The Constitutional Systems of the Australian States and Territories

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The Constitutional Systems of the Australian States and Territories Dealing specifically with the constitutional systems of the States and territories, this book is the only Australian legal reference work of its kind. It fills a significant gap in Australian constitutional scholarship. The Constitutional Systems of the Australian States and Territories explores and compares the nature and functioning of the constitutional systems of the six States and ten Commonwealth territories within Australia’s federal system. The principal focus of the book is to determine the scope of their legislative, executive and judicial powers and the extent to which these powers are restricted. For instance, it examines the limited capacity to entrench legislation, to enact laws beyond their borders and to affect the judicial system. It does this within the historical context of the States’ evolution from colonies to States of a federation, and considers their future constitutional development, including transformation to a republic. These issues are also covered in relation to the three self-governing territories of the Australian Capital Territory, the Northern Territory and Norfolk Island. Their constitutional status is fully explored, including the extent to which the Commonwealth retains authority over them pursuant to its territories power. Written for all students of constitutional law, this book is an invaluable resource for legal practitioners and legal advisors, as well as judges and political scientists. Gerard Carney is a Professor of Law at Bond University, Queensland, and a Visiting Professor of Law at the University of Western Australia.

The Constitutional Systems of the Australian States and Territories Gerard Carney Professor of Law Bond University and Visiting Professor of Law University of Western Australia

   Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge  , UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521863056 © Gerard Carney 2006 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2006 - -

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Contents

Table of cases xiii Table of statutes xxv Preface xlviii List of abbreviations xlix Map l 1

Introduction 1 1.1 Role of the States 2 1.2 Constitutional relationship between the Commonwealth and the States 8 Commonwealth–State financial relations 8 History of federal cooperation 11 Cooperative schemes 13 1.2.3.1 The reference power: s 51(xxxvii) 14 1.2.3.2 History of State referrals 16 1.2.3.3 Other legislative mechanisms of federal cooperation 17 1.2.3.4 Alternatives to the reference power 18 1.2.3.5 Criticism 20 1.2.4 Intergovernmental institutions and agreements 21 1.2.4.1 Council of Australian Governments 22 1.2.4.2 Treaties Council 23 1.2.4.3 Ministerial councils 24 1.2.4.4 Intergovernmental agreements 24 1.2.5 Reform 25 1.2.6 Secession 26 Role of the territories 28 Reform agenda for State and Territory Constitutions 29 1.4.1 Modernisation of State Constitutions 29 1.4.2 Entrenchment by manner and form 30 1.4.3 Bill of Rights 30 1.4.4 Reconciliation 31 1.4.5 Role of royal assent 32 1.4.6 Role of Legislative Councils 32 1.4.7 Appointment of Governors and Administrators 32 1.4.8 Recognition of local government 33 Conclusion 34 1.2.1 1.2.2 1.2.3

1.3 1.4

1.5

v

vi

2

CONTENTS

Constitutional evolution of the States 35 2.1 Introduction 35 2.2 Autocratic rule 37 2.3 Legislative Council 39 2.4 Representative legislature 40 2.5 Responsible government 42 New South Wales 42 Van Diemen’s Land/Tasmania 48 Western Australia 49 South Australia 51 Victoria 53 Queensland 55 New Zealand 57 Federation and statehood 59 2.6.1 Sections 106 and 107 63 2.5.1 2.5.2 2.5.3 2.5.4 2.5.5 2.5.6 2.5.7

2.6 2.7 2.8

Democratic accountability: sovereignty of the people 65 Termination of imperial power and restrictions: Australia Acts 1986 66 Legislative package 68 Reasons for dual legislation 69 The future 74 2.8.1 2.8.2

2.9

3

The Legislature 76 3.1 Introduction 76 3.2 Process of enacting laws 78 Process for ordinary Bills 79 Instructions for assent 82 Removal of Crown from legislative process 83 Parliamentary control of finance 85 3.3.1 Judicial review of financial procedures 87 Resolution of deadlocks 89 3.4.1 Deadlocks over financial Bills 89 3.4.2 Deadlocks over other Bills 91 3.4.3 Judicial review of legislative process 94 3.4.4 Judicial intervention in the legislative process 96 Parliamentary privilege 98 Parliamentary terms 101 Prorogation and dissolution 101 3.2.1 3.2.2 3.2.3

3.3 3.4

3.5 3.6 3.7

4

Legislative power 103 4.1 Introduction 103 4.2 State legislative power 104 Status of State Constitution as a local Act 105 A plenary power 106 Fundamental rights 108 Legislative power of self-governing territories 113 Doctrine of separation of powers 114 Restrictions on State power 116 4.2.1 4.2.2 4.2.3

4.3 4.4 4.5

CONTENTS

4.6

Protection of democratic government 117 Parliament 119 Implied freedom of political communication 122 4.6.2.1 Implication from State Constitutions 131 4.6.2.2 The territories 133 Conclusion 135

4.6.1 4.6.2

4.7

5

Repugnancy 136 5.1 Introduction 136 5.2 Reception of English law in the Australian colonies 137 5.3 Paramount imperial law 141 5.4 Repugnancy to imperial law 143 5.5 Effect of Australia Acts 1986 145 5.6 Self-governing territories 146

6

Manner and form 149 6.1 Introduction 149 6.2 Qualification to parliamentary sovereignty 152 6.3 Justification for parliament to bind its successors 153 Prevent implied repeal 154 Restricting parliamentary sovereignty 158 The position in the Australian States 159 6.4.1 Section 6 Australia Acts 1986 159 6.4.1.1 The prerequisites of section 6 161 6.4.1.2 Conclusion on section 6 179 6.4.2 Grounds outside section 6 Australia Acts 1986 179 6.4.2.1 Pre-CLVA position 179 6.4.2.2 Alternative grounds 181 Entrenchment of manner and form provisions 191 6.5.1 Prerequisite for double entrenchment 193 6.5.2 Severance 195 Entrenchment under specific State Constitutions 195 6.6.1 New South Wales 195 6.6.2 Queensland 196 6.6.3 South Australia 200 6.6.4 Tasmania 201 6.6.5 Victoria 201 6.6.6 Western Australia 203 Position in the territories 204 6.7.1 Australian Capital Territory 204 6.7.2 Northern Territory 206 6.7.3 Norfolk Island 207 The Commonwealth 207 Conclusion 208 6.3.1 6.3.2

6.4

6.5

6.6

6.7

6.8 6.9

7

Extraterritoriality 210 7.1 Introduction 210

vii

viii

CONTENTS

7.2 7.3

Land boundaries 211 Sea boundaries 212 Regime under the Seas and Submerged Lands Act 1973 (Cth) 213 Commonwealth–State offshore settlement of 1979 214 Concept of extraterritoriality 215 Legal foundation of restriction 216 Rationale for restriction 219 7.6.1 Australia Acts 1986 220 7.6.2 Incapacity to change another jurisdiction’s law 222 7.6.3 Statutory presumption 222 Nature of a sufficient connection or nexus 224 Categories of extraterritoriality 228 7.8.1 General criminal jurisdiction 238 7.8.1.1 Multiple or conflicting criminal jurisdictions 241 7.8.1.2 Crimes at sea 242 Extraterritoriality and choice of law rules 243 Inconsistent State laws: constitutional and legislative solutions 247 Court proceedings and extraterritoriality 251 Restriction on executive power 252 Section 92 restriction 253 Restriction on territories 253 7.3.1 7.3.2

7.4 7.5 7.6

7.7 7.8

7.9 7.10 7.11 7.12 7.13 7.14

8

Executive power 255 8.1 Introduction 255 8.2 Responsible government 257 8.3 Executive structure 261 The Crown 261 Powers of the Queen 267 Role of Governors and Administrators 268 8.3.3.1 Office of Governor 270 8.3.3.2 Appointment 271 8.3.3.3 Tenure 273 8.3.3.4 Powers of Governor 274 8.3.3.5 Reserve power 282 8.3.4 Executive Council and Governor-in-Council 294 8.3.5 Cabinet 298 8.3.6 Ministers of State 299 8.3.7 Premier and Chief Minister 302 8.3.8 Caretaker governments 302 8.3.9 Reform 303 8.3.10 The position in the ACT 303 Scope of executive power 305 8.4.1 Royal prerogative powers 306 8.4.1.1 Source of royal prerogative powers 307 8.4.1.2 Classification of prerogative powers 308 8.4.1.3 The self-governing territories 309 8.4.1.4 Judicial review of exercise of prerogative power 310 8.3.1 8.3.2 8.3.3

8.4

CONTENTS

ix

Statutory abrogation 311 Division of prerogatives between the Commonwealth, the States and the territories 313 Power to engage in contracts and business enterprises 315 Powers delegated to the Executive by parliament 317 8.4.1.5 8.4.1.6

8.4.2 8.4.3

9

Republic 318 9.1 Introduction 318 9.2 A State republican model: formal head of Executive 320 9.2.1 9.2.2 9.2.3 9.2.4 9.2.5

9.3

Title 324 Appointment 324 Removal 327 Powers and functions 327 Entrenchment 329

Legal obstacles to State republicanism 330 Section 7 Australia Acts 1986 331 Entrenchment of a monarchical system 332 A cocktail of republic and monarchy 335 9.3.1 9.3.2

9.4 9.5

Commonwealth power to impose State republics 336 Section 51(xxxviii) 336 Section 128 337 Conclusion 339

9.5.1 9.5.2

9.6

10 Judicial protection 340 10.1 Introduction 340 10.2 State judicial systems 341 10.3 State protection 343 10.3.1 Entrenched protection 343 10.3.2 Doctrine of separation of powers 344 10.4 Chapter III and the States 349 10.4.1 Commonwealth position 351 10.4.1.1 Commonwealth judicial power can be vested only in s 71 courts 352 10.4.1.2 Non-judicial power cannot be vested in s 71 courts 353 10.4.1.3 Commonwealth Parliament and Executive cannot exercise judicial power 354 10.4.1.4 Commonwealth Parliament and Executive cannot interfere in the exercise of judicial power 355 10.4.2 Chapter III restrictions on State power 356 10.4.2.1 Existence of Supreme Courts 356 10.4.2.2 Maintenance of ‘institutional integrity’ 357 10.5 Conclusion on State judiciary 376 10.6 Territories 376 10.6.1 Northern Territory 378 10.6.2 Australian Capital Territory 378 10.6.3 Norfolk Island 379 10.6.4 Other external territories 380

x

CONTENTS

10.7 Chapter III and the territories 380 10.7.1 The disjointed view 383 10.7.2 The integration view 387 10.7.2.1 Federal courts 388 10.7.2.2 Territory courts 390

10.8 Conclusion on territory judicial systems 391

11 Commonwealth territories power 393 11.1 Introduction 393 11.2 The birth of Commonwealth territories 395 11.2.1 State surrender 395 11.2.2 Placement by the Queen and Commonwealth acceptance 397 11.2.3 Commonwealth acquisition 397 11.3 Nature of a territory 398 11.4 The seat of government 399 11.5 Commonwealth power over the territories 402 11.6 Status of Commonwealth territories 404 11.6.1 Acts Interpretation Act 1901 (Cth) 406 11.7 Restrictions on section 122 territories power 407 11.7.1 Supporting a wide disjoinder 408 11.7.2 Rejecting/confining disjoinder 412 11.7.3 Characterisation of Commonwealth laws 416 11.8 Grant of self-government 418 11.9 Nature of legislative power of self-governing territories 419 11.10 Constitutional restrictions 420 11.10.1 Restrictions on Commonwealth power 420 11.10.1.1 Section 116 freedom of religion 421 11.10.1.2 Implied freedom of political communication 422 11.10.1.3 Section 51(xxxi) 425 11.10.1.4 Section 55: restrictions on laws imposing taxation 426 11.10.2 Restrictions on self-governing territories 427 11.10.2.1 Section 90 427 11.10.2.2 Section 118: full faith and credit clause 428 11.10.2.3 Implied freedom of political communication 429 11.10.2.4 Section 109 429 11.10.3 Other restrictions on self-governing territories 430 11.10.3.1 Compulsory acquisition of property 431 11.10.3.2 Freedom of trade, commerce and intercourse 431 11.10.3.3 Euthanasia 432 11.11 Representation in the Commonwealth Parliament 433 11.12 Territory to statehood 434 11.13 Commonwealth surrender of a territory 435

12 Commonwealth territories 436 12.1 Introduction 436 12.2 Australian Capital Territory 437 12.2.1 Constitutional history 437

CONTENTS

12.3 12.4

12.5 12.6

12.2.2 Self-government: structure and powers 440 12.2.2.1 Legislative Assembly 440 12.2.2.2 The Executive 443 12.2.2.3 The Judiciary 445 12.2.3 Commonwealth control 446 12.2.4 The future 446 Jervis Bay Territory 447 Northern Territory 448 12.4.1 Constitutional history 448 12.4.2 Self-government: structure and powers 450 12.4.2.1 Legislative Assembly 450 12.4.2.2 The Executive 452 12.4.2.3 The Judiciary 455 12.4.3 Commonwealth control 455 12.4.4 Constitutional guarantees 456 12.4.5 Financial arrangements 457 12.4.6 Representation 457 12.4.7 The future 458 External territories 459 Territory of Norfolk Island 461 12.6.1 Constitutional history 461 12.6.2 Self-government: structure and powers 464 12.6.2.1 Legislative Assembly 464 12.6.2.2 The Executive 466 12.6.2.3 The Judiciary 468 12.6.3 Legal regime 469 12.6.4 Commonwealth parliamentary representation 469 12.6.5 Norfolk Island electoral system 470 12.6.6 Referenda 470 12.6.7 Taxation regime 471 12.6.8 The future 472 12.6.9 Conclusion 475

12.7 Indian Ocean Territories: Christmas Island and the Cocos (Keeling) Islands 476 12.7.1 Territory of Christmas Island 477 12.7.2 Territory of Cocos (Keeling) Islands 478 12.8 Uninhabited territories 481 12.8.1 Territory of Ashmore and Cartier Islands 481 12.8.2 Australian Antarctic Territory 481 12.8.3 Coral Sea Islands Territory 483 12.8.4 Territory of Heard Island and McDonald Islands 484 12.9 Former territories 485 12.9.1 Papua New Guinea 485 12.9.2 Nauru 487

xi

xii

CONTENTS

Appendix 1 Constitutional Conventions adopted by Resolution of the Australian Constitutional Convention, Brisbane 29 July – 1 August 1985 489 Appendix 2 Northern Territory (Self-Government) Regulations 1978 (Cth) – Reg 4 491 Appendix 3 Australian Capital Territory (Self-Government) Act 1988 – Schedule 4 494 Appendix 4 Ten Lessons from the Crisis over the Governor-General, Dr Peter Hollingworth (May 2003) 497 Index 499

Table of cases

Abebe v Commonwealth (1999) 197 CLR 510 373, 374 Abel Lemon & Co Pty Ltd v Baylin Pty Ltd (1985) 60 ALJR 190 138 Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 415 Adelaide Company of Jehovah’s Witnesses Inc v The Commonwealth (1943) 67 CLR 116 421 Ah Toy v Musgrove 14 VLR 392–4 46 Air Cal´edonie International v The Commonwealth (1988) 165 CLR 462 426 Alcock v Fergie (1867) 4 WW & A’B (L) 285 86 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers case) (1920) 28 CLR 129 3, 66, 338 Amarantos v South Australia (2004) 205 ALR 459 68 Anderson v Eric Anderson Radio & TV Ltd (1965) 114 CLR 20 244, 428 APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44 130, 375 Arena v Nader (1977) 71 ALJR 1604 196 Arena v Nader (1997) 42 NSWLR 427 165, 196 Armstrong v Budd (1969) WN (Pt 2) NSW 241 98 Ashbury v Ellis [1893] AC 339 217 Attorney-General (Commonwealth) v R; Ex parte Boilermakers’ Society of Australia (1957 ) 95 CLR 529; [1957] AC 319 352, 353–4 Attorney-General for New South Wales v Butterworth & Co (Australia) Ltd (1938) 38 St R NSW 195 307, 314 Attorney-General for New South Wales v Love [1898] AC 679 140 Attorney-General for Western Australia (Ex rel Burke) v State of Western Australia [1982] WAR 241 169 Attorney-General (NSW); Ex rel McKellar v The Commonwealth (1977) 139 CLR 527 434 Attorney-General (NSW) v Trethowan (1931) 44 CLR 394 154, 161, 164, 165, 172, 174–5, 178, 182, 184, 185, 186, 188, 191, 194, 334 Attorney-General (NSW) v Trethowan (1932) 47 CLR 97; [1932] AC 526 192 Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 90 ALR 59 429, 430 Attorney-General of Queensland v Attorney-General for the Commonwealth (1915) 20 CLR 148 143, 144 Attorney-General of the Commonwealth of Australia v The Queen (Boilermakers’ case) (1957) 95 CLR 529 383, 408, 414 Attorney-General of the State of Western Australia (at the Relation of Ansett Transport Industries (Operations) Proprietary Limited) v Australian National Airlines Commission (1976) 138 CLR 492 404 Attorney-General (Quebec) v Labrecque [1980] 2 SCR 1057 252 xiii

xiv

TABLE OF CASES

Attorney-General v De Keyser’s Royal Hotel [1920] AC 508 311, 312 Attorney-General v Radloff (1854) 10 Ex 84; 42ER 366 308 Attorney-General v Wilts United Dairies Ltd (1920) 37 TLR 884 86 Attorney-General (Vic); Ex rel Black v Commonwealth (DOGS case) (1981) 146 CLR 559 421, 435 Attorney-General (Vic) v The Commonwealth (1935) 52 CLR 533 315 Attorney-General (WA) v Marquet (2003) 217 CLR 545 70, 71, 73, 74, 96, 97, 102, 120, 151, 158, 159, 160, 161, 164, 169, 170, 179, 189, 191, 194, 201, 202, 204 Auckland Harbour Board v R [1924] AC 318 86, 87 Auld v Murray (unreported) 47, 168, 181 Austin v Commonwealth (2003) 215 CLR 185 8, 314, 337 Australian Alliance Assurance Co Ltd v John Goodwyn, The Insurance Commissioner [1916] St R Qd 225 86, 315 Australian Building Construction Employees’ and Builders Labourers’ Federation v Commonwealth (1986) 161 CLR 88 371–3 Australian Capital Television Pty Ltd v Commonwealth (ACTV) (1992) 177 CLR 106 119, 122, 123, 124, 133, 401, 412, 417, 423–4 Australian Capital Television Pty Ltd v Minister for Tranport and Communications (1989) 86 ALR 119 170 Australian Communist Party v The Commonwealth (1951) 83 CLR 1 296, 308, 310 Australian National Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29 403, 413 Australian Tape Manufacturers Association v Commonwealth (1993) 176 CLR 480 86 Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424 315 Bachrach Pty Ltd v Queensland (1998) 195 CLR 547 373, 374 Bailey v Kelsey (1959) 100 CLR 352 142 Baker v The Queen (2004) 210 ALR 1 342, 349, 350, 374, 375, 376 Bank of Montreal v Metropolitan Investigation and Security (Canada) Ltd [1975] 2 SCR 546 250 Barnes v Cameron [1975] Qd R 128 234 Barton v Taylor (1886) 11 App Cas 197 99 Barton v The Commonwealth (1974) 131 CLR 477 307, 311 Benest v Pipon (1829) 1 Knapp 60; 12 ER 243 213 Bennett v HREOC (2004) 204 ALR 119 135, 373 Berwick Ltd v Gray (1976) 133 CLR 603 403, 405, 415, 418, 440, 450, 463, 471 BHP v Dagi [1996] 2 VR 117 157, 172 Bilby v Hartley (1892) QLJ 137 140 Bistricic v Rokov (1976) 135 CLR 522 65, 141–2 Boath v Wyvill (1989) 85 ALR 621 215, 221, 252, 253 Bonser v La Macchia (1969) 122 CLR 177 217, 234, 235 Booth v Williams (1909) 9 SR (NSW) 421 312 Bowles v Bank of England [1913] 1 Ch 57 86 Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107 264 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 353 Breavington v Godleman (1988) 169 CLR 41 242, 244, 249–50, 428, 429

TABLE OF CASES

xv

Bribery Commissioner v Ranasinghe [1965] AC 172 95, 159, 179, 188, 190, 195, 202, 333, 345 Brisbane City Council v Mainsel Investments Pty Ltd [1989] 2 Qd R 204 297 Brisbane TV Limited; Ex parte Criminal Justice Commission [1996] QCA 295 133 British Broadcasting Corporation v Johns [1965] 1 Ch 32 306 British Coal Corporation v R [1935] AC 500 74 British Railways Board v Pickin [1974] AC 765 81, 94, 95 Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337 215, 217, 224, 225, 226, 227, 228, 229, 230, 231, 232 Bropho v Western Australia (1990) 171 CLR 1 308 Brown v West (1990) 169 CLR 195 86 Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 233, 242, 247, 249 Buchanan v The Commonwealth (1913) 16 CLR 315 88, 408, 409, 412, 413, 426 Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (NSW BLF case) (1986) 7 NSWLR 372 108, 111, 347, 348, 371–2, 373 Burmah Oil Co Ltd v Lord Advocate [1965] AC 75 (HL) 310, 312 Butler v Attorney-General (Vic) (1961) 106 CLR 268 137 Byrnes v The Queen (1999) 199 CLR 1 18 Calvin’s case (1608) 2 St Tr 659; 7 Co Rep 1a; 77 ER 377 137 Cameron v Becker (1995) 64 SASR 238 132 Cannon v Kieghran (1843) 1 Legge 170 140 Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 114, 176, 383, 394, 398, 400, 402, 403, 406, 413, 415, 418, 420, 427, 435, 440, 443, 447, 450, 453 Capital TV & Appliances Pty Ltd v Falconer (1971) 125 CLR 591 383, 385, 388 Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 314 Case of Proclamations (1611) 12 Co Rep 74, 77 ER 1352 310 Case of the Sheriff of Middlesex (1840) 11 AD & E 273; 113 ER 419 100 Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 432 Chau v DPP (1995) 37 NSWLR 639 375 Chenard and Co v Joachim Arissol [1949] AC 127 99 China Ocean Shipping Co v South Australia (1979) 145 CLR 172 64, 65, 142 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 355, 369, 371, 372, 373, 374 Clayton v Heffron (1960) 105 CLR 214 84, 89, 92, 95, 96, 107, 119, 171, 172, 174, 185, 186, 193, 199, 218, 334 Clydesdale v Hughes (1934) 51 CLR 518 165, 168, 169 Clyne v East (1967) 68 SR (NSW) 385 346, 348 Cobb & Co Ltd v Kropp [1967] AC 141 18, 86, 116, 176, 177, 224–37 Coco v The Queen (1994) 179 CLR 427 112 Cole v Whitfield (1988) 165 CLR 360 253, 432 Coleman v Power (2004) 209 ALR 182 126, 127, 130, 135, 423 Collingwood v Victoria [1993] 2 VR 66 165 Collingwood v Victoria [No 2] [1994] 1 VR 652 165, 202, 344, 347, 348 Commissioner of Stamp Duties (NSW) v Millar (1932) 48 CLR 618 226, 227, 231, 232–3

xvi

TABLE OF CASES

Commonwealth Aluminium Corporation Limited v Attorney-General for Queensland (Comalco’s case) [1976] Qd R 231 163, 166, 172, 173, 175, 177, 188, 192 Commonwealth v Burns [1971] VR 825 86 Commonwealth v Cigmatic Pty Ltd (in liq) (1962) 108 CLR 372 314 Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 86, 307, 445 Commonwealth v New South Wales (The Metals case) (1923) 33 CLR 1 314 Commonwealth v Northern Land Council (1993) 176 CLR 604 258, 299 Commonwealth v Queensland (1975) 134 CLR 298 65, 265 Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1 4, 399 Congreve v Home Office [1976] 1 QB 629 86 Cooper v Commissioner of Income Tax for the State of Queensland (1907) 4 CLR 1304 105 Cooper v Stuart (1889) 14 App Cas 286 137, 138 Cormack v Cope (1974) CLR 432 95, 97 Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 310, 311 Cox v McAllister [1962] NSWR 1429 140 Cox v Tomat (1972) 126 CLR 105 231 Crandall v State of Nevada (1867) 73 US 35 401 Craw v Ramsey (1670) Vaughan 274; 124 ER 1072 216 Croft v Dunphy [1933] AC 156 217, 218, 225, 237 Crowe v The Commonwealth (1935) 54 CLR 69 116 Cunliffe v The Commonwealth (1994) 182 CLR 272 401 Davenport v R (1877) 3 App Cas 115 298 Davis v The Commonwealth (1988) 166 CLR 79 316 De Savoye v Morguard Investments [1990] 3 SCR 1077 227, 244 Delohery v Permanent Trustee Company of New South Wales (1904) 1 CLR 283 52, 138, 139 Dempster v NCSC (1993) 9 WAR 215 223, 229 Dooney v Henry (2000) 174 ALR 41 66 Doyle v Falconer (1866) LR 1 PC 328 98 Dr Bonham’s case (1610) 8 Co Rep 113b; 77 ER 64 110 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 360, 365, 366 Driffield v Registrar-General SAPP 53 LC 1863 166 Drivers v Road Carriers [1982] 1 NZLR 374 108, 109 Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583 138, 139 Duncan v Theodore (1917) 23 CLR 510 310 Durham Holdings v New South Wales (2001) 205 CLR 399 107, 110 Eastgate v Rozzoli (1990) 20 NSWLR 188 97 Eastman v R (2000) 203 CLR 1 376, 386, 390, 391 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 357 Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 C & F 710 Egan v Chatwick (1999) 46 NSWLR 563 101, 258 Egan v Willis (1996) 40 NSWLR 650 258, 300 Egan v Willis (1998) 195 CLR 424 99, 100, 121

81, 87, 94

TABLE OF CASES

xvii

Ellen Street Estates Ltd v Minister for Health [1934] 1 KB 590 155 Esso Australia Resources Ltd v Dawson (1999) 87 FCR 588 374, 376 Ex parte Iskra [1963] SR (NSW) 538 224, 230 Ex parte McLean (1930) 43 CLR 472 144 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 116, 276, 277, 281, 294, 295, 296, 297, 310 Fardon v Queensland (2004) 210 ALR 50 342, 349, 350, 351, 356, 357, 358, 359, 360, 362, 363, 364, 368, 373, 375, 376 FCT v Official Liquidator of E.O. Farley Ltd (1940) 63 CLR 278 306, 307, 314, 315 Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582 147, 429, 430 Federated Sawmill, Timberyard and General Woodworkers’ Employees’ Association (Adelaide Branch) v Alexander (Alexander’s case) (1912) 15 CLR 308 363 Felman v Law Institute of Victoria [1998] 4 VR 324 374, 376 Ffrost v Stevenson (1937) 58 CLR 528 144 Fishwick v Cleland (1960) 106 CLR 186 487 Fittock v The Queen (2003) 197 ALR 1 404 Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100 355 Fraser v State Services Commission [1984] 1 NZLR 116 108, 109 Garrett v Overy (1968) 88 WN (Pt 2) (NSW) 184 140 Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 373 Gilbertson v South Australia (1976) 15 SASR 66 346, 348 Giles v Tumminello [1963] SASR 96 237 Gipps v McElhone (1881) 2 LR (NSW) 18 99 Giris Pty Ltd v FCT (1969) 119 CLR 365 116 Glasbrook Bros Ltd v Glamorgan County Council [1925] AC 270 86 Golden-Brown v Hunt (1972) 19 FLR 438 438 Gould v Brown (1998) 193 CLR 346 18 Grace Bible Church v Reedman (1984) 36 SASR 376 108 Graham v Paterson (1950) 81 CLR 1 14 Gratwick v Johnson (1945) 70 CLR 1 253, 432 Greiner v ICAC (1992) 28 NSWLR 125 283, 285 Griffith v Bloch (1878) 4 VLR (L) 294 140 Grollo v Palmer (1995) 184 CLR 348 359, 360, 362, 363, 365, 368, 376 Ha v New South Wales (1997) 189 CLR 465 9 Harding v Coburn [1976] 2 NZLR 577 411 Harris and Others v Minister of the Interior [1952] 2 SA 428 Heath v Alabama (1985) 242, 250 Hilton v Wells (1985) 157 CLR 57 365 Hodge v The Queen (1883) 9 App Cas 117 106, 107, 176 Holmes v Angwin (1906) 4 CLR 297 368 Horgan v Sieber; Ex parte Horgan [1976] Qd R 25 223 Hughes and Vale Pty Ltd v Gair (1954) 90 CLR 203 97 Hughes v The Queen (2000) 202 CLR 535 17, 18–19, 20 Hume v Palmer (1926) 38 CLR 441 144

184, 188, 202

xviii

TABLE OF CASES

Hunt v T & N [1993] 4 SCR 289

227

In re Judiciary and Navigation Acts (Advisory Opinions case) (1921) 29 CLR 257 382, 384, 385, 390 In re The Initiative and Referendum Act [1919] AC 935 84, 173, 176, 177, 187, 403, 418, 440, 450 Interprovincial Cooperatives v The Queen [1976] 1 SCR 477 233, 244 Jago v District Court (NSW) (1989) 168 CLR 23 242, 250 JD & WG Nicholas v Western Australia [1972] WAR 168 346 Jeffreys v Boosey (1854) 4 HLC 815 216, 219 John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 130, 370, 374 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 244, 245, 247, 250, 251 effect of 247 Johnson v Commissioner of Stamp Duties (NSW) [1956] AC 331 217, 218 Johnson v Kent (1975) 132 CLR 164 310 Jolley v Mainka (1933) 49 CLR 242 397, 398, 399, 460, 486 Jolly v Smith (1899) 1 N&S 143 140 Joseph v Colonial Treasurer (NSW) (1918) 25 CLR 32 307, 313 Jumbunna Coal Mine, No Liability v Victorian Coal Miners’ Association (1908) 6 CLR 309 223 Kable v Director of Public Prosecutions of NSW (1996) 189 CLR 51 66, 110, 111, 115, 341, 342, 348, 349, 350, 354, 356, 358, 359, 360, 363, 364, 370, 373, 374–5, 376, 382 Kariapper v Wijesinha [1968] AC 717 166 Kenny v Chapman (1861) 1 W & W 93 168 Kielly v Carson (1842) 4 Moo PC 63 98 Kirmani v Captain Cook Cruises Pty Ltd (No 1) (1985) 159 CLR 351 67 Koop v Bebb (1951) 84 CLR 629 244 Kruger v The Commonwealth (1997) 190 CLR 1 111–12, 122, 123, 133, 388–90, 391, 401, 403, 415, 421, 423, 424, 427, 429, 434 Kutner v Phillips [1891] 2 QB 267 193 L v M [1979] 2 NZLR 519 109 Lamshed v Lake (1958) 99 CLR 132 254, 385, 405, 410, 413–14, 415, 416, 417, 421, 422, 428, 429, 431 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 122, 124, 126, 127, 128, 130, 131, 134, 246, 341, 422 Laurie v Carroll (1958) 98 CLR 310 251 Lavell v A G Canada [1974] SCR 1349 156 Leask v Commonwealth (1996) 187 CLR 579 227 Lee v Bude and Torrington Junction Railway Co (1871) LR 6 CP 576 94 Leeth v The Commonwealth (1992) 174 CLR 455 8, 370 Levy v Victoria (1997) 189 CLR 579 122, 125, 132 579 122 Ling v Commonwealth (1994) 51 FCR 88 312 Lipohar v R (1999) 200 CLR 485 239, 240, 241, 242, 245, 247, 248, 250, 254

TABLE OF CASES

xix

Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1 365 Liyanage v The Queen [1967] AC 259 345, 346, 348, 355, 371, 373 Lloyd v Snooks (1999) 153 FLR 339 355, 374, 375 LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 388 Mabo v Queensland (1988) 166 CLR 186 371 Mabo v Queensland (No 2) (1992) 175 CLR 1 35–6, 43, 139 MacCormick v Lord Advocate [1953] SC 396 110 MacLeod v Attorney-General for New South Wales [1891] AC 455 215, 216–17, 229 Malone v Metropolitan Police Commissioner [1979] Ch 344 307 McCawley v R (1918) 26 CLR 9 169, 191, 193 McCawley v The King [1920] AC 691, 28 CLR 106 (PC) 105, 106, 158, 185, 188, 194 McDonald v Cain [1953] VLR 411 168 McEllister v Fenn (unreported) 47, 143 McGinty v Western Australia (1996) 186 CLR 140 64–5, 105, 120, 132, 159, 191, 338 McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 245, 246, 250 McKendrick v Sinclair [1972] SC (HL) 25 313 McKewins Hairdressing and Beauty Supplies Pty Ltd v DCT (2000) 171 ALR 335 66 Medical Board of Victoria v Meyer (1937) 58 CLR 62 368 Melbourne Corporation v Commonwealth (1947) 74 CLR 31 125, 314 Mellifont v Attorney-General of Qld (1991) 173 CLR 289 363 M’Hugh v Robertson (1885) 11 VLR 410 138, 140 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 36 Minister for the Arts, Heritage and the Environment v Peko-Wallsend Ltd (1987) 75 ALR 218 310, 311 Mistreeta v United States (1989) 488 US 361 366 Mitchell v Barker (1918) 24 CLR 365 405 Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 221, 224, 225, 251 Moffat v The Queen [1998] 2 VR 229 355 Muldowney v South Australia (1996) 186 CLR 352 121, 125, 130, 132, 209 Mulholland v Australian Electoral Commission (2004) 209 ALR 582 122, 123, 126 Municipal Council of Sydney v The Commonwealth (1904) 1 CLR 208 262 Municipality of Pictou v Geldert [1893] AC 524 139 Munro v Lombardo [1964] WAR 63 237 Musgrove v Chun Teeong Toh [1891] AC 272 46, 307 Myer Emporium v Commissioner of Stamp Duties (1967) 68 SR (NSW) 220 229 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 119, 124, 125, 253, 401, 432 Nelan v Downes (1917) 23 CLR 546 139 Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495 371 New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly) (1993) 100 DLR (4th) 212 100 New South Wales v Bardolph (1934) 52 CLR 455 86, 259, 276, 306, 315–16 New South Wales v Commonwealth (Seas & Submerged Lands case) (1975) 135 CLR 337 64, 212, 213, 214, 235, 262, 398 New South Wales v Commonwealth (No 1) (Garnishee case) (1932) 46 CLR 155 287 New South Wales v Commonwealth (No 3) (1932) 46 CLR 246 287 New South Wales v Commonwealth (Wheat case) (1915) 20 CLR 54 352

xx

TABLE OF CASES

New South Wales v The Commonwealth (The Incorporation Act case) (1990) 169 CLR 482 395 Newbery v The Queen (1965) 7 FLR 34 461, 462, 463 Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 248, 254, 403, 404, 410, 411, 414, 415, 416, 417, 421, 425, 426, 429 Nicholas v The Queen (1998) 193 CLR 173 352, 355, 373, 374, 375 Nielsen v State of Oregon 212 US 315 (1909) 242, 250 North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 2, 342, 349, 350, 354, 357, 358, 364, 369, 376, 377, 378, 382, 391 Northern Land Council v The Commonwealth (1986) 161 CLR 1 403, 418 Northern Suburbs General Cemetery Reserve Trust v Commonwealth of Australia (Training Guarantee case) (1993) 176 CLR 555 86 Northern Territory v GPAO (1999) 196 CLR 553 147, 148, 389, 390, 416, 429, 430 Nott Bros & Co. Ltd v Barkley (1925) 36 CLR 20 401, 438 Oates v Attorney-General (Cth) (2003) 214 CLR 496 312 O’Meara v McTackett (2000) 74 ALJR 1010 118 Osborne v The Commonwealth (1911) 12 CLR 321 88 O’Shea v South Australia (1987) 163 CLR 378 311 O’Sullivan v Central Sydney Area Health Service (No 2) [2005] NSWADT 136 O’Sullivan v Dejneko (1964) 110 CLR 498 230 Oteri v R (1976) 51 ALJR 122 238

