Law Case Analysis

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2016 Thomson Reuters

Business and the Law 6e Cover

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2016 Thomson Reuters

Business and the Law 6e Publication Information

Published in Sydney by

Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668

19 Harris Street, Pyrmont, NSW

First edition (Harcourt Brace) 1994

Second edition (Harcourt Brace) 1997

Third edition (Thomson Learning) 2003

Fourth edition (Thomson Learning) 2005

Fifth edition (Cengage Learning) 2009

National Library of Australia

Cataloguing-in-Publication entry

Terry, Andrew - author.

Business and the law / Andrew Terry and Des Giugni.

6th edition

9780455236582 (paperback)

Includes index.

Commercial law--Australia. Law--Australia.

Giugni, Des - author.

346.9407

© 2016 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 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers.

Editor: Zoe Haynes Product Developers: Natasha Naude and Vickie Ma Publisher: Robert Wilson

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2016 Thomson Reuters

Business and the Law 6e Foreword

Foreword

Michael T Schaper, BA, MComm, PhD

Deputy Chairman, Australian Competition & Consumer Commission, Canberra

The myriad business laws and regulations that we have in Australia provide the basis upon which most commercial activity is undertaken. Simply put, it spells out what we can – and can’t – do in a business context: the legal structures that can be used, the ways in which firms compete or otherwise deal with each other, the behaviours that are acceptable when selling to customers, how we can resolve disagreements, and the way in which risk is managed, to name just a few.

In short, it is the framework around which all commercial trading and activities takes place.

Learning the basics of business law is often seen as a tedious necessity by many students, especially those without any prior exposure to the law and its peculiarities. But it’s a crucial ingredient for anyone seeking to build a truly successful career in business or commerce. Knowing the rules of the game is an important first step in being able to successfully operate as a manager, business owner, entrepreneur, employee, director or investor.

Understanding the law is essential in many different ways.

Firstly, it is an important operational factor for many businesses. Our web of laws and regulations jointly provide the framework that underpins almost all the other activities of business. They spell out such basic issues, for example, as how we employ people, the manner in which we collect and report our accounting information, and what claims can be made in an advertisement, as well as penalties for non-compliance. Secondly, the competitive nature of business makes it almost inevitable that, sooner or later, most firms will come into conflict or contention with someone else. How such disputes are managed, adjudged and resolved is an important feature of the contemporary legal environment. Our legal system may seem to focus on the responsibilities of businesses, but it also contains important rights and protections for firms. Knowing what these are, how they can be exercised, and the benefits of such measures can be a great help to the savvy business operator. Finally, our laws can be a great source of competitive advantage for those who bother to learn how they work, and why. The law matters to everyone, not just lawyers. Not everyone understands the law equally, and those who take the time to understand what the rules are, and what is permitted, can often plan strategically in a way that others don’t. Conversely, history is littered with many examples of enterprises that have come unstuck by ignoring or downplaying one or other of their legal responsibilities.

As the many cases and examples provided in this book show, the law is an evolving, challenging aspect of the business environment. It is full of fascinating and sometimes confusing issues, and there are many grey areas open to multiple analyses, challenges and debate. Its interpretation and application is not always clear, but it is always important.

This sixth edition of Business and the Law will provide you with a comprehensive overview of most of the key legal aspects you’re likely to encounter in the Australian business environment. Each of the sections in this book is valuable, and will help you to develop a better understanding of how laws are made, what they seek to do, and – perhaps most importantly – how they actually operate in practice. I commend it to you.

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2016 Thomson Reuters

Business and the Law 6e Preface

Preface

Over 20 years ago the Preface to the first edition of Business, Society and the Law, as this book was then titled, noted that:

The law is not simply peripheral to commerce. The transactions and relationships that constitute commerce are embedded in the law. The entire fabric of commerce is woven from a complex legal regime, statutory and judge made, which regulates all commercial activity and in relation to which the legality and enforceability of all commercial activity must ultimately be assessed.

This proposition is even more valid today in the light of a legal and regulatory regime which is increasingly pervasive and increasingly complex and increasingly significant. It is the hope of the authors that this text will lead to a more productive relationship between business students and this regulatory regime. We believe that the study of law need not intimidate students but rather that it should attract them. Its subject matter, reflecting as it does on all aspects of life, traverses the range from the gravely serious to the highly entertaining. While the law is not an easy pursuit it should interest and enthuse. This is our hope for this book.

It perhaps reflects the increasing complexity of contemporary business that this sixth edition of Business and the Law has its sixth publisher. Restructures, mergers, acquisitions and copyright assignments have seen a new publisher for each edition. I am delighted that this edition is published by Thomson Reuters, Australia’s premier legal publisher. I am grateful to Nick Riley for suggesting a new edition with Thomson Reuters and to Robert Wilson for his enthusiastic support. Particular thanks to Natasha Naude who started the project and to Vickie Ma who has had the task of managing the project to completion. Their grace and style in the face of obfuscations and excuses for deadlines not being met, and their wise counsel at all stages of the project, is acknowledged and appreciated. It reflects the virtual world we live in that I have not met my New Zealand based editor, Sarah Hullah, but my thanks to her also for converting the manuscript into the house style and to Zoe Haynes, who has edited and refined the product. My thanks also to Dr Michael Schaper, Deputy Chair of the Australian Competition and Consumer Commission for contributing the Foreword. The ACCC not surprisingly features prominently in an Australian business law text and all contributors are delighted that he has graced this edition with his Foreword.

This edition also features a new team of contributors – colleagues in the Discipline of Business Law in The University of Sydney Business School who have enthusiastically embraced the challenge of breathing new life into an established text. I am grateful for their commitment and support and contribution. And to Vinty Lim for his research and secretarial assistance. I also acknowledge the contributions of contributors to earlier editions who have all added value to the original text written by Des Giugni and me. Des has stepped back from the current edition but his influence continues to resonate and his style continues to enliven so many of the pages. My personal debt to him is inestimable.

Andrew Terry

March 2016

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2016 Thomson Reuters

Business and the Law 6e Table of Contents

Table of Contents

Foreword

Preface

Contributors

Table of Cases

Table of Statutes

PART 1 THE AUSTRALIAN LEGAL SYSTEM

Chapter 1: The Law, the Legal System and the Constitution

Chapter 2: The Courts and Common Law

Chapter 3: The Parliament and Statute Law

Chapter 4: The Executive and Law-making by Administrative Agencies

Chapter 5: Commercial Dispute Resolution

PART 2 GENERAL PRINCIPLES OF BUSINESS LAW

Chapter 6: Contracts: Concepts of agreement

Chapter 7: Contracts in Business

Chapter 8: Torts: Concepts of Liability

Chapter 9: Property and securities: Concepts of ownership

Chapter 10: Crime: Concepts of control

PART 3 BUSINESS ORGANISATION AND OPERATION

Chapter 11: Alternative Business Structures

Chapter 12: Relationships in Business: Distributors, Agents, Employees, Independent Contractors

Chapter 13: Franchising

Chapter 14: Privacy

Chapter 15: International Business

Chapter 16: Business Failure

PART 4 BUSINESS, CONSUMERS AND FAIR TRADING

Chapter 17: The Australian Consumer Law

Chapter 18: Misleading or Deceptive Conduct

Chapter 19: Unconscionable Conduct and Unfair Contract Terms

Chapter 20: Advertising and Sales Promotion

Chapter 21: Supply of Goods and Services

PART 5 BUSINESS AND COMPETITIVE TRADING

Chapter 22: Competition Law

Chapter 23: Intellectual Property

PART 6 BUSINESS AND THE LAW

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Business and the Law 6e Table of Contents

Chapter 24: Business Regulation, Risk and Compliance

Index

CHAPTER 1

The Law, the Legal System and the Constitution

Andrew Terry

THE BUSINESS CONTEXT

Australia is a well-developed nation commercially, politically and socially. Those characteristics

of an advanced society are held in place by a complex set of rules that make up the law and by a

similarly complex system which administers that law. In the daily lives of all of us the law is at

work, unceasingly, sometimes surreptitiously but as essential to the functioning of the state as is

oxygen to the body. An informed understanding of contemporary business law requires an

understanding of the underlying legal system through which laws are made and applied and

interpreted and enforced. This chapter aims to provide that understanding.

[1.10] 1.1 THE NATURE AND THE ROLE OF LAW ............................................................................... 3

[1.40] 1.2 THE REQUISITES OF LAW .................................................................................................... 5

[1.50] Certainty ................................................................................................................... 5

[1.60] Flexibility ................................................................................................................... 6

[1.70] Fairness ...................................................................................................................... 6

[1.80] Accessibility ............................................................................................................... 6

[1.90] 1.3 THE SOURCES OF LAW ........................................................................................................ 7

[1.100] Customary law ......................................................................................................... 7

[1.120] Common law ............................................................................................................ 8

[1.130] Common (case) law ................................................................................................. 9

[1.140] Legislation ................................................................................................................. 9

[1.150] Common law and equity ...................................................................................... 10

[1.160] 1.4 LAW, ORDER, JUSTICE AND MORALITY ........................................................................... 10

[1.180] Law and order ........................................................................................................ 11

[1.200] Law and morality ................................................................................................... 13

[1.220] Law and justice ....................................................................................................... 14

[1.250] 1.5 THE NATURE AND ROLE OF A LEGAL SYSTEM ................................................................ 16

1

[1.290] 1.6 THE DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM ........................................... 19

[1.290] The reception of English law ................................................................................. 19

[1.300] Terra nullius, Mabo and native title ...................................................................... 19

[1.340] The constitutional development of the Australian colonies ............................... 22

[1.360] State constitutions ................................................................................................. 22

[1.380] Increasing legislative authority ............................................................................. 23

[1.390] Federation ............................................................................................................... 24

[1.400] Enactment of the Commonwealth Constitution ................................................ 24

[1.410] Breaking the colonial ties ...................................................................................... 25

[1.420] 1.7 AN OUTLINE OF THE AUSTRALIAN LEGAL SYSTEM ....................................................... 26

[1.430] A constitutional monarchy .................................................................................... 26

[1.440] Federation, the Constitution and the division of powers ................................... 26

[1.450] The separation of powers ...................................................................................... 26

[1.460] Responsible government ....................................................................................... 27

[1.480] The sovereignty of Parliament .............................................................................. 28

[1.490] The rule of law ........................................................................................................ 28

[1.510] The Australian legal system ................................................................................... 29

[1.520] 1.8 THE CONSTITUTION ......................................................................................................... 30

[1.520] The Constitution .................................................................................................... 30

[1.550] Chapter I: The Parliament ..................................................................................... 32

[1.560] Chapter II The Executive Government ................................................................. 33

[1.570] Chapter III The Judicature ..................................................................................... 33

[1.580] Chapter IV Finance and trade ............................................................................... 34

[1.590] Chapter V The States ............................................................................................. 34

[1.600] Chapter VI New States ........................................................................................... 34

[1.610] Chapter VIII Alteration of the Constitution .......................................................... 34

[1.640] Implied rights under the Constitution ................................................................. 37

[1.670] 1.9 THE SEPARATION OF POWERS – LEGISLATURE, EXECUTIVE AND JUDICIAL POWERS ..................................................................................................................................... 39

[1.680] Legislative power .................................................................................................... 39

[1.690] Executive power ..................................................................................................... 40

[1.700] Judicial power ......................................................................................................... 41

[1.710] The separation of powers under the Constitution .............................................. 42

[1.780] 1.10 PARLIAMENTARY SOVEREIGNTY ..................................................................................... 45

[1.780] The struggle for legislative supremacy ................................................................. 45

[1.810] The sovereignty of Parliament in Australia .......................................................... 46

[1.820] Legal sovereignty and manner and form provisions .......................................... 47

2

[1.830] Political sovereignty ............................................................................................... 47

[1.840] 1.11 THE DIVISION OF LEGISLATIVE POWER BETWEEN THE COMMONWEALTH AND THE STATES ........................................................................................................................................ 48

[1.850] Exclusive powers .................................................................................................... 48

[1.860] Concurrent powers ................................................................................................ 48

[1.870] Residual powers ...................................................................................................... 49

[1.880] 1.12 THE LEGISLATIVE COMPETENCE OF THE COMMONWEALTH .................................... 49

[1.890] The interpretation of the concurrent powers ...................................................... 51

[1.920] Inconsistency between Federal and State laws ................................................... 53

[1.950] The expansion of Commonwealth legislative competence through the external affairs power ........................................................................................................... 55

[1.1010] The expansion of Commonwealth legislative competence through the corporations power ................................................................................................ 57

[1.1040] 1.13 FREEDOM OF INTERSTATE TRADE AND COMMERCE .................................................. 60

[1.1090] 1.14 THE CONTINUING DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM ............... 62

[1.1100] The parliamentary system and the role of the Executive ................................... 62

[1.1110] The changing role of the High Court ................................................................... 63

[1.1130] The increasing Australianness of Australian law .................................................. 63

[1.1140] A Bill of Rights? ....................................................................................................... 64

[1.1200] The move to a republic? ........................................................................................ 66

[1.1210] Expanding Commonwealth jurisdiction .............................................................. 67

[1.1250] The financial strength of the Commonwealth .................................................... 69

[1.1260] The Uniform Tax Scheme ...................................................................................... 69

[1.1300] Tied grants .............................................................................................................. 71

[1.1330] Uniform legislation in a federal system ................................................................ 71

[1.1340] Ceding powers ....................................................................................................... 71

[1.1350] National cooperative schemes .............................................................................. 72

1.1 THE NATURE AND THE ROLE OF LAW

[1.10] The initial inquiry in a book of this nature must be as to the essential quality of the

law. This is a very big topic, which over the centuries has engaged the attention of the

world’s greatest philosophers. It does not do justice to the complexity of this debate but, for

our purposes, it is sufficient to describe the law as essentially the system of control through

which society operates. The law is a necessary and inevitable requirement of a civilised

society. Life as we know would not be possible without a comprehensive body of law that

regulates our social lives and our business lives – indeed every aspect of human endeavour.

Even primitive societies develop systems of social control which may derive their authority

from customs which have developed over time rather than from the commands of the

person or body with the acknowledged power to make rules for that community. Today

3

most of the world’s seven billion inhabitants are subject to much more sophisticated,

comprehensive and voluminous laws made by the body to which a country’s legal system

enshrined in its constitution is entrusted with that role.

A society such as ours has a ferocious appetite for law and our nine legislatures – federal,

State and Territory – enact well over 20,000 pages of legislation every year. In the words of

Henry Bosch over 30 years ago when he was the Chairman of the body that is now the

Australian Securities and Investments Commission (ASIC) – despite the lure of

deregulation it necessarily remains a fact of modern life that economic and social growth

“depends on a highly complex economy which requires sophisticated rules and enforcement

procedures across a wide range of activities”.

[1.20] In the middle ages there was wide support for a theory of natural law – that the

ultimate test of a law’s validity was its conformity with the principles of reason and justice

flowing from the law of nature (frequently identified with the law of God). The rules of

natural law were thought to bind all earthly authorities. No sovereign, government or church

could enact a law in contradiction to those rules. Any attempt to do so was thought to be

completely ineffectual. Attacks on the theory of natural law ultimately led to the

development of the jurisprudential theory which became known as positivism. In essence,

positivism requires that society be obedient to a certain superior: this superior (or sovereign,

in our case a parliament) issues commands enforced by sanctions. This is how positive law

operates. The two essential elements are that rules of conduct are enforced by the

imposition of a sanction, the whole bolstered by the sovereign power of the law maker.

Whereas today natural law may be regarded as what the law ought to be, positive law is

what the law is. Positive law is contained in the mass of statutes, regulations and case law

that together make up our law.

[1.30] A contemporary issue which raises the natural law/positivism dichotomy is the

relationship between law and morality, between law and ethics. It is accepted that the law is

a systematic set of rules to control conduct within a society and a modern view requires that

the rules should reflect the changing values of society, especially in sensitive moral and

ethical areas so that as science advances and makes possible new methods of eg healing

disabilities, the law should change to allow such processes (see the cloning debate). Justice

Windeyer of the High Court of Australia remarked that “the law marches with medicine, but

in the rear and limping a little” (Mount Isa Mines Ltd v Pusey [1970] HCA 60 at [3]). The

place of the law in a dispute with considerable social, political, economic and emotional

consequences is nevertheless clear – in the words of the Full Federal Court in Patrick

Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] FCA 397 the

business of the court is “legality”. That case arose out of a hotly contested dispute between

Patrick Stevedores, a shipping company seeking extensive reform of waterfront labour

practices, and the Maritime Union. The court stated that:

Before dealing with the case as presented, it is perhaps useful for us to say a word on what the case is not about. We do so because many commentators … appear to have laboured under a misconception of the role of a court in a situation like this.

As individuals, each member of the Bench, like all sensible Australians, is in favour of an efficient waterfront. Export income is the economic lifeblood of our nation. Most of our exports depart by sea, many through container terminals. It is obviously important to ensure that the

The law is the witness and

external deposit of our moral life. Its history is the

history of the moral

development of the race. The

practice of it, in spite of popular

jests, tends to make good

citizens and good men.

Justice Oliver Wendell

Holmes JR.

The law is like an ice-cream

container full of hot, steamy,

juicy pies … they just mix it all up together.

Sir Joh Bjelke-Petersen,

The Bulletin (20 July 1993).

4

operation of container terminals is as efficient and economical as reasonably possible. But these are personal views. We each have personal views, not necessarily identical, about how this might best be achieved. But the Court, as a Court, has no view about such matters. The Court does not have the material that would be necessary for it to make a judgment about the efficiency of the Australian waterfront, either in absolute terms or relative to other countries, the causes of such inefficiencies as may exist, or the desirable steps to overcome any perceived problems. This material has not been placed before the Court because the parties have realised, although some commentators have not, that these are not issues for the Court’s determination. The business of the Court is legality. Just as it is not unknown in human affairs for a noble objective to be pursued by ignoble means, so it sometimes happens that desirable ends are pursued by unlawful means. If the point is taken before them, courts have to rule on the legality of the means, whatever view individual judges may have about the desirability of the end. This is one aspect of the rule of law, a societal value that is at the heart of our system of government. It follows that this judgment should be seen only as a judgment about legal issues, not a view about the social, economic and political arguments concerning waterfront management that have dominated the media during the last couple of weeks.

1.2 THE REQUISITES OF LAW

[1.40] The legal rules which govern the complex interactions in society and which form

the legal system under which we live depend for much of their strength on widespread

community acceptance. To gain that acceptance the laws must possess certain qualities.

While there may be some debate as to the exact range of those necessary characteristics, it

is clear that at least the following are essential:

• certainty;

• flexibility;

• fairness; and

• accessibility.

Certainty

[1.50]

The degree of certainty required, of course, falls short of the absolute. What is necessary is

that people, in both their personal and their business lives, should be able to form

relationships with others, enter into contracts, and acquire and dispose of property

reasonably secure in their knowledge of what they are doing and their understanding of its

effects. One of the powerful arguments against the retrospective operation of new laws is

that this may make unlawful an act which was lawful at the time it was done, or change the

effect of an agreement after it was entered into. Similarly, the argument raised by the

business community (in relation to the current trend to confer broad discretions on the

courts eg misleading or deceptive conduct or unconscionable conduct) is that justice

between individuals is sought at the expense of predictability on which the operation of

business relies. The orderly conduct of business is incompatible with unpredictability of the

relevant law, but to seek too great an element of certainty is inconsistent with the equally

legitimate demand for flexibility to achieve justice in individual cases.

They (the Law Lords) think the great aim is certainty in the law. My aim is justice. Lord Denning, Sunday Times, United Kingdom (1 August 1982).

5

Flexibility

[1.60] Modern society is complex and continually changing and the law must be able to

respond without undue delay to the challenge of change at all levels of society. In the words

of the American jurist Benjamin Cardozo, “the law, like the traveller, must be ready for the

morrow” (The growth of the law (Yale University Press, 1924) p 19). A change in moral

values brings with it a need for a corresponding adjustment of the law, not all are greeted

with unanimous approval. Additionally, the increasingly complex demands made by the

rapid advance of technology have required flexibility and change in the law. To say that

does not override the earlier requirement of certainty. What it does require is a readiness on

the part of the law to adapt to changing circumstances, to react to new and unforeseen

situations and, where possible, to predict developments and have in place rules and

structures to cater for them as they arise. The subject matter may be largely ethical (eg

dealing with the rapid advance in medical technology) or it may be largely commercial (eg

facilitating new business structures and regulating innovative commercial conduct), but in

all cases the law must respond accordingly.

Fairness

[1.70]

In a modern democratic society the effectiveness of a law ultimately depends upon its

acceptance, or at least toleration, by members of that society. That will not be available

where a law is manifestly inequitable, unfair or unreasonable. The classic example is the

prohibition laws of the United States in the late 1920s, which prohibited the production, sale

and consumption of alcohol. The view in the community that the Prohibition Amendment

was unfair and unreasonable led to its widespread violation, the growth of organised crime

and, ultimately, its repeal in 1933. The requirement of fairness also encompasses the need

for the law to reflect the moral and ethical concerns of society, and for it to endeavour to

move with changing societal standards.

Accessibility

[1.80] Ignorance of the law does not excuse liability for its breach. Despite the

often-heard assertion that everyone is presumed to know the law, the fact is that no one

knows all of it. What is important, however, is that all should have access to that knowledge

either directly or through the intermediary of a legal adviser. A former chief justice of the

High Court of Australia (Sir Garfield Barwick in Watson v Lee [1979] HCA 53 commented

that “to bind the citizen by a law, the terms of which he has no means of knowing, would be

a mark of tyranny”: at [5]. While the law is increasingly accessible in an age of information

technology (see eg http://www.austlii.edu.au) such access does not solve the more complex

problem of citizens understanding the massive regulatory regime that governs them.

The law and justice are not synonymous.

Rather, the law is to justice what

the violin is to music, simply an

imperfect vehicle. Like a Stradivarius, it

often needs fine-tuning.

Granoff LH, Letter to the editor, Time

Magazine (1 March 1993).

6

1.3 THE SOURCES OF LAW

[1.90] With the increasing sophistication of society, customary law – the unwritten laws

established by habitual use by a community – is no longer a source of law of any real

significance in Australia and other developed countries. Under Australia’s common law

legal system, which is described below, the law was originally developed by judges through

their decisions in disputes that came before them. While the role of the judges in developing

the common law remains a central characteristic of our legal system it is legislation – the

written law made by the legislature, the Federal Parliament in the Australian context – that

is the dominant source of law today.

Customary law

[1.100] In its most general sense, customary law consists of unwritten law established by

the habitual use of a group of people, usually the inhabitants of a particular territory, over a

long period of time. English law, which provides the heritage for Australian law, has its

genesis in customary law administered in local community courts. It was not until after the

Norman Conquest in 1066 that customary law became incorporated as part of the common

law, and since that time it has not represented a significant force in that legal system. In a

less-developed legal system, customary law has a more important role.

