TABLE

OF CONTENTS

A STRUCTURAL OVERVIEW OF THE AUSTRALIAN SYSTEM OF PUBLIC LAW ...................................... 3

CLASS NOTES ......................................................................................................................................... 7

CONSTITUTIONALISM AND THE RULE OF LAW ................................................................................ 8
CLASS NOTES ........................................................................................................................................ 12

A WASHMINSTER HYBRID ............................................................................................................. 14
CLASS NOTES ........................................................................................................................................ 18

CONTESTED TRADITIONS: POLITICAL AND LEGAL CONSTITUTIONALISM ....................................... 20
CLASS NOTES ....................................................................................................................................... 28

INDIGENOUS SOVEREIGNTY AND CROWN SOVEREIGNTY ............................................................. 29
CLASS NOTES ....................................................................................................................................... 36

INDIGENOUS PEOPLE, VOTING AND THE CONSTITUTION .............................................................. 39
CLASS NOTES ....................................................................................................................................... 42

THE CLVA/THE PATH TO FEDERATION, THE ACQUISITION OF LEGAL INDEPENDENCE AND POPULAR
SOVEREIGNTY ............................................................................................................................... 45
CLASS NOTES ....................................................................................................................................... 53

STATUTORY INTERPRETATION I .................................................................................................... 56
CLASS NOTES ....................................................................................................................................... 59

STATUTORY INTERPRETATION II ................................................................................................... 61

CLASS NOTES ....................................................................................................................................... 63

THE LEGISLATURE I ....................................................................................................................... 65

CLASS NOTES ....................................................................................................................................... 72

THE LEGISLATURE II ...................................................................................................................... 73
CLASS NOTES ....................................................................................................................................... 77

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STATE CONSTITUTIONS AND STATE LEGISLATIVE POWER ............................................................. 78
CLASS NOTES ....................................................................................................................................... 84

THE EXECUTIVE I ........................................................................................................................... 85
CLASS NOTES ....................................................................................................................................... 95

THE EXECUTIVE II .......................................................................................................................... 97
CLASS NOTES ..................................................................................................................................... 102

THE EXECUTIVE III ....................................................................................................................... 104
CLASS NOTES ..................................................................................................................................... 109

THE JUDICIARY I ......................................................................................................................... 111
CLASS NOTES ..................................................................................................................................... 117

THE JUDICIARY II ........................................................................................................................ 120
CLASS NOTES ..................................................................................................................................... 130

THE JUDICIARY III ....................................................................................................................... 131
CLASS NOTES ..................................................................................................................................... 132

RIGHTS PROTECTION I ................................................................................................................ 136
CLASS NOTES ..................................................................................................................................... 140

RIGHTS PROTECTION II ............................................................................................................... 142
CLASS NOTES ..................................................................................................................................... 149

CONSTITUTIONAL CHANGE ......................................................................................................... 151

REVISION CLASS I ........................................................................................................................ 155
REVISION CLASS II ....................................................................................................................... 157

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A STRUCTURAL OVERVIEW OF THE AUSTRALIAN SYSTEM OF PUBLIC LAW
Summary
• Dichotomy between administrative and judicial review
• A rights based approach in constitutional interpretation

Australia - A Constitutional Hybrid
• Enactment of Commonwealth of Australia Constitution Act 1900 (Imp) - beginning of operation
of Constitution, Commonwealth of Australia
• UK - representative and responsible government, constitutional monarchy
o Queen as symbolic monarch, GG representative, powers in constitution e.g. s59 - can
annul or disallow laws made by federal parliament
• Convention - act on advice of PM, other ministers
o Representative government - government by the citizens/people through their elected
representatives
o Responsible government - executive arm of government responsible to Parliament to
actions
• US - federalism, separation of powers, judicial review
o Protecting power of people against power of government
o Distributing power, no single consolidated chain of command
o Federalism - allocation of governmental/legislative powers among different territories
o Separation of powers - legislative, judicial and executive functions allocated
o Judicial review - checks and balances through courts, can strike down laws, govt. action
inconsistent with C
• Constitutional monarchy - power implied in monarchy limited by ideas and principles of
constitutionalism
• AV Dicey - Introduction to the Study of the Law of the Constitution
o Constitutional law - 'all rules which directly or indirectly affect the distribution or the
exercise of the sovereign power in the state'
• Sir Ivor Jennings - The Law and the Constitution
o Constitution - 'the rules governing the composition, powers and methods of operation of
the main institutions of government, and the general principles applicable to their
relations to the citizens'
• Focus on effects of power exercise - arbitrary/oppressive
• Adam Tomkins - Public Law
o Constitutions:
• Establish institutions and interrelationships
• Explain place and role of the people
• Express political values to which a particular society lays claim
• Giovanni Satori - Constitutionalism: A Preliminary Discussion
o Constitution establishes fundamental law/set of principles to restrict arbitrary power
o Nominal constitution - deals only with formalisation of power structure
o Façade constitution - espouses to the principles of limited government, but in practice
does not secure them
• Written vs. unwritten constitution
o Written - single solemn document, founds a political community, defines chief political
institutions, confers powers, circumscribes limits of powers e.g. American
• Still requirement for constitutional conventions - for practical convenience, or
beliefs about how government ought to be conducted
o Unwritten - no single document e.g. UK

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 • Parts of constitution exist in written form through acts e.g. Act of Settlement 1701
and judicial decisions expounding common law
• Australian constitution is written and unwritten:
o Written document set out in s9 of Commonwealth of Australia Constitution Act 1900
o Also Statute of Westminster 1931 (Imp) and Australia Act 1986 (Cth)
o Supplemented by common law and unwritten conventions
o States also have constitutions
• Flexible vs. rigid constitutions - Dicey; James Bryce - Studies in History and Jurisprudence
o Flexible - every law can be legally changed with the same ease and in the same manner
by the same body
• If constitutional rules restricting powers of Parliament, Parliament can remove
restrictions through ordinary powers
• Constitutions of Australian states are flexible
o Rigid - certain laws (constitutional or fundamental laws) cannot be changed in the same
manner as ordinary laws
• Under 'rigid' Australian Constitution, amendments are initiated by Cth parliament,
but can only by effected by referendum under requirements of s128

Separation of Powers
• If power of judicial review relied on for enforcement of limits on govt. and legislative powers,
courts exercising this power must be independent of government and legislature
o See R v Kirby; Ex parte Boilermakers' Society of Australia (1956) (Boilermakers' Case)
• Exercise of judicial power of Cth must be kept separate from other govt. inst.
• Westminster system - no strict separation between legislative and executive power
o Ministers responsible for department of govt. must be members of Parliament,
accountable to it
• Baron de Montesquieu - The Spirit of the Laws
o Early ideas (16th C)
o No liberty if the judicial power is not separated from the legislative and executive
• If with legislative, judge as legislator, life and liberty of subject under arbitrary
control
• If with executive, judge may be violent or oppressive
• Owen Hood Phillips and Paul Jackson - Constitutional and Administrative Law
o Functions (may be contentious, become blurred in application to constitution):
• Legislative function - making of new law, alteration or repeal of existing law
• Executive or administrative function - general and detailed carrying out of
government according to law; framing of policy and choice of manner in which the
law is made to render policy possible
• Judicial function - interpretation of the law, application by rule or discretion to
facts of particular cases
o Other views - organic distinction where administrators perform operations, not
legislators or judges; distinction by procedure
o Complete separation of powers with no overlap/coordination would bring government
to standstill
o Doctrine should be taken to 'advocate prevention of tyranny by the conferment of too
much power on any one person or body, and the check of one power by another'
• Gerard Carney - Separation of Powers in the Westminster System
Institution Power Personnel Control
Parliament Make laws Representatives elected to (Royal Assent) Supervision
Vested ss1 lower house, elected or and/or expulsion by the

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 appointed to upper house house
Executive Executive Ministers appointed by the Maintain support of the
Council (the power crown with the support of lower House,
Cabinet) the lower House, must be Parliamentary and Judicial
Vested ss61 Members of the Parliament Review
The Courts Judicial Judges appointed by the Superior court justices
Vested ss71 Power executive removal by the Crown on
an address from both
houses on certain grounds
• Integration of executive into legislature acknowledged in s64 of Constitution
o 'No minister of state shall hold office for a longer period than three months unless he is
or becomes a senator or a member of the House of Representatives'

The Constitution
Jeffrey Goldsworthy - Australia: Devotion to Legalism
• Authority of UK parliament not formally terminated until Australia Act 1986 passed by UK and
Cth parliament
• Documents that make up Aus. C law - C, Australia Act, six state constitutions
• Enacted by the UK Parliament - The Commonwealth of Australia Constitution Act 1900 (Imp)
• Legal authority derived solely from sovereignty of UK parliament, political and legal authority
due to agreement from representatives, assented to by majority of voters of each colony
• Engineers' Case (1920) - affirmed that C is 'political compact of the whole of the people of
Australia, enacted into binding law by the Imperial Parliament'
o View now that authority of C rests on continuing assent; sovereignty, of the people
• No constitutional recognition currently given to Aboriginal sovereignty
• Responsible government relies on compliance with unwritten, judicially enforceable
conventions and common law principles
• Allocation of powers:
o States continue to posess general legislative power under own C unless if C withdraws a
specific power from them e.g. s107
o Most of Parliament's powers are not withdrawn - concurrent rather than exclusive
powers
• Supremacy of Cth laws over inconsistent state laws
• C may only be amended by law passed by Parliament, approved by majority of votes
nationwide and in majority of states
• C has provisions to supress regional favouritism but no Bill of Rights
• Idea of Utilitarianism - importance over natural rights in framing C, democratically elected
parliament to guard rights, should not fetter parliament
o Judicial interpretation of abstract rights could be unpredictable, wanted to be able to
discriminate for racial/cultural homogeneity
• Independent federal judiciary enforces terms of federal compact
• Referendum to extend rights of religious freedom, jury trial, just terms defeated in 1988
o No political impetus towards rights protection strengthening in C since then

Judicial Review
Blackshield and Williams - The Oxford Companion to the High Court of Australia
• Judicial review - involves HC assessing govt. action for consistency with the Constitution, can
hold laws invalid
• Check by Court on exercise of arbitrary power
o Implements rule of law

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 o Provides fundamental protection against infringement of human rights
• Administrative review - judges assess the lawfulness of administrative decision making against
statutes and the common law
• Common law power of judicial review has not been applied by HC
o Might be basis for judicial review where fundamental rights have been breached -
extreme case
o Building Construction Employees & BLF v Minister for IR (1986) - NSW example
• While parliament may have power to make laws for peace, order and good
government of Cth, does no confer 'unlimited legislative power'
• Vs. notions of parliamentary sovereignty, tradition, democratic will of people is
expressed in parliament
o Has not yet been explored
• Without this power, court has developed common law rules of statutory interpretation that
reflect a presumption against invasion of fundamental rights by legislature
o Implied constitutional rights used to read down legislation, precursor to invalidation
• Constitution vest power in HC to review legislative and executive action for consistency with
its requirements
o Does it infringe basic principles of democracy for the Court to strike down laws enacted
by a duly elected legislature?
• Communist Party Case (1951)
o Challenge to HC's power of judicial review, but doctrine of judicial review affirmed by
court, legislation held to be invalid
o Did not take notice of Parliament's belief that legislation constitutionally valid as
expressed in recitals
o HC as ultimate arbiter of Constitution, independent check on power of legislature and
executive

Review of Government Decisions
• Merits review - process by which an entity other than original decision maker reconsiders
facts, law and policy of original decision, determines correct or preferable decision
o Administered by executive
o New decision can be made after review of facts, in judicial review - only legality of
decision making process considered
o Internal merits review - officer of agency is reviewed by another person in the agency
o External merits review - fresh consideration of case by external body, often tribunal;
must be provided for by legislation
• Administrative investigation
o Cth Ombudsman - power to investigate complaints about administrative
actions/decisions of Govt. agencies to consider if they are unreasonable, unjust, wrong,
unlawful or discriminatory
• Remedies - recommendations and reports
o Australian Human Rights Commission - investigates whether Cth administrative activity
complies with HR or anti discrimination standards
• Resolves through Conciliation, can apply to Federal Court
• Remedies - declaration of unlawful discrimination, performance of action order,
damages order
• Judicial review
o Review of decision by court to determine whether it was made within the lawful limits of
decision makers' authority, or in compliance with procedural fairness
o Not re-hearing of merits of case

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 CLASS NOTES
Notes
• ‘The primary concern of public law is how the institutions of states operate to govern the
people residing in their territory. States govern through institutions, so an important aspect of
public law is to describe the origin and function of these institutions, and the relationship
between them.’
Reilly et al, Australian Public Law (OUP, 2011), 4
• ‘Separate treatment of constitutional law, administrative law and statutory interpretation law
remains useful in many respects. However, the integrative terminology of “public law” merges
constitutional law, administrative law and the law of statutory interpretation, thereby treating
the activity of governing as a distinct subject matter. In Australian jurisprudence, these three
subject areas are closely interrelated.
‘Public law has been defined [by Martin Loughlin] as:
“The assemblage of rules, principles, canons, maxims, customs, usages, and manners that
condition, sustain and regulate the activity of governing.”’
JJ Spigelman, ‘Public Law and the Executive’,
The Garran Oration, Adelaide, 22 October 2010, 8
• P3 - Giovanni satori
o Public law is about power, fundamental power in any given state
o Power to govern, authority, power to punish
• Reily - institutions, power as check and balance, vested in institutions
• Spigelman - governing, dividing into constitutional, admin, statutory interpretation
• Words:
o Representative government - parliament represents the people
o Responsible government - chain of accountability, executive holds parliament
accountable
• S64 of constitution, ministers must also be members of parliament
• Constitutional judicial review - holding parliament to account (judiciary)
• Administrative judicial review - holding executive to account (judiciary)

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CONSTITUTIONALISM AND THE RULE OF LAW
Political and Legal Constitutionalism
• Is the decisive legal say on the constitutional limits of power given to the judiciary?
• Adam Tomkins - Public Law (2003)
o Sovereignty of parliament/legislature under British system, US vested in Supreme C
o Rule of law - executive must have prior legal authority before it acts
o Separation of powers and notions of federalism - tools used to regulate legal and
political relations of institutions of the state
o Difference between political and legal constitutions:
• Political constitutions - where those who exercise political power (govt.) are held
to constitutional account through political means and through political institutions
(parliament) ie. debates, question time
§ Public law regulates the enterprise of government
§ To be effective, needs strong and vibrant politics, to be serious in scrutiny,
independence needed from government of the day
§ Hinges on importance of political accountability, incentive to retain power
§ Importance of values of open, transparent, participatory, representative and
deliberative politics; BUT often merely ideals
• Legal constitutions - government held to account through law and courtroom ie.
judicial review
§ To be effective need independence from govt. of the day, understanding
that law can be used as technique of holding govt. to account
§ Advantage of having no inherent discrimination in favour of the majority
§ Disadvantage - judges are neither democratically elected, accountable, nor
representative
• Australian system - strong adherence to political constitutionalism, but at federal level,
commitment to legal constitutionalism
o Judicial review available for the courts to strike down legislation deemed to contravene
written constitution
o BUT antithetical to parliamentary sovereignty - tension at the centre of Australian
constitutionalism - Elaine Thompson - 'Washminster mutation'
o Challenge of HC to determine extent to which it should defer to politicians and political
processes to define reaches of govt. power, see e.g.
• Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920), Majority -
if representatives of people act contrary to interests of people, within the power
of the people to reverse this, 'no protection of the court...is necessary or proper'
• Australian Capital Television Pty Ltd v Commonwealth (1992), Dawson J - framers
of Constitution placed trust in parliament to preserve nature of society,
undemocratic to fetter powers
• Plaintiff S157/2002 v Commonwealth (2003), Majority - 'under the
Constitution...the ultimate decision maker in all matters where there is a contest,
is this Court'
• Michael Kirby, Judicial Review in a Time of Terrorism - Business as Usual (2006)
§ Enduring merit of scrutiny of parliament by detached judiciary
§ Constitutionalism and the rule of law prevail
§ Judicial and constitutional review are crucial attributes of liberty

The idea of Constitutionalism
• Robert French, The Future of Australian Constitutionalism (2009)

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 o Common element in conception of constitutionalism - adherence to a system of
government in which judicial, executive and legislative arms of government are limited
by written or unwritten and possibly justicable rules
o Lewin Henkin (1994): elements of constitutionalism;
• Government legitimacy based on popular sovereignty
§ Will of people as source of authority
• Prescriptive constitution - supreme law to which govt. must conform
• Commitment to political democracy and representative govt. under terms of
Constitution
• Commitment to separation of powers, limited government and checks and
balances
• Government respect for human rights, UDHR
§ Limitation only in public interest
• Institutions to monitor, assure respect for constitutional blueprint, limitations on
government and respect for human rights
• Respect for self determination:
§ The right of the people to choose, change or terminate political affiliation
o Overall:
• Institutions for defining and limiting govt. power
• Adherence to mechanisms by governmental actors
• Support for them by members of society
o NOT necessarily judicial review or judicial enforceability of constitutional limits

Rule of Law
• Brian Z Tamanaha, On the Rule of Law: History, Politics, Theory (2004)
o Rule by law vs rule of law in China:
• Rule of law - law is preeminent, can serve as check against the abuse of power
• Rule by law - law as a tool for a government that suppresses in a legalistic way
o Formal vs substantive conceptions of rule of law:
• Formal conceptions - proper sources and forms of legality, address:
§ The manner in which the law was promulgated (by authorised person?)
§ Clarity of ensuing norm (clear enough to guide conduct?)
§ Temporal dimension of enacted norm (prospective?)
• Substantive conception - requirements about content of law
§ Accepts formal conceptions, builds on this
§ Certain substantive rights are based on or derived from the rule of law
§ Used to distinguish between good laws, which comply and bad laws
§ Law must comport with justice or moral principle
• AV Dicey - Introduction to the Study of the Law of the Constitution (1885)
o 3 conceptions of rule of law:
• Absolute supremacy, predominance of regular law rather than arbitrary power
§ Can only be punishable if there is distinct breach of law established in
ordinary legal manner
• Equality before the law, equal subjection of all classes to the ordinary law of the
land administered by ordinary law courts
• The law of the constitution is not the source, but the consequence of the rights of
individuals as defined and enforced by the courts
• Brian Z Tamanaha, On the Rule of Law: History, Politics, Theory (2004)
o Added dimension to rule of law - cultural and societal attitudes to constraints on power,
including among those who exercise it

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 • Widely held belief and commitment amongst public, govt. officials, that govt.
operates within limiting framework of law
• Attitudes about law provide the limits
o Constitution 'establishes the basic powers and limits of a government and the
relationship between a government and its citizens'
o Legal positivism - law as the product of sovereign legislative will
o Hayek - rule of law is not a legal rule BUT a political ideal
o Dicey - limits on law makers are political or moral, not legal
• UK - view that rule of law contains blend of procedural and substantive elements
o Lord Bingham - The Rule of Law (2007)
• All persons and authorities within the state should be bound by and entitled to the
benefits of public, prospective laws administered in the courts
8 sub rules:
• Law must be accessible, predictable
• Application of law rather than discretion to resolve questions of legal right/liability
• Laws of the land should apply equally to all unless differentiation required
• Law adequately protects fundamental human rights
• Need to provide means to resolve disputes without extensive delay or cost
• Ministers etc. need to exercise powers in good faith, not exceed limits of powers,
use them for purpose given
• Adjudicative procedures provided by state should be fair
• State needs to comply with international law obligations
• Australia - formal or procedural ideas remain prominent
o Sir Ninian Stephen - The Rule of Law (2003)
Four principles central to rule of law:
• The government should be under law
• Judges and lawyers administering law should be independent of government
• Ready access to court of law for those seeking legal remedy/relief
• Law of the land should be certain, general, equal in operation
o Communist Part Case (1951), per Dixon J
• Rule of law as one of the assumptions upon which the Constitution was framed
o Plaintiff S157/2002 v Commonwealth (2003)
• Minimal provision of judicial review for those seeking redress against
administrative action by an officer of the Commonwealth
• S75(v) of Constitution - secures basic element of the rule of law
• Procedural
o For substantive - principle of legality
• Idea that parliament is presumed not to intend the infringement of numerous
common law rights and freedoms
• Gleeson CJ, French CJ - important aspect of rule of law
§ Broad based rights protection as essential part of rule of law concept

Accountability
• Turpin and Tomkins, British Government and the Constitution (2007)
o Accountability - obligation to explain and justify decisions made or action taken
• Attached to those with public powers or duties
• Validates power of command
• If awareness of need for accountability, this can improve quality of decision
making
• Retrospective - obligation to answer after the event of actions or decisions

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 o Link with democracy - if elected by the people, given power for public good, not own
ends
o Link with rule of law - if granted power, should not exceed limits of that authority
o Accountability as leading principle of constitution, but may be imperfectly realised in
practice
o Ultimate accountability of government in a democracy is to the electorate
o Under rule of law, duty to account to an independent agency outside the organisation
whose actions are in question e.g. independent body, legislature, court
o Managerial accountability - may be to superior officers in the organisation
o Legal accountability - depends on availability of a right of appeal to a court or tribunal or
access to judicial review
o Political accountability - doctrine of ministerial responsibility to parliament
• Sovereign bound to act on the advice of ministers
• Ministers accountable to parliament, and through parliament, to the nation
o Accountability requires that appropriate reparation be made to the victim of the illegal
action or maladministration
o May also relate to rationality, economy, efficiency, fairness

Brian Tamanaha, On the Rule of Law: History, Politics, Theory (2004)
Government limited by law
• Sovereign, state and officials are limited by the law
• Idea of restraint of government tyranny, which shifted to liberalism and emphasis on formal
legality
o Officials must abide by the currently valid positive law
o There are restraints on their law making power
• How can the power that creates and enforces the law be limited by the law?
o Monarch accepting or affirming that the law is binding
o Widely understood or assumed in society that the monarch operated within a
framework of laws that applied to everyone - belief held!
o Routine that monarchs and government officials operated under legal restraints
• Law often used as a weapon by sovereign to achieve objectives, and this was facilitated by
judges intimidated to or beholden to them
o Often no effective legal remedies for violation, but political consequences
• No impediment in practice to imposition of legal sanctions on the sovereign and government
officials for violations of positive law
o BUT need separation of powers, independence of judiciary
• Also dimension of legal limitations to be placed on law making power of sovereign
• Bill of rights, but understood in procedural terms - rights may be overcome if justified in
circumstances

Formal Legality
• Rule of law tied to public, prospective laws, with qualities of generality, equality of application
and certainty
• Rule bound order established and maintained by government
• Need for availability of a fair hearing within the judicial process
• Can then see with fair certainty 'how the authority will use its coercive powers in given
circumstances and to plan one's individual affairs on the basis of this knowledge' - Hayek
• BUT:
o Such restraints are compatible with regimes with laws with inequitable or evil content
e.g. slavery/apartheid; although formal legality would put a restraint on this

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 o May require forgoing of objectives of distributive equality and justice in the individual
case
o May be cases in which formal legality is not appropriate or socially beneficial e.g. small
communities, or areas of policy with variation
• Reduces uncertainty; BUT citizens may not have fore-knowledge of legal implications of
actions - issues with cost/availability of legal counsel to facilitate this

Rule of law, not man
• Law is reason, non discretionary, objective, vs. man as passion, arbitrary, subjective
• Operation of law cannot be separated from human participation
• Judiciary as special guardians of the law - legal experts
• Presence of individual as judge is negated - judge becomes the law personified
o Unbiased, free of passion, prejudice and arbitrariness, loyal to only the law
o Separation of powers - independence of judges
• Protected judiciary, AND
• Lessened potential for abuse of power by judges
• Risk of rule of law becoming rule of judges - usurpation of power by unaccountable elite

CLASS NOTES
Constitutionalism:
• Create key institutions
• Powers - defined, limits
• People
• Accountability
• Values
Look at:
• Cases
• Customs
• Written document

Political vs Legal
• Political constitution - ultimate authority through political mechanisms
o Parliamentary sovereignty
o Popular sovereignty - ultimate sovereignty rests with the people
• Legal constitutions - judicial review

Rule of law
• Dicey:
o Punishment only by law - arbitrariness removed
o Equality - everybody subject to the same laws
o Constitution is the consequence and not the source of rights

• Formal - process, how the law is enacted v.
o Passed through both houses of parliament, passed through procedural hurdles
o Dominant approach to HC readings is formalist
• Substantive rule of law - content, rights contained

• Thin v. thick
o Dicey - thin and formal definition

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 Under formal:
o Thin - rule by law
o Thick - formal legality, content to processes etc.
- democracy legality - parliament passing not sufficient, need debate, consultation

Under substantive:
o Thin - individual rights
o Middle - rights to dignity and justice
o Thick - social welfare

Tunisia:
1. Security, justice, economic prosperity, legitimacy (do not have to keep justifying themselves);
may secure confidence of people in govt. and obedience; can facilitate better generational
change - processes for amendment in democratic way, can adapt and evolve
2. For rule of law - democracy is important: legitimacy, stability and interests being met

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A WASHMINSTER HYBRID
Introduction
• Twofold function of constitutional law:
o Invoked by people seeking a stable, secure basis for exercising government power
o Invoked by those who seek to limit governmental power
• R v Kirby: Ex parte Boilermakers Society of Australia (1956) (HC, Majority):
o Framers of 'Australian instrument of government' successfully combined both:
• British system with executive responsible to legislature
• American system of federalism

Models for Designing an Australian Constitution
• Helen Irving, To Constitute a Nation: A Cultural History of Australia's Constitution (1999)
o In looking at alternative federal models, delegates were making a choice about both the
political model and the type of political culture the new nation should embody
o Canadian constitution too centralist:
• Defined powers of provinces specifically - limited them
• Anything else left to power of state parliament - larger scope for power
• People could not amend constitution
o Australian desire for state rights greater than commitment to being British, need to
establish as distinctive, independent nation
o German constitution - took national power over old age pensions - section 51 (xxiii)
o Swiss constitution - referendum as means for constitutional amendment
• Provided for equal state representation, which worked satisfactorily despite large
differences in populations
• BUT did not have responsible government - ministry not chosen from among
elected members of parliament
o American constitution - Aus. wanted to avoid threat of Civil War
• Said by one commentator to have been caused by equal state representation
• Another believed it showed need for smaller states to be protected against the
larger ones
• Aus. constitution included protection against settlement by 'the sword'
o Influence of Andrew Inglis Clark - delegate from Tasmania:
• Liked American example, drew from this
• Input into draft constitution of 1891 - appointment of senators from state
parliaments, independent supreme court
o Overall belief of Convention that departure from responsible government would make
Aus. too American
• Were American in following federal model that suited their strong colonial
jealousies
o Reflected on new nation's character, or the 'national type'; lots of assurance that they
were British
• Commitment to parliament and rule of law
• Minimal interference in people's liberty
• Imperialistic notion of progress and destiny
• Expansion of trade, education, Christianity and rationalism
o Australia had all the powers of self government possessed by US, but more democratic -
people more in touch with Parliament
o British part of constitution
• Responsible government
• Hereditary Head of State

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 • Aus. Parliament's acquisition of privileges of House of Commons
• Prohibition on money bills originating in or being amended by the Senate
• Absence of Bill of Rights
• Unstated convention e.g. Prime Minister in Lower House, cabinet
o Importance of traditions - gradual growth, not manufacture like American constitution
• Did not want to be radically republican
o American part of constitution:
• Distribution of power - Cth gets specified, limited powers, states get unlimited rest
(in theory)
• Existence of HC with capacity for constitutional review
• Senate with similar powers to Lower House - representing each state in equal
numbers
§ Problem of unequal representation very pressing

The UK Inheritance: Evolution of Parliamentary Supremacy and Responsible Government
Parliament
• CF Padfield, British Constitution Made Simple
o Pre 13th Century - Witan - council of wisest men in the kingdom to give counsel to the
monarch
• Supreme legislative, governmental and judicial assembly
o 13th Century - Parliaments - aristocracy represented, but knights and citizens were not
• 1295 - more inclusive - knights, citizens, senior and lower clergy - 'that which
touches all should be approved by all'
• Grievances before supply established - K asked for financial aid, Commons would
strike bargain regarding redress of grievances or petitions
o 1485-1603 (Tudor period) - Parliament met on occasion annually
• Gave effect to wishes of kind, nobles, merchants, lesser landowner
• Composition of House of Commons changed to include lesser aristocracy,
professional classes
• Functions of parliament - exercise of jurisdiction, granting of taxes, declaring of
law
• Judicial power of Parliament - judicial power of king in Parliament - House of Lords
• Attainders and reversals - House of Commons, as they were acts of parliament
• Agreement of both houses was necessary before an act granting taxes to the king
(and other legislation) became legal
• Complete control of king over public parliamentary legislation - principal initiator
• Beginning of Tudor period - acts of Parliament applied or declared the law, as well
as decisions or judgements of other courts
§ Law as body of rules founded in God's will
§ Changed towards changes in religious, political and social life
• Immediate needs of the monarch became one of the reasons for new laws
• Most important privilege - right of free speech - protected members from attack
for what they had said
• During reign of Elizabeth, held that certain topics were beyond the range of
independent action by the House of Commons
§ Religion and succession to the throne
o English reformation - growth in parliamentary authority during the Tudor era
• Laid the modern foundations of Parliament's legislative authority
• Use of parliament during religious change
• Institutional power of King-in-Council in Parliament
• GR Elton - The Tudor Constitution (1962)

15 | P a g e

 o Nothing could get done in the way of legislative acts if there was no harmony between
crown, lower house and upper house
o Early Stuarts ignored the need for management - 'major political error and even
dereliction of duty'

The Bloodless Revolution
• 1628 Petition of Right - Parliamentary control of taxation
o Competing demands for supremacy by King and Parliament
o Charles governed by personal rule for 10 year period, no Parliament called
o English Civil War of 1640's - ended in victory of Parliamentary forces under Oliver
Cromwell
• Parliament emerged as supreme law making body governing through a monarch of its own
choice
• PA Joseph - Constitutional and Administrative Law in New Zealand
o Bill of Rights 1688 ended the Stuart claims to rule by prerogative right
• More of a political compact for the subject's protection than a legal statute
• Established the supremacy or rule of law
o Abolition of Court of Star chamber in 1640 - public as well as private acts subject to the
common law
• Only executive discretions remained witht eh crown
o King compelled to govern through Parliament and to accept independence of judges
under Act of Settlement 1700
• Judges conceded supremacy of statute over common law
• Attention turned to securing the individual from official interference
• Bill of Rights 1688
o s 6 of Imperial Acts Application Act 1969 (NSW) - Bill of Rights and Magna Carta remain
in force in NSW if not affected by other state or imperial enactment
• BUT Re Cusack (1985) - Wilson J - 'The validity of laws enacted by the
commonwealth Parliament falls to be determined by reference to the proper
construction of the Australian Constitution'; not other docs
o Invoked:
• Egan v Willis (1998) - affirmation of parliamentary privilege
• Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) - insist on
parliamentary consent to taxation
• Re Tracey (1989) - parliamentary consent to maintenance of armed forced in
peacetime
• Sillery v The Queen (1981) - enjoinder against cruel and unusual punishments
• Port of Portland Pty Ltd v Victoria (2010) - Bill of Rights provisions transcribed in
Vic act reinforce settled constitutional principles
§ Power of granting individual immunity from general law from Bill of Rights
'became an aspect of the Rule of Law in Australia'
• Act of Settlement 1701
in Goldwin A Smith, A Constitutional and Legal History of England (1990)
o Made nature of succession clear, guarded against restoration of old Stuart line, series of
specific rules:
• King's pardon not bar to impeachment by Parliament
• Judges hold office during good behaviour rather than at the king's pleasure
• No person with an office under the King should serve as a member of House of
Commons
• Both acts signified that Parliament, and not the sovereign, was the supreme law making body
of England

16 | P a g e

 • Succession to the throne for females - change will be made in Aus under s 51 (38) power to
make laws 'at the request or with the concurrence of the Parliaments of all the States'

Responsible and Representative Government
• Move towards parliamentary government:
o Decline in the personal involvement of the monarch
o Rise of cabinet government, formalisation of political parties, more representative
parliament
• Notion that executive was to rule according to the law, be responsible to Parliament, was
firmly entrenched
• Representative Parliament emerged as the sovereign power
• Martin Loughlin - Foundations of Public Law (2010)
o Locke - Government was a trust delegated by the people:
• To maintain the basic compact between society and state, AND,
• To respect the wishes of the legislature
o Importance of section 4:
• 'All matters and things relating to the well governing of this kingdom, which are
properly cognizable in the Privy Council by the laws and customs of this realm,
shall be transacted there'
• Inscribing in law principle of responsible government
• Prohibited secrecy of counsel - this was previously considered a necessary
condition effective of decision making by government
• Repealed by Regency Act of 1706
o Act of Settlement prescribed constitutional framework in law:
• Underpinned by principle of separation of legislature, executive and judicial power
• Based on requirement of formal, official process for executive decision making to
ensure governmental accountability to Parliament
o 18th C - tension between government and parliament removed as King withdrew, but
new tension between governing and opposition parties - keep each other in check
• Constitutional conventions developed
• Political parties distinctly developed
§ But developed in groups
§ If not, if there was too divergent interests, there would be disorganisation
and confusion
o Reform Act of 1832 - did not institute new political system, and did not hand over to
middle classes, but extended franchise to include urban middle class
o Reform Act of 1867 - size of electorate doubled
• Party system centralised, bureaucratised, modernised; link between electorate
and Parliament
• Parliamentary elections method of choosing which party would rule
o Ministers answered to parliament for all governmental decisions
• Collective responsibility of government to Parliament - product of cabinet system
of government
• Nearly complete fusing of executive and legislative powers
• Executive controls House of Commons rather than opposite
o Gulf between doctrinal simplicity of ministerial responsibility and administrative
complexity

The US Inheritance: Representative Government, Separation of Powers, Judicial Review
Separations of Power - Horizontal and Vertical
• Preamble of Declaration of Independence

17 | P a g e

 o All men created equal, endowed with certain unalienable rights - life, liberty, pursuit of
happiness
• Stephen Gageler - Foundations of Australian Federalism and the Role of Judicial Review (1987)
o US Constitution conceived in an atmosphere of fear, of:
• Ruling elite unresponsive to the needs of the people
• Majoritarian tyranny and factionalism
o Framers intended to establish institutions to contain distrust, alarm, unsteadiness,
injustice etc., ensure government would act to promote the general welfare
o Three basic mechanisms:
• Representative government - delegation of government to small number of
citizens elected by the rest
• Separation of governmental powers - each had the power to check the other,
on two planes:
§ Vertical plane - allocation of functions between federal and state
governments; no one government in position to completely dominate
citizens
§ Horizontal plane - diffusion of governmental power among legislature,
executive and judiciary
• Legislature further divided into different branches - HOR, Senate
• Judicial review - federal judiciary with power to declare void acts of legislature or
executive in contravention of constitution
§ Not explicit in the text of the constitution
§ Judiciary least dangerous to the political rights of the Constitution - neither
force nor will but merely judgement
§ If conflict between act and text of constitution, prefer intention of people
over intention of their agents
o Constitution, expressing the will of the people - FUNDAMENTAL LAW
• Only representative government was discernable feature of Westminster constitutionalism by
drafting of constitution
• Michael Burgess - Comparative Federalism: Theory and Practice (2006)
o Federal system possessed both federal and national features
o Confederation vs compound republic - national characteristics were expected ultimately
to predominate
o New constitution altered conventional federal form:
• Subtracted decisively federal features, added decisively national features
o Five main defects of confederation:
• No security against foreign invasion
• No constitutional power to check quarrels between the states and the union
• Did not promote commerce
• Existing union could not protect itself from encroachments from the constituent
states
• Acts not superior to constituent state constitution
o Needed to address common defence, security of liberty and general welfare

CLASS NOTES
Federalism - vertical separation of powers
Parliamentary supremacy - parliament tends to have the last say

18 | P a g e

Dicey's conception of parliamentary sovereignty - parliament make and unmake law - may not be
fully relevant today
• Asserted that this would enhance the rule of law

Montescue - separation of powers

Federalist papers - values behind drafting of constitution
• Arguing for unification
• Real federalists - difference in thought

Federalism - division of power along political and territorial lines

US - limiting/weakening government, separation of powers
UK - protect parliament from monarch, limit tyranny in the monarch, strengthen parliament

American:
• Federalism
• Representative government
• Judicial review
• Written rigid constitution
• Senate (as states' house)

Didn’t take:
• Bill of rights
• President
• Weakening and limiting government

From UK:
• Queen
• Responsible government - s64
• Prime Minister - conventions
• No bill of rights

Referendums - s128

England - absence of limited government - written constitution, judicial review, strong rights
protection; issues with rule of law, more like rule by law

19 | P a g e

CONTESTED TRADITIONS: POLITICAL AND LEGAL CONSTITUTIONALISM
Parliamentary Sovereignty and Contemporary Challenges
• AV Dicey - Introduction to the Study of the Law of the Constitution (1885)
Argues that the practice of responsible government depends on parliamentary sovereignty
o Sovereignty of parliament as legal fact
• Under British constitution, right to make or unmake any law whatsoever
• 'Any act of Parliament, or any part of an Act of Parliament, which makes a new law,
or repeals or modifies an existing law, will be obeyed by the courts'
• No person or body is recognised by English law as having a right to override or set
aside the legislation of parliament
• Law - any rule which will be enforced by the courts
o No legal limitations on sovereignty of parliament
• Judicial legislation formed through precedent, fixed rules for decision; BUT
subordinate legislation
• Judges do not have the power to repeal a Statute, acts of Parliament can override
the law of the judges
• However, EXTERNAL and INTERNAL limitations:
§ External - possibility that subjects will disobey or resist laws
§ Internal - legislature is product of a certain social condition, determined by
whatever determines society
§ See Leslie Stephen, Science of Ethics - 'blue eyed babies' law would never be
passed, subjects would never submit to it
o Under British constitution, Parliament is a sovereign legislature
o Sole legal right of voters is to elect members of parliament - no legal means of initiating
or sanctioning, or repealing the legislation of parliament
• Will of the people legally expressed through parliament
• No legal authority on their own
o In a political sense, electors hold sovereign power, but legally sovereign power is
Parliament
o Parliamentary sovereignty defended on the grounds of history and democratic
majoritarianism
• Jeffrey Goldsworthy - The Sovereignty of Parliament: History and Philosophy (1999)
Doctrine of parliamentary sovereignty accepted due to:
o Logical/practical necessity to have single law making power
o With consent of subjects in parliament, king had absolute power to make law, subject to
God
o Parliament highest court in the land - make new laws, interpret and apply old ones
o If limited power, P could not take extraordinary measures for the protection of the
community in emergencies
o Every generation should be equally free to make and change law
o All subjects represented in parliament, deemed to consent
o P's decisions reflect collective wisdom of entire community
o King, Lords, Commons apply checks and balances to each other
o Judges could not be trusted with authority to nullify judgements of P
o To limit P's powers to prevent it from abusing them would be more dangerous than
probability of parliamentary tyranny
• Search for legal as well as political limits on power of Parliament
• TRS Allan - Law, Liberty and Justice: The Legal Foundations of British Constitutionalism (1993)
Solution that links Parliamentary sovereignty to representative democracy - cannot exercise in
undemocratic manner

