Lecture 4 – Basic Constitutional Principles
In this lecture, we will briefly complete the story of the path to federation. Then explore two basic concepts of constitutional law embodied in the Australian Constitution: the rule of law and the separation of powers. It will be noted that these were principles hard won in British constitutional history. With regard to the establishment of Australia, it can be argued that this was done on a legally dubious basis, and the rule of law and the separation of powers had to be won again by the free settlers of a penal colony, but these principles having been established, it would seem desirable to pursue reform through law rather than abandoning it.
1. Australian Constitutional Development
1.1 The road to Federation (this account is a summary of P Parkinson, Tradition and Change in Australian Law, extracted, with commentary, in B&W 147–151. I also rely on PH Lane, An Introduction to the Australian Constitution 5th edn (Sydney: LBC, 1990), 214–231)
1788–1855: As outlined in Lecture 3, by the end of this period there were self-governing, ‘responsible’ colonies in Australia which followed the Westminster tradition of bicameral (two houses) parliamentary government. (147)
Mid-to-late 1800s: there was both an impetus towards and a resistance to inter-colonial cooperation. One of the main causes of tension concerned the conflict between Victoria’s protectionist policy with respect to customs tariffs (in order to protect its industrial manufacturing advantages) and New South Wales’ free trade approach (in which customs duties were largely used as a form of revenue-raising for the services of government). Other deterrents to federation were the larger colonies’ fears that smaller states would be an economic drain on them, and smaller colonies’ anxiety that they would be dominated by larger states. On the other hand, a number of familiar factors pushed the reluctant colonies towards federation: for example, the imperial and territorial ambitions of the French and Germans in the Pacific, and the common recognition of both the inefficiencies of inter-colonial trade and economic activity generally, and the perceived threat of ‘non-white’ immigration. (147–148)
1885: Federal Council of Australasia (members: Victoria, Tasmania, Queensland, Western Australia, Fiji, South Australia). This was the first experiment in quasi-federal, inter-colonial cooperation. The Federal Council had some supranational powers. It could pass bills with respect to extradition, excluding criminals, the regulation of fisheries, and the enforcement of judgements extra-territorially. However, the effectiveness of the body was undermined by NSW’s determination to remain outside it and go it alone. (148)
1890s: the key period. Following NSW Premier Henry Parkes’ invitation, colonial leaders came together for a federation conference in Melbourne in 1890 (148)
1891: National Australasian Convention (Sydney) with delegations from each colony. A major concern at this meeting was how to combine a federal system with Westminster responsible government. While Canada provided one resolution of this quandary, the example of the U.S.A. was ultimately preferred. Unlike Canada, its system provided much more robust protection to the rights and powers of states vis-à-vis the central government. Another issue was how to ‘reconcile government by a majority of people with government by a majority of the States.’ Naturally, smaller states favoured a strong upper house to protect their interests. A draft constitution Bill was produced, but it lacked popular support and was not approved by colonial legislatures. (148–149)
1895: The colonial premiers agreed to establish another convention, this time elected by popular vote. (149)
1897–1898: The Convention held meetings in Adelaide, Sydney and Melbourne. After discussion in various colonial legislatures, another draft constitution Bill was produced which still had many features of the 1891 Bill. (149)
1898 (June): The 1897 Bill was put to the vote in referenda in Victoria, South Australia and Tasmania, all of which strongly supported it. No referenda were held in WA or Queensland. In NSW there was narrow approval, but it was insufficient (NSW had set its own prerequisite in terms of the level of support). The Bill was amended and re-submitted to every colony except WA. It secured the approval of electors, and every colony formally requested the Queen to enact the Bill in the UK Parliament. (150)
1900–1901: The Commonwealth of Australia Constitution Act 1900 (Imp) was passed by the UK Parliament (after an amendment securing the power of the Privy Council court in relation to Australia) on 9 July 1900, coming into force 1 January 1901. WA joined the new nation as an original member. (150–151)
1.2 Human rights and the Australian Constitution (B&W 151–152) George Williams argues that the framers of the Australian constitution largely took a Diceyan approach to the protection of the rights of individuals: these were, to the extent that they were to be protected at all, to be protected by the ordinary law (that is, the common law). The heritage of British constitutionalism was thought sufficient. Under the doctrine of parliamentary sovereignty parliament was to be trusted to do the right thing. If it did not, there could always be a political sanction. Dicey’s approach was modified in the Australian context, both by the existence of a supreme, written constitution and by the recognition of judicial review (along similar lines – but with no bill of rights – unlike the USA). The framer Andrew Inglis Clark’s suggestion that there be a clause in the Australian Constitution protecting the rights of Australians to life, liberty, property and equality before the law was not adopted. In significant part, this was due to the framers’ desire ‘to ensure that the Australian Constitution did not prevent the colonies, once they became states, from continuing to enact racially discriminatory legislation.’