308

Palling v Corfield (1970) 123 CLR 52 355 Paterson v O’Brien (1978) 138 CLR 276 396, 449 Pearce v Florenca (1976) 135 CLR 507 210, 214, 216, 218, 219, 221, 222, 223, 224, 225, 235 Pedersen v Young (1964) 110 CLR 162 244 Permanent Trustee Co (Canberra) Ltd v Finlayson (1968) 122 CLR 338 222 Phillips v Eyre (1870) LR 6 QB 1 143, 244 Pickin v British Railways Board [1974] AC 765 87, 108 Pioneer Express Pty Ltd v Hotchkiss (1958) 101 CLR 536 117, 401 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 96, 374 Polyukhovich v Commonwealth (1991) 172 CLR 501 354, 355, 370, 375 Port MacDonnell Professional Fishermen’s Assn Inc v South Australia (1989) 168 CLR 340 69, 70, 212, 214, 215, 218, 222, 224, 225, 237–8, 248, 249, 337–8 Porter v The King; Ex parte Yee (1926) 37 CLR 432 382, 383, 384–5 Powell v Apollo Candle Co (1885) 10 App Cas 282 88, 106, 107, 176 Project Blue Sky v ABA (1998) 194 CLR 353 170 Quan Yick v Hinds (1905) 2 CLR 345 140 Queensland v The Commonwealth (The Second Territorial Senators case) (1977) 139 CLR 585 434, 457 R v Archdall (1928) 41 CLR 128 383 R v Bernasconi (1915) 19 CLR 629 382, 383, 384–5, 386, 387, 389, 390, 403, 408, 409, 412, 413, 415, 421, 422, 429 R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 353 R v Black Peter (1863) 2 SCR (NSW) 207 140

TABLE OF CASES

xxi

R v Bull (1974) 131 CLR 203 217, 235 R v Burah (1878) 3 App Cas 889 106 R v Burnshine [1975] 1 SCR 693 156 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 388 R v Cox; Ex parte Smith (1945) 71 CLR 1 353 R v Davenport (1874) 4 QSC 99 298 R v Davison (1954) 90 CLR 353 354 R v De Baun (1901) 3 WALR I 138, 140 R v Drybones [1970] SCR 282 156 R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 17–18 R v Farrell, Dingle and Woodward (1) (1831) 1 Legge 5 139 R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 353 R v Foster; Ex parte Eastern & Australian Steamship Co Ltd (1959) 103 CLR 256 217, 218, 221 R v Goulden [1993] 2 Qd R 534 240 R v Hildebrandt [1964] Qd R 43 239 R v Hughes (2000) 202 CLR 535 18, 25 R v Humby; Ex parte Rooney (1973) 129 CLR 231 371 R v Joske; Ex parte Australian Building Construction Employees and the Builders’ Labourers Federation (1974) 130 CLR 87 354 R v Kearney; Ex parte Japanangka (1980) 49 FLR 394 430 R v Keyn (1876) LR 2 Ex D 63 212, 239 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 352, 353 R v Lander [1919] NZLR 305 216 R v Minister for Justice and the Attorney-General of Queensland; Ex parte Skyring (unreported) 198 R v Moffatt [1998] 2 VR 229 362, 374, 375 R v Olney (1996) 1 Qd R 187 238, 243 R v Oteri [1975] WAR 120 238 R v Phillips (1970) 125 CLR 93 402 R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 15 R v Randall Unland [1989] Alta. D. 6100–01 156 R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 353 R v Secretary of State for the Home Department; Ex parte Fire Brigades Union [1995] AC 513 83 R v Secretary of State for Transport, Ex parte Factortame Ltd (No 2) [1991] AC 603 153 R v Smithers; Ex parte Benson (1912) 16 CLR 99 117, 401 R v The Governor of the State of South Australia (1907) 4 CLR 1497 266 R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 310, 311, 420, 440, 445, 453 R v Turnbull [1958] Tas SR 80 99 R v White; Ex parte Byrnes (1963) 109 CLR 665 353 Radio Corporation Pty Ltd v The Commonwealth (1938) 59 CLR 170 116 Raptis (A) & Son v South Australia (1977) 138 CLR 346 212 Ray v M’Mackin (1875) 1 VLR 274 215 Re Bonner [1963] Qd R 488 86

xxii

TABLE OF CASES

Re Clunies-Ross; Ex parte Totterdell and Another (1988) 82 ALR 475 480 Re Colonel Aird; Ex parte Alpert (2004) 209 ALR 311 353 Re Cram; Ex parte NSW Colliery Proprietors’ Association Ltd (1987) 163 CLR 117 17 Re Criminal Proceeds Confiscation Act 2002 (Qld) [2004] 1 Qd R 41 375 Re Governor, Goulburn CC; Ex parte Eastman (1999) 200 CLR 322 305, 379, 393, 399, 400, 438, 450 Re Nolan; Ex parte Young (1991) 172 CLR 460 353 Re Residential Tenancies Tribunal of New South Wales; Ex parte Defence Housing Authority (Henderson’s case) (1997) 190 CLR 410 8, 117, 446 Re Scully (1937) 32 Tas LR 3 84, 334 Re Singh and Minister of Employment & Immigration (1985) 17 DLR (4th) 422 156 Re Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 453, 456 Re Tracey; Ex parte Ryan (1989) 166 CLR 518 353 Re Wakim; Ex parte McNally (1999) 198 CLR 511 18, 25, 341, 353, 387, 391 Re Ware; Ex parte Bayne (unreported) 180 Reg v Burah (1878) 3 App Cas 889 176 Registrar of Western Australian Industrial Relations Commission v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia, Engineering and Electrical Division WA Branch [1999] WASCA 170 135 Rhodes v McKee Harvester (Alberta) Ltd (1979) 9 Alta LR (2d) 179, 99 DLR (3d) 704 250 Roberts v Bass (2002) 212 CLR 1 125, 131 Robinson v Western Australian Museum (1977) 138 CLR 283 141–2, 210, 219, 221, 235–7 Ronald v Lalor (1872) 3 VR (E) 98 140 Rothwells Ltd (In liq) v Connell (1993) 27 ATR 137 250 Royal Bank of Canada v The King [1913] AC 283 253 Ruddock v Vadarlis (2001) 183 ALR 1 307, 311, 312, 313 Ruhani v Director of Police (through the Secretary of Justice as Director of Public Prosecutions) (2005) 219 ALR 199 488 Ryder v Foley (1906) 4 CLR 422 259 Sabally and N’Jie v Attorney-General [1965] 1 QB 273 312 Sankey v Whitlam (1978) 142 CLR 1 308 Scott v Cawsey (1907) 5 CLR 132 140 See v The Australian Agricultural Company (1910) 10 SR (NSW) 690 144 Sellars v Coleman (2001) 2 Qd R 565 127, 130 Sharples v Arnison (2001) 260 FLR 194 198 Sharples v Arnison [2002] 2 Qd R 444 297 Sillery v The Queen (1981) 180 CLR 353 109 Simpson v State 17 SE 984 (1893) 239 Skeeles v Hughes (1877) 3 VLR (E) 161 140 Skyring v Electoral Commission of Queensland [2001] QSC 080 198 Smith v The Queen (1991) NSW CA (unreported) 140 South Australia v Commonwealth (1962) 108 CLR 130 24 South Australia v Commonwealth (First Uniform Tax case) (1942) 65 CLR 373 66

8,

TABLE OF CASES

xxiii

South Australia v O’Shea (1987) 163 CLR 378 299, 310 South Australia v Victoria (1911) 12 CLR 667 51, 211, 313 South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603 154, 155, 162–3, 164 South Melbourne v Hallam [1995] 1 VLR 247 165 Southern Centre of Theosophy Inc v South Australia (1979) 145 CLR 246 65 Spinks v Prentice (see Re Wakim; Ex parte McNally (1999) 198 CLR 511) 390 Sportodds Systems Pty Limited v New South Wales [2003] FCAFC 237 432 Spratt v Hermes (1965) 114 CLR 226 382, 384, 385, 386, 387, 389, 399, 400, 403, 404, 407, 410, 414, 416, 421, 438, 447 State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 221, 222, 248, 249, 251 State of Western Australia v Wilsmore [1981] WAR 179 190, 191 Stephens v West Australian Newspapers (1994) 182 CLR 211 123, 124, 125, 126, 132, 356, 401, 423 Stevenson v R (1865) 2 WW & A’B (L) 143 86 Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128 144 Stockdale v Hansard (1839) 9 A & E 1; 3 ST TR NS 736; 112 ER 1112 100 Strachan v Commonwealth (1906) 4 CLR 455 486 Street v Queensland Bar Association (1989) 168 CLR 461 227 Sue v Hill (1999) 199 CLR 462 47, 66, 71, 72, 261, 262, 263, 265, 266, 277, 305, 397 Svikart v Stewart (1994) 181 CLR 548 114, 387, 396, 399, 400, 401, 420, 438 Taylor v Attorney-General of Queensland (1917) 23 CLR 457 84, 89, 92, 120, 165, 186, 187, 334 Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 108, 109 Teori Tau v The Commonwealth (1969) 119 CLR 564 403, 408, 409, 410, 414, 417, 421, 425, 426 The King v Sutton (1908) 5 CLR 789 262, 266 Theodore v Duncan [1919] AC 696 259 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 117, 119–20, 124, 126, 134, 401 Thompson v R (1989) 169 CLR 1 239, 240 Toy v Musgrove (1888) 14 VLR 349 255, 259, 305, 307 Traut v Rogers (1984) 70 FLR 17 210, 254 Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 155 Trethowan v Peden (1930) 21 SR (NSW) 183 96, 97 Trial of Earl Russell [1901] AC 446 217 Trustees Executors and Agency Co Ltd v Federal Commissioner of Taxation (1933) CLR 220 217, 225, 228, 229 Ukley v Ukley [1977] VR 121 143 Union Steamship Co of Australia v King (1988) 166 CLR 1 104, 106, 108, 110, 111, 210, 217, 218, 219, 221, 222, 224, 225, 234, 241, 342, 424 Union Steamship Co of New Zealand Ltd v The Commonwealth (1925) 36 CLR 130 144 United States v Texas (1950) 339 US 707 212 University of Wollongong v Metwally (1984) 158 CLR 447 147, 429, 430

xxiv

TABLE OF CASES

Vauxhall Estates Limited v Liverpool Corporation [1932] 1 KB 733 155 Verreault v Attorney-General (Quebec) [1977] 1 SCR 41 252 Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 252 Victoria v Commonwealth (AAP case) (1975) 134 CLR 338 307, 316 Victoria v Commonwealth (Federal Roads case) (1926) 38 CLR 399 9 Victoria v Commonwealth (Second Uniform Tax case) (1957) 99 CLR 575 8, 9, 66 Victoria v Commonwealth and Connor (PMA case) (1975) 134 CLR 81 88, 92, 94, 95, 96, 97, 102, 188, 202, 276–7 Victoria v The Commonwealth (Payroll Tax case) (1971) 122 CLR 353 63–4 Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan (1931) 46 CLR 73 115, 259, 351, 403, 418, 440 Wacando v The Commonwealth (1981) 148 CLR 1 37, 211 Wake v Northern Territory of Australia (1996) 5 NTLR 170 451 Walker v New South Wales (1994) 182 CLR 45 139 Wallace Brothers & Co Ltd v Commissioner of Income Tax, Bombay City and Bombay Suburban District (1948) 75 Indian Appeals 86 218 Wanganui-Rangitikei Electric Power Board v AMP Society (1934) 50 CLR 581 247 Ward v R (1980) 142 CLR 308 212, 239, 240, 247 Waters v Commonwealth (1951) 82 CLR 188 405, 406 Watson v Trenerry (1998) 145 FLR 159 429 Watson v Trenerry (1998) 122 NTR 1 (Court of Appeal) 134 Webster v McIntosh (1980) 49 FLR 317 430 Welker v Hewett (1969) 120 CLR 503 215, 230–1 West Lakes Limited v The State of South Australia (1980) 25 SASR 389 163–4, 175, 177, 178, 186, 187, 188, 192 Western Australia v The Commonwealth (First Territory Senators’ case) (1975) 134 CLR 201 276–7, 415, 433, 434, 457 Western Australia v Wilsmore [1981] WAR 179 65 Western Australia v Wilsmore (1982) 149 CLR 79 65, 165, 168, 190 Wheat case (see New South Wales v Commonwealth (1915)) 352 Whicker v Hume (1858) 1 De G M&G 506; 42 ER 649; 7 HLC 124 140 White v McLean (1890) 24 SALR 97 52, 138 Williams v Attorney-General for New South Wales (1913) 16 CLR 404 43, 259 Williamson v Ah On (1926) 39 CLR 95 375 Wilsmore v State of Western Australia [1981] WAR 159 (WA FC) 165, 168, 190, 195, 367 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (Hindmarsh Island case) (1996) 189 CLR 1 358, 359, 367–8, 376 Winterbottom v Vardon and Sons Ltd [1921] SASR 364 52, 138, 140 Wishart v Fraser (1941) 64 CLR 470 116 Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89 399, 400, 438 Wylkian Pty Ltd v ACT Government [2002] ACTSC 97 148, 432 Wynbyne v Marshall (1997) 141 FLR 166 355, 374, 375 Yougarla v Western Australia (2001) 207 CLR 344

144, 191

Table of statutes

Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) 367 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) 310, 451, 454 A New Tax System (Commonwealth – State Financial Arrangements) Act 1999 (Cth) 9 Antarctic Marine Living Resources Conservation Act 1981 (Cth) 483 Antarctic Mining Prohibition Act 1991 (Cth) 483 Antarctic Treaty Act 1960 (Cth) 482 Antarctic Treaty (Environment Protection) Act 1980 (Cth) 483 Ashmore and Cartier Islands Acceptance Act 1933 (Cth) 397, 481 s 12(1) 380 Atomic Energy Act (1953) (Cth) 310, 451, 454 Australia Act 1986 (Cth) s 2(1) 235 Australia Act 1986 (UK) 69, 73, 74, 142, 145, 146 s 1 27, 66, 141, 143, 145, 266 s 2 118, 182, 185, 208 (1) 67, 210, 221, 249 (2) 85, 110, 118, 160, 186, 189 s 3 118, 141, 208 (1) 47, 67, 120, 145, 160, 334 (2) 85, 136, 145, 334, 347 s 4 145 s 5 136 (b) 145 s 6 67, 70, 88, 89, 150, 151, 153, 155, 156, 159–79, 182, 187, 189, 193, 195, 199, 329, 333, 348 s 7 264, 267, 320, 331–2, 334 (1) 85, 268, 270, 272 (2) 78, 256, 270, 275, 281, 308 (3) 273, 308 (4) 308 (5) 67, 256, 272 s 8 67, 80, 85 s 9 67, 80, 85 s 10 66, 272, 275 s 11 66 (2) 145 s 12 145 xxv

xxvi

TABLE OF STATUTES

Australia Act 1986 (UK) (cont.) s 13(2) 146 s 14 146 s 15 71, 72, 73, 161, 331 (1) 73 (2) 74 (3) 28 s 16(1) 186 Australian Antarctic Territory Acceptance Act 1933 (Cth) 397, 482 Australian Antarctic Territory Act 1954 (Cth) 482–3 s 10(1) 380 Australian Capital Territory (Consequential Provisions) Act 1988 (Cth) 440 Australian Capital Territory (Electoral) Act 1988 (Cth) 440 Australian Capital Territory Planning and Land Management Act 1988 (Cth) 309, 440, 441, 445 Australian Capital Territory (Self-Government) Act 1988 (Cth) 30, 104, 303–5, 378–9, 436, 440 Part V A 379 s 7 266 s 8(2) 78 s 16 102, 290, 304, 468 s 16(1) 466, 467, 474 s 22 79, 104 (1) 114, 253, 419 s 23 104, 114, 309, 432, 441 (1)(a) 373, 426, 431 s 24 99 s 25 79 s 25(2) 80 s 26 151, 194, 204–5, 206, 378 (2) and (6) 206 (3) 205 s 28 148 s 29 400, 446 s 34 147 s 35(2) 80 (4) 80 s 36 257, 443–5 s 37 309, 444–5 s 40 302 s 48 290 s 48A(1) 377 s 58(1) 86 s 59(1) 400 s 66B 429 s 69(1) 431, 441 (2) 432, 441 Schedule 4 309, 494–6 Schedule 5 441 Australian Capital Territory Supreme Court (Transfer) Act 1992 (Cth) 378

TABLE OF STATUTES

xxvii

Acts Interpretation Act 1901 (Cth) 406 s 15A 224 s 16A 443, 467, 468 s 17(a) 406, 476 (p) 146 (pe) 406 s 21 224 s 46A 442 Australian Securities and Investments Commission Act 2001 (Cth) 16 Bankruptcy Act (Cth) 406 Broadcasting Act 1942 (Cth) 417 Builders Labourers’ Federation (Cancellation of Registration) Act 1986 (Cth) 372 Christmas Island Act 1958 (Cth) 397, 477–8 s 8H 478 s 9 478 Christmas Island (Request and Consent) Act 1957 (Cth) 142, 146, 397, 477 Coal Industry Act 1946 (NSW and Cth) 17 Coastal Waters (Northern Territory Powers) Act 1980 (Cth) 214 Coastal Waters (Northern Territory Title) Act 1980 (Cth) 214 Coastal Waters (State Powers) Act 1980 (Cth) 13, 69, 214, 337 s 5(a) 214, 235, 242 s 5(c) 69, 237 s 6 242 Coastal Waters (State Title) Act 1980 (Cth) 214 Cocos (Keeling) Islands Act 1955 (Cth) 397, 479–80 s 12 480 s 18(1B) 480 Cocos (Keeling) Islands (Request and Consent) Act 1954 (Cth) 142, 146, 397, 479 Commonwealth of Australia Constitution Act 1900 (Imp) 1, 26, 43, 63, 65, 74, 136, 142 preamble 5, 27, 263, 264, 330 covering clause 2 265 covering clause 3 27, 64 covering clause 4 27 covering clause 5 63, 404 covering clause 6 64, 448 covering clause 7 63 covering clause 8 63

Commonwealth Constitution s 1 119, 124 s 2 307 s 5(a) 221 s 6 189–91 s 7 119, 121, 122, 124, 125, 130, 133, 422–3, 433, 434 (1)(d) 127, 128, 129, 130 s 8 124 s 9 120

xxviii

TABLE OF STATUTES

Commonwealth Constitution (cont.) s 12 13 s 13 124 s 15 13, 119, 120, 282 s 23 207 s 24 119, 121, 122, 124, 125, 130, 133, 422–3, 433, 434 s 25 124 s 28 124 s 29 120 s 30 119, 124 s 40 207 s 41 119, 409 s 49 99 s 51 3, 59, 386 (i) 4, 19 (iii) 427, 428 (v) 133, 416 (vi) 28, 313, 397 (xvii) 314 (xx) 4, 11, 17, 29, 395 (xxiv) 13 (xxv) 13, 242, 248, 251 (xxix) 11, 19, 67, 213, 242, 397, 416, 486 (xxxi) 114, 408, 420, 421, 425–6 (xxxiv) 13 (xxxvii) 13, 14–16 (xxxviii) 13, 68, 69, 70, 71, 72, 198, 214, 237, 336–7 (xxxix) 397 s 52 116, 314, 386 (1) 394, 435 (i) 400, 438 s 53 426 s 54 88 s 55 408, 426–7 s 57 88, 92, 95, 97 s 58 80 s 61 256, 266, 275, 305, 307, 308, 310, 409 s 64 53, 122, 300 s 70 314 s 71 348, 352–3, 369 s 72 327, 368, 369, 379 s 73(ii) 379 s 73(iii) 13, 341 s 74 63 s 75 341 s 76 341 (ii) 488 (iv) 242 s 77(iii) 13, 341, 361, 376

TABLE OF STATUTES

xxix

s 80 409 s 81 421 s 87 6, 8 s 90 8, 9, 114, 314, 427–9 s 92 253, 431 s 96 3, 8, 9 s 101 353 s 102 13 s 103 13 s 104 13 s 106 1, 63–5, 69, 70, 104, 110, 121, 125, 130, 159, 179, 208, 248, 333, 337, 338 s 107 8, 63–5, 104, 111, 248 s 108 64, 70, 221 s 109 1, 8, 20, 73, 114, 136, 144, 147, 210, 238, 248, 253, 314, 315, 409, 413, 429–30 s 111 13, 394–5, 396, 400, 402, 449 s 112 221 s 113 221 s 116 114, 420, 421–2 s 118 13, 114, 222, 245, 246, 249–50, 405, 427, 428–9 s 119 14 s 119A 33 s 120 13 s 121 13, 393, 434, 458 s 122 1, 18, 28, 111, 133, 134, 146, 254, 310, 380, 381–2, 393, 394–5, 398, 399, 427, 438, 443 s 123 211, 393, 396, 448, 449 s 125 28, 394, 399, 437–40 s 128 6, 27, 28, 70, 71, 74, 105, 122, 157, 318, 319, 320, 330, 336 Commonwealth Electoral Act 1918 (Cth) 122, 469, 470 ss 40(7) and 48(2C) 476 ss 95AA–95AC 469 Commonwealth Places (Application of Laws) Act 1970 (Cth) 215 Competition Code Agreement 1995 18 Conciliation and Arbitration Act 1904 372 Coral Sea Islands Act 1969 (Cth) 484 s 3 483 s 8(1) 380 Corporations Act 1989 (Cth) 390 s 47(1) 19 Corporations Act 2001 (Cth) 16, 25 Corporations (Commonwealth Authorities and Officers) Regulations 1990 (Cth) Reg 3(1)(d) 19 Corporations Law 2001 (Cth) 14, 18 Crimes Act 1914 (Cth) 128 s 85S 361 Crimes at Sea Act 1979 (Cth) 243 Crimes at Sea Act 2000 (Cth) 242, 243

xxx

TABLE OF STATUTES

Criminal Code (Cth) s 100.8 15 Environment, Sport and Territories Legislation Amendment Act 1997 (Cth) 483 Environmental Protection and Biodiversity Conservation Act 1999 (Cth) 310, 451, 454 Euthanasia Laws Act 1997 (Cth) 148, 418, 430, 432, 441, 456 Evidence Act 1995 (Cth) s 185 222 Family Law Act 389 Federal Court of Australia Act 1976 (Cth) s 24(1)(b) 378, 380, 468 s 33 468 Financial Agreement Act 1994 (Cth) 11 Financial Agreement Enforcement Act 1932 (Cth) 287 Flags Act 1953 (Cth) s 3(2) 207 Great Barrier Reef Marine Park Act 1975 (Cth) 215 Heard Island and McDonald Islands Act 1953 (Cth) 482, 485 s 9(1) 380 Historic Shipwrecks Act 1976 (Cth) 236 Insurance Contracts Act 1984 (Cth) 246 Interstate Commission Act 1912 (Cth) Part VII 352 Jervis Bay Territory Acceptance Act 1915 (Cth) 447 Judiciary Act 1903 (Cth) 349 ss 30(2)(a) 190 s 35AA(2) 378, 379, 380 s 39 341, 362 (2)(a) 190 s 79 215, 389 Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) 341 Migration Act 1985 (Cth) 312, 374 Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) 476 Mutual Recognition Act 1992 (Cth) 16 National Parks and Wildlife Conservation Act 1975 (Cth) 410, 416 Nauru Act 1965 (Cth) 487 Nauru (High Court Appeals) Act 1976 (Cth) 488 Nauru Independence Act 1967 (Cth) 487 Nauru Island Agreement Act 1919 (Cth) 487 Navigation Act 1912 (Cth) 144 Navigation Amendment Act 1979 (Cth) Part VII 236 s 104(3) 67 New Guinea Act 1920 (Cth) 486 Norfolk Island Act 1913 (Cth) 397, 463, 469 Norfolk Island Act 1957 (Cth) 463, 469 Norfolk Island Act 1979 (Cth) 104, 151, 253, 379, 436, 461, 463, 464, 468, 472, 474 preamble 465 Part VII 378, 379–80

TABLE OF STATUTES

xxxi

s 19(1) 79, 114, 207, 419 s 19(2) 114, 431 (2A) 432 s 20 99 s 21(3) 80 s 31 429 (2) 78 s 38 429 s 53(1) 380 (2) 380 Norfolk Island Amendment Act 2004 (Cth) 470 s 39A(5) 148 Norfolk Island (Electoral and Judicial) Amendment Act 1992 (Cth) 469 Northern Australia Act 1926 (Cth) 449 Northern Territory (Acceptance) Act 1910 (Cth) 111, 389, 408, 423, 427, 449 s 7(1) 146, 391 Northern Territory (Administration) Act 1910 (Cth) 111, 134, 408, 423, 427, 449, 450 s 10 413 s 13 384 Northern Territory Representation Act 1922 (Cth) 434, 457 Northern Territory (Self-Government) Act 1978 (Cth) 30, 104, 151, 378, 436, 450, 457 s 5 453 s 6 79, 104, 114, 206, 253, 419, 420 s 7 79 (2)(b) 451 (3) 80 s 8(2) 81 s 9 81 s 10 81 s 11 87 s 13 429 s 13(2) 78 s 16 101, 257 s 17 429 s 32(3) 451 s 35 257 s 45(1) 86 s 49 431 s 50 426 (1) 431 (2) 426 3(1) 373 s 50A 104, 432, 433 s 53 310, 451, 454 s 57(1) 147 Northern Territory (Self-Government) Regulations 1978 (Cth) 257, 450 Regulation 4 309, 454, 491–3

xxxii

TABLE OF STATUTES

Papua Act 1905 (Cth) 397, 485, 486 Papua and New Guinea Act 1949 (Cth) 486 Papua New Guinea Independence Act 1975 (Cth) 415, 487 Papua New Guinea Provisional Administration Act 1945 (Cth) 487 Parliament Act 1974 (Cth) 400 Parliamentary Precincts Act 1988 (Cth) 400 s 3(1) 401, 446 Parliamentary Privileges Act 1987 (Cth) 99 Petroleum (Submerged Lands) Act 1967 (Cth) 484 ss 5(1), 5A(1) and Schedule 2 238 s 8 (3) 380 Post and Telegraph Act 1901 (Cth) 385, 416 Privy Council (Appeals from the High Court) Act 1975 (Cth) 67 Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) 483 Racial Discrimination Act 1975 (Cth) 353 Royal Style and Titles Act 1953 (Cth) 263, 265 Seas and Submerged Lands Act 1973 (Cth) 213–14, 235 s 6 212, 236 s 7 214 s 16(b) 235 Seat of Government Acceptance Act 1909 (Cth) 395, 437 s 4 400, 438 s 6(1) 146, 447 s 7 447 Seat of Government Acceptance Act 1922 (Cth) 438 Seat of Government Act 1908 (Cth) 400, 447 s 3 437 Seat of Government Acceptance Act 1909 (Cth) s 4 437 Seat of Government (Administration) Act 1910 (Cth) 441, 447 s 3 146 s 4 146 Senate (Representation of Territories) Act 1973 (Cth) 433 Service and Execution of Process Act 1901 (Cth) 144 Service and Execution of Process Act 1992 (Cth) 251 s 105 251 State and Territorial Laws and Records Recognition Act 1901 (Cth) 222 s 18 428 Statute of Westminster Adoption Act 1942 (Cth) 47, 68, 142, 146, 220 Statutory Declarations Act 1959 (Cth) 406 Territories Law Reform Act 1992 (Cth) 380, 478, 480 Terrorism (Commonwealth Powers) Act 2002 s 4 16 s 5 15 Trade Practices Act 1974 (Cth) 18, 246 Transport Workers Act 1928 (Cth) 289 s 3 115 Workplace Relations Act 1996 (Cth) 310, 451, 454

TABLE OF STATUTES

New South Wales Administrative Decisions Tribunal Act 1997 (NSW) 116 Australia Acts (Request) Act 1999 (NSW) 332 Clean Waters Act 1970 (NSW) s 16(1) 233 s 16(2) 234 Co-operative Schemes (Administrative Actions) Act 2001 (NSW) Community Protection Act 1994 (NSW) 362 s 3(1) 361 Companies Act 1899 (NSW) 314 Constitution Act 1855 (NSW) 44, 45, 48, 56 s 1 44, 45, 88 s 15 44, 179 s 18 300 s 36 45, 179 s 43 45 s 54 45 Constitution Act 1902 (NSW) 48 s 3 78, 79, 268 s 5 78, 80, 87, 89, 104, 107, 185, 218 s 5A 90, 95, 289 (1) 87 (3) 87, 88, 90 s 5B 91, 92, 93, 95, 171 (1) 92 (4) 92 s 5C 95 s 7A 77, 93, 95, 97, 150, 165, 174, 187, 192, 195 (1)(a) 194 (2) 97 (6) 174, 191, 192, 193 s 7B 101, 165, 174, 192, 337 (1) 133, 348 (8) s 8A 267, 279 s 9A(1) 270, 272, 273 s 9B 271 s 9C 271 s 9D 271 s 9F 272 s 9H 281 s 10 101, 278, 279 s 11A 278 s 15 279 s 22 279 s 23 279 s 24 280, 290 s 24B 101, 280

19

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TABLE OF STATUTES

Constitution Act 1902 (NSW) (cont.) (2) 280 (3) 280 (5) 280, 290 (6) 280 s 26 133 s 32 78 s 35B 294 s 35C 294 s 35D(3) 295 s 35E(1) 281, 285, 299, 300, 302 s 36 301 ss 37–8 301 s 38B 301 s 39(1) 86 s 46(1) 87, 279 s 46(2) 279 s 47 294 s 49 267, 347 s 51 33 s 53 368 s 53(2) 281 Part 9 343–4, 348 Constitution (Amendment) Act 1987 (NSW) 270 Constitution (Amendment) Act 1992 (NSW) 348 Constitution (Entrenchment) Amendment Act 1992 (NSW) s 3 348 Constitution (Legislative Council) Amendment Act 1929 (NSW) 192 Criminal Law Amendment Act 1883 (NSW) 216 Customs Regulation Act 1879 (NSW) 107 Electoral Reform Act 1858 (NSW) 44 Evidence Act 1995 (NSW) s 15 308 Imperial Acts Application Act 1969 (NSW) 141 Industrial Arbitration (Special Provisions) Act 1984 (NSW) 372 Interpretation Act 1967 (NSW) s 14 261, 276, 282, 295 s 28 312 Interpretation Act 1987 (NSW) s 12 224 s 31 224 s 41 317 s 64 195 Legal Profession Act 1987 (NSW) 375 Legislation Review Act 1987 (NSW) s 8A(1) 21 Local Government Act 1993 (NSW) 33 Seat of Government Surrender Act 1909 (NSW) 395, 437

TABLE OF STATUTES

Seat of Government Surrender Act 1915 (NSW) 447 Senator’s Elections Act 1903 (NSW) s 3 282 Sentencing Act 1989 (NSW) s 13A 351, 375 Supreme Court Act 1970 (NSW) 130, 370, 378 Workers’ Compensation Act 1926 (NSW) s 46 234 Workers’ Compensation Act 1987 (NSW) 245

Queensland Acts Interpretation Act 1954 (Qld) s 9 224 s 10 195 s 13 154 s 13A 154 s 20(2)(a) 312 s 35 224 s 36 261, 276, 282, 295 Associations Incorporation Act 1981 (Qld) 81 Australia Act (Request) Act 1985 (Qld) 198 Clean Waters Act 1971 (Qld) 249 Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Qld) 192 s 3 173 s 4 173, 177 Companies (Queensland) Code s 129 223, 229 Constitution Act 1867 (Qld) 57, 105, 106 s 1 197 s 2 78, 104, 197, 218 s 2A 197 s 2A(1) 78, 268, 332 s 2A(2) 79, 279, 333 s 11A 146, 197, 198, 271, 272, 333 s 11A(1) 273 s 11B 146, 197, 198, 272 s 14(2) 146 ss 15 and 16 106 s 17 105 s 40A 99 s 53 192, 271, 337 (1) 150, 151, 165, 195, 271, 330, 333 Constitution Act Amendment Act 1860 (Qld) s 2 196 Constitution Act Amendment Act 1890 (Qld) s 2 56, 101

xxxv

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TABLE OF STATUTES

Constitution Act Amendment Act 1922 (Qld) 57, 77 Constitution Act Amendment Act 1934 (Qld) s 3 57, 196, 197 s 4 56, 101, 196 Constitution (Executive Actions Validity) Act 1988 (Qld) 297 Constitution of Queensland 2001 30, 105, 150, 196, 197–8, 261 s 6 78, 79, 187, 268, 332, 333 s 8 78, 104 s 9 99 s 10 133 s 15(1) 279 s 15(2) 101, 279 s 15(I2) 279 s 17 267 s 17(1) 279 s 18 278 s 19 278 s 24 301 s 29 270, 272, 333 s 30 272, 273 s 32 327 s 34 276, 284 s 37 281 s 38 267 s 40 271 s 41 271 s 42 45, 293, 302 s 42(1) 298 s 42(2) 261, 298 s 43 281, 285, 299 s 43(2) 300 s 45 301 ss 48–9 294 s 50 295 s 50(2) 295 s 51(1) 305 s 59 281 s 61 281 ss 64–6 86, 261 s 68 87, 279 ss 72–6 33 s 78 33, 198 Constitution (Office of Governor) Act 1987 (Qld) 198, 199 s 13 270, 272 Crimes at Sea Act (2001) (Qld) 243 Criminal Proceeds Confiscation Act 2002 (Qld) 374 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) 364 Electoral Act 1992 (Qld) s 78 278

TABLE OF STATUTES

Freedom of Information Act 1992 (Qld), s 36 298 Industrial Arbitration Act 1916 (Qld) 106 s 6(6) 194 Judicial Review Act 1991 (Qld) 116 Local Government Act 1993 (Qld) 33 Mining Royalties Act 1974 (Qld) 163, 166, 172 Parliament of Queensland Act 2001 (Qld) 196 s 11 279 s 80 21 Parliamentary Bills Referendum Act 1908 (Qld) 92 Public Service Act 1996 (Qld) s 146 197 Racing and Betting Act 1954 (Qld) 223 Senate Elections Act 1960 (Qld) s 3 282 Statute Law (Minor Amendments) Act (No 2) 1995 (Qld) 81 The Criminal Code (Qld) 239, 243 ss 12, 13 and 14 240 s 14A 243 Vagrants, Gaming and Other Offences Act 1931 (Qld) 127, 128