With the increasing sophistication of a legal system the influence of custom as a separate

source of law is minimal. Customs that are generally applied become incorporated in the

common law and, at a later stage of development, may be enshrined in legislation. An

example is provided by the Sale of Goods Act 1893 (UK) which provided the model for the

sale of goods legislation adopted in each Australian State and Territory. The accepted trade

customs and practices of merchants which developed in England in the eighteenth and

nineteenth centuries were recognised and applied as the “law merchant” by special

mercantile courts prior to being incorporated by the common law courts as part of the

common law. The 1893 Act was virtually a codification in statutory form of the common

law that had developed from habitual mercantile customs.

Today the scope for custom to generate new law is very restricted. One area in which it

retains an influence is in contract law where the existence of a custom or usage will justify

the implication of a term into a contract if there is evidence that the matters relied on are so

well known and acquiesced in that everyone making a contract in the situation can

reasonably be presumed to have imported a term embodying them into the contract

(Con-Stan Industries of Australia Pty v Norwich Winterthur Insurance (Australia) Ltd

[1986] HCA 14).

When asked by anthropologists what the Indians called America before the white man came, an Indian said simply, Ours. Vine Deloria.

7

IN CONTEXT

Indigenous customary law

[1.110] The extent to which the Australian legal system should recognise

customary Aboriginal and Torres Strait Islander laws that sit outside the formal

legal system raises complex issues. In Walker v New South Wales [1994] HCA 64,

the High Court held that Australian criminal law could not accommodate an

alternative body of customary Indigenous criminal law operating alongside it.

Mason CJ stated (at [4]-[6], references omitted) that:

counsel for the plaintiff … submitted that the question which arose was whether customary Aboriginal criminal law is something which has been recognised by the common law and which continues to this day …

That proposition must be rejected. It is a basic principle that all people should stand equal before the law. A construction which results in different criminal sanctions applying to different persons for the same conduct offends that basic principle. The general rule is that an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons and matters. The rule extends not only to all persons ordinarily resident within the country, but also to foreigners temporarily visiting. And just as all persons in the country enjoy the benefits of domestic laws from which they are not expressly excluded, so also must they accept the burdens those laws impose. The presumption applies with added force in the case of the criminal law, which is inherently universal in its operation, and whose aims would otherwise be frustrated …

Even if it be assumed that the customary criminal law of Aboriginal people survived British settlement, it was extinguished by the passage of criminal statutes of general application … English criminal law did not, and Australian criminal law does not, accommodate an alternative body of law operating alongside it.

There is wide acceptance that Indigenous laws have been treated with disdain

and that their recognition, particularly customary laws dealing with marriage,

adoption, inheritance and family relationships, is long overdue. The

recommendations of the Australian Law Reform Commission (Recognition of

Aboriginal Customary Laws, Report No 31 (1986)) have been given greater

impetus by the Mabo decision (see [1.300]) but recognition of Indigenous

customary laws is ultimately a matter for legislative action.

Common law

[1.120] The term “common law” has three main meanings. For present purposes, and

generally throughout this book, the term “common law” is used to describe judge-made law,

ie the source of law developed by the courts (also known as case law), as opposed to

legislation.

Second, reference is made to Australia having a common law legal system, which is often

contrasted with a civil law legal system. An integral feature of the common law system is

common law in the sense of judge-made law as a source of law, ie court decisions that

8

interpret statutory provisions enacted by Parliament and develop the areas of law over

which Parliament has not legislated. Legislation is also a source of law in a common law

system. In contrast, civil law systems are codified (set out specifically in Codes), ie

authoritatively and comprehensively laid down in a systematic form.

Third, the term “common law” may refer to the judge-made law developed in the King’s

courts (or common law courts) as opposed to equity, the judge-made law developed in the

equity courts (Chancellor’s courts ie the Courts of Chancery) (see [1.150]).

Common (case) law

[1.130] What is the common law in the sense of judge-made law? Many descriptions are

offered but for present purposes it is the law that has evolved through judicial decision and

practice as distinct from law laid down by statute. In simple terms, the common law is

found in the reported decisions of the cases. It consists of case law. When Blackstone says

that the common law is “declared”, he advances the traditional theory that judges do not

make law, they simply declare the law as it exists. The theory gives comfort to those who

believe that laws should only be made by those elected for that purpose. It does not reflect

reality. Within the common law systems, judges are regularly confronted with cases that

require more than a declaration of a pre-existing precept. They have to make new law. This

reality was forcefully expressed by the then Chief Justice of the High Court, Brennan CJ, in

O’Toole v Charles David Pty Ltd [1990] HCA 44 at [17]:

Nowadays nobody accepts that judges simply declare the law; everybody knows that, within their area of competence and subject to the legislature, judges make law. Within the proper limits, judges seek to make the law an effective instrument of doing justice according to contemporary standards in contemporary conditions. And so the law is changed by judicial decision, especially by decision of the higher appellate courts.

In essence, the doctrine of stare decisis, or binding precedent, requires a court to follow

the reason for the decision, the ratio decidendi, of a higher court within the same system

of courts.

Given the contemporary reality that statutes are numerous and far-reaching much of the

work of the courts involves the interpretation and application of legislation. In other

areas, legislation may not have been enacted and the development of the law is left to the

courts. The decisions of the courts in applying the law to individual cases, whether that

law derives from a statute, from a precedent interpreting a statute, or from a precedent in

an area not regulated by statute, all form part of the common law. Case law or

judge-made law is discussed in more detail in Chapter 2.

Legislation

[1.140] Legislation refers to the laws made by the body recognised by the particular legal

system as having the supreme power and authority to make laws. Australia, like any

complex modern society, requires regulation across a broad range of economic, commercial

and social activities and legislation enacted by the Federal and State Parliaments (on whom

legislative ownership is conferred by their respective constitutions) is the dominant source

The common law would not have survived in any of those countries which have adopted it, if it did not reflect the changing norms of the particular society of which it is the basic legal system. Cassell & Co Ltd v Broome [1972] AC 1027 at 1127 per Lord Diplock.

The message is very simple. Whatever the cultural practice, whatever the religious practice, there is no law in Australia above Australian law. PruGoward, NSW Minister for Community Services, The Australian (8 February 2014).

9

of law in Australia today. Under the common law system (indeed under most modern legal

systems), supreme law-making authority resides in a legislature. Under the Commonwealth

Constitution, legislative power is conferred on the Federal Parliament and the laws it makes

are referred to as legislation, or written law, or enacted law, or more specifically, statutes or

Acts of Parliament. The Parliaments of the States and Territories also have law-making

powers. But not all legislation is statutory law.

Statutes are the products of Parliament. Subsidiary to the statutes is delegated or

subordinate legislation: the rules and regulations made pursuant to the statutes with the

purpose of setting out more detail as to the scope and application of the statute itself. Many

such matters of detail require frequent adjustment to cater for changing situations. The

cumbersome process of amending statutes in Parliament would not provide sufficient

flexibility and speed. The rule-making powers are therefore delegated to the executive arm

of government, the Executive being empowered to create rules and to amend those already

in existence. Legislation is discussed in more detail in Chapter 3. Delegated legislation is

discussed in more detail in chapter 4.

Common law and equity

[1.150] Equity evolved centuries ago to provide recourse in situations where the common

law either operated to produce a defective result or failed entirely. Equity grew initially not

as a rival to the common law but rather as a supplement in certain instances. The function of

equity was to intervene when the normal processes of common law failed. While it might

seem that such a system would lead to chaos, the birth and growth of equity was both

justified by and controlled by the Monarch’s conscience. It was simply part of the

Monarch’s duty to intervene to prevent injustice. From such simple beginnings it developed

an influence of critical significance.

1.4 LAW, ORDER, JUSTICE AND MORALITY

[1.160]

Although the principal function of law is to ensure order in an increasingly complex society,

it must at the same time respect and help shape the morality of that society and reflect that

society’s notions of “justice”. Whatever justice is – and this is a much debated topic – it is

not the same as the law. For our purposes we can regard justice as “fair play” and this is an

admirable aspiration for any law. But it must be remembered that under our legal system the

law is what it actually is and not what it should be to accord with underlying notions of

justice. No court has the power to strike down a law because it is “unjust” or does not

accord with community standards or does not represent fair play. Similarly with morality. It

is obviously desirable that in our society laws reflect underlying concepts of justice and

morality but these are abstract concepts which, in a pluralistic society, will have shades of

meaning. The fact that our politicians in Australia have to face the electorate every three

years (Federal Parliament) or four years (State Parliaments) mean that our laws will

generally accord with acceptable community standards of justice and morality.

A little government and a little luck are

necessary in life but only a fool trusts either of

them. O’RourkePJ, A

parliament of whores (Atlantic

Monthly Press, 1991).

When the nature of things

changes the rules of law must change too.

Davies v Powell (1737) Willes

46.

10

A legal system does not operate in a vacuum. It exists to serve its society, and in order to

fulfil this role it requires the respect and cooperation of the members of that society. In the

words of Lyndon B Johnson, when he was President of the United States, “Respect for law

is the condition upon which our whole social order depends”. That necessary respect and

cooperation will be given more readily when the law reflects contemporary societal values.

In a complex multicultural nation such as Australia, the challenges have no easy solutions.

Australia’s people are multi-religious or non-religious and reflect diverse cultural

backgrounds. For this reason, it is not possible to have simple resort to those rules adopted

by one religious or value system, be it Christian or otherwise, in the quest for expression of

ethical and moral standards of conduct. What is now required of our law, in its ethical

content, is that it should reflect and enforce the broad ethical principles of the diverse

society.

The appropriate response to these challenges falls both to the Parliaments and the courts.

IN CONTEXT

Law and community values

[1.170] In 2000, proceedings were instituted by the South Sydney Rugby League

Club (Souths) claiming it had been improperly excluded from the National Rugby

League. Justice Finn observed that the real matter of contention was whether

commercial interests should be permitted to override something valued in the

community. Souths’ view (South Sydney District Rugby League Football Club Ltd

v News Ltd (2000) 177 ALR 611 at [564]) was that:

in our view Rugby League is an icon to be preserved for the people who love and support it, not a product to be carved up to the media for their own financial gratification.

Finn J said (at [564]) that:

It usually is only fortuitous that some legal principle can be found that could provide such preservation as is sought … I have not been able to arrive at the conclusion in the present proceeding that such a principle is available to Souths. This is not one of the fortuitous cases.

The High Court upheld the decision of Finn J (News Ltd v South Sydney District

Rugby League Football Club [2003] HCA 45) but Souths nevertheless remain in

the competition because of a change of heart by the NRL driven largely by the

massive public outpouring of support for the Rabbitohs. To the uninitiated this may

explain the delight of many – perhaps with the exception of Bulldogs supporters –

when Souths won the 2014 Premiership.

Law and order

[1.180] One of the primary functions of the state, through the legal system, is the

preservation of order within the community. It may be said that in a perfect world the force

of a legal system would be unnecessary. When, however, our society is less than perfect,

Laws are generally found to be nets of such a texture, as the little creep through, the great break through, and the middle-sized are alone entangled in. William Shenstone.

11

some compulsion is necessary. It is largely for that reason that the restraints imposed by law

are tolerated, it being accepted that the alternative is chaos and damage to the legitimate

interests of everyone. Order is necessary at all levels of social interaction – from laws

governing road use to those regulating affairs of state. It is often said that law is currently

failing in its stated aim of preserving order but this opinion is of course coloured by

different perceptions of what order entails.

“NAKED RAMBLER” STEPHEN GOUGH MAKES UK LEGAL HISTORY BY FACING COURT IN THE NUDE [1.190] London: He wears boots, a hat, a backpack,

and not much else, and he’s singlehandedly making

the law an ass.

The UK’s so-called “Naked Rambler”, Stephen

Gough, suffered another loss on Tuesday, when

despite (or perhaps because of) a history-making

nude court appearance, he lost his appeal.

But legal experts are calling for an end to what one

called the “legal daftness” of the pursuit of this

56 year-old ex-Royal Marine, whose only crime is

persistent nudity.

On Tuesday Gough appeared in the Court of Appeal,

naked, via prison video link from Winchester Prison,

where he is serving a two and a half year sentence for

breach of a court order.

The sentence, imposed in 2014, was just the latest in

a string of convictions and prison terms for Gough,

who has spent eight years behind bars thanks to his

unshakeable conviction that he has the right to

wander England in the buff.

Despite often freezing temperatures he sticks to his

chosen outfit of socks, boots, hat and rucksack,

saying it was “one step in the whole process of

making people aware about our bodies because we

are so paranoid about them”.

Because public nudity is not a crime, authorities

instead imposed an Anti-Social Behaviour Order, or

“Asbo”, making it unlawful for Gough to be nude in

public.

“The result is that the only person in the country who

actually wants to wander naked around the streets of

Winchester is also the only man in the country who

commits a crime by doing so,” criminal barrister

Matthew Scott wrote.

“An eccentric who poses no risk to anybody is being

made to spend the rest of his life in jail – incidentally

at huge public expense – because of a law that has

been crafted to criminalise his chosen way of life.”

“He has chosen to look ridiculous. The law is making

itself look ridiculous.”

On Tuesday Mr Scott calculated that it had cost

£330,000 ($660,700) to keep Gough in prison, not

including legal costs.

Another legal blogger, lawyer David Allen Green,

said on Twitter on Tuesday that Gough’s case

“exposes the illiberal daftness of our legal system”.

Miller N, “Eccentric “Naked Rambler” makes legal

history”, Sydney Morning Herald (11 June 2015).

12

Law and morality

[1.200]

Natural law theory and its prominence in the history of our legal system highlight the

interrelationship between law and morality. The tension in that relationship has become

critical in a society increasingly faced with great moral issues in areas such as euthanasia,

abortion, artificial reproduction, rights of frozen embryos, information technology,

surveillance, etc. The domain of morality spreads over a wide territory.

An essential conflict arises between competing viewpoints. In the context of what are

known as “victimless crimes” (eg drug-taking and prostitution), there are those who take the

view that the law should not intervene in the private lives of citizens any more than is

necessary to preserve public order and decency. This approach, in Victorian times, was put

simply in the instruction that consenting adults could do what they liked, so long as they

didn’t do it in the street and frighten the horses. Given that horses are not a common feature

of Australian streets today a more substantial standard is required, but the search for it

remains elusive.

IN CONTEXT

Law, morality and the necessity defence

[1.210] While the status of necessity as a defence to crime is uncertain, the

leading case of R v Dudley and Stephens (1884) 14 QBD 273 raises important

issues concerning the relationship between law and morality.

This celebrated case, widely known as “the case of the Mignonette” concerned the

yacht Mignonette that put to sea on 5 May 1884 from Tollesbury in Essex, with a

crew of four to sail to Sydney – a four-month voyage. Two months later, during a

severe storm in the South Atlantic Ocean, the Mignonette was struck by a massive

wave and sank within five minutes. The crew escaped in a flimsy dinghy without

fresh water and with only two tins of turnips, and a chronometer and sextant with

which they would determine that they were drifting away from shipping lanes

towards South America, over 3000 kilometres away.

For the first 11 days they subsisted on turnips and a small turtle, and the principal

problem was not hunger but thirst. By that time they had begun to drink their own

urine, a standard technique in such conditions. Then hunger became a problem. A

not-so-standard technique adopted on the twentieth day was to kill the weakest of

the four and thereafter for the remaining three to sustain themselves by eating his

body. That continued for the next four days, at which time they were rescued by a

passing ship. Their subsequent prosecution for murder tempered the joy of their

rescue. The facts, agreed upon by the jury, were that without the cannibalism, the

others would not have survived, and that the victim was likely to have died before

them. Indeed, the jury found that the only way to save life was to sacrifice one as

a source of protein for the others.

Never forget that if you leave your law to judges and your religion to bishops you will presently find yourself without either law or religion. George Bernard Shaw.

13

The question then of whether this act amounted to the crime of murder was

ultimately referred, on appeal, to the Queen’s Bench Division. That court found the

defendants guilty and sentenced them to death. A reprieve followed and the

punishment was reduced to six months’ imprisonment.

The case of Dudley and Stephens is still cited today as an authority for the defence

of necessity to a murder charge. The decision captures not only many of the

peculiarities of legal reasoning but also questions of practical living and morality

with which the law must deal. These issues are commonly raised, albeit in less

dramatic circumstances. The need to achieve a workable resolution to the conflict

between the survival instinct of the individual and social demand for an objective

moral standard is not amenable to one solution for all time. It presents itself again

and again in different guises.

This is reflected, for example, in the contemporary debate over euthanasia and the

allocation of scarce medical resources. Is there to be a case-by-case approach

(probably trusting in non-observance of the law by the authorities), or is there to be

a single objective standard against which all such conduct may be measured? The

dangers inherent in either approach are obvious, but inconsistency and the

protection of some individuals where others are not so favoured can lead to

cynicism and distrust of the legal system.

The Court of Queen’s Bench in Dudley and Stephens somewhat pompously

demanded of the defendants the observance of a duty (at 287):

not of the preservation, but of the sacrifice of their lives for others, from which in no country, least of all it is to be hoped in England, will men ever shrink, as indeed they have not shrunk … It is enough in a Christian country to remind ourselves of the Great Example whom we profess to follow.

In so far as some general statement as to the availability of necessity as a

defence can be made it seems that the defence exists, albeit with some caprice,

and in Victoria the Full Supreme Court has recognised its existence (see R v

Loughnan [1981] VR 443), provided that the consequence to be averted is serious

and that the steps taken to accomplish that aversion are in proportion and

appropriate to the gravity of the dangers.

Law and justice

[1.220] On the occasion of his swearing in as Chief Justice on 21 April 1995 Brennan CJ

spoke of law, justice and society in a provocative and stimulating way:

Justice is a social goal, a guarantee of order and peace in the community, a precondition of human development – and it is therefore of concern to every member of our community. For the Christian, justice has a special and central significance: it is a divine imperative.

Justice is not brought to the people either by populist clamour or by implementing the will of the powerful. It must be sought by careful reflection upon the interests of the individual and of society as a whole and there must be an especial concern for the powerless, the socially

Even the House of Lords can be pragmatic. The

trial of Lady Chatterley’s

Lover aroused parliamentary

comment. In the House of Lords

a noble Lord defending the

book was asked, would you want

your wife to read it? and responded, I

would not object to my wife

reading it but I don’t know

about my game-keeper.

Lady Chatterley Letters (1962)

48 American Bar Association

Journal 43 at 47.

14

insignificant, the weak minority. The bruised reed may be a drug addict, an unemployed boy or girl, an innocent but discarded spouse. The dimly burning wick may present itself as a refugee, a lonely migrant, an Aboriginal group removed from the traditional land, the children of a broken family, the lonely aged.

[1.230] To the question “What is justice?” there are many answers. They range from

that cited by Thomas Aquinas that it is “the perpetual and constant will to render to each

one his right” to the view of the practising lawyer in contemporary times that “justice is

what happens when the money runs out”.

The expectation that the legal system is the complete source of justice is doomed to

disappointment for various reasons. Most significantly, the achievement of justice

requires a general approach by all in their dealings with each other – it is not always

controlled by to the specific regulation of the statute nor the individual reach of the court

in judging a case. Its field of operation is wider, indeed, it is all-encompassing.

In essence we must ourselves set standards or meanings for justice in our own

community. That such an approach is embraced by the judges is evidenced by the

comments of Sir Edward Pearce, then a member of the English Court of Appeal, when he

said that “since every case has merits one way or the other there may at any time be a

pull to deflect decision from the straight and narrow path of logic in order to secure fair

play”: Pearce E, “Our common heritage” (1959) 33 ALJ 103 at 105. In the course of the

same address (at p 105) he said that:

When the law is derived from cases, the merits of the individual case are bound to influence the decisions in some degree. It is quite useless to expect an English judge, or, I suspect, an Australian judge, to reach a decision that he feels to be unjust or unworkable if with industry and ingenuity he can produce a result that is fair and workable. His judicial duty compels him to follow decided cases and his judicial conscience compels him to follow the general direction of the riverbed. But within those limits he will slightly deflect, if thereby he can secure justice and fair play. For to the ordinary judge fairness between man and man is of paramount importance. I know that I and most of my colleagues are made miserably unhappy, if we find ourselves compelled to give a judgment that to our minds in the circumstances of the cases produces unfairness and injustice.

Abstract notions of justice are reduced to the search for “fair play”. In a very practical

sense that approach is to be applauded. “Fair play” in reality is more comforting than

“justice” in theory. It is as unrealistic to expect the law to provide justice at all times as

it is to expect pharmacology to cure all ills. The discipline must do its best. Very often

the people subjected to it must play their part also, not by a resort to self-help but by

introducing into their society the aspects of justice already described.

IN CONTEXT

The role of the judges

[1.240] On the occasion of this swearing in as a justice of High Court in 1952

((1951-1952) 85 CLR XIV) Sir Owen Dixon said:

In England, justice is open to all – like the Ritz Hotel. Mathew LJ.

15

It may be that the Court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.

Four decades later in the occasion of his swearing in as a justice of the High

Court Michael Kirby said (“Farewell Speech” (1996) 70 ALJ 271 at 275-276

(footnotes omitted)):

Since that April day in 1952 much has changed. The world, our country and its law have changed. Technology has put our species into Space. Scientists have unravelled the double helix of DNA. Information technology has revolutionised our planet and now reaches towards simple artificial intelligence. But the abiding judicial duties of neutrality, integrity and the provision of persuasive reasoning remain as strong today as they were in Sir Owen Dixon’s time. The termination of Privy Council appeals has finally released Australian law from accountability to the judicial values of England that lasted so long. The slow realisation of this fact, and its implications, in a profession often so resistant to change, presents to this, as to other Australian courts and courts of the region, challenges which are exciting and sometimes difficult.

There will be no returning to the social values of 1952 when Sir Owen Dixon spoke, still less those of 1903 when this Court was established. It falls to each generation of Australian lawyers, led by this Court, to fashion new principles of the Constitution, common law, and of equity, which will contribute wisely to the good governance of the Australian people. There is now a greater public understanding of the limited, but still very real, scope for judicial creativity and legal development. Judges are now more candid about this aspect of their function. Without a measure of creativity how else would the common law have survived seven centuries, from feudalism to the spaceage? How else would it have endured in so many lands after the sun had set on the British Empire?

In any case, the “good old days” were not always so good in the law of Australia, including the common law. They were not so good if you happened to be an Australian Aboriginal. Or indeed, a woman. Or an Asian confronted by the White Australia policy. Or a homosexual Australian. A conscientious objector. A person with heterodox political views. A homeless person. A publisher of the mildly erotic. A complainant against official oppression. A person with little English involved in a court case. We in Australia have now taken a confident turn in our legal journey towards enlightenment and justice for all under the law. But the lesson of our present enlightenment must be that there are other injustices to which we are still impervious, or indifferent or which we do not yet see clearly. We need to defend our legal institutions and to adhere to time-honoured legal principles. Not blindly. And not mechanically. But with ears, minds and hearts always open to the call of justice. Only the quest for justice gives our profession its claim to nobility.