20 | P a g e

 o Legislative supremacy - exercise of the political will of the electorate through the
medium of its parliamentary representatives
o Court's adherence to concept of sovereignty - commitment to democratic principle,
respect for legislative measures adopted by parliament as the legislative assembly
o Judicial obedience to statute is not based on authority of statute
• Reflects judicial understanding of what political morality demands - limits of
obedience based on boundaries of that morality
• Commitment to representative government, loyalty to democratic institutions, rule
of law are constituents of political morality
o If parliament was no longer representative, or legislation enacted undermining
democracy, political morality might result in judicial resistance
o Rights of the individual are basic to the political order - freedom from arbitrary rule,
uncontrolled by law
o THEREFORE, a statute which fundamentally threatens the central tenets of our
democracy does not derive authority from the doctrine of sovereignty
• Deeper constitutional morality:
o Held by some as residing within common law
o Common law constitutionalism - common law is identified as source of Parliament's
power, seen to constrain that power
o But argued by Goldsworthy that it is a bid to replace legislative supremacy with judicial
supremacy
• Parliamentary sovereignty in England also challenged by membership of EU - national laws
must yield to any directly enforceable law of the Union - R v Secretary of State for Transport;
Ex Parte Factortame Ltd (1990)
R (Jackson) v Attorney-General [2006] 1 AC 262
Issue:
Notion of common law constitutionalism, impact of EU on parliamentary sovereignty
Law: (per Lord Steyn)
• Dicey's account of doctrine of supremacy of parliament as out of place in modern
UK
• Parliamentary supremacy 'general principle of [British] constitution'
o 'Construct of the common law', principle created by judges
• If attempts to abolish judicial review or ordinary role of the courts, may be
'constitutional fundamental' that a sovereign parliament cannot abolish, but as
yet untested
• Adam Tomkins - Public Law (2003)
o Asserts that parliament has continued control over authority given to judiciary to apply
EU law
o No new category of constitutional statues different from ordinary statutes e.g. Magna
cart, Bill of Rights, Reform Acts, Human Rights Act 1998, that are not susceptible to
repeal from Parliament; as HELD in Thoburn v Sunderland City Council [2003] QB 151
• In Australia:
o Parliamentary sovereignty is understood in context of rigid limits, boundaries of
Australian Constitution - constraints imposed
• AV Dicey - Introduction to the Study of the Law of the Constitution (1885)
Dicey did not like legal codification of rights - inferior to system of rights protection based on
parliamentary government and the common law
o Constitution is pervaded by the rule of law
• General principles of the constitution are the result of judicial decisions determining
the rights of private persons in particular cases brought before the courts

21 | P a g e

 • Law of the constitution is not the source, but consequence of the rights of
individuals
• Constitution is the result of the ordinary laws of the land
o Common law courts and interpretation of statutes:
• Rigid legality is prominent in institutions - increases authority of parliamentary
sovereignty
• Should be supreme law of the land:
§ Commands of Parliament 'can be uttered only through the combined action
of its three constituent parts'
§ Bills passed into statute immediately become subject to judicial
interpretation, which is based on the words of the Act
§ English parliament has never exercised direct executive power, or appointed
the officials of executive government
• In Australia, James Spigelman - Statutory Interpretation and Human Rights (2008)
o Common law protection of fundamental rights is 'secreted within the law of statutory
interpretation'

Judicial Review and Contemporary Challenges
• Unwritten constitution of UK - parliament is supreme, assumed that legislation cannot be
questioned by courts
• If rigid, written constitution sets limits on legislative powers, transgression of limits is a legal
question, answered by a court
• Barry Friedman - The Will of the People (2010)
o Intention of US constitutional convention - to have courts review state laws to ensure
their conformity with national law, and Constitution
o Judicial review - to ensure that states complied with the law of the union, consistency
with the Constitution
Marbury v Madison 5 US (1 Cranch) 137 (1803)
Issue for determination:
Whether courts could grant writs to grant commissions to judges
Significance:
Whether there was a judicial power to review laws enacted by Congress
Held:
• Powers of the legislature are defined and limited
• 'If the courts are to regard the constitution and the constitution is superior
to any ordinary act of the legislature, the constitution, and not such
ordinary act, must govern the case to which they both apply'
• Framers of the constitution intended it as a rule for government of the
courts as well as the legislature
• 'A law repugnant to the constitution is void, and...courts as well as other
departments, are bound by that instrument'
Outcome:
Empowerment by Judiciary Act 1789 for the writs would give Supreme Court
original jurisdiction rather than appellate, therefore unconstitutional
In Australia:
Justice Fullagar - Principle accepted as axiomatic (Communist Party Case 1951);
s76(i) of Constitution - 'the High Court shall have original jurisdiction…(a) in all
matters arising under the constitution or involving its interpretation'

22 | P a g e

 • If statute enacted by Parliament that exceeds powers recognised by
constitution, or infringes express or implied constitutional limitations, HC
(but any court) has the power to declare it unconstitutional and therefore
invalid
• JR Lucas - The Principles of Politics (1966)
o Constitution ensures, by means of judicial review, that other organs of government
cannot disregard the principles it has set out - lays down limits
o Argued by some that sovereignty is vested in the Supreme Court
• Supreme Court takes generous view of interpretive powers
• Decisions of the Supreme Court are effective
o However, SC can only adjudicate disputed cases, and cannot promulgate laws in general
application on their own initiative
o Derives all authority from its role as interpreter of the constitution
Cooper v Aaron 358 US 1 (1958)
Facts:
Board in Arkansas school petitioned court for moratorium on further
implementation of school desegregation plan
Held:
• 'Law and order are not here to be preserved by depriving the Negro
children of their constitutional rights'
• Article VI of the Constitution makes the Constitution the 'supreme law of
the land'
• Marbury v Madison
o Constitution is the fundamental and paramount law of the nation
o 'It is emphatically the province and duty of the judicial department to
say what the law is'
• Constitutional ideal of equal justice under law applied in effect
Outcome:
SC held petition to be dismissed
•Alexander Hamilton - The Federalist (1987)
o The judiciary will always be least dangerous to the political rights of the constitution
o No influence on either the sword or the purse
o Has neither 'force nor will, but merely judgement'
o Must depend on the aid of executive arm of government for efficacy of judgements

Debate surrounding judicial review
• Adrienne Stone - Judicial Review Without Rights: Some Problems for the Democratic
Legitimacy of Structural Judicial Review (2008)
o Judicial review in overturning majoritarian governmental decisions held to have tension
with democratic theory
o Constitutional rights are controversial, legitimacy debated
o Judicial review:
• Justified because rights secure conditions needed for democracy
• OR opposed because of vague and general language used in rights, contested
nature of rights concepts
o Structural judicial review:
• Interpretation and enforcement of division of powers that is part of federal
constitutions, enforcement of provisions estabilishing basic institutions of
government

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 • Rarely objected against
• Stone argues that structural judicial review also results in judges making
evaluations and enforcing judgements in the face of majoritarian decisions to the
contrary
§ Raises same democracy based objections that arise with judicially
enforceable bills of rights
o Is there any reason to accept structural judicial review while opposing judicial review of
rights?
• Stone asserts that SJR for the purpose of enabling stable government
o Rights provisions of a constitution:
• Recognise rights by identifying special values or interests on which the state
cannot trespass
o Structural provisions:
• Driven by need to establish and enable government
• Lay down rules about how, where and when institutions of government operate
• E.g. division of power
o Australian constitutional law - large body of case law to:
• Resolve dispute between national government and states about legislative and
other powers
• Enforce separation of judicial power
• Review provisions governing eligibility for membership of federal parliament
o From British system, responsible government, little constitutional rights
o From US system, judicial review, federal system, separation of judicial power from
executive and legislative
o In Australia, proposals for constitutional rights are controversial, existing power of SJR is
rarely questioned
• May be said that courts have overstepped power, but never said that courts
should not have this power
o In US, practice of judicial review considered as a whole - both rights/structural:
• No express textual or clear historical foundation for judicial review
• Constitution contains structure and rights so controversy over both forms of
review
o In Aus/Canada:
• Judicial review initially incident of superiority of Imperial statutes over colonial
laws
• Continues existing tradition of structural review
o View held by some that constitutional rights are inconsistent with a commitment to
democracy:
• Rights as moral concepts - no precise meaning and therefore no agreed upon
method for resolution of moral questions, difficult to reason
• Rights expressed in abstract or general language - judges have wide discretion to
choose from competing constructions, may impose own views
• Judges have no special capacity to decide those questions
o Contra:
• Judges are poltiically insulated - superior protectors of rights of minorities
• Judicial enforcement of rights involves reinforcement of democratic values

Stephen Gardbaum - The New Commonwealth Model of Constitutionalism: Theory and Practice (2013)
Strengths and weaknesses of political constitutionalism
Strengths:
• Coherence with democracy

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 o Limits on power enforced through electoral accountability and structural checks and
balances such as parliamentary oversight of executive
• Legislative reasoning about rights is often superior to legal or judicial reasoning
o Tomkins and Waldron - high quality rights reasoning required focus on moral and policy
issues
• Need freedom from legalistic, distorting concerns of precedent, text, constraints
on judicial reasoning
o Elected representatives can bring diversity of views and perspective
Weaknesses:
• Understatement or under-enforcement of constitutional limits on governmental power
o Lack of sensitivity to rights of electoral minorities
o Under-enforcement of rights - other activities of parliament given prominence
• Importance of substantive justice to political legitimacy
o Richard Fallon - Democratic legitimacy is not exclusive source of legitimacy in
parliamentary democracies
o Mattias Kumm - need substantively reasonable public justification for all governmental
acts, including legislation, that burden individual rights
• Political constitutionalism provides no adequate forum for scrutiny of justification of piece of
legislation in terms of public reasons

Strengths and weaknesses of legal constitutionalism
Strengths:
• Fosters public recognition and consciousness of rights
• May help to protect against under enforcement of rights from blind spots/pathologies
o Judges are in better institutional position - do not have to worry about being re-elected
o Decide cases upon concrete facts, can be more context specific and applied rather than
being general
• Essential to overall legitimacy of a constitutional democracy
o See Fallon/Kumm arguments
Weaknesses:
• Under-enforcement due to judicial pathologies
o Rights related timidity - do not want to be responsible for consequences
o Lack of policy expertise, and assessing justifications for limiting rights
o Artificial, legalistically constrained nature of judicial reasoning about right
o Lack of diversity of perspectives among the judiciary
o Argument that judicial review provides an additional safety net of rights protection, but
political rights review may be reduced or bypassed due to a reliance on the courts
• May lead to the overstatement or over-enforcement of constitutional limits on governmental
power - Lochner weakness
o Artificially limiting scope of governmental power, serving substantial injustice
• Reliance on ex post regulatory mechanisms
o Abstract judicial review
• Weaknesses in judicial modes of rights deliberation
o In judgement, resolution become authoritative, highest court will speak for society as a
whole
o Legal conception of rights may be over-emphasised at the expense of moral and political
• View that legal constitutionalism 'gives an electorally unaccountable committee of experts
unreviewable power to decide many of the most important and weighty normative issues'
faced by democratic systems (Gardbaum's conclusion)
o Still significant disagreements in society regarding rights, even with Bill of Rights

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Characteristics of Australian Constitutionalism
Robert French - The Future of Australian Constitutionalism (2009)
• Australian constitutionalism derived from written constitutions of Cth and states, and
unwritten conventions, and the common law
o AS WELL AS acceptance of those things by institutional actors and wider society -
necessary part of constitutionalism
• Constitutional guarantees are freedoms rather than rights
o No constitutional or statutory bill of rights
o Common law freedoms protected by conservative rules of statutory interpretation
• Subject to parliamentary override
• Justiciable constitutional guarantees - conditions on legislative power rather than enforceable
rights
o Trial by jury s80
o Freedom of religion s116
o Freedom from discrimination by one state against residets of another s117
o Prohibition against civil conscription in laws regarding provision of medical and dental
services s51(xxiiA)
o Just terms for acquisition of property s51(xxxi)
o Freedom of trade, commerce and intercourse among states s92
o Right of state to use water or rivers for conservation or navigation s100
o Implied freedom of political communication
o Franchise and elections
o Non discrimination in trade, commerce, revenue
• Legal constitutionalism:
o Depends on justiciable constitutional limits on governmental power
• Federal distribution of powers
• Express constitutional prohibitions and guarantees
o Dicey - 'federalism means legalism - the predominance of the judiciary in the
Constitution - the prevalence of a spirit of legality among the people'
o Litigation brought by non-state actors invoking constitutional guarantees
• E.g. Wurridjal v The Commonwealth (2009) - just terms requirement applies to
acquisitions made under s122
• Lame v Morrison (2009) - military courts established by Cth parliament offends Ch
III of constitution
• Ch III features prominently in these cases
o Constitutional adjudication largely accepted as legitimate by governments and wider
Australian society
• International Finance Trust Company Ltd v NSW Crime Commission [2009] -
remedial legislation enacted few weeks after decision handed out that ex parte
review unconstitutional
• e.g. Communist Party Case (1951) - acceptance part of a long tradition
• May be criticism of decisions, e.g. after Mabo and Wik
• Plaintiff S157/2002 v The Commonwealth (2003) - limitations and exclusions by
govt. on judicial review of asylum seeker decisions, held by court that this was not
excluded by act, accepted and adjustment made
• Political constitutionalism:
o Co-operative federalism
• Argues for possibility that it is extra-constitutional central power - contributes
towards centralisation
• Driven by political imperatives
• May overshadow expansive judicial interpretations of commonwealth power

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 o Mechanisms of cooperative federalism:
• Reference of powers to make laws by states, to Cth
• Enactment by one state of a model law, implementation coordinated nationally by
representative national body
o Constitutional development outside the framework of adjudication

The Common Law and the Rule of Law
Saunders and Le Roy - Perspectives on The Rule of Law (2003)
• Parliament
o Parliament is central to the rule of law
o Owen Dixon - emergence of institution of parliament representing the people, was
mechanism to bring the power of the crown under control, along with common law
courts
o Potential for arbitrary decision making limited
o Sovereignty - subject to any Constitution, Parliament had ultimate power
• Legislative overrides executive power
• Falls to court to declare limits of executive power and to decide whether they
have been transgressed
o However, parliament with absolute power can enact arbitrary or personal laws, exempt
governments from law and oust the jurisdiction of courts
o Dicey - once legislation is made, the role of parliament over, falls to courts to apply and
interpret statues in accordance with Parliamentary intent
o Responsible government - executive drawn from parliament must command support of
majority in the lower house
o Courts are impediment to exercise of public power between elections
o Paradox - rule of law depends on Parliament, but Parliament is also a threat to it
o System depends on:
• Self restraint in the interest of constitutionalism by P
• AND informed and vigilant citizens
• Courts
o Rule of law - independent arbiters of legal norms
o Determine disputes over lawfulness of executive action
o Interpret and apply legislation, impartial application of law, protect substantive rule of
law values
o Courts are most vulnerable branch - depend on other institutions for appointment and
resources
o Importance of public support for decisions
• If no support, rule of law falters
o Contradictions:
• Through precedent, courts make laws
• Rule of law requires legislation to be known, clear, certain and prospective
• However, are often retrospective in effect
o Rule of law depends on judges' vigilance and self restraint
o David Dyzenhaus - argues for deference on the part of the courts to parliament in the
context of administrative law
• Constitutions
o Rule of law assumes limits on public power
o Acceptance of Constitution depends on belief in the value of adherence to law itself
o C inhibits practices that might affect the public perception of judicial independence
o S75(v) provides some protection for judicial review of executive action

27 | P a g e

 o CONTRA to ROL, Constitution does not preclude retrospective legislation, implications
for arbitrary power are unclear
o 1990's - legislation designed to oust jurisdiction of the courts, but resolved through
s75(v)
o Constitutional separation of judicial power precludes administrators from determining
the scope of their own authority
o In Aus, executive branch alone makes judicial appointments

CLASS NOTES
UK - quintessentially political constitutionalism
US - legal constitutionalism

Senate is representation of federalism

Political and legal constitutionalism - which is better for rule of law
• Does political or legal constitutionalism better achieve the rule of law?
o Define P, L, ROL (Dicey's three limbs, Tamanaha)

Paraphrase quotes

Dicey:
1. No one above law - equality
2. Punished only by law - arbitrariness
3. Const. consequence not source of rights

Tamanaha:
1. Formal legality
2. Limited government - equality
3. Rule of law not man - arbitrariness

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INDIGENOUS SOVEREIGNTY AND CROWN SOVEREIGNTY
Overview
• Competing source of authority to sovereignty of the Crown - diverse patterns of belief and
power expressed through the traditions and practices of Indigenous people
• Mabo v Queensland (No 2) (1992) 175 CLR 1 (per Deane and Gaudron JJ)
o 'At the time of the establishment of the Colony of New South wales in 1788, there
existed, under the traditional laws or customs of Aboriginal peoples in the kaleidoscope
of relevant local areas, widespread special entitlements to the use and occupation of
defined lands'
• Need to examine interrelationship of legal domains - common law, statute, Constitution,
international law, traditional legal systems
• Milirrpum v Nabalco Pty Ltd (Gove Land Rights Case) (1971) 17 FLR 141 - Blackburn J
o Confirmed that Yolgnu people occupied their territory and lived their lives according to a
stable and ordered legal system
o Foundation for legislative developments - Aboriginal Land Rights (Northern Territory) Act
1976 (Cth)
• Authority of Aboriginal traditional owners to decide what happens on their land
• Recent push towards treaty and constitutional change
o Indigenous people seeking to exercise greater decision making authority over their lives
o E.g. ATSIC - governmental organisation from 1990 to 2005 - resources and decision
making capacities
o Deployed principles from international law to domestic legal and political settings e.g.
Declaration on the Rights of Indigenous Peoples

Sovereignty and self determination
• Aboriginal and Torres Strait Islander Social Justice Commissioner - Native Title Report 2002
o Mabo - terra nullius overturned because it failed to recognise the social and political
constitution of Indigenous people
• BUT premised on supreme power of the state to the exclusion of any other
sovereign people
• Characteristics of indigenous sovereignty erased from developing law of native
title
o Yorta Yorta and Miriuwung Gajerrong - assumption that the nature of the power
asserted by the colonising state is singular, total and all encompassing
• Yorta - illustrates how native title limited recognition to rights and interests, not
the laws and customs which they emanate from
o Recognition of native title based on a pre-sovereign system of laws
• Based on a particular concept of sovereignty that limits recognition of
contemporary expressions of Indigenous culture
o Evolution of principle of self-determination at international law
• Challenges notion that non-Indigenous have exclusive jurisdiction over traditional
land
• Challenges the assertion of paramount control by one group to the exclusion of all
others
• RS French - Native Title - A constitutional shift? (2000)
o Could be agreement between Cth and Indigenous setting out aspirational goals, act of
recognition or acknowledgement that does not involve compromising sovereginty
o Could acknowledge:
• Traditional laws and customs of Indigenous
• Prior occupancy of continent

29 | P a g e

 • Historical relationship with country
• Maintained and asserted traditional rights to the present time
o Sovereignty under traditional law and custom - would have meaning 'in the universe of
discourse' - to them

The question of sovereignty
• Brennan et al - Treaty (2005)
o Argument that treaty making with ATSI inconsistent with Australian sovereignty because
of 'recognition of another sovereignty, a nation within Australia'
o Sovereignty is an issue of political and legal authority
• Traditional conception as absolute and monolithic, fortress against social chaos
• Bodin - 'concentration of supreme power in as few hands as possible'
• Generally, sovereignty is about power and authority to govern
o External sovereignty - who has the power on behalf of another to deal externally with
other nations
o Internal sovereignty - how and where power is distributed within a nation's boundaries
o Distinction between sovereignty being:
• vested in institutions e.g. parliaments or governments
• possessed by the people
o Distinction between sovereign with absolute and irrevocable power and sovereign with
more qualified power
• Sovereignty may be divisible, capable of being shared or pooled across different
people
o Shared sovereignty does not eliminate conflict, but can manage conflict and build
relationships
• E.g. federal systems
o Indigenous:
• View that they were sovereign before Australia was colonised, S was never
extinguished, remains intact today - Mansell
• Arguably rules for the way territory could be taken under international European
law were not applied, therefore sovereignty retained
• Irene Watson - ATSI were sovereign peoples, practiced S differently from
European nation states
§ Obligations to law rather than monarch/god
§ Responsible for maintenance of country for benefit of future
• Dimension of sovereignty as control of Aboriginal people over their own lives and
destiny
• External sovereignty:
§ 1992 - model for Aboriginal nation - total jurisdiction over communities to
the exclusion of others
§ Treaty '88 - sign treaty as sovereign nation
• Larissa Behrendt - recognition of sovereignty is a vehicle by which other rights can
be achieved, inclusion in democratic process
§ Importance of exercising autonomy both as individual and as community
• Indigenous view of sovereignty resting with people, not institutions - inherent
power to determine futures
• Importance of self-determination
§ Noel Pearson - local indigenous sovereignty could exist internally within
nation state as long as rights to self-determination accorded
• Different conceptions ranging from challenging authority of Australian statehood
to re-negotiating place of ATSI within Australian state

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 o Government:
• John Howard - countries make treaties with other nations, treaty would give
impression of two separate nations
§ Analogous with Bodin's view of absolute sovereign, internally indivisible
§ Preference for practical reconciliation, equal citizenship
• Argued by Lisa Strelein - focusing on citizenship is difficult obstacle for Indigenous
people - self determination is more than political rights of participation
§ Construction of sense of national identity and unity, but this is done by
exclusion and 'coercive universalism'
• WA govt. - Statement of Commitment (2001)
§ ATSI people have continuing rights and responsibilities
§ Traditional ownership, connection to land and waters
• In Canada, policy of self-government
§ Does not confer sovereignty in external, international law sense
§ Indigenous people remain subject to Canadian laws, but can coexist with
their own
o Courts:
• HC - idea of popular sovereignty as source of authority for Australia's
constitutional framework
§ Supported by s128 of constitution - amendment of the constitution by the
Australian people voting at a referendum
§ BUT indigenous are part of constituting force of nation
§ Legitimacy of nation depends on Indigenous acceptance of the Constitution,
as much as that of non-indigenous
• Can alter Constitution according to s128 to give effect to treaty process or other
changes to system of law
• HC - stated that cannot determine the question of A's int'l statehood, or original
acquisition of sovereignty but the Crown
§ BUT can determine consequences of acquisition
• Coe v Commonwealth (1979)
§ P claimed that A people were a sovereign nation, B wrongly asserted
sovereignty over Aus.
§ Sir Harry Gibbs - A people 'have no legislative executive or judicial organs by
which sovereignty may be exercised', and even if, 'would have no powers'
other than those conferred by Cth or states
• Assumptions rejected by Mabo
§ Held that ATSI people's systems of law and governments were recognisable
by Aus. legal system when B claimed sovereignty
§ Rights and interests under their laws and traditional customs, in area of
land, survived acquisition of B sovereignty
§ Brennan J - colonisation process characterised as 'change in sovereignty'
• Coe v Commonwealth (No 2) (1993)
§ Assertion of sovereign nation of Wiradjuri people
§ Held by Mason CJ that not entitled to 'any rights and interest other than
those created or recognised by the laws of the Commonwealth, the State of
New South Wales and the common law'
• Members of the Yorta Yorta Aboriginal Community v Victoria (2002)
§ Majority - Indigenous people's right to land, including native title, continue
to have legal effect only because they are recognised by the Australian legal
system

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 § Could not be parallel law making system in territory over which B asserted
sovereignty
• Canada - courts have adopted interpretive framework based on reconciling Crown
sovereignty with history of prior occupation by Indigenous peoples
• US - Indigenous people held to have been sovereign prior to the British, this was
not extinguished in the eyes of US law - retained sovereignty
§ Denominated domestic dependent nations
• NZ - sovereignty in NZ now resides in Parliament
§ Asserted by CJ Joe Williams of Maori Land Court that Treaty of Waitangi
entered into should either by accommodated by English views of law, or it is
worthless
• South Africa - traditional laws and customs integral part of national law
o Conclusions:
• Acquisition of crown sovereignty over the continent is matter for int'l law
• Consequences of this for internal distribution of authority and rights is a matter
for the domestic legal and political sphere - Mabo
• Whether popular sovereignty is valid or not, Constitution can be changed by
referendum of the people - s128
§ Shift from legal conception of sovereignty to political
• Debates over sovereignty can go on, in the meantime, renegotiate or revisit
fundamental settlement between peoples
o Treaty debate - political agreements that have legal consequences
• May put aside questions of sovereignty for treaty discussions

Self Determination
• Approach to indigenous affairs policy by government in 1972-1996
• Right of self determination is recognised at international law, supported by UN Declaration on
the Rights of Indigenous Peoples (2007)
• Will Sanders - Towards an Indigenous Order of Government (2002)
o Self determination replaced concept of assimilation
o Principle in UN Charter 1945, ICCPR, Declaration on the Granting of Independence to
Colonial Countries
o Change to self-management in late 1975
• Unease with embracing central international law, human rights concept as key
term of domestic legal affairs
• Emphasis on responsibilities as much as rights
o Royal Commission into Aboriginal Deaths in Custody (1991) - recommended that self
determination principle should be applied in policies or programs affecting Aboriginal
people
o Howard government - retreat from self-determination
• Focus on practical matters, overcoming disadvantage, better outcomes for A
• During self-determination era, view that Indigenous peoples' organisations are best placed to
address Indigenous problems
• Indigenous also support local level of organisation and representation
• Janet Hunt - Self determination, mainstreaming and indigenous community governance (2008)
o Self determination constrained by:
• Complex federal legislative and policy context
• Lack of economic independence
• Poor education levels of Indigenous people
• Limited national efforts towards Indigenous capacity building
o Howard government - practical reconciliation

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 o COAG in 2000
• No agreed national plan
• Eventual abolition of ATSIC in favour of direct partnership with Indigenous
communities
• Emphasis on Indigenous self-responsibility and mutual obligation
o Self determination --> shared responsibility
• Northern Territory Emergency Response - government imposed measures applied to remote
Aboriginal communities
• Rudd/Gillard - closing the gap rather than self-determination
o BUT previous opposition to UN Declaration on Rights of Indigenous Peoples
o Not a binding statement of international law - unenforceable declaration of values by
UNGA
• UN Declaration on the Rights of Indigenous Peoples 2007
o Article 3 - 'Indigenous people have the right to self-determination. By virtue of that right
they freely determine their political status and freely pursue their economic social and
cultural development'
• Internal aspects of self-determination
o Article 37 - 'Indigenous peoples have the right to the recognition, observance and
enforcement of treaties, agreements and other constructive agreements…'
o Article 46 - 'Nothing in this declaration may be interpreted as...authorising or
encouraging any action which would dismember or impair totally, or in part, the
territorial integrity and political unity of sovereign and independent states'
• Davis - catch all provision to arrest state fears about implications of recognition of
cultural rights for legal systems, and concerns about the rule of law
• Megan Davis - Indigenous Struggles in Standard Setting (2008)
o States that objected to Declaration were concerned about state sovereignty and
territorial integrity
o Effective argument for Indigenous - evolving right of democratic governance in
international law
• Self-determination as right of peoples to determine their political destiny in a
democratic fashion
• Self-determination facilitating special political arrangements, without disrupting
public institutions or the rule of law
o Themes - threats to survival of indigenous people, cultural, religious, spiritual and
linguistic identity, education and public information, participatory rights, land and
resources
o Aspirational instrument
o Underlying principles - participation, education and consultation
o Public institutions can use this to frame their engagement with indigenous communities
and in the development of laws and policies that impact upon Indigenous
• Davis
o Self determination right focuses too narrowly in Australia on land rights and political
institutions - state centric
o Self determination should also be managed internally, in regard to Aboriginal women,
gender equality and violence

Treaty and agreement making
Aboriginal Peoples
• 1967 referendum - deleted negative references to aboriginal people in the C but put nothing in
that place

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 o Extension of s51xxvi power to Aboriginal peoples, removed discriminatory reference to
census of A people in s 127
• Broader reforms desired:
o Negotiation of a treaty
o Recognition of A customary law
o Creation of dedicated seats in Fed Parliament
o Realisation of A sovereignty and self determination
o Insertion of new preamble into Aus. constitution recognising A people (failed
referendum 1999)
• Council for Aboriginal Reconciliation - Reconciliation: Australia's Challenge (2000)
o National strategies - overcoming disadvantage, achieving economic independence,
sustaining the reconciliation process and recognising Aboriginal and Torres Strait
Islander rights
o Need for education and community awareness
o Should set performance benchmarks that are measurable, agreed in partnership with A
people and are publically reported
o Raise desirability of treaty process
o Few of these recommendations have been implemented
• ATSIC abolished in 2005, but replaced by other bodies, current - representative body called
National Congress of Australia's First Peoples
• Brennan et al - Treaty (2005)
o Indigenous people continue to suffer from socio economic problems, rights and interests
often not protected even in situations where there are treaties
o However, treaties can:
• Introduce notions of rights and sovereignty
• Allow rights to be seen in a more holistic way
• Create more accountability by governments for the promises made in treaties
• Lead to accommodation of shared sovereignty, fundamental relationship or
government to government dealing within a constitutional structure
§ Recognition of agreement to coexist
• Process is slow, complex and expensive
§ BUT means of managing conflict rather than removing disadvantage
altogether
§ Underlines need for public debate
o Treaty is only as good as the underlying relationship and preparedness of each side to
honour its commitments
o Attempt to express relationship between coloniser and colonised in unique terms
o Principles of interpretation needed to give legal force to treaty provisions
• Should take into account how each side understands terms of agreement
o Legal position of Indigenous should also continue to be shaped by constitutions, bills of
rights, legislation, court decisions and government action
o Treaties can promote economic development and tackle social problems in Indigenous
communities
o Questions to consider:
• Who will be parties to negotiations
• What processes will be adopted
• Umpire/enforceable rules during negotiations
• Legal effect of outcomes
• How this will be financed

Canada

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 •Brennan et al - Treaty (2005)
•Different types of treaties:
o Peace and friendship
o Land surrender
• Ceded settlement areas in return for compensation
o Numbered treaties
• Actual text rarely reflected guarantees given to Indigenous nations, that way of life
and political and legal independence would remain undistorted
• Courts recognise these as legally enforceable agreements
o Use of generous rules of construction
o Textual ambiguities resolved against the Crown
o Treaties construed as Aboriginal people themselves understood them
• Treaties were instruments of empire, but also instruments of agency, self government and
sovereignty for Indigenous peoples
• Renewed importance of negotiation to reach treaty settlements
o Intent to negotiate
o Confirming readiness of the parties
o Framework agreement
o Agreement in Principle
o Final Treaty
o Implementation
• Takes a long time, most stuck at d or e
o Interim measures, but this may further hinder process, prolong it
o Expensive process
• Maintaining support from all sides of the process is difficult
• Agreements to be reached that keep legalism and bureaucracy under control, minimise
distance from grassroots

Agreement Making in Australia
• Expert Panel on Constitutional Recognition of Indigenous Australians - Report of the Expert
Panel (2012)
o Need for governments to sit down with 'traditional owners of this land and negotiating
agreements with them about how we live together in this land'
o Options:
• Treaty entered into on sovereign to sovereign basis
• Agreements with constitutional backing
• Agreements enforceable as contracts
• Agreements with statutory backing
o History:
• 1835 - Batman Treaty - declared void by govenor Richard Bourke - Wurundjeri
people did not have a right to deal with land that belonged to the Crown
• Williams v Attorney General for NSW (1913) - Isaacs J - Bourke gave 'practical
application' of doctrine that Crown had acquired full legal and beneficial
ownership of all the lands of Australia
• 1977 - National Aboriginal Conference - working towards a treaty agreement
§ Rights to land
§ Protect identity, languages, law, culture
§ Compensation for loss of and damage to way of life, traditional land
§ Right of ATSI to control own affairs, establish own associations to do this
• 1983 - Proposal by Senate Standing Committee

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 § Preferred method of legal implementation of a compact - insert into
Constitution a provision similar to section 105A
§ Would allow broad power to Cth to enter into compact with representatives
of A people
• 1988 - Constitutional Commission - should not alter constitution until an
agreement has been negotiated
• 2000 - Council for Aboriginal Reconciliation - called for legislation to be enacted to
resolve unresolved issues of reconciliation
o Langton and Palmer
• Aboriginal people have been subjected to 'imposed administrative solutions'
• Should be renewed focus on treaty or agreement that gives rise to mutually
binding obligations
o Agreements:
• Aboriginal Land Rights (NT) Act 1976 - agreements relating to mining and
extraction etc. companies and Aboriginal people, some have statutory statuus
• Consent determinations under Native Title Act 1993 (Cth)
§ Amended in 2009 - Fed. court can make orders about matters beyond native
title
§ s24EA - Indigenous land use agreements can be negotiated whether or not
native title has been held to exist
• 2004 - Vic and Yorta Yorta people entered into cooperative management
agreement for management of their country
• Traditional Owners Settlement Act 2010 (VIC) - out of court settlement of native
title, delivery of land justice - alternative to court processes
• Cth govt. - regional partnership agreements for uniform investment strategy
across region for ATSI
o Oxfam - change in Aus. constitution would allow constitutionally supported agreements
with ATSI, can 'rebuild and truly reset' the relationship to agreement and participation
rather than imposition
• E.g. Ngarrindjeri agreement with SA govt.

CLASS NOTES
Definition
HC - idea of Popular sovereignty as source of authority for Australia's constitutional framework
§ Supported by s128 of constitution - amendment of the constitution by the Australian people
voting at a referendum

Example of Bikie laws:
• Political constitutional model - politically unpopular therefore would change
• Legal constitutional model - laws struck down
o Moves slowly

Sovereignty in Australia
Key concepts:
• Constitutions
• The rule of law
• Political and legal constitutionalism
• Australia's Washminster blend
• Parliamentary sovereignty
• Judicial review

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Moving forward:
• History
• Concepts of sovereignty
• Current debates

1. Sovereignty
What is it?
o Power/authority
o External recognition
o People and institutions
o Self-determination, management
o Autonomy
o Legitimacy
o Bodin - concentration of power in as few hands as possible, omnipotent, monolithic
Where is it?
o Executive - crown, GG, PM, cabinet
o Parliament
o People
o Courts
o States - federalism
2. Crown sovereignty
o Acquiring sovereignty
3. Indigenous Sovereignty
o External perspective
• Territorial integrity
• Who has sovereignty in Australia
o Internal perspective
• Within state
• Within people - rights to continue own traditions, culture, identity
o Self-determination
• UN Declaration on the Rights of Indigenous People (DRIP) 2007 - self-
determination heralded as the master right
Ideas:
o Community
o Land
o Inherent in people
o Recognition
o Governance
o Freedom and autonomy, equality
o Identity
o Culture and traditions
Why use the language of sovereignty:
o Power/authority
o Independence
o Differentiation
o History
o First Australians
o May be problematic, distracting focus - standing in the way of actual outcomes
o Or good unifying principle to rally behind
4. Tensions? Resolutions? Mabo and beyond

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 5. International approaches

Does the issue of sovereignty pose a legal roadblock to a treaty process?
Putting aside the popular rhetorical conception of sovereignty espoused by John Howard, which
forms a substantial political roadblock in the process, there are a few issues to examine with regard
to sovereignty and its effect on the treaty process. According to the Brennan reading, the view of the
High Court in respect of the issue of the original acquisition of Crown sovereignty upon settlement is
that this is settled and beyond the scope of determination for the Court, and indeed a matter for
international law. Recent cases such as the Yorta Yorta proceedings and Coe v the Commonwealth
have shown that rights to land, including native title, may appear to be a step in the right direction
towards self-determination and some form of Indigenous sovereignty, but are dependent on
common law recognition of those rights, and any legislative action of Commonwealth or State
parliaments may extinguish them. It seems that this detracts from both the substantive and symbolic
significance of decisions such as Mabo in the quest for the negotiation of a treaty agreement with
Indigenous Australians.

The readings also raised a very interesting point about Aboriginal people being subjected to
'imposed administrative solutions' (Langton and Palmer in the Expert Panel report), which brings to
mind the Northern Territory Intervention scheme as a very practical example of how Crown
sovereignty may actually be wielded against the interests of Indigenous Australians in a
contemporary context. While the scheme does achieve some very important outcomes in the way of
objectives such as the protection of children, the perception held by some of the affected
communities is that this was undertaken without consultation and due process and has actually
served to undermine any sense of autonomy and right to self determination, as well as the retention
of cultural identity.

However, this doesn't seem to be an insurmountable barrier to the process of developing a treaty to
work towards further recognition of Indigenous rights and autonomy within Australia. The Brennan
article raises the very valid point that the issue of sovereignty may be put aside in favour of more
substantive and practical solutions that work towards furthering modern reconciliation processes
and providing greater rights to self-determination and autonomy for Indigenous Australians. It also
appears that some of the issues highlighted by the Expert Panel on Constitutional Recognition of
Indigenous Australians as important for inclusion in a treaty, such as protection of Aboriginal
identity, language, and culture, are not directly affected by questions of sovereignty, but are equally
as important in the path towards self-determination. Measures such as consultation panels with
Indigenous communities should continue to be utilised, as they are an important step on the way to
the development of a more concrete legal treaty agreement that not only recognises rights and
interests, but laws and customs as well.