South Australia Acts Interpretation Act 1915 (SA) s 17 312 s 22A 224 s 23 261, 276, 282, 295 s 48 52, 138 Acts Interpretation Act 1918 (SA) s 18 195 Administration and Probate Act 1891 (SA) 408, 427 Colonial Registration Act (SA) 180 Constitution Act 1855 (SA) 44, 53, 181 s 28 53 s 32 53, 259 s 34 53, 180 s 39 53 Constitution Act 1934 (SA) 79, 200, 285 s 4 78 s 5 79, 104 s 6 101, 278, 279 (1)(a) 279 s 7 278 s 8 78, 132, 150, 187, 330, 333 s 9 99 s 10A 78 s 10A(1)(d) 89 (2)(b) 77

xxxvii

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TABLE OF STATUTES

Constitution Act 1934 (SA) (cont.) s 11 132 s 27 132 s 28 278, 290 (1)(c) 93 s 28A 101, 290 (1)(c) 90 (4) 280 s 32 200 s 38 99 s 41 91, 93, 101, 280 ss 45A–45C 346 s 55(2) 279 s 56 78, 80, 279 s 59 87, 279 s 61 80, 87, 88 s 62 87, 88 s 64 78, 88 s 64A 33 s 65 281, 285, 299 s 66(1) 261, 300 s 67 301 s 67A 301 s 67A(2) 301 s 67A(b) 302 s 68 281–94 s 70 271 s 75 281 s 88 132, 150, 197 Criminal Law Consolidation Act 1935 (SA) s 5C 240, 241 Election of Senators Act 1903 (SA) s 3 282 Electoral Act 1861 (SA) 167, 168, 180 Electoral Act 1985 (SA) 125, 132 s 113 132 Industrial Arbitration Act 1940 (SA) 155 Interpretation Act 1918 (SA) Local Government Act 1934 (SA) 33 National Electricity (South Australia) Act 1996 (SA) 18 Northern Territory (Surrender) Act 1907 (SA) 52, 449 Real Property Act 1886 (SA) 154, 155, 163, 180 s 6 162 South-Eastern Drainage Act 1900 (SA) 162 South-Eastern Drainage Acts 1931 and 1933 (SA) 155 Succession Duties Act 1893 (SA) 408, 427 Supreme Court Act (SA) s 17(2)(a) 241 West Lakes Development Act 1969–70 (SA) 188

TABLE OF STATUTES

Tasmania Acts Interpretation Act 1931 (Tas) s 3 224 s 6(1) 195 s 14 312 s 27 224 s 43 261, 276, 282, 295 Constitution Act 1856 (Tas) 44, 48 Constitution Act 1934 (Tas) ss 4–7 267 s 8 271 s 8A 281, 285, 299 s 8B(1) 261, 300 (2)–(4) 300 s 10 78, 79, 268 s 11 278 s 12(1) 101, 278, 279 (2) 101, 279 s 13 279 s 17(1) 279 (2) 279 s 18 133 s 22 133 s 23 101 s 37 80, 87 s 38 279 (1) 87, 88 (2) 88 ss 39–40 87 s 40 88 s 41A 101, 150, 201 s 42(1) 87 ss 45A–45C 33 Electoral Act 2004 (Tas) s 63 278 Local Government Act 1993 (Tas) 33 Senate Elections Act 1935 (Tas) s 3 282

Victoria Administrative Law Act 1978 (Vic) 116 Civil and Administrative Tribunal Act 1998 (Vic) 116 Commonwealth Powers (Industrial Relations) Act 1996 (Vic) Community Protection Act 1990 (Vic) 358 Constitution (Parliamentary Reform) Act 2003 (Vic) 77 Constitution Act 1855 (Vic) 47, 255 s 1 104 s LX 165

17

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TABLE OF STATUTES

Constitution Act 1975 (Vic) 126, 201–3, 265 s 1A 31, 151 s 6 270, 272, 273 s 6B 302 s 8(1) 278 (2) 101, 279 (3) 101, 280, 290 (A) 280, 290 ss 9–11 273 s 14 279 s 15 78, 79, 268 s 16 78, 104 s 16A 299 s 18 150, 165, 194, 197, 279, 330, 347 (1A) 333 (1B) 77, 93, 101, 150, 201, 333 (i) 90 (2) 201, 333 (2A) 97, 192 (aa) 31 (2AA)(b) 202, 344 (3), (4) and (5) 197 s 19(1) 99 s 20 279 s 26 133 s 34 133 s 38A 290 s 38(2) 290 s 41 278 s 43 279 s 50 281, 299, 300 s 51 261, 300 s 53(1) 196 s 62 80 (1) 87 (2) 87 s 63 87, 279 s 64(2)–(3) 87 s 65 90, 289 (2) 90 (3) 87 (7) 90 (8) 90, 93, 172 A–F 91 D(3) and (4) 96 F(4) and (5) G(8) and (9) s 68E(2) 101, 280 s 70 281 ss 74A–74B 33

TABLE OF STATUTES

s 74A(1) 33 s 75B(2) 281 s 77 368 (1) 281 s 85 192, 202 (5) 156–7, 203 (b) 172 s 87A–87B 294 s 87C 295 (3) 295 s 87E 276, 283 s 88 281 Constitution (Amendment) Act 1994 (Vic) 145 Constitution (Jurisdiction of Supreme Court) Act 1991 (Vic) Constitution (Parliamentary Reform) Act 2003 (Vic) Division 4 201 s 14 90, 289 s 15 93 Constitution (Water Authorities) Act 2003 (Vic) 201 Electoral Act 2002 (Vic) s 61 278 Imperial Acts Application Act 1922 (Vic) 141 Imperial Acts Application Act 1980 (Vic) 141 Interpretation of Legislation Act 1984 (Vic) s 7A 195 s 14 312 s 38 261, 276, 282, 295 s 48 224 s 58 145 Local Government Act 1989 (Vic) 33 Parliamentary Committees Act 2003 (Vic) s 17(a) 21 Public Prosecutions Act 1994 (Vic) s 46 157 Senate Elections Act 1958 (Vic) s 3 282 Sentencing Act 1991 (Vic) 375

Western Australia Constitution Act 1889 (WA) 50 s 2 104 (1) 78 (2) 78, 204, 268, 332 (3) 79, 279, 333 s 3 101, 102, 278, 279 s 4 278 s 8 279 s 34 279 s 42 51

xli

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TABLE OF STATUTES

Constitution Act 1889 (WA) (cont.) s 46(6)–(7) 87 s 46(8) 279 s 50 270 s 50(1) 272, 273 s 51 146 ss 52–3 33 s 55 267, 281 s 73 330, 333, 337 (2) 78, 203, 204, 271, 333 (a) and (b) 203 (c) 121, 132, 150, 203 (d) 203 (f) 333 s 74 275, 281–94 Constitution Act Amendment Act 1893 (WA) 51 Constitution Acts Amendment Act 1899 (WA) 51 s 12 278 s 43 281, 285, 299 s 44A 301 s 46(1) 80, 87 s 46(2)–(4) 87 s 46(8) 87 s 46(9) 88 Corporations (Western Australia) Act 1990 (WA) 19 ss 29 and 31(1) 19 s 33 19 Crimes (Confiscation of Profits) Act 1998 (WA) 373 Election of Senators Act 1903 (WA) s 3 282 Electoral Act 1907 (WA) 190 Electoral Distribution Act 1947 (WA) 169 s 13 97, 164, 169, 201, 204 s 13(2) 150 Fisheries Act 1905 (WA) 235 Indian Ocean Territories (Administration of Laws) Act 1992 (WA) Industrial Relations Act 1979 (WA) 135 Interpretation Act 1984 (WA) s 7A 224 s 34 312 s 54 195 s 60 261, 276, 282, 295 s 73 138 Local Government Act 1995 (WA) 33 Local Government Act 1995 (WA) (CI) 478 Local Government Act 1995 (WA) (CKI) 479 Maritime Archaeology Act 1973 (WA) 236 Museum Act 1969 (WA) 236 Royal Commissions Act 1968 (WA) s 5 252

380, 476

TABLE OF STATUTES

State Administrative Tribunal Act 2004 (WA) Statute Law Revision Act 1970 (WA) 141

xliii

116

Australian Capital Territory Administrative Appeals Tribunal Act 1989 (ACT) 116 Bill of Rights Act 2004 (ACT) 206 Corporations Law (ACT) 390 Electoral Act 1992 (ACT) 206 s 100 290 Imperial Acts Application Act 1986 (ACT) 141 Imperial Acts Application Ordinance (ACT) 147 Imperial Acts (Repeal) Act 1988 (ACT) 141, 147 Interpretation Act 1967 (ACT) s 11AA 224 s 25 224 Law Reform (Abolitions and Repeals) Act 1996 (ACT) s 6 and Sch, pt 1 147 Legislation Act 2001 (ACT) s 86 312 ss 18–20 442 ss 28–9 79, 80 Proportional Representation (Hare–Clark) Entrenchment Act 1994 (ACT)

Norfolk Island Court of Petty Sessions Act 1960 (NI) s 5(1) 379 Legislative Assembly Act 1979 (NI) 470 s 6(1) 470 s 6(1) and (2) 148 Referendum Act 1964 (NI) s 25 470

Northern Territory Aboriginals Ordinance 1918 (NT) 111–12, 134, 423, 424 Interpretation Act 1967 (NT) s 38 224 s 59 224 Interpretation Act 1978 (NT) s 11 312 s 34 261, 276, 282, 295, 452 s 54 195 Justices Act 1928 (NT) s 41A 455 Legislative Assembly (Powers and Privileges) Act 1992 (NT) s 4 99 Local Court Act 1989 (NT) s 4 455 Motor Accidents (Compensation) Act 1979 (NT) 244

149, 206

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TABLE OF STATUTES

Rights of the Terminally Ill Act 1995 (NT) 148, 430, 432, 441, 451, 455 Summary Offences Act 1923 (NT) 429 Summary Offences Act 1978 (NT) 134 Supreme Court Act 1979 (NT) 384, 455 s 32 378 s 76 254 Supreme Court Ordinance 1911–1922 (NT) 378 Traffic Act 1987 (NT) 401, 402

Canada Canada Act 1982 (Can) Part I 156 Canadian Bill of Rights 1960 (Can) 156 s 1(b) 94 s 2 155 Constitution Act 1867 (Can) 325 Indian Act 1952 (Can) 156 The Initiative and Referendum Act (Manitoba)

176

Ceylon Bribery Amendment Act 1958 (Ceylon)

188

India Constitution of India

325

New Zealand Constitution Act 1846 (NZ) 58 Constitution Act 1986 (NZ) 58 Legislative Council Abolition Act 1950 (NZ) 58 New Zealand Constitution Amendment Act 1973 (NZ) 58 New Zealand Constitution Amendment (Request and Consent) Act 1947 (NZ) Royal Titles Act 1974 (NZ) 58 Statute of Westminster Adoption Act 1947 (NZ) 58

United Kingdom 1285 (13 Edw 1 c 22) 147 Act of Settlement 1701 140 Admiralty Offences (Colonial) Act 1849 (Imp), s 1 238, 239 Australia Act 1986 (UK) 69, 73, 74, 142, 145, 146 s 1 27, 66, 141, 143, 145, 266 s 2 118, 182, 185, 208 (1) 67, 210, 221, 249 (2) 85, 110, 118, 160, 186, 189 s 3 118, 141, 208 (1) 47, 67, 120, 145, 160, 334 (2) 85, 136, 145, 334, 347 s 4 145

58

TABLE OF STATUTES

s 5 136 (b) 145 s 6 67, 70, 88, 89, 150, 151, 153, 155, 156, 159–79, 182, 187, 189, 193, 195, 199, 329, 333, 348 s 7 264, 267, 320, 331–2, 334 (1) 85, 268, 270, 272 (2) 78, 256, 270, 275, 281, 308 (3) 273, 308 (4) 308 (5) 67, 256, 272 s 8 67, 80, 85 s 9 67, 80, 85 s 10 66, 272, 275 s 11 66 (2) 145 s 12 145 s 13(2) 146 s 14 146 s 15 71, 72, 73, 161, 331 (1) 73 (2) 74 (3) 28 s 16(1) 186 Australian Colonies Act 1861 (Imp) 52, 448 s 2 211 Australian Constitutions Act (No 1) (1842) 5 and 6 Vic c 76 40, 52, 53 ss 30–3, 40 334 s 32 80 s 51 55 Australian Constitutions Act (No 2) (1850) 13 and 14 Vic c 59 40, 42 s 2 54 s 5 54 s 7 79 s 12 334 s 14 49, 53, 54, 104 s 28 145 s 32 42, 43, 49, 50, 52, 54 Australian Courts of Justice Act (1828) 9 Geo IV c 83 40, 48 s 15 145 s 24 40, 138 s 28 40 Australian State Constitutions Act 1907 (UK) s 1 334 s 15 80 Australian Waste Lands Act 1855 (Imp) 462, 463 Bill of Rights 1689 140, 141 Article IV 86 British North America Act 1867 217 s 16 399, 438 s 92 84

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TABLE OF STATUTES

British Theft Act 1968 (UK) 239 Canada Act 1982 68, 156 s 38(1) 156 Christmas Island Act 1958 (Imp) 142, 397, 477 Cocos (Keeling) Islands Act 1955 (Imp) 142, 397, 479 Colonial Boundaries Act 1895 (Imp) s 1 211 Colonial Courts of Admiralty Act 1860 145 Colonial Laws Validity Act 1865 (Imp) 47, 67, 120, 141, 143, 146, 182 ss 1–4 47 s 2 67, 143–4, 161, 334, 430 s 3 143 s 4 311 s 5 47, 84, 85, 89, 118, 150, 151, 155, 156, 159, 160–1, 164, 167, 172, 182, 186, 188, 218, 334 Constitution Act 1890 (Imp) s 73 190 (1) 190 Constitution Act 1889 (Imp) (WA) s 73 187 Constitution Statute 18 and 19 Vict c 54 43 Constitution Statute 1855 (Imp) 44 s 2 44, 308 s 3 44 s 4 44 s 5 44 s 7 44 Crimes by Governors of Colonies Act 1698–99 (Imp) 142 Crown Suits Act 1769 (Imp) 140 European Communities Act 1972 (UK) s 2(4) 153 Federal Council of Australasia Act 1885 (Imp) 60 Foreign Tribunals Evidence Act 1856 (Imp) 143 Foundation Act 1834 (Imp) 52 Fugitive Offenders Act 1881 (Imp) 142, 144 Geneva Convention Act 1911 (Imp) 142 Geneva Convention Act 1937 (UK) 142 Government of India Act 1935 (Imp) 218 Imperial Act (1784) 24 Geo III c 56 37 Imperial Act (1823) 4 Geo IV c 96 39, 156, 167 s 24 39 s 29 39 s 30 39 s 31 39 s 44 48 Imperial Act 26 & 27 Vic c 84 180 Imperial Act of 1829 (10 Geo IV c 22) 49 Imperial Act of 1842 (5 and 6 Vict c 61) 52 Imperial Statute 13 & 14 Vict c 59 167 Imperial Statute 26 & 27 Vict c 84 167, 168

TABLE OF STATUTES

xlvii

Judicial Committee Act 1833 145 Judicial Committee Act 1844 145 Limitations of Actions 1623 (21 jas 1 c 16) 147 Lotteries Act 10 & 11 Wm 3 Ch 17 (Imp) 140 Merchant Shipping (Liability of Shipowners and Others) Act 1900 (Imp) 142 Merchant Shipping Act 1894 (UK) 141, 142, 243 s 503(1) 67 s 735 144, 145 s 736 145 New South Wales Constitution Act 1855 (Imp) s 3 334 s 5 212 s 7 55 s 49 348 New South Wales Continuance Act 1840 (Imp) 58 New Zealand Constitution Act 1852 (Imp) 58 s 32 58 New Zealand Constitution (Amendment) Act 1947 (UK) 58 Nullum Tempus Act 140 Parliament Act 1911 (UK) s 1 90 Regency Act 1937 (UK) 266–7, 268 Sale of Waste Lands Act 1842 41 Sir John Barnard’s Act 1734 (7 Geo II c 8) 140 South Africa Act 1909 (Imp) 25, 184 South Australian Colonisation Act 1834 (Imp) 51, 52, 138 ss 1 and 2 51 Act No 2 of 1856 167 Statute of Mortmain (9 Geo III c 1) 140 Statute of Westminster 1931 (Imp) 58, 67, 71, 73, 74, 136, 142, 143, 145, 146, 260, 263 s 2(2) 67, 145 s 3 220 (2) 67 s 4 69, 73, 74, 142, 143, 146 s 9(2) and (3) 146 s 10(2) 146 Statutory Instruments 1986 (HMSO, 1987), Part I, Section 3, 2496–99 (SA) 270 Statutory Instruments 1986 (HMSO, 1987), Part I, Section 3, 2500–502 (Tas) 270 Statutory Instruments 1986 (HMSO, 1987), Part I, Section 3, 2503–504 (Vic) 270 Statutory Instruments 1986 (HMSO, 1987), Part I, Section 3, 2505–508 (WA) 270 Sunday Observance Act 1780 140 The Common Informers Act 1575 (18 Eliz 1 c 5) 147 Vagrancy Act (Imp) (4 Geo IV c 60) 140 Victorian Constitution Act 1855 (UK) 334 s 1 54 s 60 54 Western Australian Constitution Act 1890 (Imp) 50, 334

Preface

Although most texts on Australian constitutional law concentrate on Commonwealth power, this book reverses the focus to examine the constitutional systems of the six States and the ten Commonwealth territories. In doing so, an attempt has been made to highlight those aspects of their systems which are often neglected in other texts. It builds on the pioneering work of the late Professor Darrell Lumb, The Constitutions of the Australian States, which ran to five editions spanning the years 1963 to 1991, and the recent State-specific publications of the late Justice Bradley Selway, The Constitution of South Australia (Federation Press, 1997), and of Anne Twomey, The Constitution of New South Wales (Federation Press, 2004). I hope this book has gathered a few more fragments to provide a deeper appreciation of the federal nature of Australia’s constitutional system – its origins, evolution and possible trajectory. The peace and prosperity of our great nation is based upon that system – our most underrated national treasure. Given the constraints on commercial publishing today, I am deeply grateful to Cambridge University Press, in particular Jill Henry, for agreeing to publish this work, and Averil Lewis for editing the manuscript. Having spent several years on this project, there are many people to thank for a variety of different reasons – for their critical review of draft chapters: Leslie Zines, Patrick Keyzer and Graham Nicholson; for their database searching, checking footnotes and the procurement of the many obscure and diverse secondary materials, my talented former students Sefton Warner, Natasha Schot, Nitay-Yair Levi, Adam Ryan and Rachel Mansted; for his law librarian expertise: John Bahrij; for answering my numerous queries: many government officials, especially Graham Reid (Norfolk Island Crown Solicitor) and Dr Doug Jarvis (ACT Government Solicitor); for his decanal support and encouragement, including the provision of research grants: Duncan Bentley; and for those who encouraged me to continue when the task seemed insurmountable: Leslie Zines, Geoff Lindell and Anthony Watts. Finally, I sincerely thank my family, friends and colleagues who have patiently accepted my withdrawal from a ‘normal’ life over the last few years to complete this work. I hope they will now let me back into their lives. Regrettably, all errors are my own! An attempt has been made to state the position as at 1 January 2006. Gerard Carney Bond University Law Faculty Gold Coast Australia xlviii

Abbreviations

ACCC ASC BLF CBD CGC CIR CLVA COAG DPP EARC FMD GST HFE ICAC ILO IOTs LCARC NCA NCDC OFC PMA QCRC SCAG SDAs SPPs

Australian Competition and Consumer Commission Australian Securities Commission Builders’ Labourers Federation central business district Commonwealth Grants Commission citizen initiated referenda Colonial Laws Validity Act 1865 (Imp) Council of Australian Governments Director of Public Prosecutions Electoral and Administrative Review Commission foot and mouth disease goods and services tax horizontal fiscal equalisation Independent Commission Against Corruption (NSW) International Labour Organisation Indian Ocean Territories Legal, Constitutional and Administrative Review Committee National Crime Authority National Capital Development Commission offshore financial centre Petroleum and Minerals Authority Queensland Constitutional Review Commission Standing Committee of Attorneys-General service delivery arrangements special purpose payments

xlix

1 Introduction

The Australian States and territories are key components of the federal system of government established in 1901. The Australian people drew on their constitutional heritage to join in a federation under the Commonwealth Constitution, and thereby give birth to the Commonwealth of Australia. In transforming their colonies into States, they created two levels of representative government by granting specific powers to the Commonwealth and by retaining for themselves residual power. All of this occurred pursuant to the Commonwealth of Australia Constitution Act 1900 (Imp). From the beginning the colonies’ progeny, the Commonwealth, was given ascendency over the States to the extent that s 106 subjects their Constitutions to the Commonwealth Constitution, and s 109 overrides their laws so far as they are inconsistent with Commonwealth law. Moreover, since federation, the States have battled to maintain their autonomy in the face of increasing Commonwealth power and financial influence. It is a battle they have substantially lost. Consequently, at the beginning of the second century of federation, the future role of the States in the federation needs to be redefined. As for the Commonwealth’s territories, they are entirely creatures of the Commonwealth. There is considerable homogeneity between the constitutional systems of the six Australian States, but more divergence is evident in relation to the Commonwealth’s territories. Three territories have been conferred distinctly different forms of self-government: the Northern Territory in 1978; Norfolk Island in 1979; and the Australian Capital Territory in 1988. The remaining seven territories remain under direct Commonwealth control, although their legal regimes draw on those of a State or one of the self-governing territories. As creatures of the Commonwealth, these 10 territories remain entirely within the scope of the territories power in s 122 of the Commonwealth Constitution. Throughout the 20th century, legal debate waged over their place in the federal system; in 1

2

STATE AND TERRITORY CONSTITUTIONAL SYSTEMS

particular, the extent to which the territories power was subject to the restrictions which apply to the Commonwealth’s other powers.1 The High Court has only in recent times clarified their position in the federal system.2 This affected the constitutional status of the residents of the territories. Consequently, there developed, in effect, two categories of Australian citizen depending on whether they resided in a State or a territory. The primary focus of this book is to outline and compare the institutions of government at the State and territory level, in particular, the scope of their powers and the restrictions which pertain to their exercise.3 Before doing so, there are two key interrelated issues which need to be addressed in relation to the States. The first is the role of the States today and in the future. The second is their relationship with the Commonwealth. Both issues lie at the heart of Australian federalism. The role of the territories and their relationship with the Commonwealth are specifically considered in Chapters 11 and 12.

1.1 Role of the States The current role of the States is clearly different from that envisaged by most of the drafters of the Commonwealth Constitution in the 1890s. Their expectation was a federation of Australian States and a Commonwealth – each working with considerable autonomy as equal partners within their respective spheres of responsibility.4 Their view was one of coordinate federalism. The linchpin of this perceived federal balance was the Senate, composed of an equal number of senators from each State irrespective of their size and population. This would ensure that the most populous States of New South Wales and Victoria could not override the interests of the four smaller States. Accordingly, responsibility for maintaining an appropriate federal balance was left in the hands of the political process.5 But this plan came undone soon after federation when the Senate began to vote on party, rather than State, lines.6 Consequently, the States lost their chief political protection, enabling the Commonwealth to focus primarily on the ‘national’ interest. 1 See Chapter 11. 2 See North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146. 3 James Madison referred to these restrictions as ‘parchment barriers’ in The Federalist No 48, A. Hamilton, J. Madison and J. Hay, The Federalist (Everyman’s Library, J. M. Dent and Sons, 1971 reprint) 251, 252. 4 For instance, at the first of the Constitutional Convention Debates in Sydney in 1891, Sir Samuel Griffith cited the essential condition of federation to be that: ‘the separate States are to continue as autonomous bodies, surrendering only so much of their powers as is necessary to the establishment of a general government to do for them collectively what they cannot do individually for themselves, and which they cannot do as a collective body for themselves.’ Official Record of the Debates of the Australasian Federal Convention Vol I, Sydney 1891, 31; cf the views of Alfred Deakin, Official Record of the Debates of the Australasian Federal Convention Vol III, Adelaide, 1897, 297–8. 5 See James Warden, ‘Federalism and the Design of the Australian Constitution’ (1992) 27 Australian Journal of Political Science 143. 6 Recognised even in 1910: W. Harrison Moore, The Constitution of the Commonwealth of Australia (2nd edn, Melbourne: Charles F. Maxwell (G. Partridge and Company) 1910) 614.

INTRODUCTION

3

Naturally, the Commonwealth looked to the Commonwealth Constitution for the power to achieve its national objectives and was on the whole not disappointed. Initially, the High Court, led by Sir Samuel Griffith as Chief Justice, protected the States by reading down various heads of power to protect traditional areas of State regulation. But soon after Sir Samuel’s retirement in 1919, the High Court in the Engineers case7 established the fundamental principle of interpretation that all Commonwealth heads of power were to be given their ordinary and natural meaning. This facilitated an expansion in Commonwealth power in the absence of any enshrined legal principle of a federal balance in the Commonwealth Constitution. The very nature of the Commonwealth’s powers in s 51 with respect to (i) ‘Trade and commerce with other countries, and among the States’, (ii) ‘Taxation . . .’, (xx) ‘Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’, and (xxix) ‘External affairs’, enabled the Commonwealth to control a significant range of commercial activity. The Commonwealth also benefited from increasing sources of Commonwealth revenue – from the implementation of the uniform income tax scheme in 1942, the High Court’s rigid enforcement in 1997 of the prohibition of State customs and excise duties by s 90, to the imposition of the Commonwealth goods and services tax (GST) in 2000. This financial dominance (referred to as vertical fiscal imbalance) – together with the power to make grants to the States pursuant to s 96 on such terms and conditions as the Commonwealth thinks fit – enabled the Commonwealth to regulate far beyond the division of powers contemplated by the drafters of the Constitution in such areas as environmental protection, health and education. The terms of the Commonwealth Constitution facilitated the expansion of Commonwealth power, yet this only occurred in response to political forces or events. Significant among these were in turn: the gradual emergence of a sense of Australian nationhood following the end of the First World War, the Depression, the economic demands of defending Australia during the Second World War, technological advances, recognition of Australian citizenship, ratification of prolific international treaties, economic reform for international competitiveness, multiculturalism, globalisation, and the so-called ‘war on terror’. In response to each of these political forces and events, Commonwealth legislation was enacted and, where challenged, was mostly upheld by the High Court. Nonetheless, when faced with a lack of constitutional power, the Commonwealth has relied on numerous occasions for State cooperation to achieve its national objectives. Indeed, over the last 20 years, the level of federal–State cooperation has increased substantially – along with burgeoning government bureaucracies – to implement policies in almost every area of activity including law and order, health, education, transport, water conservation, environmental protection and, most recently, security. To be sure, this level of cooperative federalism has not always been voluntarily 7 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.

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embraced by the States. Commonwealth economic coercion and political pressure have played a significant role. In one sense, the Senate has been more of a constraint on the expansion of Commonwealth power and influence than the High Court. In other words, political, rather than legal constraints have played a more significant role – especially when the Government has lacked control of the Senate. Then again, Australia may enter a new era of constitutional evolution with the Howard Coalition Government achieving majority control of the Senate from 1 July 2005 – albeit with a very slender majority of one.8 No Commonwealth government has enjoyed control of both Houses since 1981. That control, combined with the fact that there is an Australian Labor Party Government in each of the six States as well as in the ACT and the Northern Territory, has created a political environment in which a conservative Commonwealth government is less constrained politically to exercise the full scope of Commonwealth legislative authority. The opportunity is ripe for the Commonwealth to test how far its powers extend. Not since the Second World War has such an opportunity presented itself. Moreover, there is a real likelihood that the High Court might give full effect to the corporations power (s 51(xx)) and the interstate and overseas trade and commerce power (s 51(i)) to enable the Commonwealth to directly regulate traditional State areas of responsibility such as education and health, as well as expand Commonwealth control over industrial relations. The political dilemma this raises for all Australians is whether such an expansion of Commonwealth control is in the best interests of the nation. And that depends on how one views the federal system and the role of the States. These issues resurrect the debate between centralism and State rights which reached a climax in the Tasmanian Dam case in 1983.9 In support of central authority are the benefits of more streamlined government, no duplication of government services, uniformity of national regulatory schemes, effective coordination of services, and all the economic efficiencies which flow from those benefits. On the other hand, in support of the preservation of State rights are the benefits of a diversity of policies and experimentation, recognition of regional loyalty, responsiveness to local circumstances, and the enhanced opportunity for political participation. Over and above these advantages are the checks and balances which flow from divided power, thereby enhancing government accountability and responsiveness. There is some truth in the view that ‘[t]here is no more effective way of checking the action of one government than by the counter-action of another government’.10 How to weigh up these arguments is a personal decision. How they are reconciled is probably no longer significant so far as the interpretation of the current 8 This means the Coalition’s party room deliberations assume much greater importance, especially in view of the comments of newly elected Senator Barnaby Joyce (Queensland National Party) who, in May 2005 before assuming his seat, identified the protection of State rights as one of his responsibilities as a senator. 9 Commonwealth v Tasmania (1983) 158 CLR 1. 10 Campbell Sharman, ‘Working Together: Towards an Inclusive Federalism?’ (1998) 5 Agenda 267, 268.

INTRODUCTION

5

Commonwealth Constitution is concerned. Their reconciliation is, nevertheless, crucial within the political process. Yet in the absence of any effective legal constraints, the trend towards further centralism will inevitably continue. Presently, there is no forum to debate whether this trend should continue, let alone to reconsider the entire federal compact. The Australian Constitutional Conventions provided such a forum during the 1970s and 1980s. Before these, two major constitutional reviews conducted by the Commonwealth in 192911 and 195912 considered Commonwealth–State relations. There is a real need to restore such a forum today. Unfortunately, the republic debate preoccupied the celebrations of the centenary of federation at the expense of reconsidering a more fundamental issue – why have a federation at all? It should be acknowledged that the States do not have an undisputed right of continued existence. Mere sentimental State loyalty alone cannot justify their continued existence. Instead there needs to be a careful assessment of the competing political, economic, social and constitutional advantages of a federal system over that of a unitary system. There is a wide spectrum of possibilities between these two basic options. Where Australia should be on that spectrum depends on a rational assessment of what is in the best interests of the nation. At whatever point we select, we must appreciate that a federal system always involves compromise – a compromise arising from balancing the advantages and disadvantages of the division of power.13 For instance, it is obvious that a federal system is more expensive to maintain than a unitary system of government. Yet, as Chief Justice Gleeson highlighted in his 2000 Boyer Lectures: [a] federation, it must be said, is not a model of efficiency. Then again, neither is a parliamentary democracy. If efficiency were the main objective, there would be better ways of running a country than by a federal representative democracy.14

Yet the promotion of ‘efficiency’ dominates a global world obsessed with political success and national economic performance. It is fascinating to ponder how the drafters of the Commonwealth Constitution imagined the federation developing. Did they aspire to establish a federation which would last substantially unchanged for centuries? Or did they envisage a process of continual evolution? And if so, in what direction? Towards centralism or towards more regionalism? The reference to an ‘indissoluble’ Federal Commonwealth in the preamble to the Commonwealth of Australia Constitution Act 1900 (Imp) suggests a permanent union of States was contemplated. On the other hand, a commentator in 1906 discounted that reference ‘as one of those preliminary flourishes addressed to the conscience, which are to be found in the 11 Commonwealth of Australia, Report of the Royal Commission on the Constitution (Canberra, 1929). 12 Parliament of the Commonwealth of Australia, Report from the Joint Committee on Constitutional Review (Canberra, 1959). 13 Robert R. Garran, Prosper the Commonwealth (Sydney: Angus and Robertson, 1958) 202; R. G. Atkinson, ‘Federalism in a Post-Modern World’ (2004) 16 Bond Law Review 5, 7. 14 Murray Gleeson, Boyer Lectures 2000 – The Rule of Law and the Constitution (Sydney: ABC Books, 2000) 10.

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preambles of instruments that suggest more than they accomplish’.15 At least, given the amendment procedure in s 128, they clearly did not imagine a frozen constitution. They also appreciated that the central authority in federal systems tends to grow at the expense of the States,16 and that the High Court would play a significant role as the ‘keystone of the federal arch’.17 After all, they lived at a time of profound political, social and economic change. It seems likely that some drafters, such as Alfred Deakin, would be disappointed at the lack of constitutional evolution which has occurred to date. He might have agreed with this eloquent assessment: The Commonwealth of Australia was no Phoenix arising from the ashes of revolution or disaster; it was begotten of no great surge of political idealism; it was in fact the child of as hard-headed a mariage de convenance as was ever arranged in the salons of France . . . The parent States, however, had no intention of keeping their child in swaddling clothes for ever.18

There is a strong case for saying that federation in 1901 was a fundamental step in Australia’s constitutional evolution towards the adoption of some form of unitary system. And following the success of federation in terms of achieving its objectives of a free trade economy, the provision of defence, international recognition as a polity, the regulation of interstate commercial activities, and the establishment of a national communication infrastructure, the obvious question to ask is whether a closer union between the States is now warranted. Here the arguments in favour of a unitary system need to be weighed against those in favour of the status quo or some variation in between. It cannot be said that a unitary State is inevitable – since this depends on the will of the people. Certainly, modern advances in communication and transport, as well as Australia’s embracement of multiculturalism and globalisation, strengthen Australia’s suitability as a unitary State.19 Yet the above viewpoint of a logically inevitable unitary system fails to take into account the earlier separation movements which led to the establishment of four new colonies from New South Wales: Van Diemen’s Land (1825); South Australia (1836); Victoria (1851), and Queensland (1859). Of course, other separation movements in the 19th century failed, such as in the Riverina, New England, and central and northern Queensland. Why this yearning for separation? Local control to ensure economic prosperity was the primary motivation. But it seems the yearning to separate may have been accompanied by a desire to join in some 15 P. Mc M. Glynn, ‘Secession’ (1906) 3 Commonwealth Law Review 193, 204. 16 Harrison Moore, above n 6, 621. 17 Cited by Alfred Deakin in the Second Reading Speech to the Judiciary Bill, Parliamentary Debates, Australia House of Representatives, Hansard (18 March 1902), p 10963. 18 R. Anderson, ‘The States and Relations with the Commonwealth’ in J. Else-Mitchell (ed), Essays on the Australian Constitution (2nd edn, Sydney: Law Book Company, 1961) 93. The last sentence is a reference to s 87 which for the first 10 years of federation allowed the Commonwealth to expend no more than one-fourth of its net revenue from customs and excise with the balance paid to the States. 19 Cf K. C. Wheare, Federal Government, 1947 (1st American edn, New York and London: Oxford University Press), Chapter III at 35–54.