1.3 Australian legislative dependence and liberation (B&W 153, 155–156)
1.3.1 Certainly prior to the Australia Acts of 1986, the Commonwealth was a creature of a U.K. Act of Parliament. The British Parliament could still pass legislation (in accordance with the Colonial Laws Validity Act 1865 (Imp), hereafter CLVA) with so-called paramount force, which was binding in Australia and prevailed over local legislation repugnant to it (that is, in conflict with it): see also: Union Steamship Co of New Zealand Ltd v Commonwealth (1925) 36 CLR 130, cited in B&W 153.
1.3.2 The Statute of Westminster 1931 (Imp) (see, in particular, ss. 2, 4) effectively gave a legislative stamp of approval to the transition of British colonies toward more independent dominion status in the years following WWI. No longer could the British Parliament legislate for the Commonwealth (this was not the position regarding the Australian states: see s 9), without the latter’s ‘request and consent.’ The CLVA and the associated doctrine of repugnancy no longer applied to Australia at the central level. (155–157)
1.3.3 According to Blackshield and Williams (B&W 157), after the passing of the Statute of Westminster, there were still ‘two impediments’ to complete legal independence for Australia: Britain could still legislate for Australia (albeit with its consent), and states were still limited by CLVA repugnancy and the limitations on extraterritorial legislation.
1.3.4 It seems reasonable to conclude that the combined effect of the Australia Acts passed in 1986 by the U.K., Commonwealth and every state, and their interpretation by the High Court of Australia, has been to set Australia completely free in a legal sense from the U.K. (but that might not answer persistent doubts about the legitimacy of the Australian constitution being established by a UK Act of Parliament, nor those concerning our status as a constitutional monarchy with the Queen of Australia as its head). The UK was held to be a ‘foreign power’ in Sue v Hill (1999) 199 CLR 462, extracted and discussed in B&W 168–170). The majority held that U.K. law had no ‘efficacy as part of the law of the Commonwealth, the States and the Territories.’ Note also Callinan J’s acceptance in A-G (WA) v Marquet (2003) 217 CLR 545 (quoted in B&W 172) that ‘All of the relevant [Australia] acts (federal and State) as well as the Australia Act 1986 (UK) represent a final and indubitable recognition, a settlement between the United Kingdom, Australia and its States, and an ultimate legitimization of the respective constitutions, the sovereignty and the plenitude of the powers of the respective Australian polities. They also represent a remarkable and rare consensus of politics which requires that their terms be given their full effect.’ See also Callinan J in Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 (quoted in B&W 172): the Commonwealth’s Australia Act was the ‘overt legislative act, mirroring simultaneous legislation in the United Kingdom, that gave voice to the completion of Australia’s evolutionary independence. It was a formal declaration that the Commonwealth of Australia and the Australian states were completely constitutionally independent of the United Kingdom. Nothing can serve so well to give legitimacy to a nation and its constitutional integrity as a rare and complete consensus of governments of the kind that the enactment of the Australia Acts represent.’ Thus in Callinan’s view Australia achieved complete legal independence from the U.K. when the Australia Acts came into force on 3 March 1986. (B&W 172–173). It is also arguable that as a matter of political reality, Australia was an independent state from 1931 and that even the Statute of Westminster (1931)(Imp) was simply recognising the reality of the independence of the dominions.
THE RULE OF LAW
1. Definitions and theories:
The alternative: the rule of men – but who makes the law? Who enforces it? Who interprets it? AV Dicey: parliamentary sovereignty subject to public rebellion, elections and common sense G de Q Walker: Parliament is restrained by the constitution: it is not above the law Jennings: parliament is subject to limits. It must face election. Sovereignty is a theological concept. Allan: Parliamant is constrained by democracy. If Parliament sought to destroy democracy, courts would act Julius Stone (Australian)
Lon Fuller (American)
2. Parliamentary sovereignty vs. the rule of law?
In British constitutionalism, there has always been at the very least a theoretical tension between the extravagant claims for the doctrine of parliamentary sovereignty and the simultaneous praise for the rule of law as part of constitutionalism. The former doctrine seems to assume that, but for political sanction against a government, legislative power is unrestrained, whereas the latter doctrines are defined by the restraint of power. In its crude form, the doctrine of parliamentary sovereignty seems to assume that the parliament is not subject to the kinds of limitations it itself fought for in the seventeenth century vis-à-vis the Crown. Of course, in reality even the British Parliament is restrained by convention and the constitution (albeit ‘unwritten’), as one would expect in a constitutional monarchy. Nevertheless, the shadow cast by A. V. Dicey’s defence of parliamentary sovereignty has been both a long and enduring one; from which Australian constitutional theory has not been excepted. However, unlike Britain, in Australia the combination of a written supreme constitution, federalism and a supreme court (the High Court of Australia) which has accepted judicial review means that the Commonwealth parliament’s power is better described as constitutionally limited rather than sovereign (and see Jennings’ argument below).