These two passages obviously reflect very different attitudes to the judicial rule

in accommodating changing community values.

1.5 THE NATURE AND ROLE OF A LEGAL SYSTEM

[1.250] The totality of the laws that regulate a state – a legally organised community – is

known as a legal system which comprises not so much the rules and regulations governing

that community but the more basic issues of how those laws are made and applied and

Faced with glaring injustice, the judges are, it is said, impotent,

incapable and sterile. Not so with us in this

court. Nothman v Bomet London

Borough Council [1978] 1 WLR 220 at 228 per

Lord Denning MR.

16

administered. Although Australia’s legal system shares traditions, principles, procedures,

rules and institutions with other common law countries that derived their legal system from

England, such as New Zealand, Canada and the United States, given that the law reflects the

general character of the society in which it exists, it is not surprising that over a period of

200 years there is a lack of complete uniformity between the laws of those countries

influenced by British settlement. There are obviously important differences between the

legal systems of these countries both at the lofty level of constitutional arrangements and at

the more basic level of the particular rules and regulations. Nevertheless, those systems

have more in common than they have elements of difference. The common law model

shares common values, institutions and principles.

[1.260]

There are other legal systems throughout the world. Most countries in Western Europe,

Latin America, and Asia have adopted the civil law system, which has its heritage in Roman

law. Other systems include those based in religion (such as Islamic law) or politics (such as

socialist law).

[1.270]

Figure: World Legal Systems

Source: University of Ottawa, Faculty of Law JuriGlobe – World Legal Systems Research

Group (http://www.juriglobe.ca/eng).

[1.280] The basis of the legal system of any state is its constitution, defined by Professor

Hood Phillips as “the system of laws, customs and conventions which define the

Reporter: What do you think of Western civilisation? Mahatma Gandhi: I think it would be a very good idea.

It has been said that democracy is the worst form of government except all those other forms that have been tried from time to time. Winston Churchill, speech in the House of Commons, November 1947.

17

composition and powers of the organs of the state and regulate the relations of the various

state organs to one another and to the private citizen”: Constitutional and administrative

law (5th ed, 1973, p 5). The constitution of any country must, at the very least, provide for

the process of government and the allocation of legislative (law-making), executive

(administrative) and judicial powers, to those bodies which are to exercise them.

The development of a country’s constitution – its fundamental political and legal framework

– is shaped by history. In the United Kingdom it has developed from the experience of

centuries of struggle between the Crown, its council of advisers and the courts. The

Constitution of the United Kingdom is unusual in that it is unwritten (New Zealand

provides one of the few other examples). Instead of one fundamental document enshrining

the country’s government, the principles and rules are found in various statutes, judicial

decisions and the unwritten usages and practices (the “conventions”) which have evolved

over centuries.

The United States on the other hand has a written Constitution, which was drawn up in

1787, the preamble to which declares that:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Similar sentiments are expressed in the preamble to the French Constitution, which

declares that:

the people freely created the political institutions, based on the “common ideal of liberty, of equality and fraternity” and that France “is a republic, indivisible, secular, democratic and social”.

The US Constitution represented that country’s breaking away from imperial dominance

and marked the start of a new era. The sentiments which brought to a head the breaking

away from Britain are dramatically expressed in the 1776 Declaration of Independence,

the opening words of which state that:

When in the Course of Human Events it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same

A legal tradition … is not a set of

rules of law about contracts,

corporations, and crimes, although

such rules will almost always be

in some sense a reflection of that tradition. Rather

it is a set of deeply rooted,

historically conditioned

attitudes about the nature of

law, about the role of law in

the society and the polity, about

the proper organisation and

operation of a legal system, and

about the way law is or should

be made, applied, studied,

perfected and taught.

Merryman JH, The civil law

tradition (Stanford

University Press,1976).

18

Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

In Australia the driving force behind the Constitution was the recognition in the late

1890s that several independent colonies locked within the one island would be better served

by a form of cooperative federalism. It came into effect on 1 January 1901. Whereas the US

Constitution was a product of revolution and was enacted through that emerging nation’s

own processes, the Commonwealth Constitution, a product of evolution, was enacted for

Australia by the Imperial (British) Parliament (Commonwealth of Australia Constitution Act

1900 (UK)). The Commonwealth Constitution is discussed in Chapter 3.

1.6 THE DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

The reception of English law

[1.290] Unlike many other examples of colonial expansion made by European countries

from the seventeenth century onwards, Australia (and in particular New South Wales) was

treated as settled by England rather than conquered. The distinction has importance in that a

settled colony is regarded as unoccupied (terra nullius) and thereby acquires as its first laws

those of the country making a settlement, at least in so far as they are appropriate. On the

other hand, a conquered colony will normally retain its existing legal framework, subject to

alterations imposed upon it by the conquering or colonising state (Blackstone, Commentaries

on the Laws of England (1765)):

It hath been held, that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject, are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their own situation and the condition of an infant colony.

These principles had been expounded prior to Governor Phillip setting sail to establish

the colony of New South Wales in 1788, and were confirmed by the Privy Council in

Cooper v Stuart (1889) 14 App Cas 286. The effect of Australia being held to be a settled

colony rather than a conquered colony was the application of English Law, the failure to

acknowledge the rights and customary laws of the Indigenous people (and indeed their very

existence) and the Crown’s ownership of all land in the colony.

Terra nullius, Mabo and native title

[1.300] As indicated above, the starting point for the legal system of an English colony

depends upon whether the land, being uninhabited, was settled or whether the land, being

previously occupied was conquered. The view taken in the case of Australia was that at the

19

time of colonisation, New South Wales (and later, Australia) was uninhabited. As Australia

clearly was not uninhabited the legal conclusion was supported by the legal fiction that

whatever occupation by Indigenous peoples there may have been did not amount to the land

being inhabited in the legal sense. In Mabo v Queensland (No 2) [1992] HCA 23 the High

Court made law in rejecting the fiction that inhabited land may be terra nullius. Brennan J

expressed the history in this way (at [39]):

As the indigenous inhabitants of a settled colony were regarded as “low in the scale of social organisation”, they and their occupancy of colonial land were ignored in considering the title to land in a settled colony. Ignoring those rights and interests, the Crown’s sovereignty over a territory which had been acquired under the enlarged notion of terra nullius was equated with Crown ownership of the lands therein, because, as Stephen CJ said, there was “no other proprietor of such lands” … The theory that the indigenous inhabitants of a “settled” colony had no proprietary interest in the land thus depended on a discriminatory denigration of indigenous inhabitants, their social organisation and customs. As the basis of the theory is false in fact and unacceptable in our society, there is a choice of legal principle to be made in the present case. This Court can either apply the existing authorities and proceed to inquire whether the Meriam people are higher “in the scale of social organisation” than the Australian Aborigines whose claims were “utterly disregarded” by the existing authorities or the Court can overrule the existing authorities, discarding the distinction between inhabited colonies that were terra nullius and those which were not.

Six of the seven members of the court agreed that Australian common law recognised a

form of native title which, in the cases where it has not been extinguished, reflects the

entitlement of the indigenous inhabitants, in accordance with their laws or customs, to

their traditional lands.

IN CONTEXT

The Mabo decision and judicial activism

[1.310]

Justice Dyson Heyden with reference to Mabo (No 2) in a speech prior to his

appointment to the High Court (Quadrant Magazine (January 2003)) said:

It is questionable whether it is the proper role of the courts to introduce radical changes of this kind, which Parliament had not done, particularly in view of their tendency to cause immense strains, not only within the community as a whole, but also within the legislature. It is legislators which create new laws. Judges are appointed to administer the law, not change it or undermine it.

[1.320] In Mabo, the status of the Australian colonies as “settled” was confirmed, the

established order of sovereignty was undisturbed, and although a form of native title was

recognised, in respect of any particular land it was to survive only until it was extinguished

by a valid exercise of sovereign power by or on behalf of the Crown. For those purposes the

court required action by the legislature or the Executive that demonstrated a clear intention

to nullify the native interests. For example, native title is lost if freehold title has been

[Indigenous law was] a subtle and elaborate system highly adapted to the

country in which the people led

their lives. Milirrpum v

Nabalco Pty Ltd (1971) 17 FLR 141 at 143 per

Blackburn J.

The acts and events by which

that dispossession in legal theory has

carried into practical effect

constitute the darkest aspect of

the history of this nation.

Mabo v Queensland

(No 2) [1992] HCA 23 at 109

per Gaudron and Deane JJ.

20

granted to someone else. Justice Brennan was of the view that the court was not free “to

adopt rules that accord with contemporary notions of justice and human rights if their

adoption would fracture the skeleton of principle which gives the body of our law its shape

and internal consistency”. His Honour recognised the chaos that would result from a

declaration that might permit the entire continent to revert to Indigenous ownership. There

is now some uncertainty as to what will suffice to extinguish native title. Crown grants of

land and alienation by statute are sufficient. Doubt is raised by lesser dealings.

IN CONTEXT

Native title

[1.330]

After Mabo recognised native title, many complex issues arose – in particular,

whether native title could co-exist with certain non-Indigenous land tenures. To

help clear the way, the Federal Government introduced the Native Title Act 1993

(Cth). The Native Title Act established the National Native Title Tribunal to hear

and decide applications as to the existence of native title to particular areas of land.

It has been said that “the fundamental requirement in an application for

determination of native title is that the Applicants satisfy the court, on the balance

of probabilities, that the group to which they belong maintains its connection with

its country by laws and customs based on the laws and customs that have governed

the group since the date the British claimed sovereignty over the country under

claim”.

Subsequently, in a further decision of the High Court, Wik Peoples v State of

Queensland [1996] HCA 40, it was decided that native title rights could co-exist

with other land tenures. There was a considerable public reaction to Wik, the

Howard government describing it as creating “a crisis in land management”. That

government subsequently passed amendments, in 1998, to the Native Title Act that

substantially cut back native title rights as protected in the 1993 legislation by

validating certain non-Indigenous titles; confirming the extinguishment of certain

native titles; winding back the right to negotiate for native title; and widening the

uses available to others (eg primary producers) on native-title land. The 1998

amendments were deemed to be in breach of Australia’s international human rights

obligations by The United Nations Committee for the Elimination of Racial

Discrimination.

“Like reading porridge”. BHP’s John Prescott on the substance of native title legislation, The Australian (29 November 1993).

One of the things for which we must thank the fathers of the Constitution is that they were very short-sighted. Turner HB, Sydney Morning Herald (14 March 1970).

21

The constitutional development of the Australian colonies

[1.340] In the early days of the establishment of New South Wales as a penal colony the

Governor determined which of the existing English laws should apply in NSW and laid

down other laws by proclamation. The first courts of criminal and civil jurisdiction

established by the Imperial Parliament at an early date by the First Charter of Justice

(1787) were to be supplanted, in so far as civil matters were concerned, by the Second

Charter of Justice (1814) which established the Supreme Court and a rudimentary

subordinate structure. The Third Charter of Justice (1823) provided a comprehensive court

system for both civil and criminal matters and the model for the system currently in use in

New South Wales. At the same time steps were being taken to vest the law-making power of

the colony in a body more representative than the Governor alone. That process of

development was furthered in New South Wales when in 1823 the Imperial Parliament

passed an Act (under which the Third Charter of Justice was issued) establishing New

South Wales as a full colony and constituting a Legislative Council consisting of residents

of the colony appointed by the Crown. A legislative procedure was established. Bills were

to be initiated by the Governor and then voted upon by the Council. The Chief Justice of the

Supreme Court was required to certify that any proposed law was consistent with the laws

of England. As a move towards self-government it was a paltry measure.

[1.350] Some advancement came in 1828 with the passage by the Imperial Parliament of

the Australian Courts Act 1828 (Imp), which increased the size of the Legislative Council,

the members of which were still to be appointed by the Crown, and which diminished the

powers of the Governor. Significantly, the Act provided that all applicable common and

statute laws of England in force in 1828 were to have effect in New South Wales. The

colony was kept waiting for its first representative government until 1842. In that year the

Australian Constitutions Act (No 1) 1842 (Imp) established an enlarged Legislative Council

and required that two-thirds of its members must be elected. There were substantial

restrictions on those qualified to vote. After a series of intermediate steps the Australian

Constitutions Act (No 2) 1850 (Imp) was passed in 1850 with two profound consequences:

• it severed the Port Phillip district of New South Wales and created of it the colony of

Victoria; and

• it empowered the Legislative Councils of the various colonies to amend their

constitutions to establish parliaments of two houses. Qualifications for voting were

eased.

State constitutions

[1.360] In New South Wales in 1853 the Legislative Council passed a Bill for submission

to the Imperial Parliament, necessary because its terms exceeded the authority granted by

the Act of 1850. The purpose of the Bill was to create two houses of parliament, the upper

house (the Legislative Council) consisting of nominees of the Governor, and the lower

house (the Legislative Assembly) consisting of representatives elected by a wider electorate.

That Bill, upon its passage by the Imperial Parliament, became the New South Wales

Constitution Act 1855 (Imp). Section 1 invested that legislature with power to make laws

for the peace, welfare and good government of the colony. Section 15 gave power to alter

22

electoral boundaries and the number of members. Section 21, in furtherance of

long-standing British practice, provided that taxation and appropriation Bills were to

originate in the Assembly, not the Council. The Act also introduced a system of responsible

government under which a government no longer enjoying the confidence of Parliament

was to resign. To ease the burden s 51 provided for the payment of pensions to ministers

retiring in such circumstances. The result was that New South Wales now had a

representative and responsible government.

[1.370] The New South Wales Constitution Act 1855 had its counterpart in each of the

other colonies. All such constitutions were enacted in furtherance of the powers granted by

the Australian Constitutions Act (No 2) 1850 (Imp):

• In Victoria, the Victoria Constitution Act 1855 (Imp) was passed and ratified by the

Imperial Parliament in 1855. It created a legislature of two elected houses: the

Legislative Assembly and the Legislative Council.

• Tasmania’s Constitution Act 1855 (Tas) was passed by that colony (then known as Van

Diemen’s Land) in 1854 and received the royal assent in 1855. Similarly, it established

a Parliament of two elected houses.

• The 1855 Constitution Bill of South Australia, which achieved a similar result, was

assented to in 1856, becoming the Constitution Act 1856 (SA).

• Queensland was separated from New South Wales and established as a colony in 1859.

That separation was completed in 1867, the power being held by the Queensland

Parliament with its own consolidation of the laws (previously those of New South

Wales) relating to the “Constitution of the Colony of Queensland” (the Constitution Act

1867 (Qld)). Having established two houses of Parliament earlier, Queensland abolished

its Legislative Council in 1922.

• The colony of Western Australia passed its Constitution Bill in 1889, and this was

ratified by the Imperial Parliament in 1890 becoming the West Australia Constitution

Act 1890 (Imp). Again a Parliament of two elected houses was established.

Increasing legislative authority

[1.380] The residual doubts as to which English laws applied after settlement were

resolved by the Imperial Parliament’s enactment of the Australian Courts Act 1828 (Imp),

which provided that, as far as they could be applied, all laws and statutes in force in

England on 25 July 1828 should be applied in New South Wales and Tasmania, the colonies

in existence at that time. English laws made after 1828 did not automatically apply in the

colonies, although the Imperial Parliament retained the power to legislate for the colonies.

A further restriction on the legislative power of the colonies was contained in the Colonial

Laws Validity Act 1865 (Imp). That Act, while it confirmed the ability of colonial

legislatures to amend their own constitutions, declared that colonial Parliaments had no

power to pass laws that were “repugnant” to English laws directly applicable to the colony

in question and passed expressly for that purpose. However, English laws, which were part

of the received law of the colonies pursuant to the 1828 Act, could be amended or repealed.

Some men look at Constitutions with sanctimonious reverence, and deem them like the Ark of the Covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. Jefferson T, Letter to Samuel Kercheval, 12 July 1816.

23

The restriction on legislative power imposed by the Colonial Laws Validity Act 1865 (Imp)

continued, despite the transition of the colonies to statehood on Federation. Although it

became increasingly unlikely that the Imperial Parliament would pass laws affecting the

States against their wishes, it was not until 1986, when both the Australian and the United

Kingdom Parliament passed the Australia Act 1986 (Cth), that any lingering operation of

the Colonial Laws Validity Act was terminated and the authority of State Parliaments was

confirmed.

The Australia Act repealed the Colonial Laws Validity Act, with the consequence that the

States (as the colonies became known on Federation) could legislate contrary to imperial

legislation. The Australia Act also conferred express authority to pass laws with

extra-territorial application, provided that a sufficient connection exists between the

Territory or the State and the subject matter of the statute. However, the greatest fetter on

the law-making power of State Parliaments is to be found in s 109 of the Commonwealth

Constitution, which provides that where a State law is inconsistent with a Commonwealth

law, the latter shall prevail (see [1.920]).

Federation

[1.390] There was considerable dispute over whether the colonial legislatures of Australia

should join to create an Australian government. The debate was contested during the 1880s

and 1890s and finally a Bill for a national constitution was submitted to all colonies in

1899, with the exception of Western Australia, which at that stage refused to cooperate. It

was initially anticipated the colony of New Zealand form part of the Federation. (Indeed

New Zealand is still included in the definition of “State” in s 6 of the covering clauses of

the Constitution).

Enactment of the Commonwealth Constitution

[1.400] Once the negotiations and preparatory phase were over, the Constitution had to be

enacted by the British Parliament. The Bill was passed on 5 July 1900 (during this time

Western Australia had agreed to hold a referendum on the Bill, which resulted in its

approval on 31 July) and in the following September Queen Victoria proclaimed that the

Commonwealth of Australia would be born on 1 January 1901, the first day of the new

century. Prior to this Australia of course existed as a country – the world’s largest island and

the world’s smallest continent – but not as a nation.

In simple terms, the events leading to 1 January 1901 converted six colonies – each

independent of the other, each with separate legal systems and legislative and executive

structures – into one nation. The shared history of each of the colonies made the mission

possible. It involved, of course, an agreement to relinquish certain powers – legislative,

administrative and judicial. Without that nothing could have been achieved.

What was necessary (in 1895) was commitment to support the whole, even if at the expense

of the interests of some of the parts. That commitment has been described in these terms

(Irving, “Mapping a Constitution”, Sydney Morning Herald (25 June 1995)):

Professor La Nauze has

provided some analysis of those who constituted

the 1891 Convention:

There was one clean-shaven member; one

wore a moustache only; one a moustache

and side whiskers; the

rest beards … The

clean-shaven features of

Edmund Barton … are untypical; the Constitution

emerged from the labours of an

overwhelming majority of hairy

men. CoperM, Encounters with

the Australian Constitution

(CCH, 1987).

24

In an extraordinary moment of self-denial and co-operation, and despite reservations held by Queensland and Western Australia, the Premiers all agreed to pass enabling acts in their respective colonies, so that 10 delegates each could be chosen to meet in a convention, draft a Federal Constitution and have it put to the people before submitting it to the Crown.

While the colonies (now States) gave up powers, rights and duties to the new central

government, they retained their individual identities and a great deal of legislative

authority. In any federation it is necessary that the powers of government be divided

between the central or national government and those of the various States. The method

was put by AV Dicey (Law of the Constitution (8th ed, Macmillan, 1927)) at its simplest:

Whatever concerns the nation as a whole should be placed under the control of the national government. All matters which are not primarily of common interest should remain in the hands of the several States.

In this way the tension naturally arising between the concepts of national union and its

constituent but independent States is resolved. The Constitution by which the division of

powers is achieved must possess supreme authority and the appropriate judicial mechanism

must be in place to resolve issues as to its interpretation. The division of powers under the

Constitution, and the Constitution itself, are examined at [1.840] and [1.520].

Breaking the colonial ties

[1.410] The fundamental changes to the Australian legal system introduced by the

Commonwealth Constitution did not have the effect of granting full legislative independence

to the Commonwealth of Australia. The earlier imperial legislation, the Colonial Laws

Validity Act 1865 (Imp), continued to limit the legislative competence of the States and the

Commonwealth by prohibiting legislation contrary to the provisions of Imperial legislation

applying in Australia. Pressure from former British colonies who sought independence from

Britain led to the enactment of the Statute of Westminster Act 1931 (Imp), which provided

for the dominion Parliaments to assume full legislative competence. This imperial

legislation was adopted by the Commonwealth Parliament in the Statute of Westminster

Adoption Act 1942 (Cth). As a result of this legislation, the Colonial Laws Validity Act no

longer applied to the Commonwealth of Australia, which could finally legislate contrary to

imperial legislation and make laws with extra-territorial effect. The Imperial Parliament

could no longer legislate for the Commonwealth of Australia, unless the Commonwealth

Parliament expressly requested and consented to such an enactment. An example of this

process is the Australia Act 1986 passed by both the Imperial and Commonwealth

Parliaments, which finally repealed the Colonial Laws Validity Act and freed the States

(who were not affected by the Statute of Westminster) from the restrictions on legislative

power imposed by that legislation.

Today, the legislative competence of the Commonwealth and the States is a matter for

domestic law to be allocated under the Commonwealth and State constitutions, and is free

from the interference of, or limitations imposed by, the Imperial Parliament.

The only sure bulwark of continuing liberty is a government strong enough to protect the interests of the people and a people strong enough and well enough informed to maintain its sovereign control over its government. Roosevelt FD, Fireside chat (14 April 1938).

25

1.7 AN OUTLINE OF THE AUSTRALIAN LEGAL SYSTEM

[1.420]

In addition to inheriting British laws, Australia also inherited the UK model of liberal

democracy known as the Westminster system incorporating a constitutional monarchy, the

separation of powers, responsible or representative government, the sovereignty of

Parliament, and the rule of law.

A constitutional monarchy

[1.430] Australia is a constitutional monarchy. The official Head of State of the

Commonwealth of Australia and the States is the Monarch, the Queen of Australia (as Her

Majesty has been titled since the Royal Style and Titles Act 1973 (Cth)). The reference to a

constitutional monarchy signifies that the Monarch is Head of State pursuant to underlying

constitutional arrangements rather than pursuant to the force of arms which was of course

the case in the Middle Ages. The powers of the Monarch, represented by the

Governor-General in relation to the Commonwealth, and the Governor in relation to the

States, are largely formal today, the constitutional arrangements requiring the Head of State

to act on the advice of her or his Ministers (known formally as the Executive Council). The

debate as to whether Australia should move from a constitutional monarchy to a republic is

referred to below.