INTRODUCTION

7

form of union, other than remaining simply as part of the British Empire.20 This is perfectly natural, given the overarching bonds of Empire and the need to promote trade. Do these same forces persist? If so, do they hold the key to the appropriate direction of federation today? These questions require a separate study. Still, in deciding the future direction of the federation and the role of the States today they do highlight the need to have some regard to the forces which led to the creation of six separate colonies in the first place. It is evident that their role is to provide for a regional form of government as part of the division of powers effected by the Commonwealth Constitution. A unique perspective is provided by Sir Robert Garran who, on the eve of his death in 1957, wrote: Some people hold that federalism is merely a transitory stage between disunion and full union. I cannot see that history gives any support to this. None of the best-known federations (for instance the United States of America, the Dominion of Canada, and the Confederation of Switzerland) seems to show any tendency towards unification. It is true that federation often tends to become closer than its cautious founders contemplated, but that seems to be merely the process of reaching something approaching an equilibrium.21

The probable outcome is more likely to be determined by centralist political forces. Consequently, the evolving political and constitutional relationship between the Commonwealth and the States holds the key to the future of the States. In particular, the most dominant force is likely to be the Commonwealth– State financial relationship. Indeed, it has been argued that the future of the States as administrative agencies was settled by the Uniform Tax Scheme of 1942.22 That is a view which must now be reconsidered in the light of the New Tax System of 1999. Also, the political environment seems less antagonistic towards the retention of the States than it was in the 1970s.23 Support for a unitary system appears to have waned, although other options which involve more regional government, or even more numerous and smaller States, are now canvassed. These options have also influenced public opinion.24 Ultimately, the only change which is likely to occur, in the absence of some seismic shift in Australia’s political or economic circumstances, is continued incremental evolution of the federal system in favour of the Commonwealth. To understand that evolution, it is necessary to identify the constitutional relationship between the Commonwealth and the States. 20 This has been suggested, at least in relation to Van Diemen’s Land and Victoria: A. J. Brown, ‘One Continent, Two Federalisms: Rediscovering the Original Meanings of Australian Federal Ideas’ (2004) 39 Australian Journal of Political Science 485, 493. 21 Garran, see n 13, 204. Sir Robert Garran was secretary to the drafting committee at the 1897 Convention and later became the first head of the Commonwealth Attorney-General’s Department. 22 Suggested by Kenneth Bailey, ‘The Uniform Tax Plan’ (1942) The Economic Record 170 and cited with approval by Bradley Selway, ‘The Federation: What Makes It Work and What Should We be Thinking About for the Future’ (2001) 50 Australian Journal of Public Administration 116, 120. 23 Brian Galligan, ‘Australian Federalism: Rethinking and Restructuring’ (1992) 27 Australian Journal of Political Science 1. 24 A. J. Brown, ‘After the Party: Public Attitudes to Australian Federalism, Regionalism and Reform in the 21st Century’ (2002) 13 Public Law Review 171.

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1.2 Constitutional relationship between the Commonwealth and the States The constitutional relationship between the Commonwealth and the States might be described in terms of these fundamental propositions: ● the Commonwealth Constitution implicitly guarantees the continued existence of the States as polities comprising a parliament, an executive and a judiciary;25 ● the States are vested with residual legislative power (s 107), some part of which is concurrent with Commonwealth power – while all Commonwealth exclusive powers are denied to the States; ● any direct or indirect inconsistency with Commonwealth law renders the State law inoperative to the extent of that inconsistency (s 109); ● the Commonwealth cannot force the States to give up any of their powers, but it can offer them financial inducements to suspend their exercise;26 ● the Commonwealth cannot hinder the States’ capacity to function as a State Government.27 Similarly, the States cannot regulate the Commonwealth’s ‘capacities’ but can regulate the transactions which the Commonwealth undertakes within those capacities;28 and ● certain Commonwealth constitutional guarantees extend as restrictions on State power by virtue of the practical indivisibility of many Commonwealth and State affairs.29

1.2.1 Commonwealth–State financial relations The Commonwealth–State financial relationship is often described as one of ‘vertical fiscal imbalance’. This means that the Commonwealth raises more by way of government taxation than required for its operations, while the States raise far less than they need for their operations. The foundation of this relationship was accepted at federation when the Commonwealth acquired from the States the exclusive power to impose customs and excise duties (s 90). In return for the States giving up their most lucrative source of taxation revenue, s 87 of the Commonwealth Constitution (the Braddon Clause) guaranteed for 10 years after federation that the Commonwealth would return to the States 75 per cent of the Commonwealth’s customs and excise duties revenue. The original clause was not confined to 10 years but this was changed in 1899 to secure approval from New 25 In Leeth v The Commonwealth (1992) 174 CLR 455, Deane and Toohey JJ at 485 derived from the Commonwealth Constitution an implication protecting the continued existence and political viability of the States. 26 South Australia v Commonwealth (First Uniform Tax case) (1942) 65 CLR 373; Victoria v Commonwealth (Second Uniform Tax case) (1957) 99 CLR 575. 27 Known as the Melbourne Corporation principle as interpreted in Austin v Commonwealth (2003) 215 CLR 185, Gleeson CJ at [24], Gaudron, Gummow and Hayne JJ at [124], Kirby J at [284]; cf McHugh J at [223]. 28 The difficult distinction adopted in Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (Henderson’s case) (1997) 190 CLR 410. 29 For example, the implied freedom of political communication. The necessity to protect Commonwealth constitutional guarantees inevitably means that those guarantees creep or leap into the State field.

INTRODUCTION

9

South Wales. At the same time, s 96 was added to empower the Commonwealth to make grants of financial assistance to any State on ‘such terms and conditions as the Parliament thinks fit’. Since federation the vertical fiscal imbalance has worsened following two further financial setbacks for the States. The first was the impact of the Commonwealth’s uniform taxation scheme introduced during the Second World War which effectively prevented the States from continuing to impose their own income tax.30 By the combined effect of a package of Acts, the Commonwealth forced the States politically to repeal their income taxes by imposing a new federal income tax equivalent to that previously levied by both the Commonwealth and the States. In return the States received a share of the total income tax raised. This scheme, although intended to operate for only a limited period after the end of the Second World War, has continued to the present. The second State setback occurred in 1997 with the High Court in Ha v New South Wales31 invalidating lucrative state licensing fees32 under s 90 as excise duties within exclusive Commonwealth power. Consequently, the States are substantially dependent on Commonwealth funding for their budgets. In the absence of any constitutional mechanism for determining the level of funding since 1910, the States have been at the mercy of the Commonwealth. And their position is further weakened because s 96 of the Constitution empowers the Commonwealth to impose wide ranging conditions on most federal funding to the States in areas well outside its prescribed legislative heads of power.33 Consequently, the State Premiers fought each year for their share of Commonwealth financial assistance by way of general revenue grants and specific purpose payments. Until 1999, this state of affairs allowed the Commonwealth to squeeze the States in real terms, aggravating the vertical fiscal imbalance.34 A new direction was taken in 1999 with the Intergovernmental Agreement on the Reform of Commonwealth–State Financial Relations.35 This has worsened the vertical fiscal imbalance,36 yet it has provided a formula for the distribution of Commonwealth revenue to the States and territories. Pursuant to that agreement, the Commonwealth agreed to return to the States, the ACT and the Northern Territory, all revenue from the Commonwealth’s goods and 30 Upheld by the High Court, see above n 26. 31 (1997) 189 CLR 465. 32 These fees accounted for 16% of the New South Wales State revenue: Martin Painter, Collaborative Federalism (Cambridge: Cambridge University Press, 1998) 58. 33 Victoria v Commonwealth (Federal Roads case) (1926) 38 CLR 399; cf the reservation expressed by Dixon CJ in Victoria v Commonwealth (Second Uniform Tax case) (1957) 99 CLR 575 at 609 that if the Court was considering s 96 for the first time, it could be contended that s 96 ‘did not admit of any attempt to influence the direction of the exercise by the State of its legislative or executive powers.’ 34 For example, 33% of Commonwealth revenue was paid to the States and territories in 1983–84, compared with 21% in 1999–2000: see Northern Territory Budget Report, Chapter 7, ‘Reform of Intergovernmental Financial Relations’, fig. 7.4 <www.nt.gov.au/ntt/financial/0001bps/bp3/shares.pdf> (accessed 25 August 2005). For other undesirable consequences, see Cheryl Saunders, ‘Federal Fiscal Reform and the GST’ (2000) 11 Public Law Review 99, 100–101. 35 In Schedule 2 to A New Tax System (Commonwealth–State Financial Arrangements) Act 1999 (Cth). 36 Leslie Zines, ‘Changing Attitudes to Federalism and Its Purpose’ in Robert S. French, Geoffrey Lindell and Cheryl Saunders (eds), Reflections on the Australian Constitution (Sydney: Federation Press, 2003) 86, 103.

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services tax since its imposition on 1 July 2000 (less administration expenses), in return for the States and territories abolishing their sales tax and other certain ‘inefficient’ taxes.37 The Commonwealth also promised to ensure, for a transitional period38 of six years, that the States and territories would be no worse off as a result of this agreement. The distribution between the States and the two territories is determined by the Commonwealth Grants Commission (CGC)39 in accordance with the principles of horizontal fiscal equalisation (HFE): State governments should receive funding from the Commonwealth such that, if each made the same effort to raise revenue from its own sources and operated at the same level of efficiency, each would have the capacity to provide services at the same standards.40

The CGC and the calculation of the distribution have been criticised.41 For instance, the distribution is calculated on the basis of the population of each State or territory – weighted according to the HFE. This means that the respective populations of New South Wales and Victoria are adjusted downwards while the population of each of the other States is adjusted upwards, in accordance with the expenditure needs and revenue capacity of each State. The other significant Commonwealth grants made under the 1999 Intergovernmental Agreement are special purpose payments (SPPs).42 These are primarily designed to advance Commonwealth policies, often in traditional State fields of responsibility such as health, education and transport. Accordingly, the vast bulk of SPPs are made to the States on conditions as ‘tied grants’, although other SPPs are made direct to local governments (for example for roads). The State SPPs comprise grants made ‘to’ the States and those made ‘through’ the States to local governments and other bodies such as non-government schools. An example of Commonwealth incursion is evident in the conditions attached to proposed tied grants to the States for schools for the 2005–08 quadrennium which require national student testing, a common age for starting school, and plain language report cards by 2010. At times, the conditions attached to SPPs are unrelated to the purpose of the grants. So far, the States and territories have unsuccessfully sought to reach agreement with the Commonwealth on a set of principles and guidelines for SPP agreements which simplify the reporting requirements, adopt output performance measures instead of input controls, and allow greater flexibility. 37 Pursuant to the 1999 Intergovernmental Agreement, the States abolished their bank account debits tax by 1 July 2005. However, the Commonwealth demanded that they abolish a range of business stamp duties which the States had only previously agreed to review. 38 The Commonwealth indicated in 2005 that it is prepared to extend this period to 30 July 2009 if business stamp duties are abolished. 39 Established on 17 July 1933 as an independent arbiter of intergovernmental financial relations. 40 Commonwealth Grants Commission, Report on State Revenue Sharing Relativities (Canberra: Australian Government Printer, 2002) 5. 41 See R. Garnaut and V. Fitzgerald, Review ofCommonwealth–StateFunding:FinalReport(Melbourne:Review of Commonwealth–State Funding, 2002). 42 They represented 13% of total Commonwealth expenditure in 2005–06. Other Commonwealth grants include the National Competition Policy Payments.

INTRODUCTION

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Another significant institution which affects the Commonwealth–State financial relationship is the Australian Loan Council. This body was originally established pursuant to the Financial Agreement of 1927 to regulate and give approval for Commonwealth and State borrowing. These are no longer its functions. Since the commencement of a new Financial Agreement in 199543 which removed all borrowing restrictions, the Loan Council is now a Commonwealth–State Ministerial Council, comprising the Commonwealth Treasurer (as chair) and the State, ACT and Northern Territory Treasurers, to coordinate public sector borrowing. Instead of restrictions, public borrowings have now become more transparent and subject to financial market scrutiny. This Commonwealth financial dominance has been a key factor in the seismic shift in power from the States to the Commonwealth since federation. As Professor Zines observed: ‘The power of the Commonwealth to tax and to make grants to the States on conditions is the power to destroy.’44 Also notable is the expansion in the scope of certain Commonwealth heads of legislative power; in particular the external affairs power (s 51(xxix)) and the corporations power (s 51(xx)). Both powers have benefited from changing circumstances. The proliferation of international treaties on wide ranging topics during the latter half of the 20th century facilitated the exercise of the external affairs power to regulate matters within traditional State areas, such as the environment, human rights and industrial relations. Similarly, recognition of the legal and financial advantages of incorporation means that most commercial activities are now carried on by corporations, which has in turn substantially increased the opportunity for the exercise of the Commonwealth’s corporations power. Areas still remain where neither the Commonwealth nor the States have the power to effectively regulate, and where a cooperative scheme may provide the solution. Accordingly, consideration is given next to the constitutional capacity to engage in cooperative schemes and the various ways this occurs.

1.2.2 History of federal cooperation The term ‘cooperative federalism’ best describes the coordinated exercise of power by the Commonwealth and States (or even by the States alone) to achieve an objective which each alone is incapable of achieving. The nature of the objective sought can vary significantly. It may be a need to avoid potentially conflicting Commonwealth and State activities, such as in relation to the management of water resources (for example, the National Water Initiative), fishing or the provision of disaster relief. Alternatively, it may be a need for legal consistency, such as in relation to road transportation and corporations.45

43 Schedule to the Financial Agreement Act 1994 (Cth). 44 Leslie Zines, The High Court and the Constitution (4th edn, Sydney: Butterworths, 1997) 349. 45 Cheryl Saunders, ‘Collaborative Federalism’ (2002) 61 Australian Journal of Public Administration 69, 71–2.

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Nevertheless, these objectives do not necessarily reflect the motivation for cooperation which may encompass a range of different considerations. A cynical perspective is that: [c]ooperation either is a process in which governments get together to enlarge the reach or scope of public power for their individual benefit, or a sham behind which the Commonwealth concentrates its power vis a vis other governments.46

The latter certainly covers State ‘cooperation’ obtained as a result of Commonwealth financial coercion, where specific Commonwealth funding is dependent on State cooperation in an unrelated field. An obvious example was the Howard Government demand in 2005 for the States to accept changes to the industrial relations system before Commonwealth funding for health was forthcoming. Unfortunately for federalism, such financial coercion is constitutionally valid.47 Other considerations encouraging cooperation include electoral pressure, economic efficiency, public safety, and even the tendency of the Council of Australian Governments (COAG) process to persuade a State not to be the only one to hold out.48 At times the Commonwealth only acts as a facilitator, such as in relation to the brokering of the Mutual Recognition Scheme between the States and the territories. Prime Minister Howard’s address to the Menzies Research Centre in April 2005, Reflections on Australian Federalism, may prove to be a pivotal moment in the history of federation. Two key statements of his speech encapsulate his government’s view of the federal system: This Government’s approach to our Federation is quite simple. Our ideal position is that the States should meet their responsibilities and we will meet ours. And our first impulse is to seek cooperation with States and Territories on national challenges where there is overlapping responsibility . . . This Government recognises that dispersal of power is basic to our philosophy. But so is leaning against an over-governed Australia – something that can become all too apparent in a federal system with eight Labor Governments. We resolve this ultimately by pursuing policies that spread power, freedom and opportunity to the suburbs, workplaces, towns and farms right across Australia.

This speech signals a significant shift in the policy of the Liberal Party of Australia on the nature and future of the Australian federal system. It advocates and justifies an expansion in Commonwealth power to protect individual freedom and to remove the economic disadvantages of lack of national uniformity, government duplication and buck-passing. No reference is made nor consideration given to the advantages of a division of power between levels of government. This is not 46 Martin Painter, The Council of Australian Governments and Intergovernmental Cooperation – Competitive or Collaborative Federalism? (Canberra: Federalism Research Centre, Australian National University, No 28, June 1995) 5. 47 See above n 26. 48 Painter, above n 46, 9.

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surprising. We cannot expect an entirely objective and rational assessment from the Commonwealth of the most appropriate federal balance for Australia.

1.2.3 Cooperative schemes The principal provisions of the Commonwealth Constitution which contemplate cooperative arrangements between the Commonwealth and the States are s 51(xxxvii) and s 51 (xxxviii). Section 51(xxxvii), the reference power, empowers the Commonwealth to enact laws with respect to matters referred to the Commonwealth by the States, and permits other States to adopt those laws as Commonwealth laws. This power is considered further below. Section 51 (xxxviii) empowers the Commonwealth at the request of all the State parliaments directly concerned to exercise a power which, at federation, was exercisable only by the United Kingdom Parliament or the Federal Council of Australasia. In contrast with the increasing use of the referral power in s 51(xxxvii), this power has only been used twice: in 1979 to reach a settlement with the States on the offshore regime;49 and in 1986 for the enactment of the Australia Act 1986 (Cth). Apart from these two powers, other more specific provisions of the Constitution either contemplate or else demand State cooperation. Cooperation is contemplated in relation to State railways whereby the Commonwealth Parliament is empowered, with State consent, to legislate with respect to the acquisition of State railways (s 51(xxxiii)) and to construct and extend State railways (s 51 (xxxiv)). State and Commonwealth cooperation is also contemplated in the creation of the Inter-State Commission50 (ss 102–4), the surrender of part of a State to the Commonwealth (s 111), in the creation of new States (s 121), and in alterations to the limits of States (s 123). On the other hand, the Constitution actually demands State cooperation in relation to several matters. It occurs first in relation to the Senate by requiring State Governors to issue writs for the election of the senators from their respective States (s 12) and by expecting State parliaments to fill casual Senate vacancies (s 15). State cooperation is also required when the Commonwealth vests federal jurisdiction in State courts (s 77(iii)), takes over State public debts (s 105), and prosecutes federal offenders who must be detained or otherwise punished by the State in which the prosecution occurs (s 120). Cooperation is also required by the guarantee in s 118 that full faith and credit be given throughout the Commonwealth to State laws, public Acts and records, and judicial proceedings.51 The Commonwealth is also expected to cooperate with the States under s 73(ii) where appeals lie to the High Court from 49 Coastal Waters (State Powers) Act 1980 (Cth). 50 Its primary purpose was to adjudicate interstate trade and commerce disputes but has only ever existed for two short periods: 1913 to 1920 and 1984 to 1989. 51 This guarantee is facilitated by the Commonwealth Parliament’s power to legislate throughout the Commonwealth with respect to: the service and execution of the judicial process of the States including court judgments (s 51(xxiv)); and the recognition of State laws, public Acts and records, and judicial proceedings (s 51(xxv)).

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State Supreme Courts and under s 119 where the Commonwealth must protect the States from invasion and, at the request of the State Executive, from domestic violence. 1.2.3.1 The reference power: s 51(xxxvii) Section 51 (xxxvii) empowers the Commonwealth Parliament to make laws with respect to: Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law.

The initiative lies with the States either to refer a ‘matter’ to the Commonwealth or to adopt a Commonwealth law enacted pursuant to such a reference by another State.52 Oddly, the Constitution omits to expressly confer on the States a power of referral or adoption; s 51(xxxvii) merely assumes its existence. While it is suggested53 both these powers are conferred implicitly by s 51(xxxvii), the power to refer a matter to the Commonwealth must fall within the general legislative power of the States to make laws for the peace, welfare and good government of their State. Yet that power cannot be the source of the power to ‘adopt’ a Commonwealth law since the effect of the adoption is to extend the Commonwealth law as a Commonwealth law to the adopting State. For decades, few referrals of power were made by the States because of uncertainties over the nature and scope of a referral. Since the 1980s though, there has been a marked increase in State referrals due to the resolution of many of those uncertainties and increasing pressure for federal cooperation. A referral of a matter to the Commonwealth can only occur by enactment of a State parliament – and presumably only for the purpose of enabling the Commonwealth to legislate with respect to that matter pursuant to s 51(xxxvii). The referral does not preclude the referring State from legislating concurrently with the Commonwealth with respect to that matter.54 Then again, any State law would be ineffective to the extent that it is inconsistent with any Commonwealth law validly enacted pursuant to that referral of power.55 The ‘matter’ referred can be defined by the State Act in terms of a subject-matter (effectively the description of a head of power), or else in terms of a text, such as a Bill scheduled to that Act. The latter form is obviously the more popular with the States. A referral of power can be made on conditions, including a limitation on the period of the referral or an 52 No provision is made for the Commonwealth to refer one of its exclusive powers to the States. In 1984, a proposed amendment to allow for an interchange of powers between the Commonwealth and the State Parliaments (Constitution Alteration (Inter-Change of Powers) Bill 1984 (Cth)) was defeated at a s 128 referendum. The 1988 Constitutional Commission recommended this amendment should still be pursued: Final Report of the Constitutional Commission, Vol 2 (Canberra: Australian Government Publishing Service, 1988) para 10.564. 53 Robert S. French, ‘The Referral of State Powers’ (2003) 31 University of Western Australia Law Review 19, 31–2; Anne Twomey, The Constitution of New South Wales (Sydney: Federation Press, 2004) 808. 54 Graham v Paterson (1950) 81 CLR 1. 55 To avoid indirect inconsistency, the Commonwealth law should expressly declare an intention not to limit the operation of any State law (see, for example, s 5E Corporations Law 2001 (Cth)).

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extension for the referral by proclamation. That limitation can be for a specified period or else for a period terminable on some event.56 An intergovernmental agreement can identify that event or those circumstances which will terminate the reference. It is clear that any Commonwealth law enacted pursuant to s 51(xxxvii) must not exceed the scope of the matter referred, and can only operate pursuant to that power in those States which have referred the matter or have later adopted the Commonwealth law. As a Commonwealth law, it is subject to whatever restrictions are applicable from the Commonwealth Constitution. The Commonwealth’s capacity to amend its law, enacted pursuant to a referral of a matter, depends on the terms of the matter referred. At times, conditions are prescribed by the State Act, such as a requirement to obtain the approval of the Premier or Governor of the State concerned,57 or even the approval of a certain number of the States which referred the same matter.58 If the matter referred is the text of a scheduled Bill, the referral usually defines the Commonwealth’s capacity to amend its enactment of that Bill. A difficult issue is the extent to which the Commonwealth can simply repeal all or part of that enactment. A power to enact a law includes the power to repeal that law, but a reference of a matter confined to a scheduled Bill would seem to preclude a partial repeal unless the referral authorises this. The Commonwealth may still rely on its other legislative powers to amend a s 51(xxxvii) law, so far as those powers support the amendment.59 Several aspects of the reference power are not entirely settled. For instance, whether a State can revoke its referral of power at any time, by enactment, irrespective of the period of the referral,60 and what is the effect of that revocation on the Commonwealth enactment made pursuant to the referral. It is arguable that the States can revoke the referral, given their incapacity to abdicate legislative power. It is also arguable that the effect of a revocation is not only to terminate the referral of power to the Commonwealth, but it also terminates the operation of any Commonwealth law enacted in reliance on that referral.61 An alternative argument is that State legislation revoking the reference would be rendered ineffective by s 109 for being inconsistent with the Commonwealth legislation enacted pursuant to the original reference.62 Even where the Executive is statutorily authorised to revoke the referral, an Executive act is similarly liable to 56 R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 at 226. For example, termination can occur by proclamation of the State Governor as provided by s 5 of each State’s Terrorism (Commonwealth Powers) Act 2002. 57 This mechanism was adopted for the referral of State power over mutual recognition. To be effectively binding, such approvals need to be prescribed by the State Act making the referral, rather than by an intergovernmental agreement. 58 See, for example, s 100.8 of the Criminal Code (Cth) in relation to the terrorism reference – cited by Twomey, above n 53, 814. 59 Ibid 813. 60 This issue was left open in R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207, although the judgment of the Court at 226 recognised the principle that what a parliament validly enacts, it may repeal. Cf G. Moens and J. Trone, Lumb and Moens’ The Constitution of the Commonwealth of Australia Annotated (6th edn, Sydney: Butterworths, 2001) 175–6; Twomey, above n 53, 809. 61 Twomey, above n 53, 811; cf French, above n 53, 33. 62 Twomey, ibid 810.

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s 109 inconsistency.63 To avoid these difficulties, State referrals of power should usually be for a specified period of time, with the Executive empowered to extend the referral by proclamation.64 The position is, of course, somewhat different where a State merely ‘adopts’ a Commonwealth law enacted pursuant to s 51(xxxvii). This limb of the paragraph allows a State to opt out of making a reference of a matter in order to witness the impact of the Commonwealth law in the referring State or States before deciding to join in. Yet, joining in requires the State to adopt the Commonwealth law which thereby applies as a Commonwealth law within the adopting State. It is not adopted as a State law.65 Presumably, the adoption must be by State enactment. Amendments to the Commonwealth law do not extend automatically to an adopting State unless that State enactment also adopts any prospective Commonwealth amendments. In the absence of such provision, the adopting State needs to specifically adopt the amendment. If it declines to do so, it has been suggested that the original Commonwealth law might cease to operate even in the adopting State.66 As noted earlier, the power to adopt a Commonwealth law as a Commonwealth law can only derive from the Commonwealth Constitution itself. The adoption power must include the power to revoke the adoption. Does it include the power to adopt subject to conditions including a period of time? It seems to follow that the adoption will cease on the termination of the last remaining referral of power.67 To this extent, adoption is more vulnerable than referral, although the opposite is the case in relation to the impact of Commonwealth amendments. 1.2.3.2 History of State referrals The frequency of references of State matters to the Commonwealth has increased in the last decade as concerns over their effect on State power subsided. Few references occurred during the first half of the 20th century except during war-time.68 More recently, references have been made in relation to meat inspection (1983), family law (1986), railways (1991), State banking (1992), poultry processing (1993), and de facto relationships (2003). The most significant recent referrals have been in relation to mutual recognition in 1992,69 the corporations power in 2001,70 and terrorism71 in 2002. Usually, the reasons for those referrals are either to facilitate uniform national standards (either to provide consistency or 63 Cf ibid. 64 Ibid. 65 French, above n 53, 31; cf J. A. Thomson, ‘Adopting Commonwealth Laws: Section 51(xxxvii) of the Australian Constitution’ (1993) 4 Public Law Review 153, 156. 66 Cf French, ibid 33. 67 Twomey, above n 53, 813. 68 For example, air navigation in 1920. See Twomey, above n 53, 807–8. 69 Mutual Recognition Act 1992 (Cth) enacted after referrals from New South Wales and Queensland, and adopted by the other States, the ACT and the Northern Territory. 70 Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth) enacted after referrals from all States. 71 Each State’s Terrorism(Commonwealth Powers) Act2002 s 4 referred to the Commonwealth two matters: (a) the text of Part 5.3 of the Commonwealth Criminal Code (terrorism offences); and (b) the express amendment of those provisions. But the referral was only so far as those provisions went beyond the scope of Commonwealth power and were within State power. Further referrals of power to deal with suspected terrorists were proposed in 2005.

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to avoid conflicts) or else to effectively regulate a matter which was incapable of being effectively regulated by individual Commonwealth, State and territory enactments. Yet many instances of Commonwealth requests for State referral have been refused. The most spectacular is the refusal in 2005 by all States (except Victoria)72 to refer their industrial relations powers to the Commonwealth. Consequently, the Commonwealth proposes to establish a national industrial relations system with substantial reliance on the corporations power (s 51(xx)). The constitutional validity of this proposed system is being challenged by the States. 1.2.3.3 Other legislative mechanisms of federal cooperation Other significant forms of cooperation derive from Commonwealth and State agreement. These depend on the cooperative utilisation of Commonwealth and State power to achieve an outcome which neither level of government is capable of alone. This is possible provided the Commonwealth and the States legislate within the scope of their respective power.73 This was accepted by the High Court in R v Duncan; Ex parte Australian Iron and Steel Pty Ltd74 and affirmed in Hughes v The Queen.75 In Duncan, Commonwealth and New South Wales legislation76 authorised the Governor-General and the New South Wales Governor to enter into an arrangement to establish a Coal Industry Tribunal which was empowered to resolve all industrial disputes within the coal trade. Commonwealth authority covered the resolution of disputes beyond the State, while New South Wales power covered disputes within the State. The creation of this tribunal was unsuccessfully challenged on the ground that the Commonwealth and a State could not pool their respective powers in a single authority. Gibbs CJ considered this argument as ‘absurd’: [N]o reason is provided by constitutional enactment or constitutional principle why the Commonwealth and a State or States should not simultaneously confer powers on one person and empower that person to exercise any or all of those powers alone or in conjunction . . . It would be an absurd result, for example, if the Commonwealth and a State were unable, by complementary legislation, to empower an officer of police to enforce both the laws of the Commonwealth and the laws of the State, or to give power to a fisheries inspector to act in Australian waters both within and beyond the territorial limits, or to authorise a public servant to collect State taxes as well as Commonwealth taxes.77 72 Victoria referred its power to the Commonwealth by the Commonwealth Powers (Industrial Relations) Act 1996 (Vic). 73 See, for example, R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 and Re Cram; Ex parte NSW Colliery Proprietors’ Association Ltd (1987) 163 CLR 117. 74 R v Duncan; ibid. 75 Hughes v The Queen (2000) 202 CLR 535 at 557–8 per joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Kirby J at 567–8. 76 Each enacted in substantially the same terms as Coal Industry Act 1946. 77 R v Duncan, above n 73, 535 at 553, with whom Murphy J and Wilson and Dawson JJ agreed. See also Mason J at 560 and Brennan J at 579.

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Deane J observed that such cooperation between the Commonwealth and the States is a ‘positive objective of the Constitution’.78 However, the High Court in rejecting any implied constitutional principle of intergovernmental cooperation in Re Wakim; Ex parte McNally,79 made it clear that neither the Commonwealth nor the States can act beyond the scope of their respective legislative power to overcome any deficiency in constitutional power. For this reason, the referral and adoption power in s 51(xxxvii) provides a firmer constitutional foundation for a uniform Commonwealth law. As a Commonwealth law, it also has the benefits of not being undermined by subsequent State variations, of attracting the support of Commonwealth executive power, and of being enforceable by federal courts. 1.2.3.4 Alternatives to the reference power Apart from State referral of power to the Commonwealth and State adoption of Commonwealth law, in each case pursuant to s 51(xxxvii), the following legislative arrangements are constitutionally possible: ● A State or territory provides a template Act which is copied by all other jurisdictions.80 This occurred in respect of the National Electricity Laws which followed the National Electricity (South Australia) Act 1996 (SA). ● Pursuant to an intergovernmental agreement, all jurisdictions enact uniform legislation – often in the terms of a Bill scheduled to the agreement or in the terms of an existing Act.81 ● The States enact their own laws in the same terms as a Commonwealth law – the template model. The Commonwealth law is often enacted pursuant to the territories power in s 122. Such a scheme may also include State conferral of administrative powers in a Commonwealth authority – the bucket model.82 State adoption of the Commonwealth template model for the Corporations scheme in 1991 was upheld by the High Court in Byrnes v The Queen.83 The Court rejected the argument that this involved an invalid abdication of legislative power by the States, since the States retained the power to revoke the referral of power.84 The vesting of State power in a Commonwealth authority, the bucket model, was also approved to a degree in Hughes v The Queen85 which upheld the vesting of 78 R v Duncan, above n 73, 535 at 589. 79 See Re Wakim; Ex parte McNally (1999) 198 CLR 511 at [21], [55] and [113]. 80 Cheryl Saunders, ‘Administrative Law and Relations Between Governments: Australia and Europe Compared’ (2000) 28 Federal Law Review 263, 269. 81 For example, the Competition Code Agreement 1995 required all States and territories to enact a Bill in terms of Part IV of the Trade Practices Act 1974 (Cth). 82 An extensive list of Commonwealth legislation giving effect to thevesting of StatepowersinCommonwealth officials is found in the judgment of Kirby J in R v Hughes (2000) 202 CLR 535 at 580 fn 194. 83 (1999) 199 CLR 1 at [4]. 84 The Court merely relied on, inter alia, the decision in Cobb & Co Ltd v Kropp [1967] AC 141 and Gould v Brown (1998) 193 CLR 346 at 485–7. 85 (2000) 202 CLR 535.

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power in the Commonwealth Director of Public Prosecutions (DPP) to prosecute certain State offences under the Western Australian Corporations Law. While a State is unable unilaterally to vest power in a Commonwealth official,86 this was achieved by a combination of State87 and Commonwealth legislation. The Commonwealth legislation88 authorised regulations to vest in the Commonwealth DPP the powers purportedly conferred by the State Act. This substantive effect of the Commonwealth legislation and the regulation89 made there was upheld – for the purposes of the three prosecutions in that case – under the Commonwealth’s trade and commerce power in s 51(i) and its external affairs power in s 51(xxix),90 because the prosecutions related to the making of investments in the United States. The joint majority judgment relied on these two heads of Commonwealth power because the effect of the Commonwealth and State legislation was to impose on the DPP a duty to prosecute under State law.91 Although the Court left the issue open, it suggested that whenever the Commonwealth allows a State duty to be imposed on a Commonwealth official, this must be authorised by an appropriate head of Commonwealth power. Even where no such duty is imposed, the joint judgment raised further uncertainty in suggesting such a duty might be a constitutional imperative or requirement.92 Again, the court left that issue open. The problem with that suggestion is that such a Commonwealth power is unlikely to be found to support the imposition of such a duty; it will most likely be a State power, since that was the reason for the cooperative scheme in the first place. If the suggestions in Hughes prevail, this would severely restrict the opportunity for bucket-type collaboration between the Commonwealth and the States.93 In response to concerns over the National Crime Authority and the Agricultural and Veterinary Chemicals Scheme, State legislation was enacted to retrospectively deem Commonwealth action taken as that of the State.94 The counter-argument is that the bucket model can work without a duty being imposed by the Commonwealth law. The Commonwealth can use its incidental power to permit its officials to perform State functions and accept State appointments in addition to their 86 Ibid at 553 per joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Kirby J at 569. 87 Corporations (Western Australia) Act 1990 (WA) ss 29 and 31(1). 88 Corporations Act 1989 (Cth) s 47(1). 89 Corporations (Commonwealth Authorities and Officers) Regulations 1990 (Cth) Reg 3(1)(d). 90 Hughes v The Queen, above n 75 at 555–6; Kirby J at 582. 91 This duty was derived from s 33 of the Corporations (Western Australia) Act 1990 (WA) which deprived its officials of the power to prosecute – thereby rendering the power exclusive to the Commonwealth DPP. Such a duty followed to avoid an abdication of power by the State: see Hughes v The Queen, above n 75 at [33]. 92 At least where the power becomes vested in the Commonwealth exclusively: ibid [33–4] to avoid an abdication of State power. 93 Dennis Rose, ‘Commonwealth–State Co-operative Schemes after Hughes: What Should be Done Now?’ (2002) 76 Australian Law Journal 631, 632; see B. M. Selway, ‘Hughes Case and the Referral of Powers’ (2001) 12 Public Law Review 288. 94 Co-operative Schemes (Administrative Actions) Act 2001 (NSW). See Ian Govey, ‘Contemporary Federalism: Challenges to Commonwealth/State Cooperation’ in J. S. Jones and J. McMillan (eds), Public Law Intersections: Papers presented at the Public Law Weekend – 2000 and 2001 (Canberra: Centre for International and Public Law, 2003) 130, 142.