As the Native Title Report 2002 puts it, recognition of rights and interests, as achieved by native title,
was emphasised, rather than laws and customs that they were sourced from.

http://journal.anzsog.edu.au/publications/3/2012Issue3Final.pdf

• HC has held that it cannot re-examine established crown sovereignty, just implications
• Popular sovereignty - Indigenous are part of the people therefore hold some form of
sovereignty
• Put it aside and focus on substantive implications for reconciliatory process

Pasted from <http://moodle.telt.unsw.edu.au/mod/forum/discuss.php?d=106147>

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INDIGENOUS PEOPLE, VOTING AND THE CONSTITUTION
Race and the Australian Constitution
• Report of the Expert Panel, Recognising Aboriginal and Torres Strait Islander Peoples in the
Constitution (2012)
o Quick and Garran (1901)
• Constitution - outcome of exhaustive debates, heated controversies and careful
compromises
• C represents aspirations of Australian people insofar as this is consistent with
solidarity of British Empire
o Imperial Act preamble to the constitution - makes no reference to Aboriginal people
• Constitution itself contains no preamble
o Purpose of s127 - to prevent WA and QLD from using large A populations to gain extra
seats, and larger share of tax revenue
o Purpose of s25 - designed to penalise, by reduction of federal representation, states that
did not enable A franchise
o Sections where no. of people in Cth was important
• s24 - membership of HOR distributed among states in proportion to numbers of
people
• s89/93 - allocation of Cth expenses in proportion to population
• s105 - population proportion method for takeover of state debts
o Purpose of s51(xxvi) - to authorise the enactment by Cth of racially discriminatory laws
(as per Convention debates)
• Edmund Barton (1898) - race power necessary for Cth to have power to 'regulate
affairs of coloured or inferior races who are in the Commonwealth'
• Sawer (Now) - widespread attitude of superiority of whites to coloured people,
thought that welfare of coloured people was not important
• Harrison Moore (1910) - intended to regulate and confine races migrating into
Australia and ensure they returned back home quickly
o Debate about whether powers of 'internal management of coloured persons' should
remain with state or be given to Cth
o Chief Justice Robert French (Now) - battles of race power - 'sounds of an out-dated, false
and harmful taxonomy of humanity'
o Quick and Kingston - need laws to keep coloured races out, but once admitted, they
should be treated fairly and given all the privileges of Australian citizenship
• French - radically liberal view at the time
o Original Commonwealth Bill in 1981 - equal protection of the laws provision
• Changed to section 117 - person shall not be subject to disability or discrimination
in other states
• Change due to desire for discrimination based on colour - Henry Higgins
o No delegate at convention suggested there might be obligation to A people
o ATSI not able to vote for delegates to constitutional conventions
• No evidence they participated in drafting of constitution
o Professor Megan Davis - exclusion from framing of constitution - continued pattern of
marginalisation and systematic discrimination, enduring consequences

20th/21st century developments
Aboriginal Peoples and the Constitution
• 1901 - Aboriginals in WA and QLD excluded from franchise, but four states did not have this
• S41 of Constitution - to preserve rights of enfranchised women in WA and SA

39 | P a g e

 o No adult entitled to vote at state elections should be prevented from voting at federal
elections by any law of the commonwealth
o Narrow interpretation treating s41 as transitional provision to only regulate franchise at
first federal election in 1901
• Quick and Garran (1901)
• Accepted by HC in R v Pearson; Ex parte Sipka (1983) 152 CLR 254
o Electoral handbook amended in 1912 to state that s41 does not entitle people to vote if
name not on Cth electoral roll
• Voting right of A thus taken away in 'unlawful...interpretation of s41' - Stretton
and Finnimore (1993)
• Commonwealth Franchise Act 1902 (Cth) - extended franchise in Cth elections to women
o Proposal to extend to A people, rejected and defeated
o Isaac Isaacs - A people 'have not the intelligence, interest or capacity' to vote
o s4 specifically denied voting rights of A people unless part of s41 exception
• Commonwealth Electoral Act 1918 (Cth) - amended in 1962 to extend suffrage to adult A's
o 1949, insertion of s39(5)(a) - extended right to vote in federal elections to all A people
entitled to vote for lower house of state parliament
o 1983 - amended to make enrolment for and voting in federal elections compulsory for
Indigenous - move towards full equality
• Commonwealth Electoral Act 1962 - franchise extended to Aboriginal people
o Parliamentary committee had held that s41 did not permit Cth to withdraw electoral
rights from people the states grant them to
• 1967 - changes to the Constitution
o When enacted, did not reflect A interests or aspirations
o Operative provisions premised on exclusion or discrimination against A people
o s51(xxvi) - power of Cth to make laws with respect to the people of any race, DEL 'other
than the Aboriginal race in any state, for whom it is deemed necessary to make special
laws'
• However did not insert anything in its place - Constitution is silent with respect to
A people
• Cth may be enabled to pass laws that impose a disadvantage
• Open words of this provision, may be racially discrimination behind it
• Brennan J - affirmation of the will of the Australian people that the odious policies
of neglect and oppression of Aboriginal citizens to be at an end, primary object of
the power is beneficial
o DEL s127 - 'In reckoning the numbers of the people of the Cth, or of a State or other part
of the Cth, A natives shall not be counted'
o s25 left untouched - lowers population count of a state if that state disqualifies people
of a particular race from voting
• Acknowledges that A people may be disqualified
• Report of the Expert Panel, Recognising Aboriginal and Torres Strait Islander Peoples in the
Constitution (2012)
o Mabo v Queensland (No 2) (1992) - held that unjust and discriminatory doctrine of terra
nullius could no longer be accepted
o Noel Peterson - Mabo most critical event in overturning racial discrimination against
Indigenous
• Recognises A law and custom as a source of law
• However, Aboriginal law remains unrecognised
• Called for constitutional protection against racial discrimination
o Interpretation of altered race power after 1967

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 • HC in 1982 - power wide enough for P to make laws to regulate and control people
of any race if the 'constitute a threat or problem to the general community'; and
to 'protect the people of a race' if there is a need to protect them
• Robert French
§ Nothing in s51(xxvi) to prevent adverse application to Australian citizens on
the basis of race
§ Established proposition that power may be used to discriminate against or
for the benefit of the people of any race

Reform: Constitutional Recognition
• Goal of JH - to insert new statement of reconciliation into preamble of Constitution
o Opposed to apology to Stolen Generations
• KRudd - National Apology to the Stolen Generations (2008)
o Sought bipartisan support for the 'constitutional recognition of the first Australians'
• State recognition - NSW, Qld, SA, and VIC:
o Constitution Act 1975 (Vic) (pg. 1356)
• S1A(1) - events in preamble without consultation, recognition or involvement of A
people
• (2)(a) unique status as descendants of Australia's first people
• (2)(b) relationship with traditional lands
• (2)© contribution to identity and wellbeing of Vic
• (3) - not intended to create legal right or affect interpretation of Act
• JG - proposal for referendum on Indigenous Constitutional recognition, did not eventuate but
built public awareness of the issues
• Report of the Expert Panel, Recognising Aboriginal and Torres Strait Islander Peoples in the
Constitution (2012)
o Found need and strong public support for changes
o Recommended broader changes be made to section of the C that still permit
discrimination based on race
o Principles - proposals should:
• Contribute to a more unified and reconciled nation
• Be supported across political spectrum
• Be of benefit to and accord with the wishes of ATSI people
• Be technically and legally sound
o Should also include declaratory languages provision
o Recommendation that Aus should move on from history of constitutional non-
recognition of ATSI
o Affirmation that racially discriminatory laws and executive action have no place in
contemporary Australia
o Discussion of bill or statement of rights is outside their mandate
o Support for racial non-discrimination provision, arguments in favour of racial equality
• Should be qualified:
§ Can make laws to overcome disadvantage, mitigate effects of past
discrimination
§ Can make laws to protect cultures, language and heritage of any group
o Support for binding agreements between ATSI and governmental and non-govt. parties
• Treaties, agreements with constitutional backing, contractual agreements,
agreements with statutory backing
o Final Recommendations:
• Section 25 should be repealed
• Section 51(xxvi) should be repealed

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 • Add in new section - section 51A

• Add in section 116A

• Add in section 127A

CLASS NOTES
Radical title - Australia owned by British crown
Beneficial title - extinguished by the crown - asserting ownership of land; BUT continued - native title

Noel Pearson - 'From negative citizenship to neutral citizenship to the potential for positive
recognition'

Original s51(xxvi)

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 • S51 - 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:
…
"(xxvi) The people of any race, other than the aboriginal race in any State, for whom it is
deemed necessary to make special laws

Framers' view on race:
• The commonwealth should have the power to regulate the affairs of the people of coloured or
inferior races who are in the Cth - Edmund Barton
• It is of no use for us to shut our eyes to the fact that there is a great feeling all over Australia
against the introduction of coloured persons. It goes without saying that we do not like to talk
about it but still it is so - John Forrest
• BUT:
If you do not like these people you should keep them out, but if you do admit them you should
treat them fairly - admit them as citizens entitled to all the rights and privileges of Australian
citizenship - Charles Kingston

Timeline:
• Day of mourning 26 Jan 1938
o 150 years after settlement
• Bark Petition 1963
• 1967 referendum
o Repealed s51(xxvi) - 'other than any aboriginal race in any state' - Cth could now make
laws for them
o Repealed s127
• Tony Abbot 2013 - 'An acknowledgement of Aboriginal people as the first Australians would
complete our constitution rather than change it'
• Expert Panel on the Constitutional Recognition of Indigenous Peoples (2012)
o Section 25 be repealed
o Section 51(xxvi) be repealed
o New s51A - power to make laws with respect to Indigenous people
o New s116A - prohibit racial discrimination
•
o New s127A - recognise Indigenous languages

Constitutional Recognition:
• Les Malezer

• Tanya Hosch

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 o Do not support subsection (2) - positive laws
o Risk present in the ambiguity, depends on whose perspective policies and laws are
framed from - state might consider reforms beneficial, but from perspective of
Indigenous not beneficial
o Past history of policies e.g. assimilation, Northern Territory Emergency Response, may
overcome past discrimination but undermine culture and heritage; or no effect in
supporting this
o Depends on how phrases are constructed by courts

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THE CLVA/THE PATH TO FEDERATION, THE ACQUISITION OF LEGAL INDEPENDENCE
AND POPULAR SOVEREIGNTY
The Colonial Laws Validity Act 1865 (Imp)
• Legal and institutional presence of bicameral legislatures in colonies achieved by operation of
a higher law - Act of Imperial Parliament
o Therefore, subordinate legislatures
• 1850's - 'Responsible government', powers of local self-government to colonies
o Derivation from British parliament - continuity with organic traditions
o Same omnicompetence as parliament
R v Burah (1878) 3 App Cas 889
Issues:
• Whether 1869 statute in India was intended to take away the right of Appeal to
the High Court
• Whether the Indian legislature could validly do this
• Was there a delegation of legislative power
Held:
• Constructed Act, it intended to take away right of appeal
• No inconsistency with Indian High Courts Act 1861 (Imp) - 'such an exercise of
legislative authority is expressly contemplated and authorised' by the Imperial
statute
• Indian Legislature constrained by powers limited by Act of Imperial power which
created it
• BUT 'It is not in any sense an agent or delegate of the Imperial Parliament,
but...was intended to have plenary powers of legislation as large, and of he same
nature, as those of Parliament itself'
• Colonial legislation still a subordinate legislation, dependent on the will of the Imperial
parliament, unable to override that will
Hodge v The Queen (1883) 9 App Cas 117
Issues:
• Federal distribution of powers in Canada - was liquor licencing under Dominion or
Provincial Powers?
• Delegatus non potest delegare - a delegate may not itself delegate maxim
Held:
• Came within both Dominion and Provincial
• Reliance on that maxim misconceived - provincial legislatures 'are in no sense
delegates of or acting under any mandate from the Imperial Parliament'
• Powell v Apollo Candle Company (1885) 10 App Cas 282
o Customs Regulation Act 1879 (NSW) - duties imposed for goods, governor to set them
o NSW Legislature held to be a legislature restricted in the area of its powers, 'but within
that area unrestricted, and not acting as an agent or delegate'
• If British statues applied in the colonies through the power of paramount force, how could a
local body legislate inconsistently with those statutes?
• If the common law was part of the fundamental law the colonists brought with them, how
could a local legislature alter the common law?
• Benjamin Boothby - local colonial legislature in SA invalid because 'repugnant' to the laws of
England
• Alex Castles - The Reception and Status of the English Law in Australia (1963)

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 o Could the new legislatures in Australia enact laws contrary to the statutes and
unenacted law received in Australia?
o Boothby - SA:
• Exceeded specific powers under Constitution, British statutes which applied by
paramount force
• Some Acts void because the governor failed to reserve the local legislation to
England to receive royal assent
• Legislation repugnant to the laws of England
o To clarify situation, Colonial Laws Validity Act 1865
• S2, 3 - constructed that colonial legislatures henceforth only to be bound by British
statutes which applied to them by paramount force
o Phillips v Eyre (1870) - meaning of repugnancy
• Act can only be invalid if repugnant to an Imperial Statute or order made by
authority of such statute, applicable to the colony by express words or necessary
intendment
o Subject to own constitutions and CLVA, states could repeal or amend British statues,
unreacted English law received under common law constitutional principles
o BUT:
• Local legislation could not exceed the powers vested in a State Parliament under
its own Constitution
• CLVA - local laws were void if they were repugnant to English statutes which
applied to a state by paramount force

Federation
• Two conventions in 1890s
• Constitution approved by people of Australian colonies in referenda held from 1898 to 1900
• Commonwealth of Australia Constitution Act 1900 (Imp) - assented to by the Queen in 1900
• Came into force on 1 Jan 1901
• Patrick Parkinson - Tradition and Change in Australian Law (2013)
o Pre-federation - internal political problems - land policy, colonial reform
o Reasons for federation:
• Intercolonial cooperation over tariffs (also contentious)
• Fear of common enemies; increasing nationalism
• Next stage in the development of the continent
o Questions at convention meetings - how to structure a federation within the
Westminster tradition of government
• Importance of lower and upper house, esp., to equally represent states
• Looked at other model
o 1891 convention - draft constitution
• Did not galvanise popular support, avoided difficult issues
o 1897 convention
• Debate over appeals to Privy Council - on constitutional matters, no appeal should
be taken to the Privy Council
• Debate over powers of the upper house, resolution of deadlocks
o Referendum in every colony, accepted, went to Britain etc.
• Framers:
o Financial and trade issues
o How to weigh interests of small states against more populous
o Arguments for Bill of rights
• Rejection of clause 110 proposed by Andrew Inglis Clark - 'nor shall a state derive
any person of life, liberty, or property without due process of law…'

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 • George Williams and David Hume - Human Rights under the Australian Constitution (2013)
o Bryce and Dicey - sceptical of need to express rights in constitutions
• Dicey - civil liberties can be adequately protected through the common law an
political processes without guarantees of rights in written constitution
• Did not include - consistent with Diceyan notion of Parliamentary Sovereignty
§ Unwilling to place fetters on power of new Cth and State parliaments to
protect HR
• Alexander Cockburn (delegate) - 'reflection of our civilisation' that needed
Constitution to protect against injustice - bad reflection
• Rule of law as adequate protection
• 110 would do more harm than good, interfere with the rights of several states
• BUT PRIMARILY wanted to maintain power of state to discriminate between
people on the ground of race

The Colonial Legacy
• Legally, Cth created by the Imperial Parliament's enactment of the Constitution as per s9 of
Commonwealth of Australia Constitution Act
o British statute applying to Australia by paramount force
o Not catalyst for independence from Britain
• New federal commonwealth did not receive British statute law
• Union Steamship Co of New Zealand Ltd v Commonwealth (1925) 36 CLR 130
o Held that repugnancy doctrine continued to apply to the Commonwealth
o Sections of Merchant Shipping Act 1912 inconsistent with 1894 Imperial Act
• Commonwealth v Limerick Steamship Co Ltd (1924) 35 CLR 69
o Commonwealth wanted to exclude possibility of appeals to Privy Council from State
Supreme Courts in constitutional cases
o Upheld as valid, not repugnant to appeals provision in Australian Courts Act, other act
o Powers under Constitution Act (Imp), 'assuming two Imperial enactments conflict, the
later must prevail'
o Australian constitution DID NOT override CLVA, just overrode Imperial laws that would
have given rise to repugnancy
• Commonwealth v Kreglinger & Fenau Ltd (Skin Wool Case) (1926) 37 CLR 393
o In Union Steamship case, international matter, concerned with Empire
o This current dealing with Australian affairs, therefore reasoning of Limerick Steamship
could not apply to Union Steamship
o Australian Constitution in present matter 'is not subordinate to, but is pro tonto superior
to, the earlier Act, the Judicial Committee Act'
o 'Will of the Australian national Parliament on the subject of civil rights in
Australia…[should be left] free from the control of Imperial ministerial discretion'
• Commonwealth and states seen to be limited by doctrine of extraterritoriality:
o Exercise of colonial legislative power extraterritorially invalid unless its operation had a
sufficient connection with the geographical area of the legislating colony
o How far can the law making power of a self governing polity extend beyond the
geographical borders of its own territory?
• British law - sovereignty/supremacy of Parliament, therefore law making power
has no territorial limit
• Held that colonies had no extraterritorial power at all, ample legislative power
from Imperial Parliament could only be exercised within Colony's own territorial
borders
§ Macleod v Attorney-General (NSW) [1891] AC 455

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 • For Commonwealth parliament, grants of legislative power in s51 of the
constitution of a nature of having extraterritorial operation
§ But also confined in some cases, eventually wider view prevailed - R v Foster
(1959) 103 CLR 256

Statute of Westminster
• Statute of Westminster 1931 (Imp)
o Freed the Dominions, including the Commonwealth, from Imperial restrictions
o Excluded the operation of the CLVA, doctrine of repugnancy
• Shift from colonial dependency to national independence
• Balfour report 1926 - Imperial conference
o Dominions held to be autonomous communities within the British Empire, equal in
status, in no way subordinate to each other in any aspect of their domestic or external
affairs
• Geoffrey Sawer, The Australian Constitution (1988)
o Conflict between status of Dominions and British legal powers or practices:
• Royal styles and titles
• Position of governor general
• Operation of Dominion legislation
• British merchant shipping legislation
• Privy Council Judicial appeals
• Constitutional arrangements and understandings in UK relied on 'conventions'
o May preclude exercise of a power still available at law
o Regulation among the Dominions was in this manner
• s2 of Statute of Westminster - CLVA, doctrine of repugnancy, did not apply to the Dominions,
including Australia
o Applied in Copyright Owners Reproduction Society Ltd v EMI (Australia) Pty Ltd (1958)
100 CLR 597
• Issue: Had amendments to Imperial Copyright Act taken effect in Australia?
• Held: British parliament interpreted as not having intended to legislate for
Australia, in breach of convention, at around 1928
• s4 - British Parliament could still legislate for Australia, but only with request and consent of
Commonwealth Parliament
• s8 - Australia cannot alter or repeal the Australian constitution
• s10 - left up to dominions to adopt provisions, Aus. only adopted in 1942
• s9 - preserved existing legal position for the states
o Still bound by the doctrines of:
• Repugnancy - CLVA
• Extraterritoriality
o Not dispelled until Australia Act 1986
• Important step in Australian legal independence

The Australia Act
• Australia Act 1986 (Cth)
o s1 - Signalled end of British Parliament's power to legislate for Australia
o s2 - Removed doctrines of extraterritoriality for States
o s3 - Removed doctrine of repugnancy for States
• Final step in severing of legal ties with the UK (rather than symbolic) - majority in S v H
Sue v Hill (1999) 199 CLR 462
Facts:

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 Hill standing for senate for Qld in election, possible disqualification because of UK
citizenship
Issue:
Is UK a foreign power for s44(i) of the Constitution?
Held:
• Argued by Hill that if UK retains residual influence on legislative, executive
or judicial processes, not foreign power
• Majority held that Australia Act - no influence residual
• s51(xxxviii) - validly enacted Australia Act under this section
• s1 of the act - UK cannot extend laws to Australia
o Implications for parliamentary sovereignty, Dicey's conceptions
o Issues with assertion that Westminster could destroy or transfer
sovereignty, could not bind future parliaments
• Appeals to Privy Council terminated - no institutions of govt. in UK 'exercise
any judicial powers with respect to this country'
• Provisions for reservation and disallowance designed to ensure surveillance
of colonial legislatures by the imperial government
• Text of constitution has not changed, but interpretation has:
o 'The constitution speaks to the present and its interpretation
takes account of and moves with these developments'
• Changes result of an orderly development, not the result of a revolution -
Gibbs J
• Same monarch exercises regal functions over UK and Aus, but UK is still
foreign power
• Callinan J - concern about evolutionary theory:
o Doubt over peoples' rights, status and obligations
• Under s15, Cth can repeal or amend Statute of Westminster in its Australian applications, and
Australia Act
o Suggested that this would allow s8 of Statute of Westminster to be amended or repealed
o Then can amend or repeal the Constitution without a referendum (s128)
o Runs counter to notion of popular sovereignty
o BUT then Australia Act would be unconstitutional because it would be contrary to s128,
constitution can only be changed via a referendum
Attorney-General (WA) v Marquet (2003) 217 CLR 545
Issue:
Attempted repeal of the Electoral Distribution Act 1947 (WA)
Held:
• Majority - amendments must be passed by normal procedure in states (s13
of the act)
o s6 of Australia Act, follows CLVA, laws should be reformed in this way
• Kirby J
o Held in this extent, Australia Act was unconstitutional
o s6 imposed new restraint on legislative power of State Parliaments
o Argued that s128 of the Constitution reserves to the Australian
people, the power to make formal changes affecting the basic law of
the nation
• s6 of AA attempts to alter ss106 and 107, constrain lawmaking
power of the states

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 • Argued that AA changed state constitution, but state
constitution cannot be changed under Constitution, should be
as it was during federation, unless altered by that state
constitution's provisions
o BUT - 'the passage of time may accord constitutional legitimacy and
respectability to what has happened'
• Argument rejected by majority:
o Continuance of constitution of a state under s106 is subject to any
Cth law enacted pursuant to the grant of legislative power in
s51(xxxviii)
o Based reasoning on Australian version of Australia Act, rather than
British enactment
• Callinan J - Australia Act 1986 (UK) and Australian enactment - final and
indubitable recognition, settlement between UK, Aus and States
o 'Ultimate legitimisation of the respective constitutions, the
sovereignty and the plenitude of the powers of the respective
Australian polities
•Shaw v Minister for Immigration and Multicultural Affairs (2003) - Callinan J:
o Australia Act (Cth) gave voice to the completion of Australia's evolutionary
independence

Popular Sovereignty
• Formally, according to preamble, Australian Constitution derives its validity from an exercise of
British Sovereignty - Commonwealth of Australia Constitution Act 1900 (Imp)
• Sir Owen Dixon - The Law and the Constitution (1935)
o Constitution is not a supreme law with authority derived from the people's authority to
constitute a parliament
o IS a statute of the British parliament enacted in the exercise of its legal sovereignty over
law in the colonies
o Organs of government are institutions established by law, powers are according to
authority by law
o When people are the source of power e.g. America, powers may not be delegated
• Geoffrey Lindell - Why is Australia's Constitution Binding? The reasons in 1900 and Now and
the Effect of Independence (1986)
Opening recital - 'Whereas the people…' - why the Constitution is binding
1900:
o Legal status derived from enactment of British Parliament - original source of law,
supremacy of British statute applying with paramount force
o Political legitimacy or authority based on the 'Whereas the people…' - agreed to unite in
federal commonwealth
o Importance of the role of the people - s128 of constitution
Post 1986:
o Evolutionary development of Australia's independence on an international level
o British Parliament can no longer legislate for Australia
o Cth and State parliaments can now alter or repeal British statutes
o Developments result of constitutional practices and conventions e.g. Balfour declaration
• Australia Acts - more explicit declaration
o Nothing has changed the pre-existing inability of Cth and State parliaments to legislate
inconsistently with the constitution - continuity in chain of legislative authority
o Additional reason for legally binding and fundamental nature of Constitution

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 • Agreement of people to Federate contained in preamble
• Role for constitutional alteration under s128
• Ongoing acquiescence in continued operation of the Constitution as a fundamental
law
• Higher law because of will and authority of people - reflects social and political
reality, legal explanation coincides with popular understanding
• Bistricic v Rokov (1976) (Murphy J) - Constitution binding because of continuing acceptance by
the Australian people
• Australian Capital Television Pty Ltd v Commonwealth (1992) (Mason CJ) - Australia Act
marked end of legal sovereignty of Imperial Parliament, recognised that ultimate sovereignty
resides in Australian people
• Mc Ginty v Western Australia (1996) 186 CLR 140 (Gummow J)
o Principles of representative government applied to federalism, where does ultimate
sovereignty reside?
o S128 - proposed change is vested in parliament, mechanism
• BUT no equality of voting power - if minority is geographically distributed, may
make an impact
• Majority of electors in one state may resist a change approved by a majority of
electors in a majority of states
• Issue with reconciling popular sovereignty with ATSI sovereignty
• George Williams - The High Court and the People (1995)
o Deane J in Theophanous - will of people expressed in referenda, continuing acquiescence
of the people to the operation of the Constitution
o Initial referendum - only 52% of people eligible to vote at the referenda did so
• Most women, many Aboriginal people excluded from voting
• Constitution cannot be said to the people's document because of support for
referenda around 1900
o Acquiescence of people, but largely ignorant of the constitution:
• Only 18% of Australian aware of what constitution contains
• 47% unaware Australia had a written constitution
• Lack of civics education, uninspiring document - no sense of what it is to be
Australian, how we should behave towards each other
o Ignorance cannot provide foundation for popular legitimacy of Australian Constitution
• Helen Irving - The People and Their Conventions
o How can Federation be considered popular if a total numerical majority did not vote
yes?
o Absence taken as rejection, alienation from processes; or acquiescence
o However, process is not necessarily only popular and democratic if large majority of
total population participated
o Mechanism is of importance - conventions required participation, opened up field of
public debate, acknowledgement of peoples' interests
• Impact of concept of popular sovereignty on interpretation of the Constitution:
o Cheryl Saunders - Implications for the rights of individuals v the state
• BUT could equally be argued that authority of people is given effect collectively
through decisions of the majority in Parliament
o Australian Capital Television Pty Ltd v Commonwealth - implied right to freedom of
political communication held as well as notion of popular sovereignty held
o BUT recent change in composition of the bench - no move towards this
• Nicholas Aroney - suggests that popular sovereignty is out of place
§ Federalism and responsible government - other fundamental features of the
constitution that complicate popular sovereignty thesis

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An evolutionary story
• Robert French - Australia's Constitutional Evolution (2010)
Authority of the Constitution
o Formal legal authority on 1 Jan 1901 - legislative power of the Imperial Parliament
• British statutes - original source of law - supremacy
o Organs of government are simply institutions established by law
• Contra US - agents for the people who are the source of the power
o Dawson J - Australian Capital Television Case
§ Contemporary reality - constitution's continuing validity depends on acceptance of
the people
§ Legal foundation of Constitution - exercise of sovereign power by Imperial
Parlaiment
§ Implication (implied right of freedom of political communication) must come from
terms and not from extrinsic circumstances
o Murphy J - Bistricic v Rokov
§ Australia's independence and freedom from UK legislative authority should be taken
as dating from 1901
§ UK parliament - ceased to an Imperial Parliament at inauguration of the
Commonwealth
§ Proposition that cases which held Cth legislation ultra vires due to inconsistency
with law of England wrongly decided
o Proposition that existing authority is continuing acceptance by the Australian people
Australia's evolution to independent nationhood
o Accepted that Australia did not become an independent nation upon creation of the Cth
in 1901
§ Became self governing colony of the UK
o Australia lacked executive independence in conduct of foreign relations at the time of
federation
§ BUT independence finally recognised for all Dominions in 1926
o Legislative independence - Statute of Westminster 1931 (UK)
§ Lifted fetters on legislative powers imposed by CLVA
§ Continued to apply to states
o Professor Anne Twomey - independence granted to the Dominions at national level by
Statute of Westminster did not apply to the Australian states
§ State governors continued to be appointed by the Queen on advice of British
ministers
§ CLVA - prevented States from legislating in repugnant way to paramount force laws
from Britain
§ Merchant shipping and reservation of certain bills for sovereign assent - paramount
force
§ Considered states to be colonial dependencies of the British Crown
o Final severance of legislative and executive power - Australia Act 1986 (UK)
§ Judicial dependence disappeared also
• Cheryl Saunders - The Constitution of Australia: A Contextual Analysis (2011)
The Nature of the Difficulty
o Special status of constitution requires justification
o If originating constitution - authority for it will not lie in a 'norm of positive law'
o Frequent reasoning - draws authority from people of the state to which the constitution
applied

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 § Marbury v Madison - original and supreme will of the people - constitution superior
status, paramount law
o Response to the authority of the people has symbolic attracting, distinguishes
constitution in populist sense
o Aus. constitution is deeply entrenched
o At some point, British Parliament lost its authority in Australia
§ Matter of convention
§ Then Australia Acts 1986 confirmed it
o Long progression to independence, wanted to avoid break in legal continuity
o By 1986, supremacy of the constitution had been accepted without question for 85
years
o Presupposition on the part of jurists etc that 'one ought to act as the constitution
prescribes'
o Australians - active belief that Constitution deserves respect and obedience, became self
validating over time
Options
o Source of Authority as Australian people
§ BUT people as in organised nationally, or in states
§ BUT indigenous claims?
§ BUT how did the shift from Britain to Aus occur
o 1992, Mason CJ - Australia acts marked the end of legal sovereignty of the imperial
parliament and recognised that ultimate sovereignty resided in the Australian people
o Continuing influence of parliamentary sovereignty
o Distinction between political and legal authority in Australia rather than acceptance that
two can blend to create entrenched constitution for independent state
o Autonomy vs autochthony
Significance
o Implications of change to authority of Australian people:
§ May alter relationship between people and organs of government - 'trust'
§ If exercising power of the public, should meet standards of integrity, open
government and public accountability - Paul Finn
§ May have implications for the rights of individuals vs the state
o However, argued that authority of the people is given effect through decisions of the
majority in Parliament
§ Mason CJ - 1993, evolving concept of modern democracy - responsible government
which respects the fundamental rights and dignity of the individual
§ SEE cases where court found protection for individual rights and freedoms in
provisions of the Constitution establishing the institutions of government
o May affect approach to constitutional interpretation

CLASS NOTES
• Self determination - political destiny

Before Federation, how independent were the Australian Colonies in a legal sense?
• The Colonies
o Independent
o Powerful
o Subordinate
• Repugnancy

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 o Boothby's repugnancy
• Using English common law to strike down SA statutes
• Pyramid - Court -> Statute -> Common Law
o The CLVA
• Paramount force - needed specific words, repugnancy narrower
• Not all British law applicable in the colonies
• Federation:
o 1988-1855 - Colonies develop: bicameral legislatures and responsible govt.
60 years of spasmodic official effort and fluctuating public interest
o 1880s - Establishment of Federal Council of Australiasia
• NSW not involved - fizzled out
o 1890 - Melbourne Conference
o 1891 - Constitutional Convention - Sydney
o 1893/95 - Corowa Conference/Bathurst People's Convention
• Why federate and what were the obstacles?
o Tariffs and trade
o Defence
o Immigration
o Identity and Nationalism, ease of movement
• Few reasons to federate, but were important
• Relationship between big and small states - difficult
o Smaller states coming under dictatorship of NSW
• Comparative models:
o UK
Parkinson - 'how to structure a federation within the Wwestminster traditoin of
government' (p123
o Canada
o US
o Switzerland
• The Process of Federation
o Melbourne conference organised by Henry Parkes (NSW Premier) in 1890
o 1891 - Sydney Convention
o Draft Constitution on SS Lucinda, Samuel Griffith Qld playing leading role with Kingston
SA and Barton who replaced Inglis Clark (Tas)
o Lapsed in NSW parliament
o Peaks and troughs in ensuing years: Corowa Conference (1893), Bathurst Peoples'
Convention (1896)
o Elected Conventions 1897-1898
• 1898 Referendum - failed in NSW, further compromise needed
• 2nd round of referenda passed:
o On whose vote?
• Few people, e.g. not Aborigines, women
o Why did Australian Constitution undergo vote in UK parliament?
o Where was the capital placed and why?

The Framers on Human Rights
• Inbuilt assumptions
• The drafters' conception of the rule of law
o Thick, formal
o Ideas of justice, independence, rule of law rather than rule by law
• What was the proposed section 110?

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 o Human rights, based on 14th amendment
o Equal protection clause
o Support v Objections
• Reflection on our civilisation
§ Civilised, gentlemen, can trust each other, do not need to write into
constitution

Australian Legal Independence
• How independent was the new nation state of Australia in a legal sense?
o Symbolical vs legal independence
o Privy Council at apex of Judiciary, Paramount laws at apex of Parliament, queen at apex
of Executive
• BUT limits - only some appeals could go to Privy Council, Queen didn't really get
involved etc.
• Is Australia now a fully independent nation?
o Only queen at apex of Executive remains, but no real power
o Colonial Laws Validity Act - paramount force laws apply
o Statute of Westminster - doctrine of repugnancy gotten rid of for Cth
o 1986 - Australia Acts - removed it for states

For ASSIGNMENT:
• Answer the question
• Identify underlying issues
o Paraphrase question in few sentences
• Structure
• Knowledge of the material

Which of the two statements do you find more persuasive and why?
• Popular sovereignty, has been since 1901; vs
• Settle on one particular interpretation, if not that much scope
• Always give both sides of the argument

1. Introduction - paraphrase, what this question is asking - one sentence; answer the question
o Was the source of authority in 1901, popular sovereignty or legal authority of
Parliament, and what is it today?
o This demonstrates, accordingly, this reflects
2. Define popular sovereignty
3. Examine both sides
o Structure by strengths and weaknesses of each quote
o Structure by historical and today; then strengths and weaknesses
• Sue and Hill
• Evolutionary theory
• Geoff Lindell - 1900, today
• Popular sovereignty - Williams (statistics)
4. Come to a conclusion

USE ENDNOTES

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STATUTORY INTERPRETATION I
See Material 5A for extracts of Interpretation Acts

James Spigelman - The Intolerable Wrestle: Developments in Statutory Interpretation (2010)
• “Periphrastic” nature of the law of statutory interpretation - circumlocutory or round about
way of expression
• Matter of emphasis and nuance
• Spectrum of judicial opinion ranging from strict literalism by Justice Kirby at one end to
broadly based purposive interpretation at the other end
o Justice Kirby - identified, and subsequently rejected tendency towards return to literal
interpretation, 'narrowing of judicial focus'
• Well established principles – the literal rule, the golden rule and the mischief rule
• Lord Elsmere’s treatise on statutory interpretation published in 1565:
• Struggle with different propositions is not a new notion: Barons of the Courts of the Exchequer
(1560)
o Judges have interpreted statutes in a way that appears to be 'contrary to the letter' or
literal interpretation in some circumstances e.g. exemptions for certain individuals, who
are not prohibited from committing a certain act
o In interpretation they are guided by the intent of the legislation, according to the
necessity of the matter, and according to reason and good discretion
• Changes in nuances over time:
o J Spigelman identifies a movement from "text to context"
• Idea of "pretext" in relation to statutory interpretation
• Justice Kirby:
o Referred to judgments of the Mason and Brennan courts as having established a new
approach to statutory interpretation - contextual and purposive approach v. literalism of
the past
• Bropho, which affirmed the purposive approach to statutory interpretation as the
correct common law approach, as opposed to meaning that ‘manifest[s] from the
very terms of the statute’
• CIC Insurance Ltd v Bankstown Football Club Ltd, modern approach is to use
‘context’ in its widest sense to include things such as the existing state of the law
and the mischief which it can be discerned the statute was intended to remedy
• Project Blue Sky - interpret the relevant provision so that it is consistent with the
language and purpose of all the provisions of the statute, by first examining the
context of the provision that is being interpreted
• Example of importance of context:
o "Context is always important. Take the statement: “The chicken is ready to eat”. This can
either refer to a cooked chicken or a hungry chicken. The context alone will determine
the meaning"
• Kirby:
o Doubt of the majority’s fidelity to the purposive approach
o Case of interpretation of “pawned goods”, within s 6 of the Pawnbrokers and
Secondhand Dealers Act 1996 (NSW)
o Need for court to be consistent, not return to 'dark days' of literalism
o Looking at intent of act - not intended to have the meaning in line with the decision of
majority - too literal
• Important social purposes of the legislation are frustrated by it
o Method of statutory interpretation which involves invoking context must be used
consistently

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 • "So that it cannot be said that the courts pluck out considerations of ‘context’,
‘purpose’ and ‘history’ arbitrarily"
• View of Spigelman: "Kirby J often applied the purposive approach in a way which was not
envisaged by the joint judgments which he cites as authority."
• Reliance on context and purpose raises matters about which judicial minds can reasonably
differ. Consider such matters:
o What is encompassed in the concept of context?
o How far does context extend beyond the text of the instrument as a whole?
o What weight is to be given to aspects of context so identified?
o How is one to determine what the “purpose” of the Parliament was?
o At what level of generality should any such “purpose” be expressed?
• However, identification of purpose may be driven by what the particular judge thinks is the
desirable result in a specific case
• Supreme Court of US: Cited in Australian authorities
o Legislative choice - deciding what competing values will or will not be sacrificed to the
achievement of a particular objective
o Legislative intent - must not assume that whatever furthers the statute's primary
objective must be the law
• Gleeson CJ - difficult in considering purpose when statute balances competing interests - only
an interpretation of purpose may be found
o In this case, Kirby was able to clearly find a purpose
• View of Spiegelman: Does not agree with Justice Kirby that there has been a reversion to a
narrow literalism
o However, number of recent High Court judgments which indicate that the flexibility of
interpretation with respect to the text in some cases has gone too far
o indications that the judiciary must, with greater force and clarity, refocus its attention
on the text itself
• The task of the courts is to interpret the words used by Parliament. It is not to divine the
intent of the Parliament.
o Need to identify objective purpose of parliament, not subjective intention of
parliamentarians or ministers
• Cases which illustrate this:
o Alcan (NT) Alumina Pty Ltd v Commissioner
o Court - The language which has actually been employed in the text of legislation is the
surest guide to legislative intention.
• Interpretation must begin with text itself, then only move to context/mischief
intended to address
o Saeed (visa case)
o Court - It is erroneous to look at extrinsic materials before exhausting the application of
the ordinary rules of statutory construction
• Restrictive approach to extrinsic materials - seen by Spigelman to not be
consistent with recent judicial practice
o Catlow v Accident Compensation Commission (1989)
o Court - It is only when the meaning of the text is doubtful that extrinsic material is of
assistance
o Sheehan v State Rail Authority; Wicks v State Rail Authority [2009]
• Lower Court judges relied on extrinsic materials - report/legislative history
• On appeal to High Court - considered legislation solely in the light of the common
law
• Suggests that judges in the lower courts should focus more on the text, rather
than referring extensively to extrinsic materials