Federation, the Constitution and the division of powers

[1.440] The constitutional arrangements outlined above are enshrined in so far as the

Commonwealth of Australia is concerned, in the Commonwealth Constitution of 1900

which was enacted for Australia by the Imperial (United Kingdom) Parliament to unite the

separate Australian colonies in a federation. By definition, a federation involves a division

(or distribution) of powers between the constituent elements – in Australia that is between

the States and the federal body, the Commonwealth of Australia. One of the most important

roles of the Constitution is the division of powers between the Federal and State

legislatures. The Constitution confers a limited number of exclusive powers on the

Commonwealth (defence, foreign trade and immigration etc) but most of the

Commonwealth’s powers, granted under s 51, are concurrent powers. These powers can be

exercised by the Commonwealth and the States but, in the event of conflict, the

Commonwealth law will prevail (s 109). Powers which are not expressly mentioned in the

Constitution, residual powers, remain with the States.

The separation of powers

[1.450]

Australia also inherited the Westminster system’s concept of the separation of powers,

under which the functions of government, viz, (i) legislative (making laws), (ii) executive

(administering laws) and (iii) judicial (applying laws to individual cases), are allocated to

different institutions. Under the Commonwealth Constitution, legislative power is formally

And indeed it is one of the

characteristic marks of English

liberty, that our common law

depends upon custom; which

carries this internal evidence of freedom along

with it, that it probably was introduced by the voluntary

consent of the people.

Blackstone, 1 Comm 74.

Democracy is the recurrent

suspicion that more than half the people are

right more than half the time.

White EB.

26

allocated to the Commonwealth Parliament, executive power to the Crown (the

Governor-General acting through the Federal Executive Council, effectively the government)

and judicial power to the courts. Under the Westminster system the separation of powers is

not absolute. In Australia (unlike eg the United States), there is a substantial overlap

between the Executive and the legislature. The Prime Minister and the Ministers of the

Crown, who in practical terms constitute the Executive, are required by the Constitution to

be members of the legislature.

Responsible government

[1.460] Australia also inherited the concept of responsible or representative government,

a term which is used today in a general sense to denote “a form of government which is

responsive to public opinion and answerable to the electorate” (Walker D, Oxford

companion to law, (Oxford University Press, 1980)) and an executive government

responsible to the legislature. It is a concept of real and enduring significance. It is a

concept which is given effect to in the Constitution and has a real and enduring impact in

shaping our personal liberties, eg through supporting an implied right of political

communication under the Constitution (see [1.520]) and underpinning the rule of law.

CANBERRA’S ATTACK ON BASIC FREEDOMS [1.470] The fundamental rights of citizenship that

Australia inherited from Britain have been wound

back by 160 laws enacted by federal governments

from both sides of politics.

Canberra’s attack on the nation’s fundamental

freedoms has been identified in research by the

Institute of Public Affairs that suggests Australians

now have less protection from the power of the

federal government than at the time of federation.

The research has found that four of the most

fundamental rights of citizenship have been under

long-term attack by the commonwealth – the privilege

against self-incrimination, the right to natural justice,

the presumption of innocence and the right to silence.

The research, which covers federal laws enacted

since 1974, found a total of 262 breaches of

fundamental rights that have been enacted in 158

separate statutes.

The overwhelming majority of those breaches

removed the legal rights of employers and those in

the business community such as company directors,

the research found.

Merritt C, “Canberra’s attack on basic freedoms”,

The Australian (5 December 2014).

27

The sovereignty of Parliament

[1.480] It is a fundamental principle of the Westminster system that Parliament is the

supreme law making body. This principle is enshrined in the Constitution but, given that

Australia is a federal system, is not absolute in Australia because of the necessity for

legislative power to be all divided between the Commonwealth Parliament and the State

Parliaments.

The rule of law

[1.490]

It will be clear from what has already been said in this chapter that there exists a problem in

achieving the correct balance to be struck between personal freedom and legislative power

in a modern democracy. Traditionally, the rule of law has been regarded as the means of

maintaining that balance. Although it is often cited as the foundation of constitutional

democracy it is not easy to define. Professor Walker has suggested in The rule of law

(Melbourne University Press, 1988, p 3) that this is because:

it manifests itself more as an absence than a presence, rather like those other great negatives, peace and freedom. It imports an attitude of restraint, an absence of arbitrary coercion by governments or by other individual groups.

The rule of law is essentially a rule of fair play. All members of society must be equally

subject to the ordinary law of the land, and Parliament itself, although largely omnipotent

in the Australian context, is subject to the rule to the extent that it should act fairly and

not arbitrarily. A particular application of the rule is in the control of public

administration. The delegation of near legislative powers to administrative departments

and the creation of quasi-judicial bodies demand active safeguards and plead for a

restoration of the influence of the rule of law.

It “lies at the heart of Australian society … few would disagree with the proposition that

‘the essence of the rule of law is that all authority is subject to, and constrained by law’”:

Ruth McColl SC, Australian Bar Association, 13 November 2001.

IN CONTEXT

The Rule of Law

[1.500]

Under the “rule of law” … it is not possible, at least without explicit parliamentary legislation to the contrary, for most important material or personal interests of one citizen to be radically damaged against that citizen’s wishes by another citizen, a corporation, or an arm of government unless some independent person holds that that is right.

The rule of law prevents citizens being exposed to the uncontrolled decisions of others in conflict with them. Powerful citizens are not permitted to use self-help against other citizens so far as their arbitrary might permits. Officers of the state are not permitted to imprison or otherwise deal forcibly with citizens or their property

Unpalatable statute law may

not be disregarded or

rejected, merely because it is unpalatable.

Duport Steels Ltd v Sirs [1980]

ICR 161 at 190 per

Lord Scarman.

I believe with all my heart that

justice cannot be rationed. Justice is owned by the

people. Justice must be

available to the people and until

justice is affordable to all members of the community we do not have a

proper or effective judicial system. Marsden

JR, President, Law Society of

New South Wales.

28

merely because they think it is their duty to do so. Mobs are not able to loot or lynch their enemies at will. Indeed, St Augustine thought that without a rule of law states themselves were nothing but organised robber bands.

The rule of law operates as a bar to untrammeled discretionary power. It does so by introducing a third factor to temper the exposure of particular citizens to the unrestrained sense of self-interest or partisan duty of other citizens or institutions — an independent arbiter not affected by self-interest or partisan duty, applying a set of principles, rules and procedures having objective existence and operating in paramountcy to any other organ of state and to any other source of power, and possessing a measure of independence from the wrath of disgruntled governments or other groups. These independent arbiters are usually judges.

The rule of law preserves for citizens an area of liberty in which they can live their lives free from the raw and direct application of power. It creates a framework within which the creative aspects of human life can thrive. The rule of law dilutes power; it diffuses it; and yet it also makes it more efficient. The rule of law prevents police officers trespassing on and seizing private property or holding citizens without trial or other hearing; yet it permits and facilitates the procurement of evidence in a regular way with a view to the convincing demonstration of criminal guilt in due course. It prevents the employees of banks, for example, applying the strict terms of oppressive mortgages ejecting debtors from their houses at will; but it enables the enforcement of whatever contractual rights there are in due course.

The rule of law operates on principles which are known or readily discoverable and hence do not change erratically without notice; which are reasonably clear; which apply uniformly and generally, not in a discriminatory way; which apply prospectively, not retroactively; and which are in force through public trials operating on rational procedural rules before judges who are independent of the state and of all parties. All parties are treated as intrinsically important, however unequal in strength and however lacking in popularity or virtue they may be. The more ineffective a state’s laws are against private coercion or anarchy or government power, the less they can be described as representing the rule of law.

The purpose of the rule of law is to remove both the reality of injustice and the sense of injustice.

Justice Dyson Heyden, “Judicial Activism and the Death of the Rule of Law”

Quadrant Magazine (January 2003).

The Australian legal system [1.510] It should be apparent even from this brief outline that the Australian legal system

is a complex animal. It may indeed be regarded as comprising nine separate but related

systems – the Commonwealth system, the six State systems and the two Territory systems –

each of which is underpinned by a constitution (in the case of the Commonwealth and the

States) or empowering legislation providing for self-government under the jurisdiction of

the Commonwealth (in the case of the Territories). In many areas where the Commonwealth

does not have exclusive legislative jurisdiction there can be nine separate regulatory

regimes, although in this, as in other areas where uniformity is desirable, agreement

between Commonwealth, State and Territory governments has increasingly delivered a

greater degree of uniformity in the disparate schemes.

While the federal and State/Territory tiers of Australian democracy are accommodated in

the Constitution, Australians third tier of government – local government – is entirely

29

overlooked. Local and municipal authorities have massive powers to pass delegated

legislation under powers delegated to them by the legislative arm of government, and to

make binding administrative decisions which affect all individuals and businesses – the lack

of constitutional recognition may be thought surprising.

1.8 THE CONSTITUTION

The Constitution

[1.520]

The events leading to Federation and the Constitution that enshrined the arrangements for

the division of power between the Commonwealth and the States and for the functions of

government within the Commonwealth were outlined above. It may be thought surprising

today that the Australian Constitution was formally enacted by the Imperial Parliament as

s 9 of the Commonwealth of Australia Constitution Act 1900 (UK). This simply reflects the

historical fact that Australian Federation and the Constitution developed not from revolution

but by evolution. In place of the stirring words of, eg the US and French Constitutions

which reflect the circumstances in which the constitutions of those countries were drafted,

the preamble to the legislation of the Imperial Parliament enacting the Commonwealth

Constitution seem very prosaic:

Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of 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:

And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:

Be it therefore enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

[1.530] The Constitution is divided into eight chapters:

Chapter I The Parliament

Chapter II The Executive Government

Chapter III The Judicature

Chapter IV Finance and Trade

Chapter V The States

Chapter VI New States

Chapter VII Miscellaneous

Chapter VIII Alteration of the Constitution

What the Commonwealth

proposes will be a test of the

genuineness of its commitment

to cooperative federalism rather

than the stupid antagonism and

rivalry which has grown up over the post half-century.

McGuinness PP, The Australian

(27 October 1990).

30

THE SPIRIT OF MAGNA CARTA COULD SERVE US WELL TODAY [1.540] The English template for individual liberty

retains a universal appeal 800 years later

On Monday it will be 800 years since a bunch of

barons forced King John of England to give his seal

to a documentary they had drawn up. Scrawled on

sheepskin, in ink made from dust, water and apples,

the document contained 63 clauses.

Its aim was to prevent a civil war between the irate

barons and autocratic John. To avoid his kingdom

descending into strife, the barons said, John should

accede to their demands, which were as varied as

“There should be standard measures of ale, wine and

corn throughout the kingdom” to “If a man dies

owing money to Jews, his wife (should) pay nothing

towards the debt from it”.

Reluctantly, John signed. But the peace was short-

lived. Within weeks the document had been annulled

by Pope Innocent III, who described it as “shameful”

and the barons and king were at war.

None of the men who gathered in that field near

Windsor on June 15, 1215 to watch John give a

tentative nod to their demands could have imagined

the impact their document would have – not just in

England, but everywhere.

It’s no exaggeration to say that Magna Carta, as it

came to be known, has shaped the world we live in

more than any other single document.

It propelled England into the modern era, helped give

birth to liberty in America, inspired French

revolutionaries, shaped Aussie law, and inspired

radicals as far afield as South Africa and China. Not

bad for a list of demands made by some pissed-off

medieval barons 800 years ago.

The reason the Great Charter had such a planet-

quaking impact is because, for all its quirkier

demands about ale, women and debt, it unleashed a

simple but revolutionary idea: that the power of the

state must sometimes be shackled in order to allow

individual liberty and autonomy to flourish.

The idea sings through clauses 38 and 39. “In future

no official shall place a man on trial upon his own

unsupported statement, without producing credible

witnesses to the truth of it,” says clause 38.

Here, in words that sounds as relevant to us today as

they must have done to those barons 800 years ago,

we have one of the earliest articulations of the rule of

law. Let people be, Magna Carta says, unless there’s

a strong case they’ve done something wrong.

Clause 39 says: “No free man shall be seized or

imprisoned, or stripped of his rights or possessions,

or outlawed or exiled … except by the lawful

judgment of his equals or by the law of the land.”

Here again we have a proposal to limit pesky

officials’ ability to interfere with people’s rights and

property unless they have a very good reason to do

so,

Magna Carta, with its king-defying – even God-

defying – insistence that the power of the state should

be limited in the name of letting “free men” go about

their business, let the genie of liberty out of the

bottle. And there was no forcing it back in.

Subsequent generations built on Magna Carta, arguing

that it shouldn’t only be barons who enjoyed

protection against nosy, interfering officials – so

should everyone. In England in the 17th century, the

radical jurist Edward Coke cited Magna Carta in his

successful arguments against the right of officials to

search people’s homes. He said: “(T)he house of

everyone is to him as his Castle and Fortress.”

That is, an Englishman’s home is his castle. Coke

was saying the falling-down home of a dirt-poor

farmer should be treated the same as a baron’s castle:

a place where officialdom should not tread. And so

was Magna Carta’s promise of liberty spread beyond

barons.

In America in the 1760s, the revolutionary James

Otis denounced the British colonialists’ use of “writs

31

of assistance”, which allowed them to search people’s

homes. Such meddling went against Magna Carta, he

said.

He went so far as to say that when the document was

signed in 1215, “American independence was then

and there born”. The Fourth Amendment of the US

constitution – which guarantees “The right of the

people to be secure in their persons, houses, papers

and effects” – made clause 39 of Magna Carta a

reality for all.

Magna Carta energised the French Revolution. The

1789 Declaration of the Rights of Man and Citizen

borrows from the barons when it says no man should

be “indicted, arrested, or detained except in cases

determined by law”.

In South Africa, Nelson Mandela appealed to Magna

Carta in his famous 1964 trial, insisting that he and

all black South Africans deserved protection against

the excessive power of apartheid courts.

In Tiananmen Square in 1989, the rowdy students

who faced down the Communist Party’s tanks also

harked back to that document drawn up by English

barons. They pinned Magna Carta to their

“Democracy Wall”.

On the 800th anniversary of Magna Carta, the thing

most people are saying about it is that it pretty much

invented the rule of law. That’s true. But it makes

Magna Carta’s achievements sound boring, lawyerly.

For what Magna Carta ultimately did is point to a

potential, and profound, shift in the relationship

between the state and the individual. It implied that

there’s something bad in an overweening state, and

something good in letting individuals be. “The right

to be let alone”, as American revolutionaries would

put it.

“Let alone” – this is Magna Carta’s true revolutionary

idea, the one that spoke to generation after generation

who longed to get officials off their backs so they

could live more freely.

The Levellers, the most radical wing in the English

Civil War of the 1640s, put it best. Magna Carta, they

said, was a “brazen wall and impregnable bulwark”

protecting people from power.

This is what humans have longed to build, using

Magna Carta as a foundation stone: a brazen wall

guarding the individual from officialdom. From the

Levellers to the Tiananmen revolters, the human,

demand has been the same: shackle the state in order

that the individual might live a freer happier life.

Today, even as we celebrate Magna Carta’s birthday,

this idea is under attack. We’re no longer “let alone”.

The bossiness of the state is growing, at the expense

of the individual autonomy.

Whether it’s banning smoking, restricting boozing,

censoring speech, reading our emails, storing our

phone data, or telling us how we should eat, parent

and behave, the state’s instinct to interfere in our

lives is as strong today as it’s ever been.

The state is breaking down the “impregnable bulwark”

between itself and us, now monitoring the minutiae

of our lives.

Waving the Magna Carta won’t ward off these

nannies, nudgers and naggers. Instead we need to

recover the spirit of Magna Carta, which was

expanded on by hordes of humans over 800 years:

the spirit of freedom; the spirit of independence; the

spirited demand to be let alone to determine our

destinies for ourselves.

O’Neill B, The Australian (13 June 2015).

Chapter I: The Parliament

[1.550]

Chapter I, s 1 of the Constitution vests the legislative power of the Commonwealth in a

“Federal Parliament, which shall consist of the Queen, a Senate, and a House of

Representatives, and which is hereinafter called ‘The Parliament’, or ‘The Parliament of the

No constitution can work too

smoothly if politicians play

too rough. KerrJ, Sydney Morning

Herald (14 September

1985).

32

Commonwealth’”. Chapter 1 also provides for the establishment of the Houses, the

significant procedures, and the powers of the Parliament. These provisions are dealt with in

five parts:

Part I General;

Part II The Senate;

Part III The House of Representatives;

Part IV Both Houses of the Parliament; and

Part V Powers of the Parliament.

The powers of the Parliament are discussed at [1.680]. The Parliament itself and the nature

of the legislative process are discussed in Chapter 3.

Chapter II The Executive Government

[1.560] This Chapter of the Constitution vests the executive power of the Commonwealth

in the Queen and provides for it to be “exercisable by the Governor-General as the Queen’s

Representative” (s 61) with the advice of the Federal Executive Council (s 62). The

command-in-chief of the naval and military forces of the Commonwealth is vested in the

Governor-General as the Queen’s Representative (s 68). The Federal Executive Council

comprises the Ministers of State for the Commonwealth, who must sit in Parliament and

who “hold office during the pleasure of the Governor-General” (s 64). Section 64 creates an

exception to the general rule that the Governor-General acts with the advice of the Federal

Executive Council. It creates a reserve power of dismissal which may be exercised without

the advice of the Executive Council or indeed in a manner contrary to any such advice. The

most dramatic example of the Governor-General’s exercise of the reserve power was the

dismissal of the Whitlam Labor government by the Governor-General Sir John Kerr in

1975. This was due to the government’s inability to pass supply legislation necessary to

fund the administration of the Commonwealth through the Senate. The Governor-General

then appointed the Liberal-Country Party coalition, led by Malcolm Fraser, which

controlled the Senate and could pass the legislation as caretaker government until a federal

election could be held. The reserve power under s 64 conflicts with the long-established

constitutional conventions, the accepted practices that are recognised as obligatory events,

though not laid down in statute or case law, that the Governor-General acts only on the

advice of her or his government. The events of 1975 are still strongly debated by

constitutional scholars. The executive power is discussed in more detail in Chapter 4.

Chapter III The Judicature

[1.570] Chapter III of the Constitution vests the judicial power of the Commonwealth in

a “Federal Supreme Court, to be called the High Court of Australia, and in such other

federal courts as the Parliament creates, and in such other courts as it invests with federal

jurisdiction” (s 71). The chapter also provides for the appointment, tenure and remuneration

of the Justices of the High Court (s 72) (such provisions being designed to preserve their

33

independence) and defines the jurisdiction of the High Court (ss 73-8). The High Court and

the judicial power are discussed in more detail in Chapter 2.

Chapter IV Finance and trade

[1.580] Chapter IV of the Constitution contains some of the most important and

contentious provisions of all. Section 90 grants exclusive power to the Federal Parliament

over customs and excise duties, while s 92 provides that “trade, commerce and intercourse

among the States … shall be absolutely free” and has alone provided thousands of pages of

High Court judgments as to its meaning, which provides evidence of remarkable shifts in

understanding. There are encouraging signs that the confusion may be ending. The meaning

of s 92 is discussed in [1.1040].

Chapter V The States

[1.590]

Chapter V of the Constitution preserves State constitutions (s 106), State laws (s 108) and

the powers of State Parliaments (s 107). Section 109 however provides that “when a law of

a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the

former shall, to the extent of the inconsistency, be invalid”. Section 109 is one of the most

difficult and most litigated sections of the Constitution (see [1.920]). Section 115 prohibits

States from coining money and s 116 prohibits the Commonwealth from legislating with

respect to religion, apparently disenfranchising both Caesar and God in succeeding sections.

Chapter VI New States

[1.600] Chapter VI of the Constitution provides for new States to be admitted to the

Commonwealth (ss 121, 124) and for the territorial limits of a State to be altered (s 123).

Chapter VI also provides for the Commonwealth Parliament’s authority over the Territories.

Section 122 states that:

The Parliament may make laws for the government of any Territory surrendered by any State to and accepted by the Commonwealth, or of any Territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such Territory in either House of the Parliament to the extent and on the terms which it thinks fit.

Laws establishing responsible governments for both the Northern Territory and the

Australian Capital Territory have been passed under this power.

Chapter VIII Alteration of the Constitution

[1.610] Chapter VIII contains only one section (s 128) that provides the procedure by

which the Constitution may be amended. In order to protect both the Constitution and the

less populous States, s 128 requires that any law to alter the Constitution must be passed by

both houses of Parliament and then submitted to vote in each State. That vote must be

carried by a majority of voters and a majority of the States.

Section 128 provides that:

In a federal system the

absolute independence of

the judiciary is the bulwark of

the constitution against

encroachment whether by the

legislature or by the executive. R

v Kirby; Ex parte

Boilermakers Society of

Australia (1957) 95 CLR 529.

34

This Constitution shall not be altered except in the following manner: The proposed law for the alteration thereof must be passed by an absolute majority of each

House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives.

But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it, or passes it with any amendment to which the first-mentioned House will not agree, and if after an interval of three months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the Governor-General may submit the proposed law as last proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives.

When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails.

And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen’s assent.

No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representative, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law.

In this section, “Territory” means any territory referred to in section one hundred and twenty-two of this Constitution in respect of which there is in force a law allowing its representation in the House of Representatives.

This requirement of a “double majority” allows the States with small populations to have

an opportunity to prevent constitutional change that is contrary to their interests being

forced upon them simply because of the greater number of voters in a few States. The

provision has had the effect that amendment of the Commonwealth Constitution is a rare

event.

UNFINISHED BUSINESS – A REFERENDUM TO CHANGE THE CONSTITUTION TO RECOGNISE INDIGENOUS PEOPLE [1.620] Recognition of Indigenous Australians in

constitution will help alleviate disadvantage

The 1967 referendum that deleted discriminatory

references to Aboriginal people from the constitution

left unfinished business.

Half a century ago, 30 University of Sydney students

boarded a bus and journeyed through rural New

South Wales to draw attention to discrimination

against Indigenous people.

Make no mistakes about referendums. Their results are notorious. You couldn’t introduce free beer by referendum. Sir JohnWalsh, Sydney Morning Herald (5 June 1965).

35

Their landmark action plus the determined advocacy

or Aboriginal and Torres Strait Islander campaigners

generated overwhelming support for removing

discrimination against Aboriginal people from the

constitution. At the 1967 referendum more than nine

in 10 Australians voted yes, making it the most

successful in Australia’s history.

Since then, many people – including a long list of

Aboriginal and Torres Strait Islanders and successive

prime ministers - have agitated for further changes as

it became clear that the 1967 referendum had left

unfinished business.

The 1967 referendum deleted discriminatory

references specific to Aboriginal people, but put

nothing in their place. Torres Strait Islanders have

never been referred to in the constitution. As a result,

rather than recognising Indigenous people, the

referendum left a silence at the heart of the

constitution.

The document reflects Australia’s history of British

settlement, but fails to mention the much longer

occupation of the continent by Aboriginal and Torres

Strait Islander peoples. It is as if their history does

not matter, and is not part of the nation’s story.

That referendum also failed to deal with clauses in

the constitution that permit racial discrimination

generally. As the group in the community that has

most often been subjected to discrimination under the

law – such as in regard to voting rights – Aboriginal

people have spoken strongly about their desire to see

such clauses removed. Doing this would help

modernise the Australian constitution and bring it

into line with contemporary values. Indeed, Australia

is now the only democratic nation in the world that

has a constitution with clauses that still authorise

discrimination on the basis of race.