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Commonwealth appointments.95 Such statutory permission96 would fall within the incidental scope of the Commonwealth power pursuant to which its officials were acting for the Commonwealth. Alternatively, Professor Zines has argued that such consent should simply be regarded as implied and inherent in the federal system.97 1.2.3.5 Criticism A risk of many Commonwealth and State cooperative schemes is ‘executive federalism’;98 that is, the executive branches formulate and manage these schemes to the exclusion of the legislatures. While many schemes require legislative approval, the opportunity for adequate legislative scrutiny is often lacking, with considerable executive pressure to merely ratify the scheme without question.99 Thereafter, in an extreme case, the power to amend the scheme may even rest entirely with a joint executive authority. Other instances of concern include, for example, where a government lacks the authority to respond to or the capacity to distance itself from the actions of a joint Commonwealth and State regulatory authority. Public scrutiny is also hampered when the details of such schemes are not made publicly available. For these reasons, a recurring criticism, at least since the Report of the Coombs Royal Commission in 1977,100 is the tendency of cooperative arrangements to undermine the principle of responsible government.101 A further concern is the availability of judicial review in respect of the decisions and actions of these joint authorities.102 Certainly, political responsibility must still be taken by each government for both joining and remaining in the cooperative scheme. Some blurring of accountability is an inevitable disadvantage of cooperation – a disadvantage usually outweighed by the advantages of entering this scheme.103 But greater scrutiny is possible by an enhanced and investigative role for all Commonwealth, State and territory legislatures:

95 Hughes v The Queen, above n 75 at 553. However, Kirby J at 583 did not distinguish between duties and mere powers but doubted whether the incidental power would support the vesting of State powers, the exercise of which would ‘seriously affect the liberty and property rights of individuals’. 96 This is required because the Commonwealth law effects the conferral of power and authorises the expenditure of Commonwealth resources in the exercise of State functions. Additional reasons would be the need to avoid s 109 inconsistency and any possible Commonwealth immunity: see Graeme Hill, ‘Revisiting Wakim and Hughes: The Distinct Demands of Federalism’ (2002) 13 Public Law Review 205. 97 Zines, above n 36, 86, 100. 98 Originally coined by Donald Smiley to describe the Canadian position: Campbell Sharman, ‘Parliaments and Commonwealth–State relations’ in J. R. Nethercote (ed), Parliament and Bureaucracy (Sydney: Hale and Iremonger, 1982) 281, fn 3. 99 See, for example, Phillip Pendal, ‘Intergovernmental Agreements, Uniform Legislation and the Parliamentary System’, Chapter 21 in Martin Painter and Peter Carroll (eds), Federalism and Microeconomic Reform (Canberra: Federalism Research Centre, 1995) 255 at 256–7. 100 See the Report of the Royal Commission on Australian Government Administration (Canberra: Australian Government Publishing Service, 1977) 375–9. 101 John Uhr, ‘Parliament and the political management of federalism’, Chapter 22 in Painter and Carroll, above n 99 Painter, above n 46, 11. Cf George Williams, ‘Cooperative Federalism and the Revival of the Corporations Law: Wakim and Beyond’ (2002) 20 Company and Securities Law Journal 160, 163; Final Report of the Constitutional Commission 1988 Vol 1, 95–7. 102 Saunders, above n 80; Hill, above n 96, 221. 103 Zines, above n 44, 271.

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First, they provide the legislative underpinning for the whole process; secondly, they provide a forum for discussion of intergovernmental matters and for asking questions about them from the major executive participants; and thirdly, they have an investigative role which may be used to study the need for, and the goals of, intergovernmental contact, as well as the performance of the relevant agencies, and the appropriateness of existing intergovernmental arrangements.104

Both Professor Saunders and Queensland’s Electoral and Administrative Review Commission (EARC) in 1992105 advocated that parliamentary scrutiny committees undertake these functions.106 Dr Uhr also suggested the engagement of the auditors-general.107 The former suggestion has been followed in some States.108 Only in Western Australia is there a specific parliamentary committee established to review cooperative federalism-related issues – the Uniform Legislation and General Purposes Committee of the Legislative Council.109 This committee is required to review and report on Bills which ratify or give effect to an intergovernmental agreement to which the Western Australian Government is a party, and on Bills which introduce a uniform scheme or laws throughout Australia (SO 230A). However, the committee is excluded from considering the policy of these Bills (SO 230A(5)). In Victoria, both Houses jointly established the Federal– State Relations Committee in May 1996 which produced detailed reports on intergovernmental relations until the Committee was terminated in 2001.110 More fundamental than these considerations is the need for continual assessment of the economic benefits of cooperative schemes. Some have been questioned on this score.111 On the other hand, globalisation may require further schemes to achieve national uniform laws.112

1.2.4 Intergovernmental institutions and agreements While the Commonwealth Constitution contemplates a range of agreements between the Commonwealth and the States, it neither establishes nor makes provision for any intergovernmental institutions. It leaves the formation of such institutions and intergovernmental agreements to the governments themselves. Until 1999, the principal intergovernmental institution was the annual

104 Sharman, above n 98, 284. See also Hill, above n 96, 221. 105 Electoral and Administrative Review Commission, Report on Review of Parliamentary Committees (Brisbane: EARC, 1992) 184. 106 See Uhr, above, n 101, 272–4. 107 Ibid 274. 108 The Scrutiny Committees of the New South Wales, Queensland and Victorian Parliaments review Bills to determine whether they, inter alia, inappropriately delegate legislative power, or insufficiently subject the exercise of legislative power to parliamentary scrutiny: Legislation Review Act 1987 (NSW) s 8A(1); Parliamentary Committees Act 2003 (Vic) s 17(a); Parliament of Queensland Act 2001 (Qld) s 80. 109 Established by Schedule 1 of the Legislative Council Standing Orders. 110 See, for example, the Second Report, Australian Federalism: The Role of the States (October 1998) and the Third Report, Federalism and the Role of the States: Comparisons and Recommendations (May 1999). 111 Painter, above n 46, 12–13. 112 Govey, above n 94, 130, 144; Cheryl Saunders, ‘Dividing Power in a Federation in an Age of Globalisation’ in C. Sampford and T. Round (eds), Beyond the Republic – Meeting the Global Challenges to Constitutionalism (Sydney: Federation Press, 2001) 129.

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Premiers’ Conference113 which originated before federation.114 Formal constitutional recognition of intergovernmental institutions and agreements seems unnecessary. The flexibility which has existed since before federation to allow for the adoption of institutions as required, probably promotes cooperative federalism more effectively than any constitutional directive would. Currently, the key intergovernmental institution is the Council of Australian Governments (COAG) which has assumed the role of the Premiers’ Conference. Under that body is the Treaties Council and a string of Ministerial Councils on wide ranging topics which advise COAG and often are empowered to monitor intergovernmental authorities. Beneath these key bodies are numerous other intergovernmental institutions whose members discuss and collaborate on specific issues. As government regulation and bureaucracy expands, the level of federal dialogue inevitably increases.115 1.2.4.1 Council of Australian Governments The peak body for cooperative federalism is COAG. This Council comprises the Prime Minister, all State Premiers, the Chief Ministers of the ACT and the Northern Territory (not Norfolk Island), and the President of the Australian Local Government Association.116 The Prime Minister chairs COAG and the Secretariat is located within the Department of the Prime Minister and Cabinet. The Council meets at least annually, although issues can be considered between meetings by correspondence. Its role is ‘to initiate, develop and monitor the implementation of policy reforms that are of national significance and which require cooperative action by Australian governments’.117 COAG was established in 1992 to promote the Commonwealth’s objective of restructuring the Australian economy to make it more internationally competitive. This could only be achieved with the cooperation of the States. Prime Ministers Hawke and Keating succeeded in turn to convince the States of the benefits to flow to them if they cooperated. COAG was successful in this economic objective, providing the stimulus and forum for intergovernmental agreements on a range of topics, such as the National Competition Policy implementing the Hilmer recommendations, the Mutual Recognition Scheme, and the National Road Transport and Rail Freight schemes. Usually, actual agreement is achieved through meetings of government officials instigated by COAG, whether these be of ministerial councils, intergovernmental committees or taskforces. Considerable formal and informal interchange occurs between all levels of government at this individual official level. The mere 113 Supplemented from 1992 by the Special Premiers’ Conferences. 114 Zines, above n 36, 86, 99, fn 49 refers to the long practice of colonial consultation on policy and the need for uniform legislation. 115 Interestingly, the demise of the Australian Constitutional Conventions in 1988 has meant that no forum for constitutional reform currently exists. 116 At the 3 June 2005 meeting, the Chief Minister of the Northern Territory did not attend as her government had just called a general election for 18 June and was in caretaker mode. 117 COAG’s website <www.coag.gov.au/about.htm> (accessed 25 August 2005).

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existence of COAG encourages this federal dialogue. It is generally at this level where the hard bargaining and compromising occurs, leaving COAG merely to rubber stamp any agreement reached.118 However, final agreement is reached at the level of COAG where cooperative legislation is required or on other important issues. Ultimately, all intergovernmental agreements are signed off by the members of COAG. Such agreements are usually adopted to establish the terms of proposed cooperative legislation, although they may be dispensed with when an urgent legislative response is needed.119 A communiqu´e is issued at the conclusion of each meeting in terms which reflect only the level of agreement reached.120 The continued existence and achievements of COAG depend on the goodwill of the Prime Minister, Premiers and Chief Ministers. The lack of any strict constitutional foundation is not of concern. Indeed, it ensures that the forum for heads of government can easily evolve as required, as COAG has by assuming the role of the Premiers’ Conferences which ended in 1999. The apparent spirit of cooperation which emerged from the June 2005 COAG meeting suggests that there remains a political will to work together in the national interest on many diverse topics.121 This was surprising, given the stormy response the Commonwealth received from the States immediately before COAG met, on its plan to enact a national industrial relations system, even if the States refuse to refer their powers. The communiqu´e included merely in three lines the Commonwealth’s proposal to work towards achieving that system by referral of State power, and noted that the ‘States advised that they will not refer their powers’. The civility of this text is in marked contrast to the political rhetoric which preceded and followed their meeting.122 1.2.4.2 Treaties Council The Treaties Council was established in 1996 by COAG to have an advisory function in relation to treaties and other international instruments ‘of particular sensitivity and importance to the States and Territories’. Comprised of the Prime Minister, Premiers and Chief Ministers of the ACT and the Northern Territory, the Treaties Council usually meets as part of COAG. Through the Council, in accordance with the Principles and Procedures for Commonwealth–State Consultation on Treaties, the Commonwealth consults with the States and the territories in relation to those treaties and instruments which have the potential to affect their finances or current or future policy decisions, or those that will need their participation for implementation. This process of consultation begins as soon 118 Painter, above n 46, 8. 119 This occurred in response to the need to impose controls on handguns and on the use of human embryos. 120 See, for example, the communiqu´ e issued 3 June 2005: <www.coag.gov.au/meetings/030605/ index.htm> (accessed 25 August 2005). 121 The communiqu´ e of 3 June 2005 included the following topics for further investigation and/or collaboration: skills shortages/apprenticeships; a coordinated health system; a national system of regulation for ports and export-related infrastructure; review of the National Competition Policy; implementation of the National Water Initiative; native vegetation; Indigenous issues, and child pornography. 122 See opinion article by John Brogden, ‘Government Club Overdue for Reform’ in The Australian, 24 June 2005, 19.

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as the Commonwealth enters into discussion about joining a treaty and continues through international negotiation, signature, ratification and implementation. Provision is made for State and territory representatives to be included in the Commonwealth delegation in any international negotiation, primarily for making representations to the Commonwealth on their position. The Standing Committee of Treaties, comprised of senior Commonwealth, State and territory officials, identifies which treaties and instruments are of sensitivity and importance to the States and territories. 1.2.4.3 Ministerial councils Since federation, there have been ministerial councils for the exchange of information and to assist in the resolution of federal conflicts.123 Their pivotal role in the latter reflects the absence of any comparable mechanism in the Commonwealth Constitution to resolve such conflicts. The Senate soon became incapable of performing that role when it divided on party lines, while the High Court can only resolve legal disputes. COAG has tried to curtail the proliferation of ministerial councils. They are required to be made up of ministers from more than four jurisdictions.124 New ministerial councils and their terms of reference are formally agreed to by the heads of government. These councils usually meet annually ‘to facilitate consultation and co-operation between governments, to develop policy jointly, and to take joint action in the resolution of issues which arise between governments in the Australian federation.’125 Broad protocols and general principles for the operation of ministerial councils have been formulated. One criticism of ministerial councils has been the need to develop a less Commonwealth-focused secretariat to ensure the Commonwealth does not control their agenda.126 Backing-up each ministerial council is a standing committee of officials, such as the Standing Committee of Attorneys-General (SCAG). 1.2.4.4 Intergovernmental agreements Most cooperative federal schemes involve a formal intergovernmental agreement between the Commonwealth, the States and the territories concerned. Although not usually legally binding,127 they record the essential terms of the agreement: its purpose, duration, proposed legislation, institutional arrangements, and procedures for dispute resolution, amendment and review. Current intergovernmental agreements include: Natural Gas Pipelines (1997); National Action Plan for Salinity and Water Quality (2000); Food Regulation Agreements (2000 and 2002); Memorandum of Understanding National Response to a Foot 123 A compendium of ministerial councils is available on the website of COAG <www.coag.gov.au/ ministerial councils.htm> (accessed 25 August 2005). 124 Since 2001, the Guidelines for councils begins with a ‘presumption’ against the creation of new ministerial councils (para 1). 125 Foreword to Department of Prime Minister and Cabinet, Commonwealth–State Ministerial Councils – A Compendium (Canberra: Australian Government Publishing Service, April 2005). 126 Peter Beattie MP, Governance in Australia’s System of Federalism (Queensland Government, September 2001) 15. 127 See South Australia v Commonwealth (1962) 108 CLR 130.

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and Mouth Disease (FMD) Outbreak (2002); Corporations Agreement (2002); Research Involving Human Embryos and Prohibition of Human Cloning Agreement (2004); and Intergovernmental Agreement on Surface Transport Security (2005). There has been criticism of the difficulty in accessing them.128 Often they establish a ministerial council and/or provide for the creation of some other joint body. A statutory body may be established either in the bucket mode or else as a joint authority. The Australian Securities Commission was established as the former; the National Rail Freight Corporation was established with the Commonwealth and State governments as shareholders. Alternatively, the body might be established as a private corporation, such as the National Electricity Code Administrator. 129

1.2.5 Reform In the absence of a renegotiation of the federal compact, only limited constitutional reform appears necessary to promote the collaborative federal arrangements relied on so far. That reform would involve conferral on the Commonwealth of the power to permit the vesting of State judicial power in federal courts (overturn Wakim),130 and clarification of the power to permit the vesting of State administrative power in federal officials (overturn Hughes).131 COAG could disappear as quickly as it appeared. But its legacy would remain. It has demonstrated the benefits of cooperation between all components of the federation, including the capacity of the States and territories together to address and resolve common concerns. Even if COAG disappeared, the prospect of future benefits will ensure continued federal dialogue in some form. Measures will always be needed to avoid unnecessary duplication of services. A study in 2005 estimated that duplication in the areas of health and education costs Australia $2.4 billion a year, and that reforms to public order and safety, and housing and community amenities, would save $1.1 billion annually.132 An alternative approach is that proposed in South Africa by the Intergovernmental Relations Framework Bill 2005. This Bill is designed to give effect to s 41(2) of the Constitution of the Republic of South Africa which requires an Act of parliament to establish or provide for structures and institutions to promote and facilitate intergovernmental relations, and to provide for appropriate mechanisms and procedures to facilitate the settlement of intergovernmental disputes. The latter objective is to be achieved by the adoption of alternative dispute resolution procedures to resolve jurisdictional disputes between all levels of government. 128 Cheryl Saunders, ‘A New Direction for Intergovernmental Arrangements’ (2001) 12 Public Law Review 274, 281. 129 Established as a corporation under the Corporations Act 2001 and limitedbyguarantee to administerthe national electricity market. 130 Re Wakim; Ex parte McNally (1999) 198 CLR 511. 131 R v Hughes (2000) 202 CLR 535. 132 Mark Drummond, University of Canberra, Australian Financial Review, 14 March 2005, 5.

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The Bill addresses the first of the s 41(2) objectives by establishing a matrix of forums to promote cooperative action. It establishes: at the national level, the President’s Co-ordinating Council (a statutory form of COAG); at the provincial level, a Premiers’ intergovernmental forum; and at the municipality level, a district intergovernmental forum. The Bill also provides for the establishment of other intergovernmental bodies to deal with specific functional areas. In addition to interprovincial and intermunicipality forums, national intergovernmental forums can be established by a national Cabinet minister, and provincial intergovernmental forums can be established by a Premier of a province. Although not vested with any executive power, the primary purpose of these various forums is to facilitate intergovernmental consultation and discussion. Specifically, they are to facilitate coordination in the implementation of policy and legislation, deliver coherent government, effectively provide services, monitor the implementation of policy and legislation, and to realise national priorities.133 They are also intended to provide advice to all heads of government from the mayors to the president, and may adopt resolutions and recommendations which will have political effect. With this structure of cooperative federalism in place, the challenge will be to ensure that it actually delivers benefits.

1.2.6 Secession Secession of one or more States from the federation is a prospect viewed by most Australians with horror. This psychological reaction to a failure of federalism attests to the strength of the national bonds between the denizens of the States and to the importance attached to Australian citizenship. Secession is still a matter which raises distinct constitutional issues. While at times threats to secede have been made by State leaders,134 it has only been seriously sought on one occasion. This occurred in 1934 when Western Australia petitioned the United Kingdom Parliament to enact legislation to amend the Commonwealth of Australia Constitution Act 1900 (Imp) to remove the State from the Commonwealth of Australia. This petition followed a referendum of the people of Western Australia on 8 April 1933, when over 66 per cent approved secession. Two other States were sympathetic, Tasmania and South Australia, the latter even issuing a threat to secede.135 The basis for this discontent, especially in Western Australia, was the difficulty in addressing the economic crisis following the Great Depression. The outcome for Western Australia was that the United Kingdom Parliament refused to accept the petition without the consent or request of the Commonwealth, since it concerned an alteration to the Commonwealth Constitution.136

133 Clause 3. 134 For example, during the era of Premier Bjelke-Petersen in Queensland in the 1970s and 1980s. 135 Gregory Craven, Secession: the Ultimate States Rights (Melbourne: Melbourne University Press, 1986). 136 Following the recommendation of the Report of the Joint Committee of the House of Lords and the House of Commons Appointed to Consider the Petition of the State of Western Australia, HL 52, 75, HC 88 1935.

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What, then, is the constitutional position on secession? First, no provision exists in the covering clauses of the Commonwealth of Australia Constitution Act 1900 (Imp) or in the Commonwealth Constitution permitting unilateral withdrawal of a State from the federation. Consequently, a clear implication can be drawn from that omission, as well as from certain covering clauses, that any attempt by a State to enact legislation to secede would be held invalid by the High Court.137 Professor Craven has persuasively argued that such an attempt would be inconsistent and repugnant to covering clauses 3 and 4 which relevantly provide: 3. It shall be lawful for the Queen with the advice of the Privy Council, to declare by proclamation that, on and after a day therein appointed, not being later than one year after the passing of this Act, the people of New South Wales, Victoria, South Australia, Queensland and Tasmania, and also, if Her Majesty is satisfied that the people of Western Australia have agreed thereto, of Western Australia, shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia . . . 4. The Commonwealth shall be established, and the Constitution of the Commonwealth shall take effect on, and after the day so appointed . . .

By clause 3 the States are united in a Federal Commonwealth and, given the lack of any sunset clause there, must be taken as having been united permanently. Professor Lumb rejected this view by arguing that the legal effect of clause 3 occurred at federation and now has no continuing effect. That view is difficult to reconcile with the language of clause 3 which gives it continuing effect.138 Nor is it consistent with the statement in the preamble to the Commonwealth of Australia Constitution Act 1900 (Imp) that the peoples of the colonies ‘humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth’. While the terms of a statutory preamble have not the force of law, they can be relied on to assist in the resolution of any ambiguity in the statutory provisions. To that extent, the sentiments in the preamble – including the invocation of God – reinforce the continuing effect of clause 3 as binding into futurity. If unilateral secession is not contemplated by the Commonwealth Constitution, another option was to ask the United Kingdom Parliament to assist a State to secede by amending the Commonwealth Constitution. This is what Western Australia did in 1934. However, by virtue of the renunciation of United Kingdom legislative power over Australia by s 1 of the Australia Acts 1986, this is no longer possible. Therefore the only lawful basis on which a State might now leave the federation is by an amendment to the Constitution pursuant to s 128. But does s 128 encompass such a change? And can a s 128 amendment amend the imperial covering clauses?139 The position on both these issues is debatable. On its face, 137 Ibid at para 6, p xviii recognised no power for a State to secede. 138 Gregory Craven, ‘The Constitutionality of the Unilateral Secession of an Australian State’ (1984) 15 Federal Law Review 123, 140. 139 Report of the Joint Committee, above n 136, para 6, p xviii expressed the view that the Commonwealth lacked this power.

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s 128 appears confined to the amendment of the Constitution itself and does not extend to the covering clauses or the preamble.140 On the other hand, it is argued that this fails to take into account the effect of Australia’s independence since the Australia Acts 1986 so that s 128 can be relied on to amend the covering clauses.141

1.3 Role of the territories There is tremendous variety in the range of Commonwealth territories, all of which are subject to plenary Commonwealth power under s 122 of the Commonwealth Constitution. Of the 10 territories, six have permanent residents, and of these only three have been granted self-government: the ACT, Northern Territory and Norfolk Island. The other three inhabited territories are Jervis Bay, Christmas Island, and the Cocos (Keeling) Islands. Despite an initial view that none of the territories is part of the federal system, this disjointed view is giving way to a greater appreciation of their position under the Commonwealth Constitution. This has occurred at least, in part, in recognition of the need to accord their residents, so far as possible, equal rights and status as Australian citizens. For the ACT and the Northern Territory, this has involved recognition equivalent to the States in, for example, COAG and other intergovernmental forums, as well as in the 1999 Intergovernmental Agreement on the Reform of Commonwealth–State Financial Relations where they are included as ‘States’.142 The constitutional future of each territory is separately considered in Chapter 12. Essentially, the Northern Territory is the only territory which may achieve statehood. It has the geographical size to warrant statehood and its economy is similar to that of Tasmania. The ACT must remain a territory as the seat of government under s 125 of the Commonwealth Constitution, while the other territories lack the size or economic capacity to justify statehood. Their future most probably entails possible incorporation in a State. Of course, their destiny is linked to that of the States, so that any change in the number and size of the States is likely to affect the territories. Moreover, the primary reasons for the original Commonwealth acquisition of the territories – defence, fishing and scientific research – do not depend on territory status. At the time of their acquisition as a Commonwealth territory during the first half of the 20th century, Commonwealth capacity to engage in those activities outside s 122 would have been in doubt in most cases. That is no longer the case today. Each of those identified 140 Stephen Gageler and Mark Leeming, ‘An Australian Republic: Is a Referendum Enough?’ (1996) 7 Public Law Review 143, 148–9, 153. 141 Geoffrey Lindell and Dennis Rose, ‘A Response to Gageler and Leeming: “An Australian Republic: Is a Referendum Enough?”’ (1996) 7 Public Law Review 155, 159–60. But it is suggested that s 15(3) Australia Acts 1986 be used in conjunction with s 128 so that the constitutional amendment empowers the Commonwealth to alter the covering clauses. See also G. J. Lindell, ‘Why is Australia’s Constitution Binding? The Reasons in 1900 and Now, and the Effect of Independence’ (1986) 16 Federal Law Review 29, 40. 142 John Warhurst, The Northern Territory’s Intergovernment Relations (Canberra: Australian National University/North Australia Research Unit Monograph 1990) 14.

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purposes is now adequately covered by the defence power (s 51(vi)), the fishing power (s 51(xx)) and the implied nationhood power.143 This means that the choice whether to remain as a territory or else be incorporated into a State should now probably be left with each territory’s residents.

1.4 Reform agenda for State and Territory Constitutions While the States enjoy the capacity to amend their Constitutions by ordinary legislation, to experiment and to innovate, they have largely neglected to do this. The reasons vary from apathy to timidity lest they upset their delicate constitutional machinery. How different was their attitude in the 1850s when the most creative era of constitution-making occurred in Australia’s history. Their achievement then directly affected the drafting of the Commonwealth Constitution half a century later. While the occasional review of a State constitutional system occurs, few of their recommendations are ever implemented.144 The select list of reform topics outlined below demonstrates the neglect which State Constitutions have suffered. Some topics extend equally to the Territory Constitutions. But this list pales into insignificance if we accept that the dominant issue for the Australian federation in the 21st century is the renegotiation of the federal compact; including the nature and role of the intended States’ House, the Senate, a reconsideration of whether the Commonwealth’s 10 territories should remain as territories, and the need to recognise the equal status of their residents with their fellow Australian citizens as residents of the States.

1.4.1 Modernisation of State Constitutions When most State Constitutions were first drafted in the 1850s there was no attempt to incorporate all the fundamental constitutional institutions and principles of the Westminster system of government. Such an attempt would have been viewed as embarrassingly gauche. The new colonial Constitutions only addressed those matters which required statutory recognition or imperial sanction. Unfortunately, those original Constitution Acts have been maintained to the present in substantially similar form. Now they are truly embarrassing for their proliferation of archaic features. Most prominent is the provision in the New South Wales, Queensland and Western Australian Constitution Acts that the Queen is vested with power to make laws with the advice and consent of the Houses. Surely, it is about time their Constitutions recognised that it is 143 Victoria v Commonwealth (AAP case) (1975) 134 CLR 338. 144 See the Queensland Constitutional Review Commission, Report on the Possible Reform of and Changes to the Acts and Laws that Relate to the Queensland Constitution (February 2000). In South Australia, a Constitutional Conference was held in November 1981 and then a Constitutional Commission with a Deliberative Poll in August 2003 which generated essays: C. Macintyre and J. Williams (eds), Peace, Order and Good Government: State Constitutional and Parliamentary Reform (Adelaide: Wakefield Press, 2003).

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parliament which legislates on behalf of the sovereignty of the people. No wonder there is general public ignorance of the existence of State Constitutions, let alone what they might provide. There is still official hesitancy, bordering on timidness, to provide a more accurate picture of the constitutional system in the Constitution, lest inadvertent changes are made which might upset the status quo. The States need to follow the model set by the much more recent Constitutions of the ACT145 and the Northern Territory146 which are somewhat more descriptive of their constitutional systems. But even their Constitutions are not ideal models by omitting, for example, to refer to all of the principles of parliamentary control of finance.147

1.4.2 Entrenchment by manner and form The States possess the capacity to entrench within their Constitutions certain fundamental institutions and principles, such as the existence of parliament and the principles of parliamentary control of finance. Although they appear to lack the capacity to entrench their entire Constitution Act, this does not prevent them from adopting quite simple requirements to acknowledge its fundamental status, such as the requirement that any amendment Bill be appropriately entitled as such. Of particular concern is the need to impose restrictions on the States’ capacity to entrench, so that entrenchment only occurs, as in the ACT, in accordance with the same manner and form requirements being prescribed. Furthermore, entrenchment should not prevent the modernisation of the entrenched provisions or their relocation – provided no substantive change in their effect occurs.

1.4.3 Bill of Rights Consideration needs to be given to the protection of fundamental human rights at the State and territory level. An entrenched Bill of Rights, which would entail a substantial enlargement of the role of the judiciary, is unlikely ever to arise at the State level, given the likely ineffectiveness of the entrenchment. An alternative is to follow the ACT by enacting a statutory Bill of Rights which relies on political pressure for compliance. The same option is available for the States and the other self-governing territories. Nevertheless, there is already some level of constitutional protection derived from the Commonwealth and State Constitutions by way of both express and implied constitutional guarantees. Most significant is the implied freedom of political communication which has been found not only in the Commonwealth Constitution but also in the Constitutions of Western Australia and possibly South Australia. 145 Australian Capital Territory (Self-Government) Act 1988 (Cth). 146 Northern Territory (Self-Government) Act 1978 (Cth). 147 Both their Constitutions require the legislature to authorise appropriation, but like most State Constitutions omit to refer to the other two fundamental requirements of parliamentary approval for the imposition of taxation and that all Crown revenue forms part of the consolidated revenue fund. Only the Constitution of Queensland 2001 expressly incorporates all three principles.

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1.4.4 Reconciliation Until recently, there has been virtually no constitutional recognition at the State and territory level of their Indigenous peoples.148 While the same criticism can be made of the Commonwealth Constitution, at least that can be explained in part by the difficulty in amending that Act. Not so the State Constitutions, which can be amended by ordinary legislation. Yet little attempt has been made to address this issue at the State level. So far, only Victoria has addressed it adequately by inserting, in 2004, s 1A of the Constitution Act 1975 (Vic) to provide for the recognition of Aboriginal people in these terms: (1) The Parliament acknowledges that the events described in the preamble to this Act149 occurred without proper consultation, recognition or involvement of the Aboriginal people of Victoria. (2) The Parliament recognizes that Victoria’s Aboriginal people as the original custodians of the land on which the Colony of Victoria was established: (a) have a unique status as the descendants of Australia’s first people; and (b) have a spiritual, social, cultural and economic relationship with their traditional lands and waters within Victoria; and (c) have made a unique and irreplaceable contribution to the identity and wellbeing of Victoria.150

An alternative approach is to recognise the Indigenous peoples of a State or territory in the preamble to their Constitution.151 Comparable recognition was proposed in a new preamble for the Commonwealth Constitution in 1999 that failed to achieve referendum approval. Controversy over the adequacy of the wording has led to understandable caution at the State level.152 Parliamentary inquiries have been held in New South Wales and Queensland for enhancing Aboriginal representation in their respective parliaments. The New South Wales inquiry recommended further consultation on how dedicated seats in the New South Wales Parliament could be implemented and, as an interim measure, recommended the establishment of an Aboriginal Assembly to meet in the New South Wales Parliament.153 The Queensland inquiry recommended further consultation on formal recognition of the Aboriginal and Torres Strait Islander peoples in a new preamble to the Constitution of Queensland 2001. 148 Apart from an apology for past wrongs, such as that given by P. D. Beattie, Queensland Legislative Assembly, Parliamentary Debates Hansard (26 May 1999) p 1947. 149 The preamble refers essentially to the grant of responsible government to Victoria. 150 Subsection (3) qualifies this recognition with the following disclaimer: ‘The Parliament does not intend by this section – (a) to create in any person any legal right or give rise to any civil cause of action; or (b) to affect in any way the interpretation of this Act or of any other law in force in Victoria.’ Note that s 1A is purportedly entrenched by s 18(2)(aa) which requires a special majority of three-fifths of the whole number of members of both Houses to repeal or vary s 1A. 151 Recommended by the Queensland Constitutional Convention Communiqu´e, Gladstone 1999, and by the Queensland Constitutional Review Commission, Report on the Possible Reform of and Changes to the Acts and Laws that relate to the Queensland Constitution, February 2000, recommendation 3.2. 152 See recommendation 2, Legal, Constitution and Administrative Review Committee, Report No 42, ‘Hands on Parliament’ – A Parliamentary Committee Inquiry into Aboriginal and Torres Strait Islander Peoples’ Participation in Queensland’s Democratic Processes, September 2003, i. 153 See conclusions 1 and 2, New South Wales Legislative Council Standing Committee on Social Issues, Report No 18, Enhancing Aboriginal Political Representation – Inquiry into Dedicated Seats in the New South Wales Parliament, November 1998, v.

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Recommendations were also made to encourage the involvement of the State’s Indigenous peoples in the electoral process, as well as the establishment of two Indigenous community Cabinets a year.154 A range of proposals has also been made to empower Australia’s Indigenous community to participate in their own governance.155

1.4.5 Role of royal assent The retention of the requirement of royal assent for the enactment of all State laws and those of the Northern Territory and Norfolk Island is, from one perspective, an anachronistic remnant of the Crown as the font of sovereignty. That sovereignty is now clearly recognised as belonging to the people, exercisable through their parliament. The absence of any requirement of assent in the ACT demonstrates how it can be dispensed with.156 On the other hand, there is the advantage that assent offers an additional opportunity for scrutiny. Yet the role of the Executive in relation to assent requires clarification. The expression of the sovereign will of the people through parliament should not be liable to strangulation by executive advice not to assent.

1.4.6 Role of Legislative Councils The role of the Legislative Councils in the States (except in Queensland) remains a significant issue. Their retention seems justified provided they are appropriately elected and their powers to frustrate the will of the Legislative Assembly or House of Assembly are curtailed. Reforms along these lines have occurred but more remains to be achieved. For instance, the Legislative Councils of South Australia, Tasmania and Western Australia still retain the power to block supply Bills, while the New South Wales and Victorian Councils can only delay their passage by a month. Further, only in New South Wales and Victoria is there a constitutional mechanism to actually resolve a deadlock between their Houses over ordinary Bills.157

1.4.7 Appointment of Governors and Administrators There should be bipartisan support for the appointment of State Governors, given the crucial need for incumbents to be politically neutral. Appointments of State Governors are made by the Queen on the advice of the Premier who may consult with their Cabinet, but never with the Opposition Leader. Although a Premier could instigate the need for bipartisan approval, as well as community 154 See recommendations 1–25, Legal, Constitution and Administrative Review Committee, above n 152, i–vi. The Government’s response rejected the concept of exclusive Indigenous community Cabinets. 155 Larissa Behrendt, Achieving Social Justice – Indigenous Rights and Australia’s Future (Sydney: Federation Press, 2003) 159–68. 156 Enactment occurs in the ACT on notification in the ACT Government Gazette. 157 Final resolution depends on a referendum in New South Wales and a joint sitting in Victoria.

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consultation, without any need for a constitutional amendment, such an amendment would be desirable to ensure that any reform was not later ignored. The same reform could be put in place informally for the appointment by the GovernorGeneral of the Administrator of the Northern Territory.

1.4.8 Recognition of local government The third level of government in Australia, the system of local government within each State and territory, exists by virtue of State law.158 It is almost as old as the grants of self-government to the States made during the second half of the 19th century.159 There is no constitutional guarantee under the Commonwealth or State Constitutions that a local government system in each State will remain in place.160 Nonetheless, following the example set by Victoria in 1979, all State Constitutions now formally recognise local government as another level of elected government within their respective States.161 The Victorian Constitution provides the model provision in this respect: Local government is a distinct and essential tier of government consisting of democratically elected Councils having the functions and powers that the Parliament considers are necessary to ensure the peace, order and good government of each municipal district.162

The Constitutional Commission in 1988 recommended the insertion of a new s 119A in the Commonwealth Constitution to require each State to provide for the establishment and continuance of local government bodies in accordance with State law.163 This proposed amendment was defeated at the 1988 referendum.164 Such a provision would have prevented a State from completely abolishing its system of local government. In Queensland, a referendum is required to abolish its system of local government, although this is not effectively entrenched.165 A similar position exists in South Australia where, instead of a referendum, an absolute majority of the members of each House is required. Individual councils, 158 Local Government Act 1993 (NSW); Local Government Act 1993 (Qld); Local Government Act 1934 (SA); Local Government Act 1993 (Tas); Local Government Act 1989 (Vic); Local Government Act 1995 (WA). 159 Judy McNeill, ‘Local Government in the Australian Federal System’ in Brian Dollery and Neil Marshall (eds), Australian Local Government – Reform and Renewal (South Melbourne: Macmillan Education Australia 1997). 160 For the reasons why local government is not referred to in the Commonwealth Constitution: see Chris Aulich and Rebecca Pietsch, ‘Left on the Shelf: Local Government and the Australian Constitution’ (2002) 61 Australian Journal of Public Administration 14. 161 Constitution Act 1902 (NSW) Part 8, s 51; Constitution of Queensland 2001 Chapter 7, ss 70–8; Constitution Act 1934 (SA) Part 2A, s 64A; Constitution Act 1934 (Tas) Part IVA, ss 45A–45C; Constitution Act 1975 (Vic) Part IIA, ss 74A–74B; Constitution Act 1889 (WA) ss 52–3. 162 Substituted in 2003: Constitution Act 1975 (Vic) s 74A(1). 163 Final Report of the Constitutional Commission, Vol 1, 435, recommendation 8.1. 164 The proposed s 119A provided: ‘Each State shall provide for the establishment and continuance of a system of local government, with local government bodies elected in accordance with the laws of the State and empowered to administer, and to make by-laws for, their respective areas in accordance with the laws of the State.’ 165 See, for example, Constitution of Queensland 2001: Chapter 7 requires there be a system of local government (s 70), requires parliament to approve a dissolution of a local government by the Executive (ss 72–76), and requires a referendum to abolish the system of local government (s 78).

