaining avenues of appeal from Australian courts to the Privy Council, thus making the High Court of Australia the final court of appeal for all Australian courts. Repeal or Amendment of the Australia Act 1986 or the Statute of Westminster 1931 By virtue of s 15 of the Australia Act 1986, the Act and the Statute of Westminster 1931 in their application to Australia can be repealed or amended only by an Act of the Commonwealth Parliament passed at the request or with the concurrence of the Parliament of all the States. This “unique system” provides for an “entrenchment” of the Australia Act 1986 and the Statute of Westminster 1931. However, an exception is provided for in s 15(3) which envisages the possible exercise by the Commonwealth Parliament of any powers that may be conferred upon it by any alteration to the Commonwealth Constitution made in accordance with s 128 of the Constitution. The insertion of s 15 of the Australia Act 1986 also poses another conundrum, which is dealt with below. ...
PARLIAMENTARY SOVEREIGNTY AND MANNER AND FORM [2.180] The provision in s 5 CLVA that every “Representative Legislature” has full legislative
power with respect to its “Constitution, Powers and Procedure” was made subject to the proviso that “such Laws 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.” That is, a colonial legislature was authorised to enact legislation stipulating that special legislative procedures – “manner and form” legislation – must be followed by a future legislature to effect an amendment to its constitution. Such legislation might stipulate, for example, the requirement of a two-thirds majority in a joint sitting of both houses, or a special majority in each house, or, as in later developments, a majority of electors in a referendum. An example of legislation requiring a particular “form” is legislation requiring express words in order to repeal a provision of the Act. Mere inconsistency in the later Act would be insufficient to effect an implied repeal of the earlier provisions. Being more onerous than the ordinary legislative procedure, such “manner and form” provisions made it more difficult to amend an existing law, thus “entrenching” it. To ensure the efficacy of this entrenchment, it was usually provided in the legislation that the very provision which effected the “manner and form” requirement was itself subject to the same requirement in its repeal or amendment. This is referred to as “double entrenchment”. The original rationale for “manner and form” legislation was to provide a mechanism enabling colonial legislatures to achieve a degree of stability in their constitutional arrangements. (See Lumb (5th ed, 1991), p 120.) Significantly, the proviso to s 5 CLVA, was limited in its application to the “constitution, powers and procedure” of the relevant legislature, and was thus not applicable to legislative provisions dealing with other general subject matters. The validity of the latter would require alternate sources of authority, the existence and nature of which remains a matter of some importance and complexity and will constitute an underlying theme in what follows. Even [2.180]
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though in 1986 the Australia Act 1986 (Cth) and (UK) removed the applicability of the CLVA to laws enacted by the Parliaments of the States, the manner and form provisions of the latter Act were maintained in s 6, which was phrased as a positive declaration (as opposed to a proviso): …[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.
Like its predecessor, it is also limited in its application to laws respecting the “constitution, powers or procedure” (emphasis added) of the relevant legislature. The fact that “or” and not “and” (as in the CLVA) is used is of no present legal consequence. Because consideration is being given to other possible sources of authority for legislation on general subject matter, and because the same limitations as found in the proviso to CLVA, s 5 and s 6 of the Australia Act 1986 may not apply to these other sources, the term “manner and form” will be reserved for the restrictive procedures sourced in these specific provisions. When speaking generally about such procedures, the more general term, “restrictive procedures” (which is to be taken to be inclusive of both procedure and form provisions) will be used, following the lead of Professor Jeffrey Goldsworthy in this regard. (J D Goldsworthy, “Manner and Form in the Australian States” (1987) 16 Melbourne University Law Review 403 at 403.) In resolving the issue of the authority to enact “manner and form” provisions under the Australia Act 1986 and other “restrictive procedures”, fundamental questions about the nature of the sovereignty of parliament arise. These procedures compromise the sovereignty of parliament to the extent that they purport to bind a future parliament. The question must be decided whether the authority to enact restrictive procedures is inherent in the traditional Westminster notion of parliamentary sovereignty or whether it is excluded by it. The traditional Westminster doctrine of parliamentary sovereignty, at least as understood – according to H W R Wade (later Sir William) – by the “orthodox English lawyer, brought up consciously or unconsciously on the doctrine … stated by Coke and Blackstone, and enlarged upon by Dicey” was articulated succinctly by Wade in an oft-quoted article, “The Basis of Legal Sovereignty” [1955] Cambridge Law Journal 172 at 174. It consisted of four fundamental tenets: (a)
(b) (c)
“no Act of the sovereign legislature (composed of the Queen, Lords and Commons) could be invalid in the eyes of the courts” and “it was always open to the legislature, so constituted, to repeal any previous legislation whatever”; “therefore no Parliament could bind its successors”; “the legislature had only one process for enacting sovereign legislation, whereby it was declared to be the joint Act of the Crown, Lords and Commons in Parliament assembled”; and
(d) “in the case of conflict between two Acts of Parliament, the later repeals the earlier.” It is clear that restrictive procedures and “manner and form” legislation are prima facie at odds with (b) above but also with each of the other tenets to a certain degree. As Peter Hanks, referring to Australian State parliaments, noted: The proposition, that Parliament may legislate to implement any policy supported by a majority in each of its component institutions, can be seen to attribute to a majority of the electorate the capacity to set the current policy agenda. However, the proposition that Parliament may be obliged by earlier legislation to follow a complex and restrictive procedure to legislate on certain topics, effectively writes those topics out of the current policy agenda and denies to the 84
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majority of the electorate the capacity to develop and implement, through their elected representatives, policies on those topics (P Hanks, Constitutional Law in Australia (2nd ed, Butterworths, Sydney, 1996), p 132).
While the view of Wade’s “orthodox English lawyer” has certainly been very influential, it is an orthodoxy which has not remained unchallenged. Other views of the nature of parliamentary sovereignty have been articulated which reconcile the sovereignty of parliament and the enactment of restrictive procedures. Interestingly, the catalyst for this reconsideration were the cases which were brought to the Privy Council from colonial or dominion courts. The leading case arose from an appeal to High Court, and thence the Privy Council, from the Supreme Court of New South Wales: Attorney-General (New South Wales) v Trethowan (1931) 44 CLR 394; affirmed [1932] AC 526. Prior to Trethowan, another very significant case was McCawley v The King [1920] AC 691, (1920) 28 CLR 106, which will be extracted first.
McCawley v The King [2.190] McCawley v The King [1920] AC 691; (1920) 28 CLR 106 at 114–125 [This case considered the validity of Queensland legislation which was prima facie inconsistent with the Constitution Act 1867 (Qld). The Constitution Act provided that judges of the Supreme Court be appointed for life, subject to good behaviour. The Industrial Arbitration Act 1916 (Qld) established the Court of Industrial Arbitration, the judges which were entitled to all the rights, privileges, powers and jurisdiction of a Supreme Court justice but were appointed only for seven years, subject to reappointment. It was contended that the Industrial Arbitration Act was in conflict with the Constitution Act in as much as it purported to authorise the appointment of a judge for seven years only. The Privy Council rejected that contention, Lord Birkenhead LC delivering its opinion.] Lord Birkenhead LC: 114 Some communities, and notably Great Britain, have not in the framing of Constitutions felt it necessary, or thought it useful, to shackle the complete independence of their successors. They have shrunk from the assumption that a degree of wisdom and foresight has been 115 conceded to their generation which will be, or may be, wanting to their successors, in spite of the fact that those successors will possess more experience of the circumstances and necessities amid which their lives are lived. Those constitutions’ framers who have adopted the other view must be supposed to have believed that certainty and stability were in such a matter the supreme desiderata. Giving effect to this belief, they have created obstacles of varying difficulty in the path of those who would lay rash hands upon the ark of the Constitution. … Unitary forms of government have … exhibited both ingenuity and resource in providing complicated machinery which required adjustment before the nature of the Constitution could be effectively modified. … Their special quantities may perhaps be exhibited as clearly by calling the one a controlled and the other an uncontrolled Constitution as by any other nomenclature. Nor is a Constitution debarred from being reckoned as an uncontrolled Constitution because it is not like the British Constitution, constituted by historic development, but finds its genesis in an originating document which may contain some conditions which cannot be altered except by the power which gave it birth. It 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 116 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. The fundamental contention of the respondents in this appeal requires the conclusion that the Constitution of Queensland is in the sense explained above a controlled Constitution. … [I]t is important at the outset to notice that the respondents do not find themselves in a position which they [2.190]
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McCawley v The King cont. would occupy under any genuinely controlled Constitution. ... In such a case, confronted with the objections by which they are met in this appeal, they would have no difficulty in pointing to specific articles in the legislative instrument or instruments which created the Constitution, prescribing with meticulous precision the methods by which, and by which alone, it could be altered. The respondents to this appeal are wholly unable to reinforce their argument by any such demonstration. And their inability has involved them in dialectical difficulties which are embarrassing and even ridiculous. They are, for instance, driven to contend – or at least they did in fact contend – that if it were desired to alter an article of the Constitution it was in the first place necessary to pass a repealing Act; and in the second place by a separate and independent Act to make the desired change effective. … 117 Their Lordships are clearly of opinion that no warrant whatever exists for the views insisted upon by the respondents, and affirmed by a majority of the Judges in the Courts below. It was not the policy of the Imperial Legislature, at any relevant period, to shackle or control in the manner suggested the legislative powers of the nascent Australian Legislatures. Consistently with the genius of the British people, what was given was given completely, and unequivocally, in the belief, fully justified by the event, that these young communities would successfully work out their own constitutional salvation. … 120 But although the matter would seem to the Board to be extremely plain, it is none the less evident that in this, and in other comparable cases, doubts did in fact arise. [Their Lordships then made reference to the circumstances leading to the enactment of the CLVA, confirming that plenary legislative and constituent power had been given to colonial legislatures subject only to repugnancy to Imperial legislation and continued:] … 125 The Act of 1867 has no such character as it has been attempted to give it. The Legislature of Queensland is the master of its own household, except in so far as its powers have in special cases been restricted. No such restriction has been established, and none in fact exists, in such case as it is raised in the issues now under appeal. It follows, therefore, that sec 6 of the Industrial Arbitration Act 1916 of 1916 was not ultra vires. The Legislature was fully entitled to vary the tenure of the judicial office.
Notes&Questions
[2.200]
Accordingly, Queensland legislation enacted subsequently to the Constitution Act, and which was inconsistent with particular provisions thereof, impliedly repealed those inconsistent provisions. The Privy Council was careful to point out that had there been in place “manner and form” provisions, it would have been necessary to comply with these before any relevantly affected Bill could become law. The Privy Council observed that s 9 of the Constitution Act did prescribe a two-thirds majority in both houses to make effective legislation altering the constitution of the Legislative Council. Because no such relevant procedures were found to exist in the present case, the law was held valid. For a detailed account of this case and its background, see N Aroney, “Thomas McCawley v The King” in Winterton (2006), ch 3.
Attorney-General (NSW) v Trethowan [2.210] Attorney-General (NSW) v Trethowan (1931) 44 CLR 394. [This case concerned the validity of an amendment to the Constitution Act 1902 (NSW), originally enacted in 1929, which sought to introduce s 7A which provided: 1.
The Legislative Council shall not be abolished nor, subject to the provisions of subsection (6) of this section, shall its constitution or powers be altered except in the manner provided in this section.
2.
A Bill for any purpose within subsection (1) of this section shall not be presented to the Governor for His Majesty’s assent until the Bill has been approved by the electors in accordance with this section.
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Attorney-General (NSW) v Trethowan cont. 3.
On a day not sooner than two months after the passage of the Bill through both Houses of the Legislature the Bill shall be submitted to the electors qualified to vote for the election of members of the Legislative Assembly. Such day shall be appointed by the Legislature.
4.
When the Bill is submitted to the electors the vote shall be taken in such manner as the Legislature prescribes.
5.
If a majority of the electors voting approve the Bill, it shall be presented to the Governor for His Majesty’s assent.
6.
The provisions of this section shall extend to any Bill for the repeal or amendment of this section …
Section 7A thus sought to effect a “double entrenchment” of the constitutional status of the Legislative Council: This “double entrenchment” measure was introduced by the conservative parties then in government to protect the Legislative Council from abolition by a future Labor Government. When Labor did regain government in 1930, s 7A having been enacted, it again attempted to abolish the upper house but without recourse to the special procedure contained in s 7A. Although the two abolition Bills were passed by both houses of Parliament, one to repeal s 7A and another to abolish the Council, these were sought to be presented for royal assent without reference to the electors in a referendum.Two members of the Legislative Council brought an action in the Supreme Court of New South Wales against the President of the Legislative Council and the Ministers of the Crown seeking a declaration that the “manner and form” procedures must be complied with. The plaintiffs succeeded in obtaining an interim injunction preventing the presentation of the Bill for royal assent. The defendants appealed to the High Court, which dismissed the appeal by a majority 3 to 2 (Rich, Starke and Dixon JJ, Gavan Duffy CJ and McTiernan J dissenting), upholding the validity of the legislation and requiring compliance with it.] Rich J: 417 Section 5 of [the Colonial Laws Validity] Act confers upon representative legislatures in the Dominions full power to make laws respecting the constitution, powers and procedure of such legislatures, provided that such laws 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 therein. … It is the final and authoritative expression of every colonial representative legislature’s power to make laws respecting its own constitution, powers and procedure. 418 … I regard it as clear that in so far as s 5 enables the Legislature of New South Wales to fetter, restrain, or condition the exercise of its power of constitutional alteration, no prior statute of the Imperial Parliament can operate to enable it to ignore or set at naught any restraint, fetter, or condition it has seen fit to impose in the exercise of that power. On the other hand, in so far as s 5 confers a power of constitutional alteration which it does not authorize the Legislature so to fetter, restrain, or condition, that power may be exercised in complete disregard of any fetter, restraint, or condition which may have been attempted. How far, then, does s 5 permit of constitutional alterations which have the effect of controlling the future action of the Legislature? Two methods of controlling the operations of the Legislature appear to be allowed by the express terms of the section. The constitution of the legislative body may be altered; that is to say, the power of legislation may be reposed in an authority differently constituted. Again, laws may be passed imposing legal requirements as to manner and form in which constitutional amendments must be passed. In my opinion the efficacy of s 7A depends upon the answer to the questions – does it fall within the proviso as to a requirement of manner and form? and does it introduce into the legislative body a new element? If the true answer to either of these questions is Yes, then the Legislative Council cannot be abolished without a referendum unless and until s 7A is repealed, and s 7A cannot be repealed except by a Bill approved at a referendum before it is presented for the royal assent. … The Legislature of New South Wales is not sovereign, and no analogy can be drawn from the position of the British Parliament. The question is one of construction, and not of general reasoning as to the inherent right of a sovereign legislature to undo all that it has done. The first question is whether subs 6, which is a colonial law for the time being in force, requires a manner and form in which a law repealing s 7A must be passed. In my opinion it does. I take the word “passed” to be equivalent to “enacted.” The proviso is not dealing with narrow questions of parliamentary 419 procedure. … In my opinion the proviso to s 5 relates to [2.210]
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Attorney-General (NSW) v Trethowan cont. the entire process of turning a proposed law into a legislative enactment, and was intended to enjoin fulfilment of every condition and compliance with every requirement which existing legislation imposed upon the process of law-making. This view is enough to dispose of the case; but if what is done under subs 6 did not fall under the proviso, the question would still remain whether for the purpose of abolishing the Legislative Council and the purpose of repealing s 7A a new element is not introduced into the legislative authority. It was conceded that under s 5 it was competent to the legislature to establish a third Chamber whose assent would be required to complete any legislative act. It could not be denied that, if a third Chamber could be introduced, a body of persons of another character might also be created a constituent element of the legislature. It was said, however, that the definition of “colonial legislature” in s 1 of the Colonial Laws Validity Act 1865 confines the signification of that term to the authority competent to make laws for the Colony upon general matters, and that if upon matters in general the two Houses with the assent of the Sovereign could legislate, s 5 gave them the power of constitutional amendment in spite of the attempt to incorporate the electorate in the legislative system for the purpose of particular legislation. But no reason appears to exist for applying the definition of colonial legislature in such a manner. If the legislative body consists of different elements for the purpose of legislation upon different 420 subjects, the natural method of applying the definition would be to consider what was the subject upon which the particular exercise of power was proposed, and to treat s 5 as conferring upon the body constituted to deal with that subject authority to pass the law although it related to the powers of the legislature. An examination of s 7A shows that a legislative body has been created for the purpose of passing or co-operating in passing a particular law. There is no reason why this authority need extend to all laws. It is enough to turn to the Commonwealth of Australia Constitution Act to find in s 128 of the Constitution the prototype of s 7A. The electors are called upon to approve or not of a certain class of Bill. In so doing they discharge a function of lawmaking. It is not necessary for them to have a power of altering or amending a proposal submitted to them. According to the practice of the Legislature of New South Wales, the Legislative Assembly will not proceed further if the Council amend a money-bill. In the Federal Parliament the Senate has no power to amend money-bills (s 53 of the Commonwealth of Australia Constitution). It must accept or reject a Bill. But when it has expressed its approval or disapproval it has discharged its function as a legislative body. … There is no reason why a Parliament representing the people should be powerless to determine whether the constitutional salvation of the State is to be reached by cautious and well considered steps rather than by rash and ill considered measures. McCawleys Case [[1920] AC at 703, 704: 28 CLR at 114, 115] establishes that there is no difference in this respect between a unitary 421 and a federal system. Either may be rigid and controlled or flexible and uncontrolled. … In my opinion, for the reasons given the constating instrument enabled that Legislature to introduce the referendum as such a mode because it constitutes a manner and form of legislation and includes the electorate as an element in the legislative authority in which the power of constitutional alteration resides. [His Honour concluded that neither of the Bills could be presented for royal assent until approval of the majority of the electors and dismissed the appeal.] Starke J: 422 Much reliance was placed upon the sovereignty or omnipotence of Parliament, and the undoubted rule that “the Imperial Parliament cannot bind itself: it can fetter itself as much as it pleases, but it can cut its fetters asunder at pleasure”. But the Parliaments of the Dominions or Colonies are not sovereign and omnipotent bodies. They are subordinate bodies; their powers are limited by the Imperial or other Acts which create them, and they can do nothing beyond the limits which circumscribe those powers. Yet they are not agents or delegates of the Imperial Parliament, and within their limits they have as plenary powers of legislation, as large and of the same nature, as the Imperial Parliament itself (R v Burah (1878) 3 App Cas 889 at 904). Moreover, the Imperial Acts conferring constitutions upon the 423 Dominions or Colonies frequently – as has been done in the case of New South Wales – confer constituent powers upon their legislatures, that is, powers of making laws effecting changes in the constitutions. Such laws might make the particular constitution more flexible or they might make it more rigid. [After outlining and stating the effect of the Imperial enabling legislation and consequent New South Wales legislation, as well as the effect of CLVA, his Honour continued:] … The Constitution Act 1902 and its amendments, including s 7A were passed by 88
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Attorney-General (NSW) v Trethowan cont. the Legislature of New South Wales pursuant to these powers, and are colonial laws in force in the Colony within the meaning of the Colonial Laws Validity Act 1865. And it may be noted that the Constitution Act 1902 (s 7) preserved the power of the Legislature to alter the laws for the time being in force concerning the Legislative Council, subject to certain restrictions in the proviso; s 7A prescribed a further restriction. The greater the constituent powers granted to the Legislature, the clearer, it seems to me, is its authority to fetter its legislative power, to control and make more rigid its constitution. But, however that may be with regard to the Act 18 & 19 Vict c 54 and the Constitution Bill scheduled to that Act, the proviso to s 5 of the Colonial Laws Validity Act 1865 puts the matter, in my opinion, beyond 424 doubt. … Consequently, in my opinion, this appeal should be dismissed. Dixon J: 425 … This question must be answered upon a consideration of the true meaning and effect of the written instruments from which the Parliament of New South Wales derives its legislative power. It is not to be determined by the direct application of the doctrine of parliamentary sovereignty, which gives to the Imperial Parliament its supremacy over the law. … The incapacity of the British Legislature to limit its own power otherwise than by transferring a portion or abdicating the whole of its sovereignty has been accounted for by 426 the history of the High Court of Parliament, and has been explained as a necessary consequence of a true conception of sovereignty. But in any case it depends upon considerations which have no application to the Legislature of New South Wales, which is not a sovereign body and has a purely statutory origin. Because of the supremacy of the Imperial Parliament over the law, the Courts merely apply its legislative enactments and do not examine their validity, but because the law over which the Imperial Parliament is supreme determines the powers of a legislature in a Dominion, the Courts must decide upon the validity as well as the application of the statutes of that legislature. It must not be supposed, however, that all difficulties would vanish if the full doctrine of parliamentary supremacy could be invoked. An Act of the British Parliament which contained a provision that no Bill repealing any part of the Act including the part so restraining its own repeal should be presented for the royal assent unless the Bill were first approved by the electors, would have the force of law until the Sovereign actually did assent to a Bill for its repeal. In strictness it would be an unlawful proceeding to present such a Bill for the royal assent before it had been approved by the electors. If, before the Bill received the assent of the Crown, it was found possible, as appears to have been done in this appeal, to raise for judicial decision the question whether it was lawful to present the Bill for that assent, the Courts would be bound to pronounce it unlawful to do so. Moreover, if it happened that, notwithstanding the statutory inhibition, the Bill did receive the royal assent although it was not submitted to the electors, the Courts might be called upon to consider whether the supreme legislative power in respect of the matter had in truth been exercised in the manner required for its authentic expression and by the elements in which it had come to reside. But the answer to this question, whether evident or obscure, would be deduced from the principle of parliamentary supremacy over the law. This principle, from its very nature, cannot determine the character or the operation of the constituent powers of the Legislature of New South Wales which are the result of statute. It is true that these constituent powers were meant to give to the constitution of New South Wales as much of the flexibility which in Great Britain arises 427 from the supremacy of Parliament as was thought compatible with the unity of the Empire, the authority of the Crown and the ultimate sovereignty of the Imperial Parliament. But this consideration, although generally of importance, affords small help in a question whether the constituent authority of a legislature in a Dominion suffices to enable it to impose a condition or a restraint upon the exercise of its power. The difficulty of the supreme Legislature lessening its own powers does not arise from the flexibility of the constitution. On the contrary, it may be said that it is precisely the point at which the flexibility of the British constitution ceases to be absolute. Because it rests upon the supremacy over the law, some changes which detract from that supremacy cannot be made by law effectively. The necessary limitations upon the flexibility of the constitution of New South Wales result from a consideration of exactly an opposite character. They arise directly or indirectly from the sovereignty of the Imperial Parliament. But in virtue of its sovereignty it was open to the Imperial Parliament itself to give, or to empower the Legislature of New South Wales to give, to the constitution of that State as much or as little rigidity as might be proper. … [2.210]
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Attorney-General (NSW) v Trethowan cont. 429 It was a declared object of Act [the CLVA] to remove doubts respecting the powers of colonial legislatures and these questions depend upon considerations out of which such doubts arose. … This provision both confers power and describes the conditions to be observed in its exercise. It [s 5 CLVA] authorizes a representative legislature to make laws respecting its own constitution, its own powers and its own procedure. This authority does not extend to the executive power in the constitution. But it is plenary save in so far as it may be qualified by a law which falls within the description of the proviso. The power to make laws respecting its own constitution enables the legislature to deal with its own nature and composition. The power to make laws respecting its own procedure enables it to prescribe rules which have the force of law 430 for its own conduct. Laws which relate to its own constitution and procedure must govern the legislature in the exercise of its powers, including the exercise of its power to repeal those very laws. The power to make laws respecting its own powers would naturally be understood to mean that it might deal with its own legislative authority. Under such a power a legislature, whose authority was limited in respect of subject matter or restrained by constitutional checks or safeguards, might enlarge the limits or diminish or remove the restraints. Conversely, the power might be expected to enable a legislature to impose constitutional restraints upon its own authority or to limit its power in respect of subject matter. But such restraints and limitations, if they are to be real and effective and achieve their end, must bind the legislature. If the legislature, nevertheless, continues to retain unaffected and unimpaired by its own laws the power given by this provision to legislate respecting its own powers, it is evident that it may always repeal the limitations and restraints which those laws purport to impose. Moreover, this means, as McCawley’s Case establishes, that no formal repeal is necessary to resume the power and the legislature remains competent to make laws inconsistent with the restraints or limitations which its former statutes have sought to create. If and in so far, therefore, as s 5 confers a superior and indestructible power to make laws with respect to the legislature’s own powers, it cannot enable it to impose upon those powers any effective restraints or restrictions. How far is the power which it gives of this character? In other words, how far does s 5 allow a constituent legislature to adopt a rigid constitution? There is no logical reason why the authority conferred over its own powers should not include a capacity to diminish or restrain that very authority. But, in giving every representative legislature the power to make laws respecting its own powers, s 5 provides not only that the power shall subsist, but also shall be deemed at all times to have subsisted. Considered apart from the proviso, the language in which this provision is expressed could not reasonably be understood to authorize any regulation, control or impairment of the power it describes. It does not say that the legislature may make laws 431 respecting its own powers including this power. But the proviso recognizes that the exercise of the power may to some extent be qualified or controlled by law. It describes the kinds of legislative instrument by which this may be done, and, with Acts of the Imperial Parliament, letters patent and orders in council, it includes a colonial law for the time being in force in the Colony. … The extent is limited to which such a law may qualify or control the power to make laws respecting the constitution, powers and procedure of the Legislature. It cannot do more than prescribe the mode in which laws respecting these matters must be made. To be valid, a law respecting the powers of the legislature must “have been passed in such manner and form as may from time to time be required by any … colonial law” (sc, a law of that legislature) “for the time being in force”. Its validity cannot otherwise be affected by a prior law of that legislature. In other words no degree of rigidity greater than this can be given by the legislature to the Constitution. The law proposed by the Bill to repeal s 7A of the Constitution Act 1902 to 1929 answers the description “a law respecting the powers of the legislature” just as the provisions of s 7A itself constitute a law with respect to those powers. But the proposal cannot be put into effect save by a law which “shall have been passed in such manner and form as may be required by any” prior law of the New South Wales Legislature. Unless it be void, s 7A is undeniably a prior law of the New South Wales Legislature. It is no less a law of that Legislature because it requires the approval of the electors as a condition of its repeal. But it is not void unless this requirement is repugnant to s 5 of the Colonial Laws Validity Act 1865. No requirement is repugnant to that section if it is within the contemplation of its proviso, which concedes the efficacy of enactments requiring a manner or form in which laws shall be 90
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Attorney-General (NSW) v Trethowan cont. passed. If, therefore, a provision that a particular law respecting the powers of the Legislature may not be made unless it is approved by the electors, requires a manner or form in which such a law 432 shall be passed, then s 7A is a valid law and cannot be repealed without the approval of the electorate. I have arrived at the conclusion that such a provision is properly described as requiring a manner in which the law shall be passed, and falls within the category allowed by the proviso. … It could not be denied that submission to and approval by the electorate, if required in order that a proposal may become law, would aptly and properly be described as part of the manner in which the law must be made. 433 … Upon this interpretation a full constituent power is given to the representative legislature, but it may determine what shall be necessary to constitute an exercise of that or any other legislative power. For these reasons I think s 7A is valid and effective, and the appeal should be dismissed.
Notes&Questions
[2.220]
1.
For a detailed account of this case and its background see J Goldsworthy, “Trethowan’s Case” in Winterton (2006), ch 4.
2.
Apart from CLVA s 5, to what extent was consideration given to other possible sources authorising restrictive procedures? Note in particular the remarks of Rich J (at 419–420) in relation to the reconstitution of the legislature and Dixon J’s hypothetical relating to the United Kingdom Parliament (at 426). (See Note 3 below.) Rich J (at 418) stated that: [t]wo methods of controlling the operations of the Legislature appear to be allowed by the express terms of the section [CLVA, s 5]. The constitution of the legislative body may be altered; that is to say, the power of legislation may be reposed in an authority differently constituted. Again, laws may be passed imposing legal requirements as to manner and form in which constitutional amendments must be passed. (Emphasis added.)
He continued (at 419): … if what is done under subs (6) [of s 7A] did not fall under the proviso, the question would still remain whether for the purpose of abolishing the Legislative Council and the purpose of repealing s 7A a new element is not introduced into the legislative authority. (Emphasis added.)
3.
His Honour appeared to recognise the existence of an independent basis (of CLVA, s 5) for enacting restrictive procedures if the restrictive procedure could be characterised as a reconstitution of the legislature. His Honour would appear to have regarded such a reconstitution as valid, even if it did not come within the terms of the proviso to s 5. Thus, with respect to the abolition of the Legislative Council and the amendment of s 7A, the special procedure was capable of being regarded as just such a reconstitution and therefore permissible on that ground. The reconstitution ground identified by Rich J constitutes the first major alternative source of authority for the enactment of restrictive procedures and will be examined in more detail below. Rich J did not receive express support on this point from the other justices, although Dixon J did entertain the possibility of judicial examination of the issue when he raised a hypothetical situation involving the United Kingdom Parliament (at 426) in the preceding extract. Dixon J did not express his final view as it was unnecessary for the purpose of resolving the issue in the case. He simply stated (at 426) that “[t]his principle, from its very nature, cannot determine the character or the operation of the [2.220]
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Part I: Introduction
constituent powers of the Legislature of New South Wales which are the result of statute.” Would this need to be qualified following the enactment of s 2(2) of the Australia Act 1986? 4.
Would s 5 of the Constitution Act 1902 (NSW), which gives a plenary power to the State legislature to make laws for the “peace, welfare, and good government of New South Wales in all cases whatsoever” have constituted sufficient authority to enact restrictive procedures independently of CLVA, s 5?
5.
How significant was the “double entrenching” provision contained in s 7A(6)? Without it, would there be anything to prevent the New South Wales Parliament from simply repealing s 7A by ordinary legislative procedure, and then proceeding to abolish the Legislative Council also by ordinary legislative procedure?
6.
Could the legislature simply abolish the Council by an Act to that effect, and without expressly repealing s 7A, by simply relying on the doctrine of implied repeal? That is, could it be argued that, being a later Act, the abolition act impliedly repealed the “manner and form” provision by virtue of its inconsistency with it?
7.
The defendants appealed unsuccessfully to the Privy Council ((1932) 47 CLR 97; [1932] AC 526). Delivering the judgment of the Judicial Committee, Lord Sankey LC regarded the words “manner and form” in CLVA, s 5 as being sufficiently broad to cover the procedures provided for by s 7A, including the double entrenching provision contained in subs (6) thereof (at 540). Because the Bill repealing s 7A did not comply with the manner and form prescribed by the section, it could not be valid. Therefore, the Bill purporting to abolish the Council was also invalid.
8.
Note the remarks of Dixon J (at 429–430) in relation to what is meant by laws relating to “constitution, powers and procedures”.The dissenting justices, Gavan Duffy CJ and McTiernan J, held that s 7A(6), by effecting a double entrenchment, was not in substance a “manner and form” provision. Rather, it was a provision which deprived the legislature of power to amend or repeal s 7A because, ultimately, this was made dependent on the electors at a referendum. Such a deprivation of legislative power was outside the scope of the proviso to CLVA, s 5.
Attorney-General (NSW) v Trethowan [2.230] Attorney-General (NSW) v Trethowan (1931) 44 CLR 394 at 441–443 McTiernan J: 441 The Legislature of New South Wales may, under s 5 of the Colonial Laws Validity Act 1865, restore any power to its fullest extent, which it has legislated to 442 diminish. If subs 6 of s 7A had not been enacted, no question would have arisen as to the power of the Parliament to enact a law to repeal s 7A by the process or in the form in which laws are passed through the two Houses and assented to by the Governor in the name of His Majesty, or, if it would be necessary in the case, are reserved by the Governor for the assent of His Majesty and are assented to by His Majesty. Subsection 6 diminishes the power of the Legislature to repeal or amend s 7A. The sub-section assumes to require that after the passage of a Bill to repeal or amend the section through both Houses the Legislature must take no further step in enacting the Bill into law for at least two months. If the persons designated by the section, who are outside Parliament, do not approve of the Bill, the Legislature is prevented from resuming the process of enacting the Bill into law and the Bill lapses. In my opinion, therefore, subs 6 of s 7A is not in substance a law dictating “manner”: it is in substance a law depriving the Legislature of power. The words of the section measure the extent to which the power of the Legislature is cut down. It renders the King, the Legislative Council and the Legislative Assembly assembled in Parliament powerless to repeal the section unless an external body intervenes and 92
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Attorney-General (NSW) v Trethowan cont. approves of the repeal. In my opinion the Legislature, consisting of its three constituent elements in Parliament assembled, may, under s 5 of the Colonial Laws Validity Act 1865, resume the power to repeal s 7A. ... The label “manner” does not conclude the matter: the true nature of the law may be disguised. If a law were made requiring that the draft of any alteration which a testator wished to make in his will must be submitted to the vote of his next-of-kin, and that the testator should not execute the new testamentary instrument until a majority of the next-of-kin had by a secret ballot approved of it, and if the 443 majority disapproved, the proposal of the testator to alter his will could not proceed any further, such an enactment would clearly be a law depriving the testator of testamentary power. It may be aptly described as a law instituting a new mode of altering a will, but not a law providing a manner in which a testator should exercise his testamentary power. I do not construe the proviso to s 5 of the Colonial Laws Validity Act 1865 as conferring power on a colonial legislature to enact a law prescribing a manner and form, which in effect destroys the plenary powers given by the section to the said legislature in its capacity as a representative legislature. In my opinion the position of the legislature in relation to subs 6 would be comparable with the position of a testator under such a law as has been mentioned, if that law were subject to some superior law protecting the testamentary capacity of the testator. Section 5 of the Colonial Laws Validity Act 1865 is an overriding charter which keeps the legislature continuously supplied with plenary power to make laws respecting its own constitution, powers and procedure, and no Act of the legislature can destroy or permanently diminish the authority which it derives from the charter.
[2.240]
Notes&Questions
1.
Although the majority rejected McTiernan J’s view that s 7A was in substance a law which deprived the legislature of power, and thus not a “manner and form” provision, to what extent did they take into account his fundamental proposition that such a deprivation might occur under the guise of a “manner and form” provision? What if a “manner and form” provision was so onerous as to make it effectively impossible ever to repeal the doubly-entrenched Act, thus depriving parliament of legislative power? What if a special majority – set at a very high percentage level – of the electorate at a referendum was required before the Bill could be presented for royal assent? At what point does a “manner and form” provision, or indeed a restrictive procedure more generally, become a deprivation of legislative power?
2.
The point raised by McTiernan J is significant because, whilst the proviso to CLVA, s 5 does provide for “manner and form” provisions, the first part of that section confirms the plenary and constituent legislative power of the States. Professor Goldsworthy has pointed out that this is a “continuing constituent power”: “it was a ‘continuing’ power because the legislature had at all times to be deemed to have had it – ie, even when ignoring or overriding a restrictive procedure – and because the legislature was unable to abdicate or restrict it by amending or repealing s 5 (it being part of an Imperial Act applying to New South Wales by paramount force).” (Goldsworthy (1999), p 405.) In Attorney-General Trethowan, of course, this was made subject to the “manner and form” proviso in that section, which, as Goldsworthy noted, Dixon J referred to as “superior and indestructible” (at 430) and McTiernan J (at 443) referred to as “an overriding charter which keeps the legislature continuously supplied with plenary power to make laws respecting its own constitution, powers and procedure.” [2.240]
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3.
4. 5.
The “continuing constituent power” of the State Parliaments has been maintained by the Australia Act 1986. This is because s 2(2) has invested the State Parliaments with “all the legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State.” The “manner and form” exception contained in the proviso to s 5 CLVA is now maintained in s 6, which may provide the only way that the continuing constituent power of the State parliaments can be regulated. This continuing constituent power cannot be repealed or amended by a State Parliament (Australia Act 1986, ss 5(b) and 15) and therefore imposes a limit on the extent to which restrictive procedures will be regarded as valid. Gavan Duffy CJ held that s 7A was a valid enactment, but that it could simply be repealed in the normal way. Examples of “form” legislation were mentioned above relating to provisions requiring that subsequent legislation expressly amend or repeal earlier legislation, or that it expressly state that it is operative notwithstanding earlier legislation. “Manner” legislation is rather more varied. Professor Winterton has summarised the main examples: [F]or a variety of reasons, Parliament may require legislation on a particular subject to be enacted by specified majorities in the legislative Houses, may require approval at a referendum, or the approval of another body prior to the enactment of certain legislation, or may even establish a new legislature with exclusive power to enact particular laws. Other “manner” provisions are designed to resolve conflicts between the two legislative Houses; such legislation may provide for a joint sitting of both Houses, or may enable a Bill to become law upon the assent merely of the lower House and the Crown. If Parliament wishes to secure the “manner and form” provision against repeal by a simple majority in both Houses it may resort to the device of “double entrenchment”, whereby the “manner” or “form” provision itself can be amended or repealed only by legislation enacted in the prescribed manner or phrased in the specific form. (Winterton, “Can the Commonwealth Parliament Enact “Manner and Form” Legislation” (1980) 11 Federal Law Review 166 at 171–172.)