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 o SZJGV (immigration case)
• Two joint judgements, one focusing on interpreting words of the text, and other
with regard to context
• Dissenting judgement - should not be too literal of an interpretation that intent of
statute is defeated
• Thus:
o Spigelman argues that basic principles are not in dispute
o However, application of principles of statutory interpretation causes differences to
emerge

Murray Gleeson - The Meaning of legislation: Context, Purpose and Respect for Fundamental Rights
(2009)
• Law to be applied is found in Acts of Parliament
o Legislation draws upon the common law and is designed to interact with it
o Judges are required by some acts of parliament to make 'policy choices' about a range of
matters
o Acts often require interpretation, as meaning is not always self-evident and complexity
of legislation results in inconsistency and uncertainty
• Priestly JA - Courts are constrained by precedent and doctrine
• Unless meaning is self evident, interpretation is required
o Statute is expression of will of parliament
• Lord Steyn - starting point must be the text itself, primacy of the text is the first principle of
interpretation
o Language is medium to express authority, meaning of what Parliament has said directs
exercise of judicial power in a given case
• THEN Lord Steyn - consider all relevant contextual material for interpretation, not
interpolation (refurbishment or modification)
• Judicial exposition is legitimate as long as it is an exercise in discovering the will of parliament
through law and logic
• Illegitimate when will of judge is imposed - judicial legislation

Russell Smyth - Extrinsic Materials (2001)
• Primary sources - relevant statutory and constitutional texts, earlier cases
• Secondary sources - support conclusions about policy considerations and values that underpin
decisions
• Shift towards purposive approach - s15AA of Acts Interpretation Act 1901 (Cth)
• s15AB - can use ALRC discussion papers, reports, ministerial second reading speeches,
parliamentary committee reports, parliamentary debates, Royal Commission reports
o In practice, limited to ministerial second reading speeches
o Only legitimate if relevant statutory provision is ambiguous or obscure, or ordinary
meaning is manifestly absurd or unreasonable
o Re Bolton: Ex Parte Beane (1987) - Words of a minister are not to be substituted for the
text of the law
• 'The function of the Court is to give effect to the will of Parliament as expressed in
the law
o CIC Insurance v Bankstown Football Club (1997) - Court can regard other materials than
s15AB under common law - reports of law reform bodies to 'ascertain the mischief
which a statute is intended to cure'
• Constitutional context - Cole v Whitfield (1988) - use of convention debates as aid to
interpretation
• Extrinsic materials would produce interpretations closer to true intention of legislature

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 • BUT:
o Prolonged hearing
o Some reports not readily available
o Speeches in parliament may express personal views of individual members, not
collective view
• Citing academic works - put legal problem into sociological or cultural context

Michael Kirby - Statutory Interpretation: The Meaning of Meaning (2009)
• Look at text, context and purpose or policy
• Belief that reversion to error of textual literalism needs to be resisted

CLASS NOTES
• Supremacy - watered down version of sovereignty

Judicial review vs statutory interpretation
• Constitutional interpretation vs statutory interpretation

SI - Occasionally, but rarely simple
• Secretary, Department of Health v Harvey (1900) - 'The case is a simple one. The Act means
what it says, and what is more important, it does not mean what it does not say' (Meagher JA)
• Should not shift balance between parliament and judiciary

SI and democracy:
• 'The responsibility of disovering, expounding and applying the meaning of legislation is
discharged according to legal principles' (Murray Gleeson)

Mix of common law and statute rules:
• Statutory rules laid out in Acts Interpretation Act 1901 (Cth) and state and territory
counterparts
• NSW - Interpretation Act 1987 (NSW)
o Purposive approach justified by statute (s15AA) - Gleeson
o Modern approach - simpler
• Common law of SI also persists and co-exists alongside these statutes
o e.g. the purposive approach is the correct common law approach, even without
statutory intervention - Spigelman on Bropho
o e.g. common law position on use of extrinsic materials - Smyth

Modern approach - text, context, purpose of statute in question
• Kirby

Interpretation Is necessary

Statutory interpretation in action:
• Minister administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48
o Majority held there was no ambiguity in 'lawfully used or occupied'
o Do not apply too quickly - not factual interpretation, look at phrase of 'lawfully used and
occupied' - getting surveyor etc

Steps in statutory interpretation:
• Read Act

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 • Identify if there is any ambiguity - NEEDS TO BE AMBIGUITY
• If there is not, still look at CONTEXT, PURPOSE s15AA - even if not relevant
• If there is then use either broad or narrow interpretation; examine both
• To choose, look at purpose - s15AA, and context
o Act will say - 'This is an act for the purpose of…'
o Objective intention of parliament

Gleeson and Spigelman - legalist, black letter law, look at text, apply what parliament wanted
Kirby - look at broader things, interpret them into the statute; take into account historical, legal,
social and human rights context

SEE CARR SLIDES

Purpose - the search for Parliament's intention
• Momcilovic (2011) - (Project Blue Sky) The duty of the court is discharged 'to give the words of
a statutory provision the meaning that the legislature is taken to have intended them to have'

Objective intention:
• Spigelman - Task of courts is to interpret the words used by parliament - objective intention of
parliament, not the subjective intention of ministers or parliamentarians

Literalism:
• What does the language mean, duty to obey the meaning of the language in 'its ordinary and
natural sense' even if inconvenient, impolitic, or improbable

Spectrum: Exists within a sphere of constitutional legitimacy

1. Context
2. Purpose
3. Extrinsic materials s15AB; justify with:
a. Confirm ordinary meaning (if no AMBIGUITY)
b. If:
• Ambiguous
• Obscure;
Result is
• Unreasonable
• Absurd

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STATUTORY INTERPRETATION II
Principle of Legality
• Presumption that statutes are not intended to impair civil liberties or fundamental human
rights
• AV Dicey - Introduction to the Study of the Law of the Constitution
o Constitution is pervaded by the rule of law
o General principles of the constitution (rights) are the result of judicial decisions
determining the rights of private persons in particular cases brought before the courts
o Constitution is not the source but the consequence of the rights of individuals
• Result of the ordinary law of the land
o Predominance of rigid legality increases the authority of parliamentary sovereignty
o Commands of parliament can only be expressed through an act of Parliament
o Bill which has been passed into statute is immediately subject to statutory interpretation
o English Parliament has never exercised direct executive power or appointed the officials
of the executive government
• Spigelman - common law protection of fundamental rights is found within law of statutory
interpretation

Potter v Minahan (1908) 7 CLR 277
Facts:
• Australian born man, Chinese father, refused entry to Australia
Issue:
• Construction of the word 'immigrant' under the Immigration Restriction Act 1901
(Cth)
Held:
• There are certain objects which the legislature is presumed not to intend, and a
construction which would lead to any of them is therefore to be avoided
• Presumed to not make any alteration in the law beyond what is explicitly
declared
• Improbable that the legislature would overthrow fundamental principles, infringe
fundamental rights, or depart from the general system of law without clear
intention expressed
• Should thus not give words a meaning in which they are not really used


Coco v The Queen (1994) 179 CLR 427
Facts:
• Coco convicted of attempted bribery of Cth police, conviction secured by
evidence obtained through secret listening devices
Issue:
• Was the entry into property to install the device unlawful?
Held:
• Statutory authority to engage in otherwise tortious conduct must be expressed in
unmistakable and unambiguous language
• Presumption that unless this is present, parliament did not intend to authorise
tortious conduct
• Presumption is rebuttable - will be displaced if there is a clear implication that

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 authority to enter or remain upon private property is intended
• Plenty v Dillon (1991) - inconvenience in carrying out an object of an act is not a
ground for eroding fundamental common law rights

• To rebut the presumption, legislators must make their intentions clear and accept political
costs of explicit rights infringement
• Within bounds of legitimacy in democratic system, judiciary nudges the legal system, and
elected branches of government, in the direction of rights protection
o Spigelman - reflects shared understanding of role of court in statutory interpretation

Momcilovic v The Queen (2011) 245 CLR 1
Held: (French CJ)
• Wik Peoples v Queensland (1996) - Common law - ultimate constitutional
foundation in Australia
• Range of rights and freedoms covered by principle of legality are considered
fundamental
• Principle protects commonly accepted rights and freedoms within constitutional
limits
o E.g. procedural fairness, the open court principle
• Rights and freedoms of the common law not fragile
o Constitutional rights, even if not formally entrenched against legislative
appeal

• Essence of common law approach is incrementalism - develops on case by case basis
o Dicey - contrast to codification of rights in continental Europe
o However, may raise questions about what is contained in or excluded from the list of
rights at any time
• Hogan v Hinch (2011) - freedom of speech
• X7 v Australian Crime Commission (2013) - privilege against self incrimination
• Akiba v Commonwealth (2013) - native title rights in the face of alleged
extinguishment
• Bounds of legitimacy imposed on the judicial use of principle of legality
o Separation of powers
o Parliamentary supremacy
• If unambiguous language, cannot protect rights from legislative infringement
• Charter of rights:
o List of protected rights and freedoms codified
o Instruction to construe statutes in a rights conscious way is from legislature itself

Principle of Retrospectivity
DC Pearce and RS Geddes - Statutory Interpretation in Australia (2011)
• Courts have held that in the absence of a clear statement to the contrary, acts are assumed
not to have retrospective operation
• Maxwell v Murphy (1957) (Dixon CJ)
o General rule of the common law - statute changing the law ought not, unless intention
appears with reasonable certainty…to impose or otherwise affect rights or liabilities
which the law had defined by reference to past events
• Fisher v Hebburn Ltd (1960) (Fullagar J)
o General rule that amending enactment is prima facie to be construed as having
prospective operation only

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 o Prima facie to be construed as not attaching new legal consequences to facts or events
which occurred before its commencement
• Presumption is common law based
• Distinction between commencement and retrospective operation of legislation
o Act may be deemed to have come into operation on an earlier date than when it is made
o R v Kidman (1915) - If backdated, person may be convicted of an offence even though
conduct was permissible at the time it was engaged in
o Legislation intended to operate retrospectively, no room for the presumption
• Rationale of presumption against retrospectivity
o Maxwell - presumption that legislature does not intend what is unjust is basis for
retrospectivity
o Attorney General of NSW v World Best Holdings Ltd (2005) - concept of fairness directs
interpretation of legislation that has an element of retrospectivity
• Legislative instrument may take away some rights, but may confer others - overall aggregate
justice may indicate that retrospectivity was intended
o Must consider problem legislation was intended to deal with
o Presumption is a rule of construction, context of provision will determine effect
• Nothing preventing parliament from making laws having retrospective operation
• Rebuttable presumption
o Can be excluded by direct statement to the contrary in relevant act
o Worrall v Commercial Banking Co of Sydney Ltd (1917) - 'Necessary intendment' that Act
is to operate retrospectively - force of language in its surroundings is strong
o Doro v Victorian Railways Commrs [1960] - when a palpable injustice would result, the
presumption should be given its fullest weight
• Context influences the issue of application of the presumption
o E.g. use of the part participle (goods supplied) indicates the act is intended to apply to
existing entities, not those which are to come into being in the future

CLASS NOTES
Mid-sem:
• 2 short answer questions - class 1A to 6A
o Think about question - what is it asking you for
o Constitutionalism, Rule of Law, Sovereignty
o Use of endnotes
o Use pinpoints - PAGE NUMBERS
o Bropho v W Australia, cited in, quoted in … Spigelman
o Reference - back up what you are arguing; use SEE ALSO (list of cases), CF
(compare/contrast) cases with opposite idea
o Intro and conclusion:
• What the question is
• How you got there - By looking at x y z, it becomes clear that
• What your answer is

Principles of statutory interpretation
1. Principle of legality
o Presumption that parliament does not intend to infringe fundamental rights
• UNLESS clear words, unmistakable and unambiguous showing they intend to do so
- Coco v the Queen
§ Statute can override
o Hinges on parliamentary sovereignty

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 o Common law - judge made
o Presumption - always rebuttable, can say it doesn't apply
o Rights and freedoms covered:
• Potter (1908) - right of an Australian to enter Australia
§ Immigration statute presumed not to infringe
§ Ambiguity, presumed not to infringe
• Coco (1994) - criminal offences based on evidence from bugs, police broke laws
§ Fundamental property rights
§ Statutes don't let police infringe on this
• Focus on fundamental rights
• Newer cases - expanded broader:
§ p1156 - shift from fundamental to commonly accepted rights and freedoms
§ Spigelman - 18
• Spigelman also described cases that uphold fundamental rights as
common law bill of rights --> vs actual bill of rights
• However, does not have rights language, feeling of having rights
§ Williams - 30
o Is judges upholding rights consistent with parliamentary supremacy
• Parliament still has the last word - can ultimately overrule
• Dicey - fundamental to how parliamentary sovereignty and rule of law to co-exist
§ Judges use statutes to uphold rule of law, common law rights
§ P still sovereign
§ Bridging principle

2. Retrospectivity
o Presumption that parliament does not legislate retrospectively
• UNLESS need clear words etc
o Can parliament make retrospective legislation
• US parliament cannot; ACT cannot - limited through statute
• YES because P can make or unmake any law whatsoever, subject to the
constitution
o BUT section relating to property acquisition - just compensation (in C)
• If retrospective act has the effect of acquiring property, cannot
o Complexity in determining what is and what is not retrospective
• E.g. membership of criminal organisations - day before legislation, OR now, all
members within certain period
o The more that it infringes fairness, the more the presumption will be applied
• Balancing - may have positive retrospective law - enhancing rights - less likely to
be interpreted as retrospective
o Retrospectivity - anti-rule of law; law should be known etc.

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THE LEGISLATURE I
History
• Elaine Thompson - Australian Parliamentary Democracy After a Century (2000)
o Australia's history - representative system through expansion of eligibility to vote and
expansion of those able to stand for parliament
o Election of upper and lower house - radical departure from Westminster tradition with
hereditary House of Lords
• Reflects more egalitarian political culture in Australia
o Methods of creation of Federal Constitution also done through voting - Federation
Fathers chosen by vote of Australian people
o At Federation, popular democracy as expressed by the vote
• System where both Houses of Parliament directly elected
• Universal suffrage quickly introduced
o Franchise was broad, secret ballot accepted, electoral systems chosen were broadly
democratic
o Representative parliamentary democracy - radical constitutional arrangements
o Responsible government as political system of new Federation
• Concern of delegate Richard Baker - cannot form workable Federal government
with Executive form of cabinet
• Amalgamation rather than Federation
o Eventual Australian system - Washminster mutation
o Powers divided horizontally among arms of government - executive, legislative and
judicial
o Vertical division between levels of government - national, states and local
o In America, seen as layer of protection against tyranny
o Australia - federation because it was politically sensible, practical
• No fear of strong government or tyranny
o Debate surrounding equal representation of states, or reflect population of states in
senate
• Democratic idea of representation in proportion to population
• BUT smaller colonies would not come into federation without equal
representation of states
• Political fact
o Existence of upper house
• Westminster - non-elected aristocrats checked the will of government
• American - interests of states in Senate against popular interests in lower house to
minimise powers of government
• Eventual Australian Senate -
§ Equal representation to states regardless of population size
§ Election of upper house
§ Election of second chamber by universal male franchise
• Necessary for federation - smaller states would not join otherwise
§ Power of senate concern of Federation Fathers
§ Resolution of deadlocks between houses resolved through double
dissolution and then general election
§ Power to reject money bills - concern that Senate could bring down house
which embodied responsible government
• Responsible government v states' wishes - balancing
• BUT refusal to grant supply very last resort - no practical power over executive
§ Senate can refuse budget and deadlock normal legislation

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 o Responsible and representative system of government
• Voted for both houses and vote in deadlock
• Government created from majority in popular house
• Stayed in power with support of popular house
o Responsible government and the party system
• Commitment to popular democracy and pragmatic politics
• Concern about uncontrolled will of the people - Bryce
• 1911 - compulsory enrolment of electors
• 1924 - compulsory voting
• 1918 - preferential voting for HOR
• 1948 - proportional representation in the Senate
• 1962 - enfranchisement of Indigenous people - became modern democracy
o Political Parties and the Role of Parliament
• Disciplined bipolar party system
§ HOR at the foot of the executive
§ Opposition can criticize government but cannot force change
§ Questions about whether the system may be described as responsible
government
• Two party system - responsible party government
§ Federal politics was party politics from the beginning - Peter Loveday
§ System enabled executive to overwhelm parliament
§ Overwhelmed constitutional conventions of ministerial responsibility and
Cabinet responsibility
• Strengths
§ Unavoidable, competitive, regular elections with universal suffrage
§ Greatest measure of democratic accountability to the people
§ Government formed from the party with the majority of seats in the House -
great legitimacy
§ Policies could be successfully introduced by elected party
• Splits influenced voting attachments as well as issues, ideologies and policies
• Meaningful competition for government between two party groupings vying for
vote
• Representative - represent broad economic and political interests of the people
• System ensured strong government
§ Majoritarianism as essence of parliamentary democracy - people elected a
party which commanded majority of seats in the lower house
§ Test of government's behavior was judgment by the majority at elections
§ Party control equal to democratic parliamentary responsibility
o Continuity and change: (1967 - 2000)
• Changing perceptions of representative nature of parliament
• Challenges to majoritarianism
• Weakening of party line voting
• Rise of minor parties and independents
• Strengthening of Senate's role as check on government
• Emergence of women
• Confrontation between Senate and government
• 1975 Constitutional Crisis
• Challenges to Parliament's role in holding government accountable, and
governmental oversight
o Representative Democracy and the People's Vote:

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 • For democratic system, need unavoidable regular elections, individuals seeking
office engage in genuine competition for the people's vote
• Rise of new politics - womens' rights, student rights, gay rights etc.
• Major parties seen as rigid, adversarialism between parties seen as excessive,
subversive of process of good government
§ Public interest secondary
• THUS, elections became more volatile
o Democratic Representation:
• 1983 - AEC established to ensure overt removal of final decisions about conduct of
electoral system from party political realm
• Move closer to substantial equality in electorates at Cth level

Composition: Eligibility, Representativeness and Diversity
Eligibility for Election
• Commonwealth legislation specifies who is eligible for election to the federal parliament
o See Commonwealth Electoral Act 1918 (Cth)
• Constitutional requirements
o S43 - member of either house of parliament incapable of being chosen or sitting as a
member of the other house
o S44 - disqualifying categories

Re Webster (1975) 132 CLR 270
Facts:
• Senator who had holdings in family company, contractual arrangements with the
Cth
• Referred by Senate to HC
Issue:
• Did senator have direct or indirect pecuniary interest in any agreement with public
service of the commonwealth as per s44(v)?
• HC decided in capacity as Court of Disputed returns
o Hears petitions disputing validity of election results
Held:
• Penal consequences of breach of section - strict construction
• Purpose - can hold it applies to executory contracts only
o At the time of the contract, something remains to be done by the contractor
in performance of the contract
o More permanent or continuing contracts
• Not disqualified under s44(v)
o Each quotation from company was an offer, each acceptance occurred each
time order was placed, separate contracts and none attracted provisions of
s44(v)
Implications:
• Purpose of s44(v) has been arguably superseded, wording obscure and
anachronistic, application to be narrowly confined

Sykes v Cleary (1992) 176 CLR 77
Facts:
• Secondary school teacher employed by department of education in Victoria

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 • On leave without pay except for 2 days
• On day of election, still on leave without pay
• After he won election, resigned
Issue:
• Was Cleary holding an officer of profit under the crown as per s44(iv)?
Held:
• Office - right to exercise a public or private employment, fees belonging to that
• Disqualification played important part in politically neutral public service
o If performing public service duties, would impair role as member of house
o Shared political opinions of minister of department - would not bring free and
independent judgment to the house
o Membership of house detracts from performance of relevant public duty
• Not confined to important or senior positions - context and principal mischief to be
addressed - eliminating crown or executive influence of house of reps
• Teacher falls within categories of public servants whose public service duties are
incompatible with duties of member of HOR
• Unattached officer still holds office
• Similar arguments for state public servants
• 'Being chosen' in s44 refers to entire process of being chosen, and nomination, not
just formal declaration of the poll
o Cleary could have avoided operation of the act by resigning before lodging
nomination in the first place
Implications:
• Decision also cast on eligibility of other two candidates
• Majority held that because neither had taken reasonable steps to divest themselves
of foreign citizenship, remained entitled to rights or privileges of subject of foreign
power under s44(i)
o Also ineligible
o Provision designed to ensure that members of Parliament did not have a split
allegiance, and were not subject to any improper influence from foreign
governments

• Sue v Hill (1999) - considered whether UK was foreign power, majority held that it was and
thus Hill had not been duly elected

Composition
Elaine Thompson - Australian Parliamentary Democracy After a Century (2000)
• Criticism with respect to representativeness - argument that Parliament should reflect broader
population in terms of ethnicity, race and gender
• Race:
o 1990's - suggestions to entrench seats for Indigenous people - follow NZ model
o Noble malapportionment
o BUT breaks 'one vote, one value' view of democracy
• Gender:
o Representation is better - 28.9% women in Senate and 22.3% in HoR
o Improving at increasing rate
• Representing the majority:
o Argument that party who won a majority of seats in HoR at election did not always win
majority of the vote

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 o Will occur with the use of single member constituencies
o THUS, limitation on proposition that government formed from the winning party speaks
'on behalf of the will of the people'
• Minor party representation:
o Electoral discontent with major parties reflected institutionally through proportional
representation
o New parties and independents have the chance to be elected
o Ticket splitting - giving vote in HoR to one party and vote in senate to another - leads to
lack of majority of either major party in senate
o THUS greater representative democracy - representation of significant minority opinion

Powers and Functions: Representation, Legislation, Accountability
• Legislative Powers of the Commonwealth Parliament
Reilly et al - Australian Public Law (2011)
o Single member preferential voting system:
• Majority of votes after allocation of preferences is elected representative for that
electorate
• Usually returns a government with a clear majority in the lower house -
stable government
o Proportional voting system for senate
• States are electorates
• Each half-senate election, 6 members are elected from each state
• Proportional representation system - greater chance of minority representation
• Combination of minor parties and independents generally hold balance of power
o Federal system - legislative, executive and judicial power is shared between the Cth and
States
• Breadth of legislative power determines federal policy influence
• Importance of financial strength
• Federal structure adopted for historical reasons - states unwilling to cede all powers
to Cth
• Additional restraint on exercise of power
§ Regional control - diversity and responsiveness
§ Central govt. - areas of national concern, equality of access to resources
• S51 and 52 of Constitution - specific powers of Fed parlaiment
§ S52 - exclusive federal powers
§ S51 - concurrent powers, some exclusive
• S109 - if inconsistency between Cth and State laws, Cth law will prevail over state
law
• S51(xxxvii) - Cth can make laws about matters referred by states
§ E.g. corporations, counter terrorism, industrial relations
§ States may be wary - legislative power of Cth has progressively increased
since federation
• S122 - can make uniform laws in ACT and NT through plenary power
§ States mirror with own legislation
§ BUT limits on the power of federal courts and federal executive officers to
prosecute matters under state corporation laws
• Can request referral of power onto states
o Reserve powers doctrine - until 1920, construed legislative power under s51 narrowly to
preserve state powers
o Engineers' Case (1920) - doctrine rejected in favor of literal approach

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 • BUT may ignore federal power sharing relationship which is foundation of
Constitution
• Has resulted in expansion of legislative power in s51 - growing influence and power
of Cth Parliament in relation to states, as well as through financial dominance
o Cth legislative power could extend to large range of subject matters through
corporations power in s51(xx)
o NSW v Cth (2006) - challenge to validity of the Work Choices Act
• Argument that HC must take into account intended federal balance
• BUT act upheld - confirmed extent of Cth power in relation to corporations
• Representation and legislation functions
Cheryl Saunders - The Constitution of Australia - A Contextual Analysis (2011)
o Representative democracy - secured through parliament
• Source of legitimacy for parliament and government
• Justification for supremacy of the legislature in exercise of lawmaking function
o Responsible government - executive government holds office because it has support of a
majority in the House of parliament
o Representative and responsible government and rule of law - foundation for protection
of rights
• Allocation of powers between institutions of government rather than by instruments
o Original drafting of constitution - more limited version of representative democracy
o Difficulty in relying on representatives of majority to protect rules of representative
democracy which jeopardises them
o HC protection for democratic rules:
• Fairness of constituency boundaries
• Freedom of political communication
• Voting rights
o Can the concept of democracy evolve over time?
• Restricted conception in 1901
• Does this undermine parliament as being directly chosen by the people?
o Characteristics of representative democracy:
• Concept of representation:
§ Parliaments are deemed to represent polities as a whole
§ MP's are not delegates of voters - may make decisions contrary to popular
prejudice
§ In practice, mindful of public opinion
§ Operation of political parties with tight party discipline
§ Territorial representation - geographical boundaries
§ BUT need for more proportional representation of women, immigrants and
indigenous
• Centrality of elections
§ Held every three years at least in Cth
§ Voting is compulsory, enforced
§ Preferential voting - each member has majority of voters in constituency and
party has majority of voters overall BUT not necessarily first preference
votes
§ Administration is efficient and procedures convenient
§ AFTER ELECTION, representative democracy < responsible government
§ Electoral system - governing party to have clear majority in lower house
§ Party discipline - executive govt. can count on members of party to support
all measures during term in office
§ Parliaments are generally acquiescent rather than deliberative

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 § Unity and efficiency > diversity and institutional balance
§ BUT countered by parliamentary committees
§ Maximisation of executive control
• Modified Westminster
§ Clarification through legislation of parliamentary privileges and immunities,
circumstances and penalties
§ Evolution of bicameralism - upper houses democratised, greater substantive
power, greater conflict with lower house
§ Leads to 'House of Review' e.g. with supply
§ BUT threatens confidence of lower house in govt. that they can continue in
office, undermines responsible government
§ Enhances quality of representative democracy through greater deliberative
democracy
§ Federalism - limitation of parliamentary sovereignty under federal
constitution, and creation of Senate as powerful second chamber to
represent states
o Legislative power:
• Conferred by constitution on Parliament
• Power to create legal rights and duties, impose taxation, alter existing law
• Exercise of power under s51 is subject to separation of powers and representative
democracy
• Cth Parliament is supreme in exercise of legislative powers in Diceyan sense
• No enforceable requirement for legislation to be general, certain, equitable,
prospective or territorially bounded
• Accountability function
o 8A

Accountability of Parliament
• Judicial review of primary legislation
o 3A

• Judicial scrutiny of parliamentary proceedings
o Non-justiciable matters - matters unsuitable for determination by a court
• E.g. decision of whom to appoint or dismiss from the ministry - Stewart v Ronalds
(2009)
o Thomas v Mowbray (2007) - non justiciable if:
• Absence of constitutional competence of court under Ch III to restrain or
intervene in some of the activities entrusted to Parliament by Ch I, and Executive
by Ch II
• OR, if standing under Ch III court, if determination requires adjudication of
obligations and understandings which depend on political sanctions and
understandings
§ E.g. between Aus governments in Federation
§ Between Aus and foreign governments
o Underlying respect for traditional separation of powers
o Not every political question is non justiciable
Bennett v Commonwealth (2007) 231 CLR 91
Held: (Dicta)
• Many important political questions have been decided as legal questions
• Court has given meaning to constitutional words that require reference to political

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 values
o E.g. exclusion of women and unpropertied persons from jury for federal
crimes prosecuted on indictment - representative character of jury under s80
• Giving effect to constitutional requirements in a federation involves political
judgments in a broad sense - Dicey
• Judges must be alert to distinction between deciding:
o Whether power exists to enact a law
o Whether a law, once enacted, is desirable, wise, just, or in keeping with
historical values or conceptions of basic civil rights
• Duty of judge in giving meaning to constitutional concepts is giving effect to the
meaning of the text as it is understood from its language, history, context and
function

• Elections
o 6B

CLASS NOTES

See attachment.

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THE LEGISLATURE II
Voting
• s7 and 24 of the Constitution state that members of Senate and HoR must be directly chosen
by the people
o Requirement of popular franchise implemented by legislation
o See s93 of Commonwealth Electoral Act 1918 (Cth)
• Exemptions:
o Temporary visa holders
o Unlawful non-citizens
o Unsound mind
o Convicted of treason or treachery
o Imprisonment of >3 years
o Australian citizens living overseas unless intending to live in Australia within 6 years
• Voting at federal elections has been compulsory since 1924 - s254 of Act
• S116 of the Constitution - protects freedom of religion, protects right of man to have no
religion
o Similar argument with voting - if confer a right to vote, Parliament may not be able to
compel electors to vote
o BUT Gummow and Bell JJ in Rowe v Electoral Commissioner - system of compulsory
attendance rather than compulsory voting
o Challenge on this ground rejected in Holmdahl v AEC

Express Right to Vote
• S41 of Constitution - express right to vote in federal elections for anyone entitled to vote for
lower house of a state parliament
• Quick and Garran - held that this section is transitional provision, no continuing operation after
Commonwealth Franchise Act 1902 (Cth)

King v Jones (1972) 128 CLR 221
Facts:
• Applying s41 to resolve political controversy over lowering of voting age to 18
years
• Argument that daughter of AG was 'adult person' by social and legal
acceptance
Issue:
• Was s41 open to a shift in meaning of the word adult, or was the meaning
fixed in 1901?
Held:
• Construction of the Constitution first before any evidence was to be heard
from experts e.g. sociology
• Held that meaning was fixed from the meaning it had in 1901
• Stephen J
o Constant operation of section
o A meaning of adult which would enable a particular state to enfranchise
large numbers of persons under the age of 21, and by the operation of
s41, confer upon them the federal franchise - 'one not lightly to be
attributed to the framers of the constitution'
• Barwick CJ
o Franchise derived from state law made subsequent to the enactment of

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 the Constitution is within s41
• Menzies J
o Character of s41 - permanent constitutional provision, not to make
temporary arrangements

R v Pearson; Ex Parte Sipka (1983) 152 CLR 254
Facts:
• 4 people entitled to vote in NSW did not get to polling booths on time
Issue:
• Was s41 in constant operation or was it transitional?
o Did s41 confer each state a power to extend franchise in states after Cth
enacted laws prescribing the Cth franchise?
• Was s41 infringed?
Held:
Accepted transitional view of s41 by 6:1 majority
•
Majority view that s41 had not been infringed
•
Brennan, Deane and Dawson JJ:
• S41 does not confer a right to vote
• Statutory franchise is definitive
• Upon applicants' arguments, operation of s41 would be extended beyond this
point - conversion of prohibition against preventing a person from voting in an
election into source of right to vote at an election
• Would undermine power of Parliament to legislate for a uniform franchise
• Would empower states to increase number of electors for purpose of s128
(referendum) beyond number entitled under uniform franchise
• Cannot construe a provision relating to the prevention of the exercise of a
right to vote as the source of the right itself
• Practical effect of s41 is spent
• When Cth Franchise Act came into force in 1902, no person has acquired right
to vote under s41 since then
Murphy J - dissent
• S41 - one of few guarantees of rights in Australian constitution
• Need for purposive interpretation
• Guarantees of personal rights should not be read narrowly
• Quick and Garran - favoured restricted interpretation of s41

• Referendum in 1988 to propose deletion of s41 and ensure right to vote unambiguously -
defeated in every state

Implied Right to Vote
• Found in s7 and s24 - members of Senate and HoR directly chosen by the people
• McGinty v Western Australia (1996)
o Toohey J - system which denied universal adult franchise falls short of a basic
requirement of representative democracy
o Gaudron J - limited nature of franchise, if denied to women or racial minority, property
requirements etc. - then parliament would not be chosen by the people

Roach v Electoral Commissioner (2007) 233 CLR 162

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Facts:
• Amendments to Electoral Act in 2006 to disenfranchise all prisoners serving a
sentence of full time detention rather than those of 3 years or longer
Issue:
• Can parliament legislate to remove universal adult suffrage?
Held:
•2006 amendments were invalid - inconsistent with the system of
representative democracy established by the Constitution
• Electoral process must satisfy the requirements of the system of
representative government prescribed by the constitution
Gleeson CJ
• McKinlay (1975) - long established universal adult suffrage may now be
recognised as a fact
o Historical development of Constitutional significance
• Gummow J - evolution of representative government
• S7 and 24 - constitutional protection of the right to vote, with exceptions
• Need rationale for exceptions - definitions of excluded classes or groups need
rational connection with:
o Identification of community membership
o Capacity to exercise free choice
• Mere fact of imprisonment is not basis of exclusion
• Exclusion by federal law from voting cannot be justified as an additional
punishment
• BUT it is right to participate in political membership of community revoked
upon imprisonment
o Serious offenders - civic irresponsibility that it is appropriate to for
Parliament to mark this behaviour as anti-social, symbolic separation in
the form of a loss of fundamental political right
• S44 of Constitution - mere fact of imprisonment does not necessarily indicate
serious criminal conduct
• Disenfranchising any offender breaks rational connection to reconcile
disenfranchisement with constitutional imperative of choice by the people
Gummow, Kirby and Crennan JJ
• Category of indeterminate reference - in prisoners all being excluded - matters
of legislative and political choice
• McGinty - authority for proposition that representative government
involves:
o Bringing concerns to attention of legislators, AND
o Presence of a voice in selection of legislators
• Need disqualification to be for a substantial reason
• Disqualification of all prisoners would be more stringent than s44(ii) of
Constitution - restriction on candidates and members of Senate and HoR
• Net of disqualification is cast too wide by 2006 reforms
• BUT 3 years or more does distinguish between serious lawlessness and less
serious but still reprehensible conduct
Hayne J - Dissent
• Directly chosen by the people - common understanding of the time?
• Political acceptance has no footing in accepted doctrines of constitutional
construction

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 • Doubted that expression 'directly chosen by the people' changes over time;
should not be decided with reference to what is politically acceptable or
commonly understood


Rowe v Electoral Commissioner (2010)
Facts:
• 7 day gap between issue of writs between closure of rolls in Cth Electoral Act
1918
• Removal of this grace period in 2006 reforms
Issue:
• What was the minimum content of 'directly chosen by the people'
Held:
Amendments to enrolment procedure exceeded limits imposed by s7 and 24
•
of the Constitution
French CJ
• Requirement that members of parliament be directly chosen by the people is
'constitutional bedrock' - Roach
• Electoral law which denies right to vote to people qualified to be enrolled can
only be justified if it serves purpose of constitutional mandate
• Laws should not be an instrument to defeat franchise
• Concept of 'chosen by the people' has evolved over time - informed by
universal adult citizen franchise
o Common understanding of the time on those who must be eligible to
vote before a member can be described as chosen by the people of the
Cth - McTiernan and Jacobs JJ in Attorney General (Cth) (1975)
• In this case - alteration of long standing mechanism providing last minute
opportunities for enrolment before an election
• Need:
o Rational connection and a substantive reason
o Proportionality approach
• Need to be reasonably appropriate and adapted for an end
consistent or compatible with observance of the relevant
Constitutional restraint on legislative power - Gummow, Kirby and
Crennan JJ in Roach
• System for registering as voter is created by state
• Rationales for act:
o To prevent future possibility of fraud
o To ensure voters are responsible for enrolling in a timely manner
• BUT found that provisions were not proportionate to achieve those ends
• Legal effect of provisions is to diminish opportunities for enrolment or
transfer of enrolment, diminish representative government - disproportionate
to benefits of smoother and more efficient electoral system
Gummow and Bell JJ
• Australian Communist Party v Commonwealth (1951) - one of the
assumptions as to traditional conceptions upon which constitution was
framed was the rule of law
o Rule of law posits legality as an essential presupposition for political
liberty and the involvement of electors in the enactment of law

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 'Chosen by the people' - means share of individual citizens in political power
•
by the means of a democratic franchise
• Elections are expressive of the will of the majority of the community as proper
practical considerations permit
• Need to ask - whether at the time when the choice is to be made by the
people, persons eligible and wishing to make their choice are effectively
disqualified from doing so
o If NO, then no rational connection to reconcile disqualification
o TEST - is the disqualification for a substantial reason - Gummow, Kirby
and Crennan JJ
• Disinclined to be punitive towards those who fail to enrol on time
Hayne J - dissent
o No foundation for identifying maximum participation as an element of the
constitutionally prescribed system of government
o Absence of proven instances of fraud does not demonstrate more steps
should be taken to prevent it
o Shortening time for last minute enrolment may have effect on increasing
compliance with obligation to enrol
Heydon J - dissent
• Emphasis on failure of plaintiffs to fulfil legal obligation of timely enrolment
• Roach - contrast as she was completely debarred from voting
o Plaintiffs in this case were fully qualified and entitled to enrol and
transfer enrolment
• Provisions stopped people from taking steps to exercise entitlement over a
short period of time
• Whether voters fall within the classes prevented from voting is within their
control
• Limited classes of voters who are able, ready and willing to enrol or transfer
enrolment from doing so
• Conduct of people who turn up too late to vote, who cast informal votes etc.
does not prevent legislature from being described as 'chosen by the people'
• Burden of 2006 reforms was not disproportionate
• Substantial disobedience to laws validly enacted under a power to do so in the
Constitution (s51(xxxvi), cannot render invalid other laws enacted under that
power

• Graeme Orr - The Voting Rights Ratchet - Rowe v Electoral Commissioner (2011)
o Identification of values seen as entrenched by convention and guarding them against
legislative backtracking by demanding justifications
o More shield than sword - not comparable to search for overarching principles in implied
rights jurisprudence
• Anne Twomey - Rowe v Electoral Commissioner - Evolution or Creationism? (2012)
o Majority judgements undermine principle of parliamentary sovereignty and the role of
people in constitutional change by permitting parliament to change meaning of
constitution
o Constitution does not require the facilitation of the breaching of constitutionally valid
laws