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though, remain vulnerable to dismissal by the Executive Government, except in Queensland and Victoria where this can only occur with parliamentary approval. Given the significant contribution of local councils to the provision of key public services throughout Australia and their accountability as democratically elected institutions of government for the taxes they impose, the Commonwealth Constitution should formally recognise the system of local government as the third level of government in Australia.

1.5 Conclusion A more robust attitude is required to rewrite the State Constitution Acts: to more accurately depict the constitutional system, to dispense with their archaic features, and so produce modern and relevant Constitutions appropriate for this new century. The drafters of the colonial Constitutions began with a fresh sheet 150 years ago. Surely, a 21st century makeover of their Constitutions should be embraced with the same spirit of adventure they pursued. Throughout this book, an attempt is made to highlight where and how far this makeover is most needed.

2 Constitutional evolution of the States

2.1 Introduction In outlining the evolution of the constitutional systems of the six Australian States – New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia – the starting point is the arrival of Captain Cook in 1770 and the subsequent settlement under Governor Phillip at Sydney Cove in 1788. These events extended English power to New Holland, as Australia was then known, from which emerged in the 19th century six self-governing colonies. Federation in 1901 as States of the Commonwealth of Australia completely transformed their constitutional status. Regrettably, the great Aboriginal civilisation which preceded this European invasion had little impact on this constitutional evolution – at least not until the High Court’s decision in Mabo v Queensland (No 2)1 in 1992. Aboriginal customary law in 1788 was then unknown and ignored. Today much more is understood.2 Despite the absence of any centralised authority or political organisation, there was within each Aboriginal tribe a sophisticated system of ‘law’ in terms of traditional customs and rules, generally of a religious nature, which regulated daily life.3 The predominant focus of Aboriginal customary law was to keep the peace 1 (1992) 175 CLR 1. 2 See R. M. Berndt and C. Berndt, The World of the First Australians (Canberra: Aboriginal Studies Press, 1988, 1st publ. 1964); P. Turbet, The Aborigines of the Sydney District Before 1788 (Kenthurst: Kangaroo Press, 1989); R. McLaughlin, ‘Some Problems and Issues in the Recognition of Indigenous Customary Law’ (1996) Vol 3, 82 Aboriginal Law Bulletin 4–9. 3 See Australian Law Reform Commission Report No 31, The Recognition of Aboriginal Customary Laws (Canberra: Australian Government Publishing Service, 1986). See especially Chapter 4, 32ff and the response from the Department of Prime Minister and Cabinet, Aboriginal Customary Law: Report on Commonwealth Implementation of the Recommendations of the Australian Law Reform Commission (Canberra: Australian Government Publishing Service, 1994).

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by resolving or averting personal conflicts. Rituals or procedures provided for the imposition of penalties, duels and forms of symbolic washing, where kinship played a central role as a conforming force. In some tribes, elected elders met in a type of council or janarumi4 with their ceremonial possum fur cloaks. Their authority usually derived from their religious knowledge,5 and the requisite qualifications for election differed little from those required of a modern politician: ‘that of being a good talker, able to answer questions on a variety of topics’.6 This system of customary law was described by Blackburn J in Milirrpum v Nabalco Pty Ltd as ‘a subtle and elaborate system highly adapted to the country in which the people led their lives’ which ‘provided a stable order of society, and was remarkably free from the vagaries of personal whim or influence.’ His Honour declared, ‘[i]f ever a system could be called “a government of laws, and not of men”, it is that shown in the evidence before me.’7 This customary legal system was overridden by English law and the development of the first colony of New South Wales, from which evolved four other colonies. The separate establishment of the colony of Western Australia completed the British imperial claim to the entire continent. This chapter provides an outline of the constitutional evolution of the six colonies into States. It draws on detailed historical works, such as those by Jenks,8 Quick and Garran,9 Cramp,10 Melbourne,11 Ward,12 McMinn,13 and Castles.14 At least until the middle of the 19th century, the most significant factor in the constitutional evolution of the Australian colonies was the fact that New South Wales was first settled as a penal colony. Since the imperial authorities focused primarily on that purpose, their level of interest in the constitutional development of the colonies was initially minimal. However, within 50 years of the Sydney settlement, evolutionary steps occurred at a steady pace for those times. The continued close relationship with the United Kingdom through the latter half of the 19th and the first half of the 20th centuries testifies to the relative success of that transition from penal settlement to independent nation. The process of evolution continues today. So far, that process can be divided into at least seven stages: ● autocratic rule of New South Wales between 1788 and 1823; ● the first form of legislative council; ● representative legislature; 4 See R. M. Berndt, ‘Law and Order in Aboriginal Australia’ in R. M. Berndt and C. H. Berndt (eds), Aboriginal Man in Australia: Essays in Honour of Emeritus Professor A. P. Elkin (Sydney: Angus and Robertson, 1965) 177. 5 Ibid 167–206. 6 Ibid 179. 7 (1971) 17 FLR 141 at 267. 8 Edward Jenks, A History of the Australasian Colonies (Cambridge: Cambridge University Press, 1896). 9 John Quick and Robert R. Garran, The Annotated Constitution of the Australian Commonwealth (Sydney: Angus and Robertson, 1901). 10 K. R. Cramp, The State and Federal Constitutions of Australia (Sydney: Angus and Robertson, 1914). 11 A.C.V. Melbourne, Early Constitutional Development in Australia, (ed) R. B. Joyce (St Lucia: University of Queensland Press, 1963). 12 J. M. Ward, Earl Grey and the Australian Colonies 1846–1857 (Melbourne: Melbourne University Press, 1958). 13 W. G. McMinn, A Constitutional History of Australia (Melbourne: Oxford University Press, 1979). 14 A. C. Castles, ‘The Reception and Status of English Law in Australia’ [1963] Adelaide Law Review 1, and A. C. Castles, An Australian Legal History (Sydney: Law Book Company, 1982).

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responsible government; federation and statehood; democratic accountability – sovereignty of the people; and termination of imperial restrictions – Australia Acts 1986.

These stages identify multiple harmonisations:15 of the executive with the legislature; of the legislature with public opinion; of the Commonwealth with the States; and of Australia with the United Kingdom.

2.2 Autocratic rule In taking ‘possession’ of the eastern coast of Australia in 1770, Captain Cook claimed English sovereignty. The boundaries of that possession were later defined in the first Commission16 issued to Captain Arthur Phillip on 12 October 1786 appointing him Governor of the penal settlement17 of New South Wales.18 They extended from Cape York to the southern coast of Van Diemen’s Land, west to 135 degrees east longitude,19 and included the adjacent Pacific islands.20 As a consequence of the loss of the American colonies, New South Wales was declared a penal settlement by an Order in Council of 6 December 1786 pursuant to an Imperial Act (1784).21 The only statutory authority for the new settlement related to the administration of the criminal law which authorised the Crown to establish a court of criminal jurisdiction to try treason, felonies and misdemeanours.22 Letters Patent (known as the First Charter of Justice)23 established courts of civil24 and criminal jurisdiction. The powers of the Governor were otherwise undefined by statute and were sourced almost entirely in the royal prerogative. While the Governor was accountable to his superiors in London, he otherwise possessed autocratic power in the colony. It appears that there was then no English precedent for the establishment of such a penal settlement.25 This accounts for the meagre statutory foundation for the settlement and the autocratic rule of the Governor. It meant that the free settlers who soon 15 The first two of these were identified by A.C.V. Melbourne, above n 11, 443. 16 A second Commission dated 2 April 1787 was issued to Captain Phillip as a colonial Governor: Historical Records of New South Wales, Vol 1, Part 2: Phillip 1783–92 (Sydney, Government Printer 1892) 61. 17 Originally not established as a colony because not intended for trade: Quick and Garran, above n 9, 36. 18 According to Quick and Garran, above n 9, 28, it is unclear whether Cook or the editor of his journal, Hawkesworth, called it ‘New South Wales’ because of some similarity with the area of Wales near Swansea. 19 This was roughly half the continent, then known as New Holland. In 1825 this western boundary of New South Wales was extended to 129 degrees longitude by the Commission issued to Governor Darling, apparently to ensure the newly established Fort Dundas at 130 degrees longitude came within New South Wales: A. Powell, Far Country: A Short History of the Northern Territory (2nd edn, Melbourne: Melbourne University Press, 1988) 2. 20 R. D. Lumb, The Constitutions of the Australian States (5th edn, St Lucia: University of Queensland Press, 1962) 41. ‘Adjacent’ was widely interpreted at the beginning of the 19th century to include Norfolk Island, Tasmania, New Zealand and even Tahiti: see Wacando v The Commonwealth (1981) 148 CLR 1 at 8 per Gibbs CJ. That case held Darnley Island in the Torres Strait was part of Queensland. 21 24 Geo III c 56. 22 27 Geo III c 2 (1787). 23 Issued 2 April 1787. 24 But the 1784 Act only authorised the creation of criminal courts, so the establishment of civil courts by Letters Patent was called into question. 25 McMinn, above n 13, 1.

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followed the establishment of the settlement around 1793 did not enjoy their customary English rights. The Governor’s autocratic rule26 continued for 35 years until the establishment of a Legislative Council in 1823.27 During that period, various orders of the Governor were challenged, including the exercise of civil jurisdiction, on the basis that such powers could only be exercised under the authority of the Imperial Parliament or that of a local legislature.28 Jeremy Bentham argued in his pamphlet published in 1803, A Plea for the Constitution of New South Wales,29 that the Governor required statutory authority to govern.30 Contemporary legal opinion favours the view that the royal prerogative was sufficient, except for the levying of taxation.31 Professor Lumb32 agreed with this assessment that the Governor possessed the power to make Ordinances and regulations as the representative of the Crown, provided they were not inconsistent with inherited English law. Until the establishment of a ‘Supreme Court’33 of New South Wales in 1814 by the Second Charter of Justice, timely review of the validity of the Governor’s orders was impossible. Nonetheless, the Secretary of State did on occasion hold orders invalid, such as the imposition of fines34 and taxes, which prompted the enactment of retrospective imperial legislation.35 In response to increasing demands from free settlers, the former Chief Justice of Trinidad, John Bigge, was appointed a Commissioner in 1819 to report on whether New South Wales should continue as a penal settlement and its future governance. The principal recommendations of his reports in 182236 were: to provide statutory authorisation for the Governor’s power to make regulations, to establish a civilian court to replace the military courts, and to replace the Advocate-General with an Attorney-General. The Bigge Reports profoundly influenced37 the enactment of the Imperial Act of 1823 which terminated the Governor’s autocratic rule by establishing a Legislative Council and provided 26 Quick and Garran, above n 9, 36 described it as ‘despotism’. W. J. V. Windeyer, Lectures on Legal History (2nd rev edn, Sydney: Law Book Company, 1957) 305 referred to the Governor as an ‘absolute autocrat’. 27 By Geo IV c 96. 28 Lumb, above n 20, 4–6. 29 Jeremy Bentham, A Plea for the Constitution: showing the enormities committed to the oppression of British Subjects, innocent as well as guilty, in breach of Magna Charta, The Petition of Right, the Habeas Corpus Act, and the Bill of Rights; as likewise of the Several Transportation Acts; in and by the Design, Foundation and Government of the penal colony of New South Wales: including an inquiry into the right of the Crown to legislate without Parliament in Trinidad, and other British Colonies (London: printed for Mawman, Poultry and Hatchard, Piccadilly, St Wilks and Taylor, Chancery Lane, London, 1803) 2. 30 See W. B. Campbell, ‘A Note on Jeremy Bentham’s “A Plea for the Constitution of New South Wales”’ (1951) 25 Australian Law Journal 59. 31 See E. V. Evatt, ‘The Legal Foundations of New South Wales’ (1938) 11 Australian Law Journal 409; Victor Windeyer, ‘“A Birthright and Inheritance”: The Establishment of the Rule of Law in Australia’ (1962) 1, Tasmanian University Law Review 635–49; E. Campbell, ‘Prerogative Rule in New South Wales, 1788–1823’ (1964) 50 Royal Australian Historical Society Journal 161. Cf R. E. Else-Mitchell, ‘The Foundation of New South Wales and the Inheritance of the Common Law’ (1963) 49 Royal Australian Historical Society Journal 1, 4–5. Quick and Garran, above n 9, 35 doubted this and referred to Mr Commissioner Bigge’s Report (1823) 10. See also Melbourne, above n 11, 47–8; Castles, An Australian Legal History, above n 14, 36–8. 32 Lumb, above n 20, 5–6. 33 The Supreme Court of New South Wales was established in 1823. 34 See McMinn, above n 13, 10. 35 See Melbourne, above n 11, 34–9. 36 After spending 18 months in New South Wales and Van Diemen’s Land, he produced three official reports and two confidential supplementary reports between May 1822 and February 1823: see Melbourne, above n 11, 75; McMinn, above n 13, 17. 37 McMinn, ibid 19.

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for a range of review mechanisms. Also influential was the 1819 publication of Statistical, Historical and Political Description of the Colony of New South Wales and Its Dependent Settlements in Van Diemen’s Land by William Charles Wentworth38 which advocated a bicameral legislature with an elected assembly.39 The 1823 Act also provided for the separation of Van Diemen’s Land which occurred in 1825.40

2.3 Legislative Council The Legislative Council of five members, established by the Imperial Act of 1823,41 first met on 25 August 1824. Although not recommended by the Bigge Reports, the Council was established due to the inability to formulate a list of law-making powers that could be vested in the Governor. Instead, almost at the last minute,42 a general law-making power was vested in the Governor acting with the advice of a Legislative Council to make Ordinances for the ‘peace, welfare and good government of the colony’ (s 24). The Council comprised five to seven residents43 appointed by the Crown. Not being representatives, they took an oath of secrecy. The passage of a law which could only be introduced by the Governor, required majority approval from the Council – unless it was essential for the peace and safety of the colony (and approved by at least one member) to prevent rebellion or insurrection, or was passed by the King in Council. Subject to local circumstances, laws could not be repugnant to English law, and this was determined by the Chief Justice of the new Supreme Court of New South Wales44 (s 29). Two traditional imperial controls were first introduced in Australia at this stage: the Crown’s right to disallow laws within three years (s 30); and the requirement to lay the laws before both Houses of the Imperial Parliament (s 31). McMinn considered that the 1823 Act ‘revolutionised the colony’s government by substituting order and formality for a system which had been haphazard and charismatic.’45 Yet the 1823 Act made no provision for an Executive Council. This was only established with the issue of a new commission and instructions to the next Governor, Sir Ralph Darling, in 1825.46 Thereafter, the Governor was required to consult the Executive Council and to act on its advice except for urgent decisions or where consultation would adversely affect Crown interests. 38 Printed for G. and W. B. Whittaker, Ave-Maria Lane, London, 1819, facsimile reprint 1979, Doubleday Australia, Sydney. 39 Ibid 342 ff. 40 A. J. Brown, ‘One Continent, Two Federalisms: Rediscovering the Original Meanings of Australian Federal Ideas’ (2004) 39 Australian Journal of Political Science 485. 41 4 Geo IV c 96 (1823) – expressed to operate only until 1827 because of concerns as to the wisdom of its provisions: see Melbourne, above n 11, 97. 42 Melbourne, ibid, 96; McMinn, above n 13, 20. A.C.V. Melbourne also observes at 86 that there was no popular demand in 1822 for an elected Legislative Council. The exclusives opposed any form of representative government for fear that it would confer more power on the emancipists. 43 Included three private persons, the remainder were government officials. 44 Established by Letters Patent (the Third Charter of Justice) promulgated 17 May 1824 as the first Supreme Court of unlimited jurisdiction in Australia with Francis Forbes as its first Chief Justice. 45 McMinn, above n 13, 22. 46 Melbourne, above n 11, 108.

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The 1823 Imperial Act was followed by the Australian Courts of Justice Act of 182847 which enhanced the legislative function of the Legislative Council by removing the capacity of the Governor (alone) and of the Imperial Crown to legislate. All laws required majority approval of the Council. Moreover, while the size of the Council was increased to between 10 and 15 members nominated by the Crown, public discussion of proposed laws was encouraged, thereby injecting a representative function.48 The obligation to present laws to the Chief Justice to determine any repugnancy was replaced by a requirement to enrol all laws in the Supreme Court within seven days to allow any judge to declare repugnancy within 14 days. The Crown retained power to disallow a law within four years (s 28), while the requirement continued for laws to be laid before the Imperial Parliament. Of great significance for the inheritance of English law, s 24 of the 1828 Act applied all English statutory and common law to the colony so far as it was applicable to the conditions of the colony as at the date of the Act’s enactment (see Chapter 5). The 1828 Act aroused little excitement.49 As in the United Kingdom, demands for representative government increased, with the cry of ‘no taxation without representation’ becoming louder. This issue helped to reconcile the previous acrimonious relations between the free settlers and the emancipists. Those cries intensified as the Imperial Crown retained growing land revenues while passing on the cost of gaols and police. What restrained the evolution of representative government throughout the 1830s was the continuation of convict transportation to New South Wales. The catalyst for the next stage in constitutional development was the recommendation in 1838 of the Select Committee of the House of Commons, chaired by Sir William Molesworth, to terminate transportation to New South Wales and to the settled districts of Van Diemen’s Land as soon as practicable.50

2.4 Representative legislature Representative government developed in two stages under the Australian Constitutions Act (No 1) 184251 and the Australian Constitutions Act (No 2) 1850.52 The latter Act also provided the mechanism by which the next stage of constitutional development, responsible government, was to occur – essentially at the instigation of the colonies themselves. The 1842 Act provided for a partly representative legislature by enlarging the Legislative Council to 24 elected members and 12 members nominated by the Crown. The male-only franchise was based on property of £200 or an annual income of that amount. This proportion of two-thirds elected and one-third 47 9 Geo IV c 83. 48 McMinn, above n 13, 26. 49 Ibid 27. 50 Resolution 1 of the Report from the Select Committee of the House of Commons on Transportation; Together with a Letter from the Archbishop of Dublin on the Same Subject: and Notes (London: Henry Hooper, 13 Pall Mall East, 1838; facsimile edn, Adelaide Libraries Board of South Australia 1967) 48. 51 5 and 6 Vic c 76 (1842). 52 13 and 14 Vic c 59 (1850).

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nominated members was the pattern for all other colonial legislatures until they established their own Constitutions in the 1850s. For the first time, the Governor no longer sat in the legislature, although legislative power remained vested in the Governor acting with the advice of the Legislative Council to make laws for the peace, welfare and good government of the colony. Certain Bills were required to be reserved for the Queen’s assent unless the Governor declared the need to assent ‘by reason of some public and pressing emergency’. The Council, chaired by a Speaker, served a five-year term. Provision was made for six members to represent the Port Phillip District as a separate unit, south from the Murray River. Only revenue from taxes and rates required Legislative Council appropriation – subject to the Governor’s recommendation. Retention of imperial control over land revenue53 – as well as other ‘casual’ revenue such as fines and penalties – remained a continuing source of discontent in the colony. With substantial financial independence, it left the Governor practically unaccountable to the legislature and in a position to refuse to assent to legislation. Further, he appointed all government officials in accordance with instructions from the Colonial Office. Hence, the election of representatives to the Legislative Council served only as the ‘feeble germs of Representative Government’.54 After the first parliamentary election in 1843, relations between the Legislative Council and the Governor deteriorated. This was an inevitable consequence of the transfer of power to Australia’s first representative legislature hungry for the granting of responsible government. Disputes soon arose over the retention of the casual revenue by the Crown, the Legislative Council bearing the cost of gaols and police, and increased fees for squatting introduced by Governor Gipps in 1844.55 McMinn suggested that ‘[i]n a real sense the desire for responsible government was originally a constitutional embodiment of frustrations over the land laws and resentments about the cost of police and gaols.’56 These disputes resulted in another imperial inquiry in 1849 to investigate the constitutional position of the Australian colonies. Suggestions of some form of federal arrangement to provide for a uniform tariff were suggested but never acted on. More significant was the appointment in 1846 of Earl Grey as Secretary of State, who in time proposed the solution to the dilemma of satisfying growing colonial demands for responsible government without actually conceding it at that time.57 His approach was to confer on the Legislative Councils of the colonies the capacity to establish their own bicameral legislature and to enact their own Constitutions, including the capacity to change their Constitution in the future. This proposal, contained in what is referred to as Earl Grey’s ‘Golden Despatch’ 53 This increased substantially with the adoption of a one pound per acre minimum reserve price under the Sale of Waste Lands Act 1842. 54 Quick and Garran, above n 9, 39. 55 See the Report of the Select Committee of the Legislative Council on General Grievances, V & P of the Legislative Council of New South Wales, 1844, Vol II (cited by Clark at 31). Later a Grand Remonstrance was organised by W. C. Wentworth: D. Clark, Principles of Australian Public Law (Sydney: LexisNexis Butterworths, 2003) 32. 56 McMinn, above n 13, 39. 57 His earlier proposal based on a quasi-federal plan for New Zealand was soon dropped after protests from New South Wales: McMinn, above n 13, 41–2.

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in 1848,58 was given effect to by the second of the Acts referred to previously, the Australian Constitutions Act (No 2) 1850.59 That Act provided the key to the future constitutional development of the Australian colonies. First, it provided for the separation of the Port Phillip District as the colony of Victoria, and made provision for the separation by the Crown of the northern part of New South Wales north of 30 degrees south latitude on petition of the area’s inhabitant householders.60 Second, the Act provided for the adoption of partly representative legislatures in the colonies of South Australia, Tasmania and Western Australia,61 similar to the New South Wales Legislative Council in the 2:1 proportion of elected and nominated members. The Governor, with the advice and consent of the Legislative Council, was given the power to make laws for the peace, welfare and good government of the colony. Third, it authorised those representative legislatures, once established in New South Wales, South Australia, Tasmania, the future Victoria and Western Australia, to draft their own Constitution which would provide for the establishment of a bicameral legislature. Thus the key to future constitutional evolution was given to the colonies, although subject to the requirement that their proposed changes be reserved for royal assent and laid before both Houses of the Imperial Parliament for 30 days before consent was given (s 32). What the Act did not confer, however, was control over the Crown’s casual revenue and Crown land which remained with the imperial authorities to assist with the financing of immigration schemes to Australia. Nor did it confer control over public offices to the Governor acting with the advice of the Executive Council, leaving it instead within the ultimate control of the Secretary of State for the Colonies. Until these issues were resolved the attainment of responsible government was deferred. Again historical events – the gold rushes of the 1850s – intervened to convince the new Secretary of State, Sir John Pakington (who replaced Earl Grey in 1852), to transfer control over Crown lands to the colonial legislatures. Responsible government was then inevitable.

2.5 Responsible government 2.5.1 New South Wales Following the 1850 Act, the New South Wales Legislative Council passed a resolution seeking the establishment of responsible government along similar lines to 58 Earl Grey issued two despatches: the first on 31 July 1847 proposed a form of federation using district councils along the lines of that prescribed for New Zealand, and a bicameral legislature. New South Wales opposed these changes especially on the ground that the people of New South Wales had not been consulted! His second despatch of 31 July 1848 was sent before the New South Wales response reached him and it is that response which left it to the colonies to create their own Constitutions subject to the Queen in Council approval and so formed the basis for the 1850 Act: see Melbourne, above n 11, 344, 353. 59 13 and 14 Vic c 59 (1850). Quick and Garran, above n 9, 40 referred to it as the Australian Colonies Government Act. 60 This area included the Northern Rivers region. 61 Once certain conditions were met in Western Australia; that is, upon petition from not less than one-third of householders in the colony.

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that established in Canada. Central to that request was that the colony be given entire control of Crown revenue in the colony, in return for assuming the full cost of internal government. The Secretary of State for the Colonies, Sir John Pakington, accepted this plan, confident that the colony could both support itself – particularly after the discovery of gold – and govern itself responsibly.62 Consequently, a select committee of the Legislative Council drafted a new Constitution for the colony. It was deliberately drawn in terms wider than those permitted by s 32 of the 1850 Act. In particular, the legislative power was defined as a power to make laws for the peace, welfare and good government of the colony in all cases whatsoever; the members of the Legislative Council were to be nominated by the Governor with the advice of the Executive Council; all revenue was to form a consolidated revenue fund; and the legislature was to have the power to impose customs duties and to regulate the sale and disposition of the waste lands63 of the Crown. The New South Wales Legislative Council adopted the Constitution Bill on 21 December 1853, conscious of the need for imperial legislation to give it effect. The Colonial Office received the New South Wales Constitution Bill about the same time it received similar Bills from South Australia and Victoria. As expected, the Law Officers of the Crown found all three Bills went beyond the scope of the power conferred by the 1850 Act. In particular, the Bills purported to amend Imperial Acts by claiming the power to regulate the disposal of the waste lands of the Crown.64 The New South Wales and Victorian Bills also contained elaborate lists of matters to distinguish those matters which remained subject to imperial veto (by reservation and disallowance requirements) from those local matters which were not to be subject to veto.65 The solution adopted was to include each of the New South Wales and Victorian Bills in a Schedule to an Imperial Act which authorised the Queen to assent to each Bill. Before doing this, each Bill was amended to restore the full imperial veto power by removing the clauses which confined the powers of reservation and disallowance to Bills dealing with imperial matters.66 In return, the entire management of the waste lands of the Crown was conceded to the colonial legislatures by the Imperial Act. Consequently, both the New South Wales and Victorian Bills received royal assent pursuant to their respective Imperial Acts.67 In each case, the Imperial Act is usually referred to as the Constitution Statute and the attached Bill is referred to as the Constitution Act. Both Constitution Acts received royal assent on 16 July 1855, and came into force in November of that year. Whether their immediate 62 See Quick and Garran, above n 9, 41–2 citing the dispatch from John Pakington to Governor Fitzroy of 15 December 1852. 63 Express conferral of this power was necessary as it had been consistently denied to the colonial administrations. This history is outlined in Williams v Attorney-General for New South Wales (1913) 16 CLR 404 at 424–8 per Barton ACJ, 449–53 per Isaacs J; Mabo v Queensland (1988) 166 CLR 186 at 236–8 per Dawson J. 64 Lumb, above n 20, 16–17. 65 See McMinn, above n 13, 53–4. 66 Melbourne, above n 11, 425–6 considers that the removal of this distinction facilitated the adoption of ministerial responsibility which might have been hampered by constant argument over the distinction between imperial and local matters. 67 NSW: 18 and 19 Vict c 54; Vic 18 and 19 Vict c 55.

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source of authority was imperial has been debated.68 But nothing turns on it because of the power of amendment conferred by the Imperial Act. The fate of the original South Australian Bill differed as the Bill was returned to the colony for revision. In its revised form, it was not inconsistent with the 1850 Act and, together with the Constitution Bill from Tasmania, received royal assent with both Acts proclaimed to take effect on 24 October 1856: Constitution Act (No 2) 1855–56 (SA), and Constitution Act 1856 (Tas).69 The New South Wales Constitution Statute 1855 (Imp) amended earlier imperial legislation to concede the entire management and control of the waste lands of the Crown (and all proceeds therefrom) to the New South Wales Parliament (s 2); continued the reservation of Bills and disallowance of Acts (s 3) as prescribed by the 1842 Act; empowered the Parliament to amend the Constitution subject to any conditions in the Constitution unless repealed or altered (s 4); and settled the boundary between New South Wales and Victoria by deeming the whole watercourse of the Murray River to be within the territory of New South Wales (s 5). It also authorised the Queen by Letters Patent issued under the Great Seal to carve off from northern New South Wales new colonies and by Letters Patent or Order in Council to provide for their government and legislature ‘in manner as nearly resembling the form of government and legislature which shall be at such time established in New South Wales as the circumstances of such colony will allow’ with full power to alter that Constitution (s 7). The Constitution Act 1855 (NSW) provided for a bicameral parliament comprising the Legislative Assembly of 54 members and a Legislative Council of not fewer than 21 members nominated by the Governor on the advice of the Executive Council. Legislative power was vested in Her Majesty acting with the advice and consent of both Houses to make laws for the peace, welfare and good government of the colony in all cases whatsoever (s 1). The first parliamentary sitting of the first bicameral parliament in Australia occurred on 22 May 1856. It was also the first sitting in Australia of an entirely elected Assembly.70 Obviously this was an era of intense constitutional debate and innovation. Of central concern to the members of the Legislative Council, which drafted the Constitution Bill and the landed interests which they represented, was the fear of majority rule. This concern led to all colonies adopting a bicameral legislature. It also was reflected in the special manner and form requirements included in the Constitution Act 1855 (NSW) for alterations to provisions affecting each House. A two-thirds majority of the Assembly was required for alterations to the electoral boundaries of the Assembly and to the number of members, with the Assembly required to address the Governor as to compliance with this requirement (s 15). For alterations to provisions concerning the Legislative Council, a two-thirds 68 See Lumb, above n 20, 29 who argues that it was imperial because this was needed to avoid repugnancy to other imperial law, and to give effect to amendments made in England. Cf E. Jenks, The Government of Victoria (London: Macmillan, 1891) 204. 69 18 Vict No 17 (Tas). 70 Albeit still with a property qualification for male electors. The Electoral Reform Act 1858 (NSW) delivered manhood suffrage and a secret ballot. Women were franchised in 1902 and Aborigines in 1962.

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majority was required in both Houses, as well as reservation of the Bill for royal assent and the necessity to be laid before both Imperial Houses (s 36). These special majority requirements were inserted when it was thought that the new legislature would lack the power to change the Constitution Act, including these provisions.71 This turned out not to be so. Not surprisingly, the conferral by the Imperial Act of the power of amendment by ordinary legislation enabled the prompt repeal of these special majority clauses in the Constitution Act in 1857.72 A striking feature of the New South Wales Constitution Act – as well as of all other subsequent colonial Constitutions – was the absence of any express reference to the principles of responsible government. Nor were the Governor’s Commission or Royal Instructions altered to reflect these principles.73 Indeed, the lack of explicit reference to these principles of responsible government continues to be a feature of most State Constitutions. It was probably justified in the 1850s when these principles were still evolving – even in the United Kingdom. But that hardly excuses their omission today. At least the Constitution of Queensland 2001 makes some attempt to remedy this.74 Nevertheless, there were certain provisions in the New South Wales Constitution Act which reflected the adoption of responsible government, such as those provisions providing for parliamentary control of finance (ss 175 and 5476 ) and the disposal and occupation of Crown lands (s 43), as well as those provisions dealing with the appointment of public officers including those ‘liable to retire from office on political grounds’ (s 37). While these sections provided the structural support for responsible government, its achievement in the colonies depended more on the acceptance of conventions and customs. As Professor Lumb observed: Despite these [constitutional] provisions it must be pointed out that the operation of the doctrine of responsible government in the Australian colonies was based more on convention then (sic) on formal law. No obligation was imposed on the governor to appoint the members of the ministry from the legislature but it was recognised that the administration of the affairs of the colony would very soon come to a halt if the ministry was elected in any other way.77

The absence of formal constitutional provisions defining the principle of responsible government had already occurred in Canada where it nevertheless evolved as a ‘practical convention’.78 What had become evident there was the difficulty the Governor faced in balancing his imperial role as the Crown’s representative in the colony, with his local role as the Queen’s representative who acts on the 71 See Melbourne, above n 11, 422 who outlines Wentworth’s involvement in this attempt to reduce the power of the electorate. 72 Act 20 Vic No 12 (1857) (NSW). Also removed the disqualification in s 20 of ministers of religion being elected to parliament: Act 20 Vic No 20 (NSW). 73 Melbourne, above n 11, 429–30. 74 See s 42 which requires there to be Cabinet (subs 1) which is ‘collectively responsible to the Parliament’ (subs 2). 75 Required appropriation and taxation Bills to originate in the Assembly. 76 Required a message from the Governor before Assembly passes appropriation and taxation Bills. 77 Lumb, above n 20, 29. 78 Melbourne, above n 11, 424.

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advice of his ministers. A vivid insight of this dilemma is provided by a dispatch from the Governor-General of Canada, Lord Elgin, to Lord Grey in 1847: I give to my ministers all constitutional support, frankly and without reserve, and the benefit of the best advice I can afford them in their difficulties. In return for this, I expect that they will, in so far as it is possible for them to do so, carry out my views for the maintenance of the connexion with Great Britain, and the advancement of the interests of the province . . . I feel very strongly that a Governor-General, by acting upon these views with tact and firmness, may hope to establish a moral influence in the province which will go far to compensate for the loss of power consequent of the surrender of patronage to an executive responsible to the local Parliament. Until, however, the functions of his office . . . are more clearly defined – until that middle term which shall reconcile the faithful discharge of his responsibility to the Imperial Government and the province with the quasimonarchical relation in which he now stands towards the community over which he presides, be discovered and agreed upon, he must be content to tread along a path which is somewhat narrow and slippery.79

The adoption of responsible government thus required the adoption of a range of conventions and customs by the Governor, the members of the Executive Council, the members of both Houses, as well as by the Colonial Office.80 Legislation played a minor role in this process. This was fortunate as it provided the flexibility and freedom to allow these conventions and customs to evolve over time. Detailed legislative provisions would have hindered that process. The assumption of responsible government in New South Wales appears casual and relaxed compared with the New Zealand experience almost two years earlier. There, the lack of any explicit reference to responsible government in their new Constitution provoked much anxiety and confusion. This was only resolved when the Acting-Governor received instructions to appoint responsible ministers and soon afterwards in May 1856 the new Governor, Sir Thomas Gore Browne, invited the formation of the first responsible ministry.81 While the political conventions of responsible government may have begun to evolve along with representative government, there remained some uncertainty over the legal scope of the colonial government’s executive power, in particular, whether it included all the Crown’s prerogative powers. A majority of the Victorian Supreme Court in Ah Toy v Musgrove82 denied this in holding that the Governor did not possess the executive power to exclude an alien from the colony. The Governor had only those powers vested in him which were conferred by statute or by the Queen. In other words, the assumption of responsible government by political evolution was insufficient to confer the common law powers 79 Quoted in Melbourne, above n 11, 425. 80 It was said in Canada that a conversation between the Secretary of State and Francis Head played a pivotal role. In New South Wales, a despatch from the Secretary of State, Robert Peel, to a colonial Governor may have been equally significant: see Quick and Garran, above n 9, 44–5 citing Hearn’s Government of England at 8–9 and the President of the South Australian Legislative Council, Sir Richard Baker. 81 P. A. Joseph, Constitutional and Administrative Law in New Zealand (2nd edn, New Zealand: Brookers, 2001); cf Quick and Garran, above n 9, 77–8. 82 14 VLR 392–4. On appeal, the Privy Council declined to comment on this issue: Musgrove v Chun Teeong Toh [1891] AC 272 at 283.