Each of Australia’s major parties have committed to

hold a referendum to change the constitution to

recognise Aboriginal and Torres Strait Islander

peoples.

However, leaders have yet to agree on the model for

change, and so the words of the change to the

constitution remain uncertain.

The federal government has yet to announce a

timetable for the referendum, though it has indicated

that a referendum will be held no later than May 27,

2017. This is the 50th anniversary of the 1967

referendum.

Changing the constitution could have an important

symbolic and legal effect. However, some people find

it hard to see why this change should be given

attention when so much else needs to be done to

address Aboriginal disadvantage such as is manifest

in poor life expectancy and high unemployment. But

addressing disadvantage requires multiple approaches.

Recognition and addressing discrimination in the

constitution is one of the things that could be done to

improve the situation.

…

So constitutional change could have broad, positive

effects that extend far beyond the law. For example,

the referendum could unite Australians around a

sense of their shared history which, for the first time

in the constitution, would include the long habitation

of the continent by Indigenous peoples. As in other

nations, these words in the founding document could

be used in schools to educate young people.

Constitutional recognition could also have positive

health effects. Medical research shows how legal

discrimination and exclusion can have a negative

impact on mental and physical wellbeing. Indeed, it

is hard to underestimate the emotional and other costs

of being cast as an outsider in your own land.

…

Five options for change to the constitution

1. Insert symbolic words of recognition that do

not create any new rights or obligations, but

provide national recognition of Aboriginal

and Torres Strait Islanders as the first peoples

of Australia.

2. Delete two sections that permit Australia’s

Parliaments to make laws according to a

person’s race: section 25, which recognises

that people can be denied the vote in State

elections because of their race; and

36

section 51(xxvi), which empowers the Federal

Parliament to make laws that discriminate for

or against a group on the basis of their race.

3. Replace the races power in section 51(xxvi)

with a new power to enable the Federal

Parliament to make laws for Aboriginal and

Torres Strait Islander peoples.

4. Insert a new limitation that prevents the

Federal Parliament, and perhaps also the State

and Territory Parliaments, from passing laws

that discriminate against any person, or

perhaps just Indigenous peoples, on the basis

of their race.

5. Require the Federal Parliament to consult

with Aboriginal and Torres Strait Islander

peoples before passing any law that affects

them.

Williams G, Sydney Morning Herald (11 April 2015).

IN CONTEXT

Constitutional reform

[1.630] The Australian Constitution can only be changed by referendum. There

have been 44 referendums held since 1901 and only eight of these have been

successful. The most successful referendum in Australia’s history was in 1967

where 90.77% of the nation voted “Yes for Aborigines”. The 1967 referendum

amended the Australian Constitution to give the federal parliament the power to

make laws in relation to Aboriginal and Torres Strait Islander people and to allow

for Aboriginal and Torres Strait Islander people to be included in the census.

http://www.humanrights.gov.au/publications/constitutional-reform-fact-sheet-

historical-lessons-successful-referendum_-_fn2

This is in stark contrast to the 1999 referendum which proposed to alter the

Australian Constitution so that Australia became a republichttp://

www.humanrights.gov.au/publications/constitutional-reform-fact-sheet-historical-

lessons-successful-referendum_-_fn3 and insert a new preamble. The result was a

no vote for both amendments. On the question of a republic, 54.87% voted against

the proposal and on the question of the preamble 60.7% voted no.

Australian Human Rights Commission, Constitutional reform: Fact Sheet –

Historical Lessons for a Successful Referendum (http://www.humanrights.gov.au/

publications).

Implied rights under the Constitution

[1.640] Unlike the US Constitution the Commonwealth Constitution does not incorporate

a Bill of Rights guaranteeing basic personal freedoms. In the 1990s the High Court

nevertheless recognised an implied right of free speech in the form of freedom of political

communication distilled from the concept of representative or responsible government

enshrined in the Westminster system and given effect in the Constitution.

37

AUSTRALIAN CAPITAL TELEVISION PTY LTD V THE COMMONWEALTH

[1.650] Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45 (Political Advertising

Case)

Commonwealth legislation required television and radio broadcasters to provide free time for political

broadcasts prior to elections. Of the total time available for such broadcasts, 90% was to be made available to

political parties already represented in the relevant Parliament in proportion to their share of votes in the last

election. While the Commonwealth claimed that this system offered equality of access to all, in fact it denied

substantial access to those who had not succeeded at the prior election. The High Court held that the

legislation was invalid.

The principal argument raised against the legislation was based on the fact that the Constitution provides for

representative government. It was argued that it was essential to the effective operations of that system of

representative government that there should be a guarantee of freedom of expression in relation to public and

political affairs. The High Court adopted that view and said that such a guarantee of freedom of expression

was necessarily implied in the Constitution itself where it created that system of representative government.

Mason CJ stated that:

The Constitution provided for representative government by creating the Parliament … in which legislative power is vested (s 1), the members of each House being elected by popular vote …

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 … 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 … 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.

His Honour held that freedom of communication, at least in relation to public affairs and political

discussion, was indispensable to that accountability:

Only by exercising that freedom can the citizen communicate his or her views on the wide range of matters that may call for, or are relevant to, political action or decision. Only by exercising that freedom can the citizen criticise government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives. By these means the elected representatives are equipped to discharge their role so that they may take account of and respond to the will of the people. Communication in the exercise of the freedom is by no means a one-way traffic, for the elected representatives have a responsibility not only to ascertain the views of the electorate but also to explain and account for their decisions and actions in government and to inform the people so that they may make informed judgments on relevant matters. Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their

38

elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative.

[1.660] The implied right of free speech was later reconsidered by the High Court in the

context of a defence to defamation in Theophanous v Herald & Weekly Times Ltd [1994]

HCA 46 and Lange v Australian Broadcasting Corporation [1997] HCA 25 (Political Free

Speech case).

In Theophanous the High Court by a 4:3 majority held that defamation was subject to the

implied freedom of political communication and that there was a “constitutional defence”

where a defamatory publication was a matter of political discussion.

In Lange a former Prime Minister of New Zealand brought a defamation action against the

ABC who defended it on the basis of the “Theophanous defence”. The High Court retreated

from Theophanous – it upheld the implied constitutional right of political communication

but held that it operated as a constraint on legislation and did not confer personal rights to

freedom of speech. The High Court nevertheless developed a modified form of qualified

privilege to accommodate the principle that: “each member for the Australian community

has an interest in disseminating and receiving information, opinions and arguments

concerning government and political matters that affect the people of Australia”.

1.9 THE SEPARATION OF POWERS – LEGISLATURE, EXECUTIVE AND JUDICIAL POWERS

[1.670]

The government of any organised community requires the exercise of legislative, executive

and judicial powers. Legislative power is the power to make laws. Executive power is, in

general terms, “the authority within the State which administers the law, carries on the

business of government and maintains order within and security from without the State”

(Wynes WA, Legislative, executive and judicial powers in Australia (4th ed, The Law Book

Co, 1970) p 364). Judicial power is the power to apply the law to individual cases and to

resolve disputes arising under the law.

The institutions in which the three branches of government are entrusted are provided for in

the Constitution.

Legislative power

[1.680] Section 1 of the Constitution provides that:

The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate and a House of Representatives, and which is hereinafter called “The Parliament”, or “The Parliament of the Commonwealth”.

The essential feature of the Westminster system is the recognition that Parliament has the

absolute right to make or unmake any law without any limitation. This sovereignty or

supremacy of Parliament was the outcome of a long and bitter struggle between the

Monarch and the Monarch’s council. The council, the ancient predecessor of the elected

Power corrupts. Absolute power is kind of neat. John Leman, US Secretary of the Navy.

39

houses of Parliament, ultimately prevailed when in 1689 the Bill of Rights denied the

Monarch any right to legislate independently of the embryonic assembly of

representatives. The formal institution of Parliament which developed in the United

Kingdom, the Westminster Parliament, provided the model for Australia.

Under the Commonwealth Constitution the legislative, or law-making, function of

government is vested in the Federal (or Commonwealth) Parliament – a bicameral

legislature comprising two elected houses, the Senate or upper house, consisting of

members elected from and representing the States, and the House of Representatives or

lower house, consisting of members elected to represent constituencies into which the

country is divided. The vesting of certain legislative powers in the Commonwealth does not

deny the fundamental role assigned to the High Court by the Constitution. It is the right and

the task of the High Court to interpret the Constitution, a task which involves determining

the proper role of the Parliament within that Constitution.

The Crown – represented by the Governor-General – is also part of the legislature and

measures passed by both houses of Parliament are not law unless and until they receive the

royal assent. Similar constitutional arrangements exist under the constitutions of the States

(with the exception of Queensland which has a unicameral legislature, its upper house

having been abolished in 1922). In the States, the upper house is called the Legislative

Council and the lower house is called the Legislative Assembly, except in Tasmania and

South Australia where it is called the House of Assembly. The Crown is represented in each

State by a State Governor. The Territories have power to make their own laws but their

power derives from Commonwealth legislation and their legislatures are subordinate

legislatures to the Commonwealth Parliament.

In Australia, the consequences of Federation impose a significant qualification on the

sovereignty of Parliament. In unitary systems such as those of the United Kingdom or New

Zealand, the central legislature is the supreme law-making authority. Other legislative

bodies may be allowed to function but they will always be subordinate to the primary

legislature. In federal systems such as those of Australia, the United States or Canada,

legislative powers must be shared between the central body and its constituent parts (in

Australia between the Commonwealth and the States). A vital role of the Constitution is the

allocation of power between the Commonwealth and the States. Australia adopted the US

model whereby the Federal Parliament’s powers are limited by and enumerated in the

Constitution with all residuary powers being vested in the State parliaments. The Canadian

model differs in that under the Constitution, specified legislative powers are assigned to the

provinces and the residue, the unspecified powers, is vested in the Dominion Parliament.

The legislative competence of the Parliament is discussed throughout this chapter. The

machinery of enacting legislation is discussed in Chapter 3.

Executive power [1.690] Section 61 of the Constitution provides that:

The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

Power granted is seldom

neglected. United States v Wunderlich 342

US 98 at 101 (1951). 40

The executive power vested in the Queen is exercisable by the Governor-General on the

advice of the Federal Executive Council (s 62) drawn from the Ministers of Crown, that

is, those members of the Government (the party controlling the lower house) appointed by

the Governor-General on the advice of the Prime Minister (the leader of the government) to

administer the Commonwealth Departments of State.

Patrick O’Brien has traced the development of executive government (“The fatal flaw: Has

the Westminster system produced a form of executive dictatorship?”, Time Magazine

(16 September 1991)):

The origins of the Westminster system lie in the long struggles between the British crown and the British parliament over the right to exercise the executive powers of government. The battle for power began in the 17th century when Charles I claimed a divine right to rule and sacked the parliament. But parliament refused to be sacked: there was a revolt, Charles was tried, convicted of treason and executed. There followed decades of turmoil, including a civil war and a republican dictatorship under Cromwell. Over time, a system of absolute monarchy was transformed into a constitutional monarchy and, in the process, the crown, albeit reluctantly, relinquished its powers, to a “sovereign parliament” at Westminster hence the term “Westminster system”. There was a struggle between parliament and the crown for sovereignty; the people had no real part in it …

Under the Westminster system … all significant constitutional, political and administrative powers have been transferred from the crown to the executive government.

The role of executive government and its exercise is discussed in greater detail in

Chapter 4.

Judicial power

[1.700] Section 71 of the Constitution provides that:

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.

The High Court of Australia was established in 1903 under the Judiciary Act 1903 (Cth)

(since replaced by the High Court Act 1979 (Cth)). Since that time a number of other

federal courts (eg the Federal Court and the Family Court) have been created, and State

courts have been given federal jurisdiction in particular cases (see Chapter 4). On the other

hand, legislation which has provided for Commonwealth courts to exercise State

jurisdiction has been held invalid by the High Court in Re Wakim; Ex parte McNally (1999)

163 ALR 270. The basis of the decision was that Chapter III of the Constitution fully set out

the matters with which a Commonwealth court could deal. It was not possible for States to

grant further jurisdiction to Commonwealth courts.

The High Court occupies a pre-eminent position in the administration of justice in Australia.

It not only is responsible for matters relating to the interpretation of the Constitution (eg the

limits of the Commonwealth Parliament’s legislative competence, and demarcation disputes

between the Commonwealth and the States) but it is also the highest appellate court for

matters of Federal and State law.

The parliamentary process has changed. To a large extent we’ve got executive government. Parliament is a sham. I just observe the fact that the man on the bus thinks all politicians are bloody idiots. Jacobs S, Business Review Weekly (5 November 1993).

Igor Karpec, head of the Soviet Lawyers’ Delegation, stated that he was delighted with the whole series of events … (but) … we do not believe in the separation of powers doctrine, and you will just have to accept this. American Bar Association News Release (17 September 1986).

41

The separation of powers under the Constitution

[1.710] The government of any organised community requires the exercise of legislative,

executive and judicial powers. In an autocratic or dictatorial system these powers may be

concentrated in one body. In the mid-eighteenth century, Montesquieu developed the theory

of the separation of powers, conscious that power corrupts and absolute power corrupts

absolutely. Liberty is effectively safeguarded only by the separation of legislative, executive

and judicial powers between separate and independent persons or bodies. However, the

Westminster system of government (Westminster being the home of the form of

parliamentary democracy which Australia inherited, and parts of which are enshrined in the

Commonwealth Constitution) has never satisfied Montesquieu’s ideal. The operation of the

separation of powers under the Commonwealth Constitution does not achieve the ideal

because it fails to bring about the actual result that the three powers are in fact exercised by

organs of government separate from and independent of each other. This has not been

realised in practice in Australia because the Cabinet and other ministers who comprise the

Executive Council in whom executive power resides are members of Parliament, the

legislative body. The reality of the Westminster system is that the Executive is drawn from

the government and the government, by virtue of its parliamentary majority, controls

Parliament, although in recent years it has frequently been found that the Senate is not

under the control of the government (majority) in the lower house. A useful contrast arises

out of the United States Constitution. In the United States, those who make up the

legislature are not those who collectively constitute the executive branch of government, so

that in fact there exists a real separation between these two powers. The constitutional

intention is that any combination of the powers in the same hand must be prohibited.

R V KIRBY, EX PARTE THE BOILERMAKERS’ SOCIETY OF AUSTRALIA [1.720] R v Kirby, Ex parte the Boilermakers’

Society of Australia [1956] HCA 10

Facts

The leading case on the judicial power is the

Boilermakers’ case, a decision of the High Court

which was confirmed by the Privy Council on

appeal in Attorney-General of Australia v The

Queen; Ex parte the Boilermakers’ Society of

Australia (1957) 95 CLR 529. That case concerned

the powers of the then existing Commonwealth

Court of Conciliation and Arbitration. That court

was functioning in two capacities. One was in its

judicial capacity to interpret and apply the law and

to impose penalties where appropriate. The other

was to make awards between the parties to an

industrial dispute, with a view to settling that

dispute. That was the primary and essential object

of the legislation that established the court.

Decision

It was found in both the High Court and in the

Privy Council that the function of an industrial

arbitrator is completely outside the realm of the

judicial power and is of a different order. It had

earlier been explained by Isaacs and Rich JJ in

Waterside Workers’ Federation of Australia v JW

Alexander Ltd (1918) 25 CLR 434 at 463-4 that:

The two functions therefore are quite distinct. The arbitral function is ancillary to the legislative

42

function, and provides the factum upon which the law operates to create the right or duty. The judicial function is an entirely separate branch, and first ascertains whether the alleged right or duty exists in law, and, if it binds it, then proceeds if necessary to enforce the law. Not only are they different powers, but they spring from different sources in the Constitution. The arbitral power arises under s 51(xxxv); the judicial power under s 71.

It was therefore concluded that the Commonwealth

Court of Conciliation and Arbitration was a

non-judicial tribunal exercising arbitral functions.

It could not purport to exercise judicial functions;

in particular it had no power to impose a fine on

union officials for contempt of court.

Implications

Following Boilermakers, the old court was split into

two bodies, one now known as the Australian

Industrial Relations Commission, which makes

awards, and one now known as the Industrial

Division of the Federal Court, which interprets and

enforces the award in the exercise of judicial power.

The strict separation of the judicial power was

enforced for many years after Boilermakers but

recent times have seen the creation of a number of

federal bodies, in particular tribunals, which may

contravene the Boilermakers principle.

[1.730] The position in Australia is not so clear. Executive and legislative powers are not

exercised by strictly independent bodies.

BRANDY V HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

[1.740] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

In Brandy, the High Court had the opportunity to reconsider the Boilermakers case when the Human Rights

and Equal Opportunity Commission (HREOC), a non-judicial tribunal, sought to enforce its findings by

having them treated as if they were Federal Court orders. That capacity had been given to the HREOC by its

enabling legislation, the Human Rights and Equal Opportunity Commission Act 1986 (Cth). The judgment of

the High Court was that the legislation was invalid because it provided for an exercise of judicial power

contrary to the Constitution. The case arose out of a complaint by a white man, John Bell, that he had been

racially abused by an Aboriginal man, Harry Brandy. The HREOC found the complaint established and

ordered Brandy to apologise and pay Bell $2,500. It was the enforcement of that determination which brought

the matter before the High Court, with the ironic result that it was an appeal by an Aboriginal person that

struck down the enforcement provisions of the Racial Discrimination Act 1975 (Cth).

The effect of the Brandy decision may be wide-ranging, and may subject the validity of decisions of many

other tribunals to scrutiny, including the Industrial Relations Commission and the Australian Broadcasting

Authority. Such Commissions and Authorities may register their determinations in the Federal Court, thus

effectively making them orders of that court and therefore enforceable.

43

KABLE V DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

[1.750] Kable v Director of Public Prosecutions (NSW) [1996] HCA 24

The question of whether the doctrine of separation of powers operates with in State constitutions came before

the High Court in the Kable case. That case arose out of the enactment by the NSW Parliament of the

Community Protection Act 1994 (NSW) for the purpose of keeping Kable, who had been convicted of the

manslaughter of his wife, in jail after the expiration of his sentence, for the safety of the community. The Act

conferred on the Supreme Court the power to:

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.

This power was described by Gummow J as allowing an order depriving an individual of liberty on the

basis of an opinion. As such it was the antithesis of the judicial process and could not be characterised as

a judicial function. The High Court was then faced with the argument that the NSW State Parliament,

having constitutional authority to pass laws for the “peace, order and good government” of the State

(Constitution Act 1902 (NSW), s 5), had jurisdiction to grant to its Supreme Court whatever powers it saw

fit. The State was not constrained, as the Commonwealth was, by the doctrine of separation of powers. The

response of the majority of justices was that the State courts form part of an integrated Australian court

hierarchy, the High Court being the final court of appeal in that hierarchy. The State courts thus are part of a

judicial system that exercises both Federal and State power, and therefore no State Parliament could assign to

the courts of that State, functions that are repugnant to the exercise of federal judicial power. It was observed

by Gummow J, at [35], that the Commonwealth Constitution invests State courts with jurisdiction to try

offences against federal criminal law and that:

the appearance of institutional impartiality in administering that law, and in inflicting punishment for breach of it, is sapped to an impermissible degree by ad hominem legislation of the nature I have discerned in the Act … The Act requires the Supreme Court to inflict punishment without any anterior finding of criminal guilt by application of the law to past events, being the facts as found. Such an activity is said to be repugnant to judicial process.

The High Court therefore concluded that while the separation of powers doctrine does not prevent States

investing their courts with non-judicial functions, the law in question in Kable was repugnant to or

incompatible with the exercise by those courts of Commonwealth judicial power and was therefore invalid.

[1.760] Subsequent to this decision the NSW Parliament passed the Crimes Legislation

Amendment (Existing Life Sentences) Act 2001 (NSW) which provided that for prisoners

who were sentenced “never to be released”, there must exist “special reasons” for a judge to

consider an application for the grant of parole. That legislation has survived a High Court

challenge in Baker v The Queen [2004] HCA 45. Gleeson CJ rejected the appellants’

submission that the amended legislative scheme “was a charade” (at [19]).

44

To strike down the legislation it was necessary to show that it was impossible to establish

special reasons and that no application could succeed. That had not been shown. The

relatively slight distinction between the prior Act (struck down in Kable) and the

amendment was sufficient for the amendment to succeed (Baber v The Queen [2004] HCA

45).

A further issue relating to the independence of the judicial power arises in the context of

mandatory sentencing under what legislators specifies the sentences that courts must impose

for the commission of certain offences. It has been suggested that those laws are open to

constitutional attack based on the (Justice K Santow, Sydney Morning Herald (28 March

2000)):

contention that these mandatory sentencing regimes undermine the integrity of the court’s sentencing processes and the independence of the court from the executive and legislature, viewed – and tested – as a matter of objective reality.

WILLIAMS V COMMONWEALTH OF AUSTRALIA

[1.770] Williams v Commonwealth of Australia [2012] HCA 23

The plaintiff, the father of four children attending a state school in Queensland, challenged a funding

agreement between the Commonwealth and Scripture Union Queensland for the provision of chaplaincy

services at that school. The constitutional challenge was on the basis that the funding agreement was not

supported by s 61 of the Constitution. The High Court by majority held that the funding agreement was

invalid because it was beyond the executive powers of the Commonwealth. There was no statutory authority

for the funding agreement and s 61 did not empower the Commonwealth to make the agreement. The majority

held that the Commonwealth Executive power did not include a power to do what the Parliament could, but

had not, authorised the Executive to do.

1.10 PARLIAMENTARY SOVEREIGNTY

The struggle for legislative supremacy

[1.780]

By the 17th century English political history was dominated by the struggle for law-making

supremacy between the Crown and Parliament. The Monarch claimed the right to legislate

by proclamation by virtue of the royal prerogative. The Parliament claimed that the

Monarch could legislate only with its consent.

The struggle culminated in the “glorious revolution” of 1688 when James II’s claim of a

prerogative right to dispense with laws in the face of increasing parliamentary opposition

forced him to flee from England. The offer of the vacant Crown of England to William III

Each one of them believes that the Constitution prohibits that which they think should be prohibited, and permits that which they think should be permitted. Justice Hugo Black, Newsweek (9 December 1968).

An Act of Parliament can do no wrong, though it may do several things that look pretty odd. City of London v Wood (1701) 12 Mod 669 at 687 per Holt CJ.

45

and Mary II was conditional on their acceptance of the Declaration of Rights which detailed

a list of grievances which it sought to correct, and to remove the improper assumption of

powers by James II. The Declaration of Rights was enacted as the Bill of Rights – a

document which ranks as one of the world’s great charters of rights and liberties. Parliament

emerged victorious when the judiciary accepted that the Crown in Parliament was the

supreme legislative authority.