CLASS NOTES

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STATE CONSTITUTIONS AND STATE LEGISLATIVE POWER
State Legislative Power
Introduction
• States subject to external limitations on legislative capacity of parliaments:
o Doctrine of repugnancy
o Doctrine of extraterritoriality
o Federal limitations arising from Constitution
• S5 of Colonial Laws Validity Act 1865 (Imp)
o Each local representative legislature has full power to make laws respecting its own
constitution and procedures
• Constitution:
o S106 - preserves colonial constitutions, subject to federal Constitution
o S107 - existing legislative powers to continue unless withdrawn from parliament of
states, or given exclusively to Cth
o S108 - existing state legislation remains in force
o S109 - legislation subject to Cth legislative override
• State legislative powers are subject to limitations arising from Constitution itself
o Areas of power exclusively vested in Cth parliament are excised from power of the states
e.g. s90 - levy duties of excise
o Provisions that expressly limit state legislative power e.g. s114 - states may not impose
tax on Cth property
o Limitations implied in the constitution due to s106 - makes State constitutions subject to
fed. Constitution
o Interlocking Cth-State arrangements may be subject to power in s51(xxxi) - acquisition
on just terms guarantee
• Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 - three general doctrines of government
which underlie the Constitution and form part of its structure:
o Federalism
o Separation of judicial power in Ch III
o Representative government
• Power of states is plenary
o R v Burah (1878) - each colonial Parliament was intended to have plenary powers of
legislation as large as, and of the same nature as, powers of the Imperial Parliament
itself
o State parliaments are vested with closest approximation to British concept of
parliamentary sovereignty
• Dicey - Introduction to the Study of the Law of the Constitution (1959)
o Sovereignty of parliament limited by doctrine that parliament cannot bind its successors
o Cannot limit discretion of future parliament
o Cannot disable legislature from entire freedom of action when it may need this freedom
to legislate for public welfare
• Paradoxical:
o Inability to bind future parliaments is a limit on the sovereignty on the future parliament
o Necessary to ensure the unlimited sovereignty of future parliaments
• Winterton - 3 conceptions of power
o Parliament cannot bind successors on substantive power or manner and form
restrictions,
o Parliament can change procedure and manner and form in which it legislates but cannot
impose limits on content of legislation, OR

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 o Parliament can impose manner and form requirements and limitations on future
exercise of powers
• Procedural restrictions are not inconsistent with parliamentary sovereignty
• THUS:
o Power of State Constitutions closely resembles Dicey's conception of parliamentary
sovereignty
o Through constitutional entrenchment of restrictive legislative procedures, possible for
state parliaments to bind their successors

Peace, welfare and good government
• Constitution of each state confers general legislative power on the Parliament of that State
• 'Peace, welfare [or order] and good government' - phrase found in Constitution Acts to grant
plenary power
• Suggestion that this may be a limitation on parliamentary sovereignty

Building Construction Employees and Builders' Labourers Federation of New South Wales v
Minister for Industrial Relations (BLF Case) (1986) 7 NSWLR 372
Facts:
• Act passed to uphold deregistration of BLF due to impending appeal of decision to
deregister to NSW Court of Appeal
• Argued that act that protected BLF deregistration decision was invalid because s5 of
NSW Constitution did not empower Parliament to abrogate certain fundamental rights
- rejected
Issue:
• Are the words peace, welfare and good government words of limitation?
Held:
• Street CJ
o Words of PWGG - confine powers of the legislature
o NSW has plenary powers but is subject to limits that circumscribe those powers
o Binding limit, laws which do not serve peace, welfare and good government will
be struck down by courts as unconstitutional
o Dicta - Sir Robin Cooke of NZ Court of Appeal - power of courts to impose
ultimate test upon the Constitutional validity of enactments of a sovereign
parliament
• Reservation about to the extent of which act of parliament can take away
the rights of citizens to resort to courts for determination of their rights
• Some common law rights may go so deep that even parliament cannot be
accepted by the courts to have destroyed them
o Apprehension on the part of judges of risks inherent in having absolute and
unlimited power vested in the legislature
o PWGG - source of power of the courts to exercise ultimate authority to protect
parliamentary democracy against tyrannous excesses of legislature, and to limit
power of Parliament
• Kirby P
o Right to unimpeded pursuit of the entitlement to have a case before the court
determined according to law
o Authority to suggest there are no fundamental principles which inhibit legislative
supremacy
o Lord Reid - Rejected notion of deep rights - incompatible with historical and

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 constitutional fact of supremacy of parliament
o Democratic will of the people as expressed in Parliament is paramount
o Recognises danger of judges developing a doctrine of fundamental rights more
potent than parliamentary legislation
o Extra-constitutional, lacks legitimacy - not sanctioned by the people
o Undermines rule of law, and substitutes rule of power
o Protection from oppressive majority in Parliament
• Democratic nature of parliamentary institution
• Power which allows judges to construe legislation - sovereignty of
parliament subject to the rule of law
o If legislation is clear, despite the judge thinking it is unjust or oppressive, should
not substitute their opinion for that of elected representatives assembled in
Parliament
o Difficulty in defining what 'common law rights' are, and explaining why they are
so basic that they cannot be disturbed
• Perceptions of what is a basic right will vary in place and time
o Protection against unjust or unacceptable statutes is political and democratic
Implications:
• Dicta - is there a continuing judicial power to protect certain fundamental rights
against legislative encroachment

Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1
Facts:
• Argued that PWGG in s5 of Constitution Act 1902 (NSW) did not confer power, but
were words of limitation
Issue:
• Does the phrase PWGG convey limitation?
Held:
• Peace, welfare and good government - phrase confers plenary power
• Not words of limitation - conventional formula
o Interchangeable use of welfare and order
• No jurisdiction on courts to strike down legislation on the ground that it does not
promote or secure the peace order and good government of the colony
• Did concede that in phrase, state legislation needs connection with territorial concerns
of the state
o BUT derived from text and structure of Federal Constitution - BHP Billiton Ltd v
Schultz (2004)
• HOWEVER, limit on power may be found in rights deeply rooted in our democratic
system and the common law
Implications:
• Leaves issue of deep rights open

Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399
Facts:
• Coal Acquisition Act - payments to landowners capped
• Breaches requirement under s51(xxxi) to acquisition land on just terms
• Argued that legislation was invalid - exceeded legislative powers of NSW parliament in

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 providing acquisition of property without fair compensation
Issue:
• Is right to receive just or properly adequate compensation a deeply rooted right?
• Does it them operate as a restraint upon legislative power of NSW Parliament?
Held:
Gaudron, McHugh, Gummow and Hayne JJ
• Federal system, text and structure of State Constitution as per s106 - limits to exercise
of legislative powers in text of the Constitution
• BUT in this case, just or properly adequate compensation is not implicit in federal
structure, thus not limitation
Kirby J
• Australian states derive constitutional status from Federal Constitution
• Foundation of Australia's Constitution lies in the will of the Australian people
• Would have to be according to implications derived from constitution
• Judiciary may not recognise state law on the basis that it is not a 'law'
• Present case - discrimination and injustice, BUT falls short of this situation

• Jeffrey Goldsworthy - The Sovereignty of Parliament: History and Philosophy (1999)
o Practical necessity that some institution has ultimate authority to decide legal questions
that may arise
o May be different institution with respect to different types of questions
o Possibility of abuse of power is not objection against that power
o Whichever institution has ultimate authority to decide a question must be trusted to
exercise it responsibly

Constitutional Amendment
• State Constitutions are embodied in a statute enacted by the State Parliament
• State parliament has wide powers to amend state constitution by ordinary legislative means
• S5 of CLVA - power to Colonial legislatures to have full constituent power in respect of its own
judicial system and to make laws respecting the constitution, powers and procedure of the
legislature
• S5 proviso:
o Provided that such Laws shall have been passed in such Manner and Form as may from
Time to Time be required
o THUS, Flexible constitutions, ordinary legislation rather than higher law
• HC originally held that state constitutions are higher law, can only be altered by explicit
legislation, doctrine of implied repeal was legally impossible - Cooper v Commissioner of
Income Tax (Qld) (1907)
• Taylor and McCawley - Alteration 'in accordance with the Constitution of the State' - ordinary
passage of State legislation, as well as doctrine of implied repeal

Taylor v Attorney General of Queensland (1917) 23 CLR 457
Facts:
• Attempt with Parliamentary Bills Referendum Act to impliedly repeal provision in s2 of
Constitution Act
• Bill also passed to abolish the Legislative Council by use of alternative lawmaking
procedure in Parliamentary Bills Referendum Act
Issue:

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 • Did the QLD Parliament have the power to enact the Parliamentary Bills Referendum
Act, which created an alternative legislative procedure bypassing the Legislative
Council?
• Could it be used to abolish the Upper House?
Held:
•Act valid according to power under s5 of CLVA
•Large breadth of this power - could extend to abolition of upper house
Barton J
• QLD parliament from 1865 had full power to make laws respecting the constitution,
powers and procedures of the legislature, as long as passed according to manner and
form requirements
• Section 5 in CLVA has continuing validity, acts on all laws about constitution and
powers of legislature to give them validity
Isaacs J - broad view of power in s5
• Power to make laws relating to constitution of the legislature - includes change from
unicameral to bicameral system or the reverse
Gavan, Duffy and Rich JJ:
• Legislature must always remain a representative legislature as defined by the Statute
• Not intended that a representative legislature should have the power to produce
anarchy by enacting that there should be no legislature
• BUT law to abolish Legislative Council is a valid law as legislature of QLD is still left as a
representative legislature under CLVA

McCawley v The King (1920) AC 691
Facts:
• Creation of Court of Industrial Arbitration, appointing judges for 7 year terms
• BUT Constitution provided for tenure during good behaviour
Issue:
• Could there be implied repeal of this section?
• Was there a need for a special formality for repeal, or was the Constitution more
similar to ordinary legislation without this requirement?
Held:
• Affirmed power of the QLD legislature to pass s6(6) and amend that State Constitution
• Can impliedly exercise this power
• Argued by respondents that Constitution of QLD is controlled constitution - cannot be
altered merely by enacting legislation inconsistent with its articles
o THUS would only be altered by an act which refers to it in plain and
unmistakeable language
• BUT not the policy of the imperial legislature to shackle or control legislative powers of
Australian legislatures in this manner
Implications:
• Power to amend a State Constitution by ordinary legislation
• Can also be done through doctrine of implied repeal - legislation merely inconsistent
with State Constitution

Manner and Form
• Manner and form requirements - restrict powers of the Parliament by requiring that laws on
certain topics can only be enacted by a special and more difficult procedure

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 • State Parliaments are able to impose limits on power of future parliaments
o Challenges Dicey's conception of Parliamentary Sovereignty
• Proviso to s5 of CLVA
o 'Provided that such laws shall have been passed in such manner and form as may from
time to time may be required by any act of the imperial parliament…or colonial law in
force'
• Similar proviso in s6 of Australia Act 1986 but limited to manner and form requirements from
law of same parliament

Attorney General (NSW) v Trethowan (1931) 44 CLR 394
Facts:
• S7A of Constitution Act 1902 (NSW) - legislative council could not be abolished without
a referendum
o Entrenched Constitutional Status of the Legislative Council
• 7A(6) - s7A itself cannot be amended or repealed without a referendum
o Double entrenchment
• Attempt to abolish Legislative Council by Lang government
Issue:
• Judicial test of proviso - does s7A fall within proviso as manner and form requirement?
• Does it introduce new element into legislative body?
Held:
• SC - Neither bill may be presented for royal assent without a referendum
o S7A imposed a manner and form requirement imposed by a law within the
meaning of the proviso to s5 of the CLVA
• Upheld by HC
Rich J
• Legislature of NSW is not sovereign, no analogy to British Parliament
• Proviso does NOT deal with narrow questions of parliamentary procedure - deals with
whole process of turning proposed law into legislative enactment
• McCawley's Case - reaffirms fill power of legislature to regulate its own constitution
o Power extends to enactments of safeguards aimed at restraining improvident or
hasty action
• Imperial parliament made a grant of power to legislature of NSW to prescribe to
successors a mode by which constitutional changes may be effected
Dixon J
• Law derived from imperial parliament gives legislature of NSW its powers
• Determines the extent of those powers and conditions which govern their exercise
• Raises possibility of SC jurisdiction to intrude into legislative process BUT later doubted
• Limitations on flexibility of NSW Constitution arise from sovereignty of the Imperial
Parliament, either directly or indirectly
o S5 of CLVA - confers power and describes conditions needed to exercise it
• Power to make laws respecting own constitution enables legislature to deal with own
nature and composition
• Power to make laws respecting own procedure allows it to make rules which have the
force of law
• IF power to make laws which relate to constitution and procedure - power to repeal
laws as well
• If any restraints and limitations are imposed, such restraints and limitations must bind
legislature

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 •No formal repeal is necessary - McCawley's case
•No less a law of that legislature because it requires approval of electors as condition of
repeal
o Requirement for referendum is fine
McTiernan J - dissent
• Parliament cannot cut down own powers in a way that would bind future parliaments
• 7A(6) - diminishes the power of the legislature to repeal or amend s7A
• Held that 7A(6) is not a law dictating manner, but is law depriving the legislature of
power
Implications:
• If manner and form provision has not been doubly entrenched, parliament is free to
legislate to remove the entrenchment and amend the protected provision
• For measures affecting the Constitution, powers and procedure of state legislature,
requirement of submission to a referendum can be a manner and form requirement
within meaning of s5 of CLVA

CLASS NOTES
Plenary power- power to make or unmake any law

Peace, order/welfare and good government
• BLF - not unlimited; ultimately a binding limit, source of power against excess (street CJ)
• Union steamship - peace, welfare/peace order used interchangeably, no real meaning

Deep rights - rights so fundamental that cannot be impacted by Parliament
• Different to principle of legality
• No matter how clear the words are, there are some things that parliament cannot do
• Union steamship left idea of deep rights open
• Durham - Kirby, constitutional framework therefore may be restricted in plenary power
o Just compensation - acquisition on just terms
o Avoided question of deep rights; even if it did exist, does not extend to acquisition on
just terms
• Kirby in BLF - does not exist, out of line with constitutional theory

Manner and form
• State constitutions are flexible - plenary powers
• Taylor's Case - reaffirmed flexible nature of constitution, can be changed by normal act of
parliament
• McCawley - impliedly amend it
• Trethowan - Diceyan paradox - make or unmake, but have to limit - can bind future
parliaments; therefore that parliament is sovereign, but next parliament is less sovereign
o Alternative- parliament is completely sovereign, except it can't bind future parliaments -
sovereign in timeframe
o Entrench - if harder than usual to change
o LC can only be abolished by referendum; s1 can only be repealed by referendum
• S5 proviso CLVA - plenary power given to parliament over itself, but need to be passed in
manner and form required by past legislation
o Only about constitution, laws regarding powers and procedures of parliament
o If not, these laws cannot be entrenched
In the BLF Case (1886), Street and Kirby present two different options about the circumstances in
which courts can engage…

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THE EXECUTIVE I
History and Composition
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Issue:
• Retention of underlying conception of representative government
Held:
• S7 and 24 of Constitution - HoR and Senate members to be directly chosen at
periodic elections by the people of the States and Cth respectively
• Constitution intended to provide for institutions of representative and responsible
government
• Representative government:
o s1,7, 8, 13, 24, 25, 28, 30 - give effect to purpose of self-government
• Responsible ministerial government - establish formal relationship between
Executive Government and the Parliament
o Means of enforcing the responsibility of the executive to the organs of
representative government
o S6 - session of parliament at least once in every year
o S83 - legislature controls supply - need parliamentary authority of
expenditure of executive
o S62 and 64 - combine to provide executive power of Cth - vested in Queen
• Exercisable by GG on initiative and advice of ministers - Theodore v
Duncan (1919)
o S49 - power, privileges and immunities of senate and HoR - freedom of
speech in debate
• Executive authority for each chamber of parliament to summon
witnesses, produce documents OR be punished for contempt
• Sir Samuel Griffith - effect of responsible government:
o Actual government of the state is conducted by officers who enjoy the
confidence of the people
Implications:
• Ties representative and responsible govt. together

The Crown
• Federal executive includes king or queen, GG, ministers, incl. Prime Minister and Cabinet, and
public servants employed by government departments
• Historically, king or queen formally responsible for law's administration through public
servants accountable to crown
o By constitutional convention, recognition that monarchs must act on the advice of their
ministers - Members of Parliament, ultimately responsible to it
• Ceremonial jewels are depersonalised symbol of monarch
o Monarch is personalised symbol of the State

Cheryl Saunders, The Constitution of Australia: A Contextual Analysis (2011)
• Composition of government
o Cabinet system, Prime Minister at the head
• Provides legitimacy and helps development of policy, management of government
• Decisions about new policy, expenditure, proposals for legislation, treaty
negotiations

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 o Outer ministry without cabinet responsibilities
o Parliamentary secretaries - limited ministerial functions
o All ministers are elected members of parliament, elected to particular house
o Ministers are supported by public service
o Administrative tribunals are not categorised as courts - in the executive
• Responsible Government
o Safeguard for quality of government
o Relationship of Ministers to Parliament is quality control for legislation and executive
action
o Mechanism to expose fault publically, can then be considered by voters at the next
election
o Plays role in ensuing quality and accountability
o BUT undermined by tendency of governments to rely on exercise of executive power

Power
Executive Power
• S61 of Constitution - vests executive power of the Cth in the Queen, exercisable by GG as the
Queen's representative
• Davis v Commonwealth (1988) - power has often been discussed but never defined
o Scope of power is not detailed in s61
• Executive may exercise:
o Prerogative powers of the Crown under common law
o Powers as status as a sovereign nation
o Powers conferred on executive by statue
o Capacities at common law - to enter into contracts and expend public money

Prerogative Power
• Largely incorporated in s61, but may exist independently of it
• Constitution came into force under the Crown - presupposes existence of the Crown and its
powers
• Not inherent or organic - ascribed to Crown by common law
• NSW v Bardolph (1934) - Crown at common law, and thus executive, is recognised as legal
person - can own own property, enter into contracts and form companies
• Adam Tomkins - Public Law (2003)
o Blackstone's conception of prerogative powers - term prerogative can only be applied to
'those rights and capacities which the king enjoys alone…and not to those which he
enjoys in common with any of his subjects'
• Powers unique to the crown
• Closed list of identifiable and discrete powers
o Dicey - prerogative is residue of discretionary or arbitrary authority which at any given
time is legally left in the hands of the Crown
• More expansive and vague than Blackstone's conception
• Favored by the courts
• Powers that remain after legislation or disuse
• BUT if Crown shares capabilities of other legal persons, may not be exclusive legal privilege,
which is implied by concept of prerogative
• Also difficulty in formulating closed list of identifiable and discrete powers
o E.g. Sir John Comyns - A Digest of the Laws of England (1800)
• The King's prerogative comprehends all the liberties, privileges, powers and
royalties allowed by the law to the Crown of England

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 • Federal Commissioner of Taxation v Official Liquidator of EO Farley Ltd (1940) (per Evatt J) -
royal prerogatives are so disparate in character and subject matter that it is difficult to assign
them to fixed categories or subjects
• Republic Advisory Committee - An Australian Republic: The Options (1993)
o Classification into 3 main categories:
• Executive prerogatives - monarch has power to do various acts
§ E.g. execute treaties, declare war, make peace, coin money, incorporate
bodies by royal charter, pardon offenders, confer honors
• Immunities and preferences
§ Priority of crown debts over those owed to other creditors
§ Immunity from ordinary process of the courts
§ Freedom from distress for rent
• Property rights
§ Entitlement to royal metals, royal fish, treasure trove
§ Ownership of foreshore, sea bed and subsoil
o Prerogatives are subject to legislation
o All of the prerogatives of the crown have been inherited by Cth, States or both
o E.g. Crown has original or radical title to all land
o Executive prerogatives are by convention exercised on ministerial advice or by ministers
and other officials authorised by the GG to exercise particular powers
o S61 - treated as shorthand prescription for incorporating the prerogative in the Crown in
right of the Cth
• Full range of executive prerogatives relevant to Cth legislative power is vested in
executive govt.
• Subject to control by legislation
o Crown in right of a state can exercise prerogatives relevant to State's role in federal
system
• Prerogative powers depend on common law - subject to modification by statute:
o Regulate - scheme may strip it of discretionary elements and impose criteria and
procedures to control exercise of power
• Conceptual source of power in prerogative
o Extinguish - wholly supplant prerogative
• Inherent power of government -> NOW depends wholly on statute

Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195
Facts:
• The Case of Mines (1568) - Crown owns entirety of the ore where ores such as
gold and copper were so intermingled that could only be mined together
• Royal Mines Act 1688 - altered this to encourage enterprise - no mines where
there was gold and copper mixed together would be royal mines
Issue:
• What is the prerogative right of the Crown in right of NSW to royalties from a
mine with both metals?
Held:
In relation to mixed ore body, prerogative had been long abridged by 1688 statute
•
Copper was previously owned mineral under Mining Act 1992 (NSW) - not owned
•
by or reserved to the crown
Gummow, Hayne, Heydon and Crennan JJ
• Prerogative - executive government's enjoyment of preferences, immunities

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 and exceptions particular to it and denied to the citizen
o Exceptional right about nature of property
• Courts' approach to statutory construction - prerogative of the Crown is only
displaced by express words or necessary implication
• BUT purpose of Royal Mines Act was to permit and encourage owners of metals to
reveal and operate the mine, especially when that metal was of significant value
• By the time the common law was received in the colony of New South Wales, the
part of the common law involving the prerogative in The Case of Mines had been
abridged

R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009]
1 AC 453
Facts:
• Concerns prerogative power to legislate for territories acquired by conquest of
cession
• Order of council to create constitution for British Indian Ocean Territory to
exclude natives from ever returning to islands
Issue:
• Was this a valid exercise of the prerogative?
Held:
•Order upheld as valid exercise of the prerogative (3:2)
•Blackstone - prerogative cannot be used to send subjects of England out of the
land against their will
• No barrier to prerogative exclusion of aliens - Lord Mance
Lord Bingham - dissent
• For the courts to inquire into whether a particular prerogative power exists, and
extent of the power if it exists
• Exercise of legislative power by the executive without the authority of parliament
• Principle that every state must admit its own nationals to its territory - accepted
as rule of law
• Cannot exclude individuals from territories under British control
Lord Hoffman
• Distinguished between Her Majesty's powers as Queen of the UK and powers in
respect of colonial territories under the British Crown
• Entitled to prefer interests of the UK over those of colonies, reasonable to prefer
security interests
• BUT does not immunise exercise of the prerogative against possibility of judicial
review
• Principle of sovereignty of parliament is founded upon authority of
parliament derived from representativeness
o Exercise of prerogative powers is not representative, despite being
legislative
• Prerogative legislation should be subject to review on principles of legality,
rationality and procedural impropriety

Ruddock v Vadarlis (Tampa case) (2001) 183 ALR 1 [Full Court of Federal Court]
Facts:
• Refugees rescued at sea in international waters, taken aboard Norwegian vessel

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 • Not allowed to land, troops boarded ship
• Federal Court - North J
o Held that rescuees had been detained without lawful authority - no
opportunity for reasonable escape from custody in which they were held
o Ordered that they should be released onto mainland of Australia, detained
and allowed to make visa application under Migration Act 1958 (Cth)
o Doubtful that prerogative empower had ever existed
o Despite scope of this prerogative power, it had been wholly supplanted by
the statutory scheme under Migration Act
Issue:
• Did prerogative power historically extend to the exclusion of aliens?
• Had this power been displaced by statute
Held:
Majority
• Rescuees had not been detained
• Executive power of the Cth extended to the expulsion of the rescuees and to their
detention for that purpose
• Issue separate from prerogative power - s61 as source of Cth authority
French J - agreed with by Beaumont J
• Executive power can be abrogated, modified or regulated by laws of the Cth -
Attorney General v De Keyser's Royal Hotel Ltd [1920]
o Implied assent by the Crown
o Futility of concurrent powers
o Presumption that the crown resorts to statute rather than its unqualified
power
o Parliamentary sovereignty
• Executive power of the Cth under s61 - not a species of the royal prerogative
o Power conferred as part of negotiated federal compact expressed in written
Constitution distributing powers between three arms of government, and
between polities that comprise federation
• THUS executive power of the Cth would extend to power to prevent entry of non-
citizens
o Power to determine who may come into Australia is central to its
sovereignty
o Should not suppose that government of the nation would not have this
power conferred directly by the constitution
• Absent statutory authority, there is a power to prevent entry to Australia
• Object of Migration Act 1958 is to control entry, despite no explicit words to
prevent entry to Australia
• The greater the significance of a particular executive power to national
sovereignty, the less likely it is that, absent clear words or inescapable implication,
the parliament would have intended to extinguish the power
Black CJ - dissent
• Cannot be doubted that nation state has sovereign power to exclude illegally
entering aliens from its borders, and to legislate for this purpose
• Ancillary powers of detention and expulsion must travel with a power to exclude
• BUT Undoubted power of executive to protect Australia's borders derived only
from statute
• Prerogative powers can be extinguished if:

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 o Legislation has been passed
o If incompatible with modern constitutional jurisprudence
• Prerogative power in question has fallen into disuse
• If no prerogative power at common law, doubtful that s61 of Constitution
provides larger source of executive power to exclude aliens in times of peace,
particularly under general conceptions of 'national interest'
o According to English Constitutional theory, new prerogative powers cannot
be created - Diplock LJ
• Gaps in statutory scheme but largely comprehensive
• Act should operate to the exclusion of any executive power derived otherwise
than from powers conferred by the Parliament
Implications:
• No HC appeal as act subsequently passed to authorise retrospectively the
detention of rescuees and other acts

• 2003 Iraq War - raised questions about prerogative - Constitution does not state who can
declare war for Australia or the circumstances in which Australia might go to war
• Geoffrey Lindell - The Constitutional Authority to Deploy Australian Military Forces in the
Coalition War against Iraq (2002)
o Power to deploy armed forces and declare war and peace contained under executive
power of the Commonwealth as per s61
o Modern view is that provisions of s61 contain all so called prerogatives of the Crown
under the English common law
o Prerogative nature of powers previously - powers must be exercised with parliamentary
approval, subject to existence of legislative provisions

Contracting and Spending
• Executive power includes capacity to undertake functions common to legal persons e.g.
entering into contracts and spending money

Williams v Commonwealth (School Chaplains Case) (2012) 288 ALR 410
Facts:
• Funding of chaplaincy services in schools through NSCP
• Darling Heights Funding Agreement, Cth undertook to fund provision of school
services
• No statute established NSCP or authorised such pauments
• Funding not under s96
• Not s81 - Pape v Federal Commissioner of Taxation (2009) - does not confer
substantive spening power
• Support for spending appeared to be under exercise of federal executive power
• Submissions of Cth:
o Executive power to spend is unlimited - capacities similar to other legal
persons, OR
o Executive power limited to s51, s52 and s122 grants - if legislative capacity
in those areas, then executive power
Issue:
• Did Cth lack the power to enter into the funding agreement and make payments
to the Scripture Union Queensland?

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Held:
•HC struck down the Funding Agreement
•Cth's executive power is not coextensive with the potential scope of its legislative
power
• Scheme can only be supported by legislation actually enacted by Parliament
French CJ
• No clear evidence that framers of the Constitution intended that executive power
would support acts of executive government of Cth done without statutory
authority
o EVEN if they dealt with matters within legislative powers of Cth parliament
• Executive - parliamentary wing of a political party
• System has not resulted in constitutional inflation of the scope of executive power
• System must be understood with reference to considerations of
o Federal government, and
o Responsible government; which are central to Constitution
• Federal aspect of Constitution was a factor in holding that there was limited scope
of executive power
Heydon J - dissent
• Common assumption - federal considerations taken into account when holding
that Cth executive power follows the contours of Cth legislative power
o Gives Cth a preferred position over the states in certain respects
o BUT state executive power is not fettered by Cth executive power
• Concern that executive could bypass senate, damaging representative and
responsible government
o BUT nothing in Constitution prevents Senate from initiating legislation to
control the executive's use of its power to spend what has been
appropriated
Implications:
• Doubt cast on federal programs that lacked supporting legislation, not
administered by way of grant of financial assistance to states in accordance with
s96 of Constitution
• 5-10% of all federal government expenditure
• THUS, passage of Financial Framework Legislation Amendment Act (No 3) 2012
(Cth) - provides legislative support for funding programs
o BUT reservations about validity and effectiveness of this provision
o Questioned whether this section is supported by any of the s51 heads of
power

Cheryl Saunders, The Constitution of Australia: A Contextual Analysis (2011)
• Inherent executive power
o S61 of the Constitution - federal executive power extends to the execution and
maintenance of the Constitution, and of the laws of the commonwealth
• Recognises that executive power derives from statute
• BUT execution - carrying out executive powers and duties under constitution
• Maintenance - protection against conduct that is counter to maintaining federal
institutions and authority
• Extends - power not exhaustive
• What is the depth of executive power that can be done without parliamentary authority?
o Representative and responsible government
o Categories of inherent powers:

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 • Prerogative powers
§ Dicey - residue of authority left in the hands of the Crown
§ Locke - discretionary power to be exercised for the public good
• Common law powers not unique to the crown
§ Powers to contract and spend
o Uncertainty about concept of maintenance
o Marquet - Constitutional norms are now to be traced to Australian sources
o Tampa
• Black CJ
§ Prerogative as residue of authority left to the executive
§ Doubtful that necessary prerogative existed at common law
§ Strange circumstance if such a power was to emerge in a strong modern
form under s 61
• French J
§ Primacy of s61
§ More open ended view of its scope - looking at idea of Australia as a nation
• What subjects can federal executive power deal with?
o Federalism - division of powers between the commonwealth and the states
o Principle basis - legislative powers of the Commonwealth in s51 and s52
• E.g. Executive power to declare war -> legislative power with respect to defence
o Do considerations of breadth apply to executive capacities or only prerogative powers?
• Determines limits of Cth spending power
• All claims of executive power need some link with legislative power
o Does, and if so how far does executive power extend beyond ambit of Cth legislative
powers?
• Executive power also extends to responsibilities that arise from the character and
status of Cth as a national government
• Nationhood dimension of power - can enter into agreements with states, subject
to rest of Constitution
o Pape (2009)
• Economic stimulus relied upon executive power to pay $900 to taxpayers
• Valid - French J - stimulus to be delivered on a scale and within a time frame
within the capacity of the national government
• Minority - rejected executive power as basis for tax bonus scheme - more
restrictive view of nationhood aspect of Cth executive power
o If federal executive power exceeds federal legislative power - problems with:
• Responsible government - assumes parliament can legislate to override executive
power
§ May be precluded if executive power is broader
§ BUT s51(xxxix) - Parliament can legislate for matters incidental to execution
of powers vested by Constitution in the government
• Federalism
§ Extended executive power under s51(xxxix) would undermine federal
division of legislative power
• What is the relationship between executive power and legislation?
o If Cth executive power is broader than substantive legislative power, additional incentive
to Cth government to rely on executive power to achieve policy goals
o Legislative power can be used to control activities supported by the general executive
power
o Must determine whether legislation overrides executive power as a matter of
interpretation

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 • Barton - Mason J - need clearly expressed intention to override the prerogative
• Tampa - French J - the greater the significance of a particular executive power to
national sovereignty, need clear words to indicate extinguishment
• What are the circumstances in which legislation that regulates the conduct or rights of
individuals should be constructed to apply to members of the executive government?
o Shift away from requirement for express words or necessary implication
o Focus on intention of Parliament, as derived from text and context of the statute

Accountability - the example of delegated legislation
Separation of Legislative Power
Cheryl Saunders, The Constitution of Australia: A Contextual Analysis (2011)
• Three way separation of powers under Cth Constitution
• Judiciary cannot act in a way that involves it in the exercise of legislative or executive power
• BUT relationship between legislative and executive power is less pronounced
o Due to institutional fusion of branches
o Common law conception of legislative power in system of responsible government
• Typically accepted that Cth legislation can control exercise of general executive power under
s61 of the Constitution - Barton v Commonwealth
• Delegation of legislative power
o Dignan - issue of validity of delegation to executive of a complete power over large
subject
• Power could then be exercised in disregard of other existing statutes
• Validity of delegation was upheld
• Doctrine of separation of powers NOT held to have limits on delegation of
legislative power to executive
• BUT limitations from concept of lawmaking itself - cannot broadly abdicate power
§ Limits are weak, little effective constraint
• Legislative power of Australian Parliament is not delegation from people, but
plenary and absolute power
§ Unlike US
• Once delegated to executive, power lacks independent and unqualified authority
of legislative power - not controlled by empowering statute
• Parliamentary control of delegated legislation:
o 2982 instruments created in 2007-08 at Cth level alone
o Three elements of procedure:
• Legislation requires all subordinate instruments of a legislative character to be
registered on Legislative Instruments Register
§ Prerequisite to enforcement
• Must be tabled in HoR and Senate, subject to disallowance within houses
§ If disallowed, cannot be remade within 6 months
• Senate Standing Committee on Regulations and Ordinances - responsibility for
scrutinising all instruments by reference to stipulated standards
§ Can then recommend Senate to disallow
§ In practice, will undertake negotiations with Minister to remedial actions

Robin Creyke, John McMillan and Mark Smyth - Control of Government Action: Text,
Cases and Commentary (2012)
• Tripartite separation of governmental functions and agencies
o S1 - legislative power shall be vested in a Federal Parliament
o S61 - the executive power of the Cth is vested in the Queen and is exercisable by the GG
as the Queen's representative

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 o S71 - the judicial power of the Cth shall be vested in a Federal Supreme Court, to be
called the High Court of Australia, and in such other courts as the Parliament creates

Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73
Facts:
• Transport Workers Act 1928-29 - empowered GG to make regulations with
respect to employment of transport workers
Issue:
• Is the delegation by parliament to the executive of authority to make subordinate
legislation inconsistent with Constitutional separation of powers?
Held:
Dixon J
• Regulations made pursuant to Act were valid
• From authorities, because of distribution of functions of government, Parliament
is restrained from reposing judicial power in other organs or bodies, and from
reposing anything other than judicial power in these tribunals
• Same considerations in vesting of legislative power
• Plenary nature of legislative power
• Roche v Kronheimer
o Statute conferring on executive power to legislate upon matter contained
within legislative power of parliament is a law with respect to that power
o Separation of powers does not restrain parliamentary conferring of
legislative power on executive
• BUT if conferral of powers is of such width or uncertainty of subject matter being
handed over to executive, enactment attempting it may not be a law under one of
the heads of legislative power
• Power of Parliament to authorise delegated legislation is tied to conception of
legislative power relating to history and theory
o Considerations of efficacy and continuing operation of statute
o Statute is source of obligation, continuing offences against subordinate
regulation are offences against statute
o Upon repeal of statute, regulation fails
• Legislature has power of control, capacity to take matter into its own hands
• Argument that subordinate legislation may lack independent and unqualified
authority which is attribute of true legislative power
o BUT Roche remains authoritative
Evatt J
• Not valid to make an enactment enabling executive govt. to make regulations
with the force of law on the subject of trade and commerce with other countries
or among the states
• Nature of legislative power of Cth is plenary
• BUT needs to be a law with respect to subject matters under s51 and 52 of the
Constitution
• Parliament of Cth is not competent to 'abdicate' its powers of legislation, as every
law passed by parliament must be a law upon one of the subject matters stated in
the Constitution

Power Conferred by Statute
• Additional powers conferred on executive by statute may:

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 o Be new functions, OR
o Supplement existing powers
• Executive power cannot provide a dispensation from the need to obey statute law
• Absence of power of executive dispensation of statute law is general constitutional principle -
Dixon CJ in Cam and Sons Pty Ltd v Ramsay (1960)
o Aspect of the rule of law
• Function conferred on the executive by statute - capacity to make delegated legislation
o Judicial scrutiny of these instruments is important aspect of administrative law
o Central element of legislature's control of the executive
o Also done through parliamentary committees - need to be vigilant and efficient
• Legislative Instruments Act 2003 - rules for disallowance by Parliament
o Regime for making, registration (s25), parliamentary scrutiny (s38), disallowance within
15 days of tabling (s42) and periodic repeal of delegated legislation

NSW v Commonwealth (Work Choices Case) (2006) 229 CLR 1
Facts:
• Assertion that amendments to Work Choices act were invalid
• S356 - workplace agreement entered into under new provisions void to the extent
that it contains prohibited content
• Regulations to specify prohibited content
Issue:
• Are regulations made under the legislation intra vires? (under the power of the
Cth govt.)
• Was the law within a head of Cth legislative power?
Held:
Majority
• Regulations constrained by words of 'necessary or convenient…for the purposes
of this Act' - s846(1)
• Ambit of the power must be ascertained by the character of the statute and the
nature of the provisions it contains - Morton
• Power to make regulations may have a wide ambit under act of parliament which
lays down main outlines of policy and intent to leave it to GG to work out policy
by specific regulation
• Ambit of power is imprecise, and assessing whether particular regulations are
ultra vires is not easy
• BUT s356, read with s846(1), is a law
Kirby J - dissent
• Duty of Court to uphold the lawmaking and supervisory powers of the Parliament
• Affront to proper parliamentary supervision
• Need to defend the proper constitutional role of the Federal Parliament and to
discourage future similar measures

CLASS NOTES
• Constitutional conventions

Common law powers - prerogative powers, capacities
• Prerogatives - residues left of crown powers
• Cadia Holdings
• Is there a prerogative? Yes

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 • Has it been abridged by statute? Act altered
• Bancoult
• Tampa
o Is there a prerogative?
o Is it abrogated by statute?
o French - common law prerogatives but talks about s61 - enhancing prerogative, should
be common law and weak
o Creates the executive, grants powers, does not define
• Executive powers still subject to legislation
o Technique to make it constitutional, strengthen
o Power to expel people from borders is core prerogative power of sovereign state
o Black - cannot broaden small prerogative within s61 - too late, prerogative did not exist
still

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THE EXECUTIVE II
Accountability - Non Judicial Methods: Responsible Government

Constitutional Conventions
• Conventions arise from political and constitutional practices
• Subject to change when those practices alter
• AV Dicey - Introduction to the Study of the Law of the Constitution (1885)
o Conventions - understanding, habits or practices, which are not laws as they are not
enforced by the courts
• BUT regulate the conduct of Ministers, officials and members of sovereign power
o Maxims and practices that regulate the ordinary conduct of the Crown, of Ministers and
other persons under the Constitution
• NOT laws
• NW Barber - The Constitutional State (2010)
o Non-legal rules important in unwritten, political constitution of the UK
o Conventions:
• Limit the power of the monarch
• Define the office of the prime minister
• Shape the relationships between Westminster and the devolved institutions
o Unwritten maxims of political morality
o Shape constitutional institutions through the force of usage and custom (rather than
being binding)
o Positive morality - conventions do not require the describer to adopt a position on their
value or purpose
o Critical morality - must be a reason for the rule
o Convention operates when:
• People act in conformity to the rule in general
• Rule is a cause of their conduct
• Person within political community accepts rule as valid standard for conduct
• Must be constitutional in nature to be constitutional convention
o Constitutional, psychological and historical justifications for conventions
• Conventions are not directly enforceable but can be judicially noticed, and may influence the
interpretation of statutes
o Presumption that parliament would not intend breach of convention - Copyright Owners
Reproduction Society Ltd v EMI (Australia) Pty Ltd
Re Resolution to Amend the Constitution [1981] 1 SCR 753
Facts:
• Resolution for Canadian Constitution to ask UK parl. to pass a law allowing
domestic amending procedure of Constitution
Held:
• Not in common knowledge amongst regular Canadians that many aspects of
Constitution are convention
o Not a law of the Constitution
• Main purpose of constitutional conventions:
o To ensure that the legal framework of the Constitution will be operated in
accordance with constitutional values or principles of the context
o E.g. Democratic principle -> constitutional value that informs responsible
government
• Characteristics:

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 o Based on customs and principles - unwritten rules
o Not enforced by the courts
• Often in conflict with the legal rules that are underlying convention
• BUT courts will have to enforce the legal rule
• To violate constitutional conventions is unconstitutional, despite having no legal
consequence
• Constitutional conventions + Constitutional law = Total Constitution
• Constitutional convention exists that Federal Parliament would not request
amendments to the Canadian Constitution affecting the powers, rights or
privileges of the Provinces without obtaining a substantial degree of provincial
consent
• BUT does not impose legal requirement, degree of consent not required
• Australian Constitutional Conventions:
o Office and powers of the prime minister
o Executive power of the commonwealth being exercised on the advice of parliamentary
leader of the majority party in the HoR (in constitution, power to be exercised by GG in
s61)
• Constitutional crisis - departures from constitutional practices
o E.g. Whitlam Dismissal in 1975 - counter to conventions underpinning responsible
government

Control of the Executive
• Mechanisms:
o Controls imposed by executive on itself e.g. codes of conduct
o Laws e.g. Freedom of Information Act 1982 (Cth)
o Scrutiny of Ombudsman officers, HR Commission appointments
o Parliament - mechanism of responsible government
• Decision making is subject to review:
o Tribunals - Administrative Decisions (Judicial Review) Act 1977
o Common law - Tampa
o High Court - constitutional writs under s75(v) of the Constitution
• Blackham and Williams, The Appointment of Ministers from Outside of Parliament (2012)
o Executive should be chosen by, is answerable to and may be removed by a popularly
elected Parliament
o Line of accountability from:
• The people - election of MP's to
• The executive - holds office as long as they retain the confidence of parliament
o Responsible government - ensures that the actual government of the sate is
conducted by officers who enjoy the confidence of the people
• Ministers hold office at the pleasure of the House of Reps, answerable to
Parliament for the decisions of their departments
o Menzies - RG is ultimate guarantee of justice and individual rights
o Fraser - principle of responsibility is the basis of popular control over the direction of the
government and of the destiny of the nation
o Evolving nature of responsible government
• Egan v Willis - responsible government is based on a combination of law,
convention and political practice
o Convention debates - RG is responsibility of a ministry to parliament because parliament
represents and is responsible to the people
o Components of responsible government:

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 • Collective ministerial responsibility - requires that Ministers support the decisions
of Cabinet and uphold the collective position
§ Ministers must not speak against government policy or reveal the
deliberations of Cabinet
§ Government resign if vote of no confidence is passed against it in Parliament
§ Lindell - most important aspect of responsible govt. in Australia
• Individual ministerial responsibility
§ Ministers should be accountable to the parliament for their policies, own
performance, and the performance of people and entities in their portfolios
§ Ministers must explain their actions and policies to parliament, inform
parliament of developments in their portfolio, resign ministerial position if
required
§ Lindell - party politics have diminished individual responsibility
• Dominance of party system - lower house of federal parliament is controlled by the party that
forms government
o THUS parliament may be directed by, rather than acting as a check upon, the executive
o COUNTER to feature of responsible government - parliamentary scrutiny of the
executive
• Upper house without government majority - more opportunities for scrutiny of government
action
o Senate committee system - expanded and entrenched
• Conduct enquiries on matters referred to them
• Estimates - Senators may question ministers and public officials
• Specific committees to investigate specific questions

Egan v Willis (1998) 195 CLR 424
Facts:
• Egan asked to deliver papers to Legislative Council, did not comply
• LC passed resolution to hold that Egan was guilty of contempt, and suspended
him for the day
• Forcibly removed out of the chamber to the footpath outside
Issue:
• Are matters relating to the internal affairs of Parliament justiciable?
• What are the powers of the Legislative Council in this regard and did they amount
to a trespass?
Held:
• Re: LC powers:
o Question of whether the power is necessary to the existence of the body,
and the proper exercise of the functions it is intended to execute
o What is reasonably necessary for the proper exercise of functions is to be
understood with reference to conventional practices at the time
o No question of privilege in this case
o Barton v Taylor - suspension or apology would be reasonably necessary but
not power of unconditional suspension
• Contemporary operation of system of responsible government reflects the
significant role of modern political parties, which hold control in legislative
chamber, or lower house
• While primary role of Parliament is to pass laws, also has important functions to
question and criticise government on behalf of the people

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 o Responsible government - secures accountability of government activity
• Lange v Australian Broadcasting Corporation - responsible government under the
Constitution:
o Limitation on legislative and executive power to deny electors and their
representatives information about the conduct of government throughout
the life of parliament - have to give up information
• Commonwealth v Northern Land Council - affirmed principle of confidentiality of
Cabinet deliberations and importance of collective ministerial responsibility
• Aspects of RG:
o Ministers may be members of either house of Parliament - liable to the
scrutiny of that chamber
o Ministry must command the support of the lower House
• Appeal dismissed - documents in questions not subject to privilege - Legislative
Council had power to deal with refusal to produce them by ordering his
suspension for a limited time
o Did not go beyond the boundaries of what was permissible

Implications:
• Egan v Chadwick - second case dealing with public interest immunity and legal
professional privilege
• Spigelman JA - assessing public interest immunity is not a constitutional function
appropriate to the judiciary
o Court should respect the role of a House of Parliament in determining for
itself what it requires, and the significance or weight to be given to that
particular information
o Exception for cabinet documents - confidentiality is important for doctrine
of ministerial responsibility/responsible government
• Priestley JA - differed in that should be no legal right ti absolute secrecy for people
in government, and thus Cabinet documents should not be strictly confidential

Elaine Thompson, Australian Parliamentary Democracy After a Century: What Gains, What Losses?
(2000)
• Responsible government is tied to democratic foundation of Westminster system
o Popular house selects the government which remains in power only so long as the house
allows
o Popular House and Executive face the people at elections for judgement together
o Individual ministers are accountable to parliament for conduct of their own policy
departments
• Political conventions - elected members vote along party lines, majority in lower House
supports the Government
o Adds stability to government
• At Westminster, there is no written Constitution and the Lower House of parliament is
sovereign
o In Aus, written Constitution, which divides power federally, and separates power
between individual judiciary and Parliament with two powerful houses
• Accountability of the government to the people through the parliament
o Major component of responsible government
o Need propriety, responsibility and accountability to the representative institutions of
parliament
• Parliament can hold:
o Executive as a whole accountable

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 o Individual ministers accountable
• Representative government is tied to ministerial responsibility - Spry
• Convention for ministers to resign due to error in conduct, or misconduct in office is weak
o BUT parliamentary pressure to resign may be strong
• Sutherland - while ministers may survive major attacks on their political or personal
competence and remian in office, Parliament has been indirectly effective in enforcing
ministerial responsibility
o Damage to credibility
o Less power over ministerial colleagues - reshuffles (internal party mechanisms)
• 1975 - GG did not only act on advice of the PM - breach of convention, as GG dismissed the
Prime Minister, dissolved parliament and called election
o THUS conventions yield under the force of constitutional authority
o Only normative expectation rather than law
o Convention of Senate not rejecting the budget still stands
o Casual vacancies convention, although breached, incorporated into the Constitution in
1977 referendum
• People's disapproval with govt. manipulating party composition of the Senate,
which should be determined by the vote of the people at elections
• Strong Constitutional Convention that the GG should act with moderation, good judgement
and discretion, consult PM under normal circumstances
• BUT no convention on the exact limits on the GG
• General trend - enhanced parliamentary influence over the executive
o Bargaining style of politics - Power
• Policy packages arise out of negotiation
• BUT Senate has leverage with balance of power held by group of Senators with
certain issues
• Senate politics played out on party lines rather than being a States' house as intended
o ALSO possibility of minor parties being over-representative of minority opinion - wield
power in unrepresentative way
o Keating - unrepresentative swill
o BUT minor parties must act with opposition party to frustrate the government
o Senate also gives them powers to thwart a government
• Subversion of accountability:
o Managerialist state - accountability through ensuring private sector delivers services
contracted to it by government in a client sensitive way, and through legally enforced
contracts
• Election campaigns - exposes contenders to public scrutiny and assessment, in question time
and debates in the lead up to elections
• Strong leadership in parliament and debate is necessary for good government
• Conclusion:
o STRENGHTS:
• Representative government and increased diversity
• Majoritarianism and executive domination of parliament
• Stable system, government can put policies into effect
• High level of legitimacy among Australian people
o WEAKNESSES:
• Executive accountability to Parliament
• Shortcomings of major parties

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CLASS NOTES
Williams - Capacities
• No power to fund this project
• No legislation to say executive may fund school chaplaincy programs
• Power: either
o Need actual act - express legislative provisions, valid act
o Common assumption - coextensive with legislative power, no statute needed, executive
power as big as legislative power
o Unlimited power to spend - legal personhood
• 2 and 3 overruled - went with narrow interpretation
o Federalism - pass by the senate, undermine their authority
o Responsible government - breaks down link between executive and parliament
• Thus, capacities need statutes to give executive the power to do so because of federalism
and responsible government

Delegated legislation
• Parliament giving the executive the power to make laws
• Regulations
• Are there limits on delegation?
• Dignan - can't be so broad as to abdicate powers e.g. trade and commerce to particular
minister
o But can give away some power to executive
• Work Choices - can't be open ended and vague
o Parliament has to be fairly specific about types of powers they are delegating
o Kirby's dissent - goes through responsible government and federalism arguments
• Federalism concern - eroding state powers

Conventions
• The way things are generally done
• Lesser force than all types of laws
o Can be broken without penalty
• Hung parliament - conventions
• Responsible government
o Chain of accountability - executive responsible to parliament, ultimately responsible to
people
• Collective responsibility - follow what Cabinet decides
• Thompson - individual ministerial responsibility has lost emphasis

Case Study
Mechanisms available to parliament to hold AG and Govt to account:
• Require production of documents
Senate
• Senate committee, Estimates committee
• Legislate - new or repeal old
• Make new policy
• Blocking supply
House of Reps
• Motion of no confidence
• Question time
• Call for resignation

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Non-parliamentary mechanisms
• Elections
• Media
• Judicial review of administrative action
o Administrative action/decision violates the words of the statute
• Ombudsman and tribunals
• Internal executive
o Party room
o Oversight mechanisms - ICAC
• Letter writing
• Lobby groups and activitsts

Egan
• Issue of trespass - went to court
• To figure out what was reasonable, can take into account conventions

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THE EXECUTIVE III
Judicial Review of Administrative Action
Reilly et al, Australian Public Law (2011)
• Judicial review has common law origins
o Coke in 17th C - rejected power of the King to decide individual cases for himself
• Judicial review currently is amalgam of statutory and common law jurisdiction
o State supreme courts have jurisdiction to review legality of lower courts and other public
officials decisions
o HC has jurisdiction over injunctions, writs of mandamus or prohibition under s75(v)
o Administrative Decisions (Judicial Review) Act 1977 (Cth)
• Intended to simplify procedure for judicial review, articulate different grounds of
review
• JR only concerned with legality of executive actions
o Criteria:
• Breach of natural justice - procedural fairness
§ Hearing rule (adversely affected, need to be heard before action taken)
§ Rule against bias (of decision maker)
• Error of law
• Power exercised for improper purposes
• Decision maker failed to take into account relevant consideration, or took into
account irrelevant
• Failed to exercise discretion
• No evidence to base decision on
• Decision affected by bad faith or fraud
• Decision so unreasonable that no reasonable person could have made it
• Limitations
o Standing rules - who can seek review
• Need connection between applicant's interests and the action
• Attempt to limit interference in public administration by those with no interest in
matter
• Reinforce focus on protection of individual rights
• Difficulty for public interest groups - needed individual person
• BUT AG's fiat- traditional obligations of AG to bring actions to defend public rights
• ALRC reports recommended broadening but rejected
o Courts view that administrative decisions are non-justiciable (cannot be reviewed by
courts)
• Now determined on case by case approach - will consider:
§ Political nature of decision
§ If it involves interlocking and competing policy issues that make it unsuitable
to judicial review
• Remedies
o All are discretionary
o Certiorari - quashes a decision
o Mandamus - requires a public duty to be performed or a discretion exercised
o Prohibition - prevents a decision or conduct
o Declarations of the law or rights of parties
o Injunctions - mandamus or prohibition
o Under statute no need for technical expertise
• Advantages
o Minimum level of protection of courts against encroachment by the executive

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 • No explicit constitutional guarantee but implicit in Ch III of Constitution (2010, HC)
• Disadvantages
o Administrative review:
• Has wider standing rules
• Allows larger group of people to seek review
• Can consider matter afresh and review merits of individual decision
• Has flexibility in types of remedies

Groves, Judicial Review of Administrative Action in the High Court of Australia (2008)
• Constitution places importance on protection of institutions of government
• Little emphasis on rights of citizens
• ADJR - simplified appeals procedures and extended court's jurisdiction
o BUT arrested development of new grounds for review e.g. refugee rights
• Power of judicial review from separation of powers is limited
o Courts cannot make a decision or direct outcome of discretionary power
• Gleeson CJ in Plaintiff - principles of review and appeal should inform each other
• Separation of powers used to restrict extent to which legislature can control right of access to
the courts
• Merits review - constitutional province of executive officials
o Can substitute new decision
o Wide ranging scope and tendency of tribunals to decide fact and law - Peter Cane
• Argues that distinction is not valid
• Majority of decisions on law are not generally subject to appeal
• BUT tribunal does not decide questions of law in an authoritative manner
• Judicial review - examination of legalities of the decision by courts
o Cannot examine facts, or factual correctness of the decision
o Declaration and enforcement of the law
o Based on separation of powers, conception of judicial power
o Courts should be insulated from controversial issues which involve policy
o NSW AG v Quin (1990) -
• State magistrate whose tenure ended, promised exclusive consideration for new
spot but opened up
• Brennan J - province and duty of judicial branch to declare the law as per Marbury
v Madison
• Bars courts from assuming power over merits of administrative action
• Can only declare and enforce law
• Judicial review does not protect individual interests, but extent of power and
legitimacy of exercise
• Allocation of separation of powers - division of expertise and power
o Contrast to rights based focused in other jurisdictions

Merits Review
Reilly et al, Australian Public Law (2011)
• Exercised by the executive, effectiveness depends on extent to which executive is prepared to
be bound by it
• Resolves disputes between the executive and the individual about the correctness of a
decision or action affecting them
• Will conduct review of decision of executive officer
• Tribunal can exercise the power of the original decision maker
• Merits review - consider merits of the matter argued before the original decision maker,
determine whether the correct or preferable (for discretionary) decision was made

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 o NOT just legally permissible
o Fresh inquiry into the facts, laws and policy that went into making the original
decision
• Powers under Administrative Appeals Tribunal Act 1975 (Cth)
o Affirm decision, vary decision or set it aside
• POLICY: Need to demonstrate independence from original decision maker and partisan
interests of government
o Also increases respect for decisions within Executive as well
o Need security of tenure of employees
o BUT part of executive and subject to its influence
• Tribunals should consider application of valid government policies as relevant
factor in coming to a decision - Drake v Minister for Immigration and Ethnic Affairs
(1979)
Brennan J
• Must bring own mind to the decision, not simply apply policy
• Consistency is not preferable to justice
• Different levels of policy - high level should not be set aside, low level
(departmental) less subject to parliamentary oversight, can set aside
• Judgment of a court turns on application of relevant law to facts
o As opposed to decision of Tribunal - takes into account possible application of
administrative policy to discretionary decision
• Quasi-judicial - need to observe procedural fairness
o Fair, just, economical, informal and quick
o Not adversarial - can be inquisitorial
• Bound by judicial determinations
o Does not issue binding decisions itself
o No precedent
o BUT under rule of law and certainty and predictability, previous decisions are highly
persuasive
• When decision is made, individuals have right to request reasons for decision and action
o Helps more open and transparent decision making
• Tribunals can have general jurisdiction or more narrow
o AAT has generalist jurisdiction - social security, tax, veterans affairs, corporations law,
insurance, fisheries
o Conveyed by act, removable by Parliament
o Specialist - Veteran's Review Board, AHRC
• Also at state level
AAT Report - Brinsmead and Minister for the Arts (2011)
• Whether an export permit should be granted for a steam locomotive, or whether its loss
would significantly diminish cultural heritage of Australia
• Affirmed decision to not grant permit based on expert evidence
AAT Report - MQJJ and Secretary of Department of Families, Housing Community Services and
Indigenous Affairs (2012)
• Whether the applicant was an Australian resident for the purpose of qualifying for the
disability support pension
• No ties to other country, settled accommodation in Australia - ties to Australia
• Set aside decision to not grant Disability Support Pension
AAT Report - As-Sayeed and Comcare (2013)
• Whether the applicant's employment made a significant contribution to his back pain
• Tribunal found that it was, and set aside decision that there was no basis for claim of
compensation

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Ombudsman
Reilly et al, Australian Public Law (2011)
• Established by legislation
• Independent officer of the executive
• Two roles:
o Reactive role - receive and investigate complaints from individuals about government
o Proactive role - improve quality of public administration through systemic reviews,
provision of guidelines and audits of govt.
• Concern of impact of the government on the rights of the individual
• Cth Ombudsman
o Can investigate action that relates to a matter of administration taken by a department
or a prescribed authority
o Ministerial actions and decisions are beyond jurisdiction
• Actions of intelligence bodies and public service employment disputes
o Cannot investigate exercise of judicial or legislative powers
• At state level, Ombudsman's powers held to not extend to policy decisions
o Cth Ombudsman does not have distinction between policy and administration, makes
recommendations on policy
• Can investigate upon its own motion as well as after complaint is received
• Powers of inquiry similar to royal commission, need to follow procedural fairness
• Criteria:
o Decision contrary to law
o Unreasonable, unjust, oppressive, discriminatory, or law is
o Based on mistake of law or fact
o Wrong
o Improper purpose or irrelevant grounds
o No reasons
• Disadvantages:
o Powers are limited - cannot compel agency to take action
o Relies on persuasion, publicity and compliance with recommendations
• Advantages:
o Less threatening - increased compliance
o Prestige, integrity and independence
o Flexibility in solutions-
o Facilitates operation of parliamentary accountability mechanisms
Creyke et al, Control of Government Action (2012)
• Reccomendatory rather than determinative powers
• Can persuade and publish
• Industry ombudsman schemes have determinative powers, funded by levies on participants in
scheme
o Investigations usually on financial issues
• May be more difficult to give public sector ombudsman a determinative power, and
recommendations usually not able to be switched to determination
• Would help in increasing implementation of recommendations
• Groves - Ombudsmen's Jurisdiction in Prisons (2002)
o Sceptism in adversarial system over persuasion and publicity as enforcement
o Administrative justice delivered more effectively if could correct decisions
o Could function as quasi small claims courts
o Granting determinative powers may however undermine ability to influence
administrative practices

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 o May be less likely to inquire and uncover cause of problem if determinative powers
o May encourage parties to adopt adversarial approach
o Administrative officials may percieve decisions in different light than those reached by
consensus
o Status as disinterested observers could be undermined
• Petre - Commentary: What are the essential features of an Ombudsman? (2002)
o Determinative powers preferred
o Frustration from investigative officers when departments did not make changes, process
took long time
o Increased costs as matters are upgraded to determinations

Independent Commissions
Reilly et al, Australian Public Law (2011)
• Established by executive
• Standing briefs to scrutinise the conduct of the executive
• Tension between independent operation of commissions and executive control over funding
and limits on powers of investigation
• Human rights commissions
o Charged with administering HR legislation in each jurisdiction
o Australian Human Rights Commission-protection and promotion of human rights
o Receive, investigate and conciliate complaints against executive agencies
o Holds public inquiries
o Work with govt. to develop laws, policies and programs
• Anti-corruption bodies
o Receive and investigate complaints of corruption within the public service
o Report findings

Constitutional entrenchment of judicial review
Reilly et al, Australian Public Law (2011)
• Plaintiff S157/2002 v Commonwealth (2003) - acknowledged constitutional entrenchment of
judicial review of administrative action at federal level (at state level, Kirk)
• Different to judicial review in Marbury and Communist Party Case - power of courts to
invalidate legislation in breach of constitutional terms
o Concerned with legality, not substantive merits of decision
• JRAA - presupposes statute authorising decision is constitutionally valid
• Ch III - drafted to ensure judiciary would have power to review federal executive action
o S75(v) - HC has original jurisdiction in injunctions sought against officers of the Cth, writ
of mandamus or prohibition
o Secures a basic element of rule of law - Gleeson CJ in Plaintiff
• Maintains federal compact, ensures that propounded laws are constitutionally
valid, ministerial or other official action is lawful and within jurisdiction

Integrity Institutions
Saunders - The Constitution of Australia (2011)
• Integrity Institutions - deal with individual grievances, investigate claims of maladministration,
enhance transparency, combat corruption, protect electoral democracy, regulate key services
in the public interest
• Fidelity to public purposes and application of public values
• System of review of administrative action - AAT
o Jurisdiction generally over any area of Commonwealth decision making
o Enhances accountability of public decision making - respond to individual grievances

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 • Freedom of Information Act
o Controversy over scope of exemptions
o Reforms in 2010 - balance towards further release of information
o Object of legislation linked to representative democracy and public interest
• Anti Corruption bodies
• New institutions located in executive branch
o Some steps have been taken to secure independence of particular institutions
o E.g. ICAC - former judges
o BUT majority of members from the governing party, depend on executive for budget
allocation

CLASS NOTES
Federal administrative law system
Executive
1. Internal merits review
2. External merits review
3. Administrative investigation (e.g. Ombudsman)
• Broad, rather than individual, decisions

Judicial
1. Judicial review of administrative action
• External, done by courts, strict grounds

Case study:
• Internal review
• Refugee review tribunal
• Can consider changed circumstances from the time the decision was made
• Can hear fresh inquiry into evidence and policy and facts that went into making the decision
• Original decision made irrelevant - superceded

No right to be provided with reasons for a decision at common law, however, under legislation, right
to request reasons when starting review process

Features of merits review:
• AAT has ad hoc powers - only power to review decisions where they are stated to be
reviewable under legislation
• Power to review is completely statutory, and internal to the executive
• Role of policy - higher level policy is to be considered

Exercise of judicial power - final, determinative and binding

Judicial review of administrative action
• Legality
• Not about whether the right decision has been made
• Court has no jurisdiction to cure administrative injustice or error
• Not the function of court to substitute its own decision for that of the administrator by
exercising a discretion which the legislature has vested in the administrator
• HC has almost irreducible power to

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 • Jurisdictional error - courts only have jurisdiction to review law, power of officer to make it and
if within limits of functions and powers
• Court is limited in a technical legal way
• Grounds of review
o Failure to consider relevant consideration, considered irrelevant consideration
o Denial of natural justice
• Person adversely affected did not get a fair hearing
• Decision maker was not free of bias
o Decision maker did not have jurisdiction
o Decision induced or affected by fraud

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THE JUDICIARY I
History and Overview
JM Bennett - Establishment of Court (2001)
• Appeals on settlement - quasi judicial officers, then colonial Govenor, then Privy Council
• Permitted by statute and royal prerogative
• Appealing to different courts developed in 19th century with development of District and
County Courts
• Disapproval of common Australasian court of appeal - expense and difficulty of access
• Federation debate concerned more with constitutional principle than creation of courts
• Privy Council objected to Victorian proposal for reform
• 1880 - draft bill for Act to establish Australian Court of Appeal - Imperial Council did not enact
• 1890 - Inter-colonial conference - no regional court, but supreme court with Original
jurisdiction and final appellate jurisdiction
• Griffith - shaped High Court
o Ch III - enabled Cth parliament to create HC to vest judicial power of Commonwealth
o S72 - Justices of the High Court
o S71 - Chief justice and other justices
o Privy Council appeals preserved subject to power of High Court to control appeals on
inter se questions
o Inter se questions - those involving potential competition or conflict between the
constitutional powers (particularly the legislative powers) of the Commonwealth and the
states—or alternatively, between two or more states
• HC brought into being through Judiciary Act 1903 (Cth)
o Politicians thought it would be ceremonial in nature
o Lawyers thought that majesty of state supreme courts would be impaired
o High Court declared to be a superior court of record
o Number of justices - 3
o Remuneration without pensions
o Court of Disputed Returns
• Court opened national Courthouse in Canberra in 1980
o Added to sense of centrality
• Australia Acts and Privy Council Acts - abolished Australian appeals to Privy Council
• Federal Court of Australia Act 1976 - passed to deal with state rights
o HC could then concentrate on interpreting Constitution, exposition of common law, and
being arbiter of nationally important questions of legal principle
• Judiciary Act amendment in 1984 - special leave to appeal to be sought in most cases
• High Court of Australia Act 1979 - Court to have administrative independence from the
executive government
o BUT required public disclosure of annual reports
• Indefinite terms, but change towards 70 years to retire
• At inception, all male preserve, but shift towards women
• Court attire - changed to gowns without wig
• HC now respected source of judicial authority

Stephen Gageler - Jurisdiction (2001)
• Jurisdiction - power and authority of a court to hear and determine a justiciable controversy
o Ch III of the Constitution
o Original and appellate jurisdiction
• Jurisdiction in respect of matters:

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 o No matter unless there is immediate right, duty or liability to be established by the
determination of the Court
o Cannot give advisory opinions, or opinions on hypothetical issues
• Original jurisdiction:
o S75:
i. Matters arising under any treaty
ii. Affecting consuls or representatives of other countries
iii. Commonwealth as a party
iv. Between states, residents of different states, states and residents of other states
§ Narrow view of who is a resident of state
§ Corporations cannot be residents
§ Diversity jurisdiction - matters between residents of different states is
limited to suits between natural persons
v. Writ of Mandamus or prohibition, injunction against officer of Cth
§ Most litigated - Plaintiff s157
§ HC can always review things executive does for legality
§ Ensures compliance of officers with rule of law
o S76 - parliament can grant HC any federal or constitutional jurisdiction
i. Matters arising under constitution or its interpretation
ii. Matters arising under laws made by parliament
iii. Matters of admirality and maritime jurisdiction
iv. Matters relating to same subject matter under laws of different states
§ Court has never been given jurisdiction in this area
§ Meaning unclear
• Only when right or duty in question is existant due to Cth law, or depends on Cth
law for enforcement
• Original jurisdiction in Constitutional matters not constitutionally entrenched
o Granted under s30 of Judiciary Act 1903 (Cth)
• Court of Disputed Returns under Commonwealth Electoral Act 1918 (Cth)
• Under original jurisdiction, under Judiciary Act, court can pronounce judgements, grant
remedies as necessary to do justice
o Make binding declarations of right
o Grant habeas corpus (bring person before court)
• Exlcusive matters in HC:
o Suits between states or between Cth and state
o Matters in which writ of mandamus or prohibition against officer of Cth
• With Constitutional matters, can request withdrawal from state court

David Jackson - Leave to Appeal (2001)
• S73 - jurisdiction to hear and determine appeals
o Unlimited subject matter
• Should consider and determine whether the judgement of the court appealed from was right
on the materials before that court
o Cannot receive fresh evidence on appeal
o Apply law that existed at the time of judgement that appeal is from
• Jurisdiction under legislation, exercise of Cth legislative power (s122 of Constitution) to hear
appeals from Supreme Court of territories
• Removal of appeals to Privy Council - HC final appellate court for Australia
• No appeal as of right from decision of the Supreme Court
o Re Supreme Court - constitutional validity upheld in Carson v John Fairfax and Sons
(1991)

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 o Requirement for special leave - HC has discretion to choose the appeals it will hear
o Criminal appeals have now become a larger part of the Court's work
• Special leave granted where:
o Sufficiently important legal issue is involve
o Irregularity in way In which the matter has been dealt with by lower courts
• S35A of Judiciary Act:
o Proceedings involve question of law:
• of public importance, or
• Decision of High Court needed to resolve differences of judicial opinion, or
o Interest of administration of justice
• Need to demonstrate that:
o Issue is of significant importance to merit special leave
o Case is suitable vehicle for resolution of the issue
o Contentions on the issue are sufficiently arguable
• Oral hearing - endeavour to get to heart of case as quickly as possible
• Court will usually not give reasons for grant of special leave
o When refusing, may give brief reasons
• Special leave may be granted on terms
• Grant of special leave may be rescinded - importance may disappear e.g. due to statute being
repealed or amended
• Refusal of application does not preclude reopening leave to appeal
• Number of special leave applications heard each year has been increasing
• Often heard by video link

Stephen Gageler - Counsel, role of (2001)
• Presentation of argument before the court is the role of counsel representing the parties, or
appearing as interveners
• Role of counsel formally facilitated by the provisions of Judiciary Act 1903 (Cth)
• Appearance in court in practice confined to barristers - specialist advocates
o Predominantly from independent bars
• Adversary system of justice - emphasis on the role of counsel
o Task of court is to evaluate arguments put before them and choose between them
o Role of counsel is to marshal arguments and present to Court for result favouring client
o In reality, Court has significant role in shaping form of arguments presented to it
• Griffith Court - more interventionist role of judges
• Move towards less judicial intervention in argument of counsel
• Tendency of court to work out new and unexplored solutions of cases after argument finished
- Dixon
• Barwick - back to interrogation
• Mason - back to curtailing of lengthy oral argument
o BUT more working out of solutions after argument finished
o Written argument introduced
o Strict time limit of 20 mins for special leave applications introduced
o Display of light when limit reached

Composition and Appointments
• According to s72 of the Constitution
o Appointed by AG, removed by GG on misbehaviour and constant pay
• NSW v Cth (Wheat Case) (1915) - HC judges have guaranteed tenure for life under s72(ii)
• Referendum in 1977 - compulsory retirement age added of 70 for HC, and max of 70 for other
courts

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 •Appointments
o 50 appointments to the High Court
o Judges from narrow section of Australian society
o 4 women, no multicultural, appointed directly from the bar or lower judicial post
o Largely from NSW and Vic
• Centralising tendency of Court in Constitutional decisions
o Political nature of appointments e.g. former AG's
o Controversial appointments - political learnings, concern over merit
• Federal executive determines who to appoint and criteria for selection
• George Williams, High Court Appointments: The need for reform (2008)
o 72(i) - GG appoints, but in practice, on the advice of government of the day
o High Court of Australia Act 1979 -
• S7 - need to be judge of federal or state court, or legal practitioner for more than 5
years
• S6 - AG should consult with state AG's
o Essential criteria of merit
• Professional skills, personal qualities such as integrity and industry, proper
appreciation of the role of the Court
• AG conducts consultation informally with CJ, governments, professional
associations and other judges to ask for personal opinion or impression
• Then informs Cabinet of recommendation
o Other influences on Cabinet - politics of appointee, state of origin, friendships and views
of sitting justices
o Lack of established criteria and entrenched process of public consultation
o Appointments - 'gift of the government of the day'
• Proposals for reform -
o Adoption of criteria to guide the process rather than simply merit
o Establishment of a judicial appointments commission to advise on making of
appointments
o Stephen Gageler (HC Justice) - wider considerations should be brought to bear including
geography, gender and ethnicity
• Reforms to Federal and Family Court appointments in 2007
o Explicit appointment criteria
o Advertisements for expressions of interest
o Use of advisory panels for shortlist of suitable candidates
• More groups consulted for HC:
o Australian Women Lawyers
o National Association of Community Legal Centres
o Deans of all Australian law schools
• Senate Standing Committee on Legal and Constitutional Affairs - 2009 report
o Scope to increase transparency in appointment process
o Should advertise vacancies widely
o Detail selection criteria based on merit

Background of Judges
Francesca Dominello and Eddy Neumann, Background of Justices (2001)
• Majority of appointments made by conservative side of politics, and from apolitical or
conservative leaders of the bar
o Not necessarily connection between this and judicial independence
• 1/3 of appointments made by Labour party
• Age of justices may lead to conservative

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 • None of the justices appointed since 1975 had background of direct political activity
• 14 of 23 appointments since 1958 came directly from the judiciary
• Solicitors general also appointed
• Duration of prior judicial experience also varies
• Growing tendency to look to established judiciary for source of High Court appointments
o Reflected in large experience of candidates
• Diversity of judicial experience e.g. Aboriginal Land Commission, ALRC
• Careers in government service
• Prior military experience
• Absence of appointments from SA and TAS, disproportionate representation of NSW and
Victoria
o Affects perceptions of broad state wide representation
• Ethnic origins of almost all justices has been British Isles
• Only 11 of 43 were educated at state schools
• Conservatism may lead to stability in a changing world, may be preferable in influencing the
balance of social forces

Power
Defining Judicial Power
• What constitutes judicial power - imprecise to allow pragmatic flexibility
• Griffith CJ in Huddart, Parker & Co Pty Ltd v Moorehead (1909)
o S71 of Constitution - power which every sovereign authority must have to decide
controversies between its subjects, or between itself and its subjects
o Rights relating to life, liberty or exercise of property
o Tribunal with power to give binding and authoritative decision needed
• Lack of means of enforcing determination on the rights of parties - absence of judicial power

Momcilovic v The Queen (2011) 245 CLR 1
Facts:
• Charter of Human Rights in Vic - s36(2)
• If provision cannot be interpreted consistently with human right, court can
declare this and minister will have to respond
• Argued that s5 of Drugs, Poisons and Controlled Substances Act 1981 was
incompatible with presumption of innocence in Charter
Issue:
• Is this a declaration which involves the exercise of judicial power?
Held:
• Declaration cannot be made if it will 'produce no foreseeable consequences for
the parties' - Gaudron J in Truth About Motorways
• Declaration power in s36(2) of inconsistent interpretation does not involve
exercise of judicial function
• Did not confer judicial power on the Supreme Court of Vic
• Does not 'enable or support the exercise of judicial function by the court' - joint
judgement in Boilermakers Case
Outcome:
• Declaration power upheld
o French CJ and Bell J - permissible for Vic Parliament to confer non-judicial
function on Supreme Court
• Similar power cannot be granted to a federal court if enacted national bill of rights

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• Difference between judicial power and other - 'binding and authoritative quality' - Griffith CJ
o Parties are bound by determination
o Others are able to understand rights and obligations as a result

New South Wales v Kable (2013) 298 ALR 144
Facts:
• Order to keep Kable in custody for 6 months under Community Protection Act
• Legislation declared invalid
Issue:
• Was detention false imprisonment?
o Was Levine J exercising judicial power when he made the order to keep
Kable in custody?
Held:
• Court has jurisdiction to decide its own jurisdiction
• Orders of a superior court of record are valid until set aside or appealed
o If not exercise of judicial power can yield no adjudication of rights and
liabilities with immediate effect
• Thus detention order was valid until it was appealed

• Power of non-judicial tribunals distinguished from courts
o Grant of power is to be appropriately tailored to legislative purpose

R v Trade Practices Tribunal (1970) 123 CLR 361
Issue:
• Were powers of Trade Practices Tribunal involving judicial power, or were they
validly conferred?
Held:
• Did not involve judicial power
• No exercise of the Tribunal's powers in an adjudication (as by court)
• Result achieved by exercise of powers is not that of the nature of judicial power
• Judicial power involves decision settling for the future, between defined persons,
of existence of right or obligation
• Tribunal's power does not involve process of inquiry into law, facts, application,
and enforcement

• Mc Hugh J in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs
(1992)
o Line between judicial and executive power Is blurred
o Need value judgement and consideration of circumstances of exercise
o Historical practice is relevant
• May be move away from historical practice in some areas - White v Director of Military
Prosecutions (2007)
• Thomas v Mowbray (2007) - imposition of legal restrictions on people on the basis of actions
they may potentially commit in the future - exercise of judicial power
• THUS judicial power has indicia e.g. fairness and detachment, but not decisive
o If power is judicial, depends on weighing up factors
• AR Blackshield - The Law (1981)

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 o Judicial power is controlled power - must be based on authoritative legal materials
• Rules, principles, conceptions and standards applied must be drawn from existing
law
• Some room for independent interpretive judgement, but not too much
o Applying standards of 'justice' - accepted:
• Argued it may be beyond judicial power
• Requires subjective determinations
o Failed arguments:
• 'Tyrranical', or 'oppressive' as standards
§ Rejected as vague and general
• 'Contrary to the public interest'
§ Not justiciable
§ Questions of policy that are more relevant to law making
• Formation of tight legislative guidelines is incompatible with idea of judicial power
§ Palling v Cornfield (1971) - argued that cannot reduce court to mere rubber
stamp
o Important that judge believes and acts as if principles they apply are derived from
existing legal materials
o If tribunal -> court, and thus judicial - power with determination to impose liability or
affect rights - Palles CB in R v Local Government Board (1902)
• Decision of judge has binding force even if law and facts are wrong
o Judicial power - control by facts
• Walsh J - Cominos v Cominos (1972)
§ Court must decide circumstances of the case
§ Cannot act upon broad policy considerations
o Court has duty to act - no discretion:
• Must wait until claim is filed
• MUST determine issues in claim
o Judicial power must be exercised with judicial fairness and detachment
• Judicial independence
• No irrelevant matters to be taken into account
• Judge should not be swayed by views of personal judgement, but judgement the
court should deliver

CLASS NOTES
• Proportionality - reasonably appropriate in the circumstances

Executive power includes:
• Power conferred by statute
• Prerogative powers - subject to legislative regulation e.g. Tampa
• Capacities e.g. to spend/contract - in most cases require legislative authority - Williams
• Nationhood power
The behaviour of the executive is governed in part by constitutional conventions
• Prime minister
• Responsible government
• Royal assent always given
Mechanisms for holding the executive to account include
• Responsible government - Egan

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 • Merits review - internal and external
• Ombudsman
• Judicial review of administrative action

The High Court
• The Court
• What it does - jurisdiction
o S75:
i. Matters arising under any treaty
ii. Affecting consuls or representatives of other countries
iii. Commonwealth as a party
iv. Between states, residents of different states, states and residents of other states
v. Writ of Mandamus or prohibition, injunction against officer of Cth
§ Most litigated - Plaintiff s157
§ HC can always review things executive does for legality
o S76 - parliament can grant HC any federal or constitutional jurisdiction
• Granted under s30 of Judiciary Act 1903
o S73 - appellate jurisdiction of High Court
• All judgements of any judges
• Of supreme court, other courts of states
o Criteria in s35A
• Has to be a question of law
o High Court to avoid civil war, fight out differences between states and between Cth
o Does not include Constitutional matters
• BUT s30(a) - original jurisdiction in matters arising under the Constitution or
involving its interpretation
• Not protected
• Who
o Appointment, tenure and remuneration influences judicial independence
o Most of protection in conventions
o S72 - appointment, tenure and remuneration:
i. Appointment by GG in Council
ii. Removal on misbehaviour
iii. Remuneration fixed by parliamen
• Judicial Power
To what extent should the federal Attorney-General consider ‘diversity’ when making
appointments to the High Court? What elements of diversity (if any) do you consider to be the
most important?