Parliamentary sovereignty [2.250] As alluded to above, some consideration should be given to the question whether a
restrictive procedure, to use the generic term, could nevertheless be adopted without reliance on the currently relevant provision, s 6 of the Australia Act 1986, adapting the proviso to s 5 CLVA. The reconstitution of parliament was mentioned above as one alternative. The first question to be considered is whether there is inherent in the Westminster doctrine of parliamentary sovereignty a sufficient source of authority for the enactment of restrictive procedures. This issue is directly relevant to State parliaments for, even though they are the statutory progeny of the United Kingdom Parliament, with their sovereignty limited in the various ways abovementioned, they remain Westminster-style parliaments in relation to which traditional British notions of parliamentary sovereignty are pertinent. This remains the case even though their legislative competence presently remains subject to the Commonwealth Constitution and the Australia Act 1986. Moreover, the nature of the sovereignty of the Westminster Parliament is expressly made relevant by s 2(2) of the Australia Act 1986. At its most succinct, the doctrine of parliamentary sovereignty states that the law is whatever the “Queen in Parliament” enacts. This rule is regarded as fundamental, referred to as the “British grundnorm” (G Winterton, “The British Grundnorm: Parliamentary Supremacy ReExamined” (1976) 92 Law Quarterly Review 591) or, the ultimate “rule of recognition” (HLA Hart, The Concept of Law (Clarendon Press, Oxford, 1961), p 145). However, whilst there is little disagreement as to the fundamental nature of this doctrine in the Westminster 94
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tradition, what this fundamental status entails in terms of the content of the doctrine has been the subject of considerable disagreement between two main schools of thought. According to one view, based on the classic work of AV Dicey (Introduction to the Study of the Law of the Constitution (10th ed, 1959), pp 39-40) and championed by leading British constitutional lawyers such as HWR Wade ((1955), p 190) and O Hood Phillips (O Hood Phillips and P Jackson, Constitutional and Administrative Law (6th ed, Sweet & Maxwell, London, 1978), pp 84-91, but see also pp 55-56) the doctrine is so fundamental that it cannot be altered even by Parliament itself. Accordingly, the United Kingdom Parliament could not fetter or limit its successors by restrictive procedures, or a fortiori in relation to the substantive content of legislation, given that Parliament has an inviolable competence to amend or repeal all legislation pursuant to its normal procedures. Professor HLA Hart, in his seminal work The Concept of Law ((1961), (p 145) referred to this conception of parliamentary sovereignty as a “continuing” sovereignty. (Amongst proponents of this view, there is disagreement – not presently relevant – as to whether it permits an abdication of sovereignty by Parliament.) This view has been challenged by the school of thought which regards sovereignty as “selfembracing”, again using the terminology of Hart. It is based on the view that the sovereignty or supremacy of Parliament is a rule of the common law. As such, like other rules of the common law, it is a rule which can simply be overridden and amended by Parliament. The leading proponent of this view has been Sir Ivor Jennings (WI Jennings, The Law and the Constitution (5th ed, University of London Press, London, 1959), ch IV). In relation to this “self-embracing” view of sovereignty, the question arises as to whether Parliament may impose substantive and/or procedural restrictions on future Parliaments, or whether the fetters can be only procedural. The latter view is certainly the less controversial, although also the less consistent with its own underlying logic, as will be discussed below. Parliament may thus bind its successors by reconstituting itself and vesting in that reconstituted body the power to amend or repeal specific classes of legislation. Restrictive procedures are thus regarded as a form of a reconstitution of Parliament, permitted by these conceptions of the nature of parliamentary sovereignty. (See also W Friedmann, “Trethowan’s Case, Parliamentary Sovereignty, and the Limits of Legal Change” (1950) 24 Australian Law Journal 103.) Whilst support can be found for each of these positions in scholarly writing and judicial exegesis, the “self-embracing” view, at least as so far as restrictive procedures are concerned, has gained considerable ground on the classical Diceyian view. As noted by Professor Winterton, (in Winterton (1980) at 176 (most citations omitted)): [T]he orthodox interpretation of parliamentary supremacy has been under increasing challenge since the early 1950s when, in the aftermath of Harris v Minister for the Interior ([1952] (2) SA 428 (AD)), British constitutional lawyers began to realise that a “sovereign” legislature need not always be constituted in the same way. A preponderance of academic opinion now supports the view that the rule of parliamentary supremacy is “self-embracing”, at least as to procedural requirements, so that Parliament, in enacting legislation, is obliged to obey current law regarding the procedure or “manner and form” of legislating, which it may, of course, alter, but only by enacting legislation in the presently stipulated “manner and form”. [In Harris, the South African Court of Appeal held that the South African Parliament could enact binding restrictive procedures – in the instant case, a joint sitting of both Houses requiring a two thirds majority. The decision was significant because the South African Parliament was sovereign, given that the CLVA no longer applied to it following the Statute of Westminster.]
This was explored in detail by Professor Winterton in the following article in the Law Quarterly Review (relevantly extracted).
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The British Grundnorm: Parliamentary Supremacy Re-examined [2.260] G Winterton, “The British Grundnorm: Parliamentary Supremacy Re-examined” (1976) 92 Law Quarterly Review 591 at 591–613 (footnotes omitted) I. Introduction 591 The “grundnorm” (if one is a Kelsenian) or the “ultimate rule of recognition” (if one is Hartian) of the British constitution is that the supreme legislative power rests in the Queen in Parliament, comprised – at least at present and for most purposes – of the House of Commons, House of Lords and the Queen, theoretically sitting 592 together but in fact sitting separately. This rule was established during the 18th century when the political theories of Hobbes and Bodin were in vogue, with the result that over the years the “ultimate rule of recognition” has more frequently been stated by such slogans as “Parliament is sovereign” or “Parliament is omnipotent.” In fact, in large measure slogans were employed to cover the fact that the real nature of the limits of Parliament’s legislative power was not understood; fortunately, Britain’s history since the “Glorious Revolution” of 1688 has been both peaceful (internally) and prosperous, with the result that questions as to the limits of the constitution could be virtually ignored. The law relating to the powers of Parliament derives from obiter dicta of judges and the writings of jurists and, hence, the relevant rules are usually classified as rules of “common law.” In reality, they are sui generis; it is by no means conceded that Parliament can alter these rules as it can other rules of the common law and it would only exacerbate the confusion about the nature of parliamentary supremacy if any importance is attached to the fact that these rules are classified as part of the “common law.” There are essentially two problems concerning the nature of the British constitution. First, does Parliament’s power to legislate on any subject include the power to limit the area of competence or jurisdiction of future parliaments?: to adopt the phraseology of Professor Hart, is the supremacy of Parliament “continuing” or is it “self-embracing” (HLA Hart, The Concept of Law (1961), p 146)? If the former, each Parliament will have exactly the same powers as its predecessor; it will be able to legislate on every subject bar one – it will not be able effectually to restrict the area of 593 legislative competence of future Parliaments. There are two aspects to “self-embracing” supremacy, and we shall consider both: while Parliament may be unable to restrict the substantive power of future Parliaments, it may be able to impose procedural restrictions on them. Alternatively, it may be able to impose any restrictions whatever – substantive or procedural – on future Parliaments. If substantive restrictions are imposed, it would no longer be realistic to speak of such restricted Parliament as “omnipotent” – although it may still be “supreme” in the sense that no body is superior to it in legislative competence. But such terminological questions are, ultimately, irrelevant. Secondly, if Parliament is able to impose limitations on itself do courts have jurisdiction to review the validity of subsequent legislation? … III Parliamentary Supremacy: Three Interpretations 596 The dichotomy between “continuing” and “self-embracing” parliamentary supremacy has led to three interpretations: 597 1.
The composition of Parliament, the manner and form in which it exercises its power and the limitless ambit of its power are the subject of a “fundamental,” unalterable rule.
2.
Parliament can change its procedure and the manner and form in which it legislates, but cannot impose limits on the content of legislation.
3.
The rule of parliamentary supremacy is totally “self-embracing” ie it can be amended by Parliament in any respect whatever.
A. Substantively and Procedurally “Continuing” Supremacy 1. The Doctrine: This view, which has commended itself to some of Britain’s leading constitutional lawyers, is, supposedly, a realistic assessment of the actual political situation. Parliament, it is asserted, is politically unable to bind itself in any way, and therefore, as the ultimate rule of law or grundnorm is a reflection of political reality, the supremacy of Parliament must be “continuing”. This is clearly the 96
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The British Grundnorm: Parliamentary Supremacy Re-examined cont. perspective of Professor H L A Hart (ibid, p 146). Although Professor Dicey never explicitly stated that the supremacy of Parliament was, in all respects, “continuing”, his writings leave a clear impression to that effect; (AV Dicey, The Law of the Constitution (10th ed, 1959), p 68) this opinion is certainly adopted by his disciples, led by Professor H W R Wade. Professor Wade’s conclusion (HWR Wade, “The Basis of Legal Sovereignty” [1955] Cambridge Law Journal 172) that Parliament cannot alter the rule of parliamentary supremacy in any way is derived, as it must be, from an assumption that the rule must be one of “continuing” supremacy; in other words, the argument is circular. Wade begins his analysis by noting that “the rule enjoining judicial obedience to statutes is one of the fundamental rules upon which the legal system depends” (ibid, 187). He then quotes Sir John Salmond’s well-known pre-Kelsen recognition that there must be an ultimate rule of law the origin of which is “historical only, not legal”. From this observation – which is neutral so far as the “continuing” or “self-embracing” dilemma is concerned – Wade immediately draws his conclusion that in law the “sovereignty” of Parliament must be “continuing” 598 as to both substance and procedure: “Once this truth is grasped, the dilemma is solved. For if no statute can establish the rule that the courts obey Acts of Parliament, similarly no statute can alter or abolish that rule. The rule is above and beyond the reach of statute, as Salmond so well explains …” (ibid, 187. This, with respect, does not follow. Here Wade makes his assumption that “sovereignty” must be “continuing”). In essence, Wade’s analysis amounts to an assertion that in actual fact parliamentary supremacy is “continuing”. Unfortunately, he seeks to suggest that the opposing view is anything more than an alternative (and, in his view, wrong) mode of looking at the same political facts. Is Parliament able to impose procedural or “manner and form” limitations upon itself? “Parliament”, said Dicey, “means … the Queen, the House of Lords, and the House of Commons …” (Dicey, p 39) but he did not state whether it must always mean these three. It seems clear, however, that the neo-Diceyians, especially Wade, (Wade, p 190) do believe the present composition of Parliament and the manner and form of the exercise of its legislative power to be unalterable by Parliament. Moreover, there are some judicial dicta to the same effect. (See South-Eastern Drainage Board (S Aust) v The Savings Bank of S Aust (1939) 62 CLR 603, 633 (Evatt J); Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590, 597 (Maugham LJ, obiter); McCawley v The King [1920] AC 691, 705–706 (Lord Birkenhead LC, obiter).) Although the second formulation of the rule of parliamentary supremacy offers Parliament greater flexibility so far as its procedure and the manner and form of legislating are concerned, both interpretations of parliamentary supremacy ensure that there is no 599 legislative vacuum. From the point of view of national policy, it is important that Parliament be unable to create an area over which it may not legislate; even in countries with “controlled” constitutions, such as the United States, Canada and Australia, the constitution can be amended – at least in most respects – so that there is virtually no area which is a permanent legislative vacuum. Conversely, however, the calcification of rules of law into “fundamental”, unchangeable rules has its own danger, for the process, once begun, may spread, resulting in areas of legislative vacuum. It can be argued that the supremacy of Parliament is only one of a number of very basic conceptions of British constitutional law. For centuries, and certainly at the time of the 1688 revolution, the concept of practically “inalienable” personal liberties has been a very strong feature of the British constitution: it is implicit in the British concept of the Rule of Law, and has led to the doctrine of natural justice in administrative law, as well as the rules for interpreting statutes so as not to threaten individual liberty. Moreover, in the United States, belief in ancient Anglo-Saxon liberties, recognised by Magna Carta, embodied in the common law, and allegedly shown to be inalienable by John Locke, played a vital role in both the argument for a Bill of Rights and the actual framing of the document. In fact, the Ninth Amendment to the United States Constitution has been regarded by some as a recognition that the rights guaranteed by the Bill of Rights predate that document and do not owe their existence to it. There is, therefore, a strong argument that if one basic concept of the British constitution is “fundamental”, why should others 600 not likewise be “fundamental” and unalterable? Nevertheless, there is no reason why an all-or-nothing approach should be adopted for, to adopt Justice Holmes’ aphorism, the life of the law has been experience, not logic. If, as appears to be the case, it is still [2.260]
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The British Grundnorm: Parliamentary Supremacy Re-examined cont. uncertain which of the three formulations of the rule of parliamentary supremacy should be adopted, the policy considerations mentioned here must be taken into account. 2. Abdication of Sovereignty: Dicey saw his theory of “parliamentary sovereignty” as an explanation of the political reality of Great Britain; hence, his theory had to take into account those occasions on which, contrary to his maxim that Parliament cannot bind its successors, Parliament had sought to do just that – for instance by giving independence to Ireland and America. Dicey, accordingly, sacrificed consistency and logic and declared, merely in a footnote, that, while Parliament could not bind its successors, it could abdicate “sovereignty” altogether (Dicey, p 69). This abdication could be effected either without a transfer of “sovereignty” to another body or with transfer. Mere Abdication. Dicey argued, giving no reason other than a comparison between Parliament and the Russian Czar, who could abdicate his throne, that “Parliament could extinguish itself by legally dissolving itself and leaving no means whereby a subsequent Parliament could be legally summoned” (ibid). The principal objection to this argument is, of course, that a legislative vacuum would be created and it is obvious that if the British Parliament decided to disband, the British people would simply substitute some other legislature in its place. There seems to be no precedent for Parliament simply “abdicating”, for in all cases where independence has been given to a British territory and Parliament has declared that the United Kingdom’s sovereignty is terminated the territory has had its own legislature, thereby avoiding any legislative vacuum. In fact, it is difficult to understand why Dicey made his assertion: it was probably merely a point of legal purity, declaring the truism that one occasion when Parliament’s “sovereignty” ends is when Parliament itself disappears. Transfer of Sovereignty. It appears that Dicey envisaged the transfer of sovereignty over the whole area of legislative power, 601 for he gave the Act of Union 1706 as an example (ibid). The policy argument against total abdication of sovereignty does not apply here, for no legislative vacuum is created. Moreover, if the United Kingdom Parliament transferred all its legislative power to another person or body and then dissolved itself, as a practical matter it could not repeal the Act as it would no longer exist. Accordingly, most writers agree with Dicey that Parliament could effectually transfer the totality of its powers to another body. Parliament could transfer part of its legislative authority in two respects: it could, and has purported to, transfer its authority over British territory to another legislature or it could transfer to another body power to legislate for the United Kingdom with respect to certain matters. The difficulty with both these transfers of authority is that Parliament, as usually constituted, remains in existence and could pass repealing legislation. If a court adopted the Dicey/Wade interpretation of parliamentary supremacy, namely that the supremacy is “continuing” both substantively and procedurally, the later 602 Act would effectually repeal the earlier transfer of authority. Accordingly, the present position regarding transfer of partial authority is unclear. Professor Wade has, in fact, recognised the inconsistency in Dicey’s assertion that Parliament can irrevocably transfer its “sovereignty” over a portion of territory, though the inconsistency has not worried a number of leading constitutional lawyers. The various arguments have most frequently been formulated in response to the perennial academic question whether the British Parliament could validly repeal section 4 of the Statute of Westminster 1931: “No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof.” While, admittedly, on its face section 4 requires only a declaration that the Dominion has requested and consented, it is conceded by most writers that, when interpreted in light of paragraph 3 of the statute’s preamble, section 4 requires the Dominion to have actually requested and consented. The opinions expressed regarding section 4 reflect, as one would expect, the various formulations of the rule of parliamentary supremacy: some followers of Dicey, not worried by the inconsistency of their position, assert that section 4 is an abdication of sovereignty; the purists who believe in “continuing” parliamentary supremacy in all respects claim that the British Parliament could validly repeal 603 section 4; and the supporters of the second formulation argue that section 4 redefines “Parliament” to include the relevant authority in the Dominion as well as the Queen, Lords and Commons. 98
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The British Grundnorm: Parliamentary Supremacy Re-examined cont. On this issue at least, the plethora of opinions is practically reconcilable: section 4 is not an express abdication of power to legislate for the Dominions, but redefines the legislature which can enact a statute extending to a Dominion (which would include an Act repealing section 4 itself, if that Act purported to apply to a Dominion) to include the relevant organ of the Dominion as well as the three parts of the British Parliament. However, it is sensible to distinguish between the law applying in a Dominion and the law applying in the United Kingdom: It is compatible with most of the views expressed on section 4 to say that it is merely a rule of statutory construction as far as British law is concerned, but constitutes a new quadripartite legislature as far as the Dominion’s law is concerned. Judicial opinion in Eire (in the days of the Irish Free State) and South Africa supports this interpretation. It is submitted that, as Professor Wade recognised, (Wade, p 196) it is essentially inconsistent with the theory of the “continuing” substantive and procedural supremacy of the British Parliament to admit that, at least as far as British law is concerned, Parliament can legally abdicate its powers or irrevocably transfer them to another body. If there is one area in which Parliament can bind itself and its successors, why should it not be able to do so in others? Once the adherents of the first formulation of the rule of parliamentary supremacy admit that it 604 can be “self-embracing” they have denied the fundamental proposition on which their theory is built. B. Substantively “Continuing” and Procedurally “Self-Embracing” Supremacy 1. The Doctrine: Although Dicey’s formulation of the rule of parliamentary supremacy, largely unchallenged until the early 1930s, ensured the avoidance of legislative vacuums, it was inflexible regarding the manner and form of legislating. True, by 1930 Parliament had enacted the Parliament Act 1911 but, as we shall see, it was possible to regard that statute as merely an example of delegated legislation and not as redefining “Parliament” for certain purposes. It was the Trethowan Case (based on the interpretation of section 5 of the Colonial Laws Validity Act 1865) in Australia and the Harris Case (Harris v Minister of the Interior 1952 (2) SA 428 (AD)) in South Africa (based on the interpretation of section 2(2) of the Statute of Westminster 1931) which first alerted English lawyers to the possibility of differentiating between Parliament’s powers on the one hand and the manner and form of their exercise on the other. Put shortly, they began to see that, even though the powers of Parliament may be illimitable, it might be possible to redefine, at least for some purposes, the “Parliament” which exercised these unlimited powers. Two objections to this formulation, one philosophical and the other practical, must be noted. First, both the first and third interpretations of the rule of parliamentary supremacy are internally consistent; depending on one’s initial premise, it is perfectly consistent to believe either in totally “continuing” supremacy or totally “self-embracing” supremacy, but there is no consistency in asserting that the doctrine is half of each. Does it make sense to claim that the common law, by a fundamental, unchangeable rule, declares that “Parliament” is the supreme legislative body in the realm, and can efficaciously enact any measure it wishes except one which purports to bind itself and its successors, but does not define the body called “Parliament” in which the powers inhere? It does not, for the reason so well stated by RTE Latham: “Where the purported sovereign is any one but a single actual person, the designation of him must include the 605 statement of rules for the ascertainment of his will, and these rules, since their observance is a condition of the validity of his legislation, are rules of law logically prior to him” (RTE Latham, The Law and the Commonwealth (1949), p 523). Secondly, because the second formulation of the rule of parliamentary supremacy gives greater flexibility than the first, lawyers, and maybe judges also, may be prepared to overlook its logical difficulties; it certainly would not be the first time English law took the pragmatic, rather than the logical, course. However, this formulation of the rule presents in addition a practical difficulty: the line between the manner and form of legislating and the power of Parliament is one of degree only. By imposing stringent “manner and form” requirements, such as approval by 90% of the electorate at a referendum, Parliament could effectively limit the power of future Parliaments. This was first recognised by McTiernan J in his dissenting judgment in Trethowan: “It was argued … that if the Legislature said that an Act should not be repealed except in the ‘manner’ required by an Act of the [2.260]
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The British Grundnorm: Parliamentary Supremacy Re-examined cont. Legislature, the first Act could be repealed only in that ‘manner’. The label ‘manner’ does not conclude the matter: the true nature of the law may be disguised” (44 CLR at 442. See also Gavan Duffy CJ at 413). Whether a “manner and form” provision which practically limits the power of future Parliaments would be effective depends upon the courts’ approach to the question of judicial review. A court would probably hold that a later Act of “Parliament”, as ordinarily constituted, could expressly or impliedly repeal an earlier one which, under the guise of a “manner and form” provision, had sought to deny Parliament the power to pass the later Act; in support of this view is the old maxim that “what cannot be done directly cannot be done indirectly”. Although both Trethowan and Harris turned on the interpretation of British statutes, jurists have argued that their reasoning is more general; that is, that the common law (the Rule of Law) obliges Parliament to legislate in the manner and form provided by the presently existing law (which Parliament can alter by legislating in the stipulated manner and form), just as did section 5 of the Colonial Laws Validity Act 1865 with respect to the colonies, and that 606 Harris demonstrated that a “sovereign” legislature can be constituted in more than one way. Opponents find it fallacious to apply Trethowan to the British Parliament because the latter is “sovereign” but the New South Wales legislature is not and argue that, even though the South African Parliament was admittedly “sovereign” in 1952, it was constituted by a document which defined its composition, whereas the British Parliament can look only to the common law which is not specific on the question of its composition. All these arguments have some merit but, of course, they neither prove nor disprove the validity of the second formulation of the rule; they merely debate the validity of an analogy between the British Parliament and the legislatures of South Africa and New South Wales. It cannot be asserted that the ratio decidendi of either Trethowan or Harris itself applies to the British Parliament. This was clearly realised by Dixon J. in the obiter dictum giving birth to the second formulation of the rule of parliamentary supremacy (Trethowan, 44 CLR at 426). Although weak judicial dicta (see Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590, 597 per Maugham LJ; McCawley v The King [1920] AC 691, 705–706 per Lord Birkenhead LC) and some leading constitutionalists oppose the second formulation of the rule, the great majority of modern constitutional lawyers favour it; in fact, in The Bribery Commissioner v Ranasinghe ([1965] AC 172) the Privy Council, comprised of English judges, observed that the fact that a legislature is “sovereign” does not mean that it must always be constituted in the same way (ibid at 200). There is now, accordingly, the authority of senior English judges supporting the argument that the “sovereignty” of the British Parliament is not, per se, an obstacle to acceptance of the second formulation of the rule of parliamentary supremacy. (Moreover, the Supreme Court of Canada appears to have held (albeit obiter) that the “sovereign” Canadian Parliament has, in s 2 of the Canadian Bill of Rights 1960, imposed upon itself a binding form for the enactment of certain legislation: see R v Drybones [1970] SCR 282; 9 DLR (3d) 473; Att-Gen (Canada) v Lavell [1974] SCR 1349, 1382, 1388; 38 DLR (3d) 481, 507, 511. This also appears to be the meaning of an enigmatic dictum of Abbott J (dissenting): [1974] SCR at 1374; 38 DLR at 484.) … 607 The discussion of this formulation is not purely academic; Parliament has specified the manner in which the Royal Assent shall be given to legislation (Royal Assent Act 1967) and, on at least three occasions, has enacted legislation which may be regarded as having redefined “Parliament” for certain purposes. Though there are contrary interpretations, the Parliament Acts of 1911 and 1949 may be regarded as having provided an alternative legislature (comprising the House of Commons and the Monarch) for the enactment of most subjects of legislation. The European Communities Act 1972, when read with article 189 of the Treaty of Rome, may be regarded as having established, for some purposes, a new legislature comprising the Monarch, Lords, Commons and the legislative organs of the European Economic Community; and the Northern Ireland Constitution Act 1973 – if it is not regarded as a merely political declaration of intention – could have established a new legislature, comprising the British Parliament and a majority of the people of Northern Ireland, for the enactment of legislation to terminate British jurisdiction over Northern Ireland or any part thereof. Nevertheless, the fact that Parliament has enacted legislation does not establish that the legislation is valid or will be effective; although none of the Acts mentioned has been challenged in court, it has been alleged that one of them is invalid. [Editorial note: This was the Parliament Act 1949, noted at 607 n 16 of this 100
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The British Grundnorm: Parliamentary Supremacy Re-examined cont. article. But see now R (Jackson) v Attorney General [2006] 1 AC 262 in which an extraordinary nine-member House of Lords upheld the Parliament Act 1949 (UK) and the Hunting Act 2004 (UK).] Although it is possible that “manner and form” legislation which merely binds Parliament – or its component parts – but is not enforceable in the courts would be effectual in practice, the efficacy 608 of the legislation would depend on parliamentary good faith, which might not always be forthcoming. Accordingly, the second formulation of the rule of parliamentary supremacy raises the question of judicial review of legislation in the United Kingdom. 2. Judicial Review: Review of “Enacted Legislation”. The conception that Parliament could alter its composition or the “manner and form” of its legislation led inevitably to re-examination of the question of judicial review of legislation, and it is appropriate that the first tentative steps in this direction were taken by Dixon J in Trethowan. “[T]he Courts might be called upon to consider [whether the body which purported to enact the measure had authority to do so],” he declared (44 CLR at 426; emphasis added), but he left the question unresolved, merely observing enigmatically that “the answer … would be deduced from the principle of parliamentary supremacy over the law” (ibid). The common law, as an aspect of the Rule of Law, always recognised that the courts, in applying the law to cases before them, must ensure that what purport to be Acts of Parliament have in fact been approved by all three parts thereof (The Prince’s Case (1606) 8 Co Rep 1a, 20b; 77 ER 481, 505). But, as we have seen, until the 1930s it was not thought that Parliament could alter either its composition (including the “manner and form” of legislating) or its powers; hence judicial dicta to the effect that the courts cannot question the validity of an Act passed by all three parts of Parliament are irrelevant to the question whether “manner and form” provisions can be judicially enforced; that question had not been conceived of when most of the dicta were uttered. When considering whether to apply to a dispute what purports to be an Act of Parliament, a court which does not accept the first formulation of the rule of parliamentary supremacy must inquire 609 whether the measure has in fact been enacted by a body which is authorised, under the existing law, to pass it, and whether it was enacted in the correct manner and form; this is merely an application of the Rule of Law, expressed so well 173 years ago in Marbury v Madison ((1803) 5 US (1 Cranch) 137, 177–178). Accordingly, British constitutional lawyers favouring the second formulation argue for judicial review, but there is at present neither parliamentary nor judicial support for it. We must, therefore, be wary of assuming that the courts will necessarily do what the Rule of Law suggests they should. It is vital to remember that before a court will consider the validity of what purports to be an Act of Parliament it must go through two stages. First it must decide which of the three formulations of the rule of parliamentary supremacy it will adopt (this is probably what Dixon J meant when he wrote that the answer “would be deduced from the principle of parliamentary supremacy over the law”: (Trethowan, 44 CLR at 426) and, secondly, if it adopts the second or third formulation, it must consider whether it should exercise jurisdiction; this depends on the “separation of powers” and “political questions” doctrines. Especially in view of legal developments in the Commonwealth, recognised by the Privy Council (esp The Bribery Commissioner v Ranasinghe [1965] AC 172), it is becoming increasing likely that British courts will adopt the second formulation of the rule. Moreover, it is likely that their present willingness to examine constitutional arguments innovatively will lead to acceptance of judicial review of the validity of legislation; or, in other words, consideration of whether a measure really has been enacted by Parliament. Judicial Intervention Prior to Enactment. If Parliament has provided a new “manner and form” for the enactment of legislation, say approval by the electors at a referendum held after passage of a Bill by the two Houses but before submission for the Royal Assent, the 610 question naturally arises whether the courts may intervene before the Bill is enacted to ensure that the new “manner and form” requirements are not ignored. It may be thought that the discretion which, by law, the Crown still has to withhold assent to legislation would make litigation prior to the Royal Assent moot; however, unlike American Presidents who have a constitutional power to withhold assent, often do, and have sometimes claimed the right when considering veto to follow their own view of the law, the British Monarch, by a convention established since the reign of Queen Anne, does not refuse Assent to Bills [2.260]
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The British Grundnorm: Parliamentary Supremacy Re-examined cont. passed by both Houses. Hence, in Britain, for all practical purposes a Bill is certain to become “law” once it is submitted for the Royal Assent, with the result that litigation to prevent the submission of a Bill for the Royal Assent is not hypothetical or moot. As with so many ideas in this area of constitutional law, the notion of judicial intervention prior to the Royal Assent owes its origin to Trethowan, in which the Supreme Court of New South Wales issued an injunction against submission of the Bills for the Royal Assent (Trethowan v Peden (1930) 31 SR (NSW) 183, 205, 221). Debate has raged ever since both as to whether the courts could 611 or should grant such relief. A strong argument can be made that, at least in cases where the Bill, when assented to by the Crown, could be held invalid by the courts litigation should await its attempted enforcement, for, until then, the whole proceedings of Parliament can be regarded as merely a wasteful exertion, but not unlawful. Consequently, it is important to remember that in Trethowan – still the only occasion on which such an injunction was issued – the existing legislation (Constitution Act 1902–1929 (NSW) s 7A(2)) expressly forbade the submission to the Governor of a Bill not approved at a referendum, so that submission of the Bill to him was unlawful. In view of the courts’ traditional reluctance to “interfere” in the “legislative process” or to issue any injunction when a declaration will probably suffice, it is highly unlikely that the British courts would issue an injunction, even in circumstances similar to those in Trethowan. However, the courts show far less reluctance to make a declaration, leaving it to the appropriate officers to decide whether or not to comply with their legal obligations. C. Substantively and Procedurally “Self-Embracing” Supremacy Although it has no judicial support, a third interpretation of the rule of parliamentary supremacy is logically indicated: that Parliament’s supreme power enables it to redefine itself, impose “manner and form” requirements for the enactment of future legislation, and 612 impose substantive limitations on the future exercise of its powers (see Jennings, pp 152–153.) … We have seen that only the first and third interpretations of the rule of parliamentary supremacy are internally consistent; consequently, it may be argued that the inconsistency inherent in the second formulation supports the third, for the second, if it is to be consistent, must admit that the rule of parliamentary supremacy is alterable by Parliament. However, despite the logical attraction of the third formulation, its adoption by the courts seems very remote for two reasons. First, although it gives Parliament the procedural flexibility given by the second formulation, unlike the first two interpretations it would enable Parliament to deny future Parliaments the power to legislate on certain subjects, thereby enabling the creation of permanent legislative vacuums which could be eliminated only by resort to extra-constitutional devices. It is unlikely that the courts would adopt an interpretation which could lead to such practical difficulty that a “revolution” and replacement of the grundnorm may follow. Secondly, there is simply no judicial support whatever for a rule which would enable Parliament to impose limitations on the content or ambit of future legislation. While legislation seeking to limit the power of future Parliaments may not be void ab initio, it would, under the present view of the law, clearly be ineffective, exerting only a moral pressure, at most, on future Parliaments. This conclusion is borne out by the history of those statutes by which Parliament has sought to entrench legislation by providing that it was to last “for ever after” or “in all times to come”: the Bill of Rights 1688, the Union with Scotland Act 1706 and the Union with Ireland Act 1800. Each of these statutes has been amended, the Union with Ireland Act has been effectually repealed, and most commentators 613 acknowledge that they impose no legal limitation whatever on the powers of Parliament. It is submitted that the second formulation of the rule of parliamentary supremacy will be endorsed by British courts. The only circumstance in which the courts might accept the third formulation is one in which the traditional political setting is radically altered, enabling the courts to say that in effect a new grundnorm, or a new customary constitutional rule has emerged. The only presently foreseeable occasion for such a change of attitude by the courts is the complete integration of Britain into the political, economic, constitutional and social structure of the European Economic Community. Accordingly, an assessment of the future of the ultimate rule of her constitution must take the 102
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The British Grundnorm: Parliamentary Supremacy Re-examined cont. European Economic Community into consideration. …
Notes&Questions
[2.270]
1.
A most important Australian work on these and other issues relating to parliament is the book written by Professor Jeffrey Goldsworthy, The Sovereignty of Parliament: History and Philosophy (1999).
2.
How significant is Professor Winterton’s observation that the laws relating to the powers of Parliament are not in fact common law rules but are rather sui generis? How significant to the present question are his observations (at p 592 from the above extract) that “it is by no means conceded that Parliament can alter these rules as it can other rules of the common law and it would only exacerbate the confusion about the nature of parliamentary supremacy if any importance is attached to the fact that these rules are classified as part of the ‘common law’.” An eminent proponent of the view that such rules were common law rules was Sir Owen Dixon. (See O Dixon, Jesting Pilate (1965), pp 40, 43, 198, 199 and 206, 212-213 (from “The Common Law as an Ultimate Constitutional Foundation” (1957) 31 Australian Law Journal 240 at 242, 245).)
3.
Even if one were to adopt the view of parliamentary sovereignty as “continuing”, it is of course possible to reconcile the outcome of cases such as Trethowan on the basis that colonial, State and Dominion legislatures were subordinate legislatures. The British Parliament could provide for “manner and form” legislation in imperial legislation applicable to such legislatures without in any way fettering itself.
4.
A difficult question in relation to the powers of State Parliaments is whether considerations relating to the “sovereignty” of the United Kingdom Parliament are relevant. Professor Goldsworthy, Trethowan as authority, has argued that “the extent and nature of these powers [the legislative powers of the Australian State Parliaments] depends upon the relevant constitutional instruments: the general theory of parliamentary sovereignty is pertinent only to the extent that it illuminates their meaning” (Goldsworthy (1999), p 403). That general considerations of “sovereignty” remain relevant, to this limited extent, is supported by Peter Hanks: [T]he concept of parliamentary sovereignty is not without influence in Australia, for the interpretation of those provisions of the State Constitution Acts conferring legislative power is influenced by principles which operate in England as part of the law of parliamentary sovereignty. (PJ Hanks, Constitutional Law in Australia (2nd ed, 1996), p 130)
The High Court again had occasion to consider restrictive procedures and whether sole reliance had to be placed on CLVA, s 5 in resolving such questions in Clayton v Heffron.
Clayton v Heffron [2.280] Clayton v Heffron (1960) 105 CLR 214 at 250–252 [Section 5B of the Constitution Act 1902 (NSW) was introduced in 1933 for the purpose of resolving deadlocks between the two houses of Parliaments. Section 5B provided that if the Legislative Assembly twice passed a Bill, which was not an appropriation Bill, and the Legislative Council twice rejected or failed to pass the Bill, the Bill was to be submitted to a referendum of electors. If approved by a [2.280]
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Clayton v Heffron cont. majority of electors, it would then be presented to the Governor for the royal assent. This procedure was not, of course, confined to Bills to which s 7A itself expressly applied, that is, Bills relating to the abolition of the Legislative Council. However, because s 5B did extend to Bills to which s 7A applied, and because there were some rather precise procedures which had to be followed, it could be regarded as an amendment to the way s 7A operated. In 1959 and 1960, a further attempt was made by the Labor Party, then in government, to abolish the Legislative Council. The Legislative Assembly twice passed, and the Legislative Council twice rejected, a Bill for the abolition of the Legislative Council. Before the Bill could be referred to the electors, however, litigation was commenced in the Supreme Court of New South Wales by certain members of the Legislative Council and others seeking declarations that the section was invalid and that, in any event, its procedures had not been complied with. An injunction was also sought restraining the presentation of the Bill to the electors in a referendum. The plaintiffs were unsuccessful in the Supreme Court, and the High Court refused special leave to appeal. The High Court, in its reasons for so refusing, held s 5B to be valid, although a minority dissented to the extent that the special procedures provided for by s 5B had not been complied with. In the event, the Bill was referred to the electors, a majority of whom rejected it. Dixon CJ, McTiernan, Taylor and Windeyer JJ in a joint judgment (with which Kitto J concurred) declared (at 249–250) that s 5 of the Constitution Act 1902 (NSW), in addition to CLVA, s 5, were sources of legislative power to enact s 5B. Whilst conceding that Trethowan’s Case was decided by reference to s 5 of the CLVA, this did not mean that sole reliance had to be placed on that section. As Professor W L Morison noted, “[t]he provision of s 5 [of the CLVA] in this respect may have been a piece of ‘overkill’, for all the importance which was laid on it in A-G v Trethowan” (Morison, The System of Law and Courts Governing New South Wales (2nd ed, Butterworths, Sydney, 1984), p 53).] Dixon CJ, McTiernan, Taylor and Windeyer JJ: 250 The reason for the doubt is that s 5B leaves the legislature as it is and yet makes special provision on occasion for one House with the approval of the electors at a referendum exercising a full legislative power, including indeed a constituent legislative power, without the consent of the other House. It may be said that to do this goes beyond the literal meaning of the words “constitution, powers and procedure of such legislature”. But be that as it may, s 5 of the Constitution Act, 1902–1956 appears on consideration to contain a sufficient power not only to change the bicameral system into a unicameral system but also to enable the resolution of disagreements between the two Houses by submitting an Act passed by the Assembly for the approval of the electors in substitution for the assent of the Council and moreover to include in the application of that legislative process Bills for the abolition of the Legislative Council and Bills otherwise falling within the description dealt with by s 7A. The reasoning supporting this conclusion is indeed simple. It rests on the plain if very general words of s 5 of the Constitution Act 1902. The first paragraph of the section is as follows: “The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever.” The expression “Legislature” is defined in s 3 to mean the Sovereign with the consent of the Legislative Council and Legislative Assembly. The second paragraph of s 5 is a proviso to the effect that all Bills for appropriating any part of the public revenue or for imposing any new rate tax or impost shall originate in the Legislative Assembly. The proviso has no relevance to the case, but perhaps it may supply an example of a parliamentary proviso that would not be regarded as affecting the validity of the appropriation rate tax or impost and also an example of a provision of the Constitution which might be removed in the exercise of the power expressed in the first paragraph of s 5. The first paragraph confers a complete and unrestricted power to make laws with reference to New South Wales. There is doubtless a territorial limitation implied in the reference to New South Wales but there is no limitation of subject matter. The laws may be constitutional or at the other extreme they may deal with subjects of little significance. Clearly the power extends to laws altering the Constitution Act 1902 itself: cf McCawley v The King. It was contended that although it might be true that 251 s 5 gave a very extensive power which, as in a flexible or uncontrolled constitution, extended to laws relating to, and changing, the “Constitution” of New South Wales, yet the postulate or hypothesis of the section is that “the Legislature” as defined shall be and remain the repository of the power so that no law could be good which placed such a power of constitutional amendment or 104
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Clayton v Heffron cont. indeed of simple law-making in the hands of one House even with the approval of a majority of the electors and the assent of the Crown. There are many reasons for assuming that the assent of the Crown must always remain necessary but what ground is there for supposing that the Legislature must always remain defined in terms of two Houses? The purpose of the provision is to express the full legislative power of a State the authority of which is continued under ss 106 and 107 of the Constitution of the Commonwealth. The Legislature was endowed with constituent as well as ordinary legislative power. Section 5 was of course enacted by the Legislature of New South Wales. But it was enacted in the exercise of the State’s constituent legislative power and that in turn depended upon an existing source of authority. That existing source of authority consisted in the imperial act (18 & 19 Vict c 54), commonly called the Constitution Statute 1855, and the Act of the Colony as amended which forms the schedule of that statute, otherwise 17 Vict No 41, commonly called the Constitution Act. ... They meant the establishment of a new legislature; at the same time the principles of responsible government were introduced and with that came the principles and conventions and general tradition of British parliamentary procedure. But what matters here is that the two instruments contain the source whence the constituent power of the Legislature is derived. ... It seems obvious that the combined effect of s 4 of the Constitution Statute 1855 and s 1 of the Constitution Act 1902 was to confer upon the Legislature of New South Wales a full constituent power. … The authority thus conferred is that exercised in adopting s 5 of the Constitution Act 1902 and it formed an ample foundation for that enactment. It must be remembered that the negative restrictions which s 7A imposes under the operation of s 5 of the Colonial Laws Validity Act 1865 were complied with when s 5B was enacted. That being so, once it is seen that s 5 gives the Legislature a full constituent power the question why should the power of the Legislature not extend to the enactment of s 5B almost answers itself. What it means is that the power to legislate, including the power to legislate for the abolition of the Council, may be exercised by the Crown with the consent of the Assembly provided the proposed law is approved by the majority of the electors voting at a referendum. That is a law falling within the authority described by s 5 of the Constitution Act, 1902. That being so it is valid.