AV Dicey, Introduction to the Study of the Law of the Constitution (1885) (extracted in B&W 100–102) Note: my insertions and commentary in this and in following passages are inside square brackets.
The sovereignty of Parliament is (from a legal point of view) the dominant characteristic of our [that is, English] political institutions … [Parliamentary sovereignty is] fully recognised by the law of England … none of the alleged legal limitations on the sovereignty of Parliament have any existence … The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever, and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament … The plain truth is that as a matter of law Parliament is the sovereign power in the state … The external [or political] limit to the real power of the sovereign consists in the possibility or certainty that his subjects, or a large number of them, will disobey or resist his laws … [Cf the social contract theory: for example, John Locke’s justification of rebellion/revolution if the contract is broken by a government trampling on the natural rights of its subjects/citizens] The internal limit to the exercise of sovereignty arises from the nature of the sovereign power itself. Even a despot exercises his powers in accordance with his character … moulded by the circumstances under which he lives, including under that head the moral feelings of the time and the society to which he belongs … [Dicey then quotes from Leslie Stephen’s Science of Ethics to support his point:] ‘If a legislature decided that all blue-eyed babies should be murdered [sic: if Stephen’s point is accepted they would not be being ‘murdered,’ but lawfully killed], the preservation of blue-eyed babies would be illegal; but legislatures must go mad before they could pass such a law, and subjects be idiotic before they could submit to it.’
Geoffrey de Q Walker, ‘Dicey’s Dubious Dogma of Parliamentary Sovereignty’ (extracted in B&W 102–103)
[Contrary to Dicey, Walker emphasizes the theme of constitutionalism throughout English legal history, particularly in the seventeenth century, culminating in the Glorious Revolution.]
[B]y dint of sheer repetition, academic preaching of the absolutist theory of sovereignty has diverted the attention of bench and bar away from the more limited and balanced principle developed by common lawyers during the seventeenth century. This principle is one of parliamentary supremacy, not sovereignty … [W]hat Parliament had in mind was a government of laws and not of men … It seems that Dicey’s theory is like some huge, ugly Victorian monument that dominates the legal and constitutional landscape and exerts a hypnotic effect on legal perception. … [The foundations of Dicey’s doctrine of parliamentary sovereignty] are weak and it has never clearly and formally, least of all democratically, been made part of our Constitutions.
[But one must note, pace de Q Walker, that Coke CJ was not the victor in common law court battles with parliament: the notion of judicial review applies only in the public law context. Legislation of course prevails over the common law. But both, in Australia at least, are subject to the Commonwealth Constitution.]
[Note Jeffrey Goldsworthy’s qualified defence of the notion of parliamentary sovereignty (B&W 103).]
WI Jennings, The Law and the Constitution (1959) (extracted in B&W 103–105)
Dicey has called this enormous legal power the ‘sovereignty’ of Parliament. But this is a word of quasi-theological origin [Cf the ‘descending’ theory of rule and the doctrine of the ‘divine right’ of monarchical rule] which may easily lead us into difficulties … [I]f sovereignty is supreme power, Parliament is not sovereign [contrast de Q Walker’s, and my understanding, of parliamentary supremacy as referring to legislation as the supreme form of ordinary law, subordinate only to constitutional law]. For there are many things, as Dicey and Laski both point out, which Parliament cannot do … Parliament is not the permanent and personal sovereign contemplated by [French philosopher Jean] Bodin … it is two groups of men … [who must be elected but cf House of Lords.] Since, if they wish for re–election, they may be called upon to give account of their actions, they must consider … what the general opinion about them may be. Parliament passes many laws which many people do not want. But it never passes any laws which any substantial section of the population violently dislikes [Do you agree?]. … [Parliament] has powers derived from the law … [I]t is not entirely ridiculous to say that a legislature is sovereign in respect of certain subjects, for it may then pass any sort of laws on those subjects, but not on any other subjects. [emphasis added]
TRS Allan, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (1993) (extracted in B&W 106)
[In a useful summary, Blackshield and Williams, B&W 105, write that ‘[f]or Allan, parliamentary sovereignty is a concept that is intricately linked to representative democracy and thus cannot be exercised in an undemocratic manner.’]
[T]he courts’ continuing adherence to the legal doctrine of sovereignty must entail commitment to some irreducible, minimum concept of the democratic principle. In almost all likely circumstances, that political commitment will demand respect for the legislative measures adopted by Parliament as the representative assembly.