[1.790] Dicey AV, in An Introduction to the Study of the Law of the Constitution (10th ed,

Palgrave Macmillan, 1985) described parliamentary sovereignty in these words:

The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has under the English constitution 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.

[1.800] In Australia the sovereignty of Parliament is enshrined in the Constitution

which confers legislative authority on the Federal Parliament acting within the scope of the

powers conferred. The sovereignty of State Parliaments is achieved in a similar manner

under State Constitutions. In New Zealand, which is one of the few countries in the world

without a formal written constitution contained in a fundamental document, it was

necessary for the Supreme Court to resort to the Bill of Rights of 1688 to vindicate the

authority of Parliament. The facts of Fitzgerald v Muldoon [1976] 2 NZLR 615 arose out of

the announcement by the then newly elected Prime Minister Robert Muldoon, honouring an

election promise that the government’s legislative intention was to disband the

Superannuation Board and that compulsory deductions from employees for the statutory

superannuation scheme should cease. The Chief Justice, Sir Richard Wild, granted a

declaration that this announcement was illegal (at 622-623):

[The plaintiff’s case] asserts a breach of s 1 of the Bill of Rights 1688: That the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal.

It is a graphic illustration of the depth of our legal heritage and the strength of our constitutional law that a statute passed by the English Parliament nearly three centuries ago to extirpate the abuses of the Stuart Kings should be available on the other side of the earth to a citizen of this country which was then virtually unknown in Europe and on which no Englishman was to set foot for almost another hundred years. And yet it is not disputed that the Bill of Rights is part of our law. The fact that no modern instance of its application was cited in argument may be due to the fact that it is rarely that a litigant takes up such a cause as the present, or it may be because governments usually follow established constitutional procedures. But it is not a reason for declining to apply the Bill of Rights where it is invoked and a litigant makes out his case.

The Act of Parliament in force required that those deductions and contributions must be made, yet here was the Prime Minister announcing that they need not be made. I am bound to hold that in so doing he was purporting to suspend the law without consent of Parliament. Parliament had made the law. Therefore the law could be amended or suspended only by Parliament or with the authority of Parliament.

The sovereignty of Parliament in Australia

[1.810] Dicey’s classic formulation of parliamentary sovereignty, that the English

Parliament has “the right to make or unmake any law whatever; and, further, that no person

46

or body is recognised by the law of England as having a right to override or set aside the

legislation of Parliament”, requires some modification in the United Kingdom of the present

day. As a member of the European Community, sovereignty in certain matters has been

ceded to the Council and Commission of the European Community. In Australia, Dicey’s

proposition obviously requires substantial modification.

A federal system requires a division of legislative power between the central Federal

Parliament and the State Parliaments. Under the Constitution the Commonwealth

Parliament is limited to the legislative powers expressly conferred on it by the Constitution.

The High Court has the power to declare legislation unconstitutional and invalid if it is not

supported by a head of power granted by the Constitution. But, if legislation is

constitutionally valid, the consequences of parliamentary sovereignty follow. No person or

body whether judge, prime minister, department head or government can override or amend

a law made by Parliament, assuming that the law has been validly enacted under the terms

of the Constitution. In Coco v The Queen (1994) 179 CLR 427 this proposition was clearly

reaffirmed by the High Court, Mason CJ, Brennan, Gaudron and McHugh JJ stating that

even fundamental rights, freedoms and immunities can be reduced by a State Parliament

acting within its constitutional powers provided that the intention of Parliament is “clearly

manifested by unmistakable and unambiguous language” (at 437). However, the attempted

exercise by the NSW Parliament of its legislative power to confer jurisdiction on the NSW

Supreme Court (which was incompatible with the role of that court in the Australian judicial

system) was struck down by the High Court in Kable v DPP (NSW) [1996] HCA 24 (see

3.5).

Legal sovereignty and “manner and form” provisions

[1.820] Another consequence of parliamentary sovereignty is that Parliament cannot

legislate to limit its future sovereignty. If, for example, a Parliament controlled by a

government opposed to a particular form of tax passed legislation declaring that such a tax

could never be introduced, a later Parliament could repeal that legislation. But although

future Parliaments cannot be bound as to the substance of legislation they can be bound as

to the manner and form or procedure for passing legislation. The leading authority is A-G

(NSW) v Trethowan (1931) 44 CLR 394. The Constitution Act 1902 (NSW) provided that

the upper house of the New South Wales Parliament could not be abolished except by a Bill

passed by both houses and approved at a referendum. This procedural requirement was

itself “entrenched” and could not be amended or repealed except by the same manner and

form. Both the High Court (A-G (NSW) v Trethowan (1931) 44 CLR 394) and the Privy

Council (A-G (NSW) v Trethowan [1932] AC 526) held that the current Parliament was

bound by the manner and form requirement of the referendum imposed by an earlier

Parliament. The procedures laid down had to be followed.

Political sovereignty

[1.830] The above discussion has addressed legal sovereignty. In practice extra-legal

considerations provide an effective restraint on the powers of Parliament. The common

law’s tradition of equality, freedom and justice, although undefined, is a powerful factor as

The whole development of parliament was in the struggle to establish first its independence of the Crown and then its final superiority. It is the gradual encroachment of the executive, usurping the role of the Crown, which has undermined first of all the powers, then the responsibility, and finally the reputation, of parliament. This has allowed governments to escape serious scrutiny in Parliament. The executive has simply become too powerful. McGuinness PP, The Australian (April 1992).

47

are the moral and religious views of those exercising legislative power. The cynic would

argue that the most effective restraint on legislative excess is the power of the ballot box. In

this respect political sovereignty may be said to reside in the citizenry who can

democratically reject an unpopular government through the ballot box. The ultimate

sanction of course is revolution, and history abounds with examples of the overthrow of

oppressive regimes by the citizens. The French revolution is one example; the declaration of

independence from Britain by the United States is another. The preamble to the Constitution

of the United States enshrines popular sovereignty:

We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common Defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

1.11 THE DIVISION OF LEGISLATIVE POWER BETWEEN THE COMMONWEALTH AND THE STATES

[1.840] Australia is a federation which requires law making powers to be distributed

between the Commonwealth and the States. In Law of the Constitution, (8th ed, Macmillan,

1927), Dicey suggested that:

Whatever concerns the nation as a whole should be placed under the control of the national government. All matters which are not primarily of common interest should remain in the hands of the several States.

Under Australian Federation, while the colonies (now States) gave up powers, rights and

duties to the new central government, they nevertheless retained their individual identities

and a great deal of legislative authority. There are three categories of legislative powers:

exclusive, concurrent and residual.

Exclusive powers

[1.850] An exclusive power is one exercisable only by the Parliament in which it is

vested and no other. In Australia, there are few exclusive powers, the principal of which are

vested in the Federal Parliament by s 90 of the Constitution which, in part, provides:

On the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and of excise, and to grant bounties on the production or export of goods, shall become exclusive.

Other exclusive powers are granted by s 52 (in relation to the seat of government of the

Commonwealth and places acquired by it for public purposes, and matters relating to the

Executive Government of the Commonwealth) and s 122 (in relation to the Parliament’s

power to make laws to the territories). Where the Commonwealth is granted an exclusive

power, the States are deprived of any right to legislate in respect of that matter.

Concurrent powers

[1.860] Concurrent powers are those exercisable by either Federal or State Parliaments.

Within the Australian context, that means they are powers specifically granted to the

It is impossible for a Federal Constitution

which divides powers between

a central government and governments of

States or Provinces to

satisfy all sections of any

community. Complaints of

the difficulties of amending the

Constitution are often made, and it is argued that

the Commonwealth

Parliament itself ought to be able

to amend the Constitution. If

the Commonwealth Parliament had

such a power the Constitution

would become a unitary as

distinct from a Federal

Constitution. Sir John Latham, Interpretation of the Constitution, in Else-Mitchell (ed), Essays on the Australian

Constitution (2nd ed, The

Law Book Company

Limited, 1961).

48

Commonwealth under s 51 of the Constitution but remaining also within the general

law-making capacity of the States. Section 51 confers 39 heads of power in relation to

which the Commonwealth can legislate for the “peace, order and good government of the

Commonwealth”. Because the s 51 powers are concurrent powers, ie overlapping powers,

the States retain their right to legislate in these fields, but in the event of a conflict arising

between Federal and State law, s 109 of the Constitution provides that the Federal

legislation prevails. Sections 51 and 109 are discussed at [1.920].

Residual powers

[1.870]

Residual powers embrace all non-exclusive and non-concurrent powers. In the Australian

context the residual powers are matters within the legislative competence of the States.

These powers are not specifically enumerated in State constitutions – the grant of legislative

power under State constitutions is in general terms and authorises all legislation necessary

for “good government” – and they are simply those heads of power over which the

Commonwealth has no specific exclusive or concurrent powers. The residual powers cover

a wide area: education, health, traffic, buildings and construction, local government, crime,

contracts and so on. However, the trend since Federation, which has increased significantly

over the last few decades, is for the Commonwealth to assume, by cooperative means as

well as through generous High Court interpretations of its concurrent powers, greater

responsibilities in areas which, at the time of Federation, were assumed to be within the

exclusive jurisdiction of the States.

1.12 THE LEGISLATIVE COMPETENCE OF THE COMMONWEALTH

[1.880] The heads of power granted to the Commonwealth to pass legislation, albeit

concurrently with the States, are set out in s 51 of the Constitution. That section commences

with the words:

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 …

and thereafter lists 39 specific heads of power. The effect of the provision is that if subject

matter proposed for Commonwealth legislation is not included within the 39 heads, then the

Federal Government has no legislative authority to deal with it. The “concurrent powers laid

down in s 51 are” …

(i) trade and commerce with other countries, and among the States;

(ii) taxation; but so as not to discriminate between States or parts of States;

(iii) bounties on the production or export of goods, but so that such bounties shall be

uniform throughout the Commonwealth;

(iv) borrowing money on the public credit of the Commonwealth;

(v) postal, telegraphic, telephonic, and other like services;

Our Constitution is now over 80 years old and stands, almost in its entirety, in its original form. It’s a remarkable thing that during more than 80 years our polity has functioned as smoothly as it has, governed as it is by a constitution formed in the 1890s by middle-aged and elderly men who, most of them, had their views formed in the social climate of the 1860s and 70s, now well over a hundred years ago. This is remarkable in any age; it is truly remarkable in an age which has seen swifter and more radical changes than ever before. Sir Ninian Stephen.

49

(vi) the naval and military defence of the Commonwealth and of the several States, and the

control of the forces to execute and maintain the laws of the Commonwealth;

(vii) lighthouses, lightships, beacons and buoys;

(viii) astronomical and meteorological observations;

(ix) quarantine;

(x) fisheries in Australian waters beyond territorial limits;

(xi) census and statistics;

(xii) currency, coinage, and legal tender;

(xiii) banking other than State banking also State banking extending beyond the limits of the

State concerned, the incorporation of banks, and the issue of paper money;

(xiv) insurance, other than State insurance; also State insurance extending beyond the limits

of the State concerned;

(xv) weights and measures;

(xvi) bills of exchange and promissory notes;

(xvii) bankruptcy and insolvency;

(xviii) copyrights, patents of inventions and designs, and trade marks.

(xix) naturalization and aliens;

(xx) foreign corporations, and trading or financial corporations formed within the limits of

the Commonwealth;

(xxi) marriage;

(xxii) divorce and matrimonial causes; and in relation thereto, parental rights, and the custody

and guardianship of infants;

(xxiii) invalid and old-age pensions;

(xxiiiA) the provision of maternity allowances, widows’ pensions, child endowment,

unemployment, pharmaceutical, sickness and hospital benefits, medical and dental

services (but not so as to authorize any form of civil conscription), benefits to students

and family allowances;

(xxiv) the service and execution throughout the Commonwealth of the civil and criminal

process and the judgments of the courts of the States;

(xxv) the recognition throughout the Commonwealth of the laws, the public Acts and records,

and the judicial proceedings of the States;

(xxvi) the people of any race for whom it is deemed necessary to make special laws;

(xxvii) immigration and emigration;

(xxviii) the influx of criminals;

(xxix) External affairs;

(xxx) the relations of the Commonwealth with the islands of the Pacific;

(xxxi) the acquisition of property on just terms from any State or person for any purpose in

respect of which the Parliament has power to make laws;

(xxxii) the control of railways with respect to transport for the naval and military purposes of

the Commonwealth;

50

(xxxiii) the acquisition, with the consent of a State, of any railways of the State on terms

arranged between the Commonwealth and the State;

(xxxiv) railway construction and extension in any State with the consent of that State;

(xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes

extending beyond the limits of any one State;

(xxxvi) matters in respect of which this Constitution makes provision until the Parliament

otherwise provides;

(xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or

Parliaments of any State or States, but so that the law shall extend only to States by

whose Parliaments the matter is referred, or which afterwards adopt the law;

(xxxviii) 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;

(xxxix) matters incidental to the execution of any power vested by this Constitution in the

Parliament or in either House thereof, or in the Government of the Commonwealth, or

in the Federal Judicature, or in any department or officer of the Commonwealth.

The interpretation of the concurrent powers

[1.890] It would be idle to pretend that lawyers are unanimous in their views of what

matters fall within s 51 of the Constitution and the section has been much litigated. The

Commonwealth Government is, of course, enthusiastic in its endeavours to expand the

scope of the listed powers, and the States, and those adversely affected by Commonwealth

legislation, are just as enthusiastic to restrict them. Some significant examples are discussed

below.

AUSTRALIAN COMMUNIST PARTY V COMMONWEALTH

[1.900] Australian Communist Party v Commonwealth [1951] HCA 5

The High Court has been confronted with many other challenged assumptions of Commonwealth power. A

celebrated case arose in 1951 after the Menzies government passed the Communist Party Dissolution Act 1950

(Cth). In essence, the Act declared that the Australian Communist Party was an unlawful association and

seized its assets. Other bodies dominated by communists could be declared unlawful and individuals could be

prohibited from holding Commonwealth offices and some industrial positions, any such declaration or

prohibition being at the instigation of the Executive. The case highlights the problems inherent in the

Australian system of legislative power-sharing. The Commonwealth sought to justify the Act by the defence

power (s 51(vi)) with a supplementary reliance on the incidental power in s 51(xxxix). This paragraph of s 51,

gives power for legislation on matters “incidental to the execution of any power” vested in the Parliament. The

I’m the Parliamentary Draftsman, I compose the country’s laws, and of half the litigation, I’m undoubtedly the cause. JPC, Poetic justice (Stevens & Sons, 1947).

51

High Court, with the sole dissentient being Latham CJ, declared the Act invalid. Fullagar J pointed out that the

defence power was given by reference to the purpose or object of the law (to secure the defence of the

Commonwealth) and not by reference to some concrete subject matter (eg to provide for railway

construction). This characteristic had led to alternative tests of validity; if the law had defence as its direct and

immediate object then it would have effect, notwithstanding that there was no current or threatened war at the

time of the enactment. If, however, an actual state of war exists or there is some immediate apprehension of

war, then the power could extend to (at [12] per Fullagar J):

an infinite variety of matters which could not be regarded in the normal conditions of national life as having any connection with defence. Examples … are … the rationing of goods … and the conditions of employment in industry.

In these circumstances the court would acknowledge the force of the incidental power and the width of the

executive powers. In an earlier decision (Wishart v Fraser [1941] HCA 8) Dixon J had said:

the defence of a country is particularly the concern of the Executive, and in war the exigencies are so many, so varied and so urgent, that width and generality are a characteristic of the powers which it must exercise.

The problem for the Commonwealth was that although in 1950 the Communist Party was certainly not the

flavour of the month in Australia, and was the subject of virulent attack elsewhere in the Western world,

there was no state of war on which to hang the extended authority of the Executive and the extraction of all

that the incidental power might offer.

With the exception of the Chief Justice and in so far as one can draw a common thread from the judgments

of the other members of the court, the High Court was not about to allow the Parliament and the Executive

to usurp its right and authority to define the content of the powers granted to the Commonwealth in s 51.

Even Latham CJ had said, at an earlier time (South Australia v The Commonwealth [1942] HCA 14) that:

A Parliament of limited powers cannot arrogate a power to itself by attaching a label to a statute

The nub of the problem was put by Fullagar J when he said that the dissolution of the Communist Party

considered alone and not as a restraint on activities such as espionage and sabotage themselves: “cannot be

supported as an exercise of any power conferred by the Constitution on the Parliament. It is not possible by

means of anything that appears on its face to relate it to any subject matter that is not left by the

Constitution exclusively within the legislative powers of the States”.

The case is a useful illustration of the constant potential for tension between any State and the

Commonwealth, each jealous of its powers, and the judiciary itself when not disposed to relinquish its

assigned role. The then Prime Minister, Robert Menzies, not content with the restraints imposed by the

High Court, called a referendum for constitutional power to declare the Communist Party illegal. The

proposal was narrowly defeated by a people moved by the eloquence of HV Evatt, then leader of the

opposition and a former High Court justice himself, who warned of the potential for abuse of civil liberties

and the ultimate risk of the creation of a police state.

WILLIAMS V COMMONWEALTH OF AUSTRALIA

[1.910] Williams v Commonwealth of Australia [2014] HCA 23

52

In an earlier case the plaintiff successfully challenged a Commonwealth government funded program for

religious teaching in State schools. The High Court held that it was beyond the executive powers of the

Commonwealth as there was no statutory authority for it (Williams v Commonwealth of Australia [2014] HCA

23 (see [1.770])) The government’s response was for the Parliament to pass laws providing legislative support

for the school chaplaincy program and other like arrangements and grants. The persistent Mr Williams again

challenged the scheme and was again successful. The High Court held that the legislative provisions which

supported the challenged chaplaincy arrangements were not valid laws of the Commonwealth as they were not

supported by a head of legislative power under the Constitution. In particular, providing chaplaincy services in

school was not within the s 51(xxiiiA) power in respect of “benefits to students”. In these circumstances the

only way in which school chaplaincy programs could be continued – other than by amendment of the

Constitution – is by the federal government providing s 96 grants to State governments other than directly to

the chaplaincy service provided to fund the program.

Inconsistency between Federal and State laws

[1.920] It has been seen that while the Commonwealth has specified legislative powers,

the States have general non-specific authority to legislate on virtually any subject. Where

the Commonwealth validly exercises its power to legislate pursuant to s 51, the effect of

s 109 is that the Commonwealth law shall prevail over any State law inconsistent with it.

Section 109 states that:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

The power of the States to legislate with respect to most of the matters listed in s 51

continues, but in the event of inconsistency, the Commonwealth law prevails. On occasion

the Commonwealth Constitution grants to the Federal Parliament exclusive rights to

legislate with respect to a subject. The powers are otherwise known as concurrent.

The time that has elapsed since the enactment of the Constitution has permitted the

development of criteria to determine whether or not an Act passed by a State, under

legislative powers concurrently held with the Commonwealth, is invalid pursuant to s 109

because it is inconsistent with a law of the Commonwealth. The High Court has shown an

evolution in its approach to s 109 as it has in other constitutional dilemmas. The original

approach was to seek out any direct inconsistency between the two laws; in simple terms, to

find that it would not be possible for the subject to comply with both laws.

The more substantial and appropriate test of inconsistency is to determine whether or not “a

competent legislature expressly or impliedly evidences its intention to cover the whole field,

that is a conclusive test of inconsistency where another legislature assumes to enter to any

extent upon the same field”: Clyde Engineering Co Ltd v Cowburn [1926] HCA 6 per

Isaacs J.

The rights of self-government of the States have been fondly supposed to be safeguarded by the Constitution. It left them legally free, but financially bound to the chariot wheels of the Central Government. Alfred Deakin, 1902.

53

CLYDE ENGINEERING CO LTD V COWBURN

[1.930] Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466; [1926] HCA 6

In Clyde Engineering, a worker claimed an entitlement to a full week’s wages as prescribed in a federal

award, although that award provided for a 48-hour week. He had in fact worked a 44-hour week pursuant to

a New South Wales statute. The question for the High Court was whether the State Act was inconsistent with

the Federal Act. In determining that it was inconsistent, Isaacs J stated at 489 that:

The infallible test of whether … there is inconsistency is said for the respondent to be whether the two provisions … could both be obeyed. No doubt the employer could obey both, that is, physically … If an Act of parliament, for instance prescribed 25 lashes for robbery under arms and a later Act prescribed that such an offender should be punished with 20 lashes, it could, of course, with equal truth be said that both provisions could be obeyed and therefore, applying the suggested test, the offender must receive 45 lashes. But surely the vital question would be: Was the second Act on its true construction intended to cover the whole ground and, therefore, to supersede the first? If it was so intended, then the inconsistency would consist in giving any operative effect at all to the first Act, because the second was intended entirely to exclude it … If … a competent legislature expressly or impliedly evidences its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field.

The “covering the field” test has been applied since 1926 by the High Court with some consistency. It was

expressed with absolute clarity by Dixon J (later Chief Justice of the High Court) in Ex parte McLean [1930]

HCA 12 when he said that:

The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter.

The simple fact is that whatever test is applied, it must give effect to s 109. The inquiries which might

satisfy that section are varied. For the present, the “covering the field” test seems most applicable, but the

court has indicated that all relevant matters will enter into its determination.

THE COMMONWEALTH V AUSTRALIA CAPITAL TERRITORY

[1.940] The Commonwealth v Australia Capital Territory [2013] HCA 55

This case concerned the validity of the ACT’s Marriage Equality (Same Sex) Act 2013(ACT) the object of

which was to provide marriage equality for same sex couples. Section 51(xxi) of the Constitution gives the

federal Parliament power to make laws with respect to “marriage”. The issue for the High Court was to

determine whether s 51(xxi) permits the federal Parliament to make a law with respect to same sex marriage

54

because the ACT Act would probably operate concurrently with the Marriage Act 1961 (Cth) if the federal

Parliament had no power to make a national law providing for same sex marriage. If the federal Parliament

did not have power to make a national law with respect to same sex marriage, the ACT Act would provide for

a kind of union which the federal Parliament could not legislate to establish. By contrast, if the federal

Parliament can make a national law providing for same sex marriage, and has provided that the only form of

marriage shall be between a man and a woman, the two laws cannot operate concurrently.

The High Court held that under the Constitution the federal Parliament’s legislative power in relation to

“marriage” empowered it to provide for marriage between persons of the same sex. The ACT Act was not

capable of operating concurrently with the Marriage Act and was therefore of no effect. That federal

Parliament has not made a law permitting same sex marriage did not mean that the ACT legislature could

make such a law:

So long as the Marriage Act continues to define “marriage” as it now does and to provide, in effect, that only a marriage conforming to that definition may be formed or recognised in Australia, the provisions of the ACT Act providing for marriage under that Act remain inoperative.

The expansion of Commonwealth legislative competence through the “external affairs” power

[1.950]

Recent decades have seen a swing in favour of the Commonwealth in the allocation of

legislative powers between it and the States. The High Court has allowed an evolution of

constitutional legal thinking to facilitate this process. The best example is found in the use

of the blunt device employed by the Commonwealth to stretch its legislative powers by

reliance upon the external affairs power given to it in s 51(xxix).