[2.290]
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Notes&Questions
The joint judgment thus reasoned that s 5 of the Constitution Act 1902 (NSW) was sufficient authority for the purpose. Laws falling within s 5, whether or not they were “manner and form” provisions, were thereby valid. This extended to laws altering the Constitution Act 1902 itself. This was because s 5 was enacted pursuant to the Imperial Constitution Statute 1855 (18 & 19 Vict c 54) which contained in its schedule the original Constitution Act 1902 for New South Wales; and s 4 of the Constitution Statute enabled the Constitution Act 1902 to be repealed or amended as the New South Wales legislature thought fit, subject of course to the repugnancy limitations. Thus, the Constitution Act 1902 (NSW) itself had repealed the original Constitution Act 1902 contained in the Constitution Statute 1855 (18 & 19 Vict c 54). Section 5 of the Constitution Act of 1902 then exercised the power, which the New South Wales legislature derived from the Constitution Statute 1855 (18 & 19 Vict c 54), to grant itself the plenary power, referred to above. Section 5B was an exercise, in turn, of the power provided by s 5. As stated in the joint judgment, s 5 contained: sufficient power not only to change the bicameral system into a unicameral system but also to enable the resolution of disagreements between the two Houses by submitting an Act passed by the Assembly for the approval of the electors in substitution for the assent of the Council and moreover to include in the application of that legislative process Bills for the abolition of the Legislative Council and Bills otherwise falling within the description dealt with by s 7A (at 250). [2.290]
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2.
Thus, the decision confirmed the plenary nature of the legislative power of State parliaments, as contained in their respective Constitution Acts. Can it be said from the above reasoning that this would allow the enactment of legislation amending the Constitution, but also, it would seem, the imposition of restrictive procedures in relation to general legislation and not merely in relation to the constitution, powers and procedure of parliament, the limitation contained in CLVA s 5? Could reliance be placed on the notion that these restrictive procedures result in a reconstitution of the legislature in certain specific circumstances?
3.
If the plenary power of State legislatures – as provided for in their Constitution Acts (and now currently upheld by the Australia Act 1986) – is the basis for this reconstitution alternative, the determination of those restrictive procedures which can be regarded as resulting in a reconstitution of the legislature becomes a central issue. Thus, a careful classification of restrictive procedures needs to be undertaken if the “reconstitution” argument is being relied on as a source of authority independently of s 6 of the Australia Act 1986. Although the more common restrictive procedures can be regarded as reconstitution of the legislature, it remains a difficult issue in the hard case. A subtle classification was undertaken by Professor Goldsworthy ((1999), pp 407-408) when he examined the “reconstitution” alternative suggested by Rich J in Trethowan and hinted at by Dixon J in the same case. For Rich J, reconstitution of the legislature can occur by “the inclusion of a new element within it.” Dixon J conceived of laws “prescribing legislative procedures as well as laws changing the constituent elements of the legislature”. Goldsworthy continued (pp 407-408): To some extent both kinds of laws can be said to change the constitution of the legislature. “Parliament” is constituted partly by laws prescribing the persons or bodies included within it, and partly by laws prescribing the procedures they must follow, because when acting otherwise than in accordance with those procedures those persons or bodies do not act as Parliament. Thus, it could be argued that a requirement that bills be passed by a special majority in either or both of the Houses was part of the constitution of Parliament. To that extent, Rich and Dixon JJ may have had in mind a single alternative to the manner and form proviso. I will use the term “reconstitution” to refer to this alternative, and the terms “structural reconstitution” and “procedural reconstitution” to refer to the two different kinds thereof. As is clear from these considerations, and from the judgment of Rich J (if he was right), some restrictive procedures can be treated either as laying down a requirement as to manner and form or as partially reconstituting the legislature. (footnotes omitted)
Thus, special majorities in both houses, or either house, could still meet the requirement of a reconstitution, and thus still have an independent source of legitimacy. But what about those restrictions which are clearly so purely procedural or formal as to make it implausible to regard them as a reconstitution of the legislature? Goldsworthy again (at p 408): … some procedural requirements could not plausibly be characterised as pertaining to the constitution of the legislature (eg, requirements pertaining to timing). If Dixon J thought that some of these may nevertheless be binding independently of the manner and form proviso, he must have had in mind a second alternative. I will use the term “pure procedures” to refer to such procedural requirements – “pure” because necessarily they affect neither the legislature’s constitution (otherwise reconstitution would be the issue) nor its substantive powers (otherwise they would invalidly restrict Parliament’s continuing constituent power). It follows that pure procedures must not be excessively demanding and difficult to comply with. In addition to pure procedures, it could be argued that requirements concerned solely with the form of legislation may be 106
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binding independently of the manner and form proviso. For example, if an Act provides that it may only be expressly repealed or amended, it could be argued that, without impinging on the Parliament’s constitution or its substantive powers, it prescribes a form which repealing or amending laws must assume to be valid. I will add this possibility to that of pure procedures, and treat them both as constituting a single alternative to the manner and form proviso and reconstitution. I will use the term “pure procedure or form” to refer to this second alternative.
Whether the High Court will regard either alternative as binding has yet to be settled definitively. See Attorney-General (WA) v Marquet (2003) 217 CLR 545. The reconstitution alternative [2.300] The reconstitution alternative to CLVA, ss 5 and 6 of the Australia Act 1986 as a
source for enacting restrictive procedures, was explored in detail by Professor Gerard Carney in the article extracted below. The assumption that restrictive procedures are applicable to legislation dealing with general subject matter should be noted.
An Overview of Manner and Form in Australia [2.310] G Carney, “An Overview of Manner and Form in Australia” (1989) 5 Queensland University of Technology Law Journal 69 at 86–89 (footnotes omitted) 86 The clearest example of a reconstituted legislature is the typical manner and form provision which imposes a referendum requirement. The newly constituted legislature comprises both houses (or one in Queensland) of the original legislature, the electorate, and the Governor. The electorate is added as if it were another chamber. Such a reconstitution is effected for the special purpose of enacting those laws for which the manner and form is prescribed. The crucial point is that this power to enact those laws now lies solely with the reconstituted legislature, the original legislature no longer possesses this power and provided the referendum requirement is double entrenched, nor is it capable of recalling the power. [Professor Carney proceeded to examine the debate as to whether the sovereignty is “continuing” or “self-embracing” as discussed above. After examining the view that the sovereignty of Parliament is “continuing”, he continued:] 87 However, other constitutional lawyers have argued that the United Kingdom Parliament does possess the capacity to bind itself by the technique of reconstituting itself for special purposes by prescribing a referendum requirement. Sir Ivor Jennings argued: “Legal sovereignty” is merely a name indicating that the legislature has for the time being power to make laws of any kind in the manner required by the law. That is, a rule expressed to be made by the King, “with the advice and consent of the Lords spiritual and temporal, and the Commons in this present Parliament assembled, and by the authority of the same”, will be recognised by the courts, including a rule which alters this law itself. If this is so, the “legal sovereign” may impose legal limitations upon itself, because its power to change the law includes the power to change the law affecting itself. Professor Wade counters this reasoning with the point that the authority of Acts of Parliament derives from the common law – the courts, and although Parliament can alter the common law it cannot by statute alter the common law rule that demands that courts obey enactments of the Parliament comprising the Queen, the Lords and the Commons, for this rule is “an ultimate political fact” which can only be altered by revolution. [Reference is made to the dicta of Dixon J in Trethowan’s Case before continuing:] The dilemma whether a sovereign legislature was bound by manner and form was squarely 88 presented to the South African Appeal Court in Harris v Minister of the Interior [1952] 2 SA 428; [1952] 1 TLR 1245 where amendments to the South Africa Act 1909 (IMP) were challenged for not complying with s 152 of that Act which prescribed a manner and form requiring both Houses to sit and deliberate upon the proposed amendments in relation to voting rights, in a joint sitting and to pass them by a two-third’s majority. The CLVA no longer applied to South Africa by virtue of the Statute of Westminster 1931. Nevertheless, while accepting the sovereignty of the South African Parliament, [2.310]
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An Overview of Manner and Form in Australia cont. the Appeal Court enforced the manner and form and declared the amendments invalid because the authority to enact those amendments was vested solely in the Parliament as constituted by s 152 of the South Africa Act 1909. In effect then the Court accepted divisible sovereignty – that Parliament can be differently constituted for different purposes. How far this point goes was not discussed, in particular, whether the South African Parliament can itself subdivide its powers further? The above discussion concerns the capacity of a sovereign Parliament to bind itself by manner and form provisions. The Parliaments of the Australian States, although possessing a limited sovereignty, are in no distinguishable position from that of a fully sovereign legislature when considering their ability to bind themselves outside of s 6 by a manner and form provision which reconstitutes their Parliaments. The main authority in Australia is Trethowan’s Case in the judgments of Rich and Dixon JJ. Dixon seemed to accept this basis of enforcement for manner and form while not relying on it. Rich J did rely on it, as well as the proviso to s 5 of the CLVA. Rich J dealt with the two matters which were crucial to this basis of enforcement of manner and form outside the CLVA and equally now outside s 6 [of the Australia Act 1986]. The first is whether a State legislature can reconstitute itself for a special purpose. The second matter is if it can so reconstitute itself, is the original legislature effectively deprived of the power involved? In answering the first question, s 5 of the CLVA conferred on all representative legislatures full power to make laws respecting the constitution, powers and procedure of the legislature – a power which clearly authorised State Legislatures to legislate with respect to “constitution” which was defined by Dixon J in Trethowan’s Case to cover “its own nature and composition”. [at 429] Rich J relied on s 5 of the CLVA to hold: “The constitution of the legislative body may be altered; that is to say, the power of legislation may be reposed in an authority differently constituted.” [at 418] This power today is found in s 2(2) of the Australia Acts 1986. But a further continuing source of power is the general grant of legislative power to the State Parliaments to make laws for the peace, order and good government of the State. The High Court in Clayton v Heffron preferred to rely on this power than on s 5 of the CLVA to uphold the power of the New South Wales Parliament to enact s 5 to provide for the resolution of deadlocks between the two Houses. In the joint judgment [of the majority] a difficulty was noted in relation to s 5 of the CLVA: “But some doubt may perhaps exist as to the substance of s 5B following within the words ‘respecting the constitution powers and procedure of such legislature’, although the same doubt does not appear to have been felt by members of the Court in Taylor v Attorney-General of Queensland”. Given that a State Parliament has the power to reconstitute itself for special purposes, 89 in what ways can this be achieved and what limits apply? Reconstitution from a bicameral to a unicameral Parliament generally, as well as, for special purposes is permissible. The addition of another chamber such as the electorate is also valid. Reconstitution could also arise in procedural sense by a special majority requirement. [Professor Carney then introduces the limitations on reconstitution:] Parliament cannot abdicate its powers by divesting itself of power. Obviously valid reconstitution does not infringe this limitation. But a purported reconstitution which subjects the exercise of power to the consent of an outside body (other than the electorate) will be invalid. Apart from these abdications of power, it is well established that the Crown must remain part of the legislature or the Parliament for the purpose of granting royal assent.
[2.320]
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As noted by Professor Carney, the Australia Act 1986 – which can be regarded as “a Statute of Westminster for the States” – does not reproduce that part of s 5 of the CLVA empowering colonial legislatures to make laws with respect to their constitutions, including their amendment. The source of such power will have to be found either in s 2(2) of the Australia Act 1986 and, as was suggested in Clayton v Heffron, in the provisions in the various State constitutions granting plenary power to the legislature; [2.320]
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s 5 of the Constitution Act 1902 (NSW) providing “constituent as well as ordinary legislative power” (at 251, in the joint judgment). 2.
The “enabling” statute, currently the Australia Act 1986, in fact grants plenary legislative power to the State Parliaments, subject to the Commonwealth Constitution and the Australia Act 1986 itself. Moreover, s 2(2) of that Act provides that the legislative powers of the Parliaments of States “include all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State.” Accordingly, the concept of “parliamentary sovereignty” in the Westminster tradition remains an important consideration in determining the question of alternate sources of authority to enact restrictive procedures. Since the Australia Act 1986, the point of reference remains the Westminster tradition of parliamentary sovereignty as it evolves in Australian circumstances. Doctrinal developments relating to the United Kingdom Parliament, especially in light of that jurisdiction’s legal involvement with the European Union, may remain germane and selectively useful, but increasingly less so. Accordingly, the meaning of parliamentary sovereignty – whether it is “continuing”, “self-embracing” or procedurally “self-embracing” – remains a relevant consideration irrespective of s 6 of the Australia Act 1986. It must continue to engage Australian constitutional lawyers when considering the nature of the plenary power of State Parliaments within the limits suggested. That being the case, and especially in light of s 2(2) of the Australia Act 1986, it follows that a determination of the powers of the United Kingdom Parliament pre-1986 remain a relevant consideration. This is not to deny that fundamental issues relating to parliamentary sovereignty are to be resolved from a purely Australian perspective, including Australian notions of parliamentary sovereignty as they may have evolved since 1986.
Attorney-General (WA) v Marquet [2.330] Attorney-General (WA) v Marquet (2003) 217 CLR 545 at 553–576 Gleeson CJ, Gummow, Hayne and Heydon JJ: 553 [1] The ultimate question in each of these matters is whether it was lawful for the respondent, the Clerk of the Parliaments of Western Australia, to present for Royal Assent either the Bill for an Act to be entitled the Electoral Distribution Repeal Act 2001 (the Repeal Bill) or the Bill for an Act to be entitled the Electoral Amendment Act 2001 (the Amendment Bill). [2] Section 13 of the Electoral Distribution Act 1947 (WA) provided that: It shall not be lawful to present to the Governor for Her Majesty’s 554 assent any Bill to amend this Act, unless the second and third readings of such Bill shall have been passed with the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Council and the Legislative Assembly respectively. [Emphasis added to indicate the significance of the word “amend” in both argument and judicial reasoning.] Neither the Repeal Bill nor the Amendment Bill was passed with the concurrence of an absolute majority … of the Legislative Council. Did s 13 of the Electoral Distribution Act 1947 make it “not … lawful” to present to the Governor for Her Majesty’s assent either the Repeal Bill or the Amendment Bill? That is, did either or both “amend” the Electoral Distribution Act 1947? (It is convenient to call this the “construction question.”) [3] If s 13 of the Electoral Distribution Act 1947, on its proper construction, did apply to either or both of the Repeal Bill and the Amendment Bill, was it necessary to comply with the manner and form provisions of s 13? (It is convenient to call this the “manner and form question.”) That will require consideration of the operation and effect of s 6 of the Australia Act 1986 (Cth) and its provision that: Notwithstanding sections 2 and 3(2) above, a law made after the commencement of this Act by the Parliament of a State respecting the constitution, powers or procedure of the [2.330]
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Attorney-General (WA) v Marquet cont. 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. [4] These reasons will seek to demonstrate that, on its proper construction, s 13 of the Electoral Distribution Act 1947 did apply to the Repeal Bill and to the Amendment Bill and that, because each of those Bills was for “a law … respecting the constitution … of the Parliament” of Western Australia, s 6 of the Australia Act 1986 required compliance with the manner and form provisions of s 13 of the Electoral Distribution Act 1947. … The construction question – applying s 13 567 [56] It follows from what has been said about the proper construction of s 13 that it applied to the Repeal Bill. That was a Bill for an Act to “amend” the Electoral Distribution Act 1947. [57] It also follows that s 13 applied to the Amendment Bill. It, too, was a Bill for an Act which would amend the Electoral Distribution Act 1947 because it was a Bill to make provision for the several subjects with which the Electoral Distribution Act 1947 dealt. Although the Amendment Bill was introduced and dealt with separately from the Repeal Bill, a Bill dealing with these subjects had to be passed … Section 13 of the Electoral Distribution Act as a manner and form provision 568 [63] Discussion of the application of manner and form provisions has provoked much debate about the theoretical underpinnings for their operation. Thus, to ask whether a Parliament has power to bind its successors by enacting a manner and form provision has, in the past, led into debates cast in the language of sovereignty or into philosophical debates about whether a generally expressed power includes power to relinquish part of it. Neither the language of sovereignty, nor examination in the philosophical terms described, assists the inquiry that must be made in this case. Sooner or later an analysis of either kind comes to depend upon the content that is given to words like “sovereignty” or “general power”. It is now nearly fifty years since HWR Wade convincingly demonstrated that the basal question presented in a case like the present, when it arises and 569 must be considered in a British context, is about the relationship between the judicial and legislative branches of government and, in particular, what rule of recognition the courts apply to determine what is or is not an act of the relevant legislature. When Diceyian theories about the role of the Parliament at Westminster held sway the answer which Wade identified as having been given in England to the question of what rule of recognition an English court would apply in relation to the Acts of that Parliament was: any Act enacted in the ordinary way by that Parliament regardless of any earlier provision about manner and form. [64] Sir Owen Dixon explained that such an analysis proceeded from an understanding of the relationship between the judicial and the legislative branches of government that was apt to a structure of government which did not depend ultimately upon the constitutional assignment of particular powers to the legislature or provide for a constitutional division of powers between polities Dixon, “The Law and the Constitution”, Law Quarterly Review, vol 51 (1935) 590, at 604.) It was a structure of government in which the only relevant fundamental or constitutional rule engaged was the rule of recognition. This was “the pivot of the legal system”. There was no other fundamental or constitutional rule which applied. And that is why a different answer was to be given when considering the legislation of subordinate legislatures where a superior legislature (the Imperial Parliament) had provided for some manner and form provision. There was a higher, more fundamental, rule that was engaged. Given such constitutional developments in Britain as devolution, and the undertaking of treaty obligations in relation to Europe, analysis of the first kind described might now be thought to encounter difficulties today. (H W R Wade, Constitutional Fundamentals (1989), pp 40–47). ... [65] In an Australian context it was, at first, important to recognise that the colonial legislatures stood in the second category we have identified. They were subordinate legislatures, and manner and form provisions could be and were imposed upon them by Imperial legislation. ... In 570 addition, the Colonial Laws Validity Act 1865 (IMP) gave effect to manner and form provisions found not only in Imperial law but also in colonial law. That too was seen as the imposition of manner and form provisions by superior law. 110
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Attorney-General (WA) v Marquet cont. [66] Now, however, it is essential to begin by recognising that constitutional arrangements in this country have changed in fundamental respects from those that applied in 1889. ... First, constitutional norms, whatever may be their historical origins, are now to be traced to Australian sources. Secondly, unlike Britain in the 19th century, the constitutional norms which apply in this country are more complex than an unadorned Diceyian precept of parliamentary sovereignty. Those constitutional norms accord an essential place to the obligation of the judicial branch to assess the validity of legislative and executive acts against relevant constitutional requirements. As Fullagar J said, in Australian Communist Party v The Commonwealth ((1951) 83 CLR 1 at 262), “in our system the principle of Marbury v Madison is accepted as axiomatic”. It is the courts, rather than the legislature itself, which have the function of finally deciding whether an Act is or is not within power. ... [67] For present purposes, two changes in constitutional arrangements are critically important: first, the fact of federation and creation of the States, and secondly, the enactment by the federal Parliament of the Australia Act 1986. Section 106 of the Constitution provides that “[t]he Constitution of each State … shall, subject to this Constitution, continue as at the establishment of the Commonwealth … until altered in accordance with the Constitution of the State”. The Australia Act 1986, too, is to be traced to its Australian source – the Constitution of the Commonwealth. The Australia Act 1986 takes its force and effect from the reference of power to the federal 571 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. Although the phrase “subject to this Constitution” appears both in ss 51 and 106, it was decided in Port MacDonnell Professional Fishermen’s Association Inc v South Australia ((1989) 168 CLR 340 at 381) that “the dilemma … must be resolved in favour of the grant of power in par (xxxviii).” [68] ... It is of particular importance to recognise that the Australia Act 1986 stands as a form of law to which the Parliament of Western Australia is relevantly subordinate. To the extent to which s 6 applies, the powers of the Parliament of Western Australia to legislate are confined. What has been seen as the conundrum of whether a body given general power to legislate can give up part of that power need not be resolved. By federal law, effect must be given to some manner and form provisions found in State legislation. … [70] Section 6 of the Australia Act 1986, therefore, is not to be seen as some attempt to alter s 106 or s 107 otherwise than in accordance with the procedures required by s 128. Section 6 was enacted in the valid exercise of power given to the federal Parliament by s 51(xxxviii). Section 13 of the Electoral Distribution Act and s 6 of the Australia Act [71] Was either the Repeal Bill or the Amendment Bill, if it became law, 572 within s 6 of the Australia Act 1986? That is, was it “a law respecting the constitution, powers or procedure of the Parliament of the State”? If either Bill, on its becoming law, would meet that description, s 6 of the Australia Act 1986 would be engaged and the law would “be of no force or effect unless it [was] made in such manner and form as … required by a law” made by the Western Australian Parliament. [72] The meaning to be given to the expression “constitution, powers or procedure of the Parliament” must be ascertained taking proper account of the history that lay behind the enactment of the Australia Act 1986. In particular, it is necessary to give due weight to the learning that evolved about the operation of the Colonial Laws Validity Act 1865, s 5 of which also spoke of “laws respecting the constitution, powers, and procedure” of the legislatures to which it applied. [73] In s 5 of the Colonial Laws Validity Act 1865 the expression “constitution, powers, and procedure” appeared in that part of the section which provided that a representative legislature “shall … have, and be deemed at all times to have had, full power to make laws respecting” those subjects. The reference to manner and form requirements in the proviso to the section was treated (Attorney-General (NSW) v Trethowan (1932) 47 CLR 97; [1932] AC 526) as a condition upon which the full power referred to in s 5 was exercisable. Section 6 of the Australia Act 1986 takes a different form. It provides directly for the requirement to observe manner and form. Nonetheless, the use of the expression “constitution, powers or procedure” in the Australia Act 1986 is evidently intended to build on the provisions of the Colonial Laws Validity Act 1865. … [75] The “constitution” of a State Parliament includes (perhaps it is confined to) its own “nature and composition” (Attorney-General (NSW) v Trethowan (1931) 44 CLR 394 at 429, per Dixon J). … [76] ... [2.330]
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Attorney-General (WA) v Marquet cont. [Section] 6 is not to be read as confined to laws which abolish a House, or altogether take away the “representative” character of a State Parliament or one of its Houses. At least to some extent the “constitution” of the Parliament extends to features which go to give it, and its Houses, a representative character. Thus, s 6 may be engaged in cases in which the legislation deals with matters that are encompassed by the general description “representative” and go to give that word its application in the particular case. So, for example, an upper House whose members are elected in a single State-wide electorate by proportional representation is differently constituted from an upper House whose members are separately elected in single member provinces by first past the post voting. Each may properly be described as a “representative” chamber, but the parliament would be differently constituted if one form of election to the upper House were to be adopted in place of the other. [77] Not every matter which touches the election of members of a Parliament is a matter affecting the Parliament’s constitution. … Again, however, it is neither necessary nor appropriate to attempt to trace the metes and bounds of the relevant field. [78] The Repeal Bill and the Amendment Bill were respectively to do away with, and then provide an alternative structure for, the constitution of the two Houses of the Western Australian Parliament. The Repeal Bill did away with the scheme under which there were two Houses elected from fifty-seven districts and six regions respectively, where the fifty-seven districts were to be ascertained in accordance with the rules prescribed by s 6 of the Electoral Distribution Act 1947. Those rules depended upon the division between the metropolitan and 574 other areas and the application of a tolerance of 15% more or less. Upon the Repeal Bill coming into force the manner of effecting representation in the Parliament would have been at large. Considered separately, then, the Repeal Bill was for a law respecting the constitution of the Parliament of Western Australia. [79] The Amendment Bill, if it came into force, would have provided for fifty-seven electoral districts and six electoral regions, but they would have been differently drawn from the way for which the Electoral Distribution Act 1947 provided. The criteria to be applied in drawing electoral boundaries under the Amendment Bill would have differed according to whether the electoral district had an area of less than 100,000 km2. The tolerance in the smaller districts would have been reduced from 15% to 10%; in the larger districts the formula was more complicated, but again the tolerance was changed from 15%. In addition, and no less significantly, under the Amendment Bill, the number of members of the Council would have been increased, from the thirty specified by s 5 of the Constitution Acts Amendment Act 1899, to thirty-six. The Amendment Bill was for a law respecting the constitution of the Parliament of Western Australia. [80] The conclusions reached about the operation of s 6 of the Australia Act 1986 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 1947. 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 1986. Section 13 of the Electoral Distribution Act 1947 is made binding by s 6 of the Australia Act 1986. 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 ([1965] AC 172 at 197) and can then be applied in a federation (McGinty v Western Australia (1996) 186 CLR 140 at 297). … 576 [86] For these reasons, which differ in some significant respects from those adopted by the majority in the Full Court, the questions asked in the proceedings should be answered, “No”. Special leave to appeal should be granted in each matter; the appeal in each matter should be treated as instituted and heard instanter but dismissed.
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Notes&Questions
1.
In his dissenting judgment, Kirby J held that “amend” in s 13 of the Electoral Distribution Act 1947 did not cover repeal. Accordingly, the impugned Act repealing the Electoral Distribution Act could proceed to receive the Governor’s assent, thus becoming law. This would have the effect of repealing s 13 – the manner and form provision – along with the rest of the Electoral Distribution Act 1947 and accordingly there was no impediment to the impugned amending Act becoming law (at [124]ff and [132]ff). In any event, his Honour held that a law seeking to repeal and amend electoral distribution laws, as in this case, was not with respect to the “constitution”, “powers” or “procedure” of the legislature, and therefore there could be no reliance on either s 5 of the CLVA (at [193]ff) or s 6 of the Australia Act 1986 (at [202]ff). His narrow reading of the “manner and form” provisions reflected a concern that parliaments not be allowed to restrict their successors. He was concerned in particular about the possible abuse of restrictive procedures in the situation where they became too onerous, referring to their “undemocratic potential” (at [194]). For a more detailed commentary of the judgments in this case, see J Goldsworthy, “Manner and Form Revisited: Reflections on Marquet’s Case”, in M Groves (ed), Law and Government in Australia (Federation Press, Sydney, 2005).
2.
The majority decided the case by sole reliance on s 6 of the Australia Act 1986. Is this because this was regarded as a sufficient basis upon which to decide the case or because they excluded alternative sources of authority to enact restrictive procedures? In other words, did the majority regard s 6 as the only source of authority for the enactment of “manner and form” provisions, thus limiting the application of such provisions to the “constitution, power or procedure” of the Parliament? As Professor Goldsworthy asked (“Manner and Form in the Australian States” (1987) 16 Melbourne University Law Review 403 at 411): “Does the maxim expressio unius est exclusio alterius support an argument that the express re-enactment of s 6 excludes the reconstitution or the pure procedure or form alternatives?” In the view of Professor Goldsworthy, the “Australia Act 1986 cannot possibly have the intention or the effect of removing the power of the State Parliaments to alter their own constitutions; indeed, subs 2(2) of the Act is now a further source of that power.” (at 411) Professor Goldsworthy was of the view that the reconstitution principle and the principle derived from the case of Bribery Commissioner v Ranasinghe [1965] AC 172 were such sources of power (defined in Note 3 below). It is arguable that the majority did leave open the possibility of alternate sources of authority for restrictive procedures in the following sentence: “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” (at 95, emphasis added). This raised the question: are these alternate sources of authority available in a field in which s 6 does not operate, for example, where the restrictive procedure simply relates to general subject matter and a reconstitution of parliament occurs for that purpose? The Ranasinghe principle is derived from the following statement of the Privy Council (at 197): “… a Legislature has no power to ignore conditions of law-making that are imposed by the instrument which itself regulates its power to make laws”. This case related to a provision in the Constitution of Ceylon, s 29(4) and contained in an Imperial Order-in-Council of 1946. This provided the requirement that a two thirds
3.
[2.340]
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4.
5.
majority of House of Representatives was required together with a certificate to that effect from the Speaker before a bill to amend this order could be presented for the royal assent. The impugned legislation, the Bribery Amendment Act 1958, was inconsistent with the Constitution and also failed to comply with the restrictive procedure set out in s 29(4). The binding nature of the restrictive procedure was upheld even though the CLVA no longer applied to Ceylon (now Sri Lanka). It is clear that the Ranasinghe principle is applicable to restrictive procedures which are contained in a constitution, that is, “the instrument which itself regulates its [the legislature’s] power to make laws”. However, the principle is problematic because it is not clear if it applies only to an instrument which is clearly a formal constitution. Would it apply, for example, simply to any act of parliament containing a restrictive procedure relating to the constitution of the parliament? Moreover, it is not clear that the principle is so limited. It is possible to argue that it may apply even to restrictive procedures relating to any future act on any subject matter. This is because, it is arguable, that the “instrument which itself regulates … power to make laws” is that earlier Act. The status, and indeed precise nature, of the Ranasinghe principle remains unclear in Australia, and continues to be so after Marquet. Whilst it has received some judicial consideration, no consistent position has been reached. Gibbs J in Victoria v Commonwealth and Connor (1975) 134 CLR 81 at 163) appeared to accept that the restrictive procedure could be contained in a general act which was not a formal constitution. It remains the case, however, even after Marquet, that the status and nature of the principle remains uncertain. For further discussion of the issue, see HP Lee, ““Manner and Form”: An Imbroglio in Victoria” (1992) 15(2) University of NSW Law Journal 516; J Goldsworthy, “The “Principle in Ranasinghe” – A Reply to HP Lee” (1992) 15(2) University of NSW Law Journal 540. The High Court was very careful to establish the status of the Western Australia Parliament as being “relatively subordinate” to the form of law represented by the Australia Act 1986 (at 571). This was to establish the Australia Act 1986 as the “form of law” which stood in place of laws emanating from the United Kingdom Parliament as they applied to the Australian States prior to the Australia Act 1986. “They were subordinate legislatures and manner and form provisions could be and were imposed upon them by Imperial legislation.” (at 570) This confirmed the form of reasoning apparent in the ratio of Trethowan. By being so careful to maintain this pattern of higher form of law/subordinate legislature, was the majority indicating that this is the only paradigm which may provide authority for the enacting of restrictive procedures? Could the Commonwealth Parliament enact binding restrictive procedures? (See Winterton (1980).)
Limits on the power to enact “manner and form” provisions pursuant to s 6 of the Australia Act [2.350] What limits are there on the power to enact “manner and form” provisions when
reliance is being placed on s 6 of the Australia Act 1986, (and previously CLVA, s 5), as the source of authority to do so? The primary limitation is that the manner and form requirement can only bind legislative provisions which relate to the “constitution, powers or procedure” of a State Parliament. The manner and form provision itself, however, can be contained in an Act which is not exclusively concerned with that subject matter. Thus, when an Act is impugned on the basis that it does not comply with a manner and form provision stipulated in an earlier enactment, the issue is whether the impugned provision in the later Act can be characterised as a law respecting the “constitution, powers or procedure” of the Parliament. Whilst the 114
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significance of characterising a law as one with respect to these matters has been recognised, there has been some confusion as to the method of determination of validity.
South Eastern Drainage Board v Savings Bank of Australia [2.360] South Eastern Drainage Board (SA) v Savings Bank of Australia (1939) 62 CLR 603 at 618–634 [Section 6 of the Real Property Act 1886 (SA) provided that “no law, so far as inconsistent with this Act, shall apply to land subject to the provisions of this Act, nor shall any future law, so far as inconsistent with this Act, so apply unless it shall be expressly enacted that it shall so apply notwithstanding the provisions of the Real Property Act 1886.” (Emphasis added.) This is the manner and form provision. It provided a form requirement for future inconsistent legislation: an express statement in the future Act that the relevant provisions apply regardless of their inconsistency with the provisions of the Real Property Act 1886. At issue in the case was the validity of s 14 of the South Eastern Drainage Amendment Act 1900 (SA) which was inconsistent with the former Act and which did not contain the express words required by the former Act in order to avoid the inconsistency bar. The argument for invalidity relied on the proviso in CLVA, s 5. A majority (Latham CJ, Starke, Dixon and McTiernan JJ) rejected this argument and upheld the validity of the section. Evatt J also upheld its validity but on different grounds.] Latham CJ: 618 [His Honour referred to s 5 of the Colonial Laws Validity Act 1865 and continued:] It was urged that s 6 of the Real Property Act 1886 was a law which prescribed a manner and form for the passing of Acts of parliament and that therefore an Act passed not in such manner and form was not valid. But the proviso with respect to manner and form applies only to laws respecting the constitution of the legislature, the powers of the legislature, and the procedure of the legislature. Section 6 is plainly not a provision affecting in any way the constitution of the legislature. Nor does it affect the powers of the legislature. It only purports to prescribe the contents of an Act which the legislature has power to pass. Nor does the section relate to any part of the procedure of the legislature in passing statutes. Accordingly, in my opinion, s 6 of the Real Property Act 1886 cannot operate to deprive of effect any subsequent legislation of the South Australian Parliament which, upon the natural construction of its terms, enacts a provision which is inconsistent with the Real Property Act 1886. Dixon J: 625 [After referring to CLVA, s 5, his Honour continued:] Section 6 of the Real Property Act 1886 is, in my opinion, not a law respecting the constitution, powers or procedure of the South-Australian legislature. It is scarcely necessary to say that it has nothing to do with the constitution of the legislature. That it is not a law respecting its powers seems to me to appear clearly enough from its content. It does not profess to limit or qualify the power of the legislature in any way. Nor is it concerned with the procedure of the legislature. Section 6 has, I think, neither the purpose nor the effect of limiting the power of the Parliament of South Australia to make laws which though they do not contain the words “notwithstanding the provisions of The Real Property Act 1886”, nevertheless do, according to an intention sufficiently appearing, apply to land under that Act and make provisions inconsistent with it. The section is a declaration as to what meaning and operation are to be given to future enactments, not a definition or restriction of the powers of the legislature. Evatt J: 624 But it is worthwhile to note what that section purports to do. It purports to control future parliaments of South Australia in any legislation affecting land under the Real Property Act 1886 by requiring that unless such legislation is couched in a certain literary form (ie, containing the words notwithstanding the provisions of “The Real Property Act 1886”) it cannot affect land under the Act. For instance, it would not be sufficient if the Parliament used the phrase “in spite of the provisions of the Real Property Act 1886”. In my opinion the legislature of South Australia has plenary power to couch its enactments in such literary form as it may choose. It cannot be effectively commanded by a prior legislature to express its intention in a particular way… 634 In my opinion, the decision in Attorney-General for New South Wales v Trethowan [[1932] AC 526] has nothing to do with the matter. Section 6 is not a mere interpretation section, for it is not expressed to operate only so far as the contrary intention does not appear. It purports to lay down a rigid rule binding upon all future parliaments. It declares that, however clearly the intention of such parliaments may be expressed in an enactment, that intention shall not be given effect to unless it contains the magic formula. I think that [2.360]
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South Eastern Drainage Board v Savings Bank of Australia cont. the command in s 6 was quite ineffective and inoperative.
Notes&Questions
[2.370]
1.
There is a misunderstanding evident in the judgments as to the precise question which should have been asked when examining the applicability of CLVA, s 5. As noted by Professor Lumb: Unfortunately, the members of the High Court in this … case, although reaching the right conclusion, did so by means of a process of reasoning which may be questioned. They posed the problem in the following manner: was the provision in the Real Property Act a law respecting the constitution, powers or procedure of the legislature. In terms of strict logic, this question ought to have been asked of the later legislation – the Drainage Act – for s 5 required only the later legislation to be of this nature if it were to be subject to a manner and form requirement laid down in pre-existing law. Drainage legislation of course falls completely outside of this category. (Lumb (5th ed, 1991), pp 117-118.)
2.
In addition to issues relating to the “constitution, powers and procedure”, note the concern, expressed especially by Latham CJ and Evatt J above, to maintain the sovereignty of parliament and not to allow a current parliament to prescribe the content of future legislation. That the manner and form provision can only affect legislation characterised as being with respect to the constitution, powers or procedure of parliament was confirmed, although similar errors in method can be discerned in the Comalco Case.
The Comalco Case [2.380] Commonwealth Aluminium Corporation Ltd v Attorney-General (Qld) [1976] Qd R 231 at 235–239 [At issue in this case, heard by the Full Court of the Supreme Court of Queensland, was the validity of the Mining Royalties Act 1974 (Qld). An earlier Act, the Commonwealth Aluminium Corporation Pty Ltd Agreement Act 1957 (Qld), gave force of law to an agreement entered into between Comalco and the State government whereby Comalco was allowed to mine bauxite in the State with royalties to be paid to the government on minerals extracted. The Act prescribed the method for calculating royalties. Section 4 provided that the agreement should not be varied except by another agreement between Comalco and the responsible Minister at the relevant time, approved by the Governor in Council. It also declared that “no provision of the Agreement shall be varied nor the powers and rights of the company under the agreement be derogated from except in such manner. Any purported alteration of the Agreement not made and approved in such manner shall be void and of no legal effect whatsoever.” The 1974 Act, however, which was enacted without any further agreement between the relevant parties, authorised the Governor in Council to vary the amount of royalties payable by Comalco. Comalco argued that the 1974 Act was invalid as it had not been enacted pursuant to the prescribed manner and form. A majority (Wanstall SPJ and Dunn J, Hoare J dissenting) held that the 1974 Act was valid.] Wanstall SPJ: 235 [The plaintiff] contend[s] with considerable ingenuity that 236 s 4 of the 1957 Act and clause 3 of the agreement are colonial laws which prescribe the manner and form in which the agreement may be varied, ie, only by agreement between the plaintiff company and the Minister with the approval of the Governor in Council, and that, in terms of the last paragraph of s 4, this operates to give the agreed variation “the force of law as though (it) were an enactment of (the 1957) Act.” Thus, it is said, a variation so made amounts to a “law passed” according to prescribed manner and form 116
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The Comalco Case cont. within the meaning of the proviso to s 5 of the Colonial Laws Validity Act 1865. The argument treats this process as indistinguishable from an exercise of legislative power by a delegate under the authority of an Act of Parliament. But it conveniently ignores the principle which validates a legislature’s delegation of its function, namely that all the time it retains intact its own power to withdraw or to alter the authority it has conferred upon its agent, a reservation which paradoxically the plaintiff’s case asserts has not been made in this instance. Its case is, as indeed it must be, that the Legislature has parted with its power to vary the agreement by the passing of a new law of its own, that it has accomplished this apostasy by declaring the formula of s 4 to be the sole and exclusive means of varying it. It was argued that Parliament retains control because it has the right to disallow an Order in Council approving a variation, but this is beside the point; disallowance would merely set aside the variation of the day, but not detract from the force of s 4. The power Parliament lacks, if the plaintiff’s argument is sound, is the power to vary the agreement unilaterally by enacting legislation which is inconsistent with its terms, and clearly that means that Parliament has, as to that subject matter, abdicated its principal function. Curiously it would have done so by the side wind of a manner and form provision. In my view s 4 is not directed to prescribing the manner and form of passing laws for the purposes of and within the meaning of the proviso to s 5 of the Colonial Laws Validity Act 1865, but it may be an exercise of the other power given by s 5, that of legislating respecting its powers, although I prefer to attribute the source of the legislative authority to enact it to s 2 of the Constitution … [T]o the extent to which it purports to restrain the Legislature from enacting legislation effecting a variation without agreement of the plaintiff it is plainly invalid, unless it could be construed as a manner and form provision. But it overstrains the latter concept to include in it a provision which touches the Legislature only by impliedly depriving it of legislative power on the subject matter of the agreement. The nettle that must ultimately be grasped by the argument is its logical conclusion that, by s 4, Parliament has set up a body with legislative power, the power of amending an agreement having the force of a law enacted by Parliament, and to do so to the exclusion of Parliament which cannot take the matter of variation directly into its own hands. Thus 237 would the Queensland legislature “create and endow with its own capacity a new legislative power not created by the Act to which it owes its existence.” (In re Initiative And Referendum Act [1919] 1 AC 935, 945; Cobb & Co Ltd v Kropp [1967] 1 AC 141, 157). I would hold invalid an enactment purporting to do that. (cf R v Burah (1878) 3 App Cas 889, 905 PC.) If it is not so to fall s 4 must be capable of being treated as a manner and form provision, valid within the limits of such a qualification. My reason for thinking that s 4 is not an exercise in manner and form using the proviso to s 5 of the Colonial Laws Validity Act 1865 is that that section … is concerned with the use and operation of the legislative process and nothing else, whereas s 4 (of the 1957 Act) has two objects, both different from that notion, one is to confer a power on the Executive Government, the other is to forbid Parliament from using the legislative process at all. The proviso must be construed so that “passed” connotes every step in the legislative process, including some that take place outside the chamber … The manner and form required to be observed in the passing of the 1974 Act will have be found in the 1957 Act. “Such” refers back the laws which the proviso has in view to those described earlier as being made by the legislature, ie, legislation, on the subject of its constitution or powers or procedure. If it be assumed (although I do not so decide) that s 4 of the 1957 Act is legislation respecting the Legislature’s powers, in the sense that it removes from the ambit of legislative power the subject matter of variation of the agreement, I can find not one word in it prescribing either manner or form to be followed in the future passing of legislation. On the contrary its only purpose and intention qua the Legislature is to prohibit future legislation on that subject in any manner or form. Such legislation is to be replaced by Executive Government action. It is idle to say, as does the plaintiff’s argument, that because what emerges from the use of the s 4 formula at executive level is as good as legislation, in that it will have the force of law, the formula which produced it deals with the manner and form of passing legislation. The simple truth is that where it prescribes manner or form it does so in respect of executive action to effectuate a variation of the agreement, and to give it the force it would have if Parliament had enacted it, legislatively. It is at pains to keep the one process of law-making distinct from the other. To be a “manner and form” provision within s 5 it must be one operative on the legislative process at some point … 239 [T]o be effective, the qualification as to manner or form must be one which operates within the legislative process as such, albeit not [2.380]
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The Comalco Case cont. necessarily within the legislative chamber. It is only such a qualification which avoids being repugnant to s 5, ie, one which may be categorised as a condition of the exercise of the legislative power. In my respectful opinion it is unreal so to attempt to categorise a law which forbids that exercise, as does s 4 by conferring the exclusive right of variation on another body. Because it is not a manner or form provision it may be repealed or altered by the normal process of legislating consistently with its provisions.