That respect, however, clearly cannot be a limitless one. A parliamentary enactment whose effect would be the destruction of any recognizable form of democracy … could not consistently be applied by the courts as law … An enactment which threatened the essential elements of any plausible conception of democratic government would lie beyond those boundaries. It would forfeit, by the same token, any claim to be recognized as law. … The legal authority of statute depends in the final analysis … on its compatibility with the central core of that morality which constitutes the rule of law …
If Parliament ceased to be a representative assembly … or if it proceeded to enact legislation undermining the democratic basis of our institutions, political morality might direct judicial resistance rather than obedience. …
These suggestions suggest how the apparent conflict between Dicey’s ‘guiding principles’ of legislative sovereignty and the rule of law might finally be resolved. I have suggested that a statute which threatened fundamentally the central tenets of our democracy could derive no authority from the doctrine of sovereignty, properly understood. …
The limits of legislative supremacy are to be discovered, then, in that deeper constitutional morality from which the rule of law derives its strength and virtue.
3. The Diceyan doctrine of the rule of law
AV Dicey, Introduction to the Study of the Law of the Constitution (1885) (extracted in B&W 107–108)
[Dicey developed a highly influential tripartite conception of the rule of law: the integrating thread is that Englishmen can rely on the ordinary law, to which all are subject, for the protection of their rights such as they are:]
[The rule of law which] forms a fundamental principle of the constitution … means …  the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative [royal power], or even of wide discretionary authority on the part of the government. Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else [Cf the Latin maxim nulla poena sine lege: no punishment without law]. …  equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the law ordinary law courts; the ‘rule of law’ in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals …  with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts … [T]hus the constitution is the result of the ordinary law of the land.
WJ Jennings, The Law and the Constitution (1959) (extracted in B&W 108–110)
Expressed in English terms, the rule of law in this liberal sense requires that the powers of the Crown and its servants shall be derived from and limited by either legislation enacted by Parliament, or judicial decisions taken by independent courts … The doctrine involves some considerable limitation on the powers of every political authority, except possibly (for this is open to dispute) those of a representative legislature. Indeed it contains … something more, though it is not capable of precise definition. It is an attitude, an expression of liberal and democratic principles, in themselves vague when it is sought to analyse them, but clear enough in their results. There are many facets to free government, and it is easier to recognise it than to define it. It is clear, however, that it involves the notion that all governmental powers, save those of the representative legislature, shall be distributed and determined by reasonably precise laws. Accordingly a king or any other person acting on behalf of the State cannot exercise a power unless he can point to some specific rule of law which authorises his act. The State as a whole is regulated by law. For this reason, the doctrine is expressed in [European] continental legal theory by saying that the State is a ‘legal state’ – Rechtsstaat, état de droit, stato di diritto … [Cf Sartori’s discussion] Since fundamentally it requires a limitation of powers, most States have sought to attain it by written constitutions, for such a constitution is fundamental law which limits by express rules the powers of the various governing bodies and thus substitutes constitutional government (in large part a synonym for the rule of law) for absolutism. It implies also a separation of powers, since the confusion of powers in one authority is dictatorship or absolutism, which, according to liberal ideas, is potential tyranny. … [Jennings then describes the part notions of equality have to play in the concept of the rule of law: attacks on privilege, equality before the law (meaning ‘among equals the laws should be equal and should be equally administered, that like should be treated alike.’]
In the criminal law, indeed, the rule of law implies a combination of the notion of equality before the law with the notion that the limits of police powers should be rigidly defined. The rule of law in this sense is expressed in the maxim, derived from nineteenth-century liberalism, nulla poena sine lege … [It] includes at least four notions.  First, it means that the category of crimes should be determined by general rules of a more or less fixed character [contrast laws that target specific individuals, known as bills of attainder: see Polyukhovich v Commonwealth (1991) 172 CLR 501:B&W 696–704].  Secondly, it implies that a person should not be punished except for a crime which falls within these general rules …  Thirdly, it may mean that penal statutes should be strictly construed, so that no act may be made criminal which is not clearly covered by the statutes.  Fourthly, it may mean that penal laws should never have retrospective effect. …
Above all, the rule of law implies the even less precise notion of liberty.
Eric Barendt, ‘Dicey and Civil Liberties’ (1985) (extracted in B&W 114–116)
The absence of arbitrary power made so much of in [Dicey’s] The Law of the Constitution was an absence of autonomous executive or prerogative power; what we are more concerned with nowadays is the risk of governments abusing their powers through their de facto control of the legislature … The rule of law is a quite valueless doctrine these days unless it is accepted as a rule which binds the legislature, either as a matter of constitutional law or at least as a general political principle or convention.
Potter v Minahan (1908) 7 CLR 277 (B&W 117–118)
[O]ne right which it would not be assumed the legislature intended to take away except by express words or necessary implication. That is the right of every British subject born in Australia, and whose home is in Australia, to remain in, depart from, or re-enter Australia as and when he thought fit, unless there was in force in Australia a positive law to the contrary. (per O’Connor J) [this is why we have citizenship law!]