[1.960] The issue was raised squarely in Koowarta v Bjelke-Petersen (1982) 153 CLR

168, in which the Queensland government argued that the Racial Discrimination Act 1975

(Cth) was invalid. The High Court, by a four to three majority, upheld the Act as a law with

respect to external affairs. There was in existence an international treaty, to which Australia

was a signatory, proscribing racial discrimination. It followed, for the majority, that a law

implementing the goals of that treaty was a law in furtherance of the external affairs power.

The potential of the Koowarta decision was not lost on the politicians as is clearly

illustrated by the Tasmanian Dams case:

COMMONWEALTH V TASMANIA

[1.970] Commonwealth v Tasmania [1983] HCA 21

Australian federalism is very ill indeed – the Constitution has been bent almost double by the High Court (and the two levels of government) in order to make it work, and the whole federal system is breaking down. The classical federal system might have been sensible and pragmatic in 1901 but it is a political liability now. CullenR, Current Affairs Bulletin (May 1991).

55

In 1982 the Tasmanian Government decided to dam the Gordon River below the Franklin for the purpose of

generating electricity. That decision was taken at the time of an impending federal election at which the

existing government was defeated and RJL Hawke became Prime Minister with the not inconsiderable

assistance of those implacably opposed to the Tasmanian scheme.

The new government acted quickly to introduce a law prohibiting the action. That was also challenged before

the High Court and again held valid pursuant to the external affairs power. The court indeed was at pains to

emphasise that its decision was based solely on that constitutional argument and had no bearing on the issue

of substance – whether or not the dam was desirable. This time the peg on which the Commonwealth could

hang its environmental hat was the UNESCO Convention for the Protection of the World Cultural and Natural

Heritage, which had been ratified by Australia in 1974. The argument that preoccupied the High Court was

whether the simple fact of the treaty was sufficient to validate the Commonwealth law or whether, to earn

inclusion within the external affairs power, it was necessary that the Act in dispute had some international

flavour in its subject matter. The majority view was that it was not necessary and that, in any event, if an

international aspect were sought it could be found in the treaty. The minority view was that the subject matter

should be of significant international interest.

[1.980]

The majority decision in the Tasmania Dam case contains within itself the seeds of virtually

uninhibited growth of Commonwealth legislative authority, provided that, as a first step,

some relevant international agreement is entered into. The minority view introduces the

obstacle of subjectivity, the challenge of assigning to the High Court the right to decide

whether there is genuinely the substance of a matter of international concern or whether

there is simply the convenience of an international treaty. The issue involved is not entirely

divorced from that considered in the Communist Party case. The words of Sir John Latham

in South Australia v The Commonwealth [1942] HCA 14, that “a Parliament of limited

powers cannot arrogate a power to itself by attaching a label to a statute”, remain relevant,

whether that label is defence or external affairs.

IN CONTEXT

The external affairs power

[1.990] The dangers to federalism inherent in this approach have been put

forcefully by a Victorian QC, SEK Hulme, who has argued against constitutional

change simply for the sake of change.

“I’m a great admirer of modern stationery but I don’t want a loose-leaf Constitution”, says Hulme. His concern is to protect the integrity of a Constitution good enough to meet the challenges of the day. “I’m not going to have it buggered about by academics on government grants”, he says. On the misuse of the external affairs powers, he says that of the 31 requests federal governments have made for an amendment that would increase Commonwealth power, 29 have been refused by the people in a referendum. To achieve greater power by indirect means, federal governments had signed “something like 1400-1500 treaties”.

See the inconveniences

of these scrambling

reports: they will make us appear to posterity as a

parcel of blockheads.

Slater v May (1704) 2 Ld

Rayn 1071 per Holt CJ.

56

The Australian people hadn’t been consulted, the treaties weren’t scrutinised by Parliament. “Nobody has read them all.” “We just don’t know what sleepers there are in them”, says Hulme.

Lane B, “For the good of the States”, The Weekend Australian (8-9 April 1995).

A further example of the scope of the external affairs power is provided by Minister for

Immigration and Ethnic Affairs v Teoh [1995] HCA 20.

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS V TEOH

[1.1000] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20

The High Court held by a four to one majority that a United Nations Convention that had been ratified by

Australia but had not been incorporated into Australian municipal law nevertheless created a legitimate

expectation that administrative decision makers would act in conformity with it. Teoh, a Malaysian citizen in

Australia under a temporary entry permit, married an Australian citizen who had been the de facto spouse of

his deceased brother. While his application for permanent entry was pending he was convicted and sentenced

to six years’ imprisonment, on charges of importing heroin. His application for resident status was rejected

primarily because of his criminal record, this being departmental policy, and his deportation was ordered. The

Immigration Review Panel confirmed that the seriousness of the crime warranted the deportation, although it

noted that the family (seven children, including three of the marriage) faced a “very bleak and difficult future

and will be deprived of a possible breadwinner as well as a father and a husband if resident status is not

granted”. Teoh’s appeal to the High Court was successful, it being held that the departmental proceedings did

not take account of the UN Convention, previously ratified by Australia. It was said, by Mason CJ and

Deane J (at [26]), that:

… the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law.

The expansion of Commonwealth legislative competence through the “corporations” power

[1.1010] Section 51(xx) of the Constitution gives the Parliament power with respect to

“trading or financial corporations formed within the limits of the Commonwealth”. Acting

in furtherance of that power the Commonwealth Parliament in 1989 passed several Acts,

including the Corporations Act 1989 (Cth), which purported to cover the whole field of

corporate legislation. A High Court challenge ensued (New South Wales v The

Commonwealth [1990] HCA 2) in which it was held that the words in s 51(xx) do not

57

extend to cover the actual incorporation (the initial establishment) of companies, but rather

only to control their behaviour once formed under other non-Commonwealth legislation.

This nevertheless confers substantial power on the Commonwealth and provides the

constitutional foundation for a range of significant laws impacting on business including the

Competition and Consumer Act 2010 (Cth).

IN CONTEXT

The Development of Australia’s competition laws

[1.1020]

The Constitution does not expressly confer power on the Federal Parliament to

regulate restrictive trade practices and the history of Australian trade practices law

is largely a history of constitutional interpretation. Australia’s federal statute book

is littered with a number of earlier, and largely unsuccessful, attempts to regulate

competition prior to the Trade Practices Act 1974 (Cth). The early interpretations

of the High Court jealously preserved State rights and it was not until the 1974 Act

that the Commonwealth’s legislative authority in this area was confirmed.

Within five years of Federation, the Australian Industries Preservation Act 1906

(Cth) was enacted following concern about monopolistic practices in general and

the International Harvester Corporation’s threat of dumping to capture the

Australian agricultural implement market in particular. The effectiveness of the

1906 Act was nevertheless emasculated by constitutional limitations and judicial

conservatism. In Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330

(High Court) and the Coal Vend case (Attorney-General v The Adelaide Steamship

Co Ltd (1912) 15 CLR 65 (High Court)), it was held that the “corporations power”

did not extend to controlling the trading activities of corporations and that the

“interstate trade and commerce power” did not extend to purely intrastate

activities. The Coal Vend case further weakened the legislation by a lenient

interpretation which, in that case, allowed reasonableness based on distressed

economic conditions to be pleaded as a defence to collusive price fixing. The

legislation never recovered from these blows and ceased to be used. Pressure for

new and effective legislation mounted in the 1960s resulting in the Trade Practices

Act 1965 (Cth). This Act was also unsuccessful. Not only did the legislation fail to

provide an overall effective antitrust policy, it failed on constitutional grounds. In

Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468, the High Court held

that the Federal Parliament had failed to use correctly the available sources of

federal power and that the Act had no clear constitutional basis. However, the High

Court indicated that the Huddart Parker case had been wrongly decided and

acknowledged that the corporations power provided a sufficient constitutional base

for laws governing the trading activities of corporations. The Restrictive Trade

Practices Act 1971 (Cth), which replaced the 1965 Act, was essentially a

re-enactment of the legislation constitutionally based on the corporations power of

It is by virtue of the corporations

power that proposed

Commonwealth legislation to ban

the advertising of tobacco in

newspapers is to take effect. What

is to stop the Commonwealth then proceeding

to ban advertising of

liquor, and then other

commodities? Or to ban political

advertising, as it is already

proposing to do on television? Or

to ban the dissemination of

facts and opinions which

it on some ground or

another feels are harmful? All this

is a clear abuse of the

corporations power, and quite

contrary to the intentions of the

framers of the Constitution.

McGuinness PP, The Australian

(10 February 1990).

58

s 51(xx). The acknowledged policy weaknesses of that legislation led to its repeal

and replacement in 1974 by the the Trade Practices Act 1974 (Cth) – which is also

based on the corporations power and which survived its predictable constitutional

challenges. In 2010 the Trade Practices Act was renamed the Competition and

Consumer Act 2010 (Cth).

NSW V COMMONWEALTH

[1.1030] NSW v Commonwealth [2006] HCA 52

In 2006 the States challenged the use by the Commonwealth of the corporations power in the Constitution

(s 51(xx)) to support its WorkChoices legislation (Workplace Relations Amendment (WorkChoices) Act 2006

(Cth)), a system of extensive industrial relations reform which had the effect, among other things, of making

it easier for business to dismiss employees.

Callinan J commented (at [619]) that:

This is one of the most important cases with respect to the relationship between the Commonwealth and the States to come before the Court in all of the years of its existence. If the legislation is to be upheld the consequences for the future integrity of the federation as a federation, and the existence and powers of the States will be far-reaching. The Act in its present form is well beyond, and in contradiction of what was intended and expressed in the Constitution by the founders.

In a decision which will affect the future of federalism the High Court decided, by majority, that s 51(xx)

extended to give the constitutional power to the Federal Government to enact the Workplace Relations

Amendment (WorkChoices) Act 2006 (Cth). Callinan and Kirby JJ delivered strong dissenting judgments.

Kirby J stated that “the view now endorsed by the majority effectively discards a century of constitutional

doctrine” (at [611]):

No one could contest the pervasive role of corporations in almost every activity of a modern society. However, the unnuanced interpretation of the corporations power now embraced by a majority of this Court, released from the previous check stated in the industrial disputes power (and other similar constitutional checks), has the potential greatly to alter the nation’s federal balance. It risks a destabilising intrusion of direct federal lawmaking into areas of legislation which, since federation, have been the subjects of State laws. It does so unchecked by any express provisions in such powers or by any implied features of the Constitution derived from the federal system that lies at its very heart.

Callinan J stated (at [779]) that:

There is nothing in the text or the structure of the Constitution to suggest that the Commonwealth’s powers should be enlarged, by successive decisions of this Court, so that the Parliament of each State is progressively reduced until it becomes no more than an impotent debating society …

59

To give the Act the valid operation claimed by the Commonwealth would be to authorise it to trespass upon essential functions of the States …

The validation of the legislation would constitute an unacceptable distortion of the federal balance intended by the founders, accepted on many occasions as a relevant and vital reality by Justices of this Court

1.13 FREEDOM OF INTERSTATE TRADE AND COMMERCE

[1.1040]

A principle fundamental to the establishment and operation of Australian Federation – that

interstate trade and commerce should be free – found expression in s 92 of the Constitution.

That section simply declares that “trade, commerce, and intercourse among the States …

shall be absolutely free”. It was observed above that the meaning of s 92 has been debated

frequently before the High Court. It is in fact the most litigated sector of the Constitution.

The section has been said by Sir Owen Dixon, a former Chief Justice of the High Court, to

be “a provision which apparently must forever be expounded but never explained” (“The

Law of the Constitution”, in Jesting Pilate (Law Book Co, 1965) p 52). One clear analysis

of the section was delivered by Rich J in James v Cowan [1930] HCA 48, when he said

that:

The rhetorical affirmation of section 92 that trade, commerce and intercourse between the States shall be absolutely free has a terseness and elevation of style which doubtless benefits the expression of a statement so inspiring But inspiring sentiments are often vague and grandiloquence is sometimes obscure … Some hint at least might have been dropped, some distant allusion made from which the nature of the immunity intended could afterwards have been deduced by those whose lot is to explain the elliptical and expound the unexpressed. As soon as the section was brought down from the lofty clouds whence constitutional precepts are fulminated and came to be applied to the everyday practice of trade and commerce and the sordid intercourse of human affairs, the necessity of knowing and so determining precisely what impediments and hindrances were no longer to obstruct interstate trade obliged this Court to attempt the impossible task of supplying an exclusive and inclusive definition of a conception to be discovered only in the silences of the Constitution.

[1.1050] In 1986, the quest for an established meaning was still described as

“unsuccessful”. In Miller v TCN Channel Nine Pty Ltd [1986] HCA 60, Deane J noted (at

[4]) that:

the simple words of s 92 have, in an unsuccessful search for certainty in the law, been overlaid by formulae which have given rise to many problems while solving almost none. The section was, plainly enough, intended to serve the essential function of reinforcing the economic and social unity of an emerging nation by removing the barriers to commerce, trade and intercourse which the frontiers between the federating colonies had previously represented.

[1.1060] Shortly after this, in Cole v Whitfield, the Tasmanian lobster case, the full

High Court adopted a construction of the section which solved many of the problems

alluded to by Deane J.

More than fifty years ago in Australia we issued clean

from the press a beautiful

Constitution. A choice bit of it

was section 92 – and look what a

mess we have made of it! I

have been musing over the judgments in it,

and frankly I want to burn the

lot. Sir Robert Garran, First

Commonwealth Solicitor-

General, 1958.

60

COLE V WHITFIELD

[1.1070] Cole v Whitfield [1988] HCA 18

Whitfield was charged under Tasmanian law with the offence of possessing crayfish below the minimum legal

size. The crayfish had come from South Australia, where they were of legal size, leading the defendant to

claim that the Tasmanian law breached s 92 of the Constitution. The magistrate acquitted him. On appeal, the

High Court confirmed that, although protectionist barriers could not be raised between the States, the section

did not obliterate all attempts at regulation of activity that may have an interstate element. The fact that the

application of a statute might have a restrictive effect on interstate trade is not of itself sufficient to render it

invalid, and Whitfield was subject to the Tasmanian law:

A law which has as its real object the prescription of a standard for a product or a service or a norm of commercial conduct will not ordinarily be grounded in protectionism and will not be prohibited by s 92. But if a law, which may be otherwise justified by reference to an object which is not protectionist, discriminates against interstate trade or commerce in pursuit of that object in a way or to an extent which warrants characterisation of the law as protectionist, a court will be justified in concluding that it nonetheless offends s 92.

What would henceforth be forbidden were laws that discriminated against interstate trade and commerce

intended to have or having a protectionist effect.

State boundaries of course mean little in the e-commerce era. The application of s 92 of the Constitution in this context was first considered in the High Court in the context of an online betting exchange.

BETFAIR PTY LTD V WESTERN AUSTRALIA

[1.1080] Betfair Pty Ltd v Western Australia [2008] HCA 11

Betfair acted as an online intermediary through which racetrack punters placed bets with other racetrack

punters. Betfair was licensed in Tasmania to operate a betting exchange under Tasmanian legislation. However

Western Australia legislated to prohibit Betfair to operate in that State. The WA legislation was challenged

under s 92 of the Constitution and it was held by the High Court, unanimously, to impose a discriminatory and

protectionist burden that was not proportionate or appropriate. The joint judgement rejected Western

Australia’s argument that its prohibition of Betfair was necessary to safe guard the integrity of the racing

industry (at [110], [116]):

What is involved here is an attempt at an evidentiary level to measure something of an imponderable. But, allowing for the presence to some degree of a threat of this nature, a method of countering it, which is an alternative to that offered by prohibition of betting exchanges, must be effective but non-discriminatory regulation. That was the legislative choice taken by Tasmania

61

and it cannot be said that that taken by Western Australia is necessary for the protection of the integrity of the racing industry of that State. In other words, the prohibitory State law is not proportionate; it is not appropriate and adapted to the propounded legislative object …

The effect of the legislation of Western Australia is to restrict what otherwise is the operation of competition in the stated national market by means dependent upon the geographical reach of its legislative power within and beyond the State borders. This engages s 92 of the Constitution.

1.14 THE CONTINUING DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM

[1.1090]

Law reform is an ongoing process. The legal environment is continually evolving as the law

is developed by both Parliaments and the courts to accommodate the changing demands of

the society it serves. Reform of the system itself as opposed to adjustments within the

system – macro-reform as opposed to micro-reform – is obviously more fundamental and

more difficult. Over the century since Federation there have been significant developments

in the meaning and operation of the Constitution. There have been formal changes through

amendment (although the legal requirement under s 128 for constitutional change by way of

referendum attracting the support of a majority of voters and a majority of States has

restricted amendment to only eight of the 44 proposals submitted to the electorate since

Federation). Other changes have been through judicial interpretation by the High Court, the

arbiter of the meaning of the Constitution.

It is not surprising that a Constitution drafted a century ago does not always accommodate

the demands and realities of today but, until recently, little serious consideration has been

given to this issue. There has been, and will continue to be, wide public debate about the

contentious and emotive issues of republicanism, about whether Australia remains a

constitutional monarchy or adopts a presidential head of state, and about the flag.

The focus of public debate on the continuing evolution of the Australian legal system has

been concentrated on the issues of the move to an Australian Republic and the adoption of

a Bill of Rights. There are of course a number of other issues of lesser profile but,

nevertheless, of great significance to the development of the legal system, some of which

are addressed below.

The parliamentary system and the role of the Executive

[1.1100] Two issues dominate this area – the role of upper houses and the dominance of

the Executive. In relation to upper houses, their role, and the resolution of conflict between

them and lower houses, and, increasingly, the voting system are contentious matters. In

relation to the role of the Executive, it is argued that the dominance of executive

government especially through the party system and uncertainty about the proper role of

Parliaments is a universal concern. The Executive’s dominance is a by-product of the

Westminster system of responsible government under which the ministry is drawn from and

remains part of the legislature. Increasing attention is being given to the United States’

model of separation of powers under which not only is the judicature independent of

government but the legislative and executive powers are clearly separated. Patrick O’Brien

While on the subject of s 92

of the Constitution, I

am reminded of the eminent

Victorian Supreme Court

Judge, Sir Charles

Lowe. He had been asked who

knew most about the law, and he said, There are two classes of

people who know all about

the law. Number one is the university

lecturer. From him there is

scarcely a right of appeal.

Number two is a High Court

Judge; from him also there is

scarcely a right of appeal. But in our Constitution

is s 92, a section made up of

plain, simple words, needing

no interpretation. But if you ask a

High Court Judge what those

words mean, he will launch into

a spate of millions of

words, each contradicting

what his brother Judges have to

say on their meanings.

Gillespie-Jones AS, The lawyer

who laughed

62

again (Hutchinson,1980).

(“The fatal flaw: Has the Westminster system produced a form of executive dictatorship?”,

Time Magazine (16 September 1991)) is particularly savage:

The question of whether Australia should or should not be a republic is really a smokescreen to cover the perpetuation of the executive state or, as some might prefer to call it [executive], dictatorship.

The changing role of the High Court

[1.1110] The Constitution confers on the High Court the role of final arbiter of disputes

on interpretation of the Constitution and the validity of legislation enacted by the

Commonwealth and State Parliaments. Over recent years a series of significant High Court

judgments, in cases such as the terra nullius and political advertising cases discussed

elsewhere in this chapter, have clearly signalled that the High Court will not be confined to

the traditional view of its role of simply applying the law as it exists, but will seek a greater

role in the development of that law itself. Through High Court decisions, the Constitution,

and the Australian legal system that derives its authority therefrom, are continually evolving

to meet the current demands of the society they serve.

IN CONTEXT

The High Court and contemporary values

[1.1120]

In discharging its duty to declare the common law of Australia, this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency … The peace and order of Australian society is built on the legal system. It can be modified to bring it into conformity with contemporary notions of justice and human rights, but it cannot be destroyed. It is not possible, a priori, to distinguish between cases that express a skeletal principle and those which do not, but no case can command unquestioning adherence if the rule it expresses seriously offends the values of justice and human rights (especially equality before the law) which are aspirations of the contemporary Australian legal system. If a postulated rule of the common law expressed in earlier cases seriously offends those contemporary values, the question arises whether the rule should be maintained and applied. Whenever such a question arises, it is necessary to assess whether the particular rule is an essential doctrine of our legal system and whether, if the rule were to be overturned, the disturbance to be apprehended would be disproportionate to the benefit flowing from the overturning.

Mabo v Queensland (No 2) [1992] HCA 23 at [29] per Brennan J

The increasing Australianness of Australian law

[1.1130] Patrick Parkinson has written in Tradition and change in Australian law (4th ed,

Thomson Reuters, 2010) at p 3 that:

A constitution should be short and obscure. Napoleon Bonaparte.

In order to keep our wits about us, as efficiency advocates an attempt of plastic surgery on the Constitution, we need to acquire, in a hurry, familiarity with the document itself. At present it is far too expensive. What this country needs is a 50c Constitution. Devine F, The Australian (November 1990).

63

[i]n its legal institutions, as in other aspects of its national life, Australia bears indelibly the marks of its birth. The legal and political institutions of Australia find their roots, not in the traditions of its native inhabitants, but in the traditions of a colonial power which imported its understanding of law and social organisation with the landing of the first white settlers in 1788.

Australia and the other, primarily Commonwealth, countries that adopt the English

common law model of a legal system share values, institutions, principles and

procedures. There are of course differences, sometimes significant differences, among the

particular laws of these jurisdictions. In the case of legislation, such diversity is not

particularly surprising. The Parliaments of the former colonies have legislative power

limited only by their own constitutions and will seek to impose the regulatory regime

that is appropriate to that society. In the case of the common law, the judge-made law,

the concept of diversity is more complex. It has nevertheless been accepted that common

law may develop differently throughout the common law world. Indeed, as Lord Lloyd

stated in Invercargill City Council v Hamlin [1996] 1 All ER 756 at 764-5:

The ability of the common law to adapt itself to the differing circumstances of the countries in which it has taken root, is not a weakness, but one of its great strengths. Were it not so, the common law would not have flourished as it has, with all the common law countries learning from each other.

Particularly over the last quarter of a century, and under the leadership of the High Court,

legal scholars can trace the emergence of “Australian law”. In relation to contract law it

has been suggested by Starke et al in Cheshire & Fifoots Law of Contract (6th Australian

ed, Butterworths, 1992) that:

Its uniqueness, or Australian character, lies not in specific doctrinal departures from any other system, although such departures have occurred. Rather it lies ultimately in the situations to which it is addressed, which are ineluctably local, and which have an effect largely on what may be called its “shape”.

Similar claims can be made for all aspects of the Australian legal system.

A Bill of Rights?