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of the Crown. It had to occur by statute or by express conferral by the Queen by commission or instructions. The notable dissent of Higinbotham CJ argued that the Executive Government of Victoria derived its power from the grant of self-government in the Constitution Act 1855 (Vic). In his view, the powers of the colonial legislatures necessitated the conferral of executive power commensurate with the grant of legislative power. His views were ahead of this time. Recognition of full prerogative power commensurate with the States’ legislative powers only occurred under the Australia Acts.83 Uncertainty also arose over the width of the legislative power of the colonial parliaments. This was due in part to the activities of Justice Boothby of the Supreme Court of South Australia between 1859 and 1865. In a series of decisions,84 he held South Australian legislation invalid for being inconsistent or repugnant to ordinary United Kingdom statutes, royal instructions, and the common law. These decisions forced the United Kingdom Parliament to enact the Colonial Laws Validity Act (Imp) (CLVA) in 1865 to remove doubts over the validity of colonial laws.85 The doctrine of repugnancy was declared to be only applicable to imperial statutes which applied by paramount force; that is, made applicable to the colony by ‘express words or necessary intendment’ (ss 1 to 4). Section 5 confirmed the full power of colonial legislatures to establish courts of judicature, and of representative legislatures to ‘make laws respecting the constitution, powers and procedure of such Legislatures’. The latter was subject to a proviso which conferred the capacity to entrench those laws. Detailed consideration is given to these provisions in Chapters 5 and 6. It should be noted that the Commonwealth Parliament also was subject to this Act as a colonial legislature from its establishment on 1 January 1901 until its retrospective adoption of the Statute of Westminster in 1942 from 3 September 1939.86 The CLVA continued to apply to the States until it was repealed in relation to them by s 3(1) of the Australia Acts in 1986. Three distinctive features of the evolution of representative and responsible government during the remainder of the 19th century are usefully identified by McMinn:87 the slow adoption of the party system; the ease with which democratic reforms occurred; and the more aggressive attitude of the Legislative Councils, especially in rejecting money Bills. Among the democratic reforms embraced by the colonies were: the secret ballot (in all States by 1857); adult manhood suffrage for Assemblies (lastly in Queensland in 1905); women’s right to vote (in all States by 1906); payment of members of parliament (in all States by 1900); and the abrogation of the requirement that ministers resign and recontest their parliamentary seat on appointment. 83 Note that the joint judgment of Gleeson CJ, Gummow and Hayne JJ in Sue v Hill (1999) 199 CLR 462 at 500 [88]–[89], observed that on being granted responsible government, only certain prerogative powers were vested in the Crown in right of each colony. 84 For example, McEllister v Fenn (D. B. Swinfen, ‘The Genesis of the Colonial Laws Validity Act’ [1967] Juridical Review, fn 21 only cites the South Australian Parliamentary Papers 48 HA 1862 Encl 1.) and Auld v Murray (Swinfen, ibid, fn 48 cites South Australian Parliamentary Papers 53 LC 1864). 85 See Swinfen, ibid 29. 86 Statute of Westminster Adoption Act 1942 (Cth) s 2(1). 87 McMinn, above n 13, 58–9.

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Before leaving the New South Wales Constitution to briefly consider the constitutional history of the other States, it should be noted that the Constitution Act 1855 (NSW) was replaced by the Constitution Act 1902 (NSW).

2.5.2 Van Diemen’s Land/Tasmania The island88 of Tasmania, known as Van Diemen’s Land until 1855,89 was first settled in 1803 by soldiers and prisoners to avoid French annexation.90 Until its separation as a new colony in 1825, Van Diemen’s Land was from 1803 to 1810 a dependency of New South Wales under the rule of two lieutenant-governors at Hobart and Port Dalrymple,91 and then a single lieutenant-governor in Hobart. The Imperial Act of 1823 (4 Geo IV c 96) which established the first Legislative Council in New South Wales also empowered the Crown to separate Van Diemen’s Land as a new colony with a similar constitutional system (s 44). This occurred by an Imperial Order in Council of 14 June 182592 which established a Legislative Council and an Executive Council along similar lines to those in New South Wales. Although temporarily established under the 1823 Act, the Supreme Court was permanently established under the Australian Courts Act 1828 and its Charter of Justice.93 Parallel constitutional development continued between the two colonies with the Australian Courts Act 1828 applying to both colonies. This changed in 1842 with the establishment of representative government only in New South Wales. This break occurred because the transportation of convicts had ceased to New South Wales but not yet to Van Diemen’s Land.94 The opportunity to establish a representative legislature occurred later under the Australian Constitutions Act (No 2) 1850 which empowered South Australia and Van Diemen’s Land to catch up with New South Wales to reconstitute their legislatures as representative partly-elected bodies with power to make laws for the peace, welfare and good government of the colony, and to pass their own Constitutions subject to royal assent.95 Soon after this imperial enactment, transportation to Van Diemen’s Land was discontinued in 1853.96 Once the Legislative Council reconstituted itself, a Constitution Bill was passed on 31 October 1854 which received royal assent in June 1856.97 The Constitution Act 1856 (Tas) established two elected Houses: a Legislative Council of 15 members and a House of Assembly of 30 members, each on the basis of a property or educational franchise. The first parliament opened 88 Only identified as an island after Bass and Flinders circumnavigated it in 1798. 89 Effected by an Imperial Order in Council of 21 July 1855 which took effect on 1 January 1856. 90 The convicts intended for Port Phillip joined this settlement in 1804. 91 Renamed Launceston in 1818. 92 Took effect on publication in the Hobart Town Gazette 3 December 1825. 93 M. Stokes, ‘The Constitution of Tasmania’ (1992) 3 Public Law Review 99. 94 See W. A. Townsley, The Struggle for Self-Government in Tasmania 1842–1856 (Tasmania: Government Printer, 1951) 97. 95 Ibid, for a detailed history of this period. 96 Act 20 and 21 Vic c 3. 97 18 Vict No 17 (Tas).

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on 2 December 1856. As in South Australia, the Constitution made no express reference to the colony’s general legislative power – including the power to amend the Constitution – other than to provide that the new legislature is to have ‘all the powers and functions’ of the existing Legislative Council. These powers remained respectively in ss 14 and 32 of the Australian Constitutions Act (No 2) 1850.98 Like the New South Wales Constitution Act 1855, responsible government was only implicitly recognised by certain provisions of the Constitution such as those which referred to the retirement of officers on political grounds (s xxxii).

2.5.3 Western Australia Western Australia was first settled in 1826 by a detachment of the 39th Regiment from Sydney to the site of Albany in King George’s Sound. Governor Darling ordered this detachment to prevent any possibility of the French annexing the western part of the continent to 132 degrees longitude. Soon after, the colony of Western Australia was established by an Imperial Act of 1829 (10 Geo IV c 22).99 The first Governor, Captain James Stirling,100 sailed up the Swan River on the Parmelia on 1 June 1829 with 800 settlers. He took possession of Western Australia by proclamation on 18 June 1829. The 1829 Act temporarily empowered the Crown to authorise three or more persons to make laws for the peace, order and good government of the settlement, as proposed by the Governor – subject to disallowance and to being laid before both Houses of the Imperial Parliament. By an Order in Council of 1 November 1830, a Legislative Council and Executive Council were established, comprising the Governor and four official nominees. Oddly, Governor Stirling’s Commission and Instructions were not issued until later in March 1831.101 The establishment of a Legislative Council, which first met on 7 February 1832, was remarkably early by comparison with the constitutional evolution of New South Wales and Tasmania.102 During the next 40 years, little by way of constitutional development occurred, other than expansion of the Legislative Council and the creation of the Supreme Court in 1861.103 The Legislative Council was enlarged in 1839 by four non-official members. 98 Quick and Garran, above n 9, 61 who described it as not a Constitution but a ‘graft’ on the 1850 Imperial Act. See also Lumb, above n 20, 34. 99 The title of this Act, ‘An Act to provide until the 31st December 1834, for the government of Her Majesty’s settlement of Western Australia on the western coast of New Holland’, is the first time ‘Australia’ was used in an Imperial Act, following the name suggested by Matthew Flinders in Voyage to Terra Australis (1814): Quick and Garran, above n 9, 33 and 68. Governor Macquarie appears to have been the first to use the name officially in 1817: see Historical Records of Australia, series 1 Vol 9, 747 and note 84, 867–8. Note that 200th anniversary celebrations of the ‘naming’ of Australia occurred on 14 November 2004, being the date in 1804 Flinders’ General Chart of Terra Australis or Australia was dispatched from Mauritius for London. 100 He had lobbied the United Kingdom Government for the establishment of the colony to curtail French interest. 101 Commission dated 4 March 1831 and Instructions dated 5 March 1831. The constitutional validity of the original exercise of power has been questioned: see J. A. Thomson, ‘Western Australia’ (1992) 3 Public Law Review 66 and the authorities listed in fn 1. 102 Brian de Garis, ‘The History of Western Australia’s Constitution and Attempts at Its Reform’ (2003) 31 University of Western Australian Law Review 142, 143. 103 Supreme Court Ordinance 1861 (WA), 24 Vic No 15.

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Lack of economic development prompted the colony to accept convicts in 1849,104 as transportation was being terminated to Tasmania. Consequently, Western Australia was not included with the other colonies in the provision made by the Australian Constitutions Act (No 2) 1850 for the establishment of representative legislatures. Instead, provision was merely made for a representative legislature to be established of elected and non-elected members in the 2:1 proportion if a petition from at least one-third of the colony’s householders sought this – and provided they agreed to bear the full cost of government (s 9). Such a petition was rejected in 1865 by the Legislative Council. Instead, the election of six new members, on the basis of adult male suffrage, was introduced. Throughout this period the Executive Council remained unaccountable to the Legislative Council. Only in 1884 was an elected member of the Legislative Council appointed to the Executive Council. The end of transportation to the colony in 1868 triggered the opportunity for future constitutional evolution. In 1870, a partly representative legislature of 17 elected members and nine nominated members was created. Nevertheless, it took nearly 20 years before full representative and responsible government was achieved pursuant to s 32 of the Australian Constitutions Act (No 2) 1850. A draft Constitution Bill in 1874 was rejected by the Colonial Office as premature. The enormous size of the colony contributed to this view. Despite protests from the Legislative Council, in 1884 Governor Napier suggested the division of Western Australia into two colonies at 26 degrees latitude (near Murchison River). Finally, in 1889 another Constitution Bill was passed pursuant to s 32 of the 1850 Act. It suffered the same fate as the New South Wales and Victorian Constitution Bills by having to be included in a Schedule (as the Constitution Act 1889) to an Imperial Act (53 and 54 Vict c 26) (the Western Australian Constitution Act 1890 (Imp)). The Imperial Act repealed certain repugnant provisions (s 1); retained the requirement for reservation of certain Bills for royal assent (s 2); vested control of the Crown’s waste lands in the legislature (s 3); empowered the legislature to alter any provisions of the Constitution subject to provisions prescribed (s 5); and authorised the Queen by Order in Council to divide the colony or to separate part of it (s 6). But the Act was nearly rejected in the House of Commons on account of concerns over the capacity of the colony to govern such an enormous area of 978,000 square miles.105 Responsible government was finally achieved when the Constitution Act 1889 (WA) received royal assent on 15 August 1890 and came into effect when proclaimed on 21 October 1890. The 1889 Act (as amended) remains in force. It established a bicameral legislature comprised of a Legislative Council of 15 members,

104 See Western Australia Ordinance Enabling Transportation of Convicts to Western Australia (29 December 1849). 105 See Quick and Garran, above n 9, 70. Better support in the House of Lords where the Secretary of State, Lord Knutsford emphasised the need to have all Australian colonies on the same footing in order to achieve federation. See also Robert S. French, ‘Manner and Form in Western Australia: An Historical Note’ (1993) 23 Western Australian Law Review 335, 340.

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initially nominated106 by the Governor but to be elected within six years or once the population reached 60,000,107 and a Legislative Assembly of 30 members elected on the basis of a property franchise. Legislative power was and remains vested in Her Majesty by and with the advice of the Council and Assembly to make laws for the peace, order and good government of the colony of Western Australia.108 Parliament was also empowered to alter the Constitution except that an absolute majority was required in each House for any Bill altering the Constitution of either House.109 Here also, responsible government was only implicitly recognised, particularly in references to executive offices liable to be vacated on political grounds.110 In 1893, the Constitution Act Amendment Act 1893 (WA)111 established a new Legislative Council of 21 elected members and increased the Legislative Assembly to 33 elected members on a less onerous property qualification. In 1899, the Constitution Acts Amendment Act 1899 (WA) enfranchised women and increased the size of the Council to 30 members and that of the Assembly to 50 members.

2.5.4 South Australia South Australia’s origins lie in the proposal of Edward Gibbon Wakefield published in a pamphlet in 1829, A Letter from Sydney,112 to establish a free settlement by selling Crown land at a substantial price to fund the migration of appropriate settlers and the construction of infrastructure, such as roads. After the accounts given by the explorer, Charles Sturt, and the lobbying efforts of the South Australian Association, the Imperial Parliament in 1834 enacted the South Australian Colonisation Act 1834 (Imp)113 to empower the King in Council to establish South Australia as a British Province and to provide for its colonisation and government. Authority was granted to vest in one or more residents power to make laws for the peace, order and good government of the province provided such laws were not contrary to the Act and were laid before the King in Council (ss 1 and 2). The Act also authorised the King in Council to appoint land commissioners to implement a land settlement program. Provision was made for the province to become an ordinary colony by an Order in Council when its population reached 50,000. The boundaries of the province were prescribed by the 1834 Act to be on the north 26 degrees south latitude (roughly across the middle of the continent), on the south the Indian Ocean, on the west 132 degrees longitude, and on the east114 141 degrees longitude, with adjacent islands and bays. This left 106 Nomination was inserted at the instance of the Colonial Office, but the colony’s desire for an elected chamber was merely postponed by six years: Quick and Garran, above n 9, 70. 107 Note s 42 of the Constitution Act 1889 (WA) required 60,000, excluding ‘aboriginal natives’. 108 Section 2 of the 1889 Act. 109 Section 73 – see the historical account of this section in French, above n 105, 340–3. 110 See ss 6, 28, 29, 74. 111 57 Vict No 14. 112 Edited by Robert Gouger. 113 4 and 5 Will IV c 95. 114 The boundary was drawn west of this parallel: see South Australia v Victoria (1911) 12 CLR 667.

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a strip of New South Wales (or ‘no-man’s-land’) between the borders of South Australia and Western Australia (established in 1829) whose western border lay at 129 degrees longitude. This strip of 80,000 square miles between the two colonies was eventually annexed to South Australia on 10 October 1861.115 After intensive lobbying by South Australia,116 the Northern Territory was transferred from New South Wales by Letters Patent of 6 July 1863. Then in 1907, South Australia surrendered the Northern Territory to the Commonwealth on certain conditions.117 Once the prerequisite of the 1834 Act was achieved of land sales worth £35,000, the province of South Australia was established by Letters Patent of 19 February 1836 issued pursuant to the 1834 Act. An Order in Council of 23 February 1836 authorised the Governor to make laws for the province. Governor Hindmarsh issued a proclamation at Glenelg on 28 December 1836118 establishing the government. Power to make laws was vested in the Governor acting with the concurrence of at least two of the Chief Justice, the Colonial Secretary and the Attorney-General. The financial collapse of the colony by May 1841 required the Crown to assume full responsibility for it as a Crown colony. In the following year, at the same time as the Australian Constitutions Act 1842 (Imp) provided for the election of members to the New South Wales Legislative Council, similar provision was made for South Australia by an Imperial Act in 1842 (5 and 6 Vict c 61) which empowered the Crown to establish a bicameral legislature comprised of an elected general assembly and a Legislative Council of elected and nominated members (s 6). Only a Legislative Council was established which comprised, in addition to the Governor, three official members and four members nominated by independent colonists. That Council later established the colony’s first representative legislature in July 1851 pursuant to the Australian Constitutions Act 1850 (Imp). The new Legislative Council, comprising 24 elected and nominated members in the 2:1 proportion, was constituted on 21 July 1851. This Council then acted under s 32 of the 1850 Act to pass the colony’s own Constitution Act. The first Constitution Bill was rejected119 by the Colonial Office in 1853 for exceeding the power in s 32 by purporting to limit the Crown’s right to disallow Bills. A revised 115 By Letters Patent made under the Australian Colonies Act 1861 (Imp) 24 and 25 Vict c 44. 116 Stuart’s trek from Adelaide to Darwin helped: A. Powell, Far Country: A Short History of the Northern Territory (2nd edn, Melbourne: Melbourne University Press, 1988) 73–6. 117 Northern Territory Surrender Act 1907 (SA). One condition was a rail link between Adelaide and Darwin – only achieved in 2004! 118 This is the date adopted for inheriting English law: s 48 Acts Interpretation Act 1915 (SA); previously Ordinance No 2 of 1843 and Act No 9 of 1872. This followed from the effect of a provision of the Foundation Act 1834 (Imp) (4 and 5 Wm IV c 95) which, in authorising the establishment of the colony of South Australia, denied therein continued operation of all New South Wales law ‘as if the province had never had any association with the mother colony’: White v McLean (1890) 24 SALR 97 at 100 per Boucaut J. Followed in Winterbottom v Vardon and Sons Ltd [1921] SASR 364 at 368–9; Delohery v Permanent Trustee Company of New South Wales (1904) 1 CLR 283 at 297. See also Alex C. Castles, ‘The Reception and Status of English Law in Australia’ (1963) 2 Adelaide Law Review 1, 3. 119 The original Act was returned for amendment rather than amended in England, like the New South Wales and Victorian Constitution Acts. There were also protests in the colony against the Assembly’s restricted franchise.

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Bill received royal assent and was proclaimed on 24 October 1856: Constitution Act (No 2) 1855–56 (SA). The first sitting of the South Australian Parliament occurred on 22 April 1857. The Constitution Act 1855 (SA) provided for a Legislative Council of 18 members elected on a property franchise, and a House of Assembly of 36 members elected by adult male suffrage – an Australian first. Like Tasmania’s Constitution Act, no express provision was included in respect of the South Australian parliament’s legislative power, other than to provide that it had the same powers as the old Legislative Council (s 1). While that Council was established pursuant to s 7 of the Australian Constitutions Act 1850 (Imp), s 14 vested legislative power in the Governor of South Australia with the advice and consent of the Legislative Council to make laws for the peace, welfare and good government of the colony. It was this legislative power which was deemed by s 1 of the Constitution Act 1855 (SA) to be vested in the new bicameral parliament. When presented with a Bill for royal assent, the Governor could send a message to either House to suggest amendments (s 28). The parliament was expressly empowered to repeal or alter any provisions of the Constitution, except any Bill altering the ‘constitution’ of either House required an absolute majority in each House at the second and third readings and be reserved for royal assent (s 34). Like the Victorian Constitution, responsible government was implicitly recognised in two constitutional requirements, namely: five principal ministers would lose office if not elected as a member of either House within three months of their appointment (s 32);120 and compensation was provided for those who lost office as a consequence of being unable to be elected a member or losing majority support of their House (s 39).

2.5.5 Victoria The first proposed settlement of Victoria involved the detachment from England in 1803 of Lieutenant-Colonel David Collins with a small number of settlers and 299 convicts to establish a penal settlement at Port Phillip Bay.121 Dissatisfied with the site near Sorrento, Collins continued on to Van Diemen’s Land.122 So the first European settlement of Port Phillip actually began with squatters from Van Diemen’s Land in search of additional grazing lands. As part of New South Wales, the area was eventually accorded the status of a District123 under a superintendent124 in 1839. Three years later, the Australian Constitutions Act 1842 (Imp) provided for the District to be represented by six members in the New South Wales Legislative Council. This did little to placate the long held demands 120 This requirement was adopted in s 64 of the Commonwealth Constitution: Quick and Garran, above n 9, 169. 121 The Bay was named after Governor Phillip by his successor, Governor King, in 1802. 122 See Quick and Garran, above n 9, 52. 123 By 1840, New South Wales comprised three districts: northern (Moreton Bay), middle (Sydney) and southern (Port Phillip). 124 The first superintendent was Charles La Trobe.

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for separation from New South Wales. As a mark of protest, they even elected Earl Grey as the member for Melbourne in 1848!125 Separation was finally achieved pursuant to the Australian Constitutions Act (No 2) 1850 (Imp) which provided for the New South Wales Governor and Legislative Council to first determine126 the electoral boundaries and the number of members of the Legislative Council (in the proportion of 2:1 elected and nominated members) (s 2), and then upon the issue of the writs for the election on 1 July 1851, the colony of Victoria was established (s 5). The first parliamentary sitting occurred on 11 November 1851. The boundaries of the new colony were fixed by s 1 of the 1850 Act on the north-east by a straight line drawn from Cape Howe to the nearest source of the Murray River and then along the Murray River to the border with South Australia at 141 degrees east longitude. Pursuant to s 14 of the 1850 Imperial Act, the Governor of Victoria and the new Legislative Council made laws for the peace, welfare and good government of the colony, subject to the same restrictions as those in New South Wales. Included was the power to alter the Constitution of the legislature and to substitute a bicameral legislature. A Select Committee of the Victorian Legislative Council reported127 on the best form of government with a draft Bill. Modelled on the New South Wales Constitution Bill, the Victorian Bill also exceeded the power conferred by s 32 of the 1850 Imperial Act.128 It was passed by the Legislative Council on 24 March 1853 and reserved for the Queen’s assent. Like the New South Wales Constitution Bill, it was amended by the Colonial Office and enacted in a Schedule to an Imperial Act (the Constitution Statute: 18 and 19 Vict c 55). But it differed in a number of important respects from the New South Wales Constitution Act assented to at the same time. The Victorian Constitution Act129 established a bicameral parliament of two elected Houses: a Legislative Council of 30 members elected on a property or educational franchise, and a Legislative Assembly of 60 members elected on a less onerous property franchise. The traditional formula of legislative power was abandoned in favour of the simpler description: a power ‘to make laws in and for Victoria in all cases whatsoever’ (s 1). The Act prescribed a manner and form provision (s 60) which required any Bill altering the Constitution of either House to be approved by an absolute majority of both Houses130 and reserved for royal assent. Also, responsible government was expressly recognised by requiring that at least four ‘responsible officers’ be members of either House. These officers were defined as: the Colonial Secretary, the Attorney-General, the

125 McMinn, above n 13, 45. 126 Act 14 Vict No 47 (NSW) provided for 30 members in the proportion of 20 elected and 10 nominated. 127 See Report from the Select Committee of the Legislative Council on a New Constitution for the Colony, VPP 1853–4, Vol 3, 587. 128 See Quick and Garran, above n 9, 55–6. 129 For the drafting history of this Act, see J. Waugh, ‘Framing the First Victorian Constitution, 1853–5’ (1997) 23 Monash University Law Review 331. 130 Compared with a two-thirds majority under the New South Wales Constitution.

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Colonial Treasurer, the Commissioner of Public Works, the Collector of Customs, the Surveyor-General, and the Solicitor-General.131

2.5.6 Queensland Queensland’s origins132 began with the establishment in 1824 of a penal station at Moreton Bay in what was then northern New South Wales. Free settlers were permitted to settle in Moreton Bay only in 1842 after the closure of the penal station. Authority was then transferred to Dr Stephen Simpson as the Crown Land Commissioner and to Captain J. C. Wickham as the police magistrate.133 Even before these events, a separate northern colony was contemplated. Accordingly, this prospect was included in the Australian Constitutions Act (No 1) of 1842 which empowered the Queen to erect a new colony provided not south of 26 degrees south latitude (s 51). Unexercised,134 this power was replaced by the Australian Constitutions Act (No 2) of 1850 which provided for separation further south; that is, from 30 degrees south latitude (this included the Northern Rivers region) on petition from the householders of this northern area. This power was continued by the New South Wales Constitution Statute of 1855 (Imp) which empowered the Queen in Council to make ‘in manner as nearly resembling the form of government and legislature established in New South Wales as the circumstances of the new colony would permit’ (s 7). There were various petitions for separation from 1851. Meanwhile, the Moreton Bay District was represented in the New South Wales Legislative Council from 1843 to 1856, and then in the fledgling New South Wales Legislative Assembly from 1856 until separation from New South Wales in 1859. By Letters Patent issued 6 June 1859, the Moreton Bay District was separated from New South Wales as the new colony of Queensland when its first Governor, Sir George Bowen, read the proclamation on 10 December 1859. The colony’s boundaries were defined on the south by a line commencing at the coast at Point Danger at 28 degrees south latitude and proceeding through the Macpherson and Great Dividing Ranges, along the Dumaresq and McIntyre Rivers, and then in line with 29 degrees south latitude to the western boundary at 141 degrees longitude in line with the eastern border of South Australia. In 1862, the strip of land between 141 and 138 degrees longitude was added to Queensland from New South Wales.135 Adjacent islands in the Pacific Ocean and the Gulf of Carpentaria were included. 131 XVIII Victorian Constitution Act 1855 (UK). 132 See P. J. Byrne, ‘The Constitution of Queensland’ (1992) 3 Public Law Review 58. 133 R. Fitzgerald, From the Dreaming to 1915 – A History of Queensland (St Lucia: University of Queensland Press, 1982) 90. 134 Probably because, as suggested in Quick and Garran, above n 9, 72, the boundary needed to be further south to meet the requirements of becoming a colony. 135 Seems this extension followed lobbying by Queensland which was keen to gain the plains around the Albert River as squatters were moving westward and to establish a deep water port at Sweer’s Island: A. Powell, Far Country – A Short History of the Northern Territory (2nd edn, Melbourne: Melbourne University Press, 1988) 3, 73.

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Accompanying the 1859 Letters Patent was an Imperial Order in Council of 1859 which provided for the Constitution of Queensland in terms closely following those of the New South Wales Constitution. Unlike the earlier Constitutions of New South Wales, South Australia, Tasmania and Victoria, the first Queensland Constitution was not the product of local input – rather it was an Imperial Order in Council which was required by s 7 of the New South Wales Constitution Statute (Imp) to follow as closely as possible the New South Wales Constitution. While the 1859 Order in Council empowered the new colony’s parliament to enact its own Constitution, this did not occur until 1867. Significantly, Queensland was the only colony to receive representative and responsible government at the same time as its establishment as a colony. There was no transition from a Governor acting alone or with the advice of a nominated legislative council, as occurred in the other five colonies. The bicameral legislature comprised a Legislative Council of nominated members136 summoned by the Governor with life tenure (except for the first members who were appointed by the New South Wales Governor with a five-year term), and a Legislative Assembly of elected members with a property qualification for a five-year term.137 Legislative power was vested in Her Majesty acting with the advice of both Houses to make laws for the peace, welfare and good government of the colony in all cases whatsoever (s 2). Power was also conferred to alter any provision of the Order in Council and thereby enact a new Constitution, subject to reservation of certain Bills for royal assent. A Bill changing the Legislative Council into an elected chamber required reservation for royal assent before being laid before the Imperial Parliament for 30 days (s 22). The Order in Council of 1859 required the New South Wales Governor to facilitate the first general election for the Assembly. By proclamation, 16 electorates were established to elect one, two or three members for five years. The first sitting of the Queensland Parliament occurred on 22 May 1860. However, doubts later arose over the validity of the election because of the franchise. The franchise applied was that prescribed by s 8 of the Order in Council; namely, the franchise under a New South Wales Act of 1853 which was a property franchise. However, as the New South Wales franchise had been improved in 1858 to one of almost manhood suffrage, this meant that many Queensland electors were disenfranchised by the reversion to the 1853 property franchise. It was argued at the time that the 1858 franchise should apply since ss 1 and 6 of the Order in Council required respectively the establishment in Queensland of a government resembling as far as possible that of New South Wales, and that the whole of the New South Wales Constitution should apply. But the Chief Justice of New South Wales advised that the franchise existing under the Constitution Act 1855 (which

136 At least four-fifths were not to hold any office of emolument under the Crown except as naval or military officers. 137 Decreased to three years in 1890: s 2 Constitution Act Amendment Act 1890 (Qld). This period is effectively entrenched from being extended by s 4 Constitution Act Amendment Act 1934 (Qld).

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applied the 1853 Act) should be applied.138 As further doubts were later raised as to the validity of the election, an Imperial Act (24 and 25 Vic c 44 of 22 July 1861) was passed to validate all Acts performed under the Order in Council of 1859. Yet, the 1853 property franchise continued to apply in Queensland until 1872.139 As contemplated by clause 22 of the 1859 Order in Council, the Queensland Parliament finally managed to enact its own Constitution on 28 December 1867: Constitution Act 1867 (Qld).140 Apart from federation, the next most significant constitutional event to occur in Queensland was the abolition of the Legislative Council on 23 March 1922141 after the appointment of new members who agreed to pass the necessary legislation.142 Similar attempts in 1926 and 1930 to abolish the Council in New South Wales were unsuccessful.

2.5.7 New Zealand A short note on the comparative constitutional evolution of New Zealand143 seems appropriate, given that it was a dependency of New South Wales for an interim period from 1839 to 1841. Captain Cook purported to take possession of New Zealand in 1769, although Abel Tasman was the first European to visit the islands in 1642. From the beginning of the 19th century, British traders settled there. Lacking any British Government presence, lawlessness increased despite attempts by Governor Macquarie between 1814 and 1819 to restore order by appointing missionaries as justices of the peace.144 By 1823, New Zealand was under the nominal protection of New South Wales with the Supreme Court having jurisdiction over the small coastal settlements.145 No British government was established until after the New Zealand Company purported to take possession of the islands at Port Nicholson (later Wellington) in 1839. By Letters Patent issued on 15 June 1839, the islands of New Zealand were included within the boundaries of New South Wales so far as they were then or in the future under the sovereignty of the Crown.146 On 30 July 1839, Captain William Hobson was appointed Lieutenant-Governor under Governor Gipps of New South Wales. Captain Hobson arrived in the Bay of Islands on 30 January 1840 to negotiate the Treaty of Waitangi. Pursuant to that Treaty, Hobson proclaimed sovereignty over the islands on 21 May 1840 which the Crown approved 138 The letter is published as an enclosure in the Queensland Government Gazette 31 December 1859, 20–1. 139 Melbourne, above n 11, 450–1. 140 Note the consolidation of this Act with subsequent constitutional provisions in the Constitution of Queensland 2001. 141 Constitution Act Amendment Act 1922 (Qld) s 2. A referendum is required to establish another ‘legislative body’: Constitution Act Amendment Act 1934 (Qld) s 3. 142 See the account given in H. V. Evatt, The King and his Dominion Governors (2nd edn, Melbourne: F. W. Cheshire, 1967) Chapter XVI, 140–5. 143 See Quick and Garran, above n 9, 75–8. 144 See Joseph, above n 81, 35, who claims that Governor Macquarie regarded New Zealand as a dependency of New South Wales on the dubious ground that it fell within the territory of the colony as defined in the 1786 Order in Council to include ‘all the islands adjacent’! 145 See Quick and Garran, above n 9, 75. 146 See Joseph, above n 81, 36, who claims that sovereignty had not yet been claimed.

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and gazetted on 2 October 1840. New Zealand became a separate colony by Letters Patent issued pursuant to an Imperial Act (the New South Wales Continuance Act 1840 (Imp) (3 and 4 Vic c 62)147 on 16 November 1840 and proclaimed on 3 May 1841. These Letters Patent provided the first Constitution of New Zealand. Hobson was appointed the Governor with an Executive Council. The 1840 Act authorised the establishment of a Legislative Council with power to make laws for the peace, order and good government of the colony. The first Legislative Council comprised the Governor and six nominated members. Representative government was provided for in the Constitution Act 1846 (Imp) but the proposed complex web of provinces and indirect elections was never fully implemented. It was superseded by the New Zealand Constitution Act 1852 (Imp) which established a General Assembly comprising a Legislative Council of appointed members for life and an elected House of Representatives to make laws for the peace, order and good government of New Zealand. The General Assembly first sat on 25 May 1854 – earlier than any sitting of an Australian parliament. A system of provinces was established but they were abolished in 1875. The General Assembly was given power to amend the 1852 Imperial Act subject to reservation of Bills for the Queen’s assent. Joseph observes that apart from the Maori wars in the 1860s and the issue of federating with Australia, ‘New Zealand’s progression from Crown colony to independent sovereign State has been regular, continuous and uneventful’.148 Dominion status was obtained only in 1947 when New Zealand adopted the Statute of Westminster 1931 (Imp), five years after the Commonwealth.149 This reluctant adoption was only prompted in order to abolish the Legislative Council. The Council was entrenched as part of the bicameral parliament established under s 32 of the New Zealand Constitution Act 1852 (Imp). Accordingly, New Zealand sought the power to reconstitute parliament by acting under s 4 of the Statute of Westminster to request and consent imperial legislation to confer such power.150 Duly empowered by the New Zealand Constitution (Amendment) Act 1947 (UK) to alter, suspend, or repeal the 1852 Imperial Act, the New Zealand Government then appointed 28 new members to the Council to ensure the passage of the Legislative Council Abolition Act 1950 (NZ) through the Council itself.151 Following a number of constitutional enactments152 including the Royal Titles Act 1974 (NZ) which adopted the title of Queen of New Zealand, and the issue of new Letters Patent for the Governor-General in 1983,153 a consolidated Constitution was enacted – the Constitution Act 1986 (NZ). By revoking the application of

147 Empowered Her Majesty to erect into a new colony any islands within New South Wales. 148 Joseph, Constitutional and Administrative Law in New Zealand (Sydney: Law Book Company, 1993) 107. 149 Statute of Westminster Adoption Act 1947 (NZ). 150 New Zealand Constitution Amendment (Request and Consent) Act 1947 (NZ); New Zealand Constitution (Amendment) Act 1947 (UK). 151 See Joseph, above n 148, 113–16. 152 See, for example, New Zealand Constitution Amendment Act 1973 (NZ). 153 Letters Patent Constituting the Office of the Governor-General of New Zealand (1983).

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the Statute of Westminster 1931 to New Zealand and United Kingdom legislative power over New Zealand, this Act has terminated all residual constitutional links with the United Kingdom.