Coco v The Queen (1994) 179 CLR 427 (B&W 119–120) (conviction supported by evidence obtained from listening devices unlawfully installed, by unlawful entry, was quashed: B&W 119)
Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language … The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights … Brennan J in Re Bolton; Ex parte Beane [(1987) 162 CLR 514 at 523] … [said that] ‘Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.’… The need for a clear expression of an unmistakable and unambiguous intention does not exclude the possibility that the presumption against statutory interference with fundamental rights may be displaced by implication … [and] in some circumstances the presumption may be displaced by an implication if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless [though this would be ‘very rare’].
4. The rule of law and Australian constitutional law
[Patrick Keyzer provides a useful schema for the consideration of the extent to which the rule of law is embodied in Australian constitutional law. In what follows I adapt and supplement his framework. See: Constitutional Law 2nd edn (Chatswood, NSW: LexisNexis/Butterworths, 2005) 3–9).]
For the rule of law as an ‘assumption’ of the Commonwealth Constitution, see Australian Communist Party v Commonwealth (Communist Party Case) (1951) 83 CLR 1 (B&W 871–880).
4.1 That one can only be punished for a breach of law:
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (for the facts, see B&W 690–691; for extracts from the case, B&W 691–693)
[It is] … beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt. The reason why that is so is that, putting to one side exceptional cases … the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government [here, obviously the majority adapts and quotes from Dicey’s formulation], exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt. Every citizen is ‘ruled by the law, and by the law alone’ and ‘may with us be punished for a breach of law, but he can be punished for nothing else’… [quoted in P Keyzer, above, at 5] but executive detention of non-citizens was permitted!
But see also Ruddock v Vadarlis (Tampa Case) (2001) 183 ALR 1 (B&W 528–533; facts at 528–529) (Full Court of the Federal Court found that the executive has power, in part under s 61, to detain an alien as part of the sovereign power to, as French J put it, ‘determine who may come into Australia … [because] it is not to be supposed that the government of the nation would lack under the power conferred upon it directly by the Constitution, the ability to prevent people not part of the Australian community from entering … ); Border Protection (Validation and Enforcement Powers) Act 2001 (Cth) (in the B&W summary, at 532, ‘passed on 26 September 2001 … [it] retrospectively authorised the detention of the rescuees and other acts done from 27 August to 27 September 2001.’ – emphasis added); Ruhani v Director of Police (No 2) (2005) 219 ALR 270 (cited in B&W 532) (upholding as constitutional the detention of rescuees in Nauru). For a much fuller discussion of judicial and non–judicial detention, see B&W ch 15. See also Anti-Terrorism Act (No 2) 2005 (Cth), Schedule 4 (on control orders and preventative detention orders).
4.2 Government officials are equally subject to the law (‘government under the law’)
A v Hayden [No 2] (1984) 156 CLR 532 (Keyzer, above, 5–6)
… it is entirely clear that neither ASIS [an Australian intelligence agency] nor the minister nor the executive government could confer authority upon any of the plaintiffs to commit an offence or immunity from prosecution for an offence once committed. The incapacity of the executive government to dispense its servants from obedience to laws made by Parliament is the cornerstone of a parliamentary democracy … The principle … is that all officers and ministers ought to serve the Crown according to the laws …
This is no obsolete rule; the principle is fundamental to our law, though it seems sometimes to be forgotten when the executive government or their agencies are fettered or frustrated by laws which affect the fulfilment of their policies.
But cf Nicholas v R (1998) 193 CLR 173 (s 15 X, Division 3 of the Crimes Act 1914 (Cth) (B&W 704–707) provided that courts were not to exclude evidence obtained in drug importation cases where police had themselves committed offences provided it was in the course of a ‘controlled operation’, in other words an undercover ‘sting’ operation; and the section had retrospective operation).
4.3 Judicial review (we return to this issue in a subsequent week)
Communist Party Case (B&W 870-880; facts at 870–871)
McTiernan J: The recitals [in the Communist Party Dissolution Act 1950 (Cth) are in no way decisive of the question whether the Act is valid or invalid, for that is a judicial question which only the judicature has the power to decide finally and conclusively. If any fact stated in a recital is material to the question whether the Act is valid or invalid, the fact would need to be judicially determined or ascertained. The recitals are not judicial findings and do not bind the judicature on any question within its own exclusive province … The Constitution does not allow the judicature to concede the principle that the Parliament can exclusively ‘recite itself’ into power. (B&W 871)
Fullagar J: The validity of a law or of an administrative act done under a law cannot be made to depend on the opinion of the law-maker, or the person who is to do the act, that the law or the consequence of the act is within the constitutional power upon which the law itself depends for its validity. … [T]he legislative power of the Commonwealth Parliament is limited by an instrument emanating from a superior authority … [I]n our system the principle of Marbury v Madison [5 US (1 Cranch) 137 (1803) is accepted as axiomatic, modified in varying degree in various cases (but never excluded) by the respect which the judicial organ must accord to opinions of the legislative and executive organs … (B&W 875, 876)
4.4 Judicial independence and the separation of judicial power (see below)
4.5 Laws to be prospective?
According to the B&W (695–696), ‘[it] is generally thought important that laws defining the elements of criminal guilt should operate only for the future, so that guilt or innocence are determined by judicial application of rules or criteria already publicly spelled out at the time of the alleged offences. Accordingly, the traditional approach has been that, where possible, the courts will construe a law imposing criminal penalties so as not to operate retrospectively. However, the corollary of that approach [consistent with the doctrine of parliamentary supremacy] is that an Act will operate retrospectively if Parliament has made that intention unmistakably clear.’