Notes&Questions
[2.390]
Dunn J agreed that the legislation was valid. CLVA, s 5 was not applicable because neither act was a law “respecting the constitution, powers and procedure” of the State legislature. (b) In his dissent, Hoare J adopted a very broad view of the meaning of a manner and form provision (at 248). The earlier Act prescribed the manner and form by which relevant legislation was to be enacted and with which the latter Act was required to conform. The latter Act was invalid because it was in fact a law “respecting the constitution, powers and procedure” merely by virtue of the fact that it conflicted with a previous enactment prescribing a manner and form. Is this view preferable to that of the majority? If the approach of Hoare J was adopted, would this not mean that every law which failed to comply with a manner and form provision, simply by its failure so to comply, could automatically be characterised as a law with respect to the constitution, powers or procedure of the Parliament. Would this not render the act of characterisation in this context redundant? The correct methodology was adopted in the following case. (a)
West Lakes v South Australia [2.400] West Lakes Ltd v South Australia (1980) 25 SASR 389 at 393–414 [The West Lakes Development Act 1969 (SA) enacted into law an agreement between the Premier of South Australia and West Lakes Ltd, a development company, by which the company was permitted to develop land pursuant to the planning code provided for in the Act. The agreement as enacted into law also provided (s 16) that the consent of the company was needed before any amendment to the planning code contained therein could be made by the “the Minister”. A Bill to amend the Act was introduced into Parliament in 1980. The amending Bill provided that a regulation made under the Act to allow for floodlights in the sports ground in the development site would not require the company’s consent. The company commenced proceedings in the Supreme Court of South Australia seeking a declaration that South Australia was bound by the agreement and an injunction restraining the enactment of the Bill into law. The plaintiff company argued that because the prescribed manner and form had not been complied with, that is, its consent not being obtained, the impugned provision in the Bill was inoperative. The plaintiff’s argument was rejected.] King CJ: 393 The exercise by a parliament of its legislative powers requires some understood and recognised procedure for the declaration of the will of the parliament. Ordinarily, that procedure is established by the Standing Orders of the Houses of Parliament, and by the internal practices and usage of the parliament. Generally speaking, it is not within the function or competence of the Courts to inquire into the internal procedures of the parliament, nor into any questions as to whether they have been observed. The parliament may, however, choose to pass an Act giving the force of law to procedures as to the manner and form in which legislation, or legislation of a particular class, must be passed … 396 The Parliament can only exercise the power to make laws respecting the constitution, powers and procedure of the legislature by enacting legislation in the manner and form (if any) 118
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West Lakes v South Australia cont. prescribed by its own legislation. This is expressly provided in s 5 of the Colonial Laws Validity Act 1865 … [I]t is quite clear that the bill under consideration is not a proposed law respecting any of the topics enumerated in s 5 of the Colonial Laws Validity Act 1865. The question of whether the Parliament can only exercise its powers to make laws respecting topics other than those enumerated in s 5 of the Colonial Laws Validity Act 1865 in the manner and form (if any) required by its own legislation or whether it may ignore any such requirement, is one of great constitutional importance. In view of the conclusions which I reached as to the other issues in the case, it is unnecessary for me to decide that question … When it falls for decision, the question will involve a consideration of the way in which the constitutional principles discussed above are to be applied to a legislature which derives its authority from constitutional sources of the kind which are the foundation of the authority of the South Australian Parliament. It will, moreover, involve a consideration of the true effect of the decision of the High Court in South-Eastern Drainage Board (South Australia) v Saving Bank of South Australia (1939) 62 CLR 603. A question might arise as to whether a particular statutory provision is truly a manner and form provision, which must be observed (at least as to legislation which falls within s 5 of the Colonial Laws Validity Act 1865) as a condition of the validity of the Act, or whether it is a limitation or restraint of substance, which would not invalidate legislation inconsistent with the limitation or restraint. 397 …There must be a point at which a special majority provision 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. This point might be reached more quickly where the legislative topic which is the subject of the requirement is not a fundamental constitutional provision. When one looks at extra-parliamentary requirements, the difficulty of treating them as relating to manner and form becomes greater. It is true that Dixon J in Trethowan’s Case (1931) 44 CLR 394 gave “manner and form” a very wide meaning. At pp 432–433, referring to the use of the expression in the proviso to s 5 of the Colonial Laws Validity Act 1865, he said: The more natural, the wider and the more generally accepted meaning includes within the proviso all the conditions which the Imperial Parliament or that of the self-governing State or Colony may see fit to prescribe as essential to the enactment of a valid law. Trethowan’s Case … however, concerned a requirement that an important constitutional alteration be approved by the electors at a referendum. Such a requirement, although extra-parliamentary in character, is easily seen to be a manner and form provision because it is confined to obtaining the direct approval of the people whom the “representative legislature” represents. If, however, parliament purports to make the validity of legislation on a particular topic conditional upon the concurrence of an extra-parliamentary individual, group of individuals, organisation or corporation, a serious question must arise as to whether the provision is truly a law prescribing the manner or form of legislation, or whether it is not rather a law as to substance, being a renunciation of the power to legislate on that topic unless the condition exists. 398 A provision requiring the consent to legislation of a certain kind, of an entity not forming part of the legislative structure (including in that structure the people whom the members of the legislature represent), does not, to my mind, prescribe a manner or form of lawmaking, but rather amounts to a renunciation pro tanto of the lawmaking power. Such a provision relates to the substance of the lawmaking power, not to the manner or form of its exercise … It follows, in my view, that even if the statute bears the meaning attributed to it, it does not prescribe a manner or form of legislation and Parliament may legislate inconsistently with it. Parliament may therefore validly enact the bill which is under attack. Zelling J: 413 In the alternative Mr Williams [counsel for West Lakes] argued that the statute provided a manner and form outside the Colonial Laws Validity Act 1865. He relied for this argument principally on the advice of the Privy Council in Bribery Commissioner v Ranasinghe [1965] AC 172. It would appear from that case that it is possible to have a manner and form provision which is not one referring to the constitution, powers and procedures of the legislature so as to attract the operation of s 5 of the Colonial Laws Validity Act 1865. That conclusion would seem to follow also from the judgment of Gibbs J in Victoria v The Commonwealth and Connor (1974) 134 CLR 81 at 163. While I accept, without [2.400]
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West Lakes v South Australia cont. deciding, that it is possible to have a section entrenched by a manner and form provision which does not fall within s 5 of the Colonial Laws Validity Act 1865, nevertheless, given the general rules that the Acts of one Parliament do not bind its successors, it would require very clear words before a court would find that that was what happened. It is one thing to find manner and form provisions in a statute affecting the constitution, it is quite another to find Lord Birkenhead’s proverbial Dog Act or a provision thereof elevated to constitutional status. No such clarity of provision exists in the statute at bar, with or without the indenture superadded. 414 In my opinion, the short answer in the instant case is that there is no manner and form procedure provided by the West Lakes Development Act 1969 irrespective of whether the amending bill is a law respecting the constitution powers and procedures of the legislature of South Australia, or whether it is not. However, there is an even simpler answer than the last two to the propositions put by Mr Williams. That is, that for an entrenchment statute to avoid being repealed by a subsequent Act of the same Parliament passed without any special manner and form, the entrenching clause must itself be entrenched. On the true construction of this Act I cannot see any entrenchment of the entrenching clause or clauses relied on by Mr Williams, even if all the other propositions put by him were in fact correct. [Matheson J agreed on the outcome, that is, that the proposed legislation was valid. Because it was not a law respecting the constitution, powers and procedures of the legislature, the proviso in CLVA s 5 was not relevant and he rejected the argument that the present facts fell within the Ranasinghe principle.]
[2.410] A later law providing for the reconstitution of a legislature by abolishing a house,
adding a house, establishing special majorities for deadlock situations, will usually be a law which can be characterised as being with respect to the constitution, powers and procedure of the parliament. In Trethowan’s Case (at 429–430), Dixon J described this as follows: The power to make laws respecting its own constitution enables the legislature to deal with its own nature and composition. The power to make laws respecting its own procedure enables it to prescribe rules which have the force of law for its own conduct. Laws which relate to its own constitution and procedure must govern the legislature in the exercise of its powers, including the exercise of its power to repeal those very laws. The power to make laws respecting its own powers would naturally be understood to mean that it might deal with its own legislative authority.
In order for the manner and form provision to bind future parliaments, the provision itself must be mandatory, as opposed to merely directory or optional. In Clayton v Heffron (1960) 105 CLR 214, in addition to the various steps, including a referendum, which had to be taken to pass into a law a Bill which had been twice rejected by the Legislative Council, a free conference between the managers of each house had to occur before the next step could be taken, viz, the reference of the matter to a joint sitting of Parliament. This conference had not occurred because the Legislative Council had rejected the invitation of the Legislative Assembly to such a conference, it being of the view that it would not resolve anything. The majority (at 246) held that this was not to be regarded as a mandatory procedure, and therefore failure to comply with it did not mean that there was a failure to comply with a manner and form provision.
THE ABDICATION OF LEGISLATIVE POWER [2.420] The other major limitation on the efficacy of manner and form provisions is that
manner and form requirements must not purport to abdicate legislative power. 120
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An Overview of Manner and Form in Australia [2.430] G Carney, “An Overview of Manner and Form in Australia” (1989) 5 Queensland University of Technology Law Journal 69 at 82–85 (footnotes omitted) (e) Manner and form requirements must not purport to abdicate legislative power 82 A distinction must be drawn between a manner and form provision which regulates the procedure by which future legislation is enacted, that is, the law-making process, and a provision which purports to deprive Parliament of the power of law-making. The latter provision may be either one which intends to deprive Parliament of one of its powers or it may be a provision which in practice has that effect. An example of the former kind is a provision which prohibits any repeal of the law forever or for a number of years. Another example would be a provision which confers on the Governor-in-Council sole power to amend certain legislation by issuing orders-in-council thereby purporting to deprive Parliament of its power to amend such legislation. An example of a provision which in practice has the effect of denying Parliament one of its powers is a provision which requires a bill to be approved by 99% of the electorate at a referendum before being presented for royal assent. Since such a percentage in a referendum is impossible to achieve, the provision in effect, 83 purports to deny Parliament one of its powers. Both of these examples fall outside the contemplation of section 6 since neither regulate the manner and form of future legislation and are totally ineffective if not invalid. There is, as well, a related and well-established principle applicable to all Australian State Parliaments, namely Parliament cannot abdicate any of its powers. But it would appear that this principle is distinct from [the point presently being dealt with]. The principle that Parliament cannot abdicate its powers was established in a series of cases (R v Burah (1878) 3 App Cas 889; Hodge v The Queen (1883) 9 App Cas 117; and Powell v Apollo Candle Co Ltd (1885)) concerned with the capacity of a colonial or State Parliament to delegate one or more of its powers to the Executive. The Privy Council recognised that a grant of power to make laws for the peace, order and good government of a colony or State was a grant of plenary power subject only to the few restrictions imposed by the Imperial Parliament. Accordingly, as colonial and State legislatures were not merely delegates of the Imperial Parliament, they possessed the capacity to delegate one or more of their powers to the Executive provided they did not abdicate their powers. The test stated by the Privy Council as to whether an abdication of power has occurred is simply whether Parliament has always retained the capacity to revoke the delegation and recall the power to itself. In Cobb and Co Ltd v Kropp ([1967] AC 141) the Privy Council upheld Queensland’s transport legislation which authorised the Commissioner for Transport to fix and impose licence fees. No abdication of power had occurred because: [The Queensland Legislature] preserved their own capacity intact and they retained perfect control over the Commissioner for Transport insomuch as they could at any time repeal the legislation and withdraw such authority and discretion as they had vested in him. (ibid at 156) In applying this test to either of the examples given above of a provision which purports to deprive Parliament of one of its powers, it simply requires one to determine whether the provision can be repealed. This depends on whether the provision is singly or doubly entrenched. Only if it is doubly entrenched is the provision incapable of repeal and if it purports to deprive Parliament of one of its powers, then it will amount to an invalid abdication of power. If the provision is singly entrenched, then in terms of the principle stated above, no abdication of power has occurred. However, as noted earlier, the principle that Parliament cannot abdicate its power, is distinct from point (e) Whether the principle adopted by Cobb & Co Ltd v Kropp is infringed depends upon the provision being doubly entrenched, whereas non-compliance with point (e) arises irrespective of any determination of single or double entrenchment – indeed, it must so arise for such a determination can only be made after the validity and effectiveness of the manner and form provision is decided. In other words, unless the provision prescribes a manner or form for law-making, it is not an effective manner and form provision within the contemplation of s 6. Another principle quoted in the context of manner and form is that stated by the Privy Council in In re The Initiative and Referendum Act ([1919] AC 935): 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” (ibid at 945). In [2.430]
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An Overview of Manner and Form in Australia cont. that case, the Privy Council held invalid The Initiative and Referendum Act (Manitoba) which established a new process of law-making outside of the Parliamentary 84 process whereby proposed laws could be initiated by a percentage of electors and actually enacted into law by obtaining majority approval at a referendum. The invalidity of the Act arose out of the deletion from the legislative process of the Governor’s assent. Without deciding the case on the principle just quoted, it was referred to as another serious problem with the Act. The principle was stated after a recognition that Parliament can delegate its powers to subordinate agencies “while preserving its own capacity intact” (ibid). This principle appears to concern a situation in which Parliament delegates its powers to a body which is not authorised by the constitutional framework. A manner and form provision which confers on such a body the power of future enactment will be invalid for infringing this principle. And this would seem to be the case whether the manner and form provision is singly or doubly entrenched. But the Australian State Parliaments and possibly even the United Kingdom Parliament, can reconstitute themselves, for example, by abolishing one of the two houses as occurred in Queensland in 1921 or by introducing another chamber, such as, the electorate when a referendum requirement is imposed for the enactment of certain legislation. Although such a reconstitution may involve an abdication of power by the original parliament by transferring the power to a new legislative body, the transfer of power is valid. The capacity of Parliament to reconstitute itself is considered later as one of the grounds upon which a manner and form provision may be binding outside s 6. Both Comalco’s Case and West Lakes Case in relation to their own facts dealt with the issue whether the alleged manner and form provision purported to deprive Parliament of its power to vary the agreement in question. As a question of statutory interpretation, different constructions may be given to such provisions which is evident from Comalco’s Case. Section 4 of the 1957 Act stipulated that any variation to the agreement in the schedule to the Act required the consent of Comalco and the relevant Minister and was to be given effect by the Governor-in-Council. Wanstall SPJ interpreted section 4 as depriving Parliament of its power to vary the agreement: … to the extent to which [s 4] purports to restrain the Legislature from enacting legislation effecting a variation without agreement of the plaintiff it is plainly invalid, unless it could be construed as a manner and form provision. But it overstrains the latter concept to include in it a provision which touches the Legislature only by impliedly depriving it of legislative power on the subject matter of the agreement. The nettle that must ultimately be grasped by the argument is its logical conclusion that, by s 4, Parliament has set up a body with legislative power, the power of amending an agreement having the force of a law enacted by Parliament, and to do so to the exclusion of Parliament which cannot take the matter of variation directly into its own hands. Thus would the Queensland Legislature “create and endow with its own capacity a new legislative power not created by the act to which it owes its existence”. (In re The Initiative and Referendum Act [1919] AC 935; Cobb and Co Ltd v Kropp [1967] 1 AC 141 at 157). I would hold invalid an enactment purporting to do that. (cf The Queen v Burah (1878) 3 App Cas 889, 905 PC.) It is not entirely clear why his Honour applied the principle from In re The Initiative and Referendum Act for it would have been more appropriate to rely on the distinction between a provision which regulates and one which deprives Parliament of its law-making powers. However, earlier in his judgment, Wanstall SPJ referred to the principle of 85 Cobb & Co Ltd v Kropp and how s 4 appeared to infringe this principle for Parliament had delegated the power of varying the agreement, to the company and the Executive without retaining “… intact its own power to withdraw or to alter the authority it has conferred upon its agent …”. He rejected the argument that Parliament’s right to disallow any order-in-council giving effect to a variation of the agreement, prevented any abdication of power occurring. It is difficult to see how Parliament lost its power to revoke the delegation of power when s 4 was only singly entrenched and hence, could be repealed by an ordinary Act of Parliament. Hoare J in dissent agreed with the interpretation of s 4 by Wanstall SPJ that it conferred the power of variation solely on the Executive with Comalco’s consent but found no abdication of power by Parliament. His Honour recognised that a provision requiring first an agreement before a variation 122
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An Overview of Manner and Form in Australia cont. could occur raised certain difficulties as a fetter on Parliament but these difficulties were overcome in this case after taking into account the general purpose of the 1957 Act, the arbitration provisions and Parliament’s power of vet in s 5(4) of the Act. In contrast, is Dunn J who interpreted s 4 as merely restricting the power of the Executive to vary the agreement and so not depriving Parliament of any power in relation to the agreement. In West Lakes Case, the alleged manner and form provision was interpreted by the Full Court of South Australia so as not to deprive Parliament of any power but merely to restrict the capacity of the Executive to vary the agreement. King CJ discussed the need to distinguish between provisions which prescribe the manner and form for the exercise of power, and those which deprive Parliament of power. The Chief Justice identified particular difficulties with certain kinds of requirements: (i) a special majority requirement for the passage of proposed legislation through Parliament may reach “a point at which [such a] provision 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. This point might be reached more quickly where the legislative topic which is the subject of the requirement is not a fundamental constitutional provision”, and (ii) extra-parliamentary requirements such as a “… provision requiring the consent to legislation of a certain kind, of an entity not forming part of the legislative structure (including in that structure the people whom the members of the legislature present), does not, to my mind, prescribe a manner or form of law-making, but rather amounts to a renunciation pro tanto of the law-making power. Such a provision relates to the substance of the law-making power, not to the manner or form of its exercise”. In relation to this last point, King CJ appears to hold that the only valid extra-parliamentary consent to which the legislature can be subjected is that of the electorate. Requiring the consent of any other body amounts to a deprivation of power.
[2.440]
Notes&Questions
For a detailed examination of restrictive procedures, see G Carney, The Constitutional Systems of the Australian States and Territories (2006), ch 6.
STATE PARLIAMENTS AND EXTRA-TERRITORIAL LAWS [2.450] Section 2(1) of the Australia Act 1986 (Cth) provides 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”. Section 2(2) of that Act provides that: it is hereby further declared and enacted that the legislative powers of the Parliament of each State include all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State but nothing in this subsection confers on a State any capacity that the State did not have immediately before the commencement of this Act to engage in relations with countries outside Australia.
Any doubts about the ability of the Commonwealth Parliament to make laws having extra-territorial effect were removed by the adoption of the Statute of Westminster 1931 (UK) which provided by s 3 that it “is hereby declared and enacted that the Parliament of a Dominion has full power to make laws having extra-territorial operation.” However, in relation to State Parliaments an element of uncertainty remains as to the precise limits of the competence of State Parliaments to enact laws with extra-territorial effect. Moreover, there is the issue whether the above sections of the Australia Act 1986 effected any change to the position existing prior to its enactment, given that these sections retain the use of the formula [2.450]
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“peace, order and good government of that State.” These words, or words to that effect, in State Constitutions had previously been used as a basis for imposing limitations on the extra-territorial competence of State legislatures. Originally, a very restrictive approach was adopted whereby colonial legislatures were the restricted in their legislative competence to their own territories. Over time, this strict approach was liberalised. This became evident in the decision of Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337. Dixon J (at 375) reasoned that: The power to make laws for 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 domicile, 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, domicile, 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. As in other matters of jurisdiction or authority courts must be exact in distinguishing between ascertaining that the circumstances over which the power extends exist and examining the mode in which the power has been exercised. 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 have been foreseen.
Thus, the “peace, order and good government” formula, and its variants, was not to be treated as an impediment to the extra-territorial legislative competence of State Parliaments if a sufficient nexus with the legislating State could be established. In the following case, Gibbs J was rather inclined to the view that the State legislatures were empowered to remove the territorial limitation. The case, and the judgment of Gibbs J in particular, established the approach which the High Court was to adopt with respect to the requisite nexus requirement.
Pearce v Florenca [2.460] Pearce v Florenca (1976) 135 CLR 507 at 513–525 [The Fisheries Act 1905–1975 (WA) contained the following relevant provisions: 3(1) “Western Australian waters” include the sea from high-water mark to three nautical miles from low-water mark … 24(1) A person who without lawful authority 1. has in his possession or control, or on his premises, or in any boat, vehicle, or aircraft, any fish (whether taken within Western Australian waters or elsewhere); 2. sells or causes to be sold, offers or exposes for sale, gives or consigns any fish (whether taken within Western Australian waters or elsewhere); or 3. brings into Western Australian waters or into the State any fish, of any of the species mentioned in the Second Schedule to this Act, of a less length than that set opposite to the name of that fish in that Schedule, commits an offence. The Sea and Submerged Lands Act 1973 (Cth) provided:
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Pearce v Florenca cont. 6. It is by this Act declared and enacted that the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth …16. …The preceding provisions of this Part … (b) do not limit or exclude the operation of any law of a State in force at the date of commencement of this Act or coming into force after that date, except in so far as the law is expressed to vest or make exercisable any sovereignty or sovereign rights otherwise than as provided by the preceding provisions of this Part. Florenca was charged under the Western Australian Act with being in possession of undersized fish. Evidence established that at the relevant time, Florenca was the captain of a vessel which was at sea, one and a half to two miles from the coast of Western Australia. At Florenca’s trial, the charge was dismissed on the ground that the Seas and Submerged Lands Act 1973 (Cth) rendered s 24 of the Fisheries Act 1905–1975 inoperative beyond the low-water mark on the coast of Western Australia. Whilst the matter was pending appeal in the Supreme Court of Western Australia, the Attorney-General (WA) applied successfully for the matter to be removed into the High Court of Australia. Barwick CJ, Gibbs, Stephen, Mason, Jacobs and Murphy JJ upheld the validity of the State legislation.] Gibbs J: 513 … The apparent object of s 24 is to prevent the fishing-grounds off the Western Australian coast (at least within “Western Australian waters”) from being depleted as a result of the taking of undersized fish. The words of s 24(1)(a) are quite general, and are not expressed to be limited to “Western Australian waters”. However, it could not have been the intention of the Legislature that s 24(1)(a) should apply to a boat in the waters of any part of the world … The fact that it does not matter for the purposes of the section where the fish were taken does not mean that it is of no importance where the boat was found. Some limitation must be placed on the generality of the words of s 24(1)(a), in accordance with the “rule of construction for confining the operation of general language in a statute to a subject [514] matter under the effective control of the Legislature” (Barcelo v Electrolytic Zinc Co of Australasia Ltd (1932) 48 CLR 391 at 423) … It would tend to defeat the object of the section if its provisions were restricted in their operation to the land territory of Western Australia and to internal waters of the kind mentioned in s 14 of the Seas and Submerged Lands Act 1973 – bays, gulfs, estuaries, rivers, creeks, inlets, ports and harbours within State limits. It was obviously intended by the Legislature that s 24(1)(a) should apply to boats within “Western Australian waters” at least, and the general words of the section should not be restricted to prevent them from applying to such waters, unless to give them an operation within those waters would transcend the legislative power of the State. Section 24(1)(a) would of course validly operate within “Western Australian waters” if the territory of a State includes the waters of the sea adjacent to the coast from low-water mark to the three-mile limit – which I shall for convenience call “the off-shore waters”. However, the majority of the Court in New South Wales v The Commonwealth (“the Seas and Submerged Lands Case”) (1975) 131 CLR 337 were of the opinion that the off-shore waters are not part of the respective territories of the States. That is an opinion that I am not able to share but I shall assume it to be correct. On that assumption, it becomes necessary to consider whether it would be within the competence of the Legislature of the State to give the provisions of s 24(1)(a) an operation which would extend beyond the territorial limits of Western Australia to the off-shore waters beyond those limits. … Of course … a legislature which passes a law having extra-territorial operation may find that the legislation proves to be unenforceable but it does not follow that the legislation is invalid on that account. Another explanation of the principle that colonial legislatures are subject to limitations in respect of their power of enacting legislation which has an extra-territorial effect is that it derives from the fact that a colonial legislature is empowered only to legislate for the “peace, order and good government” of the colony and that those words themselves import a territorial connexion. This explanation has been so often repeated in judgments of this Court and in the Judicial Committee that it seems necessary to regard it as correct. However, to accept it raises certain logical difficulties. By s 5 of the Colonial Laws Validity Act 1865 (IMP) every representative legislature was given “full power to make laws respecting the Constitution, powers and procedure of such legislature” and it is difficult to see why, if the suggested limitation arises from the words of the Constitution of a State, that limitation might not simply be [2.460]
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Pearce v Florenca cont. removed, nowadays at least, by the State legislature itself amending its Constitution and increasing its own powers. Moreover, the same words appear in s 51 of the Commonwealth Constitution and they do not there appear to have a similarly restrictive effect, at any rate since the passage of the [516] Statute of Westminster 1931 … The doctrine as to the limitation on the power of colonial legislatures to legislate with extra-territorial effect, as originally enunciated, proved to be too widely stated. It is misleading to refer to it as a “doctrine forbidding extra-territorial legislation” … The power of a subordinate legislature (as colonial, State and Dominion legislatures have sometimes been called) to enact legislation that takes effect beyond territorial limits was firmly established by the decision in Croft v Dunphy [1933] AC 156… However, the test whether a law is one for the peace, order and good government of the State is, as so stated, exceedingly vague and imprecise, and a rather more specific test has been adopted; it has become settled that a law is valid if it is connected, not too remotely, with the State which enacted it, or, in other words, if it operates on some circumstance which really appertains to the State. The rule was expressed in that way in Commissioner of Stamp Duties (NSW) v Millar (1932) (48 CLR 618 at 632–633), and Broken Hill South Ltd v Commissioner of Taxation (NSW) ((1937) 56 CLR 337 at 375), the judgments in which were approved by the Judicial Committee in Johnson v Commissioner of Stamp Duties ([1956] AC 331 at 353). In a later decision, Thompson v Commissioner of Stamp Duties, their Lordships said ([1969] 1 AC 320 at 335–336): “For the purpose of ascertaining whether there is a relevant territorial connection the scope of possible relevancy is wide.”… 518 Even in its modern form, the rule requiring a relevant connexion between the persons or circumstances on which the legislation operates and the State is still capable of giving rise to that practical inconvenience and uncertainty to which the report of the 1929 Conference on the Operation of Dominion Legislation alluded … For that reason it 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. And it has been established by a series of well-known decisions, which are collected in Cobb & Co Ltd v Kropp ([1967] 1 AC 141 at 154–156), that within their limits the legislatures of the States have powers “as plenary and as ample” as those of the Imperial Legislature itself. It would seem anomalous and unfitting that the enactments of such a legislature should be held invalid on narrow or technical grounds. For over a century it was accepted by the legislatures of the colonies and the States, and by the Imperial authorities in London, and never doubted by the courts, that the jurisdiction of those legislatures extended over the off-shore waters: see R v Bull ((1974) 131 CLR 203 at 269–272, 280–282), and the Seas and Submerged Lands Case ((1975) 131 CLR 337). Of course, when the “misconception” that the off-shore waters were within the territorial limits of the States prevailed, this legislative jurisdiction could be explained as being intra-territorial. Since the Seas and Submerged Lands Case, a different explanation must be given. In that case I expressed the view (at 404–405) that not all of the colonial legislation taking effect in the off-shore waters could be regarded as sufficiently connected with the colony in question to be within power, assuming the legislation to be extra-territorial in operation. However, the acceptance of the views expressed by the majority in the Seas and Submerged Lands Case would require me to modify that opinion. There is nothing in that decision that makes it necessary to hold that colonial and State legislation, for so long universally treated as valid, was in truth beyond power. On the assumption that the legislation was extra-territorial, I would, with respect, accept the view expressed by Mason J in the Seas and Submerged Lands Case, that the power to make laws for the peace, order and good government of the colony was 519 large enough to enable the colonial legislatures to enact legislation which applied to the off-shore waters. The same is true now of State legislatures. The very fact that the waters are the off-shore waters of the State provides the nexus necessary to render valid a law operating within those waters. There is an intimate connexion between the land territory of a State and its off-shore waters. Those waters have been popularly regarded as the waters of the State, and as vital to its trade. The people of the State have traditionally exploited the resources of the off-shore waters and used them for recreation. The enforcement of the laws of the State would be gravely impeded if a person could escape from the reach of the laws and the authority of the State by going below low-water mark. It does not appear that any law of a colony or State has ever been held invalid in its operation within the 126
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Pearce v Florenca cont. off-shore waters, only on the ground that it lacked sufficient connexion with the colony or the State. Legislation of a kind accepted for over a hundred years as being validly enacted is not lightly to be overturned, with consequences gravely inconvenient for the administration of the laws of the States, and in some cases with disturbance to old-established proprietary rights. When after so many years we are asked to declare for the first time that such legislation is ultra vires, we may well pause to consider what reason exists to deny the States power to enact legislation taking effect within their off-shore waters. 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 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 touchstone 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. It has now been held that those waters form part of the territory of the Commonwealth, but the Constitution itself sufficiently provides for the resolution of any conflict that may arise between a law of the Commonwealth and a law of a State: by virtue of s 109 the former will prevail. If in the opinion of the Commonwealth Parliament a State law infringed a rule of international law relating to the off-shore waters, the Parliament could by appropriate legislation inconsistent with the State law render the latter invalid. From the 520 point of view of the Commonwealth, no necessity exists to rely as against the States on any principle or territorial nexus; from the point of view of the States, every consideration of practical convenience requires that the power of a State to legislate in respect of its off-shore waters should be as ample as its power to legislate for its land territories. The history of the exercise of State powers in the past, the present public interest, and the reason on which the principle requiring a territorial nexus seems to rest all combine to lead to the conclusion that the fact that the persons, things or events to which the legislation of a State applies occur within the off-shore waters provides sufficient connexion with the State to render the legislation valid …
[2.470]
(1)
Notes&Questions
The liberal application of the nexus requirement is clearly apparent from this case. However, the requirement remains rather nebulous in definition. Gibbs J stated above that “it has become settled that a law is valid if it is connected, not too remotely, with the State which enacted it, or, in other words, if it operates on some circumstance which really appertains to the State” (at 517). His Honour recognised the difficulty in the application of such a law (at 518): For that reason it 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.
Is the solution suggested, coupled with a liberal application, sufficiently precise to determine the exact boundaries of extra-territorial State legislative competence? (2)
Gibbs J (at 515) expressed his support for the argument of Trindade that any limitation on extra-territorial laws could simply be removed by State legislatures pursuant to their plenary power conferred by the CLVA. Can this be reconciled with the wording in CLVA, s 5 that the power granted therein to legislatures is “in respect of the Colony under its jurisdiction”? (Emphasis added.) Given the repeal of the CLVA by the Australia Act 1986 (Cth), it may not be necessary to resolve this question. Section 2 of [2.470]
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the Australia Act 1986, does however maintain the “peace, order and good government” formula and, accordingly, the issue of a nexus requirement with the relevant State remains a critical consideration. The case which follows examined the position following the enactment of the Australia Acts in 1986. In addition, the case made reference to the important question of territorial limitations on State legislative powers, inter se, which are expressed or implied in the Commonwealth Constitution.
Union Steamship v King [2.480] Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 6–14 [The respondent, King, was an employee of the Union Steamship Co who had made a claim for injuries (“boilermaker’s deafness”) suffered whilst employed on one of the company’s ships registered in New South Wales. The claim was brought under the Workers’ Compensation Act 1926 (NSW). Under the Seamen’s Compensation Act 1911 (Cth), he would not have been entitled to compensation because his capacity to earn full wages had not been impaired. However, pursuant to s 46 of the Workers’ Compensation Act 1926 (NSW), this would not constitute a bar to his claim. At issue in the High Court was whether the relevant provisions of s 46 of the Workers’ Compensation Act 1926 (NSW) were valid laws of the State of New South Wales as laws for the “peace, welfare and good government” of that State. (Also considered was whether the relevant provision of the State law was inconsistent with the Commonwealth Act.) A unanimous court in a joint judgment held the NSW Act valid and found there to be no inconsistency with the Commonwealth legislation.] Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ: 6 … At the trial it was common ground that the respondent’s claim arose out of s 46 of the State Act. That section provides: 1. This Act applies in respect of an injury to a worker who is a seaman employed on a New South Wales ship or a ship whose first port of clearance and whose destination are in New South Wales. 2. In this section the term “New South Wales ship” means any ship which is – (a) registered in this State … 8 As the ship on which the respondent was engaged was a New South Wales ship, this case falls fairly and squarely within the embrace of s 46 and is governed by its provisions… The question then is whether s 46 is a valid exercise of the power of the Parliament of New South Wales to make laws for the peace, welfare and good government of the State. The appellant submits that it is not such a law on the ground that there is no sufficient nexus between the law and the territory of New South Wales. In 9 support of this submission the appellant says that registration may be a mere convenience for foreigners and that there may be many situations in which a ship registered in New South Wales is made the subject of contractual and other arrangements and put to uses which are entirely remote from New South Wales. The scope and content of the power conferred by s 5 of the Constitution Act 1902 (NSW) to make laws “for the peace, welfare, and good government of New South Wales” is still a topic of current debate… This may seem somewhat surprising. The explanation is historical and it is to be found in the evolving relationships between the United Kingdom and its colonies, especially the relationships with the Australian colonies and, after federation, with the Commonwealth of Australia and the Australian States. Such a power is a plenary power and it was so recognized, even in an era when emphasis was given to the character of colonial legislatures as subordinate law-making bodies. … 10 These decisions and statements of high authority demonstrate that, within the limits of the grant, a power to make laws for the peace, order and good government of a territory is as ample and plenary as the power possessed by the Imperial Parliament itself. That is, the words “for the peace, order and good government” are not words of limitation. … But when it came to legislation having an extraterritorial operation, it was thought that colonial legislatures were incompetent to enact such legislation. [The Court referred to earlier authorities such as Macleod v Attorney-General (NSW).] … 11 The need to protect British maritime and commercial 128
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Union Steamship v King cont. interests from colonial legislation operating outside colonial boundaries and the possibility that colonial laws or acts done under such laws might involve Great Britain in a breach of international law or of an international obligation were prominent factors which contributed to the development of the doctrine. How far the doctrine went in inhibiting a colony from enacting a rule of conduct for its subjects or residents outside its boundaries was not altogether clear. … 12 It is now accepted beyond any question that colonial legislatures had power to make laws which operate extraterritorially: Bonser v La Macchia (1969) 122 CLR 177 at 189, 224–225; Reg v Bull (1974) 131 CLR 203 at 263, 270–271, 280–282; New South Wales v The Commonwealth (“the Seas and Submerged Lands Case”) (1975) 135 CLR 337; (1976) 135 CLR 507 at 468–469, 494–495 (ClR), 514– 520, 522 (CLR). The same comment applies with equal force to the Parliaments of the Australian States. … 14 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); Australia Act 1986 (UK), s 2(1). That new dispensation is, of course, subject to the provisions of the Constitution (see s 5(a) of each Act) and cannot affect territorial limitations of State legislative powers inter se which are expressed or implied in the Constitution. That 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 ((1976) 135 CLR at 518) where his Honour stated that the requirement for a relevant connexion between the circumstances on which the legislation operates and the State should be liberally applied and that even a remote and general connexion between the subject-matter of the legislation and the State will suffice. Once this position is reached, the rejection of the appellant’s submission that s 46 is ultra vires becomes inevitable. The fact that the ship is registered in New South Wales is a sufficient connexion 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. … [The judgment then turned to deal with the issue of the inconsistency of the State law with the Commonwealth law, finding that there was none.]