[1.1140]

The basic and fundamental rights of the citizens of a country such as Australia may be said

to be well understood and well respected. It has to be said, however, that nowhere are they

listed and given express constitutional protection. Many argue that there is no need for the

enactment of a Bill of Rights, while others urge us to commit such essential rights as free

speech and freedom of association to writing in an endeavour to put such matters beyond

dispute. Sir Ninian Stephen in “Time to take stock”, Australian Financial Review (16 April

1992) explains that:

The “founding fathers” of our Constitution took it for granted that individual rights were secure under common law. But the experience of many countries and the growing power of executive government and bureaucracies have led to greater interest in the notion of incorporating constitutional guarantees of individual rights and freedoms in some kind of “Bill of Rights”.

[1.1150] Australia is becoming increasingly isolated in not enshrining and guaranteeing

basic and fundamental rights and liberties in a constitutional document. The United States

If society is tolerant and

rational, it does not need a Bill

of Rights. If it is not, no Bill of

Rights will preserve it.

Former Australian High

Court Chief Justice Sir Harry

Gibbs, 1990 Reform 68.

64

provides the best-known example, the Bill of Rights being constituted by the first 10

amendments to the Constitution. Art 1, for example, provides that:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

[1.1160] Canada and New Zealand have also enacted legislative guarantees of

individual rights. Indeed, it appears that Australia is now the only Western democracy

that does not have a national Bill of Rights, although the Australian Capital Territory

(Human Rights Act 2004 (ACT)) and Victoria (Charter of Human Rights and

Responsibilities Act 2006 (Vic)) have enacted limited protections which require governments

and those exercising public functions to act consistently with reference to the human rights

set out and for the courts to, as far as possible, interpret all laws in ways compatible with

the rights set out in the charter.

[1.1170] The contrary argument suggests that fundamental rights may be more valuable

because they are not legislated for – that the traditions of the rule of law developed over

centuries provide a greater safeguard. Professor Lauchlan Chipman (Institute of Public

Affairs (NSW), 1984) has addressed this issue in a forthright manner:

The first point to note [is] that the existence of a Bill of Rights is neither sufficient nor necessary to ensure the existence of the rights guaranteed. It is not necessary as, for all their warts, England and Australia, which do not have a Bill of Rights in the relevant sense, have been among the better protectors of fundamental human rights. It is not sufficient, as anyone who examines the 1977 Constitution of USSR, which contains a magnificent Bill of Rights guaranteeing inter alia freedom of religion, preservation of national culture, and freedom of movement, can verify. It is worth noting that the worst excesses of segregation in America, and indeed the McCarthyist movement, existed notwithstanding the Bill of Rights in that country.

The best way to handle questions relating to fundamental rights is with specific legislation in relation to specific rights, where judged necessary by parliament. A general Bill of Rights, because of its very generality, grants tremendous power, as well as responsibility to those charged with interpreting it, and this means a shift of important powers away from elected representatives to appointed officials, something that pleases the government in power that has the power to make the appointments. I do not believe that Australians really want a third legislative chamber, whether that chamber be the Human Rights Commission, a new Federal Court, or the High Court.

[1.1180] An important function of the High Court is that with it rests the power of

interpreting the Constitution. An emerging activism in High Court judgments has been

witnessed in the last 25 years, of which Mabo is a well-known example. The matter of the

fundamental rights of Australians has also been considered.

In 1992, the High Court held that Commonwealth legislation prohibiting the broadcast of

political material in the period prior to an election was unconstitutional (Australian Capital

Television Pty Ltd v The Commonwealth [1992] HCA 45). Central to the decision was the

question of whether there was to be implied in the Constitution a right or freedom of

communication. A majority of justices held that some such implication should be made.

Mason CJ, with reference to the question of whether fundamental rights should be so

implied, said (at [31]):

It is difficult to imagine an issue more likely to divide Australians than the Federal Government’s proposed enactment of a Bill of Rights. If Mr Hawke and Senator Evans achieve their objective, our political system, as well as our legal system, will be fundamentally changed. An enforceable code setting out the basic human rights of the citizen has many apparent attractions … The most powerful argument against a Bill of Rights is that if takes the power to decide on vital questions out of the hands of the people’s elected representatives in parliament and gives that power to judges who are appointed by politicians but are not answerable, as politicians are, to any electorate. Editorial, The Australian, (12 July 1983).

65

The adoption by the framers of the Constitution of the principle of responsible government was perhaps the major reason for their disinclination to incorporate in the Constitution comprehensive guarantees of individual rights … [They] accepted, in accordance with prevailing English thinking that the citizen’s rights were best left to the protection of the common law in association with the doctrine of parliamentary supremacy.

With respect to the implication of a specific guarantee of freedom of communication on

matters relevant to public affairs and political discussion, he said (at [42]):

Freedom of communication in the sense just discussed is so indispensable to the efficacy of the system of representative government for which the Constitution makes provision that it is necessarily implied in the making of that provision.

The Chief Justice concluded that “in the ultimate analysis, it is for the Court to determine

whether the constitutional guarantee has been infringed in a given case”. The decision

indicates a more creative High Court, willing to play a greater role in the constitutional

protection of human rights.

[1.1190] It is, however, a role that is not free from criticism. It raises the issue of the

High Court taking over the democratic right of the people to have their liberties

controlled by an elected Parliament, rather than by an unelected court. The debate

continues between those who support the concept of an activist, progressive High Court

and those who argue that the court is encroaching upon the sovereignty of Parliament.

George Williams has observed in “Build our rights, slowly” Sydney Morning Herald

(28 December 1998) that:

The Federal Parliament must re-enter the fray. Despite its failures, it has recognised important rights in Federal legislation; most significantly, the Racial Discrimination Act, the Sex Discrimination Act and the Disability Discrimination Act. However, it should seek to protect fundamental rights on a more comprehensive basis.

The need for greater rights protection is plain. The law does not adequately protect the rights of the most vulnerable and disadvantaged. The rights already in place are also unsatisfactory because they are largely unknown, and thus are not accessible and fail to serve an educative or symbolic function.

The need to shield fundamental rights from the exercise of arbitrary government power makes the case for a bill of rights compelling. While Australian parliaments have been generally effective in protecting basic rights, the record is far from unblemished. The Stolen Generation, the attempt to suppress communism in the 1950s, and even the White Australia policy show the need for a greater check on government power.

This argument was bolstered by Justice Michael Kirby, of the High Court, when,

delivering the 2001 Manning Clark lecture, he commented that:

For most of my life, as a homosexual Australian, I have been oppressed by unjust laws. I do not doubt that had there been a constitutional bill of rights in this country, the reforms,

slowly and sometimes reluctantly – and even apologetically – enacted from homosexual equality would have come more quickly from the courts.

The move to a republic?

[1.1200] The role of the monarchy in the Commonwealth Constitution and the issue of

republicanism have received widespread and rigorous public debate. The reality is that

Australia is only a nominal monarchy as all the effective powers of the Head of State are

That is what the Victorian Charter

of Rights and Responsibilities

has always been about – changing

the culture of government and

public life so that human

rights are brought from the periphery to the core. Rob Hulls, former Victorian

Attorney- General, cited by

The Australian (22 May 2015).

There are two things wrong

with almost all legal writing.

One is its style. The other is its content … The

average Law Review writer is

peculiarly able to say nothing with an air of

great importance. Rodell F,

“Goodbye to law reviews”, (1936)

23 Virginia LR 38 at 38.

66

vested in the Governor-General. The Queen’s refusal to intervene at the Speaker’s request

in the constitutional crisis of 1975 when the Governor-General, against the advice of his

ministers, dismissed a Prime Minister with the majority support of the House of

Representatives, vividly illustrates this reality. In a paper delivered to the Constitutional

Centenary Conference of 1991, Mr Justice Pincus of the Federal Court noted that Australia

effectively became a republic five years earlier, when the Federal and State Parliaments

passed the Australia Act 1986. The Act was the mirror image of legislation passed in Britain

to sever the last legal ties joining Australia to the mother-country’s “Imperial Parliament”. It

removed British powers to legislate for Australia and it declared the High Court to be the

final court of appeal on all judicial matters. He explained (Constitutional Centenary

Conference 1991: Collected Papers, Center for Comparative Constitutional Studies) that:

The imperial connection has largely become a legal fiction. We have found it convenient to continue to pretend for some purposes that the English monarch exercises power in Australia when in truth she does not.

As any observer will be aware, the debate on this issue is comprehensive and, at times,

emotional. The conservative view, that change is not necessary, is supported by the

successful operation, at least to date, of the Constitution as it stands. The other side

points to the identity problem, the need for an Australian citizen as Head of State and the

need for proper selection procedures for that person. In the words of Robert Hughes, to

cling to the present system, “suggests a sentimentality we don’t have, a nostalgia we don’t

need, and an uncertainty about ourselves that we don’t feel”: Republic (Summer 1996) p 4.

After widespread debate the issue was put to the Australian people by way of referendum in

1997, at which time the proposal to change was defeated, undoubtedly in part because the

proposal envisaged that the Head of State would be appointed rather than being elected by

the people (to avoid a “popularity contest” between an elected Prime Minister as the head of

government and an elected “president” as Head of State). At that time the Republic

Advisory Committee advised (“An Australian republic: The options”, Report (1993)) that:

the only constitutional change … required to make Australia a complete republican system of Government is to remove the Monarch. All the essential elements of our system of government – federalism, responsible parliamentary government, the separation of powers and judicial review of legislation and government action – would be unaffected by such a change.

Expanding Commonwealth jurisdiction

[1.1210]

The history of Federation is one of expanding Commonwealth power and influence. To

some extent this is not surprising. Federation brought into being a new nation state that was

obviously going to have a greater profile than its constituent elements, the States. A

complex modern society also requires strong national government and there is increasing

pressure across a range of commercial and social activities for national laws rather than

frustratingly different laws operating at the State and Territory level, the extent of the

Commonwealth’s supremacy would nevertheless surprise the founders of Federation. To a

large extent the pre-eminent position of the Commonwealth has flowed from its financial

strength and development examined in the next section. However, a significant factor has

The States are always saying States’ rights this and States’ rights that, but as soon as there’s a problem they come running home to mama, back to the Commonwealth. Paul Keating, 1993.

67

been the Commonwealth’s aggressive use of its concurrent s 51 powers that have, in

relation to the corporations and the external affairs powers, been supported by a High Court

which has been sympathetic to centralisation.

[1.1220] The scene was set early for the steady growth of Commonwealth legislation by

the 1920 decision of the High Court in the Engineers case (Amalgamated Society of

Engineers v The Adelaide Steamship Co Ltd [1920] HCA 54). Justice Isaacs, who delivered

the majority judgment, stated that:

It is undoubted that those who maintain the authority of the Commonwealth Parliament to pass a certain law should be able to point to some enumerated power containing the requisite authority. But we also hold that, where the affirmative terms of a stated power would justify an enactment, it rests upon those who rely on some limitation or restriction upon the power, to indicate it in the Constitution.

In other words, a broad and generous construction should be given to the powers vested

in the Commonwealth. Although at different times there have been discernible shifts in

emphasis in the approach of the High Court, a technical, restrictive approach has been

resisted.

[1.1230] Reference has been made in this chapter (see [1.920]) to the difficulties

inherent in the Australian system of legislative power-sharing which at times leads to

conflict between the Commonwealth and one or more States. What is readily apparent is

that the 100 years since Federation have seen a significant shift in the balance and that

Commonwealth (centralist) power has been allowed to grow at the expense of State power.

A recent chief justice of the High Court (Sir Harry Gibbs) takes the view that true

federalism is being eroded. He has said that there needs to be more public expression of the

federalist view, and that the view expressed in the media tends to be centralist.

Bernard Lane (“For the good of the states”, The Weekend Australian (8-9 April 1995)) has

commented that:

In the federalist view, the pattern this century has been a steady flow of power one way from the States to the Commonwealth with the High Court directing the traffic. This despite the Constitution giving specific and limited powers to the Commonwealth and leaving the rest to the States which, as colonies, could not have begun to imagine how the new Federal Government would grow at their expense.

Says Gibbs: “Legally it might be said that Australia is no longer a federation. There is literally no field of activity in which the Commonwealth cannot legislate, if it enters into an appropriate treaty”.

While the Constitutional power-sharing arrangements need some flexibility in their

operation in order to provide for the exigencies of a rapidly developing society, the

fundamental balance between the Commonwealth and the States must be preserved if

federalism itself is to be preserved.

The federal government

system clearly reflects the

country’s colonial heritage.

The sheer numbers of

governments – the

Commonwealth, six States, two Territories and

about 800 local governments –

strongly suggest that we are

over-governed, and that some

simplification is necessary.If there

were the luxury of starting all

over again, efficiency and

effective management

would argue for a much clearer

and simpler definition of

responsibility for determining

standards and providing functions.

Business Council of Australia, The

Australian (10 July 1991).

68

IN CONTEXT

For and against federation

[1.1240] In the last analysis, it seems to me, our choices lie between two

alternatives:

Do we want the checks and balances, the democratic safeguard, of multiple

governments against the monolithic few at the centre?

Or do we want the economy and efficiency of centralism? The fundamental option

of getting things done?

And there it is…

PH Lane, An introduction to the Australian Constitution, (6th ed, Law Book

Company, 1994).

The financial strength of the Commonwealth

[1.1250] The increasing influence of the Commonwealth is underwritten to a large extent

by its financial strength. On Federation, the collection and control of customs and excise

duties passed to the Commonwealth (s 86). The Constitution provided a formula for

compensating the States for this significant loss of revenue which lasted “for a period of ten

years after the establishment of the Commonwealth and thereafter until the Parliament

otherwise provides” (s 87). However, the Constitution provided no general rules governing

the financial relationships between the Commonwealth and the States after the first 10 years

of Federation and the Commonwealth has since that time emerged as the significantly

strongest party in the Federation, to an extent not appreciated by the States at the time of

Federation. This is because of the Commonwealth’s financial power over the States (whose

revenue is sourced predominantly from federal funding). The Commonwealth’s financial

power derives from its role as the primary authority and from s 96 grants (see [1.1300]).

Dr Vince Fitzgerald, in a paper prepared for the Committee for Economic Development of

Australia, has recently described the Commonwealth-State imbalance as creating an

“extreme and dysfunctional vertical fiscal imbalance”. The levels of government at which

the major components of the taxation system are administered are misaligned with

government spending responsibilities. There was a celebrated declaration by Alfred Deakin

in 1902 saying that the Constitution left the States legally free, but also left them

“financially bound to the chariot wheels of the Central Government”, which displayed

remarkable perspicacity.

The Uniform Tax Scheme

[1.1260] The Commonwealth’s financial power has been strengthened by the Uniform

Tax Scheme, which emerged during World War II (1939-45) in order to provide the

Commonwealth with the revenue required to finance the war. Section 51 of the Constitution

Taxation without representation is tyranny. James Otis, Watchward of the American Revolution.

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confers concurrent legislative power on the Commonwealth with respect to taxation

(s 51(ii)). The Commonwealth first levied a federal income tax during the First World War

(1914-18) in order to fund the war effort, and until the Uniform Tax Scheme there were

federal and State income taxes. Under the Uniform Tax Scheme, driven by the

Commonwealth’s need for greater revenues, an agreement was reached that the States

would not use their income tax powers and would be reimbursed by the Commonwealth.

The Commonwealth’s position was strengthened not only by the spirit of cooperation

engendered by war but also the defence power of s 51(vi) which the Commonwealth was

able to invoke.

[1.1270]

The States have the power today to levy an income tax as this power was not removed by

the Uniform Tax Scheme but was simply replaced by other arrangements. Its use is unlikely

because of the political backlash that would be vented on a State government that imposed

it. Professor PH Lane, in An introduction to the Australian Constitutions (6th ed, Law Book

Co, 1994) at [1.38]) comments that:

It is not that the States ever lost their power to impose State income tax, although back in 1953 Prime Minister Menzies spoke (not quite accurately) of “returning State taxing powers”. The small States, Tasmania and Western Australia, retorted: “We do not want our taxing powers back.” Presumably they preferred to be subsidised, through Commonwealth tax collection, by New South Wales and Victoria. In January 1970 the States, unanimous for once, asked Prime Minister Gorton to quit a share of the income tax market for them. He said, “No”. In October 1991 Prime Minister Hawke conjured up a possible State income tax. This time it was the States who said, “No”.

One may claim that the States are not really interested in an exercise of State accountability. Not even States of the same political colour as Canberra are prepared to take up the slack in State revenue by imposing the extra State income tax. Still, it may be politically unrealistic to expect the State to impose income tax when Canberra’s existing rates remain high. If Canberra is really anxious to expose State budgeting it should lower its tax rates to accommodate State income tax, as the Canadian Dominion Government did to accommodate Provincial income taxes.

For the time being then, there is no “double taxation” in Australia. The Uniform Tax Scheme survives, followed by heavy general purpose grants and, in some matters, specific purpose grants to the States and Northern Territory.

[1.1280] Taxation measures have long been used as contrivances to achieve

Commonwealth policies in situations where no actual legislative authority was specified

in s 51 of the Constitution. This misuse of the taxation power was facilitated by the High

Court as early as 1911 in Osborne v The Commonwealth [1911] HCA 19 when Griffith CJ

observed that:

Although it is a frequent result of taxation to bring about indirect consequences which could not practicably, or could not so easily, be brought about by other means, yet the circumstance that taxation has such a result is irrelevant to the question of the competence to impose the tax.

Indeed, the very first tax imposed by the Commonwealth was a land tax, levied, it was

alleged, to encourage the subdivision of large holdings with the consequential

resettlement bringing sufficient population increase to ensure the effective defence of the

country. Nevertheless, there are constraints on the overuse of the taxation power to

Post-war Canberra … has

been built on tied grants

funded by the largess of a

monopoly over income tax,

wrested from the States by Chifley

during World War II and kept

in place by Robert Menzies

and Malcolm Fraser. Brian

Galligan, Federalism Tests PM’s Fibre, The

Australian (4 April 1996).

70

achieve extraneous ends. In the 1948 bank nationalisation case the then Chief Justice,

Sir John Latham, said that if the power were construed too widely (Bank of NSW v

Commonwealth (1948) 76 CLR 1 at 84):

the Commonwealth parliament might assume and exercise complete control over every act of every person in the Commonwealth by the simple method of imposing a pecuniary liability on everyone, who did not conform to specified rules of action, and calling that obligation a tax, not a penalty.

[1.1290] The introduction of a Goods and Services Tax on 1 July 2000 by the

Commonwealth has enabled some rationalisation of the Federal-State taxation

relationship. The reimbursement to the States of GST allowed the reduction or abolition

of a number of State taxes.

Tied grants

[1.1300] The reference at [1.1270] to general purpose grants and specific purpose grants

is a reference to federal grants under s 96 of the Constitution, 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.

[1.1310] General purpose grants are the annual grants of money provided by the

Commonwealth to the States. The grants are for general purposes and constitute the

major proportion of a State’s revenue. They are granted without conditions attached

“apart from the understanding that the States will keep out of the income tax field, and

sometimes the grants are used as political leverage against a State (eg if a State persists

with a tax which Canberra does not want, Canberra will threaten to cut back that State’s

general purpose grant)” (Lane, An introduction to the Australian Constitutions, at 34).

[1.1320] Specific purpose (or tied) grants are financial grants “on such terms and

conditions as the Parliament thinks fit”. Tied grants enable the Commonwealth to dictate

policy to the States and are widely used. The Commonwealth’s involvement in many areas

(eg health, education, roads) has been facilitated by the use of tied grants.

Uniform legislation in a federal system

[1.1330] The drafters of the Constitution could not have foreseen the complexity,

commercial and otherwise, of society one century later. The need for some harmonisation of

laws in Australia has become apparent but cannot always be satisfied by a reliance upon

s 51 of the Constitution. There are, however, other approaches.

Ceding powers

[1.1340] Section 51(xxxvii) of the Constitution authorises the Federal Parliament to pass

laws on matters referred to it by any one or more States. It follows that where the States

perceive that benefits will flow from national legislation this ability to refer their legislative

powers to the Commonwealth may provide a practical solution.

71

National cooperative schemes

[1.1350] Another approach that has been used with success is to engage the legislative

cooperation of the Federal and State Parliaments. Reference was made earlier to the

unconstitutionality of the Corporations Act 1989 (Cth). Following that determination of the

High Court, and after negotiations pursuing the self-interests of those involved, an

agreement on future corporate regulation in Australia was signed between the

Commonwealth, the States and the Northern Territory in June 1990 that resulted in the

Corporations Law. That system was subsequently undermined by the Wakim decision that

the Federal Court could not decide corporations law cases. Accordingly, a further

cooperative arrangement has been entered into whereby the States have referred their power

to legislate in respect of corporate law to the Commonwealth. Following that step, the

Commonwealth government enacted the Corporations Act 2001 (Cth) to regulate the

conduct of corporations. In effect the final result is an example of the States coding their

powers to legislate, on corporate law, to the Commonwealth.

Another example of that approach is in the implementation of Australian competition

policy. The effectiveness of by the Trade Practices Act 1974 (Cth) was nevertheless

impeded by the limitations imposed by the Constitution. The constitutional basis was the

corporations power (s 51(xx)), with the result that business enterprises which are not

corporations were not subject to the Act. Complex negotiations by the Council of Australian

Governments (COAG) representing the Commonwealth, States and Territories led to a

cooperative agreement being signed by all the parties, the Conduct Code Agreement, under

which the States and Territories agreed to implement the Competition Code as amended

from time to time. The Competition Code, which was in effect a restatement of the

Restrictive Trade Practices provisions of Pt IV of the then Trade Practices Act to catch

individuals as well as corporations, was enacted by the Commonwealth in the Competition

Policy Reform Act 1995. The Trade Practices Act has since been renamed to Competition

and Consumer Act 2010 (Cth) (see [1.1020]). The single national consumer law – the

Australian Consumer Law – prescribed in this Act in place of disparate State and Territory

scheme was introduced in the same manner that gave us national competition laws.

QUESTIONS

1. What is the relationship between:

(a) law and morality and

(b) law and justice?

2. What is meant by the concept of sovereignty of Parliament? What factors,

if any, restrict the operation of the classic formulation of parliamentary

sovereignty in Australia?

3. Should a Bill of Rights be introduced in Australia? How would this be

done? How would it affect current constitutional arrangements?

4.

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The business of the Court is legality. Just as it is not known in human affairs for a noble objective to be pursued by ignoble means, so it sometimes happens that desirable ends are pursued by unlawful means. If the point is taken before them, courts have to rule on the legality of the means, whatever view individual judges may have about the desirability of the end. This is one aspect of the rule of law, a societal value that is at the heart of our system of government. It follows that this judgment should be seen only as a judgment about legal issues, not a view about the social, economic, and political arguments

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998]

FCA 397 (23 April 1998) per Wilcox, von Doussa and Finkelstein JJ.

Discuss this proposition.

WEB REFERENCES

ComLaw http://www.comlaw.gov.au

Australasian Legal Information Institute http://www.austlii.edu.au

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