See: R v Kidman (1915) 20 CLR 425 (cited and discussed in B&W 696); Polyukhovich v The Queen (War Crimes Case) (1991) 172 CLR 501 (B&W 696–703; per Mason CJ, approving R v Kidman, ‘[I]f the law, though retrospective in operation, leaves it to the courts to determine whether the person charged has engaged in the conduct complained of and whether that conduct is an infringement of the rule prescribed, there is no interference with the exercise of judicial power …’; at B&W 702). See also: Nicholas v R (above).
4.6. Laws must be of general application?
Note the discussion of bills of attainder by Mason CJ in Polyukhovich (above: B&W 702: ‘The distinctive characteristic of a bill of attainder, marking it out from other ex post facto laws, is that it is a legislative enactment adjudging a specific person or specific persons guilty of an offence. Other ex post facto laws speak generally, leaving it to the courts to try and punish specific individuals.’). See also Gaudron J in Kable v DPP (NSW) (1996) 189 CLR 51 (facts at B&W 721–722; case extracts in B&W 722–731): ‘Public confidence in the courts requires that they act consistently according to rules of general application. That is an essential feature of the judicial process. It is that feature which serves to distinguish between palm tree justice and equal justice. Public confidence cannot be maintained in a judicial system which is not predicated on equal justice.’ (at B&W 726).
4.7 Equality before the law?
Equality before the law, or before the courts, is constitutionally protected in Australia only in a minimalist Diceyan sense: that all are subject to the law, not that such laws are substantively fair, egalitarian and non-discriminatory: see Leeth v Commonwealth (1992) 174 CLR 455 (B&W 707–713); Kruger v Commonwealth (Stolen Generations Case) (1997) 190 CLR 1 (B&W 714–717).
THE SEPARATION OF POWERS
I rely here principally on the B&W and S Joseph and M Castan, Federal Constitutional Law: A Contemporary View (2nd edns, 2006) (Sydney: Thomson) (hereinafter JC)
1. Origins, policy and rationale:
–John Locke, Second Treatise of Government (17th c.)
–Montesquieu, The Spirit of the Laws (18th c.)
–The American experience
–The decline of the separation of powers (SOP)
2. SOP under the Australian Constitution
2.1 The partial separation of the legislature and the executive
–Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan (1931) 46 CLR 73 (Dignan’s Case): per Dixon J in (at 91 in T Blackshield and G Williams, Australian Constitutional Law and Theory: Commentary and Materials 3rd edn (Sydney: The Federation Press, 2002), hereinafter B&W 3rd edn, 530):
But it is one thing to adopt and enunciate a basic rule involving a classification and distribution of powers of such an order, and it is another to face and overcome the logical difficulties of defining the power of each organ of government, and the practical and political consequences of an inflexible application of their delimitation.
2.2 The ideal of the strict separation of judicial power
2.2.1 Defining judicial power
A difficult task:
Windeyer J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 (‘the concept seems … to defy, perhaps it were better to say transcend, purely abstract conceptual analysis’; quoted in B&W 3rd edn, 621); Aickin J in R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1 (‘in substance all that the courts have been able to say towards a definition has been the formulation of negative propositions by which it has been said that no one of a list of factors is itself conclusive and perhaps the presence of all is not conclusive,’ quoted in B&W 4th edn 664).
A leading formulation: Griffith CJ in Huddart, Parker and Co Pty Ltd v Moorehead (1904) 8 CLR 330 (in B&W 3rd edn: 620):
[T]he power which every sovereign authority must of necessity have to decide controversies between its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal [court] which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.
See also: Brandy v Human Rights and Equal Opportunity Commission [HREOC] (1995) 183 CLR 245; Kitto J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 ‘[A] judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons and classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist’– quoted in B&W 3rd edn, 620–621); NSW v Cth (Wheat Case) (1915) 20 CLR 54; R v Spicer; Australian Builders’ Labourers’ Federation, Ex p (1957) 100 CLR 277; WWF of Australia v JW Alexander Ltd (1918) 25 CLR 434 (Alexander’s Case)
2.2.2 Separation of judicial power: main rules and exceptions:
Rule 1: Judicial power can only be exercised by Ch III (Cth Constitution) courts
–Wheat Case; upheld in Alexander’s Case; reaffirmed in Brandy
Rich J (at 108; quoted in JC 2nd edn 172):
The Constitution draws a clear distinction – well known in all British communities between the legislative, executive and judicial functions of government of the Commonwealth. The legislative power is, by s 1, vested in Parliament, the constitution and powers of which are carefully defined in Chapter I. Chapter II deals with the Executive Government … Chapter III deals with the judiciary, and contains the most ample and meticulous provisions as to the tribunals which shall exercise such judicial powers and as to the subject matter of their jurisdiction.