[2.490]
(1)
(2)
(3)
Notes&Questions
Although the territorial nexus requirement may now appear to be a rather insignificant hurdle to validity, it nevertheless remains as a limitation. See, for instance, Lipohar v The Queen (1999) 200 CLR 485. What position did the Court adopt in relation to the “new dispensation” represented by the Australia Act 1986? Does s 2(1) thereof, which provides that each State has “full power to make laws for the peace, order and good government of that State that have extra-territorial operation” represent a change to the position with respect to the extra-territorial competence of State legislatures, or is the prior position, as indicated by Gibbs J in Pearce v Florenca, maintained? Whilst the question of territorial limitations inter se arising from the federal nature of the polity under the Commonwealth Constitution were referred to, there was no elaboration on this point. Consideration was given to this question in the following case in Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 where a unanimous High Court upheld the validity of Victorian legislation which made provision for “group proceedings”, that is, class actions, in the Supreme Court of Victoria. All the justices confirmed the position in relation to the requisite territorial nexus as [2.490]
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(4)
(5)
expounded in Union Steamship, although there was some variation as to how they applied the test on these facts. Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ, Callinan J dissenting, held that there was a sufficient territorial nexus between the subject matter of the legislation and the State of Victoria. Gleeson CJ, Gaudron, Gummow and Hayne JJ based their conclusion on the ground that, if the defendant was served within the jurisdiction, any requirement for a territorial nexus was to be found in the defendant’s connection to the jurisdiction by presence in Victoria at the time of service. Kirby J based his conclusion on the ground that the requirement that group members’ claims should give rise to a substantial common question of law or fact, and the court in which the implementation of Pt 4A was reposed, afforded a strong assurance against the possibility that the claims of a group member, covered by an order under Pt 4A, would not have a sufficient connection with Victoria. Callinan J read the section down, however, to require a far more precise connection with Victoria to establish the nexus requirement. (see 82 [190]) There was some passing reference in the judgments to extra-territorial inter se limitations on State legislation based on federal considerations. Kirby J alone expanded on this issue (at 49–54 [102]–[112]ff) when he considered the nature of any territorial limitations which may apply when a State law purports to have application in another State and a conflict between State laws arises. He noted that there may be situations where this inter se issue may not be capable of resolution by reliance on intergovernmental immunity principles, or indeed general conflict of law principles. If the matter did clearly arise, and was incapable of resolution by reference to these principles, perhaps, as hinted at by Kirby J, the better resolution may be “the almost inevitable intergovernmental negotiations” to obviate the necessity of the matter being resolved by the High Court (at [142]). See also BHP Billiton v Schultz (2004) 221 CLR 400 at 443 [93] (Gummow J), 473–474 [198]–[200] (Callinan J). A third High Court decision which confirmed the position on the territorial nexus requirement was Port Macdonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340. At issue was the validity of provisions in the Fisheries Act 1982 (SA) which, inter alia, provided for the regulation of fisheries within 200 nautical miles of the State coast. The Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) (at 372–373) held unanimously that the critical consideration was not the distance from the coast of the management areas, but rather “the existence and nature of the connexion between South Australia and activities which constitute the fishery in the assigned area.” The Court adopted and applied the rule established in Pearce v Florenca and Union Steamship. It held that the management of fisheries relate to a finite resource available for exploitation, and exploited by, South Australian residents, which also constituted a significant source of South Australian trade and employment. It also expressly considered the territorial limitations based on federal considerations referred to in Union Steamship. As the management plan did not extend to include waters over which Victoria might have an equal or stronger claim, this territorial limitation was not breached. For a detailed examination of this issue, see Carney (2006), ch 7.
STATE COURTS AND THE SEPARATION OF JUDICIAL POWER [2.500] In Chapter 13 the separation of judicial power in Ch III of the Commonwealth
Constitution is discussed in some detail. Its rigorous application, especially following R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, established considerable limitations on the legislative power of the Commonwealth Parliament. However, 130
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until the mid-1990s, there had been no decision which had held that the separation of judicial power in Ch III of the Commonwealth Constitution resulted in limitations on the legislative competence of State legislatures. This position was substantially altered by the Kable decision extracted below, a decision as unexpected as it was novel. Its significance lay in its imposition of limitations on State parliaments, emanating from Ch III, when legislating with respect to their own State courts vested with federal jurisdiction – even when they were not exercising federal jurisdiction. No court had held that the separation of powers doctrine was legally entrenched in any State constitution. In fact, this had been expressly rejected: in NSW, in Building Construction Employees & Builders Labourers’ Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372 and Clyne v East (1967) 68 SR (NSW) 385; in Victoria, in City of Collingwood v State of Victoria (No 2) [1994] 1 VR 652; in South Australia, in Gilbertson v South Australia [1978] AC 772 (PC); and in Western Australia, Nicholas v Western Australia [1972] WAR 168. The decision of Kable thus appeared, at first, to have ushered in a quiet revolution in this respect.
Kable v DPP (NSW) [2.510] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 109–124 (some footnotes omitted) [The impugned statute was the Community Protection Act 1994 (NSW). The key provision, s 5, provided as follows: (a) On an application made in accordance with this Act, the Court may order that a specified person be detained in prison for a specified period if it is satisfied, on reasonable grounds: (a) that the person is more likely than not to commit a serious act of violence; and (b) that it is appropriate, for the protection of a particular person or persons or the community generally, that the person be held in custody. (b) The maximum period to be specified in an order under this section is 6 months. (c) An order under this section may be made against a person: (1) whether or not the person is in lawful custody, as a detainee or otherwise; and (2) whether or not there are grounds on which the person may be held in lawful custody otherwise than as a detainee. (d) More than one application under this section may be made in relation to the same person. A “serious act of violence” was defined (s 4) as one being committed by one person against another that has a real likelihood of causing death or serious injury to the other person or that involves sexual assault in the nature of certain offences under the Crimes Act 1900 (NSW). The “Court” was defined as the Supreme Court of New South Wales. Proceedings for detention orders were civil proceedings (s 14), determined by reference to the balance of probabilities (s 15). Only the Director of Public Prosecutions could apply for a preventive detention order under s 5 or an interim detention order under s 7 (s 8). As the Act was making its way through Parliament in its Bill stage, it was amended to limit the generality of the above provisions, in effect rendering them applicable only to a single individual, Gregory Wayne Kable. Section 3 thus provided that: (i) 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. (ii) In the construction of this Act, the need to protect the community is to be given paramount consideration. (iii) This Act authorises the making of a detention order against Gregory Wayne Kable and does not authorise the making of a detention order against any other person. … [2.510]
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Kable v DPP (NSW) cont. It was the imminent release of Kable from custody which motivated the enactment and the application for his further detention. Kable had originally been charged with the murder of his wife, stabbing her to death in the house in which she lived with the two children of the marriage. Prior to this, the appellant had engaged in violent behaviour towards her and had made threats of violence. The prosecution accepted a plea of guilty to manslaughter on the basis of diminished responsibility. Whilst in prison, Kable’s behaviour was such as to cause serious concern that, upon his release, there would be a repetition of the same conduct that led to the death of his wife. In particular, he wrote a series of threatening letters, mainly to relatives of his deceased wife. The DPP’s application was based on this conduct. In February 1995, Levine J issued a detention order for a period of six months. The NSW Court of Appeal dismissed an appeal from this order on 9 May 1995 (Kable v Director of Public Prosecutions (1995) 36 NSWLR 374) and Kable was granted special leave to appeal to the High Court, which resulted in these proceedings. On 21 August 1995, Grove J refused to issue a further order. Kable challenged the validity of the Act. The majority, Toohey, Gaudron, McHugh and Gummow JJ, held the Act to be invalid. Brennan CJ and Dawson J dissented.] The States do not have unlimited power in respect of State courts McHugh J: 109 Subject to the operation of the Commonwealth of Australia Constitution Act 1900 (IMP) (the Constitution), the State of New South Wales is governed by the New South Wales Constitution. The latter Act is not predicated on any separation of legislative, executive and judicial power although no doubt it assumes that the legislative, executive and judicial power of the State will be exercised by institutions that are functionally separated. Despite that assumption, I can see nothing in the New South Wales Constitution nor the constitutional history of the State that would preclude the State legislature from vesting legislative or executive power in the New South Wales judiciary or judicial power in the legislature or the executive. Nor is the federal doctrine of the separation of powers – one of the fundamental doctrines of the Constitution – directly applicable to the State of New South Wales. Federal judicial power may be vested in a State court although that court exercises non- 110 judicial as well as judicial functions. Moreover, when the Parliament of the Commonwealth invests the judicial power of the Commonwealth in State courts pursuant to s 77(iii) of the Constitution, it must take the State court as it finds it (Federated Sawmill, Timberyard and General Woodworkers’ Employees’ Association (Adelaide Branch) v Alexander (1912) 15 CLR 308 at 313; Le Mesurier v Connor (1929) 42 CLR 481 at 495–497; Peacock v Newtown Marrickville & General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25 at 37). This is because the Constitution recognises that the jurisdiction, structure and organisation of State courts and the appointment, tenure and terms of remuneration of judges of State courts is not a matter within the legislative power of the federal Parliament. But in my opinion none of the foregoing considerations means that the Constitution contains no implications concerning the powers of State legislatures to abolish or regulate State courts, to invest State courts or State judges with non-judicial powers or functions, or to regulate the exercise of judicial power by State courts and judges. The working of the Constitution requires and implies the continued existence of a system of State courts with a Supreme Court at the head of the State judicial system. Covering cl 5 of the Constitution, for example, in declaring that the Constitution “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” necessarily implies the continuing existence of a system of State courts declaring the legal rights and duties of the people of Australia. So does s 118 in declaring that “[f]ull faith and credit shall be given, throughout the Commonwealth to the … judicial proceedings of every State.” So too do s 51(xxiv) and s 51(xxv) in granting to the Parliament of the Commonwealth the power to make laws with respect to “[t]he service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States” and “[t]he recognition throughout the Commonwealth of … the judicial proceedings of the States”. Section 77 of the Constitution also necessarily implies the existence of a court system in each State. It gives the Parliament of the Commonwealth the power to invest “any court of a State with federal jurisdiction” and to define “the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States.” 132
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Kable v DPP (NSW) cont. One of the reasons for enacting s 77(iii) was that it was “a very convenient means of avoiding the multiplicity and expense of legal tribunals” (Commonwealth v Limerick Steamship Co Ltd and Kidman (1924) 35 CLR 69 at 90). The paragraph provides the machinery for 111 implementing that part of the declaration in s 71 of the Constitution which provides that “[t]he judicial power of the Commonwealth shall be vested in … such other courts as [the Parliament] invests with federal jurisdiction”. If a State could abolish its court system, the powers conferred by s 77(ii) and (iii) would be rendered useless and the constitutional plan of a system of State courts invested with federal jurisdiction, as envisaged by Ch III, would be defeated. This is because only courts can be invested with federal jurisdiction pursuant to the provisions of s 77(iii) (Silk Bros Pty Ltd v State Electricity Commission (Vic) (1943) 67 CLR 1). It is hardly to be supposed that the Constitution intended that a State could defeat the exercise of the grants of power conferred on the Parliament of the Commonwealth by s 77 by the simple expedient of abolishing its courts and setting up a system of tribunals that were not courts. State Supreme Courts cannot be abolished Furthermore, s 73 of the Constitution implies the continued existence of the State Supreme Courts by giving a right of appeal from the Supreme Court of each State to the High Court, subject only to such exceptions as the Commonwealth Parliament enacts. Section 73(ii) gives this Court jurisdiction to determine appeals from the decisions of any “court exercising federal jurisdiction; or of the Supreme Court of any State, or any other court of any State from which at the establishment of the Commonwealth an appeal [lay] to the Queen in Council.” 112 The right of appeal from a State Supreme Court to this Court, conferred by that section, would be rendered nugatory if the Constitution permitted a State to abolish its Supreme Court. It necessarily follows, therefore, that the Constitution has withdrawn from each State the power to abolish its Supreme Courts or to leave its people without the protection of a judicial system. That does not mean that a State cannot abolish or amend the constitutions of its existing courts. Leaving aside the special position of the Supreme Court of the States, the States can abolish or amend the structure of existing courts and create new ones. However, the Constitution requires a judicial system in and a Supreme Court for each State and, if there is a system of State courts in addition to the Supreme Court, the Supreme Court must be at the apex of the system. With the abolition of the right of appeal to the Privy Council, therefore, this Court is now the apex of an Australian judicial system. State courts are part of an Australian judicial system … Since 1986, this Court has been the ultimate appellate court of the nation. The right of appeal to the Privy Council having been abolished, the High Court of Australia has the constitutional duty of supervising the nation’s legal system and, 114 subject to any relevant statutory or constitutional limitations, of maintaining a unified system of common law. An essential part of the machinery for implementing that supervision of the Australian legal system and maintaining the unity of the common law is the system of State courts under a Supreme Court with an appeal to the High Court under s 73 of the Constitution. The judgment of the High Court in such an appeal is “final and conclusive”. Without the continued existence of a right of appeal from the Supreme Court of each State to the High Court, it would be difficult, indeed probably impossible, to have the unified system of common law that the Constitution intended should govern the people of Australia. Moreover, although it is not necessary to decide the point in the present case, a State law that prevented a right of appeal to the Supreme Court from, or a review of, a decision of an inferior State court, however described, would seem inconsistent with the principle expressed in s 73 and the integrated system of State and federal courts that covering cl 5 and Ch III envisages. It follows that State courts exercising State judicial power cannot be regarded as institutions that are independent of the administration of the law by this Court or the federal courts created by the Parliament of the Commonwealth. In exercising federal jurisdiction, a court of a State administers the same law as the Federal Court of Australia when it exercises the identical federal jurisdiction. In exercising federal jurisdiction, a State court must deduce any relevant common law principle from the decisions of all the courts of the nation and not merely from the decisions of the higher courts of its [2.510]
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Kable v DPP (NSW) cont. State. A judge exercising the federal jurisdiction invested in a State court must see the common law in exactly the same way that a judge of a federal court created under s 71 of the Constitution sees it. Furthermore, a State court when it exercises federal jurisdiction invested under s 77(iii) is not a court different from the court that exercises the judicial power of the State. The judges of a State court who exercise the judicial power of the State are the same judges who exercise the judicial power of the Commonwealth invested in their courts pursuant to s 77(iii) of the Constitution. Indeed, it is not uncommon for a judge of a State court to administer State legislation in the course of the exercise of federal jurisdiction. It is common ground, for example, that in this very case Levine J made his order in the exercise of federal jurisdiction because he became seized of federal jurisdiction when the appellant contended that the Act was in breach of the Constitution. Under the Constitution, therefore, the State courts have a status and a role that extends beyond their status and role as part of the State judicial systems. They are part of an integrated system of State and federal courts and organs for the exercise of federal judicial power as 115 well as State judicial power. Moreover, the Constitution contemplates no distinction between the status of State courts invested with federal jurisdiction and those created as federal courts. There are not two grades of federal judicial power. The terms of s 71 of the Constitution equate the vesting of judicial power in the federal courts with the vesting of federal judicial power in the State courts. And s 77(iii) permits the Parliament of the Commonwealth to invest any court of a State with federal jurisdiction in respect of all matters that are or can be vested in the original jurisdiction of this Court or the federal courts. Other sections (ss 78, 79, 80) of the Constitution also draw no distinction between the exercise of federal judicial power by the State courts and its exercise by federal courts. It is true that the Constitution does not protect the appointment, remuneration and tenure of the judges of State courts invested with federal jurisdiction although it protects the judges of federal courts in respect of those matters. But this difference provides no ground for concluding that the exercise of federal judicial power by State courts was intended to be inferior to the exercise of that power by federal courts … Legislatures cannot alter or undermine the constitutional scheme set up by Ch III It is axiomatic that neither the Commonwealth nor a State can legislate in a way that might alter or undermine the constitutional scheme set up by Ch III of the Constitution. … 116 Because the State courts are an integral and equal part of the judicial system set up by Ch III, it also follows that no State or federal parliament can legislate in a way that might undermine the role of those courts as repositories of federal judicial power. Thus, neither the Parliament of New South Wales nor the Parliament of the Commonwealth can invest functions in the Supreme Court of New South Wales that are incompatible with the exercise of federal judicial power. Neither Parliament, for example, can legislate in a way that permits the Supreme Court while exercising federal judicial power to disregard the rules of natural justice or to exercise legislative or executive power. Such legislation is inconsistent with the exercise of federal judicial power. However, the Act does not seek to interfere with the invested federal jurisdiction of the Supreme Court. On its face it is directed to the exercise of State, not federal, jurisdiction. But for present purposes that is irrelevant. The compatibility of State legislation with federal judicial power does not depend on intention. It depends on effect. If, as Gibbs J pointed out in Commonwealth v Queensland ((1975) 134 CLR 298 at 314–315), State legislation has the effect of violating the principles that underlie Ch III, it will be invalid. Courts exercising federal jurisdiction must be perceived to be free from legislative or executive. One of the basic principles which underlie Ch III and to which it gives effect is that the judges of the federal courts must be, and must be perceived to be, independent of the legislature and the executive government (R v Quinn; Ex parte Consolidated Food Corporation (1977) 138 CLR 1 at 11; Harris v Caladine (1991) 172 CLR 84 at 135, 159; Grollo v Palmer (1995) 184 CLR 348 at 365, 376–377, 392; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1). Given the central role and the status that Ch III gives to State courts invested with federal jurisdiction, it necessarily follows that those courts must also be, and be perceived to be, independent of the legislature and executive government in the exercise of federal jurisdiction. Public confidence in the impartial exercise of federal judicial power would soon be lost if federal or State courts exercising federal jurisdiction were not, or were not perceived to be, independent of the legislature or the executive government. In the case of 134
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Kable v DPP (NSW) cont. State courts, this means they must be independent and appear to be independent of their own State’s legislature and executive government as well as the federal legislature and government. Cases concerning the States, the extent of the legislative powers of the States and the actions of the executive governments of the States frequently attract the exercise of invested federal jurisdiction. The Commonwealth government and the residents and governments of other States are among those who litigate issues in the courts of a State. Quite 117 often the government of the State concerned is the opposing party in actions brought by these litigants. Public confidence in the exercise of federal jurisdiction by the courts of a State could not be retained if litigants in those courts believed that the judges of those courts were sympathetic to the interests of their State or its executive government. While nothing in Ch III prevents a State from conferring non-judicial functions on a State Supreme Court in respect of non-federal matters, those non-judicial functions cannot be of a nature that might lead an ordinary reasonable member of the public to conclude that the Court was not independent of the executive government of the State. A State law which gave the Supreme Court powers to determine issues of a purely governmental nature – for example, how much of the State Budget should be spent on child welfare or what policies should be pursued by a particular government department – would be invalid. It would have the effect of so closely identifying the Supreme Court with the government of the State that it would give the appearance that the Supreme Court was part of the executive government of the State. The law would fail not because it breached any entrenched doctrine of separation powers in the State Constitution but because it gave the appearance that a court invested with federal jurisdiction was not independent of its State government. In addition, in the case of the Supreme Court, although non-judicial functions may be vested in that court, they cannot be so extensive or of such a nature that the Supreme Court would lose its identity as a court. Thus, a State can invest its Supreme Court with a jurisdiction similar to that which is presently exercised in the federal sphere by the Administrative Appeals Tribunal. The Supreme Court would not lose its identity as the Supreme Court of the State merely because it was given a jurisdiction similar to that of that Tribunal. Nor could such a jurisdiction lead any reasonable person to conclude that the Supreme Court was part of the executive government of the State. However, a State could not legislate to abolish all other jurisdictions of the Supreme Court and invest it with no more than a jurisdiction similar to that Tribunal. To do so would make a mockery of the principles contained in Ch III of the Constitution. Furthermore, although nothing in Ch III prevents a State from conferring executive government functions on a State court judge as persona designata, if the appointment of a judge as persona designata gave the appearance that the court as an institution was not independent of the executive government of the State, it would be invalid. No doubt there are few appointments of a judge as persona 118 designata in the State sphere that could give rise to the conclusion that the court of which the judge was a member was not independent of the executive government. Many Chief Justices, for example, act as Lieutenant-Governors and Acting Governors. But, given the long history of such appointments, it is impossible to conclude that such appointments compromise the independence of the Supreme Courts or suggest that they are not impartial. Similarly, a law that provided for a judge of a State court to be appointed as a member of an Electoral Commission fixing the electoral boundaries of the State would not appear to suggest that the court was not impartial. However, a State law which purported to appoint the Chief Justice of the Supreme Court to be a member of the Cabinet might well be invalid because the appointment would undermine confidence in the impartiality of the Supreme Court as an institution independent of the executive government of the State. (Nor have I overlooked the fact that the Lord Chancellor of England is the head of the English judicial system and a member of the Government. But this historical anomaly provides no precedent for holding that membership of the executive government of a State is compatible with the discharge of judicial office in a court invested with federal jurisdiction … It follows therefore that, although New South Wales has no entrenched doctrine of the separation of powers and although the Commonwealth doctrine of separation of powers cannot apply to the State, in some situations the effect of Ch III of the Constitution may lead to the same result as if the State had an enforceable doctrine of separation of powers. This is because it is a necessary implication of the Constitution’s plan of an Australian judicial system with State courts invested with federal jurisdiction that no government [2.510]
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Kable v DPP (NSW) cont. can act in a way that might undermine public confidence in the impartial administration of the judicial functions of State courts. If it could, it would inevitably result in a lack of public confidence in the administration of invested federal jurisdiction in those courts. State governments therefore do not have unrestricted power to legislate for State courts or judges. A State may invest a State court with non-judicial functions and its judges with duties that, in the federal sphere, 119 would be incompatible with the holding of judicial office. But under the Constitution the boundary of State legislative power is crossed when the vesting of those functions or duties might lead ordinary reasonable members of the public to conclude that the State court as an institution was not free of government influence in administering the judicial functions invested in the court. The Act has the tendency to undermine public confidence in the impartiality of the Supreme Court of New South Wales. The object of the Act according to s 3(1) “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.” In construing the provisions of the Act, “the need to protect the community is to be given paramount consideration” (s 3(2)). The means by which the object of the Act is accomplished is to empower (s 5(1)) the Supreme Court to order the appellant’s detention in prison for a specified period not exceeding six months. The only condition that must be fulfilled for the making of the order is that the Court be satisfied on reasonable grounds that the appellant “is more likely than not to commit a serious act of violence; and … that it is appropriate, for the protection of a particular person or persons or the community generally, that the defendant be held in custody” (s 5(1)). Proceedings are to be commenced by summons (s 16(1)). The Court is authorised to hear and determine an application for an order “in the absence of the defendant” if it is satisfied that the summons has been served on the defendant or that all reasonable steps have been taken to serve the summons on him (s 16(2)). Somewhat inconsistently, s 17(2)(a) provides that the “Act does not affect the right of any party to proceedings under [the] Act … to appear, either personally or by the party’s legal representative.” Section 7 of the Act goes even further than s 5 in interfering with the liberty of the appellant. It provides for the making of an “interim detention order”. Section 7(1) enacts that “the Court may order that the defendant in any proceedings on an application for a preventive detention order be detained in prison for such period (not exceeding 3 months) as the Court determines”. Section 7(3) provides that, “[o]n an application … or on its own motion, the Court may extend the period of an interim detention order for such further period (not exceeding 3 months) as the Court determines if it appears that the proceedings on the application for a preventive detention order will not 120 be determined during the period currently specified in the interim detention order”. Section 7(5) provides that “[a]n interim detention order may be made, and its period extended, in the absence of the defendant”. The Act gives no right of appeal against an interim detention order. This brief summary of the central provisions of the Act shows that its object is to detain the appellant not for what he has done but for what the executive government of the State and its Parliament fear that he might do. Moreover, given the date of the Act and the date of the appellant’s release from prison for the crime for which he had been convicted, it seems clear that the Parliament expected that he would be detained on an interim basis before the Supreme Court had had the opportunity to decide whether it was satisfied that the appellant was more likely than not to commit a serious act of violence. Indeed, the Act contemplates that the interim order might be made or extended “in the absence of the defendant” (s 7(5)). Furthermore, although the Act provides for the preventive detention of the appellant only upon the making of an order by the Supreme Court, it is plain that the legislature and the executive government which introduced the Act into the Parliament of New South Wales passed the Act for the purpose of ensuring that the appellant was kept in prison. Proof of the case against the appellant was made much easier by removing any need to prove beyond reasonable doubt that he was likely to commit a serious act of violence. Although s 17(1)(a) provides that the Court “is bound by the rules of evidence”, s 17(3) goes a long way to negating that protection. That subsection enacts: 136
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Kable v DPP (NSW) cont. Despite any Act or law to the contrary, the Court must receive in evidence any document or report of a kind referred to in subsection (1), or any copy of any such document or report, that is tendered to it in proceedings under this Act. Among the documents referred to in subsection (1) are: 1. medical records and reports; 2. records and reports of any psychiatric in-patient service or prison; 3. reports made to, or by, the Offenders Review Board; 4. reports, records or other documents prepared or kept by any police officer; 121 5. the transcript of any proceedings before, and any evidence tendered to, the Mental Health Review Tribunal. In my opinion, those 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? It is true that the Act places the necessity for a Supreme Court order between the obvious intention of the executive government and the imprisonment of the appellant. But when the Act was passed it must have seemed to many that the risk of that intention being defeated was minimal. The matters that signal the intention of the makers of the Act also undermined the ordinary safeguards of the judicial process and made it highly likely that the appellant would be imprisoned. 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. However, whatever else the Parliament of New South Wales may be able to do in respect of the preventive detention of individuals who are perceived to be dangerous, it cannot, consistently with Ch III of the Constitution, invoke the authority of the Supreme Court to make the orders against the appellant by the methods which the Act authorises. This is because the Act and its procedures compromise the institutional impartiality of the Supreme Court. Apart from similar legislation passed by the Parliament of Victoria providing for the protective sentencing or the preventive detention of Garry Ian David in 1990 (Community Protection Act 1990 (Vic)), no Parliament in the Commonwealth of Australia has ever given a court a jurisdiction that is remotely similar to that which the Act gives to the Supreme Court of New South Wales. It is not merely that the Act involves the Supreme Court 122 in the exercise of non-judicial functions or that it provides for punishment by way of imprisonment for what the appellant is likely to do as opposed to what he has done. The Act seeks to ensure, so far as legislation can do it, that the appellant will be imprisoned by the Supreme Court when his sentence for manslaughter expires. It makes the Supreme Court the instrument of a legislative plan, initiated by the executive government, to imprison the appellant by a process that is far removed from the judicial process that is ordinarily invoked when a court is asked to imprison a person. The Act expressly removes the ordinary protections inherent in the judicial process. It does so by stating that its object is the preventive detention of the appellant, by removing the need to prove guilt beyond reasonable doubt, by providing for proof by materials that may not satisfy the rules of evidence and by declaring the proceedings to be civil proceedings although the Court is not asked to determine the existing rights and liabilities of any party or parties. It is not going too far to say that proceedings under the Act bear very little resemblance to the ordinary processes and proceedings of the Supreme Court. They do not involve any contest as to whether the appellant has breached any law or any legal obligation. They “are not directed to any determination or order which resolves an actual [2.510]
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Kable v DPP (NSW) cont. or potential controversy as to existing rights or obligations” (R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 375) which is the benchmark of an exercise of judicial power. The Act is thus far removed from the ordinary incidents of the judicial process. It invests the Supreme Court with a jurisdiction that is purely executive in nature. Indeed, the jurisdiction conferred on the Court is hardly distinguishable from those powers and functions, concerning the liberty of the subject, that the traditions of the common law countries have placed in Ministers of the Crown so that they can be answerable to Parliament for their decisions. The jurisdiction conferred on the Supreme Court bears a remarkable similarity to the jurisdiction conferred on the Minister during wartime under reg 26 of the National Security (General) Regulations 1939 (Cth). That regulation empowered the Minister to order the detention of a person if he was satisfied that it was necessary to do so “to prevent that person acting in any manner prejudicial to the public safety or the defence of the Commonwealth.” Instead of a trial where the Crown is required to prove beyond reasonable doubt that the accused is guilty of a crime on evidence admitted in accordance with the rules of evidence, the Supreme Court is asked to speculate whether, on the balance of probabilities, it is more likely than not the appellant will commit a serious act of 123 violence. … Yet on this prediction of dangerousness, a prediction which can at best be but an informed guess by the Supreme Court, the Court is required to commit the appellant to prison. Having regard to the object of the Act, it is impossible to suppose that the Court has any discretion to refuse to imprison the appellant once it concludes that he is more likely than not to commit a serious act of violence. … No one who has read the lengthy and anxious judgment of Levine J making the order imprisoning the appellant or the judgments of the judges of the Court of Appeal upholding that order or the judgment of Grove J refusing to make a further order against the appellant could doubt their independence and impartiality in administering the law. The judgments of Levine J and the Court of Appeal demonstrate that the order against the appellant was made and upheld only because the object of the Act, the evidence and the methods and burden of proof left them no alternative to making and upholding the s 5 order. But the constitutional validity of the Act cannot depend on how the judges of 124 the Supreme Court discharge the duty that the Act imposes upon them. The Act was either valid or invalid when it was given the Royal Assent. Nothing that the judges of the Supreme Court did after its enactment could change its status as a valid or invalid piece of legislation. At the time of its enactment, ordinary reasonable members of the public might reasonably have seen the Act as making the Supreme Court a party to and responsible for implementing the political decision of the executive government that the appellant should be imprisoned without the benefit of the ordinary processes of law. Any person who reached that conclusion could justifiably draw the inference that the Supreme Court was an instrument of executive government policy. That being so, public confidence in the impartial administration of the judicial functions of the Supreme Court must inevitably be impaired. The Act therefore infringed Ch III of the Constitution and was and is invalid. The appeal should be allowed.
Notes&Questions
[2.520]
1.
The other majority justices agreed that Ch III of the Commonwealth Constitution imposed some limitations on the power of State Parliaments with respect to their respective State courts. Toohey J held that “the Act requires the Supreme Court to exercise the judicial power of the Commonwealth in a manner which is inconsistent with traditional judicial process” (at 98). The impugned provisions were incompatible with the exercise of the judicial power of the Commonwealth because they diminished public confidence in the integrity of the judiciary as an institution. Gaudron J stated (at 102) that: [n]either the recognition in Ch III that State courts are the creatures of the States nor its consequence that, in the respects indicated, the Commonwealth must take State courts
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as it finds them detracts from what is, to my mind, one of the clearest features of our Constitution, namely, that it provides for an integrated Australian judicial system for the exercise of the judicial power of the Commonwealth. Moreover, neither that recognition nor that consequence directs the conclusion that State Parliaments may enact whatever laws they choose with respect to State courts. If Ch III requires that State courts not exercise particular powers, the Parliaments of the States cannot confer those powers upon them.
As a result of s 77(iii) of the Constitution – the “autochthonous expedient” – State courts became an indispensable part of “the integrated judicial system for which Chapter III provides” (at 102). Her Honour continued (at 102): One thing which clearly emerges is that, although it is for the States to determine the organisation and structure of their court systems, they must each maintain courts, or, at least, a court for the exercise of the judicial power of the Commonwealth. Were they free to abolish their courts, the autochthonous expedient, more precisely, the provisions of Ch III which postulate an integrated judicial system, would be frustrated in their entirety. To this extent, at least, the States are not free to legislate as they please.
Thus, “the consideration that State courts have a role and existence transcending their status as State courts directs the conclusion that Ch III requires that the Parliaments of the States not legislate to confer powers on State courts which are repugnant to or incompatible with their exercise of the judicial power of the Commonwealth”. (at 103) Gummow J stated that because the High Court was the ultimate avenue of appeal from all State Supreme courts, “s 73 of the Constitution places this Court in final superintendence over the whole of an integrated national court system. This ensures the unity of the common law of Australia”. (at 138) He also adopted the position (at 140) that it would not be open to the States to abolish their Supreme Courts because s 73 implied their continued maintenance (at 139), as did ss 77(iii) and 79. [T]o say of s 77(iii) that it offers to the Commonwealth but a facility, so that the Constitution does not bring the courts of the States necessarily into any relationship with the federal judicial power, does not meet the appellant’s case. Section 73(ii) indicates that the functions of the Supreme Courts of the States, at least, are intertwined with the exercise of the judicial power of the Commonwealth. This is because decisions of the State courts, whether or not given in the exercise of invested jurisdiction, yield “matters” which found appeals to this Court under s 73(ii). By this means, the judicial power of the Commonwealth is engaged, at least prospectively, across the range of litigation pursued in the courts of the States.
His Honour (at 142 above) thus accepted the submissions of the appellant, that, as his Honour stated (at 126), the impugned provisions were of such a “nature and quality as to render them incompatible with the exercise by the same judicial institution of the State of the judicial power of the Commonwealth and that, as a result, the Act is invalid”. 2.
Is it possible to define precisely the Kable principle from the reasoning of the majority? At the most basic level, the principle is predicated on the view expounded by the majority that Ch III prevents State Parliaments from abolishing their Supreme Courts (because of s 73) and from abolishing their judicial system because it is necessary for them to maintain a system of “courts” to enable the vesting of federal jurisdiction for which s 77(iii) of the Constitution provides. Beyond this the precise scope of the principle remain uncertain. Is it to be defined in broad terms based on more general notions of incompatibility (or repugnance) to the exercise of federal judicial power pursuant to Ch III? Or, is it to be defined rather by the more precise criterion of independence, and perceived independence, from the State executive and legislature? [2.520]
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When examining the judgment of McHugh J, it is the more general principle, based on notions of incompatibility, which His Honour appears (at 116) to have relied on: “neither the Parliament of New South Wales nor the Parliament of the Commonwealth can invest functions in the Supreme Court of New South Wales that are incompatible with the exercise of federal judicial power”. He proceeded to give the example that neither State nor Commonwealth parliaments could legislate to require the Supreme Court to disregard the rules of natural justice or exercise legislative or executive power. He then immediately continued (at 116) by stating that “[o]ne of the basic principles which underlie Ch III and to which it gives effect is that the judges of the federal courts must be, and must be perceived to be, independent of the legislature and the executive government”. (Emphasis added.) The remainder of the judgment proceeded to emphasise this particular limitation when setting out the limitation imposed also upon State parliaments in relation to State courts and which ultimately forms the basis for his invalidation of the Act. If this is only one of the basic limitations, what are the others? When examined in the context of the remainder of the judgment, it appears that, at the very least, this issue of independence from legislature and executive is a fundamental consideration. McHugh J stated (at 117) that “[w]hile nothing in Ch III prevents a State from conferring non-judicial functions on a State Supreme Court in respect of non-federal matters, those nonjudicial functions cannot be of a nature that might lead an ordinary reasonable member of the public to conclude that the Court was not independent of the executive government of the State”. Thus, is his Honour suggesting that if the conferral of non-judicial functions did not compromise the Court’s independence, but in other respects was incompatible with the exercise of federal judicial power, would legislation be thereby rendered invalid? 3.
McHugh J did give some examples of laws which might breach Kable principle. A State law would be invalid which gave the Supreme Court power to determine issues of a purely governmental nature; for example, the determination of how much of the State Budget should be spent on child welfare or what policies should be pursued by a particular government department. The offence lay in the fact that the Supreme Court would be so closely identified with the Executive that its independence from the executive and legislative branches, or the appearance thereof, would be undermined. Similarly, certain appointments of judges as persona designata to non-judicial roles might lead to a loss, or perceived loss, of the requisite independence. He gave the example of the appointment of the Chief Justice of the Supreme Court as a member of the Cabinet. Thus, while the Kable principle is stated in broad terms of incompatibility, the criterion of the maintenance of independence from the executive and legislature branches appears to be the central consideration.
4.
When examining this question of independence, to what extent do the constitutional principles prohibiting legislative direction of the judicial branch – discussed in Chapter 13 – in the context of the separation of powers, provide relevant assistance? Could State legislation which breached the “Direction Rule” with respect to State courts be declared invalid pursuant to the Kable principle? If an affirmative answer is given, would that mean that the facts of Building Construction Employees & Builders Labourers’ Federation of NSW v Minister for Industrial Relations ((1986) 7 NSWLR 372) would be decided differently today? See F Wheeler, “BLF v Minister for Industrial Relations: The Limits of State Legislative and Judicial Power” in Winterton (2006), ch 13.
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5. 6.
7.
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Which limitations imposed by Ch III of the Constitution are not applicable to State legislatures? How fundamental to the application of the Kable principle is the issue of the maintenance of “public confidence” in the independence of the State judiciary? Is it, as McHugh J states, “a necessary implication of the Constitution’s plan … that no government can act in a way that might undermine public confidence in the impartial administration of the judicial functions of State courts”? See E Handsley, “Public Confidence in the Judiciary: A Red Herring for the Separation of Judicial Power” (1998) 20 Sydney Law Review 183. This issue was taken up in Fardon v AttorneyGeneral (Qld) (2004) 223 CLR 575 extracted at [2.550]. An important step in the reasoning of the majority justices is that the State courts are an essential part of an integrated system of courts provided for by Ch III of the Constitution, reliance being placed by the majority justices on ss 77(iii) and 73 in particular. How is this reconciled with the acknowledgement by the majority justices that the Commonwealth Parliament, when vesting federal jurisdiction in State courts, must take those courts “as it finds them”? As to whether the order made pursuant to the Community Protection Act 1994 (NSW) was a “judicial order” see: New South Wales v Kable (2013) 252 CLR 118.
[2.530] Brennan CJ and Dawson J rejected the existence of these novel limitations on State
legislatures vis-à-vis State courts, recognised by the majority justices as emanating from Ch III of the Commonwealth Constitution. That is, they rejected the “Kable principle”. The relevant Ch III limitations which they did acknowledge were those which pre-existed Kable. Dawson J found that the contention that there is a separation of judicial power at the State level was unsupportable and that “[i]n providing for the vesting of federal jurisdiction in State courts, s 77(iii) plainly contemplated that jurisdiction might be vested in a court which did not have the characteristics required of a federal court under Ch III” (at 80). Dawson J went on to quote (at 81) Knox CJ, Rich and Dixon JJ in Le Mesurier v Connor ((1929) 42 CLR 481 at 495–496) who stated that: The Parliament may create Federal Courts, and over them and their organisation it has ample power. But the Courts of a State are the judicial organs of another Government. They are created by State law; their existence depends upon State law; that law, primarily at least, determines the constitution of the Court itself, and the organisation through which its powers and jurisdictions are exercised.
His Honour found that the Commonwealth Constitution does not protect the independence of State judges as it does, by s 72, for federal judges. He conceded (at 82) that: some qualifications must be placed upon the statement that the federal Parliament must, in exercising its power under s 77(iii), take a State court as it finds it. Under s 79 Parliament may prescribe the number of judges to exercise federal jurisdiction. And clearly Parliament may extend the jurisdiction of the court because that is precisely what s 77(iii) envisages. Also it may regulate the practice and procedure which the State court is to follow in exercising the invested jurisdiction. But it may go no further than is necessary for that purpose; it may not legislate with respect to the court itself…(83) The result is that, so long as they are in fact courts, Ch III is unconcerned with whether they comply with the requirements of Ch III for courts created by or under that chapter.