As both Jess and George have argued, merit should continue to be the overarching criterion for
appointments to the High Court in order to maintain the high calibre of legal expertise, as well as the
characteristics of integrity and independence, that are necessary for such a position. However, it is
indeed true that given the historical demographics of appointees to the High Court, there is
something to be said for considering diversity in the process of the selection of High Court judges.

A contributing factor to this phenomenon may be the lack of transparency of judicial appointments.
As George Williams argues, the current process may lead to the perception that appointments are
'the gift of the government of the day', as opposed to being based on actual capability and
professional skill. This undermines the confidence of the broader community in the capacity of the
High Court to administer just and impartial decisions, insofar as the process leads to a less
representative and diverse bench. Thus, there is a need for greater public disclosure of the criteria

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used to determine merit. This will help ensure that ethnicity, gender, geographic location and other
such characteristics are not a prohibitive factor when assessing the merit of potential candidates
based on well established criteria.

Current efforts to increase consultation with Australian Women Lawyers and the National
Association of Community Legal Centres should ensure that a more diverse range of capable
candidates are fielded, but including more of these groups in the process, including Aboriginal legal
groups, would improve the diversity of the pool of potential candidates. The resultant effect would
be that the broadest possible range of people capable of displaying the characteristics of High Court
judges are considered. This will help ensure that future appointments are truly based on merit, and
should help to address some of the deficiencies in representation that have been entrenched in the
judiciary over the past century.

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THE JUDICIARY II
Judicial Independence and the Separation of Judicial Power
Judicial Independence
Ninian Stephen - Independence, Judicial (2001)
• Critical to existence of modern democratic government
• If not independent, cannot be just and fairly administered
• Origins - independence of judges as keepers of rule of law
o Judges from barristers - legal profession
o Judges changed to holding office at royal pleasure to good behaviour - made official
under Act of Settlement 1701
o Basic principle of England's unwritten Constitution
• S72 in Australia - requirement of proven misbehaviour or incapacity as only ground for
removal
• Superior courts - ensured by legislation conferring security of tenure and remuneration
o Tenure under s72
• For impartial exercise of judicial power, individual justice needs to maintain independence and
not let things affect them
• Separation of powers supports judicial independence - strict separation of judiciary from other
arms of government
o Important function of courts - judiciary can exercise protective function
o Protect citizen from unlawful acts of government agencies and public officials
• Importance of independent judiciary in interpreting and reviewing constitutionality of
legislation
• Kable v DPP (1995) - McHugh J
o Basic principle of the Australian Constitution that judges of federal courts are
independent of legislative and executive governments
• Boilermakers Case (1956) - in Federal system, independence of judiciary is bulwark of
Constitution against encroachment by executive or legislature
• Immunity of judiciary from civil liability
• Protection of individual justices from criticism in parliament - does not undermine authority,
and preserves independence
• Appointment of justices is matter of government of the day
o Could be done by senate approval, independent assessment, or advisory judicial
appointment commissions to enhance independence

The Separation of Federal Judicial Power
• Strict insulation of judicial power is fundamental principle of the Constitution

New South Wales v Commonwealth (Wheat Case) (1915) 20 CLR 54
Facts:
• Inter State Commission Act 1912 (Cth) - created Inter State Commission to deal
with matters relating to trade and commerce under s101 of the Constitution
Issue:
• Did the act attempt to invest judicial power in the Commission?
• Was the act invalid?
Held:
• Executive power - execution and maintenance of the Constitution and of the laws
of the Commonwealth
• Strict insulation of judicial power is a fundamental principle of the Constitution

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 • Act purported to invest Commission with judicial power, and thus invalid
• Ch III - vests judicial power of Cth in Courts - HC, federal courts created by
parliament and courts vested with federal jurisdiction
o Judicial power must be exercised by specified judicial tribunals
• Inter-State Commission is prima facie implying executive body
• Constitution provided for quasi-judicial functions
• Power under s101 did not convert it from executive to judicial branch
• Court has no active duty in observing laws, insisting on obedience and taking steps
to vindicate them
o If it did so, independence would be diminished, constitutional separation of
powers would be frustrated
• Commission is not a court of justice, quasi judicial powers are incidental to main
purpose - making of executive orders
Implications:
• Commission rendered powerless
• Continual attempts to re-establish but abolished

Waterside Workers' Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434
Facts:
• Establishment of Commonwealth Court of Conciliation and Arbitration
• Consist of Judge who is also HC judge
• Provided to be Court of Record
• Waterside Workers Federation alleged employer was in breach of award
• Judge serving 7 year term rather than unlimited tenure under s72
Issue:
• Could judge of this Court discharge arbitration functions and judicial functions?
Held:
•Conferral of arbitral powers valid by 6:1
•Conferral of judicial powers invalid by 4:3
•Relevant award validly made using arbitral powers, but could not be enforced by
him since no judicial function
Isaacs and Rich JJ:
• Judicial power - ascertainment, declaration and enforcement of rights and
liabilities of parties (s71)
o Only has power to give effect to rights recognised by law
• Arbitral power - ascertain and declare, but not enforce opinion of arbitrator as to
what the respective rights and liabilities of each party are (s51xxxv)
o No fixed code of law which Court of Arbitration interprets
o Decision is only a declaratory statement
• Only arbitration portion of the act is valid
Implications:
• Unclear if arbitration and judicial functions needed to be kept separate

• Dicta in Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan (1931)
(Dixon J)
o Judicial power cannot be vested in any tribunal other than Ch III Court
o Ch III Court cannot be vested with anything other than judicial power (unless necessary
to function as court)

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R v Kirby; Ex Parte Boilermakers' Society of Australia (Boilermakers' Case) (1956) 94
CLR 254
Facts:
• Metal Trades Employers' Association sought to enforce a no-strike clause in an
award
• Order nisi from HC to show why writ of prohibition should not issue
• Argued that vesting judicial power in body exercising non-judicial power was
unconstitutional
Issue:
• Can judicial and non-judicial power be vested in the same tribunal?
Held:
• Federal Constitution must be rigid
• Exercise of powers cannot be carried out unless responsibility of deciding on limits
of respective powers of the governments is placed in federal judicature
• Powers of the federal judicature must be paramount and limited
• When exercise of legislative power is directed to the judicial power of Cth, must
conform to Ch III
o Can only vest judicial power in Court created pursuant to s71 and s72
• Text of Ch III provides exhaustive outline of judicial powers - provisions specific
and precise, do not indicate other powers could be exercised
• Even without considering separation of powers, different parts of Constitution
deal with different powers
• Judiciary has ultimate responsibility for maintenance and enforcement of
boundaries within which governmental power may be exercised
• Fundamental principle of federalism - allocation of powers of government
• What belongs to judicial power is determined with reference to whether it has a
sufficient relation to the principle judicial function
• THUS arbitration court cannot combine judicial function with arbitral function
o Ch III does not allow powers which are foreign to the judicial power to be
attached to the courts created under Ch III for exercise of judicial power and
vice versa
• Order nisi made absolute
Implications
• Judicial and non-judicial power cannot be vested in the same tribunal
• Attorney-General (Cth) v The Queen [1957] AC 288
o On appeal, Privy Council affirmed the decision
o Held that principle of separation of powers embodied in the Constitution
• Act amended to divide former Court into Commission and Court
• NOW strict demarcation between non-judicial Commissions and Court exercising
judicial power
• R v Joske (1974) - HC raised notion that conclusion of Boilermakers' Case led to excessive
subtlety and technicality in operation of Constitution, and unsuited to workings of the
Constitution in the circumstances of the nation
• Boilermakers Case - rationale was need to insulate judicial responsibility for the maintenance
of the Constitution from political interference
o BUT role in policing constitutional limits of government now about individual rights as
well as federal distribution of powers
• R v Quinn (1977) - question of whether a power is a judicial power:

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 o Inherited Constitutional system of law and government which protects rights of persons
o Ensures rights are determined by judiciary independent of Parliament and executive

The Separation of State Judicial Power
• State constitutions do not have Constitutionally entrenched separation of powers - Clyne v
East (1967)
o No basis for isolating judicial power from other powers of government
• Possibly achieved by entrenchment of judicial independence and security of tenure under
Constitution (Entrenchment) Amendment Act 1992 (NSW)
• BUT no strict constitutional insulation of judicial independence - Kable

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Facts:
• In jail, sending letters to wife - death threats
• Act to extend sentence for 6 months past end of sentence
Issue:
• Did the Constitution Act embody a separation of powers?
Held:
• Nothing in the structure of the Act supports separation of powers
• Does not provide that judicial power in the State is vested in the judiciary
• Provisions added preserve judicial independence, but do not vest exercise of
judicial power exclusively in judges
• Do not preclude exercise of non-judicial power
• Under Cth, Judicial power vested in Ch III and nowhere else (only s51xxix)
Implications:
• Limit on state government power to treat courts in certain manner
• Incompatible - undermined vision of court doing justice

• BUT separation of powers is still powerful political doctrine of good government - Carney
(2006)

Reasons for Separation
James Stellios - Reconceiving the Separation of Power (2011)
• Separation of powers has constraining effect on exercise of government power and design of
institutions to exercise power
• Core aspects of doctrine rejected by HC judges and commentators:
o No firm constitutional foundations
o Unnecessary constraints on decision making capacities
• Argues that courts should instead be prevented from exercising power:
o That undermines judicial independence and impartiality, and
o That is exercised according to political considerations
• Constitution requires protection for decision making through representative and responsible
government
• Separation of judicial power principles:
o Commonwealth judicial power can only be exercised by courts
o Parliament can only confer power on courts to determine disputes
• Reasons for separation:
o Role of federal judiciary is to protect federal compact, can only do so if independent and
impartial

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 • Alexander's Case - life tenure needed to secure independence, independence
needed to police federal system
• Boilermakers Case - while executive and legislative power can coincide, judicial
power must be separated to maintain federal system
o Rights protective effect of separation of judicial power
• Prevents concentration of power in one decision maker
• Protection for life, liberty and property - basic rights
o Protects independence of courts to provide check on other arms of government
• Wilson - Separation of powers allows checks and balances by respective organs of
government

Exceptions to the Boilermakers Case
• Some recognition of sources of judicial power outside the framework of Ch III
o E.g. appeals to HC from Territory courts - under exercise of legislative power under s122
(government of territories
o Difficult to reconcile with assumption that Ch III is exhaustive and exclusive

Military tribunals
• Boilermakers' case - cannot create courts with jurisdiction appropriate to subject matter of
power under s51 heads
• R v Bevan - courts martial and military tribunals validly established under defence power -
s51(vi)
• R v Cox - exception to general rule
o Military tribunals do not form part of the judicial system administering the law of the
land
• Re Woolley, McHugh J:
o Power of parliament to punish for contempt is an exception more apparent than real
o Judicial power of military tribunals - exception based on historical grounds
• Re Tracey; Ex Parte Ryan - Convention debates were silent on the subject of military tribunals -
inference that traditional system of enforcement would remain
o O'Connor envisaged parliament would have power to decide how military courts are to
be conducted, and the form of that court
• White v Director of Military Prosecutions - called upon to overturn R v Bevan and R v Cox, but
court declined
• Defence Legislation Amendment Act 2006 (Cth) - created court of record known as Australian
Military Court
o Invested with jurisdiction to try charges under the act
o Judges not appointed in accordance with s72 BUT court exercising federal judicial power
o Note to S114 -AMC is not a court for the purposes of Ch III of the Constitution

Lane v Morrison (2009) 239 CLR 230
Facts:
• Lane charged with act of indecency without consent, assaulting superior officer
• Seeking declaration by JC that provisions creating AMC were invalid
Issue:
• Was the enactment of the AMC valid?
Held:
French CJ and Gummow J
• Special position of military justice given by defence power is confined to that in R

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 v Cox
o Ensure that discipline is just - need tribunals acting judicially, essential to
organisation of army, navy or air force
o BUT does not form part of the judicial system administering the law of the
land
• 2006 Act took the AMC beyond what is authorised by s51(vi) of the Constitution
o AMC outside the previous command structure, in order to provide
independent and impartial tribunal for military personnel, in response to UK
case of Findlay
o BUT this exceeds power under s51(vi)
o Decisions of court martial subject to automatic review by chief of staff and
confirming officers, decisions of AMC were not subject to review or
confirmation within chain of command
• AMC not valid
• Court can establish system of military justice outside Ch III by using defence power
under s51(vi), but did not happen with AMC
Implications:
• 2009 amendments in Military Justice (Interim Measures) Act (No 1) 2009 (Cth)
restored former system of military tribunals
• Validated decisions of the AMC

Haskins v Commonwealth (2011) 244 CLR 22
Facts:
• Man detained by AMC due to misuse of Defence Travel Card
• Challenge to 2009 Act - legislative usurpation of judicial power
Issue:
• Was there a legislative usurpation of judicial power?
• Did new provisions enlarge exceptions to Ch III with military justice?
Held:
• Argument of exclusivity rejected - not true that only Ch III Court could impose
punishment of detention on the plaintiff, or others who the AMC deals with
• Why is this not exercise of judicial power of Cth:
o Punishment imposed by legislatively regulated exercise of power of
command of defence force; this is essential for their functioning and
effectiveness
o No binding and authoritative decision of guilt or determination of
punishment for a service offence
• Statutory regulation of naval and military discipline - historical fact

Persona Designata Rule
• Persona designata - assignment of non-judicial functions to a judge in their 'personal capacity'
o A person who happens to be a federal judge may be assigned to perform non-judicial
functions as long as the appointment is addressed to the individual person

Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577
Held:
• Nothing in the Constitution which precludes a justice of the High Court or judge of
other federal court created by Parliament under Ch III, being appointed in

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 personal capacity to an office involving the performance of:
o Administrative
o Executive functions
o Quasi-judicial functions
• This does not involve conferring functions that are not consistent with the
exercise of judicial power

Hilton v Wells (1985) 157 CLR 57
Facts:
• Federal Police investigation into allegations of bribery and corruption in procuring
early release of prisons
• Telephone tapping provided evidence, warrants issued by judges under s20 of
Telecommunications (Interception) Act 1979
• Challenge to admissibility of evidence
Issue:
• Is power of judges to issue warrants under s20 conferred upon judges or on the
Federal Court?
Held:
Gibbs CH, Wilson and Dawson JJ
• If power conferred by s20 is conferred on the Federal Court, vesting of courts with
power that is not ancillary or incidental to judicial functions, and will be invalid
• Where a power, judicial or non-judicial, is conferred by statute upon a court or
judge, it is not necessarily conferred on the court or judge as such - need
construction
o When power is conferred on court, presumption that court is intended
o When power is conferred on judge, question whether the power is invested
in the judge as an individual who exercises it because of having the
necessary personal qualifications arising from being a judge
• Must examine:
o Statute itself - reference to power being conferred on judge, as a
'designated person'
• Unlikely that Parliament inteded to confer power on court
o Nature of power conferred - will it be exercised by judge in capacity as judge
or as designated person?
• If judicial power - intended to be exercised by judge in that capacity
• If administrative power, not incidental to exercise of judicial power -
inteded to be exercised by judge as designated person
o If any provisions of Federal Court of Australia Act influence this exercise of
power
• BUT in this case, only falls under Telecommunications act, not
enforced under FC Act
• S20 confers no power on the Federal Court - does not infringe the rule in the
Boilermakers' Case
o Section designates judges as individuals well qualified to fulfil that role of
grating warrants
o Confers a function that is not incompatible with their status and
independence
o Not inconsistent with their exercise of judicial power
Mason and Deane JJ (Dissent)

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 • Need clear expression of legislative intention before holding functions entrusted
to a judge of a federal court are exercisable by him personally
• Boilermakers' protects independence of the federal judiciary
o To preserve this, should insist that Parliament may confer non-judicial
functions on a federal judge if there is a clear expression of legislative
intention that these functions are exercised in personal capacity
o Need to be detached from the court that they are a member of
• ALSO supported by separation of powers - safeguard of individual liberty - R v
Davison
• Possibility that due to separation of powers, parliament cannot confer
unavoidable obligation on judges to perform administrative functions as a
designated person
• ALSO community and legislators are entitled to expect that when functions are
conferred to judge with reference to his judicial office, they wll be performed in
judicial capacity
o Avoids 'distinctions without differences' - Dixon J in Meyer

Grollo v Palmer (1995) 184 CLR 348
Facts:
• Telecommunications Act amended to clarify that a judge who authorised a
telephone tap was doing so as persona designata - in personal capacity
• Powers conferred on 'eligible judge'
• Argued that separation of powers principle of Boilermakers' should not be
undermined by accepting that legislative or executive power can be reposed in
individual judges without being vested in the court
o Persona designata is then a charade to conceal reality that non-judicial
power has been conferred on judges of Ch III court
Issue:
• Is the performance of this role in the criminal investigation process incompatible
with judicial office, even for a persona designata?
Held:
Brennan CJ, Deane, Dawson and Toohey J
• Role in the criminal investigation process compatible with judicial office
• Aspects of persona designata:
o Whether legislature has intended to vest power in court or in individual
judges detatched from the court
o As a limitation on Boilermakers' principle, no necessary inconsistency with
separation of powers under Ch III if non-judicial power is vested in individual
judges detached from court
• Conditions of Hilton v Wells
o No non-judicial function that is not incidental to a judicial function can be
conferred without the judges' consent
o No function can be conferred that is incompatible with the judge's
performance of their judicial functions, or with the proper discharge by the
judiciary of its responsibilities as an institution exercising judicial power
• Incompatibility condition
• Aspects of incompatibility:
o Judge cannot perform judicial functions because of commitment to non-
judicial

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 o Impaired ability to perform judicial functions with integrity
o Public confidence in integrity of judiciary as an institution, or capacity of
individual judge to perform duties with integrity is diminished
• Issue that if judge cannot reveal information given to them when application for
warrant was made, and then is asked to exercise jurisdiction in matter arising
from issue of warrant, no disclosure can be made to parties of the judge's prior
involvement in that matter
o BUT judge who has issued a warrant in a particular matter can ensure that
they do not sit on any cases to which the matter in the warrant relates
• Decision to issue a warrant is unreviewable exercise of executive power
o THUS arguable that judge should not be involved in this
o BUT necessary because of intrusive and clandestine nature of warrants, and
need to use them in battle against serious crime
• Professional experience of judge assists with balance between law enforcement
agencies and criminal suspects
o Independent role of judge - preserves public confidence in the judiciary as
an institution
McHugh J (Dissent)
• Vesting persons who are judges of the Federal Court with the power to authorise
issue of warrants is incompatible with exercise of judicial functions of judges of
that court
• Would undermine public confidence in ability of judges to perform judicial
functions in an independent and impartial matter
• Issue of open justice - hallmark of the common law system
o Public perception diminished with secret, ex parte administrative
procedures, part of the criminal investigative process, are routine part of
judges of the Federal Court's daily work
• Direct conflict with judicial functions - 'elaborate charade' concept held by Mason
and Deane JJ, close association of judicial and non-judicial functions
• Invasion of privacy of the citizen with telephone interception BUT essential tool of
law enforcement officers to target organised crime
o Other people than judges - tribunals and other independent persons, are
qualified to make the decision

Doctrine of Incompatibility
• Emergence of related doctrine of incompatibility:
o Federal Judges cannot be assigned functions that are incompatible with the exercise of
federal judicial power
o Limitation on the functions that can be validly assigned to judges
o Supplements and supplants separation of powers

Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1
Facts:
• Appointment of justice of Federal Court to prepare a report under ATSI Heritage
Protection Act 1984 (Cth)
• Report to inform minister's declaration for the preservation and protection of ATSI
land areas
Issue:
• Was this function incompatible with constitutional independence of judiciary from

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 the executive government?
Held:
Majority
• Public confidence in the judiciary is achieved by separation of judges from people
exercising political functions of government
o No function can be conferred on Ch III judges that would breach that
separation
• Must look at both form and functioning of the statute
o If function is not closely connected with the legislature or executive
government, no incompatibility
o If function can be performed independently of any instruction of legislature
or executive, apart from laws, then no incompatibility
o If any discretion to be exercised by the judge is not on political grounds,
then no incompatability
• If the function is not being performed judicially e.g. with procedural
fairness, opportunity for each interested person to be heard, then
performance of the function would most likely be performed with
some political influence or with political discretions
• Distinction between :
o Common law doctrine of incompatibility - one office must be vacated
automatically, usually one first held
o Constitutional doctrine does not vacate either appointment - sterilises
power to interfere with protection that Constitution gives to independence
of judges
• Limit on federal legislative power
• THUS statutory provision authorising appointment that enables judge to
undertake functions incompatible with judicial office is invalid
o In the act, s10(1)(c) did not identify the 'person' to write the report as a
judge
o Thus provision read down to not include judge
• In this case, reporter has to make political decisions e.g. extent of the area that
should be protected, prohibitions and restrictions to be made
o Alien to exercise of judicial power of the Cth
o Separation of Ch III judge acting as reporter from Minister is breached
Kirby J (Dissent)
• No constitutional invalidity in appointment of the justice
• Duties are closer to judicial office than providing warrant by eligible judge
• No suggestion of incompatibility with performance of reporting and commission
as a judge in the Federal Court
• In accepting position, would have considered sensitivity of matters to report, need
for judicial experience etc.
o Does not erode public confidence in integrity of judiciary, would rather
ensure impartiality, and compliance with the law and high reputation
among community, as with Administrative Appeals Tribunal and Federal
Judges sitting on it
• If the test is impermissible closeness with the executive, anonymously authorising
telephone intercepts would be closer to this function
Implications:
• With Kirby J's assertion that there has been a departure from the principle of
Grollo, not accurate - doctrine of incompatibility just applied to different function

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 conferred on member of federal judiciary
o Phone tapping v reporting - distinct

CLASS NOTES
Midsem feedback:
• If citing judgement, refer to a judge
• Further out in context, problems with opinions - talk about issues that are relevant
• In all questions, look at both sides and address counter arguments
• Rights based judicial review enhances legal constitutionalism, principle of legality - political
constitutionalism
• Principle of legality - reconciling rule of law with parliamentary sovereignty
• Define political constitutionalism and legal constitutionalism
o Political constitutionalism - elections, question time, media
• Political - left to the people, and leave it up to the electorate

Judicial independence:
• No phrase separation of judicial power in the Constitution
• Discussion of judicial independence
• Reasons for separation of powers/judicial independence:
o Federation
• BUT over the course of history, civil rights have been given more attention
• Rise of human rights jurisprudence
o Check/balance on government power
o Civil rights
• Any minority can take a majority to court
• Rules:
o Judicial power can only be vested in Ch III Courts
o Courts cannot be vested with non-judicial powers (unless ancillary - bound up with
exercise of judicial power)
• If judicial power cannot be defined, rules may not have meaning
• Classic definition of judicial power:
o Decide dispute
o Between parties
o About existing rights
o According to law
o Binding and authoritative
o In a judicial manner - following procedure

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THE JUDICIARY III
Accountability
Removal
• 1977 referendum - removed implication of tenure for life in s72(ii)
o BUT federal judges and justices of HC can only be removed by GG in council on address
from both Houses of Parliament in the same session praying for such removal because
of:
• Proved misbehaviour
• Incapacity
• Difficulty when misbehaviour is controversial
o Murphy affair:
• Two senate inquiries
• Criminal proceedings - initially convicted of one charge and then acquitted
• Parliamentary Commission of Inquiry - 42 allegations, 14 to be examined in more
detail
• Died before resolution
o No manageable fact finding procedure to allow Parliament to arrive at finding of proved
misbehaviour and incapacity
• AR Blackshield - The Murphy Affair (1987)
o Quick and Garran (1901) - misbehaviour under s72 includes:
• Improper exercise of judicial functions
• Wilful neglect of duty or non-attendance
• Conviction for any infamous offence then rendered unfit to exercise office
o Murphy would have fit into last category
o Initially regarded by Senate Committee as this definition
o Later view - CW Pincus (1984) - for parliament to decide whether any conduct alleged
against judge is misbehaviour sufficient to justify removal from office
o Broad view of misbehaviour should be accepted as correct, but informing of legal
meaning by saying there was no legal meaning
o Power of removal under s72 is ultimate AND only check on judicial authority
o Argues that meaning of proved misbehaviour should rely on Parliament's judgement in
any given case
• Potential meaning has no legal limits
• Only political limits of Parliament's scope for removal of judges
• Eventual enactment of Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act
2012 (Cth)
o Commission can be established to investigate allegations of misbehaviour or incapacity
of members of the judiciary
o One member should be retired federal or supreme court judge
o Should then report on findings to Houses of Parliament
o Focus on factual basis rather than substantive function of Murphy commission
o Respects constitutional requirement that is is for parliament to be satisfied that the
grounds for removal are made out
• Similar requirement for removal of state judges e.g. Bruce v Cole (1998)

Michael Coper, Accountability (2001)
• Finality of decisions of High Court and independence of justices
• Must be independent, insulated from threat of executive, at arms length from litigants,
independent mindset
• Procedure for removal of justices in extreme cases in s72

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 o Ultimate safeguard
• Final court of appeal, but decisions of Court in laying down general principles of law may be
overridden
o Decisions on common law and statutory interpretation may be overridden by
parliamentary legislation
• BUT does not affect result between immediate parties
• E.g. Amendment to Crimes Act 1914 (Cth) to allow entrapment by law
enforcement officers
• Overturns Ridgeway v The Queen that upholds trial judge's discretion to exclude
evidence obtained by unlawful conduct
• BUT sporadic, rare
§ Court must still discharge law making role
o Decisions on Constitution may be overridden by electorate voting at referendum
• E.g. 1977 - overturned Alexander's Case which held judges had life tenure - retiring
age of 70 introduced
• Rare and difficult
• Court also open to self-correction
o Parliament may scrutinise and regulate Court's decision making processes and
management of business
• BUT separation of powers implications
• Open court principle - must publish reasons for decisions
o Open to public scrutiny, appraisal and criticism
o Central to idea of rule of law underpinning democratic system of government
o Need informed media and commentators
o Barriers to scrutiny:
• Inaccessible and intelligible to lay reader
• Complex issues
o Also minority and majority judgements
• Appointments of persons of integrity, professional ethos and sense of public service

Tony Blackshield - Removal of Justices (2001)
• Murphy's arguments for refusal to submit to questioning:
o Natural justice - persons accused of misbehaviour should be able to cross examine
witnesses
o Separation of powers - member of judicial branch should not submit to interrogation by
legislative branch, cannot be compelled to appear
o Question whether grounds exist for justice's removal from office is entrusted exclusively
to Parliament
• Can delegate to committee BUT not adjudicative role
• Final decision by House of Parliament
• Possible avenue for US impeachment model in Australia
o BUT casts legislators in judicial role

CLASS NOTES
Topics:
1. Judicial independence
2. Separation of JP
3. JP
4. Exceptions
5. Separation in the states

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 6. Accountability

Propositions
1. Judicial power can only be vested in Ch III courts
2. Courts can only be vested w/judicial power
o And ancillary non-judical power
Exception:
o Persona Designata
Exception to the exception:
o Consent
o Cannot confer powers on a judge in their personal capacity if incompatible with
judicial independence and institutional integrity

Judicial power:
Griffiths CJ - original - Huddop, Parker etc.
• Defining judicial power section
Tasmanian Breweries - Kitto J
• Binding and authoritative
• Based on existing law
• Resolves disputes
o Between parties
o About existing rights
o According to existing law
• In a judicial manner

History and Principle
Queen v Davis
• Bankruptcy powers also vested with courts but despite not judicial - framers would have
intended for it to be judicial
Court marshals
• Similar to courts, resolving legal questions
• HC - exercise of judicial power, but can still be vested with military
• Based on history - discipline of the military
• Established historical exception
• BUT cannot invent new military court outside chain of command
• Even in exceptional circumstances, HC wants to adhere to separation
• Can continue to have court marshals but can't modernise them
• Need to create new court if want to do that

Persona designata
• Assignment of non judicial functions to a judge personally
• BUT not judicial power
• Up until 1995, persona designata could overrule Boilermakers rule
• Issues:
o Vesting all judiciary with non-judicial functions in personal capacity
o Public confidence
• Grollo
o Asked to get assent for a warrant
o Exercising in personal capacity, given as non-judicial power
o Issued by judges at Federal level in personal capacity
o Judge realised he issued warrant and had to exclude himself

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 o Undermines independence
o What parts of wire tapping process are incompatible with judicial integrity?
• Violating privacy rights and private property rights
• Not conducting judgements in open court - closed off environment
• Cloaking executive action in the colours of judiciary
o Majority:
• Intrusive nature - need expertise of judges
• Has elements of independence - police come with application, judge will
consider, independently review, decides whether to grant it, no appeal from it
§ Not embroiled in process
o Possibility of using retired judges
• Wilson
o Reports about bridge to advise whether it should be built
o Is it judicial power? NO
• Does not satisfy definition
• Much flexibility in elements of definition
• Will look at elements of history and practice to make determination
o Was the power invalid? YES
• Giving an opinion incompatible with constitutional independence
• Issue of public confidence
• Aspect of power that was problematic - political role, policy advice being
given
§ Open and more visible at the behest of the minister
§ Close relationship between minister and judge in personal capacity
• BUT difficult to reconcile Grollo and Wilson

Federal level - rigid, written constitution
• Only talks about federal courts
• Strict separation of powers
• MUST CONSIDER DEFINITION FIRST

State level - no strict separation of powers, no protections for judicial appointment, tenure and
remuneration
• ANY POWER IS VALID unless it undermines judicial independence and impartiality
• No constitutional protections for judicial independence
• UNTIL Kable case
o Limit on state government power to treat courts in certain manner
o Incompatible - undermined vision of court doing justice

Judicial accountability
• Difficult to fire federal judge - s72 - security of tenure

According to Coper, what are the three ways in which the HC is held accountable for its work?
• People
• Parliament
• Appointment of judges - process
o Open and objective, merit based
• Judiciary themselves - internal sense of responsibility
o Appeals process
o BUT not for HC - therefore rules are emphasised
• Accountability between judges

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 o Dissent

Under s72, what grounds can a federal judge be removed from office? What are the issues?
• Proved misbehaviour and incapacity
• BUT what is misbehaviour - broad provision

Act gives process etc. but still limitations

Need to know avenues for judicial accountability and shortcomings in those avenues

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RIGHTS PROTECTION I
Introduction to Human Rights
• Entitlements to which every person is said to have a claim because of being a human being
• Full list of what is and is not a human rights remains contentious
o Commonly accepted - right to life, expression and religion, freedom from abuses such as
torture and racial discrimination, social and economic claims e.g. education, healthcare
• In liberal tradition - universal rights
o Belong to every human being irrespective of nationality or legal status, or cultural,
economic or other circumstances
• Louis Henkin - The Age of Rights (1990)
o Human rights - rights of individuals in society
o Not abstract - defined and particular claims listed in international instruments - UDHR,
covenants, conventions
o Benefits essential for individual wellbeing, dignity and fulfilment
• Reflect a common sense of justice, fairness and decency
o Positive claims - what society is required to do for the individual
• Liberties - freedom from e.g. detention, torture, and freedom to e.g. speak,
assemble
• Right to food, housing, basic human needs
o Universal - belong to every human being in every human society
• Do not differ with geography, history, culture, ideology
o Inalienable - implied in humanity
• Cannot be transferred, forfeited or waived
o Rights rather than aspirations - duty of society to respect duty or provide benefits
• Entitlement in moral order under moral law
o State must develop institutions and procedures to meet claims
• Human rights are claims upon society
• Thus obligation to satisfy claims
o Fundamental rights - important human values depend on them
• BUT not absolute - prima facie presumption that they cannot be violated but may
be superseded by countervailing societal interests in particular circumstances
• Limitations on rights are permissible, but limitations are limited
§ Public emergency, national security, public order
o Rights are claims upon society, not against society
• Good society is one in which promotion and protection of individual rights is a
public good
• See Universal Declaration of Human Rights (1948)
o Fundamental rights
o Common standard of achievement for all peoples and all nations
o Not a treaty that imposes obligations on nation states
o Non-binding statement of values, endorsed by UNGA
o BUT part of customary international law - binding on all nations
• Also UN Declaration on the Rights of Indigenous Peoples (2007)
• International Covenant on Civil and Political Rights and International Covenant on Economic,
Social and Cultural Rights (1966)
o Entered into force internationally in 1976, ratified by Aus in 1980 and 1976
o Different regimes of rights
o Influenced by ideological divisions between West and Soviet Bloc

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 o Civil and political rights - rights which enable individuals to operate freely within the
political system and to be protected from arbitrary action in the administration of the
law
o Economic, social and cultural rights - rights that allow people to own property, work in
fair condition, guarantee adequate standard of living and facilities for education,
enjoyment of life and culture
• ICCPR obligations are stronger than ICESCR obligations
o ICCPR:
• Necessary steps
• Adopt legislative or other measures necessary
o ICESCR:
• Take steps
• To maximum of available resources
• All appropriate measures, particularly legislative
o Need for compromise in securing international acceptance
o Henkin - Resource claims may not be amenable to same level of legal enforcement for
civil and political rights
• Australia has ratified both Covenants
o BUT not enforceable under Australian law unless incorporated by legislation
o Ad hoc incorporation through e.g. Racial Discrimination Act 1975 (Cth)
o Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) - parliamentary form of rights
scrutiny of legislation by reference to international instruments
o BUT not incorporated into judicially enforceable national bill of rights
• Complaints mechanism under Art 2 of ICCPR:
o If UN Human Rights Committee is satisfied that complaint is made out, can use moral
and political persuasion to bring domestic law in line with Covenant
o E.g. Croone case
• ICCPR - immunities
o Limitations on what government might do to the individual
o Protected by effective remedies, especially judicial remedies
• ICESCR - resource claims
o Claims to what society is deemed required to do for the individual
o Progressive implementation particularly through legislation
• Hohfeld
o Right - situations where an individual claim is correlated with an enforceable legal duty
to respect that claim
o Privilege or liberty - something less than a right, absence of legal right to obstruct
o Immunity and disability - absence of legal power to affect the individual's legal position
in this aspect
• Limitation on what government might do to the individual
• Limitation on governmental power
• Australian constitutional discourse:
o Reference to freedoms/liberties and immunities
o Rarely reference to positive rights
o Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
• S7 and 42 - implied right of political communication
• BUT no personal rights for individuals
o Express provisions in constitution is expressed as limitations on power rather than
positive rights
• E.g. freedom of religion in s116 - 'Cth shall not make any laws'
• BUT s117 - individual immunity - no discrimination based on out of state residence

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 o Affects types of remedies available
• If limitation on power - declaration that law is invalid, BUT no individual relief e.g.
damages
• If immunity - plaintiffs entitled to declaration that provision does not apply to
them, BUT not that it is invalid

Parliament
Williams and Burton, Australia's Exclusive Parliamentary Model of Rights Protection (2013)
• Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)
o Parliament has exclusive role of ensuring human rights protection
• Carolyn Evans and Simon Evans - issues of HR raised during ordinary parliamentary debate
o Interviewed parliamentarians - protection of HR essential part of their role
o Reflected in rights protecting statutes
• Rights expressly protected through Constitution
• Rights protected under common law through statutory interpretation:
o Principle of legality - Courts will not interpret legislation in a way that abrogates
fundamental rights and freedoms unless there is intention in 'clearly manifested by
unmistakable and unambiguous language'
• Only protects rights recognised by the common law
• Parliament may abrogate by clear language
o Principle of consistency - Legislation should be read consistently with international
human rights norms
• Only operates when legislation is ambiguous
• Rights protected indirectly by structure and conventions of government, limits on executive
and legislative power under Constitution
o Responsible and representative government - draw attention to and criticism of unfair
laws
o Separation of powers - right of due process and review in federal courts
o Bicameral parliament - Senate may act as check and balance on lower house, and
counters executive domination of Parliament
• Strengths with system:
o Recognition of Parliament's necessary and inevitable role of rights protection
o Consistent with democracy
o Proactive prevention of human rights violations rather than remedies after the event
• Courts alone cannot forge lasting political settlement without support with other arms of
government
o E.g. Native Title - erosion of rights by legislation
o May be perceived to be democratically illegitimate
• Weaknesses of system:
o Volume of lawmaking - difficult to assess potential impact of new laws and delegated
legislation on human rights
• E.g. 2011 - 190 bills enacted
o May lack expertise needed to assess human rights implications of some laws
o Without bill of rights, difficult for Parliamentarians to articulate what human rights are
and which rights are to be protected
• Limits strength of rights-respecting culture
• Given less weight than economic interests and public policy goals
• Parliamentary Committees:
o Ensure that human rights issues receive due attention, assessment by those with
appropriate expertise
o E.g. Senate Scrutiny of Bills Committee - focus on HR issues

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 o Reports on bills with trespass on personal rights and liberties, or depend on non-
reviewable decisions
o Ensures that human rights are given attention
• BUT cannot compel government to deviate from predetermined legislative path
o Senate Scrutiny Committee - narrow view of terms of reference
o Does not use language or full scope of human rights
o Ad hoc reference to international treaties
o Does not necessarily clarify rights debate
o Parliament does not take concerns very seriously, reports do not effective influence
legislative outcomes
• Systemic problems with Parliament protection of human rights
o ALSO if political imperative is driving enactment of legislation
• May be drafted with express purpose of impinging upon human rights
o Sense of urgency in enactment
o Government control of both houses of Parliament
o Rights in issue are rights of unpopular minorities or politically powerless
o E.g. Anti-Terrorism Laws passed since September 2001

Common Law
James Spigelman - Statutory Interpretation and Human Rights (2008)
• Principles of interpretation:
o Extrinsic aids to interpretation
o Intrinsic or grammatical aids to interpretation
o Legal assumptions
• Common law developed bill of rights
o Infringement of rights often occurs by statute or exercise of powers under statute
o Systematic protection of human rights
• Background assumptions and interpretive principles
o Basic principle that parliament did not intend to evade fundamental rights, freedoms
and immunities
o See Potter v Minahan - unless clearly stated, should not give words meaning in which
they were not really used
o See Coco v The Queen - need express authorisation of abrogation or curtailment of
fundamental right, freedom or immunity
• Shows that legislature has directed attention to this point, determined that this
should be the case
• What is a fundamental right?
o Informed by history of the common law
o Malilka Holdings Pty Ltd v Stretton (2001) - McHugh J:
• Strong presumption against intrusion
• Civil or criminal trial is to be fair trial
• Right not to be searched arbitrarily
• No retrospective operation of laws
• Preventing assumptions of jurisdiction by lower courts
o Rebuttable resumptions that Parliament did not intend to:
• Retrospectively change rights and obligations
• Infringe personal liberty
• Interfere with freedom of movement
• Interfere with freedom of speech
• Alter criminal law practices - fair trial
• Restrict access to courts etc.