Griffith J (at 62; quoted in JC 2nd edn 172):
[T]he provisions of s 71 are complete and exclusive, and there cannot be a third class of courts which are neither federal courts nor State courts invested with federal jurisdiction.
Isaacs and Rich JJ (469–470; quoted in JC 2nd edn 172):
It is plain that the independence of the tribunal [court] would be seriously weakened if the Commonwealth Parliament could fix any less permanent tenure than for life, subject to proved misbehaviour or incapacity. It is not like the case of a unitary Parliament having only one interest to consider, namely one territory. It is the case of a Federation, where the central legislative and executive bodies are largely competitive with, and in a sense adverse to, the State authorities. On the whole, the suggested inconvenience [of tenure] sinks into insignificance when the greater considerations are borne in mind.
Their Honours continued (464; quoted in B&W 3rd edn 610):
The judicial function is an entirely separate branch, and first ascertains whether the alleged right or duty exists in law, and, if it binds it, then proceeds if necessary to enforce the law.
Deane, Dawson, Gaudron and McHugh JJ (268-269; quoted in B&W 3rd edn 625–626):
[T]here is one aspect of judicial power which may serve to characterise a function as judicial when it is otherwise equivocal. That is that the enforceability of decisions given in exercise of judicial power … [T]he concept of judicial power includes enforcement: the capacity to give a decision enforceable by execution.
Exceptions to Rule 1:
i. Delegation of judicial power:
Harris v Caladine (1991) 172 CLR 84
Mason CJ and Deane J (95; quoted in JC 2nd edn 179) [on the conditions for the allowable delegation of judicial power to non-judicial officers]
The first condition is that the delegation must not be to an extent where it can no longer properly be said that, as a practical as well as a theoretical matter, the judges constitute the court. This means that the judges must continue to bear the major responsibility for the exercise of judicial power at least in relation to the more important aspects of contested matters …  The second condition is that the delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions of the officers of the court in the exercise of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judges or judges of the court. … The importance of insisting on the existence of review by a judge is that this procedure guarantees that a litigant may have recourse to a hearing and a determination by a judge. In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently under consideration
ii. Discrete exceptions:
a) s 49 Cth Constitution (regarding Parliament’s power to punish for contempt): R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 b) courts martial: R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 453 c) public service disciplinary tribunals: R v White; Ex parte Byrnes (1963) 109 CLR 665
Rule 2: Ch III courts may not exercise non-judicial power
-R v Kirby; Boilermakers’ Society of Australia, Ex p (Boilermakers’ Case) (1956) 94 CLR 254 (which reaffirmed the Wheat Case); upheld on appeal to the Privy Council in A-G (Cth) v R; Ex parte Australian Boilermakers’ Society (1957) 95 CLR 529; extended in Re Wakim; Ex parte McNally (1999) 198 CLR 511 (state jurisdiction and judicial power cannot be vested in federal courts).
The majority (270; quoted in JC 2nd edn 174–175):
It is beyond the competence of the Parliament to invest with any part of the judicial power any body or person except a court created pursuant to s 71 and constituted in accordance with s 72 or a court brought into existence by a State … [T]o study Chapter III is to see at once that it is an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested … [T]he legislature … [is not] at liberty to turn away from Chapter III to any other source of power when it makes a law giving judicial power exercisable within the Federal Commonwealth of Australia. …
[Their Honours then explain why Chapter III courts cannot exercise non-judicial power]
[T]he Constitution does not allow the use of courts established by or under Chapter III for the discharge of functions which are not in themselves part of the judicial power and are not auxiliary or incidental thereto [see Commonwealth Constitution, s 51(xxxix)] … If attention is confined to Chapter III it would be difficult to believe that the careful provisions for the creation of a federal judicature as the institution of government to exercise judicial power and the precise specification of the content or subject matter of that power were compatible with the exercise by that institution of other powers … It would seem a matter of course to treat the affirmative provisions stating the character and judicial powers of the federal judicature as exhaustive … It hardly seems a reasonable hypothesis that in respect of the very kind of power that the judicature was designed to exercise its functions were carefully limited but as to the exercise of functions foreign to the character and the purpose of the judicature [that is, non-judicial powers] it was meant to leave the matter at large.