This meant that the fact that State courts can exercise non-judicial functions of an executive or legislative nature precluded the arguments being put by the appellants and it was irrelevant that the Supreme Court of New South Wales was exercising federal jurisdiction. [2.540] Brennan CJ upheld the validity of the legislation on similar grounds. He stated (at
66–67) that: [2.540]
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no functions that are not judicial can be conferred by the Commonwealth Parliament on a State court and thus the separation of State courts from the Legislative and the Executive branches of the Commonwealth Government is secured. But that separation does not purport to effect a separation of the courts of a State or Territory from the legislature or executive of the State or Territory. Nor does the Constitution purport to preclude State Parliaments from conferring a non-judicial power on a State court. It would be surprising if it did. Such a provision would have destroyed the State laws investing mining warden’s courts, licensing courts and planning courts – to take only some instances – with extensive administrative powers.
In rejecting the arguments based on the “autochthonous expedient” in the Commonwealth Constitution (s 77(iii)) his Honour stated (at 67) that: [i]t has been accepted constitutional doctrine that, when the Commonwealth invests the judicial power of the Commonwealth in a State court, it must take that court constituted and organised as it is from time to time. The autochthonous expedient contained in Ch III providing for the vesting of federal jurisdiction in State courts left to the Commonwealth Parliament the selection of the courts in which federal jurisdiction should be invested. The submission that a State court cannot be a repository of both State non-judicial power and federal judicial power if the exercise of the former would be incompatible with the exercise of the latter attributes to Ch III a novel operation. On one approach Ch III would limit the power of the Parliament of a State to invest the courts of the State with incompatible non-judicial powers. On another approach, Ch III would limit the power of the federal Parliament to invest some State courts with federal jurisdiction. And on a third approach, the investing by the Commonwealth Parliament of federal jurisdiction in a State court would preclude the State Parliament from investing an incompatible non-judicial power in that State court. In my opinion, Ch III does not operate in any of those ways.
He added (at 68): [o]f course, novelty is not necessarily a badge of error but a suggestion that the power to invest State courts with federal judicial power might be limited or that the power of a State to invest the State’s courts with non-judicial power might be limited would surely have provoked debate in the Constitutional Conventions. Yet they are as silent on the subject as the law reports. There is no textual or structural foundation for the submission.
[2.550]
1.
2.
3.
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How compelling is the argument presented in the reasons of Brennan CJ and Dawson J that the Commonwealth must take as it finds them the State courts in which it vests federal jurisdiction pursuant to s 77(iii) of the Commonwealth Constitution? What was their attitude to the majority notion that State courts are an essential part of an integrated Australian judicial system? How did the majority accommodate the principle that the Commonwealth must take the State courts as it finds them? The dissenting justices took the view that the Constitution itself accepted the existence of State courts which did not necessarily satisfy the requirements of Ch III and clearly contemplated that federal jurisdiction might be vested in a “court” which did not necessarily meet those requirements. The only clear requirement of the Constitution was that it be a “court”. This view was reinforced by the argument that the Constitution did not compel the Commonwealth to vest federal jurisdiction in State courts. Do you agree with Brennan CJ that there is “no textual or structural foundation” for the majority view in Kable? Does the Kable principle apply (a) only to State Supreme Courts; (b) to all State courts which have been invested with federal jurisdiction; or (c) to all State Courts which could be invested with federal jurisdiction? [2.550]
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The Kable principle has been invoked in a number of cases, as mentioned. However, rather than expanding the content of the principle, the trend initially was one of avoiding an expansive application of it.
Fardon v Attorney-General (Qld) [2.560] Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 648–658, 595–602 (some footnotes omitted) [Fardon challenged the constitutional validity of Queensland legislation which purported to authorise the Supreme Court of Queensland to order that a prisoner be detained in custody if it was satisfied that there were reasonable grounds for believing that the prisoner was a serious danger to the community. In the High Court, a majority, Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ, Kirby J dissenting, held the legislation to be valid and that it did not breach the Kable principle.] Callinan and Heydon JJ: 648 [199] The question raised by this appeal is whether ss 8 and 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act) infringe Ch III of the Commonwealth Constitution by vesting in the Supreme Court of Queensland functions that are incompatible with the exercise by that court of the judicial power of the Commonwealth contrary to the principles expounded by this court in Kable v DPP (NSW) (1996) 189 CLR 51. Facts and previous proceedings [200] On 30 June 1989 the appellant was convicted of rape, sodomy and assault occasioning bodily harm. He was sentenced to a term of imprisonment of 14 years expiring on or about 30 June 2003. The Act commenced operation on 6 June 2003. On 17 June 2003, the respondent filed an application in the Supreme Court of Queensland under s 5 of the Act for an order that the appellant be detained for an indefinite period pursuant to s 13 of the Act. On 649 27 June 2003, the Supreme Court (Muir J) made orders pursuant to s 8(2)(b) of the Act for the interim detention of the appellant, pending a psychiatric assessment. The appellant challenged the Act on the basis that its provisions were incompatible with Ch III of the Constitution. [203] On 9 July 2003, Muir J rejected the constitutional challenge to s 8 of the Act (Attorney-General (Qld) v Fardon [2003] QSC 200. The appellant had argued that s 8 of the Act, by conferring on the Supreme Court the power to make an interim preventative detention order, infringed Ch III of the Constitution by vesting in the Supreme Court functions incompatible with the court’s function as a repository of judicial power of the Commonwealth: that the Act was relevantly the same in substance and effect as the legislation which this court struck down in Kable. His Honour was of the opinion however that Kable was distinguishable: contrary to the appellant’s argument, there were “substantial differences” between the provisions of the Act and the legislation in Kable. His Honour said this (Attorney-General (Qld) v Fardon [2003] QSC 200 at [78]): “In particular, the Act, unlike the Kable legislation, is not directed towards securing the continued detention of one person. The Act has general application, rules of evidence apply, the Attorney-General has the onus of proof ‘to a high degree of probability’ in respect of orders made under s 13 and the court has a discretion as to whether to make one of the orders specified in s 13(5) or no order at all. All continuing detention or supervision orders must be accompanied by detailed reasons and are subject to rights of appeal.” [204] On 23 September 2003, the Court of Appeal (de Jersey CJ and Williams JA, McMurdo P dissenting) affirmed the decision of Muir J. The majority found that the Act conferred genuine discretionary power on the Supreme Court and infringed no principle for which Kable stands. (Attorney-General (Qld) v Fardon [2003] QCA 416.) [205] Between 27 and 30 October 2003, the court (White J) heard the respondent’s application for an order that the appellant be detained in prison for an indefinite term pursuant to s 13 of the Act. Her Honour had before her not only the reports by two psychiatrists ordered by the court, but also reports by two other such practitioners. Provision was also made for the appellant to be present by video link to the hearing. He availed himself of this opportunity by giving oral evidence by this means. The evidence before her Honour was that the appellant had spent almost 23 years in prison since October 1980. His most serious crimes were sexual offences. Two involved children. The offences were accompanied by marked violence. There was also evidence that the appellant had claimed that he had committed some offences in order that he would be sent to prison where “he was comfortable”. On 6 November 2003, [2.560]
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Fardon v Attorney-General (Qld) cont. her Honour held that there was a serious risk that the appellant would commit a serious sexual offence if 650 he were to be released from custody, and ordered that he be detained for an indefinite term, for control, care and treatment. … The scheme of the Act [209] The purpose of the Act is to enable “the Supreme Court to order the post-sentence preventative detention of sex offenders who pose a serious danger to the community” (Queensland, Legislative Assembly, Parliamentary Debates (Hansard), 3 June 2003, p 2484). [210] In outline, the Act applies to persons imprisoned for a “serious sexual offence” which is defined in the schedule to the Act as “an offence of a sexual nature, whether committed in Queensland or outside Queensland involving violence or against children”. The Attorney-General may apply to the court for orders requiring such a person to submit to psychiatric assessment (s 5). Upon an application, the court may order that the person undergo a risk assessment by two qualified psychiatrists, who must prepare an assessment of the risk of the person re-offending (s 8). If the court is satisfied that the person would, if released, pose a serious danger to the community, it is empowered to order the prisoner’s detention (a “continuing detention order”) or supervision subject to conditions imposed by the court (a “supervision order”) (s 13). In determining which order to make, the 651 paramount consideration is to be the need to protect the community (s 13(6). A continuing detention order is to remain in effect until revoked by order of the court. In the meantime, the person subject to the order is to remain a prisoner (s 14). Supervision orders are to be made for a definite term (s 15). [211] Section 8 of the Act provides: (1) Preliminary hearing (a) If the court is satisfied there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a division 3 order, the court must set a date for the hearing of the application for a division 3 order. (b) If the court is satisfied as required under subsection (1), it may make either or both of the following orders: (1) an order that the prisoner undergo examinations by 2 psychiatrists named by the court who are to prepare independent reports (a “risk assessment order”); (2) if the court is satisfied that the prisoner may be released from custody before the application is finally decided, an order that the prisoner be detained in custody for the period stated in the order (an “interim detention order”). (c) If the prisoner is ordered to be detained in custody after the prisoner’s period of imprisonment ends, the person remains a prisoner, including for all purposes in relation to an application under this Act. (d) If the court sets a date for the hearing of the application for a division 3 order but the prisoner is released from custody before the application is finally decided, for all purposes in relation to deciding the application this Act continues to apply to the person as if the person were a prisoner. Section 13 of the Act provides: 13 Division 3 orders (a) This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a “serious danger to the community”). (b) A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence: (a) if the prisoner is released from custody; or (b) if the prisoner is released from custody without a supervision order being made. (3) On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied: (a) by acceptable, cogent evidence; and 144
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Fardon v Attorney-General (Qld) cont. (b) to a high degree of probability; that the evidence is of sufficient weight to justify the decision. 652 (4) In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following: (a) the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists; (b) any other medical, psychiatric, psychological or other assessment relating to the prisoner; (c) information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future; (d) whether or not there is any pattern of offending behaviour on the part of the prisoner; (e) efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs; (f) whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner; (g) the prisoner’s antecedents and criminal history; (h) the risk that the prisoner will commit another serious sexual offence if released into the community; (i) the need to protect members of the community from that risk; (j) any other relevant matter. (5) If the court is satisfied as required under subsection (1), the court may order: 1. that the prisoner be detained in custody for an indefinite term for control, care or treatment (“continuing detention order”); or 2. that the prisoner be released from custody subject to the conditions it considers appropriate that are stated in the order (“supervision order”). (6) In deciding whether to make an order under subsection (5)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community. (7) The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1). The decision in Kable. 653 [213] In Kable, the justices in the majority used differing formulations when stating the principles, but all of them referred to constitutional integrity, or public confidence, or both. With respect to the powers purportedly conferred by the Community Protection Act 1994, Toohey J held that they were incompatible with the exercise of the judicial power of the Commonwealth because they were of such a nature that public confidence in the integrity of the judiciary as an institution was diminished (at 98). Gaudron J said that they compromised the integrity of the judicial system brought into existence by Ch III of the Constitution, which depends on State courts acting in accordance with the judicial process and on the maintenance of public confidence in that process (at 107). The opinion of McHugh J was that the impugned conferral of non-judicial power or other incidents of the court should not be such as could lead an ordinary reasonable member of the public to conclude that the court was not independent of the executive government of the State, or that the court as an institution was not free of governmental influence in administering the judicial functions invested in the court, and compromised the institutional impartiality of the court (ay 117). Gummow J was of the view that the exercise of statutory powers jeopardized the integrity of the court, and sapped the appearance of institutional impartiality, and the maintenance of public confidence in the judiciary (at 133). Detention under the Act is for non-punitive purposes. [214] It is accepted that in some circumstances, it is valid to confer powers on both non-judicial and judicial bodies to authorise detention, for example, in cases of infectious disease or mental illness. These categories are not closed. In this respect, the second object of the Act is relevant (s 3(b)): “[T]o provide continuing control, care or treatment of a particular [2.560]
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Fardon v Attorney-General (Qld) cont. class of prisoner to facilitate their rehabilitation.” To the extent that the Act in fact furthers this object, a court applying it would be undertaking, without compromise to its judicial integrity, a conventional adjudicative process. [215] To determine whether detention is punitive, the question, whether the impugned law provides for detention as punishment or for some legitimate non-punitive purpose, has to be answered. As Gummow J said in Kruger v Commonwealth ((1997) 190 CLR 1 at 162): “The question whether a power to detain persons or to take them into custody is to be characterised as punitive in nature, so as to 654 attract the operation of Ch III, depends upon whether those activities are reasonably capable of being seen as necessary for a legitimate non-punitive objective. The categories of non-punitive, involuntary detention are not closed.” [216] Several features of the Act indicate that the purpose of the detention in question is to protect the community and not to punish. Its objects are stated to be to ensure protection of the community and to facilitate rehabilitation (s 3(a)). The focus of the inquiry in determining whether to make an order under ss 8 or 13 is on whether the prisoner is a serious danger, or an unacceptable risk to the community. Annual reviews of continuing detention orders are obligatory (s 27). [217] In our opinion, the Act, as the respondent submits, is intended to protect the community from predatory sexual offenders. It is a protective law authorizing involuntary detention in the interests of public safety. Its proper characterization is as a protective rather than a punitive enactment. It is not unique in this respect. Other categories of non-punitive, involuntary detention include: by reason of mental infirmity; public safety concerning chemical, biological and radiological emergencies; migration; indefinite sentencing; contagious diseases and drug treatment. This is not to say however that this court should not be vigilant in ensuring that the occasions for non-punitive detention are not abused or extended for illegitimate purposes. [218] One further submission of the appellant requires consideration. He contended that the Act was a Bill of Pains and Penalties, that is, a “legislative enactment which inflicts punishment without a judicial trial” (Polyukhovich v Commonwealth (1991) 172 CLR 501 at 535–536, 646, 685–686, 719–721). … 655 [219] The Act here is not such a bill. Its purpose is not to punish people for their past conduct. It is a protective measure and provides, in any event, for many of the safeguards of a judicial trial. It is necessary to keep in mind the issues with which Kable was concerned and the true nature of the decision which the court made there. Despite the differing formulations of the justices in the majority, the primary issue remained whether the process which the legislation required the Supreme Court of New South Wales to undertake, was so far removed from a truly judicial process that the court, by undertaking it, would be so tainted or polluted that it would no longer be a suitable receptacle for the exercise of federal judicial power under Ch III of the Constitution. This court did not in Kable hold however that in all respects, a Supreme Court of a State was the same, and subject to the same constraints, as a federal court established under Ch III of the Constitution. Federal judicial power is not identical with State judicial power. Although the test, whether, if the State enactment were a federal enactment, it would infringe Ch III of the Constitution, is a useful one, it is not the exclusive test of validity. It is possible that a State legislative conferral of power which, if it were federal legislation, would infringe Ch III of the Constitution, may nonetheless be valid. 656 Not everything by way of decision-making denied to a federal judge is denied to a judge of a State. So long as the State court, in applying legislation, is not called upon to act and decide, effectively as the alter ego of the legislature or the executive, so long as it is to undertake a genuine adjudicative process and so long as its integrity and independence as a court are not compromised, then the legislation in question will not infringe Ch III of the Constitution. [220] The forms and procedures prescribed by the Act bear the hallmarks of traditional judicial forms and procedure. Section 5(3) raises a formidable threshold for the Attorney-General as applicant to surmount: a need at a preliminary hearing to satisfy the court that “there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of [an] … order”. This is a considerably higher threshold than a prosecutor has to surmount at a committal, effectively the establishment of a prima facie case only. [221] The Act requires that the prisoner will be provided with full disclosure and details of the allegations and all other relevant material filed by the Attorney-General against him (ss 5(5), 12 and 25) and provides for the filing of material by him (s 6). The effect of s 7 is to apply the rules of evidence except with respect to a preliminary hearing where the rules may be relaxed to accord with those generally obtaining in urgent interlocutory applications. The prisoner has 146
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Fardon v Attorney-General (Qld) cont. full rights to cross-examine and to adduce evidence (s 45). The court may decide some relatively less important matters only on the papers (s 44). [222] Should the court reach the requisite degree of satisfaction at a preliminary hearing, the application is then to proceed to a final hearing (s 8(1)) and the court has a discretion to order two independent psychiatric examinations and reports. [223] These points should be made about the section which empowers the court to make an order for the detention of a prisoner. First, the prisoner’s release must be shown to present an unacceptable risk of the commission by him of a serious sexual offence. In so deciding, the court may only act upon “acceptable, cogent evidence” (s 13(3)(a)) and the degree of satisfaction that it must reach is one of “a high degree of probability” (s 13)(3)(b)). [224] Section 13(4) provides another safeguard by requiring the court to have regard to these relevant and important matters: the psychiatrists’ reports; the cooperation or otherwise of the prisoner with the psychiatrists; other relevant reports; the prisoner’s propensities; any pattern of offending by the prisoner; the prisoner’s participation in rehabilitative programmes and the results of them; the prisoner’s efforts to address the cause of his behaviour; the prisoner’s antecedents and criminal history; “the risk that the prisoner will commit another serious sexual offence if released into the community”; (and the need to protect the community against that risk and any other relevant matter) (s 13(4)(h)). 657 [225] The yardstick to which the court is to have regard, of an unacceptable risk to the community, relevantly a risk established according to a high degree of probability, that the prisoner will commit another sexual offence if released, established on and by acceptable and cogent evidence, adduced according to the rules of evidence, is one which courts historically have had regard to in many areas of the law. The process of reaching a predictive conclusion about risk is not a novel one. … [226] Sentencing itself in part at least may be a predictive exercise requiring a court on occasions to ask itself for how long an offender should be imprisoned to enable him to be rehabilitated, or to ensure that he will no longer pose a threat to the community. The predictive exercise of an assessment of damages for future losses is also a daily occurrence in the courts. [227] Even if the court concludes under s 13(1) of the Act that the prisoner is a serious danger to the community, it still has a discretion under s 13(5) as to the way in which the application should be disposed of. It may, for example, order that the prisoner be released from custody subject to conditions. Section 16 prescribes the contents of such an order. [228] Section 13(6) of the Act uses the expression “paramount consideration” … 658 [230] Another judicial hallmark of the process for which the Act provides is the requirement that the court give reasons for its decision (s 17). [231] The purpose of Pt 3 of the Act is to ensure that a prisoner’s continual detention be reviewed annually. Sections 26 and 27 require the Attorney-General to ensure that this purpose is effected. In exceptional circumstances, a prisoner may himself seek leave to apply for a review (s 28). The balance of Pt 3 contains provisions of similar kind to those governing the applications for the original order and ensures fair process. And again, before the court may affirm the order for detention it must be satisfied to a high degree of probability. [232] Part 4 of the Act confers a right of appeal upon both the Attorney-General and the prisoner. The rights may be exercised without the necessity to obtain prior leave and are available in respect of any decision under the Act (s 31). [233] It can be seen therefore that careful attention has been paid in the drafting of the Act to a need for full and proper legal process in the making of decisions under it. It is an Act of general application, unlike the ad hominem nature of the legislation in Kable. Conclusion [234] The Act does not offend against the principle for which Kable stands. It is designed to achieve a legitimate, preventative, non-punitive purpose in the public interest, and to achieve it with due regard to a full and conventional judicial process, including unfettered appellate review. In undertaking that process, and in making a decision as part of it, the Supreme Court did not exercise power inconsistent with its function as a court which exercises judicial power pursuant to Ch III of the Constitution. The appeal should be dismissed. McHugh J: 595 [32] The majority justices in [Kable] held that, because State courts can be invested with federal jurisdiction, State legislation cannot confer jurisdiction or powers on State courts that compromises their integrity as courts exercising federal jurisdiction. … [T]he legislation that the court declared invalid in Kable was extraordinary … 596 [33] It was … ad hominem legislation that, although dressed up as a Supreme Court legal proceeding, had been enacted for the purpose of ensuring that [2.560]
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Fardon v Attorney-General (Qld) cont. Kable remained in prison when his sentence expired. Indeed, I thought that it made the Supreme Court (Kable ((1996) 189 CLR 51 at 122): “the instrument of a legislative plan, initiated by the executive government, to imprison the appellant by a process that is far removed from the judicial process that is ordinarily invoked when a court is asked to imprison a person.” As Gaudron J pointed out (Kable (1996) 189 CLR 51 at 106): “The proceedings which the Act contemplates are not proceedings otherwise known to the law. And except to the extent that the Act attempts to dress them up as legal proceedings (eg, by referring to the applicant as ‘the defendant’, by specifying that the proceedings are civil proceedings and by suggesting that the rules of evidence apply), they do not in any way partake of the nature of legal proceedings. They do not involve the resolution of a dispute between contesting parties as to their respective legal rights and obligations. And as already indicated, the applicant is not to be put on trial for any offence against the criminal law. Instead, the proceedings are directed to the making of a guess – perhaps an educated guess, but a guess nonetheless – whether, on the balance of probabilities, the appellant will commit an offence of the kind specified in the definition of ‘serious act of violence’. And, at least in some circumstances, the Act directs that that guess be made having regard to material which would not be admissible as evidence in legal proceedings.” [34] …..The differences between the legislation considered in Kable and the Act are substantial. First, the latter Act is not directed at a particular person but at all persons who are serving a period of imprisonment for “a serious sexual offence” (ss 2, 5, 13). Second, when determining an application under the Act, the Supreme Court is exercising judicial power. It has to determine whether, on application by the Attorney-General, the court is satisfied that “there is an unacceptable risk that the prisoner will commit a serious sexual offence” if the prisoner is released from custody (s 13(2)). That issue must be determined in accordance with the rules of evidence (s 13(3)). It is true that in form the Act does not require the court to determine “an actual or potential controversy as to existing rights or obligations” (R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 375 per Kitto J). But that does not mean that the court is not 597 exercising judicial power. The exercise of judicial power often involves the making of orders upon determining that a particular fact or status exists. It does so, for example, in the cases of matrimonial causes, bankruptcy, probate and the winding up of companies. The powers exercised and orders made by the court under this Act are of the same jurisprudential character as in those cases. The court must first determine whether there is “an unacceptable risk that the prisoner will commit a serious sexual offence”. That is a standard sufficiently precise to engage the exercise of State judicial power (M v M (1988) 166 CLR 69 at 78). Indeed, it would seem sufficiently precise to constitute a “matter” that could be conferred on or invested in a court exercising federal jurisdiction. Third, if the court finds that the Attorney-General has satisfied that standard, the court has a discretion as to whether it should make an order under the Act and, if so, what kind of order (s 13(5)). The court is not required or expected to make an order for continued detention in custody. The court has three discretionary choices open to it if it finds that the Attorney-General has satisfied the “unacceptable risk” standard. It may make a “continuing detention order” (s 13(5)(a)), a “supervision order” (s 13(5)(b)) or no order. Fourth, the court must be satisfied of the “unacceptable risk” standard “to a high degree of probability” (s 13(3)(b)). The AttorneyGeneral bears the onus of proof. Fifth, the Act is not designed to punish the prisoner. It is designed to protect the community against certain classes of convicted sexual offenders who have not been rehabilitated during their period of imprisonment. … Sixth, nothing in the Act or the surrounding circumstances suggests that the jurisdiction conferred is a disguised substitute for an ordinary legislative or executive function. Nor is there anything in the Act or those circumstances that might lead to the perception that the Supreme Court, in exercising its jurisdiction under the Act, is acting in conjunction with, and not independently of, the Queensland legislature or executive government.
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Fardon v Attorney-General (Qld) cont. Does the Act compromise the institutional integrity of the Supreme Court of Queensland? 598 [35] With great respect to those who hold the contrary view, nothing in the Act or the surrounding circumstances gives any ground for supposing that the jurisdiction conferred by the Act compromises the institutional integrity of the Supreme Court of Queensland. 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. Nothing in the Act might lead a reasonable person to conclude that the Supreme Court of Queensland, when exercising federal jurisdiction, might not be an impartial tribunal free of governmental or legislative influence or might not be capable of administering invested federal jurisdiction according to law. [36] It is a serious constitutional mistake to think that either Kable or the Constitution assimilates State courts or their judges and officers with federal courts and their judges and officers. The Constitution provides for an integrated court system. But that does not mean that what federal courts cannot do, State courts cannot do. Australia is governed by a federal, not a unitary, system of government. As Knox CJ, Rich and Dixon JJ pointed out in Le Mesurier v Connor ((1929) 42 CLR 481 at 495–496): The Parliament may create Federal Courts, and over them and their organization it has ample power. But the Courts of a State are the judicial organs of another Government. They are created by State law; their existence depends upon State law; that law, primarily at least, determines the constitution of the Court itself, and the organization through which its powers and jurisdictions are exercised. When a Court has been erected, its jurisdiction, whether in respect of place, person or subject matter, may be enlarged or restricted. The extent of the jurisdiction of a State Court would naturally be determined by State Law. Application of Ch III to the States [37] The doctrine of the separation of powers, derived from Chs I, II and III of the Constitution, does not apply as such in any of the States, including Queensland. Chapter III of the Constitution, which provides for the exercise of federal judicial power, invalidates State legislation that purports to invest jurisdiction and powers in State courts only in very limited circumstances. One circumstance is State legislation that attempts to alter or interfere with the working of the federal judicial system set up by Ch III (Commonwealth v Queensland (1975) 134 CLR 298 at 314–15 at 363–364 per Gibbs J, Barwick CJ, Stephen and Mason JJ agreeing). Another is the circumstance dealt with in Kable: legislation that purports to confer jurisdiction on State courts but compromises the institutional integrity of State courts and affects their capacity to exercise federal jurisdiction invested under Ch III 599 impartially and competently. Subject to that proviso, when the Federal Parliament invests State courts with federal jurisdiction, it must take them as it finds them. [38] Cases in this court have often demonstrated that, subject to the Kable principle, the Parliament of the Commonwealth must take State courts as it finds them … [His Honour proceeded to set out a number of authorities and factual examples in this regard and continued.] 600 [40] …[A]s Gaudron J pointed out in Kable ((1996) 189 CLR 51 at 106): “[T]here is nothing to prevent the Parliaments of the States from conferring powers on their courts which are wholly non-judicial, so long as they are not repugnant to or inconsistent with the exercise by those courts of the judicial power of the Commonwealth.” Nor is there anything in the Constitution that would preclude the States from legislating so as to empower non-judicial tribunals to determine issues of criminal guilt or to sentence offenders for breaches of the law. The Queensland Parliament has power to make laws for “the peace welfare and good government” of that State (Constitution Act 1867 (Qld), s 2)…Those words give the Queensland Parliament a power as plenary as that of the Imperial Parliament ((1996) 189 CLR 51 at 106). They would authorise the Queensland Parliament, if it wished, to abolish criminal juries and require breaches of the criminal law to be determined by non-judicial tribunals. The content of a State’s legal system and the structure, organisation and jurisdiction of its courts are matters for each State. If a State legislates for a tribunal of accountants to hear and determine “white collar” crimes or for a tribunal of psychiatrists to hear and determine cases involving mental health issues, nothing in Ch III of the Constitution prevents the State from doing so. Likewise, nothing in Ch III prevents a State, if it wishes, from implementing an inquisitorial, rather than an adversarial, system of justice for State courts. The powers conferred on the Queensland Parliament by s 2 of the Constitution Act 1867 (Qld) are, of course, preserved subject to the Commonwealth Constitution. However, no process of legal or [2.560]
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Fardon v Attorney-General (Qld) cont. logical reasoning leads to the conclusion that, because the Federal Parliament may invest State courts with federal jurisdiction, the States cannot legislate for the determination of issues of criminal guilt or sentencing by non-judicial tribunals. [41] The bare fact that particular State legislation invests a State court with powers that are or jurisdiction that is repugnant to the traditional 601 judicial process will seldom, if ever, compromise the institutional integrity of that court to the extent that it affects that court’s capacity to exercise federal jurisdiction impartially and according to federal law. State legislation may alter the burden of proof and the rules of evidence and procedure in civil and criminal courts in ways that are repugnant to the traditional judicial process without compromising the institutional integrity of the courts that must administer that legislation. State legislation may require State courts to exercise powers and take away substantive rights on grounds that judges think are foolish, unwise or even patently unjust. Nevertheless, it does not follow that, because State legislation requires State courts to make orders that could not be countenanced in a society with a Bill of Rights, the institutional integrity of those courts is compromised. [42] The pejorative phrase – “repugnant to the judicial process” – is not the constitutional criterion. In this area of constitutional discourse, it is best avoided, for it invites error. That which judges regard as repugnant to the judicial process may be no more than a reflection of their personal dislike of legislation that they think unjustifiably affects long recognised rights, freedoms and judicial procedures. State legislation that requires State courts to act in ways inconsistent with the traditional judicial process will be invalid only when it leads to the conclusion that reasonable persons might think that the legislation compromises the capacity of State courts to administer invested federal jurisdiction impartially according to federal law. That conclusion is likely to be reached only when other provisions of the legislation or the surrounding circumstances as well as the departure from the traditional judicial process indicate that the State court might not be an impartial tribunal that is independent of the legislative and the executive arms of government. Conclusions [43] In my opinion, Kable does not govern this case. Kable is a decision of very limited application. That is not surprising. … [T]he background to and provisions of the Community Protection Act 1994 pointed to a legislative scheme enacted solely for the purpose of ensuring that Mr Kable, alone of all people in New South Wales, would be kept in prison after his term of imprisonment had expired. The terms, background and parliamentary history of the legislation gave rise to the perception that the Supreme Court of that State might be acting in conjunction with the New South Wales Parliament and the executive government to keep Mr Kable in prison. The combination of circumstances which gave rise to the perception in Kable is unlikely to be repeated. The Kable principle, if required to be applied in future, is more likely to be applied in respect of the terms, conditions and manner of appointment 602 of State judges or in circumstances where State judges are used to carry out non-judicial functions, rather than in the context of Kable-type legislation. [44] In this case, it is impossible to conclude that the Queensland Parliament or the executive government of that State might be working in conjunction with the Supreme Court to continue the imprisonment of the appellant. Nor is it possible to conclude that the Act gives rise to a perception that the Supreme Court of Queensland might not render invested federal jurisdiction impartially in accordance with federal law. The Act is not directed to a particular person but to a class of persons that the parliament might reasonably think is a danger to the community. … Far from the Act giving rise to a perception that the Supreme Court of Queensland is acting in conjunction with the Queensland Parliament or the executive government, it shows the opposite. It requires the court to adjudicate on the claim by the executive that a prisoner is “a serious danger to the community” in accordance with the rules of evidence and “to a high degree of probability”. Even if the court is satisfied that there is an unacceptable risk that the prisoner will commit a serious sexual offence if released from custody, the court is not required to order the prisoner’s continued detention or supervised release. Furthermore, the court must give detailed reasons for its order, (Section 17) reasons that are inevitably subject to public scrutiny. It is impossible to hold, therefore, that the Queensland Parliament and the executive government intend that the appellant’s imprisonment should continue and that they have simply used the Act “to cloak their work in the neutral colors of judicial action” (Mistretta v United States 488 US 361 (1989) at 407). On the contrary, the irresistible conclusion is that the Queensland Parliament has 150
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Fardon v Attorney-General (Qld) cont. invested the Supreme Court of Queensland with this jurisdiction because that court, rather than the parliament, the executive government or a tribunal such as a parole board or a panel of psychiatrists, is the institution best fitted to exercise the jurisdiction.
Notes&Questions
[2.570]
(1)
Although a very high threshold is set for the invalidation of State legislation for breach of the Kable principle by the majority justices, the precise scope of the principle remains somewhat uncertain. Its very limited application belies the apparent breadth of its definition. Fardon confirmed that the principle is based on the premise that the Constitution establishes an integrated Australian court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts. Accordingly, any State law will be invalid which confers on a State court, vested with federal jurisdiction, a function which so substantially impairs its institutional integrity as to be incompatible with that court’s role as a repository of federal jurisdiction. In the determination of incompatibility in the Kable context, it is apparent from the majority reasoning that a fundamental criterion appears to be the degree to which the law impairs the institutional independence of the State court from parliament and the executive. McHugh J in particular placed great emphasis on this criterion. Although he did not expressly limit the Kable principle to that more precise limitation, there are aspects of his judgment which may indicate that this is the principal, if not exclusive, consideration. For example, (at 601 [42]) he stated that: State legislation that requires State courts to act in ways inconsistent with the traditional judicial process will be invalid only when it leads to the conclusion that reasonable persons might think that the legislation compromises the capacity of State courts to administer invested federal jurisdiction impartially according to federal law. That conclusion is likely to be reached only when other provisions of the legislation or the surrounding circumstances as well as the departure from the traditional judicial process indicate that the State court might not be an impartial tribunal that is independent of the legislative and the executive arms of government. (Emphasis in original.)
Callinan and Heydon JJ likewise commence with the general definition, but also emphasise the critical question of independence. They stated (at 655 [219]): [T]he primary issue remained whether the process which the legislation required the Supreme Court of New South Wales to undertake, was so far removed from a truly judicial process that the court, by undertaking it, would be so tainted or polluted that it would no longer be a suitable receptacle for the exercise of federal judicial power under Ch III of the Constitution. (Emphasis added)
They proceeded to set out a number of more precise principles in this regard, indicating that the issue of independence from the executive and parliament was only one, albeit very important, issue (at 656 [219]) So long as the State court, in applying legislation, is not called upon to act and decide, effectively as the alter ego of the legislature or the executive, so long as it is to undertake a genuine adjudicative process and so long as its integrity and independence as a court are not compromised, then the legislation in question will not infringe Ch III of the Constitution.
Gummow J also took this approach (at 617–618 [102]): [2.570]
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[A]lthough in some of the cases (see, eg, North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 78 ALJR 977 at 990–991 [65]) considering the application of Kable, institutional integrity and public confidence perhaps may have appeared as distinct and separately sufficient considerations, that is not so. Perception as to the undermining of public confidence is an indicator, but not the touchstone, of invalidity; the touchstone concerns institutional integrity.
See also comment as to scope of “institutional integrity” by Gummow, Hayne and Crennan JJ in Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 (at 76 [63]–[64]) that: the relevant principle is one which hinges upon maintenance of the defining characteristics of a “court”, or in cases concerning a Supreme Court, the defining characteristics of a State Supreme Court. It is to those characteristics that the reference to “institutional integrity” alludes. That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies. It is neither possible nor profitable to attempt to make some single all-embracing statement of the defining characteristics of a court. The cases concerning identification of judicial power reveal why that is so. An important element, however, in the institutional characteristics of courts in Australia is their capacity to administer the common law system of adversarial trial. Essential to that system is the conduct of trial by an independent and impartial tribunal.
(2)
If the “touchstone” of the Kable principle is not “public confidence” but “institutional integrity”, to what extent do the majority justices provide more specific guidance as to when the principle will be breached? Are the three criteria enunciated by Callinan and Heydon JJ sufficient to cover all circumstances?
(3)
It is apparent that McHugh J in particular was concerned to ensure that the Kable principle was not misunderstood as a broad principle capable of expansive application. Can it be said that, following Fardon, the Kable principle will only be breached in extreme cases? Note in particular the catalogue of possible legislative measures which were outlined in the judgment of McHugh J which would not breach the principle. See (2004) 223 CLR 575 at 600–601[40]–[42].
(4)
On what grounds did the majority justices distinguish the facts of Kable and how critical was that distinction to the outcome of this case?
(5)
How significant was the consideration in the reasoning of some of the justices that the continued detention provided for by the Act was not punitive in nature but akin to other permissible forms of executive detention?
(6)
Kirby J, in dissent, rejected what he regarded as a narrow, indeed unduly restrictive, application of the Kable principle by the majority justices. He stated that “[w]hat was seen at first to be an important assurance that the State judiciary in Australia (certainly the named Supreme Courts) enjoyed many of the constitutional protections of the federal judiciary, has repeatedly been revealed as a chimera” (at 626 [134]). He held (at 628 [141]) that Kable “forbids attempts of State Parliaments to impose on courts, notably Supreme Courts, functions that would oblige them to act in relation to a person in a manner which is inconsistent with traditional judicial process.” (Kable at 98). In his Honour’s view, this means that State legislatures are prevented from imposing on such courts jurisdiction with respect to “proceedings [not] otherwise known to the law”, that is, those not partaking “of the nature of legal proceedings” Kable at 106). It proscribes parliamentary endeavours to “compromise the institutional impartiality” of
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a State Supreme Court Kable at 121). It forbids the conferral upon State courts of functions “repugnant to judicial process” Kable at 134). His Honour favoured a more expansive approach (at 630 [144]): (5) [I]f it is shown that the jurisdiction and powers conferred on a State court could not be conferred on a federal court, the party complaining that the State law imposes functions on the State judiciary, inconsistent with (“repugnant to”) Ch III of the federal Constitution, is well advanced in making good the Kable argument. This is because of the integrated character of the Australian judiciary, both in terms of Ch III and in fact. If one part of the nation’s judiciary could not lawfully perform a specified function, there is a heavy burden of persuasion that another could do so. (Emphasis in original.)
Kirby J then proceeded to identify the five features of the legislation in Fardon which rendered it a breach of the Kable principle. These factors, taken in combination, imposed upon the State Supreme Court judges functions “repugnant” to Ch III of the Commonwealth Constitution because they were authorised to order (at 631–632 [148]):
(7)
(8)
(a)
the civil commitment of a person to a prison established for the reception of prisoners, properly so-called;
(b)
the detention of that person in prison, in the absence of a new crime, trial and conviction and on the basis of the assessment of future re-offending, not past offences;
(c)
the imprisonment of the person in circumstances that do not conform to established principles relating to civil judicial commitment for the protection of the public, as on a ground of mental illness;
(d)
the imposition of additional judicial punishment on a class of prisoners selected by the legislature in a manner inconsistent with the character of a court and with the judicial power exercised by it; and
(e)
the infliction of double punishment on a prisoner who has completed a sentence judicially imposed by reference, amongst other things, to the criterion of that person’s past criminal conduct which is already the subject of final judicial orders that are (or shortly will be) spent at the time the second punishment begins.
To what extent did Kirby J’s more expansive approach to Kable overcome the hurdles presented by the distinguishing features of the legislation considered in Fardon. In direct contrast to Kirby J, see McHugh J’s remarks at 600–601 in Fardon, extracted above. Another High Court decision which similarly limited the application of the Kable principle was the earlier-decided Baker v The Queen (2004) 223 CLR 513. The same majority as in Fardon, Kirby J dissenting, held the impugned legislation to be valid. The majority distinguished the provisions of the impugned legislation from those held invalid in Kable. The impugned provisions were contained in s 13A of the Sentencing Act 1989 (NSW) governing the conditions upon which persons sentenced to life imprisonment could apply for parole. Such a person could apply to the Supreme Court for the determination of a minimum sentence. Upon serving that term, an application for parole could be made. An application under this provision could only be made after eight years of the sentence had been served. In 1997, this section was amended to introduce a different regime for those prisoners, of which there only ten at the time, whose life sentence was imposed together with a recommendation by the sentencing court that they never be released. Such recommendations, it should be noted, had no [2.570]
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binding force at the time they were made. In the case of such prisoners, they could not apply for a minimum sentence until they had served 20 years of their sentence. When they did make an application, pursuant to s 13A(3A), it would be considered only if the Supreme Court was “satisfied that special reasons exist that justify making the determination.” It was argued by the appellant that by its imposition of a special regime for prisoners subject to non-release recommendations, the provision was in breach of the Kable principle. Because of the difficulty in establishing the existence of “special reasons”, the appellant argued that the Supreme Court’s process was being used merely as an instrument to secure the non-release of these ten prisoners, thus compromising its integrity and independence. This argument was rejected by the majority. The majority did not regard the fact that the Supreme Court was being required to distinguish between different classes of prisoners, or the fact that the impugned law impacted only on a small number of known prisoners, as warranting a different conclusion. The majority justices rejected the contention that the Supreme Court was being used by Parliament as an instrument in its aim to ensure the non-release of the prisoners. Only Kirby J agreed with this contention. (9)
It is clear that the Kable principle does not per se prevent State legislatures vesting State courts with non-judicial functions. It is also clear that the full panoply of principle emanating from Boilermakers’ and the separation of judicial power in Ch III applicable at the federal level, does not apply at State level.