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 o Common law bill of rights overlaps with, but is not identical to enacted international
instruments
o Influences degree of emphasis given to presumptions
• Principle of legality:
o Categorisation of range of presumptions dealing with substantive content
o Glanville Williams - no crime or punishment save in accordance of the law:
• Applied by principle against retroactivity
• Strict construction of penal statutes
• Need for certainty in draftsmanship
o Lord Hoffman:
• Principle of legality - parliament must confront what they are doing and bear
political cost
• Fundamental rights cannot be overridden by general or ambiguous words
• Otherwise, full implications may have passed unnoticed in democratic process
• Presumption that even most general words were intended to be subject to basic
rights of the individual
o Gleeson CJ:
• Presumption is not common sense guide - working hypothesis that is aspect of the
rule of law
• Ambiguity:
o Tendency to give narrow application to presumption due to need to find ambiguity
before presumption can operate
o Spigelman - unnecessarily restrictive view
• Should be broad view of ambiguity before adopting presumption
• The judicial role
o Bentham - opposed to fluidity of the use of interpretive principles
• Esp. those that emphasise context and purpose and specific principles
• Found to be inconsistent with rational legal order
• Need for express codification
• NOT accepted in common law world
o Issue of judiciary applying interpretive principles to subvert legislative intent
• Controversy about judicial activism
• BUT subject to constitutional entrenchment of rights, judiciary must remember
that interpretive principles are rebuttable
o Judiciary legitimacy - Gleeson CJ
• Judicial must not find ambiguity where there is none
• Recognise clear and unambiguous language when presented
o Interpretation v defiance of legislative will
• Genuine v spurious interpretation

CLASS NOTES
Responsible government - s64
Rule of law - equality and arbitrariness

HUMAN RIGHTS
---> negative immunity - freedom from, civil and political rights (ICCPR)
---> positive rights - resource claim, right to, economic, social and cultural rights (ICESCR)
• UNDHR - not binding but reflects custom and practice

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Relationship between people and the state
Rights, not aspirations
Inherent
Claims upon, NOT against the state
• Benefits state to comply with human rights
Non-transferrable, cannot be waived
Lasting
Inviolable
Fundamental but not absolute - can be violated if social interest is important
• BUT basic rights are a subset that are inviolable
Common

As George mentioned, parliament plays a large role in the protection of rights through
its ability to enact binding legislation, which is supported by the role of
parliamentarians bringing rights issues to prominence during parliamentary debates.
Another key facet of Parliamentary rights protection is the role of Parliamentary
Committees which scrutinize legislation for compliance with the maintenance of
personal rights and liberties.

However, there are significant limitations on the ability of these committees to protect
human rights in particular. Carolyn Evans and Simon Evans raise the issue that
committees such as the Senate Scrutiny Committee have adopted a narrow view of what
constitutes infringements of personal rights and liberties, and have not consistently
made reference to the full scope of human rights under international treaties that
Australia is a party to. Most notably, Committee recommendations may simply be
ignored by Parliament, and it has been argued that the Senate Scrutiny Committee in
particular has been largely ineffectual in influencing legislative outcomes, leading to
minimal improvements in Parliamentary rights protection overall.

Parliament may also simply prioritise policy concerns and political imperatives over
rights protection when enacting of key pieces of legislation. In particular, the
composition of Parliament has a large influence on the degree of parliamentary debate
of legislation and the capacity for rights issues to be highlighted.

A notable example of this is the recent amendments to anti-terrorism laws that have
successively eroded key legal rights and civil liberties in relation to terror suspects.
During 2003, the government did not hold a majority in the Senate despite holding a
majority in the House of Representatives. This resulted in significant debate for a period
of 15 months on the 2003 amendments under the ASIO Legislation Amendment
(Terrorism) Act 2003 (Cth), and while the provisions for arbitrary detention were
enacted, certain powers such as the ability to strip search and detain children between
14 to 16 were removed.

By contrast, amendments in 2005 when the government held a majority in both Houses
were passed with minimal debate and scrutiny, as the Bill was introduced on a public
holiday and with another piece of more controversial industrial relations legislation.
This masked major flaws in terms of the protection of legitimate speech under sedition
offences, highlighting the ability of the composition of parliament to hinder scrutiny of
legislation that may be incompatible with fundamental human rights.

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RIGHTS PROTECTION II
Bills and Charters of Rights
• Protection of human rights in the face of government power
• US Bill of Rights
o Express constitutional protection of human rights through judicially enforceable limits
on legislative and executive power
• Constitutionally entrenched rights
• If seen as infringing Bill of Rights by judiciary, enacted legislation is struck down by
courts
• BUT concerns about:
§ Judicial activism
§ Democratic deficit - allowing actions of elected legislature to be overridden
by unelected judiciary
o Guarantees in first amendment initially only applied at federal level
• BUT amended by Amendment XIV after civil war to provide protection against
action by states
o Controversy in finding of implied rights in amendments - e.g. right to liberty not included
in Amendment XIV but implied
• Liberty interests - test for substantive due process
• Decisions finding implied rights only possible in constitutional culture that accepts
judicial enforcement of express rights
• BUT is court exceeding legitimate role?
o Since 1930's, US Supreme Court has given greater protection to civil and political rights
rather than economic rights
• Prior - protection of economic rights
• 1940's and 50's - activism in the realm of civil and political rights e.g. Brown v
Board of Education (1954) - racial desegregation in public schools
• Tension between judicial review and parliamentary sovereignty
o E.g. India - Constitutional rights, but Constitution amendable by Indian Parliament
through ordinary legislation or special majority
o BUT held in Kesavananda v State of Kerala (1973) that Parliament can amend
Constitution but not if it affects essential features or basic structure of Constitution
• To be determined on case by case basis
• South Africa:
o Incorporation of social aspirations and values - ICESCR, goes beyond Indian e.g. housing,
healthcare, education
• Canada:
o Legal protection to HR but no direct judicial enforcement - statutory bill of rights -
Canadian Bill of Rights 1960
o Effective against earlier and later statutes
o Mandatory directive to judges faced with two inconsistent but valid statutes that
Canadian Bill of Rights, rather than offending statute is operative
o Superseded by Charter of Rights in the Constitution
• Balancing formula - protected rights and freedoms subject to reasonable limits
prescribed by law as justified in a free and democratic society
• Adopted by Deane and Toohey JJ in Nationwide News Pty Ltd v Wills (1992)
• Commonwealth Model of rights protection - Gardbaum
o Aims to protect human rights with emphasis on Parliamentary Sovereignty -
Westminster system

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 o Bringing about dialogue between and within different arms of government and with
wider public
o Not entrenched in Constitutions, but typically in ordinary legislation that may be
amended over time or repealed
o Weak form judicial review - courts not empowered to override legislation
o Final say on any conflict of rights is left to parliament - protects parliamentary
sovereignty
o E.g Human Rights Act 1998 (UK)
• Declaration of incompatibility can be made if inconsistent with protected right
• Need response through legislative amendment or executive order
• Australia is only democratic country without a national Bill of Rights
o ONLY:
• Disparate rights and freedoms in Australian Constitution
• Legislation protecting human rights under external affairs power (xxix) to
implement international human rights obligations
• George Williams - A Charter of Rights for Australia (2007)
o 1944 Referendum
• Commonwealth to give power to legislate to guarantee rights against state
legislation e.g. freedom of speech and expression, religious freedom, freedom
from want and freedom from fear
• Not adopted into referendum
o Human Rights Bill 1973
• Statutory Charter of Rights proposal to implement ICCPR
• Murphy - although rights basic to democratic society, little legal protection in
Australia
• Rights to be enforced against govt. and private sector
• BUT ICCPR did not get required amount of ratifications by 1974, bill lapsed
o Australian Human Rights Bill 1985
• Evans - statutory charter of rights - implement rights recognised in international
law
• Not introduced into parliament
• Bowen - Watered down provision not passed - concern about implications to
electoral boundaries
o Constitutional Commission and 1988 Referendum
• Revision of Australian Constitution to ensure democratic rights are guaranteed
• Recommended inserting new chapter of rights and freedoms, borrowed from
Canadian Charter
• Power to opt out of rights protection found to be inconsistent with process of
entrenching rights in Constitution
• Failure of referendum to extend express guarantees in Constitution
§ Rushed
§ Effective opposition
§ Lack of community understanding of proposals
§ Need for bipartisan support
• New South Wales Standing Committee on Law and Justice - A NSW Bill of Rights (1999)
o Opposed to Statutory Bill of Rights
o Invoked parliamentary sovereignty and separation of powers
o Would result in change in relationship between representative democracy through
elected parliament and the judicial system
o Increased responsibility of judiciary to protect human rights - role that is responsibility of
parliament

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 o Against public interest to hand decisions to unelected judiciary which is not accountable
to community for consequences of their decisions
o Public criticism of judiciary would increase
o Executive governments would appoint judges based on political views rather than legal
skills
o Parliament must become more effective guardian of human rights rather than handing
power over to unelected judiciary
• ACT and Victoria first jurisdictions to enact charter or bill of rights after public consultation
process
o Human Rights Act 2004 (ACT)
• S37 - when Bill is introduced into ACT Legislative Assembly, AG must prepare
written compatibility statement about whether it is consistent with the protected
rights
• Parliamentary Committee must report on HR issues
• Rights in Act are not absolute
• Interpret laws in a way that is consistent with human rights
• If not compatible and cannot interpret, SC makes declaration of incompatibility in
s32, and s33 - response by AG
• Obligations on public authorities
o Charter of Human Rights and Responsibilities Act 2006 (VIC)
• Provisions challenged in Momcilovic v The Queen (2011)
• Breach of separation of judicial power achieved by Ch III of the Constitution
• Upheld
• BUT finding may imply that federal separation of judicial power would prevent a
national law from including declarations of incompatibility
o Based on UK act and operate on similar basis
• Brennan Committee - National Human Rights Consultation Report (2009)
o 87.4% of submissions were in favour of charter of rights or human rights act
o Polling of general public - 57% said they would support law to define human rights
Australian people are entitled to
o Australians rarely need to reflect on human rights or whether they are adequately
protected
o BUT record is not perfect - children, people with mental illness, elderly, carers etc. need
protection
o 31 recommendations:
• Education as highest priority for improving and promoting human rights in
Australia
• Federal Human Rights Act based on ACT model to protect civil and political rights
§ If economic and social, not justiciable, complaints about breach heard by
AHRC
o Most of recommendations rejected - Act too divisive
o Adoption of Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)
• S8 and 9 - legislative instruments need statement of compatibility to assess
whether bill is compatible with human rights
§ HR - those included under 7 listed international instruments
• Parliamentary Joint Committee on Human Rights to examine statements of
compatibilities
• To better inform Parliament if bill or legislative instrument complies with human
rights
• BUT no legal consequences or other consequences if no compliance
• Questions:

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 o Should the law be limited to protecting community against legislative and executive
interferences by government with individual rights?
• Or extend to other individuals?
• Or middle ground - sanctions to private sector bodies when undertaking public
function?
o Should rights be constitutionally entrenched or protected by Act of Parliament
• Or middle ground - subject to legislative override
o Should Bill of Rights be basis for judicial remedies or used for educative or inspirational
purposes?
• Or aid to statutory interpretation?
• Declaration of invalidity, inoperability or incompatibility?
o What is the role of other arms of government?
• Executive statement of compatibility and committee?
o Should rights be limited to ICCPR or extend to ICESCR rights
• Is this enforcing select range of rights based on ideology classical of liberalism
• Does this reflect the position of int'l law - not protection of ICESCR right with
judicial remedies
• Should there be complaints to AHRC instead? (Brennan Report)

Brian Galligan - Judicial Supremacy or Judicial Dialogue? Dialogic Aspects of Australian Judicial
Review (2010)
• Washminster system:
o Parliamentary supremacy - Westminster Parliament is sovereign, formally recognised as
constitutional first principle by courts
o Judicial supremacy - SC has primacy in interpreting constitutionally limited powers of
national and state governments under federal constitution
• Dialogue model - human rights adjudications where courts make a ruling that parliaments can
respond to and override
o Recommended by Brennan Committee Report to maintain parliamentary supremacy and
establish a dialogue between the courts and parliament
• Report constrained by inability to recommend constitutionally entrenched bill of
rights
• Did not use name of Charter of Rights due to negative history and opposition
groups
• Proposal was legislative bill of rights, comprehensive coverage of civil and political
rights, declarations of incompatibility made by High Court
• BUT declarations of incompatibility are advisory opinions that were not
compatible with strict interpretation of judicial power under Ch III of the
Constitution
§ Recommendation that other courts are not to be involved
§ Not fully involved
o BUT not adopted by Rudd government, recommendation for Federal Human Rights Act
not adopted
o Confirmation of parliamentary sovereignty
o Reaffirms exceptional nature of Australia in not having national bill, charter or federal
act
• Judicial supremacy v inter institutional dialogue through political responses to judicial review
o Judicial supremacy - judges on top making definitive constitutional rulings that bind
governments and legislatures
• Judges and courts decide the outcome
o Dialogue model - judges as one party in dialogue with political institutions

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 • Role in deciding rights transgressions and pointing out violations to be dealt with
by other institutions
• Give considered opinions and government decides

Stephen Gardbaum - Reassessing the New Commonwealth Model of Constitutionalism (2010)
• Protection of rights through reallocation of powers between courts and legislature
o Intermediate between judicial and parliamentary supremacy
• Brings them into greater balance
• Features:
o Legalised bill or charter of rights
o Enhanced judicial power to enforce rights by assessing legislation for consistency with
them
o Formal legislative power to have the final word on what the law of the land is by
ordinary majority vote
• Decouples power of judicial review from judicial supremacy or finality
• Can also apply to constitutional charters of rights, not just legislative
• 4 options:
o Constitutional Bill of Rights with judicial invalidation and legislative override
o Statutory Bill of Rights with judicial invalidation and legislative override
o Statutory Bill of Rights with declaration of incompatibility and rights consistent
interpretation of statues where possible
o Statutory Bill of Rights with interpretive power only
• Allows greater balance between:
o Recognition and effective protection of certain fundamental human rights
o Proper distribution of power between courts and government, within proper limits
• Democratic decision making by parliament v rights protection by judiciary
• Rights are better protected under judicial review, but judicial supremacy not necessary
• Final legislative word maintains democratic legitimacy of judicial powers of new model
• Judicial review - reasonable justification for acts by public authorities
o Precondition for the legitimacy of the law
• Judicial supremacy - tendency towards exclusivity and monologue in rights reasoning
o Problematic where debate is needed in relation to meaning, scope and application of
abstract text of bill of rights
o BUT new model provides greater role in rights deliberation of political branches and
citizenry
• No over-legalisation or judicial-isation of principled public discourse
• Arguments:
o Basic or fundamental rights are important
o Should be more effectively recognised than under existing Westminster based system
of:
• Residual common law liberties
• Statutory rights
• Parliamentary Sovereignty
o Requires concise, legalised statement of affirmative rights
o Courts have essential role to play in more effective protection
• If rights are legalised, rights and their limits become more concrete and specific
• Judicial enforcement power is important to deal with rights pathologies or blind spots that
legislature and executive is subject to
o Claims of minorities
o Legislative inertia
o Blocking power of parties and interest groups

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 o Government hyperbole or ideology
• Judicial role enhances quality of human rights debate
• Greater potential of the model to actively involve all three branches of government in rights
review
• Can create broader rights consciousness among citizenry
• Huscroft - ground up rights culture rather than top-down approach of judicial supremacy
o Pre-enactment rights review within legislative process
• Objections:
o Democratic issues with additional judicial power beyond statutory interpretation
o Status quo is fine
o Rights are not better protected under new model
o New model leads to excess of judicial power that threatens balance

George Williams and Lisa Burton - Australia's Exclusive Parliamentary Model of Rights Protection
(2013)
• Under Parliamentary Scrutiny act, human rights defined in s3 as rights and freedoms under
international treaties e.g. ICCPR and ICESCR
o Reflects recommendation of Brennan Committee that rights under domestic law should
be more in line with obligations under treaties
o BUT more specific definition of rights would be symbolic statement of Australian values,
reinforces national identity
• Also assists clarity of parliamentary debate
o In current Act, rights have not been adapted for Australian context
• Important for economic, social and cultural rights
o Fact sheets published to assist in understanding protected rights
• BUT difficult for parliamentarians preparing statement of compatibility to assess
whether legislation engages or limits rights
• Analysis of rights compliance may then be simplistic
• Statements of Compatibility - Part 3 of Act
o Must prepare and present if introducing bill to parliament
o No specification on when - could even introduce after debate has begun or bill has
passed
o Does not specify length and detail - should merely assess if compatible with human
rights
o AG's Department - consider limitations on rights based on a proportionality analysis - are
they reasonable, necessary and proportionate to achieving a legitimate aim
o Vic Charter:
• Must be introduced before second reading speech
• Statements must explain nature and extent of incompatibility if exists
o Rights in conventions subject to different levels of protection, but Act does not specify
whether these distinctions are important in Australia
• AG's guidelines state that these distinctions should apply
o Requirement to table statement of compatibility is optional
o SOC has limited legal effect - not binding on any court or tribunal
• BUT may be used to interpret legislation that relates to it
• E.g. if SOC says bill is incompatible with human rights, interpret subsequent
legislation consistently with human rights - Kinley and Ernst
§ BUT unlikely as extrinsic material cannot trump literal meaning of the text
o Benefit of SOC's is to enhance parliamentary debate about proposed legislation
• Rights implications are made clear
• More informed decisions can be made

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 • Increased political pressure to legislate compatibly with rights
o Dialogue created between executive, Parliament and the people
• Parliament must reveal and justify rights infringements
o Danger of treating SOC as 'box to be ticked'
• Occurred with procedural reforms for signing of treaties
• Need rigorous analysis of implications
• Parliamentary Joint Committee on Human Rights - Part 2 of Act
o Ministers cannot be appointed
o 5 Senators and 5 House of Reps
• Can examine bills and acts for compatibility with HR and report to parliament
• Can inquire into human rights matters referred by AG, and report to Parliament
o Double check on SOCs
o In practice, may not act in robust manner
• Low acceptance in community and among parliamentarians of international
human rights standards as measurement of suitability of legislation
• No requirement to give PJCHR sufficient time to examine bill before passed
§ Contentious bills would be rushed through parliament
o Self interest of party members would result in tepid and modest approach if from
government
• If opposition, would more likely criticise, but also more likely to be ignored
o If advisory only, likely to have cautious approach
• Effectiveness of exclusive parliamentary model
o Strengths:
• Defines human rights - greater clarity for debate
• Increases profile and legitimacy of human rights in parliamentary debate
• Political pressure to legislate compatibly with human rights
o Constitutional framework:
• Strict separation of judicial power
• Momcilovic v The Queen - dialogue model of human rights - powers for
declarations of compatibility violate strict separation of powers at state level
§ Requirement to interpret legislation in accordance with human rights held
to be exercise of judicial power
§ Common law principle of statutory interpretation
§ BUT power to make declaration of incompatibility is not exercise of judicial
power
§ Advisory opinion and not binding resolution of legal matter
§ Not function incidental to exercise of judicial power - not sufficiently closely
tied to requirement to interpret statutes in accordance with human rights
• BUT no clear majority on most matters, so HC may reach different decision if
considering issue at federal level
• Could still be federal interpretation of statues in accordance with rights under
dialogue model
§ E.g. Canadian act - making legislation inoperative if inconsistent but with
parliamentary override
o Self regulating system
• No legal sanctions for exclusive parliamentary model, failing to comply with
Parliamentary Scrutiny Act
§ Merely political sanctions
§ THUS must foster increased respect for rights in Parliament to make non-
compliance a political problem
• May simply not table SOC, or reject committee recommendations

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 • Vast majority of bills currently have SOC
§ BUT are brief - seen as procedural hurdle
§ Has not yet significantly enhanced parliamentary debate about impact of
legislation on human rights
o No judicial scrutiny of assessments of compatibility
• No external check and balance o operation of the scheme and Parliament's
compliance with it
• Parliament may lack rationality and analytical capacity that judges can bring to
questions of law and human rights
• Judges can analyse issues with the benefit of hindsight and look at specific
applications of the law
• Complementary role for courts could be beneficial
• Possibility of external scrutiny and criticism encourages logical, rigorous and
defensible decision making in parliament
o Unlikely to ameliorate parliament's weaknesses
• E.g. in times of emergency and when community is in fear, parliament faces
pressure to act
• Impetus to override non-entrenched rights protections and restrict fundamental
human rights
• If SOC is procedural hurdle, ineffective in preventing greater scrutiny before
imperative to act
• Independent judicial supervision more effective in such circumstances

CLASS NOTES
Forum post:
Is the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) an effective alternative to a statutory
Charter of Rights (or Human Rights Act)?

As raised by the NSW Standing Committee on Law and Justice, the current system may better
protect parliamentary sovereignty and the ability of a democratically elected legislature to make
laws regarding human rights if it so chooses. If parliament is held accountable by internal
committees that are able to review legislation for rights compliance, this can help to create a strong
culture of rights protection within the legislature itself, and increases the likelihood of compliance
with human rights instruments. However, if judicial enforcement mechanisms were preferred to
internal parliamentary accountability mechanisms under a statutory Charter of Rights, questions
arise about an unelected judiciary striking down or overriding laws enacted by parliament. It has also
been argued that the risk of judicial activism, or the imposition of judges' own views to decision
making, would be heightened under a statutory Charter of Rights. Despite this, as the Brennan
Committee report in 2009 highlights, there is strong public support for a statutory Charter of Rights,
indicating the need for legislation that explicitly defines rights that Australian people are entitled to.

Human rights in Australia are best protected through:
A federal Human Rights Act based on the dialogue model of human rights

The dialogue model of human rights is best able to protect human rights in Australia. This
would involve a charter of rights under a Human Rights Act that clearly articulates rights, with
judicial power to assess legislation for consistency with enacted rights, and then ultimate power
given to Parliament to respond to judicial review and make a final decision on the validity of
legislation or implement changes.

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As Galligan argues, this model is most consistent with achieving a balance between
parliamentary and judicial supremacy under Australia’s ‘Washminster’ system in the area of
rights protection. However, through a process of legislative override, the sovereignty of
parliament is ultimately protected in their ability to respond to judicial review and make
legislation in accordance with policy decisions, maintaining the democratic legitimacy of the
lawmaking process in this way.

In addition, as Gardbaum suggests, the greater role of the judiciary in the enforcement of rights
would limit the so called ‘blind spots’ of the legislature, particularly the lack of support for
claims of minorities, and party ideologies. This would be complementary to the ability of
parliament to have better informed debate on legislation regarding rights issues as the rights
applying to Australian people are clearly articulated, improving internal institutional scrutiny of
legislation as well. Finally, the articulation of rights in a Human Rights Act would increase
broader consciousness about the existence of human rights among wider society, allowing
individuals to more specifically understand their rights and any limitations on those rights.

Gardbaum suggests four possible iterations of a dialogue model of human rights. The most
preferred out of the options is a model under which a statutory bill of rights is implemented
with the ability of courts to interpret legislation in line with these rights, but with no power to
make declarations of incompatibility. This is because of the finding in Momcilovic v The Queen,
where a majority of the High Court held that the requirement to interpret legislation in line with
human rights is an exercise of judicial power, but the power to make declarations of
incompatibility is not an exercise of judicial power, or a function incidental to the exercise of
judicial power.

While this case was determined in the context of state human rights legislation, the implication
of this finding is that the power to make declarations of incompatibility may not be vested in a
federal court, which would pose a significant barrier to a dialogue model that envisages this.
Such an approach also avoids objections against the dialogue model that center around the
undemocratic nature of additional judicial power beyond statutory interpretation, maintaining
the aforementioned balance between parliament and the judiciary.

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CONSTITUTIONAL CHANGE
Overview
• S128 - mechanism for altering constitution, shall not be altered except by proposed law:
o Passed by an absolute majority of both houses of Parliament or one house twice
o Passed at a referendum by a majority of the people as a whole, and by a majority of the
people in a majority of states
• Reflects desire for federal Commonwealth by Framers
• Also need consent of states in particular instances e.g. diminishing proportionate
representation of states
• S128 - when proposal for constitutional change is passed by both houses, should be submitted
to the people
o Not always the case e.g. 2013 referendum to alter s96 of C to authorise Cth to make
payments directly to local govt. bodies
• Parliament to prescribe manner in which vote is taken, as well as Referendum (Machinery
Provisions) Act 1984 (Cth)
o All electors must vote at referendum
o Pamphlet must be sent to all household to show proposed amendment to Constitution,
arguments for and against by MP's on either side
• The referendum record:
o 44 proposals put to the people, 8 have succeeded
o Last successful was 1977 - imposition of maximum age of 70 years for HC and fed courts
o Geoffrey Sawer - constitutionally speaking, A as the 'frozen continent'
o Low success rate:
• Held concurrently with federal election - NO evidence
• Depends on state e.g. WA, Qld, Tas, SA have not supported referendum since 1977
• Most proposals put to people relate to granting Cth extra power, only 3 succeeded
• Political party - ALP has not succeeded since 1946
• Difficulty with majority of voters in majority of states - NO evidence
• George Williams and David Hume - People Power: The History and Future of the Referendum in
Australia
o 18% success rate of referendums
o Comparable to US, but less comparable to Canada and SA
o Changes generally not major or radical to status quo, compared to overseas
o Only nation changing amendment may be the referendum in 1967 to grant Cth power
over Aboriginal peoples
o Issue of people being ignorant of the Constitution or proposals to change, averse to
change
• Don't know vote no
§ 1987Constitutional Commission - 70% of Australians did not realised Aus.
had written constitution
§ 1994 Civics Expert Group- 1 in 5 people had understanding of what
constitution contained
§ False knowledge, advertising campaigns
§ Constitutional illiteracy
• If it ain't broke, don't fix it
§ Status quo bias - preference for continuity
§ Overweigh costs over benefits, want immediate rather than long term
benefits
§ Unintended consequences have greater risk with constitutional change than
ordinary legislation

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 • Vote no to the politicians' proposal
§ National distrust of politics and politicians
§ Often reforms are tailored to the interests of Parliament
§ Proposal may be for partisan reasons
• Constitutional Commission Report 1988
o Suggested that State Parliaments should be able to initiate referendum proposals as well
o Rejected suggestions for proposals independent of parliament
o Rejected idea of petition proposals signed by 500 000 electors or more
• Scott Bennett and Sean Brennan - Constitutional Referenda in Australia, Research Paper No 2
(1999)
S128:
o Only amended once in 98 years - allows territory voters to participate
o Negligible judicial attention
o Assigns roles to Cth, States, Executive, Legislative, people, politicians
• Cth initiates referenda through passage of Bill to alter Constitution - centralist on
initiation
• Double majority requirement - states with disproportionate capacity can counter
Cth govt. plans - federalist on ratification
• Deadlock provision - senate given equal status as HoR, but textual illusion rather
than political fact
§ Principle of responsible government counters this, need support of
government of the day
• BUT referendum would generally need government agreement
• Govt. controls use of s128 but control of result is in hands of people voting at a
referendum
o Question put:
• Suggestion that more than one proposal in the alternative could be put to voters,
best would win
• Ordinary voters in other jurisdictions have no direct say over what is put to
referendum
o Ratifying referendum proposal:
• Double majority - Quick and Garran
§ Protects federal system
§ Encourages careful reflection, public discussion, delay change until desirable
and inevitable
o If referendum is successful:
• Complexities with amendment by referendum - Hindmarsh Bridge decision
§ Raised question about whether races power as amended in 1967 authorised
a Cth law which removed legal protections designed to benefit aboriginal
people
§ Difficult to determine intent of electorate at a referendum, competing
standards and values
§ Kirby - few amendments to text, therefore difficult to develop theory of
approach to meaning of text when provision is altered
• Cheryl Saunders - The Constitution of Australia: A Contextual Analysis (2011)
o S128 provisions consistent with federal structure of constitution, manner in which it was
made and progressive aspirations for it
o National and federal elements in procedures for change
o Referendum - next stage in the evolution of democracy, as system relies otherwise on
representation

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 • Thought by founders to strike balance between constitutional protection and
change
o BUT only passed are institutional changes, minor changes
• Changes in organisation of power that were significant were 3 out of 8 of
successful
o Causes of negative vote:
• Disapproval of other aspects of govt. policy or performance
• Lack of understanding of the proposals
• Disagreement with part of larger constitutional package
• Obligation to vote at referendums
• Highly adversarial character of referendum campaigns
• Only official information is short case for and against prepared by supporters and
opponents of proposal in parliament, distributed by the Electoral Commission
o E.g. Switzerland - higher rate of yes vote but similar mechanisms:
• No mechanism in Australia for popular initiative
• Australia more adversarial in culture
• More frequent use of referendum


The People and The Judges
Michael Coper, The People and the Judges: Constitutional Referendums and Judicial
Interpretation (1994)
• Successful referendums superseding earlier judicial decisions
o Toohey J - confidence in the people to remedy failures of the court to reflect prevailing
community values
o E.g. referendum in 1977 to introduce retiring age of Federal judges - overcame
Alexander's Case where tenure was held to be for life
• Judicial decisions superseding failed referendums:
o Also opposite - cases extending power in areas where referenda have failed e.g.
aviation, 1937 referendum and Airlines of NSW case
o Judicial expansion of Cth corporations power
• The relevance of failed referendums:
o Incorporation case - counsel argued that 5 failed referendums which dealt with the issue
of permitting Cth to legislate with respect to incorporation of companies revealed:
• Clear perception that Cth did not have power
• Settled area of law - decisive factor
• BUT not in reasons
o Overall difficult to give weight to failed referendums - can only see how existing meaning
was perceived
• The relevance of successful referendums:
o Courts generally take textual approach to interpretation
o Interpretation of 'for whom' in new s51(xxvi)
• Power originally envisaged as restrictive rather than beneficial legislation
• May mean for the benefit of whom; or in relation to whom
• If broad reading based on historical considerations, arguable that cannot be read
on the basis of 'benefit for whom'
• BUT may be limitations on power from fundamental human rights

Expert Panel on Indigenous Recognition
Expert Panel on Constitutional Recognition of Indigenous Australians - Recognising Aboriginal and
Torres Strait Islander Peoples in the Constitution Report (2012)

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 • 90% support at 1967 referendum - shows strong support for constitutional change in relation
to ATSI people
• George Williams - for proposal for constitutional recognition of ATSI to succeed, need 5 pillars:
o Bipartisanship
o Popular ownership
o Popular education
o Sound and sensible proposal
o Modern referendum process
• Paul Kildea - popular engagement requires:
o Broad participation
o Sound judgement
o Inclusiveness
o Popular influence
• Need for
o Comprehensive education campaign to address lack of knowledge of Constitution
• Local deliberative forums, citizens' assembly
o Simplicity of proposals
o Consider timing of referendum
• If mid-term, significant additional expense
• Failure of referendum on this issue could be referendum - harmful to national unity and
hinders capacity to achieve lasting reconciliation
o BUT would likely engineer bipartisan support - increases chance of success
o Should not be seen to be tokenistic response
o Should only proceed when there is likely to be support from majority of people in
majority of states, and need education programs

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REVISION CLASS I
Proportionality test:
• Legitimate purpose
• Means must justify the end

Essay:
• Counter-arguments
• Make sure address the question directly
• E.g. Dicey says, Goldsworthy says
• Points for, points against, conclude

English ideas exerted much greater influence over the drafting of the Australian Constitution than
American ones. As a result, there are virtually no checks and balances on the exercise of power by
federal politicians in Australia.

Checks on legislative powers of government, but also mention checks on executive, and define this
when interpreting the question
• Where do our checks and balances come from

1. Intro
2. Are UK ideas more influential?
a. For - identify UK ideas
b. Against - identify US ideas
3. Are there checks and balances?
a. US Checks and Balances
b. UK Checks and Balances
4. Conclude

Better

1. Intro
2. UK ideas
a. Parliamentary sovereignty - political constitutionalism -
Definition/Strengths/Weaknesses
b. Responsible government - S/W
3. US ideas
a. Written Constitution - S/W
b. Federalism - S/W
c. Judicial review - S/W
4. Argument not persuasive

Identify accountability mechanisms
Conclude - did English ideas exert a greater influence, because of English influence, is there checks
and balances?

US - limiting/weakening government, separation of powers

UK - protect parliament from monarch, limit tyranny in the monarch, strengthen parliament

American:

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 • Federalism
• Representative government
• Judicial review
• Written rigid constitution
• Senate (as states' house)

Didn’t take:
• Bill of rights
• President
• Weakening and limiting government

From UK:
• Queen
• Responsible government - s64
• Prime Minister - conventions
• No bill of rights

From US, still a strong system of separation of powers, and strength of the judiciary is paramount,
but final and ultimate say is given to parliament to respect UK system; also written and rigid
constitution that protects this separation of powers and ensures that checks and balances are
maintained formally as well.

Conversely, if judicial separation of powers is doubted due to parliamentary sovereignty, even within
parliament there are checks and balances as well, including representative and responsible
government, which are key constitutional conventions that help maintain this system and ensure
that federal politicians exercise power in an appropriate manner.

Roach is a landmark decision in providing a measure of protection for the right to vote in
Australian federal elections, particularly given the High Court's earlier decisions on s41 of the
Constitution. But it is also a clear demonstration of why Australian law needs to protect a wider
set of rights in a national statutory Charter of Rights.

• Need to give a few lines on what the case is about
• Tampa - talk about majority and minority
• Boilermakers - talk about principle
• NEED CASE TABLE

First consider Roach
Second consider why roach links to rights
3rd consider counter arguments

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REVISION CLASS II
The Blank Slate Constitution:
Power
• Where is it, who has it, who doesn't, why, what kinds of power, limits
Values
• What, whose

Rule of law - Tamanaha

Constitutions:
• Rigid v Flexible
• Written v Unwritten
• Political Constitutionalism v Legal Constitutionalism - Thompson
• Westminster v Washington
• Centralist (national govt. makes all the decisions) v Federal (pockets of power)
• Colonial (conform to laws and terra nullius) v Indigenous (work together within framework,
assimilate
• Rule of law: See Tamanaha
o Formalist v Substantive
o Thick v Thin
• Sovereignty:
o Absolute v Shared (indigenous and Crown); link to centralist and federal
• Tripartite Separation of Powers:
o Strict v Flexible

Find definitions of concepts, relevant authors and cases

What kind of constitution does Australia have? Cth? States?
Apply all theory from above

State Constitutions and CLVA:
• States have plenary power - can exercise any power
• Need double entrenchments to prevent changes

Changing values - strong sense of ties to Britain, shift towards greater legislative independence
• Australia Acts - values shift, self-government

Mechanics:
Background to institution - who
What are the powers - source, nature
How are they limited - checks, balances, involvement of other arms of government

Identify underlying values
Relevant cases, laws and commentary
Critique - is this effective? Working properly? Relevant alternatives?

Australian Public Law:
USE FOR SCAFFOLD
• Is that good enough?
• What is the system? Why is it like that?

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 • Critique - problems, room for improvement, advantages and disadvantages, strengths and
weaknesses
o MARKS! - important
• Suggestions for reform - opinion
o E.g. if referendum process is not working - citizen driven referenda?

Executive
• Divine right of kings
• Crown sovereignty
• Translated to parliamentary sovereignty - brought to Australia
• Constitution vague about power of the executive
• Other sources of power:
o Constitutional powers
o Prerogative powers - residue of divine right of kings - COMMON LAW
• Can be overridden by statute
• Should not be able to be overridden? See Tampa - executive power v overridden
common law power
o Statute
• Before Williams - executive had power to spend without statutory authority
• Williams overturned
• Need statutes for largely all executive power
• LINK: Judicial review of administrative action - review executive power based on
statutory power - legality of decision
§ Has executive power been exercised within the statute?
§ CONTRA: Merits review
• Internal - managers re-look at decisions e.g. applications
• External - tribunal -
• Delegated legislation - Parliament can give away own power
§ But cannot abdicate - see Work Choices case
• Federal level - courts can only exercise judicial power - Boilermakers
• State level - flexible separation of powers - Kable
o Starting point - can exercise any powers
o BUT test - incompatible with institutional integrity
• High threshhold

Legislature
• Senate - states' house
• HoR - more broadly representative

Issues
EXAM QUESTIONS
• Clear issues:
o Indigenous rights, recognition and sovereignty
o Voting rights
• Limit on government power not right
• Can only take away right to vote if legitimate reason, and ends proportionate to
the means
• See Roach/Rowe - how 2 limbs of test were applied
§ What was legitimate purpose?
§ Did it go to far? - held to be too far in both cases
o Human rights protection

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 o Constitutional change
• Less clear issues:
o Effectiveness of responsible government
o Challenge of achieving the rule of law
o Effective accountability - of any arm of government
• How are judges/parliamentarians held to account?

Rights based judicial review - striking down of legislation if incompatible with rights, do not have this
in Australia
Structural judicial review - courts have the last say
Human rights - parliament
Executive - prerogative power

Washminster system - strength of marrying up oppositional concepts, getting balance between
power of courts and power of parliament

Dealing with issues:
• What spectrums/aspects of constitutions does the issue engage?
• How does it fit within the Australian system of public law? (how is each arm of government
involved? Values, power, history…)
o Does it challenge existing structures
o Does it involve new ones
• Critique - is this working properly? Strengths, weaknesses, alternatives

2012, 2(a)
2013, 2(a) - historical evolution of right to vote:

Make simple arguments well - 3 points on each side
Need counter arguments
Draw links

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