The High Court’s decision was upheld on appeal to the Privy Council: A-G (Cth) v R; Ex parte Australian Boilermakers’ Society (1957) 95 CLR 529 (540–541; quoted in JC 2nd edn 175):
In a federal system the absolute independence of the judiciary is the bulwark of the constitution against encroachment whether by the legislature or by the executive. To vest in the same body executive as well as judicial power is to remove a vital constitutional safeguard.
In Re Wakim, it was held that state jurisdiction could not be conferred on a federal Chapter III court; which also meant, as a matter of logic, that only Commonwealth (federal) judicial power could be conferred on Commonwealth Chapter III courts):
McHugh J (557; quoted in JC 2nd 176–177):
The legislatures of the States have no power, with or without the consent of the Parliament of the Commonwealth, to invest State jurisdiction or judicial power in federal courts. There is not a word in Chapter III which indicates that the States can invest such jurisdiction or power in the federal courts … s 77 (iii) of the Constitution expressly empowers the Parliament of the Commonwealth to invest ‘any court of a State with federal jurisdiction.’ Given the presence of s 77 (iii), the absence of any express power in the States to invest State jurisdiction in federal courts is itself enough to indicate that the States lack the power to do so. But in addition, the settled doctrine of this Court is that Chapter III exhaustively defines the ‘matters’ that the Parliament of the Commonwealth may invest in the federal courts which it creates. The irresistible conclusion from the terms of Chapter III is that it authorises the Parliament of the Commonwealth to create federal courts but only for the purpose of exercising jurisdiction with respect to the matters specified in ss 75 and 76 of the Constitution.
Exceptions to Rule 2:
i. Incidental powers: s 51 (xxxix) Cth Constitution; Boilermakers’ Case (applied in R v Joske; Ex parte Shop Distributive and Allied Employees’ Association (1976) 135 CLR 194: JC 181); Re Wakim.
Boilermakers’ Case (269–270; quoted in JC 2nd 180)
Section 51 (xxxix) extends to furnishing courts with authorities incidental to the performance of the functions derived under or from Chapter III and no doubt to dealing in other ways with matters incidental to the execution of the powers given by the Constitution to the federal judicature.
ii. Persona designata: Hilton v Wells (1985) 157 CLR 57 (a federal court judge can be a designated person for the purpose of issuing phone tap warrants; affirmed in Grollo v Palmer (1995) 184 CLR 348)
Hilton v Wells
The majority (73–74; quoted in JC 2nd edn 182):
We conclude that s 20 [which authorized Federal Court judges to issue phone tap warrants] confers no power on the Federal Court and does not infringe the rule laid down in the Boilermaker’s Case … The section designates the judges as individuals particularly well qualified to fulfil the sensitive role that the section envisages, and confers on them a function which is not incompatible with their status and independence or inconsistent with the exercise of their judicial powers.
But there is a qualification to this exception (sometimes known as ‘the exception to the exception’): any conferral on a designated person must satisfy the conditions of the incompatibility doctrine: Grollo v Palmer; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (the Hindmarsh Island Case) (1996) 189 CLR 1 (appointment of Mathews J, a judge of the Federal Court, persona designata, to inquire into and report to the government on the building of a bridge on putatively sacred indigenous land was incompatible with her judicial office).
The criteria for compatibility in Grollo v Palmer (364–365; JC 2nd edn 183):
1. A judge must consent to any conferral of non-judicial power upon her; 2. Any non-judicial power must be compatible with the judge’s performance with integrity of her judicial functions; and with the institution of the judiciary generally (including the public’s confidence in it).
The test for incompatibility in the Hindmarsh Island Case (JC 185–186)
As many as three questions need to be answered, as follows:
1. Is the non-judicial function to be conferred on a judge persona designata ‘an integral part of, or is closely connected with, the functions of the Legislature or the Executive Government’? (17, quoted in JC 185)
Answer: if ‘no,’ there is no incompatibility; if ‘yes,’ one must address the next question:
2. Is the function ‘required to be performed independently of any instruction, advice or wish of the Legislature or the Executive Government’? (17, quoted in JC 2nd edn 185)
The court said that the function must be performed judicially, without bias and in observance of the dictates of natural justice (e.g. allowing opposing parties to be heard): ‘if a judicial manner of performance is not required, it is unlikely that the performance of the function will be performed free of political influence or without the prospect of exercising a political discretion.’ (17, quoted in JC 2nd edn 186) [But, in my view, considering that the persona designata doctrine is all about allowing for the conferral of non-judicial power on a judge in his or her personal capacity, it seems strange then to insist that such a function should be exercised effectively in a judicial manner.]
Answer: if ‘no,’ the conferral is incompatible; if ‘yes,’ one must still answer the next (and final) question:
3. ‘Is any discretion purportedly possessed by the Chapter III judge to be exercised on political grounds–that is, on grounds that are not confined by factors expressly or impliedly prescribed by law?’ (17, quoted in JC 2nd edn