(10)
It will have been noticed that the Kable principle is based on notions of incompatibility. This must not be confused with the incompatibility test relied upon in the application of the persona designata exception to Boilermakers’ discussed in Chapter 9 in relation to the non-judicial roles to which federal judges may be assigned.
(11)
The narrower reach of the Kable limitations – in comparison with the full protections afforded judicial power at federal level pursuant to Ch III – was highlighted by McHugh, Gummow, Hayne and Heydon JJ in Baker when they noted (at 534–535 [51]): If the State law in question confers jurisdiction of a nature which would meet the more stringent requirements for the exercise by the Supreme Court of judicial power under investment by federal law, there is no occasion to enter upon the question of whether the less stringent requirements of Kable are met. Counsel for the Attorney-General of the Commonwealth encapsulated the point in his submissions that, if a law satisfied the stricter tests required with respect to the judicial power of the Commonwealth, then the court did not have to go on to ask whether it satisfied the lesser hurdle presented by the reasoning in Kable.
(12)
(13)
Other cases illustrating a narrow approach to the Kable principle are Silbert v Director of Public Prosecutions (2004) 217 CLR 181 and North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146. The impugned legislation in both cases was held not to breach the Kable principle. For a good exploration of the principle in Kable and its subsequent application see Fiona Wheeler, “The Kable Doctrine and State Legislative Power Over State Courts” (2005) 20(2) Australasian Parliamentary Review 15. Here, Professor Wheeler also discusses the application of the Kable doctrine to the Territories where she notes at 23 that: While NAALAS v Bradley [(2004) 218 CLR 146] shows that Kable’s Case applies in the territories, the state and territory limitations are not necessarily identical in scope. The special status of the territories under the Australian Constitution – territories are subject to the general overriding power of the Commonwealth Parliament (s 122) and
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territory courts, unlike state courts, are not mentioned in the Constitution – means that the possibility of some differences in operation of the doctrine there cannot be excluded. (See Stephen McDonald, “Territory Courts and Federal Jurisdiction” (2005) 33 Federal Law Review 57, 90–92.) It seems unlikely, for example, that the Constitution guarantees the existence of a system of territory courts. The incompatibility limb of the Kable doctrine, by contrast, is likely to constrain state and territory legislative power to a similar extent.
For recent discussion of the application of the Kable principle to Territory courts see: Attorney-General (NT) v Emmerson (2014) 253 CLR 393; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 90 ALJR 38 [2.580] McHugh J in Fardon (at 601 [43]) expressed a view that the “combination of
circumstances which gave rise to the perception in Kable [that the Supreme Court was operating as an instrument of the executive] is unlikely to be repeated.” He added that the Kable principle, “if required to be applied in future, is more likely to be applied in respect of the terms, conditions and manner of appointment of State judges or in circumstances where State judges are used to carry out non-judicial functions, rather than in the context of Kable-type legislation.” His Honour’s observations were prescient. In Forge v Australian Securities and Investment Commission (2006) 228 CLR 45 the Kable principle was invoked to challenge the constitutional validity of s 37 of the Supreme Court Act 1970 (NSW) which provided for the appointment of acting judges of that Court. In particular, the appointment of Foster AJ was impugned, as was the validity of prior decisions and orders made by him. Section 37, it was argued, substantially impaired the institutional integrity of the Supreme Court and was incompatible with the Court’s role as a repository of federal jurisdiction. This was not a case about the conferral of an incompatible function on the Court. Rather, it related to its very constitution, structure and composition pursuant to the Act and whether this breached the Kable principle. If this argument succeeded, it would have constituted a considerable expansion of the Kable principle. In Forge, it was not the authority granted to appoint acting judges per se which was at issue. Rather, it was the absence of any defining limitation in relation to their appointment – as to numbers and the circumstances in which they may be appointed – which was constitutionally problematic. This may have afforded the State executive the opportunity to shift the balance of numbers in favour of acting judges on short term appointments, as opposed to permanent judges (with full security of tenure and salary). Given the more immediate control this might allow the Executive to appoint – and indeed not to reappoint such judges – with the heightened potential to tempt such acting judges to maintain favour with the executive when executing their duties, it was argued that this would undermine the independence of the Court. Accordingly, its institutional integrity would be compromised in breach of the Kable principle. By a majority of six to one (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ, Kirby J dissenting) the legislation was held not to breach the Kable principle. The integrity of the Supreme Court of New South Wales was not in any way affected by the number of acting judges appointed at the relevant time, the method of their selection and their qualifications. However, the majority did envisage that there may be a point at which the number of acting judges so outweighed the number of permanent judges, combined with other factors relating to their qualifications and the term and conditions of their appointment, that the institutional integrity of the court would be undermined in breach of Kable. Thus, Gummow, Hayne and Crennan JJ (at 86 [93]): The institutional integrity of State Supreme Courts is not inevitably compromised by the appointment of an acting judge. But the institutional integrity of the body may be distorted by such appointments if the informed observer may reasonably conclude that the institution no [2.580]
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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.
However, according to their Honours (at 85 [90]), it was not possible to determine the issue on a purely quantitative basis: If it is accepted that some acting appointments may lawfully be made under s 37, a quantitative criterion for marking the boundary of permissible appointments would treat the circumstances seen by the appointing authority as warranting the appointment of an acting judge as wholly irrelevant to the inquiry about validity. It would assume that the external observer considering the independence and impartiality of the court as a whole should, or would, ignore why it had been thought necessary to appoint those who had been appointed to act as judges. Thus the necessity presented by sickness, absence for other sufficient cause, or the embarrassment of a judge or judges in one or more particular cases would be treated as irrelevant; all that would matter is how many have been appointed. And that, in turn, presents the question: how would the particular number or proportion of acting judges that would compromise the institutional integrity of the court be fixed? That is a question to which none but an arbitrary answer can be given. Rather than pursue the illusion that some numerical boundary can be set, it is more profitable to give due attention to the considerations that would have to inform any attempt to fix such a boundary: the fact and appearance of judicial independence and impartiality.
Heydon J expressly agreed with this proposition (at 149–150 [277]) and Gleeson CJ expressly stated that he agreed generally with the reasoning of Gummow, Hayne and Crennan JJ. His Honour did envisage circumstances where the constitution of the Court might be distorted such as to breach the Kable principle: It is possible to imagine extreme cases in which abuse of the power conferred by s 37 could so affect the character of the Supreme Court that it no longer answered the description of a court or satisfied the minimum requirements of independence and impartiality. It is, however, a basic constitutional principle that the validity of the conferral of a statutory power is not to be tested by reference to “extreme examples and distorting possibilities”. Possible abuse of power is rarely a convincing reason for denying its existence. (at 69 [46])
Kirby J, in dissent, after examining in detail the appointment of acting judges in New South Wales at the relevant time, came to the opposite conclusion and held that the principle in Kable had been breached (at 94–95 [124]–[125]): In my opinion, the number and type of acting appointments made under the impugned provisions … are such as to amount to an impermissible attempt to alter the character of the Supreme Court. They attempt to work a change in a fundamental respect forbidden by the federal Constitution. What was intended as a statutory provision for occasional and exceptional additions to judicial numbers, in special circumstances, has become a means for an institutional alteration that is incompatible with the role of the State courts, particularly the Supreme Court. It has made the courts beholden to the Executive for regular short-term reappointments of core numbers of the judiciary. This is offensive to basic constitutional principle. … [125] The time has come for this Court to draw a line and to forbid the practice that has emerged in New South Wales, for it is inimical to true judicial independence and impartiality. When viewed in context, the acting judicial commission in question in these proceedings was not an ad hoc, special one for particular purposes. When the line is crossed, this Court should say so. It should not postpone the performance of its role as guardian of the Constitution.
On the facts of Forge, was it necessary to invoke the Kable principle at all to impugn the legislation? Given that the Supreme Court of NSW (not to mention the lower NSW courts) were “courts” in which federal jurisdiction has been vested pursuant to s 77(iii), could not the issue have been resolved by reference to the need to maintain the Supreme Court as a “court”? 156
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Australian States: Cinderellas No Longer? [2.590] G Winterton, “Australian States: Cinderellas No Longer?”, in G Winterton (ed), State Constitutional Landmarks (Federation Press, Sydney, 2006), ch 1, pp 14–16 (some footnotes omitted) 14 [T]he High Court in Kable … “discovered” in Ch III of the Commonwealth Constitution limitations upon the functions which State Parliaments could impose upon State Supreme Courts. In providing that the Commonwealth Parliament may “invest” federal jurisdiction in State courts (see Commonwealth Constitution, ss 77(iii) and 71), it can reasonably be inferred that the Commonwealth can invest such power only in a State body 15 which can be characterized as a “court”. The extent to which the body exercises non-judicial functions, and the degree to which it exercises its functions independently and impartially, will clearly affect whether it can be so characterized. But this limitation derived from Ch III was not at issue in Kable – it was not suggested that the preventive detention power conferred on the New South Wales Supreme Court by the Community Protection Act 1994 (NSW) had the effect of rendering that body no longer a “court” within Ch III. Instead, a majority (arguably, only a plurality (Gaudron, McHugh and Gummow JJ) in view of the more limited ground of Toohey J’s decision) of the High Court implied in Ch III a further requirement that State Parliaments must not vest in their Supreme Courts (although the principle must surely apply to all State courts) such non-judicial functions as would render them unworthy receptacles for federal jurisdiction. These are functions which would lead the public to lose confidence in their independence, especially from the political branches. (This is an implication separate from the requirement that only a State “court” can be invested with federal jurisdiction; this is demonstrated by Dawson J’s express recognition of the latter principle although he dissented (on principle, not merely on its application to the facts) in Kable … However, the issues were not clearly distinguished in Forge … in which it was argued (unsuccessfully) that the constitution of the State court (in including acting judges) – not the functions conferred on it – contravened Ch III. The argument in Forge was based on the issue whether the Supreme Court remained a “court” (see Gleeson CJ at [41]–[42], [46]); hence, strictly speaking, Kable was irrelevant. However, with respect, Kirby J confused the two issues in remarking: “If the institutional alterations result in a ‘court’ that is qualitatively changed (so that, in the case of a Supreme Court, it does not answer to its constitutional description as such) the Kable rule is engaged” ([195]). See, similarly, [192]–[193] per Kirby J, [63] per Gummow, Hayne and Crennan JJ (“as is recognised in Kable … the relevant principle is one which hinges upon maintenance of the defining characteristics of a ‘court’ …”). (Emphasis added.) As the present writer has argued elsewhere (see G Winterton, “Justice Kirby’s Coda in Durham” (2002) 13 Public Law Review 165 at 168, 169), this principle is unconvincing on many grounds: it is contrary to the long-accepted understanding that, in investing State courts with federal jurisdiction, the Commonwealth essentially “takes the Court as it finds it”; 16 the supposed opinion of a notional “ordinary reasonable member of the public” is an impressionistic criterion, impossible to determine if taken seriously, which provides a camouflage of objectivity for subjective judicial evaluation; and its logical implications would lead to wide judicial policing of the integrity of Australian public institutions. Moreover, it is difficult to reconcile the view that the Supreme Court would be perceived as “a party to and responsible for implementing the political decision of the executive government” (McHugh J) (Kable (1996) 189 CLR 51 at 124. Emphasis added. McHugh J does qualify this perception as “[a]t the time of [the Act’s] enactment”) or “an arm of the executive which implements the will of the legislature” (Gummow J) (ibid, 134, emphasis added) when the Supreme Court had refused to order Mr Kable’s detention on the second occasion it was sought and he had been at liberty for more than three months when the case was argued in the High Court. H P Lee (in “The Kable Case: A Guard-Dog that Barked But Once?”, in State Constitutional Landmarks, op cit, Chapter 14) … concludes that the current High Court “has ensured that Kable has retreated back into a fenced off abyss”; in Kirby J’s evocative metaphor, it appears to be a “constitutional guard-dog that would bark but once” (Baker v The Queen (2004) 78 ALJR 1483 at [54].) The present writer views that fate of Kable without regret, but Professor Lee views the decision more favourably, noting that “it was not unreasonable for a suspicion to be harboured that the Supreme Court was being used to give the Government an escape route from a political conundrum”. That is undoubtedly [2.590]
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Australian States: Cinderellas No Longer? cont. true, but the question remains whether such employment of the judiciary should be constitutionally infirm. Perhaps the most that can be said for the decision is that, as Professor Lee remarks, “its continued existence provides protection against extreme laws”, which echoes a sentiment expressed many years ago by Sir Ivor Jennings in remarking that one benefit of the doctrine of fundamental common law rights is that it reassures us that “if the occasion arose, a judge would do what a judge should do” (I Jennings, The Law and the Constitution (5th ed, 1959), p 160). However, constitutional analysis and, perhaps, protection of State judiciaries would be enhanced if the High Court distinguished more carefully between the Kable principle and the universally-accepted requirement that only State “courts” can be invested with federal jurisdiction.
[2.600] The High Court’s reluctance to re-apply the principle in Kable continued in Gypsy Jokers Motorcycle Club Incorporated v Commissioner for Police (2008) 234 CLR 532 and K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501. In Gypsy Jokers v Commissioner for Police (2008) 234 CLR 532, the High Court, by 6:1, dismissed a challenge to the constitutional validity of judicial review of fortification removal notices issued under the Corruption and Crime Commission Act 2003 (WA). Section 76 of the Act provided that: (1) If a fortification removal notice relating to premises has been issued, the owner or an interested person may, within 7 days after the day on which the notice is given to the owner of the premises, apply to the Supreme Court for a review of whether, having regard to the submissions, if any, made before the submission period elapsed and any other information that the Commissioner of Police took into consideration, the Commissioner of Police could have reasonably had the belief required by section 72(2) when issuing the notice. (2) 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.
The majority found that an interpretation of the statute should be adopted which “avoid[ed] rather than lead to a conclusion of constitutional invalidity” (at 553 [11] per Gummow, Hayne, Heydon and Kiefel JJ). On this basis s 76(2) did not compromise the independence of or impermissibly control the Supreme Court of Western Australia as the Court was still required to “decide whether the claim for confidentiality should be upheld” (at 551–552 [7] per Gleeson CJ and see 558 [33] per Gummow, Hayne, Heydon and Kiefel JJ). Crennan J agreed in a separate judgment. Gummow, Hayne, Heydon and Kiefel JJ did however note (more generally at 560 [39]) that “legislation which purported to direct the courts as to the manner and outcome of the exercise of their jurisdiction would be apt impermissibly to impair the character of the court as independent and impartial tribunals”. Their Honours concluded that the s 76(2) phrase “nor publicly disclosed in any way” did not amount to such a “legislative direction” and were “no more than an attempt at exhortation and an effort to focus attention by the Court to the prejudicial effect disclosure may have” (at 561 [44]). Further, the joint judgment noted (at 553 [10]) that “the conditions which must exist for courts in this country to administer justice according to law are inconsistent with some forms of external control of those courts appropriate to the exercise of authority by public officials and administrators.” On the issue of a denial of procedural fairness, Crennan J observed (at 597 [191]) that the independence and impartiality of the Supreme Court was not necessarily compromised by the fact that s 76(2) brought about some qualifications to a party’s entitlement to procedural fairness. 158
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In a strong dissent Kirby J found that s 76(2) amounted to an inappropriate interference with the Supreme Court’s judicial function as “an officer of the Executive Government … controls the discharge of the judicial process” and that while “[t]he judge may appear in robes to pronounce what shall be done … the hand that directs the process is elsewhere, outside the courtroom” (at 563 [52]). His Honour argued that the majority’s construction of the provision was too strained and was “not an expression of the true meaning and operation of the provision as enacted and expressed to achieve a clear legislative purpose” (at 572 [84]). On this basis he concluded that the subsection should be severed from the Act. Kirby J commented (at 563 [53], and 576 [100]) that: The Kable principle was at first regarded as “far-reaching” (Baker v The Queen (2004) 223 CLR 513, 544 [83]). Yet if this is so, it has certainly been “under-performing” (F Wheeler, “The Kable Doctrine and State Legislative Power over State Courts” (2005) 20(2) Australasian Parliamentary Review 15, 30). The circumstances of this case are in some ways special and peculiar. However, the endorsement by the majority of the challenged legislation is a matter of concern. Section 76(2) of the Act represents a disturbing precedent. To prevent the endorsement and possible future extension of the precedent, the appeal should be allowed. … I fully recognise that, in a number of decisions, I have adopted a more ample view of the application of the Kable principle than some of my colleagues. No doubt my differences from the majority in this respect derive from a disagreement over the “public values” that are at stake and different perceptions of the risks that are presented by erosions of what have hitherto been normal attributes of the “judicial process” in Australia.
On the issue of the role of the Supreme Court of Western Australia as a “court”, he found that (at 577–578): what sets a court apart is the feature, inherent in its constitution and functions, of independence and impartiality. It is a governmental institution. But it is one of a particular kind. It must act in particular ways. There may be innovations and differences between courts. However, there are limits upon permissible departures from the basic character and methodologies of a court. As a nominated court, expressly provided for in the Constitution, a Supreme Court of a State plays an essential role in the governance of the State and the nation. … The basic error of the majority in the Court of Appeal lay in their conclusion that, to find offence to the Kable principle, the appellant had to show that the impugned legislation rendered the Supreme Court “no longer a court of the kind contemplated by Ch III” … If that were indeed the criterion to be applied, it would be rare, if ever, that constitutional incompatibility could be shown. Kable’s constitutional toothlessness would then be revealed for all to see. The fact is that, whatever the outcome of this case, the Supreme Court would continue to discharge its regular functions. Overwhelmingly, it would do so as the Constitution requires. A particular provision, such as s 76 of the Act, will rarely be such as to poison the entire character and performance by a Supreme Court of its constitutional mandate as such or alone to result in a complete re-characterisation of the Court. Adoption of such an approach would, in effect, define the Kable doctrine out of existence. This should not be done. Kable recognised an important principle arising from the unique features of the Judicature of Australia. Such features necessitate vigilant protection of the State courts and their processes. The proper application of the Kable principle requires a close examination of the particular provision that is impugned. Such an examination is performed so as to prevent attempts to pollute the jurisdiction and powers of the State Supreme Courts. Special vigilance is required whenever it appears that other branches of government may be attempting to interfere with the independence and impartiality of the State courts or to trade on the reputational capital which such courts have won by their special character and established methodologies.
In K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, in a statutory context broadly similar to that encountered in Gypsy Jokers, the appellants argued that s 28A of the Liquor Licensing Act 1997 (SA) “impermissibly interfered with the exercise by the Licensing Court of the judicial power of the Commonwealth” (at 511 [7] per French CJ). Section 28A(5) of the Act provided: [2.600]
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In any proceedings under this Act, the Commissioner, the Court or the Supreme Court – 1. must, on the application of the Commissioner of Police, take steps to maintain the confidentiality of information classified by the Commissioner of Police as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives; and 2. may take evidence consisting of or relating to information classified by the Commissioner of Police as criminal intelligence by way of affidavit of a police officer of or above the rank of superintendent.
The Court found that, as in Gypsy Jokers, the impugned provision could be construed so as to be constitutionally valid and so as not to remove the Licensing Court’s ability to exercise its functions independently and impartially (French CJ at 519 [46], 524–525 [63]–[65], 527 [77], Gummow, Hayne, Heydon, Crennan and Kiefel JJ at 542–543 [147]–[149], Kirby J at 576–580 [257]–[258]). The Licensing Court was found to be able to make an independent assessment of the information classified as “criminal intelligence” and review the evidence presented. French CJ held (at 512 [10]) that: Section 28A infringes upon the open justice principle that is an essential part of the functioning of courts in Australia. It also infringes upon procedural fairness to the extent that it authorises and effectively requires the Licensing Court and the Supreme Court to consider, without disclosure to the party to whom it relates, criminal intelligence information submitted to the Court by the Commissioner of Police. However, it cannot be said that the section confers upon the Licensing Court or the Supreme Court functions which are incompatible with their institutional integrity as courts of the States or with their constitutional roles as repositories of federal jurisdiction. Properly construed the section leaves it to the courts to determine whether information classified as criminal intelligence answers that description. It also leaves it to the courts to decide what steps may be necessary to preserve the confidentiality of such material.
The Chief Justice (at 530 [89]) also endorsed the statement of Gummow, Hayne and Crennan JJ from Forge (at 76 [63]) that “institutional integrity” “hinges upon maintenance of the defining characteristics of a ‘court’, or in cases concerning a Supreme Court, the defining characteristics of a State Supreme Court.” The Court in K-Generation also rejected the submission that the Licensing Court would simply desist from being a “court” for the purposes of Chapter III of the Commonwealth Constitution capable of exercising federal jurisdiction if its institutional integrity was compromised (French CJ at 532 [99], Gummow, Hayne, Heydon, Crennan and Kiefel JJ at 544 [153]–[154], Kirby J at 567–569 [235]–[244]). The joint judgment explained that “the State may not establish a ‘Court of a State’ within the constitutional description and deprive it, whether when established or subsequently, of those minimum characteristics of … institutional independence and impartiality” (at 544 [153]). The continual failed invocation of the Kable principle before the High Court and restrictive statutory readings of State legislation was brought to an abrupt stop in International Finance Trust.
International Finance Trust v NSW Crime Commission [2.610] International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at 354–367 [This case related to ex parte restraining order applications made under s 10 of the Criminal Assets Recovery Act 1990 (NSW) (the CAR Act) in relation to property of persons suspected of having engaged in serious crime related activity. The New South Wales Crime Commission was authorised to make such applications to the Supreme Court of New South Wales in the absence of a criminal conviction and the Court was required to make the order if it was supported by an affidavit of an authorised officer stating that person has engaged in serious crime related activity and the grounds on which that suspicion is 160
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International Finance Trust v NSW Crime Commission cont. founded. A majority (French CJ, Gummow and Bell JJ and Heydon J) of the Court found s 10 of the CAR Act was invalid. Hayne, Crennan and Kiefel JJ, in the minority, held that s 10 was a valid provision that was not repugnant to the judicial process]. French CJ: 354 [54] Procedural fairness or natural justice lies at the heart of the judicial function. In the federal constitutional context, it is an incident of the judicial power exercised pursuant to Ch III of the Constitution. It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it. According to the circumstances, the content of the requirements of procedural fairness may vary. When an ex parte application for interlocutory relief is made the court, in the ordinary course, has a discretion whether or not to hear the application without notice to the party to be affected. In exercising that discretion it will have regard to the legitimate interests of the moving party which have to be protected, whether there is likely to be irrevocable damage to the interests of the affected party if the order is made, and what provision can be made for the affected party to be heard to have the order discharged or varied after it has been made. In so saying, it is not intended to suggest that an official cannot validly be authorised by statute to bring an application ex parte to a federal court or to a State or Territory court capable of exercising federal jurisdiction. The CAR Act takes the further step of requiring the Supreme Court to hear and determine such an application ex parte. [55] To require a court, as s 10 does, not only to receive an ex parte application, but also to hear and determine it ex parte, if the Executive so desires, is to direct the court as to the manner in which it exercises 355 its jurisdiction and in so doing to deprive the court of an important characteristic of judicial power. That is the power to ensure, so far as practicable, fairness between the parties. The possibility that a statutorily mandated departure from procedural fairness in the exercise of judicial power may be incompatible with its exercise was considered in Leeth v The Commonwealth (1992) 174 CLR 455 … [56] In my opinion the power conferred on the Commission to choose, in effect, whether to require the Supreme Court of New South Wales to hear and determine an application for a restraining order without notice to the party affected is incompatible with the judicial function of that Court. It deprives the Court of the power to determine whether procedural fairness, judged by reference to practical considerations of the kind usually relevant to applications for interlocutory freezing orders, requires that notice be given to the party affected before an order is made. It deprives the Court of an essential incident of the judicial function. In that way, directing the Court as to the manner of the exercise of its jurisdiction, it distorts the institutional integrity of the Court and affects its capacity as a repository of federal jurisdiction. [57] The preceding conclusion involves a judgment about the quality of the Executive’s intrusion, sanctioned by the legislature, into the judicial function. It is not to the point to say that in many, if not most cases of such applications, the Supreme Court would be likely, if it had the discretion, to hear and determine them ex parte. It is likely that, before deciding to proceed ex parte, the Court would first determine that procedural fairness could be accorded by provision for discharge on application. Alternatively, it might make the order limited in time so that the applicant would have to justify its continuation. Nor is it to the point to say that the particular intrusion upon the judicial function authorised by s 10 is confined in scope and limited in effect both in time and by the facility to seek ancillary or exclusion orders. Such a calculus will not accord sufficient significance to the quality of the intrusion upon the judicial function. An accumulation of such intrusions, each “minor” in practical terms, could amount over time to death of the judicial function by a thousand cuts … [The language of the rest of the Court was less focused on “institutional integrity” and more on whether the CAR Act conferred functions that were repugnant to the judicial process (see 367 [98] (Gummow and Bell); 378 [136] (Hayne, Crennan and Kiefel JJ); 379 [140] (Heydon J).] [For instance, Gummow and Bell JJ explained:] 366 [95] The result is that the effect of the suspicion by an authorised officer of the Commission, evidence supporting which has been provided to the Supreme Court on the application under s 10, which founds a restraining order possibly may be of considerable scope and may be displaced only when an application for an assets forfeiture order is no longer pending in the Supreme Court, or upon [2.610]
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International Finance Trust v NSW Crime Commission cont. application under s 25. But that application cannot succeed unless the applicant proves to the Supreme Court that it is more probable than not that the interest in property for which exclusion is sought is not “illegally acquired property”. [96] The making of that proof by the applicant for an exclusion order requires the negating of an extremely widely drawn range of possibilities of contravention of the criminal law found in the common law, and State and federal statute law. Indeed, where a relevant act or omission occurred outside the State and is an offence in the place where it occurred, the applicant must show that had the act or omission occurred within the State it would not have been an offence against the common law or State or federal statute law (s 4(1)). [97] The Supreme Court is conscripted for a process which requires in substance the mandatory ex parte sequestration of property upon suspicion of wrong doing, for an indeterminate period, with no effective curial enforcement of the duty of full disclosure on ex parte applications. In addition the possibility of release from that 367 sequestration is conditioned upon proof of a negative proposition of considerable legal and factual complexity. [98] Section 10 engages the Supreme Court in activity which is repugnant in a fundamental degree to the judicial process as understood and conducted throughout Australia. Heydon J (at 385–387 [156]–[161]) [sourced the repugnance in the “difficulty and delay” in overturning the restraining order rather than in the fact that the court was obliged to make the order or that it could be made ex parte. While this terminology of “repugnance” had been initially coined by Gummow J in Kable (at 132; see also Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575 at 628 [141], 641 [175] (Kirby J)), it had been subsequently criticised by McHugh J in Fardon (at 601 [42]) by the statement that: “The pejorative phrase – ‘repugnant to the judicial process’ – is not the constitutional criterion. In this area of constitutional discourse, it is best avoided, for it invites error. That which judges regard as repugnant to the judicial process may be no more than a reflection of their personal dislike of legislation that they think unjustifiably affects long recognised rights, freedoms and judicial procedures.”] Hayne, Crennan and Kiefel JJ [in dissent, disputed that the order was “repugnant to the judicial process” as “though working a considerable effect on property rights … finally dispose[d] of those rights” (at 373 [121]) when the order could be the subject of review. Their Honours concluded (at 375 [128]) that]: Neither s 10(2), providing for a restraining order to be sought ex parte, nor the provisions of s 12, enabling the making of various forms of orders ancillary to the making of a restraining order, shows that the Act should be read as inferentially excluding application by the party affected by a restraining order, after the order has been made, to contest whether it should have been made or should continue and to adduce evidence in support of that party’s case. … the CAR Act should not be construed as working such a fundamental alteration to civil procedure as would be required to conclude that an order made ex parte should not be open to subsequent review and reconsideration on the application of a party adversely affected by it.]
Notes&Questions
[2.620]
1.
In International Finance Trust Heydon J commented on the precedential role of Kable. His Honour observed (at 379 [140]) that: At least at the time when it was decided, Kable v Director of Public Prosecutions (NSW) had its critics. Whatever the force of their criticisms, there is no doubt that the decision has had extremely beneficial effects. In particular, it has influenced governments to ensure the inclusion within otherwise draconian legislation of certain objective and reasonable safeguards for the liberty and the property of persons affected by that legislation. It is true that apart from the Kable Case itself there has been no successful invocation of the doctrine associated with that case in this Court, and no challenge to
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the correctness of that doctrine. In these very proceedings the parties did not challenge the correctness either of the Kable Case or of anything said in it. It is accordingly not necessary to evaluate the criticisms. The case stands. It must thus be applied if circumstances which attract its operation arise …
2.
To what extent is a test concerned with “repugnancy to the judicial process” easier to apply than one focused on incompatibility with a court’s “institutional integrity”? Is “repugnancy” too subjective to be of utility?
[2.630] The decision in Kirk v Industrial Relations Commission of New South Wales (2010)
239 CLR 531, although not expressly citing Kable, is useful to consider in this context. In Kirk, the High Court found that the supervisory jurisdiction of a State Supreme Court on the ground of jurisdictional error was, by virtue of s 73 of the Commonwealth Constitution, an essential characteristic of a Supreme Court and could not be compromised. While the decision justified this on the historical foundations for such courts, the integrated nature of the court system also influenced the Court to some extent as the absence of supervisory review would “create islands of power immune from supervision and restraint” (at 581 [99]). The decision in Kirk is usefully considered in light of Kable. This is because of the emphasis of the High Court on review for jurisdictional error as a “defining characteristic” of a Supreme Court as well as its connection with McHugh J’s comment in Kable (at 114) that: “a State law that prevented a right of appeal to the Supreme Court from, or a review of, a decision of an inferior State court, however described, would seem inconsistent with the principle expressed in s 73 and the integrated system of State and federal courts that covering cl 5 and C III envisages.” For a further discussion of this association see L Zines, “Recent Developments in Chapter III: Kirk v Industrial Relations Commission of New South Wales & South Australia v Totani” (CCCS/AACL Seminar, Melbourne Law School, Melbourne, 26 November 2010); S Young and S Murray, “An Elegant Convergence? The Constitutional Entrenchment of Jurisdictional Error Review in Australia” (2011) Winter Oxford University Commonwealth Law Journal 117; S Ratnapala and J Crowe, “Broadening the Reach of Chapter III: The Institutional Integrity of State Courts and the Constitutional Limits of State Legislative Power” (2012) 36 Melbourne University Law Review 175; L Beck, “What is a “Supreme Court of a State”?” (2012) 34 Sydney Law Review 295. In South Australia v Totani (2010) 242 CLR 1 the High Court, by majority, again re-applied Kable to invalidate state legislation.
South Australia v Totani [2.640] South Australia v Totani (2010) 242 CLR 1 at 42–90 [Mr Totani and Mr Hudson sought to challenge in the High Court the constitutional validity of s 14(1) of the Serious and Organised Crime (Control) Act 2008 (SA) which stated that the Magistrates Court of South Australia “must, on the application by the Commissioner, make a control order against a person (the defendant) if the Court is satisfied that the defendant is a member of a declared organisation.” The appellants were both members of the Finks Motorcycle Club which had been deemed a “declared organisation” by the South Australian Attorney-General on 14 May 2009. The Court held, by 6:1 (Heydon J dissenting) that s 14 was invalid as the Magistrates Court was directed by the Attorney-General to such a degree as to compromise the Court’s institutional integrity.] French CJ: 42 [60] …The understanding of what constitutes “Courts of law” may be expressed in terms of assumptions underlying ss 71 and 77(iii) in relation to the courts of the States. [61] There are three overlapping assumptions which, as a matter of history and as a matter of inference from the text and structure of Ch III, underlie the adoption of the mechanism reflected in s 77(iii) of the Constitution. The first is the universal application throughout the Commonwealth of the rule of law, an assumption [2.640]
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South Australia v Totani cont. “upon which the Constitution depends for its efficacy.” The second is that the courts of the States are fit, in the sense of competent, to be entrusted with the exercise of federal jurisdiction. … The generality of the wording of ss 71 and 77(iii) indicates that the assumption of competence extends to all courts of the States, albeit the supervisory role of the Supreme Courts, as was submitted by the Solicitor-General of the Commonwealth, reinforces the independence 43 and impartiality of inferior State courts and contributes to the fulfilment of the constitutional imperative recognised in Kable. [62] The third assumption is that the courts of the States continue to bear the defining characteristics of courts and, in particular, the characteristics of independence, impartiality, fairness and adherence to the open-court principle. This formulation is deliberately non-exhaustive. In considering the attributes of courts contemplated by Ch III of the Constitution it is necessary to bear in mind the cautionary observation of Gummow, Hayne and Crennan JJ in Forge (2006) 228 CLR 45 at 76, [64]: “It is neither possible nor profitable to attempt to make some single all-embracing statement of the defining characteristics of a court.” Nevertheless, as their Honours added: “An important element, however, in the institutional characteristics of courts in Australia is their capacity to administer the common law system of adversarial trial. Essential to that system is the conduct of trial by an independent and impartial tribunal.” At the heart of judicial independence, although not exhaustive of the concept, is decisional independence from influences external to proceedings in the court, including, but not limited to, the influence of the executive government and its authorities. (As to the multiple location of judicial decisional independence in separation-of-powers protections providing for “judicial independence” and within the rubric of “due process” and “the rule of law”, see Gerangelos, The Separation of Powers and Legislative Interference in Judicial Process (Hart Publishing, Oxford, 2009), p 8.) Decisional independence is a necessary condition of impartiality. Procedural fairness effected by impartiality and the natural justice hearing rule lies at the heart of the judicial process (For a recent discussion of the natural justice hearing rule in this context, see International Finance Trust Co Ltd (2009) 240 CLR 319 at 379–384 [139]–[150] per Heydon J). The open-court principle, which provides, among other things, a visible assurance of independence and impartiality, is also an “essential aspect” of the characteristics of all courts, including the courts of the States (Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs J; see also at 505 per Barwick CJ, 532 per Stephen J). [63] The Convention Debates reveal implicit reflection on the principle of separation of powers in the context of a provision, later omitted, which would have barred any person holding judicial office from being appointed to or holding any executive office. … The limited record of consideration of judicial independence by delegates to the 44 Convention otherwise centred around debate about the mechanism for the removal of federal judges. … The absence of any recorded debate about the principle of independence enunciated by Kingston indicates that it was uncontroversial. The historical record does not indicate that the members of the Convention expressly adverted to the broader concept of the separation of judicial power in their debates (Wheeler, “Original Intent and the Doctrine of the Separation of Powers in Australia”, (1996) 7 Public Law Review 96 at 99–103; Gerangelos (2009), p 59). However, that does not detract from the conclusion that the Constitution was framed on the basis of common assumptions, at least among lawyers of the day, about the nature of courts and their independence in the discharge of judicial functions. [64] The assumption of the continuity of the defining characteristics of the courts of the States as courts of law is supported by ss 106 and 108 of the Constitution, which, by continuing the constitutions and laws of the former colonies subject to the Constitution of the Commonwealth, continued, inter alia, the courts of the colonies and their various jurisdictions. That continuity could accommodate the extension, diminution or modification of the organisation and jurisdiction of courts existing at Federation, the creation of new courts and the abolition of existing courts (other than the Supreme Courts). Those powers in State legislatures are derived from the constitutions of the States. Until 1986, they were also derived from s 5 of the Colonial Laws Validity Act 1865 (IMP) [28 & 29 Vict c 63]. Since 1986, they can be derived from s 2(2) of the Australia Acts (Australia Act 1986 (Cth); Australia Act 1986 (UK); and the Australia Acts (Request) Act 1985 of each of the States. [65] The assumption that all Australian courts would retain the defining characteristics of courts of law after Federation is also implicit in covering cl 5 of the Constitution… which provides that “[t]his Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the 164
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South Australia v Totani cont. courts, judges, and people of every State and of every part of the Commonwealth”. … 45 [66] There was at Federation no doctrine of separation of powers entrenched in the constitutions of the States. … The absence of an entrenched doctrine of separation of powers under the constitutions of the States at Federation and thereafter does not detract from the acceptance at Federation and the continuation today of independence, impartiality, fairness and openness as essential characteristics of the courts of the States. Nor does the undoubted power of State Parliaments to determine the constitution and organisation of State courts detract from the continuation of those essential characteristics. It is possible to have organisational diversity across the Federation without compromising the fundamental requirements of a judicial system. The diversity of State courts 46 [67] Griffith CJ said in Federated Sawmill, Timberyard and General Woodworkers’ Employees’ Association (Adelaide Branch) v Alexander (“the Sawmillers’ Case”) that “when the Federal Parliament confers a new jurisdiction upon an existing State Court it takes the Court as it finds it, with all its limitations as to jurisdiction, unless otherwise expressly declared” ((1912) 15 CLR 308 at 313). The proposition in the Sawmillers’ Case, as developed in later decisions of this Court including Le Mesurier v Connor ((1929) 42 CLR 481), recognised that the Parliaments of the States retain the legislative power to determine the constitution of their courts and the organisational arrangements through which they will exercise their jurisdiction and powers (at 495–496 per Knox CJ, Rich and Dixon JJ). As Gummow, Hayne and Crennan JJ said in Forge ((2006) 228 CLR 45 at 75 [61]): “The provisions of Ch III do not give power to the federal Parliament to affect or alter the constitution or organisation of State courts.” [68] The statement made by Griffith CJ in the Sawmillers’ Case should not be over-generalised. As Gaudron J explained in Kable, it was “a vastly different statement from the unqualified proposition that the Commonwealth must take a State court as it finds it” ((1996) 189 CLR 51 at 102). The Parliament of a State does not have authority to enact a law which deprives a court of the State of one of its defining characteristics as a court, or impairs one or more of those characteristics. The statement in The Commonwealth v Hospital Contribution Fund about the unrestricted legislative competency of the States in relation to the composition, structure and organisation of their courts “as appropriate vehicles for the exercise of invested federal jurisdiction” ((1982) 150 CLR 49 at 61 per Mason J) must be read in the light of Kable and those decisions which further explain the principles which it enunciated. The point was made by Gummow J in Kable (at [137]), commenting on the decision in Le Mesurier: “But this decision did not determine that a State legislature has power to impose upon the Supreme Court of that State functions which are incompatible with the discharge of obligations to exercise federal jurisdiction, pursuant to an investment by the Parliament of the Commonwealth under s 77(iii) of the Constitution.” That limitation on State legislative power nevertheless makes ample allowance for diversity in the constitution and organisation of courts. Application of the principles 47 [69] The text and structure of Ch III of the Constitution postulate an integrated Australian court system for the exercise of the judicial power of the Commonwealth with this Court at its apex (Kable at 101 per Gaudron J, 114 per McHugh J, 138–143 per Gummow J). There is no distinction, so far as concerns the judicial power of the Commonwealth, between State courts and federal courts created by the Parliament (Kable at 101 per Gaudron J, 115 per McHugh J, 143 per Gummow J). The consequences of the constitutional placement of State courts in the integrated system include the following: (a)
A State legislature cannot confer upon a court of a State a function which substantially impairs its institutional integrity and which is therefore incompatible with its role as a repository of federal jurisdiction. …
(b)
State legislation impairs the institutional integrity of a court if it confers upon it a function which is repugnant to or incompatible with the exercise of the judicial power of the Commonwealth. …
(c)
The institutional integrity of a court requires both the reality and appearance of independence and impartiality. … [2.640]
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South Australia v Totani cont. (d)
The principles underlying the majority judgments in Kable and further expounded in the decisions of this Court which have followed after Kable do not constitute a codification of the limits of State legislative power with respect to State courts. Each case in which the Kable doctrine is invoked will require consideration of the impugned legislation because (Fardon at 618 [104] per Gummow J): “the critical notions of repugnancy and incompatibility are insusceptible of further definition in terms which necessarily dictate future outcomes.” For legislators this may require a prudential approach to the enactment of laws directing courts on how judicial power is to be exercised, particularly in areas central to the judicial function such as the provision of procedural fairness (International Finance Trust) and the conduct of proceedings in open court. It may also require a prudential approach to the 48 enactment of laws authorising the executive government or its authorities effectively to dictate the process or outcome of judicial proceedings.
(e)
The risk of a finding that a law is inconsistent with the limitations imposed by Ch III, protective of the institutional integrity of the courts, is particularly significant where the law impairs the reality or appearance of the decisional independence of the court.
The validity of s 14(1) of the SOCC Act falls for consideration against that background. [70] The Solicitor-General for South Australia submitted that the true question in determining whether legislation “impairs” or “detracts from” the institutional integrity of a State court is whether that court no longer satisfies the constitutional description “court of a State”. He reformulated the question as: “[D]oes a State Court exercising the impugned function nevertheless bear sufficient relation to a court of a state within the meaning of the Constitution?” … However, the true question is not whether a court of a State, subject to impugned legislation, can still be called a court of a State nor whether it bears a sufficient relation to a court of a State. The question indicated by the use of the term “integrity” is whether the court is required or empowered by the impugned legislation to do something which is substantially inconsistent or incompatible with the continuing subsistence, in every aspect of its judicial role, of its defining characteristics as a court. So much is implicit in the constitutional mandate of continuing institutional integrity. By way of example, a law which requires that a court give effect to a decision of an executive authority, as if it were a judicial decision of the court, would be inconsistent with the subsistence of judicial decisional independence. … [71] It has been accepted by this Court that the Parliament of the Commonwealth may pass a law which requires a court exercising federal jurisdiction to make specified orders if some conditions are met even if satisfaction of such conditions depends upon a decision or decisions of the executive government or one of its authorities (Palling v Corfield (1970) 123 CLR 52 at 58–59 Barwick CJ, 62–63 per McTiernan J, 64–65 per Menzies J, 65 per Windeyer J, 66–67 per Owen J, 68–70 per Walsh J, 70 per Gibbs J; International Finance Trust at 352 [49] per French CJ). 49 The Parliament of a State may enact a law of a similar kind in relation to the exercise of jurisdiction under State law. It is also the case that “in general, a legislature can select whatever factum it wishes as the ‘trigger’ of a particular legislative consequence” (Baker v The Queen (2004) 223 CLR 513 at 535 [43] per McHugh, Gummow, Hayne and Heydon JJ). But these powers in both the Commonwealth and the State spheres are subject to the qualification that they will not authorise a law which subjects a court in reality or appearance to direction from the executive as to the content of judicial decisions. In International Finance Trust Co Ltd this Court held invalid a law of the State of New South Wales which imposed upon the Supreme Court of New South Wales a process which, at the option of the executive, in substance required (at 366 [97] per Gummow and Bell JJ, French CJ agreeing at 356 [58]; see also at 386 [159]–[160] per Heydon J): “the mandatory ex parte sequestration of property upon suspicion of wrong doing, for an indeterminate period, with no effective curial enforcement of the duty of full disclosure on ex parte applications”. [72] It follows from what has already been said in these reasons, and is reflected in the decisions of this Court, that one of the characteristics required of all courts capable of exercising the judicial power of the Commonwealth (including the courts of the Territories) is that they be, and appear to be, independent and impartial tribunals (North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 163 [29] per McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ; Gypsy Jokers Motorcycle Club at 552–553 [10] per Gummow, Hayne, Heydon and Kiefel JJ). 166
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South Australia v Totani cont. Forms of external control of courts “appropriate to the exercise of authority by public officials and administrators” are inconsistent with that requirement (Gypsy Jokers at 553 [10] per Gummow, Hayne, Heydon and Kiefel JJ). The requirement is not a judicially generated imposition. It derives from historically based assumptions about courts which were extant at the time of Federation. [73] It is not necessary, in this case or any other, to mediate the constitutional assumption of actual and apparent independence and impartiality through its effect upon “public confidence” in the courts. That is a criterion which is hard to define, let alone apply by reference to any useful methodology. It may be the case from time to time that a law which trespasses upon the independence and impartiality of a court will have substantial popular support. That is not the measure of its compliance with the requirements of the Constitution. Were it otherwise, the strength of the protections for which the Constitution provides could fluctuate according to public opinion polls. The rule of law, upon which the Constitution is based, does not vary in its application to any individual or group according to the measure of public or official condemnation, however justified, of that individual or that group. The requirements of judicial independence and impartiality 50 are no less rigorous in the case of the criminal or anti-social defendant than they are in the case of the law-abiding person of impeccable character. In any event, as has been pointed out, the effect of the control order under challenge in this case reaches beyond Mr Hudson. It potentially touches members of the public at large and well beyond the boundaries of South Australia. [74] The question in the present case is whether s 14(1) of the SOCC Act requires the Magistrates Court of South Australia to do something which is not consistent with the assumption of independence and impartiality of courts underlying Ch III of the Constitution. As Gummow J observes in his reasons, the question directs attention to the practical operation of s 14(1) and the significance for that practical operation of the Attorney-General’s declaration under s 10(1) (at [138]). [75] Section 14(1) of the SOCC Act confers upon the Magistrates Court the obligation, upon application by the Commissioner, to make a control order in respect of a person by reason of that person’s membership of an organisation declared by the Attorney-General. The declaration rests upon a number of findings including, in every case, a determination by the Attorney-General that members of the organisation, who need not be specified, have committed criminal offences, for which they may never have been charged or convicted. The findings, of which the Magistrates Court may be for the most part unaware and which in any event it cannot effectively or readily question, enliven, through the declaration which they support, the duty of the Court to make control orders against any member of the organisation in respect of whom the Commissioner makes an application. That is so whether or not that member has committed or is ever likely to commit a criminal offence. Membership of a declared organisation is not made an offence by the SOCC Act. [76] The control order involves a serious imposition upon the personal liberty of the individual who is the subject of the control order and subjects him or her to criminal penalties for breach of the order. It enlivens restrictions upon members of the public limiting their capacity to communicate with the person the subject of the control order. Breaches of those restrictions are criminal offences. A person exposed to such a restriction and to criminal liability for its breach may be an entirely law-abiding citizen unlikely, on any view, to engage in contravention of the law. The control order is an order of the kind which, in its effect upon personal liberty, is ordinarily within the domain of judicial power. I should add that I agree with the reasons of Gummow J for rejecting the submission by the State of Western Australia that the validity of s 14(1) is supported by the proposition 51 that the State of South Australia could have vested the power to make a control order in the Attorney-General himself (at [146]–[148]). … [78] The fact that the impugned legislation provides for an adjudicative process does not determine the question whether it impairs the institutional integrity of the Magistrates Court by impairing the reality or appearance of judicial decisional independence. The laws held invalid in Kable and International Finance Trust Co Ltd both allowed for an adjudicative process by the court to which they applied. [79] The submission of the State of South Australia rightly identified the question of membership of a declared organisation as “[t]he central issue raised by an application for a control order”. Although it was acknowledged that membership may be easy to prove with the practical result that the making of a control order would be inevitable, 52 it was said not to follow that this would always be the case. It could not be said, so the argument went, that the outcome of the Commissioner’s application would [2.640]
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South Australia v Totani cont. be directed. [80] In submissions made on behalf of Messrs Totani and Hudson, emphasis was placed on the standard of proof in an application for a control order, which, by virtue of s 5 of the SOCC Act, is the balance of probabilities. But that is not determinative or even more than marginally relevant to any consideration of the relationship between the executive declaration and the making of a control order, which is under scrutiny in the present case. [81] The submissions made on behalf of the State of South Australia did not, with respect, diminish the dominance of the executive act of declaration of an organisation and the findings of fact behind it in determining for all practical purposes the outcome of the control order application. While it is true that membership can be contested, the breadth of the definition of “member” is such that, given any evidential basis for the contention that the defendant is a member, the practical burden of disproof is likely to fall upon the defendant. [82] Section 14(1) represents a substantial recruitment of the judicial function of the Magistrates Court to an essentially executive process. It gives the neutral colour of a judicial decision to what will be, for the most part in most cases, the result of executive action. That executive action involves findings about a number of factual matters including the commission of criminal offences. None of those matters is required by the SOCC Act to be disclosed to the Court, nor is the evidence upon which such findings were based. In some cases the evidence, if properly classified as “criminal intelligence”, would not be disclosable. Section 14(1) impairs the decisional independence of the Magistrates Court from the executive in substance and in appearance in areas going to personal liberty and the liability to criminal sanctions which lie at the heart of the judicial function. I agree with the conclusion of Gummow J (at [149]), Crennan and Bell JJ (at [436]) and Kiefel J (at [481]) that s 14(1) authorises the executive to enlist the Magistrates Court to implement decisions of the executive in a manner incompatible with that Court’s institutional integrity. I agree also with the conclusion reached by Hayne J about the operation of s 14(1) in permitting the executive to enlist the Magistrates Court for the purpose of applying special restraints to particular individuals identified by the executive as meriting application for a control order (at [236]) and the repugnancy of that function to the institutional integrity of the Court. [83] In the exercise of the function conferred on it by s 14(1), the Magistrates Court loses one of its essential characteristics as a court, 53 namely, the appearance of independence and impartiality. In my opinion, s 14(1) is invalid. … Gummow J: 65 [139] The making of a control order under s 14(1) against a defendant is not an adjudication of the criminal guilt of that person. But the order is made in aid of the important legislative objective spelled out in s 4(1) of protecting members of the public from violence associated with organisations involved in “serious crime”, and the order creates a norm of conduct breach of which is attended by the criminal sanction in s 22. Further, it is the executive branch which not only initiates the process of the Magistrates Court, by the Commissioner making the application, but also has by its own processes under Pt 2 already achieved the result that there exists a vital circumstance, the existence of a declaration by the Attorney-General, upon which the Court now must act. The Court must be satisfied of the membership of the defendant, but, as already explained in these reasons, the defendant need not have engaged or be likely to engage in criminal activity. [140] The operation of s 14(1) may be contrasted with that of the legislation the validity of which was upheld in Thomas v Mowbray ((2007) 233 CLR 307). Section 104.4 of the Criminal Code (Cth) required, among other matters, that the court be satisfied on the balance of probabilities that the making of the interim control order “would substantially assist in preventing a terrorist act” or that the person in question had “provided training to, or received training from, a listed terrorist organisation”, these being offences under ss 101.1 and 102.5 of the Criminal Code. There was no anterior determination by the executive branch which was an essential element in the curial decision. … 66 [142] The place of s 14(1) in the scheme of the Act is that it supplements the exercise by the Attorney-General of the politically accountable function conferred by Pt 2 with respect to the declaration of organisations. But that supplementation involves the conscription of the Magistrates Court to effectuate that political function. This is achieved by obliging the Magistrates Court to act upon the declaration by the executive, by making a control order in respect of the defendant selected by the Commissioner, subject only to the satisfaction of the Magistrates Court that the defendant is a member of the declared organisation. It is the declaration by the executive which provides the vital circumstance and essential foundation for the making by the Magistrates Court of the control order. [143] The 168
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South Australia v Totani cont. Solicitor-General for South Australia relied upon the range of matters to which the Magistrates Court was to have regard in considering the scope of the prohibitions imposed in each particular case by the control order (s 14(6)). But the primary requirement is that there must be a prohibition upon association with other members, except as may be specified in the order (s 14(5)). [144] For these reasons, which develop proposition (i) upon which the Full Court majority founded their decision, s 14(1) of the Act requires the Magistrates Court to depart in a significant degree from the methods and standards which characterise the exercise of judicial power. A federal law in these terms would be repugnant to Ch III of the Constitution. [145] But the Act is State legislation. As Callinan and Heydon JJ explained in Fardon ((2004) 223 CLR 575 at 655–656): Although the test, whether, if the State enactment were a federal enactment, it would infringe Ch III of the Constitution, is a useful one, it is not the exclusive test of validity. It is possible that a State legislative conferral of power which, if it were federal legislation, would infringe Ch III of the Constitution, may nonetheless be valid. Not everything by way of decision-making denied to a federal judge is denied to a judge of a State. So long as the State court, in applying legislation, is not called upon to act and decide, effectively as the alter ego of the legislature or the executive, so long as it is to undertake a genuine adjudicative process and so long as its integrity and independence as a court are not compromised, then the legislation in question will not infringe Ch III of the Constitution. [146] Counsel for Western Australia submitted that the respondents could have had no complaint if the Act had vested in the executive of South Australia both the function of declaring organisations under Pt 2 and that of making control orders under Pt 3. This was said to follow from 67 the proposition that it is open to a State legislature to authorise a body other than a court to exercise judicial power. A corollary was said to be that a State law may authorise a body other than a court to punish criminal guilt by ordering the detention of the person (Cf Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 600). … [147] … As a general proposition, State legislatures may confer judicial powers on a body that is not a “court of a State” within the meaning of s 77(iii) of the Constitution (K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at 544]). But that does not involve acceptance of the corollary respecting enforcement of the criminal law. [148] The submissions by Western Australia appeared to be directed to support an argument that because South Australia could have legislated in terms which did not seek to conscript any court of that State, but had not done so, there was a diminished case for the application of what was called the Kable doctrine. With some cogency, the respondents countered that consideration of what may or may not be the greater liberty of legislative action at the State rather than federal level serves to strengthen, not weaken, the constitutional rationale for the Kable doctrine. [149] This Court should accept the submission by the respondents that the practical operation of s 14(1) of the Act is to enlist a court of a State, within the meaning of s 77(iii) of the Constitution, in the implementation of the legislative policy stated in s 4 by an adjudicative process in which the Magistrates Court is called upon effectively to act at the behest of the Attorney-General to an impermissible degree, and thereby to act in a fashion incompatible with the proper discharge of its federal judicial responsibilities and with its institutional integrity. Section 14(1) is invalid. Hayne J: 86 [222] Section 14(1) of SOCCA exhibits three, connected, features that are critical to consideration of its validity. First, the court that makes an order under s 14(1) does not ascertain, declare or enforce any right or 87 liability that exists at the time the proceedings are instituted. Secondly, the court’s order creates new and particular restrictions on association. The restrictions are particular in two respects. They are particular in that they are directed only to the defendant in question. They are also particular in that they do not reflect, let alone give effect to, any more general legislative proscription of any and every act of association between or with members of a declared organisation. Thirdly, the court must make the order against the particular defendant, without the court making any inquiry for itself about what the subject of the order has done, or may do in the future, or any inquiry about what the executive may have concluded that the subject of the order has done, or may do in the future. [223] Section 14(1) of SOCCA thus stands in sharp contrast with the [2.640]
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South Australia v Totani cont. provisions of the Criminal Code (Cth) that were in issue in Thomas v Mowbray ((2007) 233 CLR 307 at 328–329). Provisions of Div 104 of Pt 5.3 of the Criminal Code permitted the making of control orders in relation to a person in certain circumstances. Those circumstances included the issuing court being satisfied that “making the order would substantially assist in preventing a terrorist act” or that the person against whom the order was to be made was a person who “has provided training to, or received training from, a listed terrorist organisation” 104.4(1)(c)). Moreover, s 104.4(1)(d) of the Criminal Code provided that an issuing court may make a control order of the kind in issue in Thomas v Mowbray “only if … satisfied … 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 from a terrorist act” (emphasis added). [224] Unlike s 14(1) of SOCCA, the provisions of the Criminal Code in issue in Thomas v Mowbray thus required the issuing court to be satisfied either that the person against whom the order was to be made had engaged in particular past conduct, or that the order would have an identified consequence. The past conduct in issue under the Criminal Code provisions was conduct which the Criminal Code made unlawful. The relevant consequence (of protecting the public from a terrorist act) had to be related directly to the defendant (as did the fact of past conduct), because a control order could be made only if each particular aspect of the proposed order (as it operated against the defendant) was both reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act. And, as explained in Thomas v Mowbray (at 328–329), other forms of preventive order, like apprehended violence orders, depend upon inquiries no different in substance from those that were required under the provisions in issue in that case. 88 [225] In summary, then, s 14(1) requires the Magistrates Court to perform functions that have the following characteristics: 1.
upon application by the Executive, the Magistrates Court must make a control order against a person who is shown to be a member of a declared organisation;
2.
a control order imposes significant restrictions on the defendant’s freedom of association, over and above the restrictions that are generally applicable to others dealing with members of declared organisations;
3.
a control order must be imposed without any judicial determination (and without the need for any executive determination) that the defendant has engaged, or will or may engage, in criminal conduct;
4.
a control order will preclude the defendant’s association with others in respect of whom there has been no judicial determination (and without the need for any executive determination) that those others have engaged, or will or may engage, in criminal conduct;
5.
a control order creates new norms of conduct, contravention of which is a crime;
6.
making a control order neither depends upon, nor has the consequence of, ascertaining, declaring or enforcing any existing right or liability, whether of the defendant, any other member of the subject organisation, the subject organisation itself, or any other organisation (declared or not).
[226] All of these features of the task that is given to the Magistrates Court are important to the conclusion that performance of that task is repugnant to, or incompatible with, the institutional integrity of the Court. The task is repugnant to, or incompatible with, the institutional integrity of the Court because the Court is enlisted, by the Executive, to make it a crime, for particular persons upon whom the Executive fixes, to associate together when, but for the Court’s order, the act of association (as distinct from repeated and persistent associations of the kind with which s 35 deals) would not be a crime. Those whom the Executive chooses, for the compulsory imposition of a special regime by order of the Magistrates Court, must be drawn from a group determined by the Executive to be an organisation that “represents a risk to public safety and order in [the] State” (s 10(1)(b)). But it is no part of the function of the Magistrates Court under SOCCA to determine what the particular defendant has done, or may do in the future. The Court is required to act on the assumption that “membership” of a declared organisation requires imposition of limitations on the freedom of the 170
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South Australia v Totani cont. defendant which are not otherwise imposed, when the legislation does not make either the fact of membership of the organisation, or the continued existence of the organisation, unlawful. That is, upon the motion of the Executive, the Court is required to create new norms of conduct, that apply to a particular member of a class of persons who is chosen by the 89 Executive, on the footing that the Executive has decided that some among the class (who may or may not include the defendant) associate for particular kinds of criminal purposes. It is not the business of the courts, acting at the behest of the executive, to create such norms of conduct without inquiring about what the subject of that norm has done, or may do in the future. To be required to do so is repugnant to the institutional integrity of the courts. … [228] Section 14(1) of SOCCA does not permit or require the Magistrates Court to determine the existence of any right or obligation. The Court is required to make a control order without enquiring how, if at all, that order will contribute to the legislative object of disrupting the criminal activities of identified groups, or the criminal activities of any individual. The obligations which are created by the Court’s order are not imposed on account of what the person against whom the order is directed has done, will do, or may do. [229] It is next important to recognise that the Court must act at the behest of the Executive. It is the Executive which chooses whether to apply for an order, and the Executive which chooses the members of a declared organisation that are to be made subject to a control order. So long as the person named as a defendant falls within the definition of “member”, the Court cannot refuse the Executive’s application; the Court must make a control order. That the Court must decide whether the defendant falls within the definition of “member” does not detract 90 from the conclusion that the Court is acting at the behest of the Executive. … [230] The courts are not to be used as an arm of the Executive to make unlawful the association between individuals when their associating together is not otherwise a crime, where such prohibition is to be imposed without any determination that the association of the particular individuals has been, will be, or even may be, for criminal purposes. [His Honour concluded at [236]–[237] that s 14(1) was invalid as:] What s 14(1) does is permit the Executive to enlist the Magistrates Court to create new norms of behaviour for those particular members who are identified by the Executive as meriting application for a control order. They are to be subjected to special restraint, over and above the limitations that the Act imposes on the public at large, not for what they have done or may do, and not for what any identified person with whom they would associate has done or may do, but because the Executive has chosen them. That function is repugnant to the institutional integrity of the Court that is required to perform it. Crennan and Bell JJ and Kiefel J joined the majority in invalidating s 14(1). Crennan and Bell JJ held (at 157 [428]): Legislation which draws a court into the implementation of government policy, by confining the court’s adjudicative process so that the court is directed or required to implement legislative or executive determinations without following ordinary judicial processes, will deprive that court of the characteristics of an independent and impartial tribunal – “those defining characteristics which mark a court apart from other decision-making bodies” (Forge v Australian Securities and Investments Commission at 76 [63], 78 [68] per Gummow, Hayne and Crennan JJ. See also Gypsy Jokers Motorcycle Club Inc v Commissioner of Police at 560 [39] per Gummow, Hayne, Heydon and Kiefel JJ). Such legislation would render that court an unsuitable repository of federal jurisdiction. [Their Honours concluded that s 14(1) involved the Magistrates Court in a process “so dependent on the Executive’s determination in the declaration, that is departs impermissibly from the ordinary judicial processes of an independent and impartial tribunal”. It saw the Court implement the Executive’s wish “without undertaking any independent curial determination, or adjudication” as to whether the party is in fact “poses a risk in terms of the objects of the Act”. This meant that the Court was forced “to act in a way which is incompatible with its constitutional position and the proper discharge of federal judicial responsibilities, and with its institutional integrity” (at 160 [436]). Similarly, Kiefel J held (at 173 [481]) that s 14(1) “involve[d] the enlistment of the Court to give effect to legislative and executive policy” and therefore compromised “the independence of the Court” and “its institutional integrity”. Heydon J issued a strong dissent. While his Honour accepted (at 103–104 [264]) that to be invalid under the Kable doctrine a law must be “repugnant to the judicial process in a fundamental degree” [2.640]
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South Australia v Totani cont. but that “State legislation compelling a departure to a significant degree from traditional methods and standards in carrying out judicial functions may be invalid, the absence of significant departure from those methods and standards points to validity”. He distinguished s 14 from the legislation struck down in Kable and found it could be aligned with the legislation the High Court found valid in Thomas v Mowbray. He rejected the submission that the Magistrates Court was nothing more than a “rubber stamp” (at 122 [320]) to the actions of the Attorney-General in ordering that a control order be made and held that “[t]he Kable doctrine is not infringed by legislation requiring the court to make an order if certain conditions are met” and “[n]or is it infringed if among those conditions is a particular decision by the executive” (at 129 [339]).]
[2.650]
Notes&Questions
1.
In South Australia v Totani French CJ (at 50–51 [76]) and Gummow J (at 66–67 [146]–[147]) rejected Western Australia’s submission that the functions that had been conferred on the state judicial branch, could instead have been allocated to the executive arm. What would have been the implications of this submission if it had been successful? On what basis did their Honours reject Western Australia’s submission?
2.
Do you think the majority was correct to distinguish s 14(1) from the Commonwealth control order legislation upheld in Thomas v Mowbray (2007) 233 CLR 307 (see Chapter 13, [13.330]). See, eg, the comment of Gummow J at 65 [140]: The operation of s 14(1) may be contrasted with that of the legislation the validity of which was upheld in Thomas v Mowbray … Section 104.4 of the Criminal Code (Cth) required, among other matters, that the court be satisfied on the balance of probabilities that the making of the interim control order “would substantially assist in preventing a terrorist act” or that the person in question had “provided training to, or received training from, a listed terrorist organisation”, these being offences under ss 101.1 and 102.5 of the Criminal Code. There was no anterior determination by the executive branch which was an essential element in the curial decision.
3.
French CJ outlines an open list of the “defining characteristics of courts” required by Chapter III of the Commonwealth Constitution. Chief Justice Spigelman has commented (“The Centrality of Jurisdictional Error” (2010) 21 Public Law Review 77, 80) that: The concept of a “constitutional expression” provides a textual basis for and, therefore, an aura of orthodoxy to, significant changes in constitutional jurisprudence. That aura dissipates when the court undertakes the unavoidably creative task of instilling substantive content to the constitutional dimension of a constitutional expression by identifying its “essential” features or characteristics.
Do you agree with this comment? Does it make the listing of “defining characteristics” of courts problematic? 4.
French CJ disavowed (at 48 [70]) the Solicitor General for South Australia’s submission that the constitutional inquiry should focus on whether a State court ceases to “satisf[y] the constitutional description ‘court of a State’”. Why did the Chief Justice reject this formulation? See also the dissenting judgment of Kirby J in Gypsy Jokers at 578 [105].
5.
See further C Steytler and I Field, “The “Institutional Integrity” Principle: Where Are We Now, and Where Are We Headed” (2011) 35(2) University of Western Australia Law Review 227; G Appleby and J Williams, “A New Coat of Paint: Law and Order
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and the Refurbishment of Kable” (2012) 40 Federal Law Review 1; B Lim, “Attributes and Attribution of State Courts – Federalism and the Kable Principle” (2012) 40 Federal Law Review 31. 6.
See also The Public Service Association and Professional Officers’ Association Amalgamated (NSW) v Director of Public Employment (2012) 87 ALJR 162 (at 166–167 [14] (per French CJ); at 175 [56]–[57] (per Hayne, Crennan, Kiefel and Bell JJ)) for consideration of the constitutionality of a State judge exercising “judicial functions (when sitting as a member of the Industrial Court [of New South Wales]) and non-judicial functions (when performing other functions of the [Industrial Relations] Commission [of New South Wales).” Would such a hybrid conferral of functions be permissible pursuant to a federal law?
[2.660] The Kable doctrine’s successful run in International Finance Trust and Totani halted
in Hogan v Hinch (2011) 243 CLR 506. The High Court in Hogan rejected the submission that the ability of a Victorian Court to make a suppression order under the Serious Sex Offenders Monitoring Act 2005 (Vic) to censor the names of particular sex offenders did not bestow “upon the court functions inconsistent with its essential curial characteristics” (at 542 [46] per French CJ) or “attack the institutional integrity of the State courts as independent and impartial tribunals” (at 554 [91] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). However, soon after in Wainohu v New South Wales (2011) 243 CLR 181 a majority of the High Court expanded the edges of the Kable doctrine slightly further. Across two majority judgments (a joint judgment of French CJ and Kiefel J and another judgment of Gummow, Hayne, Crennan and Bell JJ) the Court confirmed that the Kable incompatibility principle could extend to supervise functions conferred on state judges persona designata and that the absence of a judicial requirement to give reasons could influence whether a provision amounted to an incompatible function. French CJ and Kiefel J held (at 210 [47], 211–212 [50]) that: The principle in Kable also leads to the conclusion that a State legislature cannot enact a law conferring upon a judge of a State court a non-judicial function which is substantially incompatible with the functions of the court of which the judge is a member. Although the function may be conferred upon the judge in his or her capacity as an individual, the statute may create a close connection and therefore an association with the person’s role as a judge. Where this is the case, the potential for incompatibility of the non-judicial function is brought more sharply into focus… so long as that function is conferred upon the judge by virtue of his or her office as a judge… the fact that the function is conferred persona designata should not be given great weight. It would generally not be determinative of the question of compatibility.
Gummow, Hayne, Crennan and Bell JJ held (at 229 [105]) that: the Constitution does not permit of different grades or qualities of justice. It follows that repugnancy to or incompatibility with that institutional integrity may be manifested by State (and Territory) … as well as federal, legislation which provides for the conferral of functions upon a judicial officer persona designata.
The Crime (Criminal Organisations Control) Act 2009 (NSW) allowed judges of the Supreme Court of New South Wales, who consented, to be appointed as “eligible judges” under Part 2 of the Act. The Commissioner of Police could apply to an eligible judge for a declaration that an organization be a “declared organisation”. Such a declaration could then form the basis of a control order to the New South Wales Supreme Court under Pt 3 of the Act. The majority held that the fact that an eligible judge could make a declaration in relation to an organisation, being a substantive decision, without the provision of reasons was incompatible with the institutional integrity of the Supreme Court of New South Wales. Gummow, Hayne, Crennan and Bell JJ concluded that “[t]he effect of Pt 2 is to utilise confidence in impartial, reasoned [2.660]
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and public decision-making of eligible judges in the daily performance of their offices as members of the Supreme Court to support inscrutable decision-making” (at 230 [109]). In upholding the appeal, the majority found that Pt 2, and consequently Pt 3, were invalid. French CJ and Kiefel J also concluded that it was an essential attribute of a court that it “generally gives reasons for its decisions” and that, by virtue of s 73 of the Commonwealth Constitution, this was constitutionalised in relation to the State Supreme Courts (at 208–209 [44]). Their Honours however accepted that while this might be clearer for “final” or “important interlocutory decisions” (at 215 [58]), “the content and detail of the reasons to be provided – will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision” (at 215 [56]). The majority found that it was not sufficient that a judge might choose to provide reasons without an obligation to do so (at 219–220 [69], 228 [103]). Heydon J dissented. His Honour found that eligible judges were still able to furnish reasons for a decision although they were not obligated to do so. In accepting the submissions made by the State of Victoria, he found that the extension of the incompatibility principle to functions conferred persona designata was unfounded.
Momcilovic v The Queen [2.670] Momcilovic v The Queen (2011) 245 CLR 1 at 64–65, 222–224, 96, 184 [Ms Momcilovic sought to have her conviction for drug trafficking quashed on a number of constitutional grounds. Relevantly, for the purposes of this Chapter, Ms Momcilovic argued that ss 32(1) (in conferring a statutory interpretation function) and 36 (in empowering the Supreme Court to make a declaration of inconsistent interpretation) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) were invalid. A majority of the High Court (French CJ, Bell, Crennan and Kiefel JJ) found the relevant provisions of the Charter were constitutionally valid (with Heydon J dissenting as to the validity of s 32(1) and Gummow J, Hayne J and Heydon J dissenting from the majority in relation to the validity of s 36). Section 32(1) provided: “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(2) provided: “Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.” Much of the discussion in relation to the validity focused on the validity of a declaration of inconsistent interpretation under s 36 (see Chapter 11).] French CJ: 64 [88] The condition which enlivens the exercise of the power in s 36(2) is the formation by the Supreme Court, in a proceeding, of an opinion that a statutory provision cannot be interpreted consistently with a human right. The opinion must have been formed by the Court in carrying out its judicial function. By necessary implication, the opinion must have been part of the reasoning of the Court which led it to adopt an interpretation of the provision in question which was inconsistent with a human right. That interpretation will have affected the resolution of the proceedings before the court in which the rights and liabilities of the parties were determined. The declaration under s 36, however, does not decide or affect those rights or liabilities. Nor does it have any effect upon the operation of the statutory provision. It has only one legal consequence and that is to enliven the obligations imposed upon the Attorney-General and the relevant Minister by s 37 of the Charter. It is not a declaration of a kind that could be made in the exercise by the Supreme Court of its general powers to award declaratory relief. The question is whether it is a declaration which involves the exercise of judicial power. Gaudron J in Truth About Motorways ((2000) 200 CLR 591 at [52]) said: [A] declaration cannot be made if it “will produce no foreseeable consequences for the parties”. That is not simply a matter of discretion. Rather, a declaration that produces no foreseeable consequences is so divorced from the administration of the law as not to involve a 174
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Momcilovic v The Queen cont. matter for the purposes of Ch III of the Constitution. And as it is not a matter for those purposes, it cannot engage the judicial power of the Commonwealth. Although her Honour was speaking in relation to the exercise of Commonwealth judicial power, her observation has a wider significance for the proper subject matter and purposes of declarations in the exercise of judicial power generally and reflects what was said in that wider context in Gardner v Dairy Industry Authority (NSW) ((1977) 138 CLR 646, 52 ALJR 180 at 184 per Barwick CJ; at 188 per Mason J, Jacobs and Murphy JJ agreeing; at 188–189 per Aickin J). 65 [89] Despite its form and its connection to the proceedings before the Supreme Court and to the reasoning of the Court leading to the disposition of those proceedings, a declaration of inconsistent interpretation made under s 36 does not involve the exercise of a judicial function. At the point at which such a declaration is made the Court will have decided all matters relevant to the disposition of the proceedings. The power conferred by s 36 plays no part in that process. The declaration sets down no guidance for the disposition of future cases involving similar principles of law. It has no legal effect upon the validity of the statutory provision which is its subject. It has statutory consequences of a procedural character. Those statutory consequences are relevant to the Attorney-General as a member of the Executive and as a member of the Victorian Parliament and to the Parliament itself. [90] The declaration of inconsistent interpretation cannot be regarded as analogous to the judicial function nor to any functions historically exercised by courts and which, for that reason, have been regarded as judicial. [French CJ (with Bell J agreeing) found that a declaration of inconsistent interpretation by the Victorian Supreme Court was not a judicial function, or a function suitably incidental to a judicial function. However, the Chief Justice observed that this was “not fatal to its validity” (at 66 [92]). The remaining question was whether the non-judicial function was “compatible with the institutional integrity of the State Court and its status as a repository of federal jurisdiction” (at 66 [92]). His Honour found that the function was “consistent with the existing constitutional relationship between the Court, the legislative and the Executive” (at 67 [95]) but that “[b]y exemplifying the proper constitutional limits of the Court’s functions it serves to reinforce, rather than impair, the institutional integrity of the Court” (at 68 [97]). Its non-judicial nature did, however, mean that it could not go on appeal to the High Court, within s 73 of the Commonwealth Constitution (at 70 [101]). Crennan and Kiefel JJ held that while bringing about “a novel alteration to the customary interchange between courts and Parliament” (at 207 [534]), s 36 was not unconstitutional or incompatible when it involved a function incidental to the exercise of judicial power and was made sufficiently independently of the executive and the legislature (see 221–228 [582]–[603].)] Crennan and Kiefel JJ: 222 [584] A declaration under s 36(2) is not directed to the determination of a legal controversy and has no binding effect. It is not an exercise of judicial power. The declaration of inconsistency for which s 36(2) provides is in the nature of a statement, made by the Supreme Court following upon its interpretation of a statutory provision in the context of the Charter, that an inconsistency between the two statutes is evident, and of which the Attorney-General is notified. In that sense it constitutes a conclusion but not an advisory opinion of the kind with which this Court was concerned in Re Judiciary and Navigation Acts ((1921) 29 CLR 257 at 266–267) and which the Court was required by those Acts to give. It is a formal conclusion arising out of the exercise undertaken by the Supreme Court in respect of s 32(1). That exercise under s 32(1) is integral to the resolution of the “matter” between the appellant and the first respondent. Standing alone, s 36 could not give rise to any “matter” within the meaning of Ch III of the Constitution. [585] The Attorney-General relied upon the fact that, pursuant to the Charter, a declaration is to be made in the course of proceedings where a question of interpretation concerning the Charter is raised, the resolution of which might affect an accused’s rights or liabilities. But neither the placement by the legislature of the declaration within the course of the proceedings, nor the joinder of the Attorney-General and the Commission to the proceedings, can clothe the declaration made by the Court of Appeal with the qualities of a declaratory order made in connection with the “matter” which was the subject of the trial of the appellant. The interpretation of s 5 of the Drugs Act 1908 formed part of that matter, for it concerned questions as to the essential elements of the offence with which the appellant was charged and the obligations of the parties to prove those elements. It concerned the [2.670]
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Momcilovic v The Queen cont. right of the appellant to require the Crown to prove her possession of the drugs for the purpose of sale. [586] The declaration involves a separate question, as to whether s 5 of the Drugs Act 1908 is compatible with s 25(1) of the Charter. It may be said that the inquiry into that question has a connection to the matter the subject of the appellant’s trial, or that it is incidental or ancillary to it. The determination of the question of inconsistency with the Charter and a declaration giving expression to that determination does not establish 223 any right, duty or liability (Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265). The purposes of a declaration do not involve the administration of the law, but rather its possible alteration. A statement or conclusion, made incidentally to the exercise of judicial power, which induces a change in legislation, is not a judicial decision. [587] The consequences which are produced by the declaration are largely steps which the Charter requires the Attorney-General or the relevant Minister to take, once the inconsistency has been notified. It is not necessary to determine the extent of those obligations and whether they are of such a nature as to be enforceable. For present purposes it may be observed that they are not consequences which follow from the determination of the matter involving the appellant. This is not to say that it may not be possible for a law to be framed in such a way that a “matter” could arise for which a declaration was the legal consequence: for example, if it were binding between the parties. But that position does not pertain with respect to the Charter. [588] The discussion in Mellifont v Attorney-General (Qld) ((1991) 173 CLR 289) provides assistance. There, provision was made for the referral by the Attorney-General of the State of Queensland of a point of law arising in a criminal trial to the Court of Criminal Appeal for determination and opinion, even though the proceedings had resulted in an acquittal. But as this Court explained, the answer given was not divorced from an attempt to administer the law (Mellifont at 303, referring to Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 266–267). The answers provided by the Court of Criminal Appeal constituted an important step in the judicial determination of the rights and liabilities of the parties in the trial of the accused (Mellifont at 303). The effect of the decision on the reference was to correct an error of law in the trial judge’s ruling in those proceedings (Mellifont at 305). [589] The exercise of judicial power by the Court of Appeal in proceedings concerning the interpretation of s 5 of the Drugs Act 1908 placed that Court in a position to identify any inconsistency between s 5 of the Drugs Act 1908 and s 25(1) of the Charter, and to draw a conclusion in respect of that inconsistency. That connection is not sufficient to render the power to make a declaration an exercise of judicial power, but it serves to show that the making of a declaration is a function incidental to an exercise of judicial power. This distinguishes such a function from the act of making a declaratory order about a hypothetical matter, which has been observed to be beyond the boundaries of judicial power (Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582). 224 [590] In this regard it is important to recall that the declaration un