2.6 Federation and statehood In view of the history of the constitutional evolution of the six colonies during the first half of the 19th century, it is perfectly understandable that the suggestion of some form of federation did not attract the imagination of the people during that period. Their objectives were to survive and prosper economically and to achieve representative and responsible government for their own colony. Only a few saw beyond that point to a future nation state. Once representative and responsible government was achieved in all colonies except Western Australia by the end of the 1850s, the political foundation was then established for the next stage of constitutional evolution. This opportunity was recognised both in Australia154 and Britain. Indeed, the earliest official push155 for some form of union actually came from Britain as preparations were in progress for granting representative and responsible government. Earl Grey’s famous despatch of 31 July 1847 that proposed the creation of Victoria also suggested ‘the creation of a central legislative authority for the whole of the Australian colonies’ to legislate for common issues. This suggestion derived in part from concerns of intercolonial tariff wars between four colonies, especially with the separation of Victoria from New South Wales. Earl Grey’s despatch aroused outrage in the colonies for his failure to consult with them. Nor were they interested in qualifying their highly sought independence.156 Nonetheless, the Colonial Office pursued the idea and so in 1849, a subcommittee of the Privy Council, the Committee for Trade and Plantations, was asked by Earl Grey to report on constitutional changes to the Australian colonies. To resolve the border tariff issue, their report recommended a central authority to regulate a uniform intercolonial tariff – a ‘General Assembly of Australia’. This body would comprise a House of Delegates of between 20 to 30 members elected by the colonial legislatures. Power to convene that body was to be vested in one of the colonial governors as Governor-General of Australia. The General Assembly would have legislative power over 10 topics, including duties on imports and exports, the conveyance of letters, intercolonial roads and railways, lighthouses, weights and measures, a general Supreme Court, and on any other topic affecting all the represented colonies at their request. This list bears a remarkable similarity 154 Both the New South Wales and Victorian Select Committees, which proposed their respective colonies’ new Constitutions in the 1850s, recommended a federal union: Ward, above n 12, 9. 155 The first officially recorded reference to the need for some form of federation of the Australian colonies is said to have come from Governor Fitzroy in his despatch to the Colonial Office on 29 September 1846; see Quick and Garran, above n 9, 80. 156 Cf the view that the separatists contemplated some form of nation: Brown, above n 40, 493.

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with the list of Commonwealth legislative powers in s 51 of the Commonwealth Constitution. A Bill adopting these recommendations and imposing the requirement of a uniform tariff between the Australian colonies was introduced to the Imperial Parliament in 1849. Eventually the clauses giving effect to these recommendations were dropped from the Bill enacted,157 the Australian Constitutions Act (No 2) 1850. However, the suggestion of a Governor-General of Australia was acted on with the issue of such a commission to the Governors of New South Wales, beginning with Governor Fitzroy in 1851 and ending with Governor Young in 1861. During the second half of the 19th century the colonies gradually realised the advantages to be gained from an Australian federation – despite the rupturing of the United States’ federal system by the American Civil War. In particular, those advantages included their enhanced standing in London as a united group of colonies, and the benefits of uniform legislation addressing common needs or concerns, such as border tariffs and the prevention of the influx of criminals from Pacific islands. As support gathered for some form of federation, the focus turned to what type of federal system was best, and how that might be achieved. Several parliamentary inquiries were held in the 1850s in New South Wales, Victoria and South Australia, and in 1870 Victoria established a Royal Commission to report on the necessity of a federal union. Intercolonial conferences between 1863 and 1880 also promoted uniform legislation on lighthouses, postal and telegraphic services, immigration and defence. Until 1883, little had been achieved but two events at that time encouraged further progress: the joining of the railway between Sydney and Melbourne at the Murray River; and growing concerns of territorial annexations by France and Germany in the Pacific. The latter prompted Queensland in April 1883 to purport to annex New Guinea. This led to a conference in Sydney in November 1883 between all six Australian colonies, New Zealand and Fiji. From that conference emerged a Bill, drafted by Samuel Griffith, to establish the Federal Council of Australasia. Griffith’s draft Bill was later enacted in a slightly modified form as the Federal Council of Australasia Act 1885 (Imp). This development was not universally embraced. The 1885 Act was adopted only by Queensland, Tasmania, Victoria, Western Australia and Fiji. South Australia joined for only two years (1888–90). New South Wales refused to join at all. And Fiji was represented only at the first meeting of the Federal Council in Hobart from 25 January to 5 February 1886. The 1885 Act only created a legislative body, the Federal Council of Australasia, which comprised two representatives from each of the participating colonies with one from Western Australia and Fiji (as Crown colonies). Required to meet at 157 The failure of the federal experiment in New Zealand in the 1840s contributed to this: Ward, above n 12, 3.

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least once every two years, the Federal Council was empowered to legislate on a range of prescribed matters including the two concerns which prompted its establishment: the relations of Australia with the islands of the Pacific; and the prevention of the influx of criminals. Royal assent to Bills passed was to be given by the Governor in whose colony the Council was then sitting. Meeting only every two years, and lacking the membership of New South Wales, the Federal Council barely functioned – only a total of nine Acts were passed. It was soon eclipsed by the growing movement for full federation at the constitutional conventions of the 1890s. The Federal Council last met in Melbourne in January 1899. The establishment of federation on 1 January 1901 brought to an end a decade of intense negotiation and discussion over the drafting of the Commonwealth Constitution. A conference of the six Australian colonies and New Zealand in 1890 recommended a national Australasian convention which convened in Sydney on 2 March 1891. Seven representatives from each of the colonies were appointed by their respective parliaments. Before proceeding to draft a Constitution Bill, the convention passed several resolutions which identified certain fundamental principles for federation and its essential structure: 1. That the powers and privileges and territorial rights of the several existing Colonies shall remain intact except in respect to such surrenders as may be agreed upon as necessary and incidental to the power and authority of the National Federal Government. 2. No new State shall be formed by separation from another State, nor shall any State be formed by the junction of two or more States or parts of States, without the consent of the Legislatures of the States concerned as well as the Federal Parliament. 3. That the trade and intercourse between the federated Colonies, whether by land carriage or by coastal navigation, shall be absolutely free. 4. That the power and authority to impose Customs duties and duties of excise upon the goods the subject of Customs duties and to offer bounties shall be exclusively lodged in the Federal Government and Parliament, subject to such disposal of the revenues thence derived as shall be agreed upon. 5. That the naval and military defence of Australia shall be entrusted to federal forces under one command. 6. That provision shall be made in the Federal Constitution which will enable each State to make such amendments in its Constitution as may be necessary for the purposes of the federation. Subject to these and other necessary conditions, this Convention approves the framing of a Federal Constitution which shall establish: 1. A Parliament which shall consist of a Senate and a House of Representatives, the former consisting of an equal number of members from each Colony, to be elected by a system which shall provide for the periodical retirement of one-third of the members, so securing to the body itself a perpetual existence combined with definite responsibility to the electors, the latter to be elected by districts formed on a population basis and to possess the sole power of originating all Bills, appropriating revenue, or imposing taxation. 2. A judiciary consisting of a Federal Supreme Court which shall constitute a High Court of Appeal for Australia.

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3. An executive consisting of a Governor-General and such persons as from time to time may be appointed as his advisors.158

The first draft of the Constitution, reflecting these resolutions, was produced by the drafting committee, which was made up of Griffith (chairman), Barton, Inglis Clark and Kingston, while cruising the Hawkesbury River on the Queensland Government yacht, the Lucinda. The deliberations of three other committees which had respectively discussed the areas of constitutional functions, finance and the judiciary, formed the basis for the draft, along with earlier drafts written by Andrew Clark and Charles Kingston. The 1891 draft Constitution Bill adopted by the convention became the basis for future drafts. Although the convention recommended the submission of the Bill to the people of each colony, this did not occur. The Bill was ‘shelved’ but popular support for federation continued to grow, aided by resolutions of the conference organised by the Australian Natives’ Association in Corowa in 1893 which called for another constitutional convention – this time with representatives from each colony directly elected by their people. A Premiers’ Conference in 1895 endorsed such a convention to comprise 10 delegates elected from each colony. The convention was to draft a Constitution Bill for imperial enactment if approved by the people of three or more colonies. The first session of the convention was held in Adelaide from 22 March to 5 May 1897 with elected representatives from all Australian colonies except Queensland and Western Australia. While Western Australia sent a delegation elected by its parliament, Queensland sent no representatives, as its parliament was unable to agree on whether they should be elected by the people or appointed by parliament.159 Nor was the Queensland Government supportive of federation, given the opportunity it might provide for the separation of the central and northern areas of the colony. The drafting committee this time comprised Barton, O’Connor and Downer. Based on the 1891 draft, this convention produced the 1897 draft which was later submitted to the parliaments of the five colonies. Amendments were proposed at the second session of the convention in Sydney in September 1897, followed by the third session in Melbourne from 20 January to 17 March 1898. The Bill was then submitted in June 1898 to a referendum in four colonies: it was approved by a majority of electors in South Australia, Tasmania and Victoria, but failed in New South Wales. No referendum occurred in Western Australia nor in Queensland. Following a change of government in New South Wales, the New South Wales Legislative Assembly suggested several amendments to the Bill which were later accepted at a Premiers’ Conference (of all six colonies) in Melbourne in January 158 W. H. Moore, The Constitution of the Commonwealth of Australia (2nd edn, Melbourne: Charles F. Maxwell (G. Partridge and Company) 1910) 41–3. 159 See G. Bolton and D. Waterson, ‘Queensland’ in H. Irving (ed), The Centenary Companion to Australian Federation (Cambridge: Cambridge University Press, 1999) 101–5.

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1899. The revised Bill was then approved by a majority of electors in a second referendum in June 1899 in New South Wales, South Australia, Tasmania and Victoria. In September, it was also approved by referendum in Queensland. The following table provides a breakdown of the votes in both referenda. Votes for and against Federation, Australian Colonies ∗ Second Vote (1899, 1900)

First Vote (1898) Colony

For

New South Wales Victoria South Australia Tasmania Queensland Western Australia Total

71 595 100 520 35 800 11 797 – – 219 712

Against 66 228 22 099 17 320 2 716 – – 108 363

For

Against

107 420 152 653 65 990 13 437 38 488 44 800 422 788

82 741 9 805 17 053 791 30 996 19 691 161 077

∗

Reproduced from S. Bennett, Department of the Parliamentary Library, Australian Bureau of Statistics, Special Article – Australian Federation at <www.abs.gov.au> (accessed 25 August 2005).

The approved Bill was sent to London with addresses from the five colonial legislatures seeking its enactment by the Imperial Parliament. After certain amendments, particularly to s 74 to allow for appeals to the Privy Council from the High Court on inter se questions160 with the certificate of the High Court, the Bill was passed by both Houses and received royal assent from Queen Victoria on 9 July 1900. Western Australia by referendum agreed to join as the sixth State on 31 July 1900. A proclamation by the Queen issued on 17 September 1900 decreed that federation of the six colonies under the Commonwealth of Australia Constitution Act 1900 (Imp) was to occur on 1 January 1901.

2.6.1 Sections 106 and 107 The effect of federation was to transform the self-governing British colonies into States of the Commonwealth of Australia.161 The Commonwealth Constitution and its covering clauses do not expressly provide for this transformation, except for covering clause 6 which defines ‘States’ as those colonies which form parts of the Commonwealth. It is also implicit in covering clauses 5, 7 and 8 which refer to the States. More reliance, however, is placed on ss 106 and 107 of the Commonwealth Constitution which provide for the continued operation of the State ‘Constitutions’ and of their legislative powers: 160 This expression refers to decisions which involve the limits of power inter se between the Commonwealth and the States, or between the States. 161 Victoria v The Commonwealth (Payroll Tax case) (1971) 122 CLR 353 at 371 per Barwick CJ.

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s 106 The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State. s 107 Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.

Whether s 106 does more than merely ensure the continued operation of the State Constitutions subject to the Commonwealth Constitution remains unclear. Quick and Garran suggest that s 106 may have picked up the State Constitutions and subsumed them into the Commonwealth Constitution as part of its text: [I]t may be argued that the Constitutions of the States are incorporated into the new Constitution, and should be read as if they formed parts or chapters of the new Constitution . . . The whole of the details of State Government and Federal Government may be considered as constituting one grand scheme provided by and elaborated in the Federal Constitution; a scheme in which the new national elements are blended harmoniously with the old provincial elements, thus producing a national plan of government having a Federal structure.162

This is not a view which has attracted specific judicial support. But there is judicial support for the view that the State Constitutions are at least sourced in the Commonwealth Constitution. Barwick CJ in the Seas and Submerged Lands Act case observed: On the passage of the Imperial Act, those colonies ceased to be such and became States forming part of the new Commonwealth. As States, they owe their existence to the Constitution which, by ss 106 and 107, provides their constitutions and powers referentially to the constitutions and powers which the former colonies enjoyed, including the power of alteration of those constitutions.163

This view was adopted by Brennan CJ in McGinty v Western Australia164 in recognising a dual operation of s 106: Its first operation is to prescribe what the new elements of the Federal polity – the States – shall be. When the people of the Australian colonies were united in the Commonwealth of Australia by the proclamation made pursuant to Covering Cl 3 and those Colonies became Original States of the Commonwealth by operation of Covering Cl 6, the Colonies – the old constitutional entities – acquired a new constitutional status. They became States, as the text of ss 107 and 108 shows, deriving their existence as States from the Commonwealth Constitution.165 Secondly, s 106 conferred on the respective 162 Ibid 930. 163 New South Wales v The Commonwealth (1975) 135 CLR 337 at 372. See also China Ocean Shipping Co v South Australia (1979) 145 CLR 172 at 182 per Barwick CJ. 164 (1996) 186 CLR 140 at 171–3. Cf the comment of Douglas Graham, ‘State Constitutions’ (2001) 75 Australian Law Journal 600–1. 165 Victoria v The Commonwealth (1971) 122 CLR 353 at 371.

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States substantially the Constitutions of the antecedent Colonies.166 The same Constitutions as had been conferred on the Colonies prior to 1 January 1901 were continued as the Constitutions of the respective States thereafter, subject to such modifications as were effected by the Commonwealth of Australia Constitution Act 1900 (Imp) and the Commonwealth Constitution.

Toohey J in McGinty also accepted that State legislative power is sourced in s 106,167 relying, in addition, on comments by Murphy J in Commonwealth v Queensland,168 Bistricic v Rokov169 and Western Australia v Wilsmore.170 Professor Lane endorsed this view, describing the function of s 106 as one ‘to transmogrify colonial Constitutions into State Constitutions’.171

2.7 Democratic accountability: sovereignty of the people Since federation in 1901, the States have maintained their capacity to alter their own Constitutions – subject to those few restrictions imposed by binding manner and form provisions, the Commonwealth Constitution and imperial paramount law. Only Western Australia retains the original imperial enactments, all other States having enacted their own Constitution Acts, and in some cases more than once. Significant changes made to the States’ constitutional systems since federation include the adoption of the universal franchise, fixed terms for parliament, the establishment of parliamentary committees to scrutinise executive functions, and the adoption of various integrity monitors such as codes of conduct and registers of interests for members of parliament, ministers and officials. These changes are responses to a range of forces which emanate from the fairly recent recognition, given both politically and legally, to the shift in real sovereignty from the Crown to the people. Flowing from the sovereignty of the people is the need for greater accountability and transparency in the exercise of power. Most changes are designed to achieve those objectives. They also attempt to alleviate the disproportionate shift in power from parliament to the Executive as a result of the burgeoning increase in government bureaucracy. What has been occurring at the State level in this regard has also occurred at the Commonwealth level. At the same time, the constitutional relationship between the Commonwealth and the States has been evolving within the boundaries of the Commonwealth Constitution. Most significant has been the resolution of 166 China Ocean Shipping Co v South Australia (1979) 145 CLR 172 at 182. 167 (1996) 186 CLR 140 at 171–3 at 208. 168 (1975) 134 CLR 298 at 336–7. 169 (1976) 135 CLR 552 at 566. Cf Western Australia v Wilsmore [1981] WAR 179 at 182–3 per Burt CJ who relied on Southern Centre of Theosophy Inc v South Australia (1979) 145 CLR 246 and China Ocean Shipping Co v South Australia (1979) 145 CLR 172 at 182 as holding that the sole source of State authority was imperial. As Zines observed in The High Court and the Constitution (4th edn, Butterworths 1997, 341 fn 13), Burt CJ appears to have misinterpreted Barwick CJ in the latter decision. 170 (1982) 149 CLR 79 at 86. 171 P. H. Lane, Lane’s Commentary on the Australian Constitution (Sydney: Law Book Company 1986) 565.

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constitutional battles fought in the High Court over each level’s scope of power. States have regularly challenged the validity of Commonwealth enactments, and vice versa. The interpretation of the heads of Commonwealth legislative power and of the constitutional restrictions on State power, as well as the characterisation of Commonwealth enactments, have determined the balance of powers between the two levels of government. That balance has shifted in favour of the Commonwealth at least since the First and Second Uniform Taxation cases,172 although the foundation for that shift was laid earlier in the Engineers case.173 One of the more significant recent developments for State constitutional systems has been the extension to the States of new restrictions implied from the Commonwealth Constitution, in particular, the implied freedom of political communication and restrictions derived from Chapter III, seen especially in Kable v Director of Public Prosecutions of NSW.174 These restrictions are considered further below.175

2.8 Termination of imperial power and restrictions: Australia Acts 1986 The most significant formal change to the constitutional systems of the Australian States since federation occurred in 1986 with the enactment of dual Australia Acts – one by the Commonwealth Parliament and one by the United Kingdom Parliament. Their principal effect was to terminate prospectively, with one important exception, all remaining constitutional links between Australia (both Commonwealth and States) and the United Kingdom. The exception is, of course, the continued adoption of the United Kingdom Monarch as Queen of Australia and thus as head of the Crown in right of the Commonwealth, and the States. The severance of constitutional ties, as at the commencement of the Acts on 3 March 1986, relates to all three branches of government: legislative, executive and judicial. By s 1, no United Kingdom legislation passed after the commencement of the Act on 3 March 1986 extends to the Commonwealth, the States or the territories as part of their law.176 By s 10, the United Kingdom Government no longer possesses executive authority in relation to the Australian States.177 And by s 11 the right of appeal to the Judicial Committee of the Privy Council is terminated 172 South Australia v The Commonwealth (First Uniform Tax case) (1942) 65 CLR 373 and Victoria v Commonwealth (Second Uniform Tax case) (1957) 99 CLR 575. 173 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129. 174 (1996) 189 CLR 51. 175 The implied freedom of political communication is considered in Chapter 3 and the implied freedoms from Chapter III are considered in Chapter 10. 176 Note that s 1 does not purport to abrogate United Kingdom legislative power as such. But it does prevent its recognition in Australia as part of Australian law: see the joint judgment of Gleeson CJ, Gummow and Hayne JJ in Sue v Hill (1999) 199 CLR 462 at 491. 177 The fact that the proclamation on 8 March 1986 of new Letters Patent, dated 14 February 1986 under the Royal Sign Manual and the Great Seal of the United Kingdom, reconstituting the Office of the Queensland Governor, occurred after the commencement of the Act on 3 March was irrelevant: Dooney v Henry (2000) 174 ALR 41 at 49 [21] (Callinan J alone). See also McKewins Hairdressing and Beauty Supplies Pty Ltd v DCT (2000) 171 ALR 335 at 337–40 [8]–[18].

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in respect of all matters. The relationship which continues between the Queen and the States is redefined to establish a direct line of communication between each State Premier and the Queen (s 7(5)).178 The Australia Acts also remove or redefine a number of restrictions on State power. The Colonial Laws Validity Act 1865 (Imp) is repealed in its application to the States (s 3(1)). The doctrine of repugnancy is mostly abolished (s 3(2)) except for restrictions on repealing or amending the Statute of Westminster 1931 (Imp) and the Australia Act itself (s 15). The capacity to legislate extraterritorially and to entrench legislation by manner and form are redefined as restrictions (ss 2(1) and 6). The Queen’s powers to disallow or suspend State legislation are abolished (s 8). And State laws are no longer subject to withholding of royal assent or to reservation therefore (s 9). At least four significant factors led to the enactment of the Australia Acts in 1986: ● There was a longstanding recognition of the need to extend to the States the same autonomy as enjoyed by the Commonwealth under the Statute of Westminster 1931 (Imp).179 It appears the States originally requested exclusion from that statute to ensure their position in the federation was not undermined.180 ● The desire to abolish all appeals to the Judicial Committee of the Privy Council from State Supreme Courts to avoid clashes between the High Court and the Privy Council.181 The risk of a clash increased in 1975 with the abolition of appeals from the High Court.182 ● The difficulty in repealing paramount United Kingdom law in relation to the Australian States. The States continued to lack this power by virtue of s 2 of the CLVA. At the same time, there was doubt whether the Commonwealth had the power to remove these restraints. Two possibilities existed: using the external affairs power s 51(xxix);183 or the power conferred by s 2(2) of the Statute of Westminster. In 1985, the High Court decision in Kirmani v Captain Cook Cruises Pty Ltd (No 1)184 failed to resolve this doubt as the majority of the Court split between these two options.185 178 Note that before this, advice was tendered by the Premier through the Office of the Prime Minister to the Palace or to the British Government – except for the appointment of Governors and the conferral of honours: see P. Hasluck, The Office of Governor-General (Melbourne: Melbourne University Press, 1979) 27. 179 See Lumb, above n 20, 111. 180 Sawer described this as a ‘grotesque constitutional situation’ in G. Sawer, Australian Federal Politics and Law, Vol 2 1929–1949, 1963, 33; A. C. Castles, An Australian Legal History (Sydney: Law Book Company, 1982) 416–17. 181 See, for example, Privy Council Appeals Abolition Bill 1979 (NSW) which requested the Commonwealth and the United Kingdom Parliaments to abolish appeals. The Commonwealth was reluctant to act on this and the United Kingdom Government required all States to agree: J. Goldring, ‘The Australia Act 1986 and the Formal Independence of Australia’ [1986] 192 Public Law 195. 182 Privy Council (Appeals from the High Court) Act 1975 (Cth). 183 This view was put by Geoffrey Sawer, ‘The British Connection’ (1973) 47 Australian Law Journal 113 at 115–17. The case for rejecting s 51(xxix) was put by J. M. Finnis, ‘The Responsibilities of the United Kingdom Parliament and Government under the Australian Constitution’ (1983) 9 Adelaide Law Review 91, 100–3. 184 (1985) 159 CLR 351. 185 The majority of Mason, Murphy, Brennan and Deane JJ upheld the validity of s 104(3) of the Navigation Amendment Act 1979 (Cth) which repealed s 503(1) of the Merchant Shipping Act 1894 (UK) in its application to New South Wales. Mason, Murphy and Deane JJ relied on s 51(xxix), while Brennan J relied on s 2(2) of the Statute of Westminster.

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Further impetus was provided by the patriation of the Canadian Constitution in 1982 by the Canada Act 1982 which terminated the power of the United Kingdom Parliament to make laws for Canada.

A broader perspective of the forces at work in the enactment of the Australia Acts is provided by Goldring: The Australia Act can be said to be the product of an unusual combination of factors: the self-interest of State politicians; idealism on the part of nationalist lawyers (especially the former Commonwealth Attorney-General, Senator Gareth Evans QC), who have been offended by the irrationality of the Imperial link in a society where the relative political independence of Australia from the UK has been beyond doubt for decades; desire on the part of administrators, both State and Federal, for rationality and certainty about the status of Australian legislatures and courts; and the relative weakness of the desire on the part of some members of the Australian Bar for the retention of Privy Council appeals, coupled with commercial and popular resentment of the cost and delay caused by such appeals.186

2.8.1 Legislative package Agreement was reached at the Premiers’ Conferences in 1982 and 1984 to sever the remaining constitutional links between Australia and the United Kingdom.187 The agreed strategy was for the Commonwealth and the United Kingdom to enact identical Acts. The Commonwealth’s Australia Act 1986 was enacted pursuant to s 51(xxxviii) which provides: The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia.

Accordingly, each State enacted an Australia Acts (Request) Act 1985 requesting the Commonwealth to enact the Australia Act pursuant to s 51(xxxviii), and to consent to the Commonwealth requesting the United Kingdom Parliament for a United Kingdom Act in the same terms. Reliance on s 51(xxxviii)188 was based on the fact that the provisions of the Australia Act (Cth) dealt with matters which 186 Goldring, above n 181, 204. Cf Finnis, above n 183, 91 who argued that the United Kingdom recognised that it would not interfere at the request of the Commonwealth in matters which solely concerned the States: see the 1935 Report by the Joint Committee of the House of Lords and the House of Commons appointed to consider the Petition of Western Australia (HL Paper 52, 75; HC Paper 88 (1935), para 9, ix). This was also recognised by s 9 of the Statute of Westminster and the parliamentary statements of Evatt when he introduced the Statute of Westminster Adoption Act in 1942. 187 For a detailed account of this background see Anne Twomey, The Constitution of New South Wales (Federation Press 2004) 75–92. 188 Finnis, above n 183, 103, fn 41. Finnis cites a series of letters by himself, Byers etc. over the issue whether there are matters exclusively of concern to the States or whether the Commonwealth has an interest in all such matters: see (1982) 56 Australian Law Journal 316–18 (1981) 55 Australian Law Journal 360, 701, 763, 829, 893. Goldring, above n 181, 196 credits this use of the power to A. R. Blackshield, The Abolition of Privy Council Appeals (Adelaide: Adelaide University Law Review Association, 1978) Chapter 3. Reliance on s 51(xxxviii) upheld by Debelle J in Amarantos v South Australia (2004) 205 ALR 459 at 476 [47–8].

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only the United Kingdom Parliament could have legislated for immediately prior to federation in 1901. The United Kingdom enacted the Australia Act 1986 (UK) in practically identical terms to the Commonwealth Act. As its long title states, this enactment was made at the request of the Commonwealth Parliament and Government pursuant to s 4 of the Statute of Westminster 1931 and with the consent of all the States.

2.8.2 Reasons for dual legislation There were both political and legal grounds for dual Commonwealth and United Kingdom Australia Acts. As Lumb explained,189 it was thought ‘necessary to preserve the integrity and effectiveness of the process’ by having both an ‘indigenous’ and ‘traditional’ process. Politically, the United Kingdom enactment was seen as ratifying the final chapter in the constitutional evolution of the Commonwealth and the States. So it was appropriate that the ‘mother parliament’ give its seal of approval to the final legal severance of constitutional ties.190 Legally, dual legislation was enacted to ensure the validity of the Commonwealth Act, thereby avoiding doubts being raised in legal challenges.191 This was only the second time that s 51(xxxviii) had been used. The first occasion was in relation to the Coastal Waters (State Powers) Act 1980 (Cth) which conferred on the States additional powers over the territorial sea and high seas. Of particular concern in relation to the Australia Act (Cth) was whether a Commonwealth law enacted pursuant to s 51(xxxviii) could alter a ‘State Constitution’, given its continued force under s 106 of the Commonwealth Constitution. And especially since that phrase in s 106 could be interpreted widely to incorporate imperial paramount laws such as the CLVA. With both s 106 and s 51(xxxviii) expressly ‘subject to this Constitution’, their relationship was unclear. These concerns were subsequently resolved after the passage of both Australia Acts in 1989 in Port MacDonnell Professional Fishermen’s Assn Inc v South Australia.192 While strictly unnecessary to the decision in that case, the joint judgment of the Court found that s 5(c) of the Coastal Waters (State Powers) Act 1980 was validly enacted pursuant to s 51(xxxviii). Section 5(c) provided that State legislative power would extend to the making of fisheries laws beyond State coastal waters. It was an exercise of exclusive United Kingdom power (before federation) so far as it confirmed and if necessary conferred a power on the States.193 As for s 106, the Court concluded that although both s 51(xxxviii) and s 106 are expressly made ‘subject to the Constitution’, the former was not confined 189 Lumb, above n 20, 110. 190 Goldring, above n 181, 200: placate those who felt the United Kingdom should sever the ties. 191 See Commonwealth Attorney-General’s Explanatory Memorandum (15920/85); L. Zines, The High Court and the Constitution (4th edn, Sydney: Butterworths, 1997) 305–6; Lumb, above n 20, 110; P. Hanks, P. Keyzer and J. Clarke, Australian Constitutional Law: Commentary and Materials (7th edn, Sydney: Butterworths 2004) 211. 192 (1989) 168 CLR 340. 193 Ibid 380–1.

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by the latter. The Court emphasised the need to give s 51(xxxviii) a broad interpretation ‘which befits it as a constitutional provision with a national purpose of a fundamental kind’,194 given one of its functions was ‘that of plugging gaps which might otherwise exist in the overall plenitude of the legislative powers exercisable by Commonwealth and State Parliaments under the Constitution.’195 Accordingly, the Court concluded: [A]s the purpose of s 51(xxxviii) of the Constitution is to ensure that a plenitude of residual legislative power is vested in and exercisable in co-operation by the Parliaments of the Commonwealth and the States, the dilemma which is posed by the inclusion of the words ‘subject to this Constitution’ in both par (xxxviii) and s 106 must be resolved in favour of the grant of power in par (xxxviii). The result is that the continuance of the Constitution of a State pursuant to s 106 is subject to any Commonwealth law enacted pursuant to the grant of legislative power in par (xxxviii).196

This decision has since been followed in Attorney-General (WA) v Marquet197 to uphold the validity of s 6 of the Australia Act 1986 (Cth)198 as a law within s 51(xxxviii).199 In so holding, the joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ was responding to the remarkable judgment of Kirby J who considered both Australia Acts to be invalid.200 Despite the lack of submissions on the issue, his Honour rejected the view taken in Port MacDonnell to hold the Australia Act 1986 (Cth) invalid for purporting to amend the State Constitutions and hence ss 106 and 107 of the Constitution without complying with s 128: However desirable particular provisions of the Australia Act 1986 (Cth) may seem to be, it is a statute of one constituent part of the Commonwealth purporting to alter the Constitutions of other constituent parts of the Commonwealth made without the one essential and undoubted ‘entrenched’ requirement for such alterations, namely the participation of the electors of the Commonwealth in an amendment approved by them in accordance with s 128.201

With respect, his Honour is giving insufficient weight to the fact that any change to a State Constitution made by a Commonwealth law under s 51(xxxviii) only occurs at the request or with the concurrence of that State Parliament. Also, State Constitutions are not fully entrenched where the people of each State must consent to any change. 194 Ibid 378. 195 Ibid 379. 196 (1989) 168 CLR 340 at 381. 197 (2003) 217 CLR 545. 198 This section maintains the power of State Parliaments to enact binding manner and form provisions. See Chapter 6. 199 [67–70]. 200 Ibid. Kirby J also defended his duty to declare the constitutional validity of the Australia Act 1986 (Cth) despite the absence of submissions on the issue:

Justices of this Court owe a higher duty to the Constitution and the law. They are not hostages to the arguments of the parties. Nor are they mere arbitrators of the disputes that parties choose to define and propound [210]. His Honour acknowledged that his view on the validity of s 6 is unlikely to be accepted in the ‘march of history’, but felt bound to express it in case there are other attempts to amend State Constitutions in a similar fashion. His footnote indicated that he had in mind federal law to effect a republic at the State level [208] fn 220. 201 Ibid [207].

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While the joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ in Marquet did not specifically consider the validity of all provisions of the Australia Act (Cth), their Honours implicitly recognised the validity of the entire Act by indicating that there was no need to rely on the United Kingdom Act.202 This reflected earlier comments in the joint judgment of Gleeson CJ, Gummow and Hayne JJ in Sue v Hill203 that the United Kingdom Act was sought and passed ‘[a]pparently out of a perceived need for abundant caution’ and that s 1 of the Commonwealth Act was validly enacted under s 51(xxxviii).204 There remains, however, a difficulty with the Australia Act (Cth)205 under s 51(xxxviii) in relation to s 15 which purports to prescribe only two ways for amending the Statute of Westminster 1931 and the Australia Act (Cth) itself. Section 15 is in these terms: (1) This Act or the Statute of Westminster 1931, as amended and in force from time to time, in so far as it is part of the law of the Commonwealth, of a State or of a Territory, may be repealed or amended by an Act of the Parliament of the Commonwealth passed at the request or with the concurrence of the Parliaments of all the States and, subject to subsection (3) below, only in that manner. (2) For the purposes of subsection (1) above, an Act of the Parliament of the Commonwealth that is repugnant to this Act or the Statute of Westminster 1931, as amended and in force from time to time, or to any provision of this Act or of that Statute as so amended and in force, shall, to the extent of the repugnancy, be deemed an Act to repeal or amend the Act, Statute or provision to which it is repugnant. (3) Nothing in subsection (1) above limits or prevents the exercise by the Parliament of the Commonwealth of any powers that may be conferred upon the Parliament by any alteration to the Constitution of the Commonwealth made in accordance with section 128 of the Constitution of the Commonwealth after the commencement of this Act.

So, the two prescribed ways for amending the Statute of Westminster 1931 and the Australia Act (Cth) are: ● under subsection (1) by a Commonwealth Act passed at the request or with the concurrence of all State parliaments; and ● under subsection (3) pursuant to a power to amend or repeal those statutes conferred on the Commonwealth by an amendment to the Commonwealth Constitution made pursuant to s 128. The difficulty with s 15 of the Commonwealth Act is that it purports to restrict or fetter the future exercise of Commonwealth legislative power under s 51(xxxviii) and s 128. In effect, such fetters amend the Constitution and so cannot be effective without referendum approval under s 128.206 As Professors 202 Ibid [67–9]. 203 (1999) 199 CLR 462 at 491–2. 204 Ibid. The other members of the Court made no reference to this issue. 205 An issue which the joint judgment of Gleeson CJ, Gummow and Hayne JJ in Sue v Hill (1999) 199 CLR 462 was aware of: see 495, fn 115. 206 Goldring, above n 181, 203, suggests that it is only by its own bootstraps. See also H. P. Lee, ‘Legislative Comment: The Australia Act 1986 – Some Legal Conundrums’ (1988) 14 Monash University Law Review 298.

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Zines207 and Lindell208 have identified, this renders s 15 of the Commonwealth Act ineffective on its own to restrict Commonwealth power. Zines has concluded, citing Lindell, that: [a]ny attempt to regard the whole of the Australia Act as based on Commonwealth constitutional power is impossible. It is clear that the provisions of s 15 can only be valid as a result of British paramount power, a power that ceased the moment it was, in this case, exercised.209

Even if s 15 is ineffective210 to entrench the Australia Act (Cth), it may still affect an exercise of power under s 51(xxxviii) to amend that Act.211 Since the amendment will need the request and consent of all States directly concerned, s 15 may require that even if the amendment is requested by only one State for its purposes, all other States will still need to concur in that amendment. In other words, s 15 has the effect of giving every State an interest in any amendment of the Act, even if the amendment only directly affects one State. Consequently, that interest affects the exercise of s 51(xxxviii). This argument is reinforced by the fact that the power being exercised under s 51(xxxviii) is one which depends on the request or consent of the States concerned, so that restrictions which their request or consent laws impose, should be effective in any future exercise of that power. The States’ request or consent laws therefore define the scope of the ‘exercise’ of the ‘power’ authorised under s 51 (xxxviii).212 The result of this line of argument213 is to suggest that since any exercise of power under s 51(xxxviii) involves the combined agreement of the Commonwealth and those States which requested and consented to the exercise of that power, any change to that exercise of power can only occur within the terms of that power found in the States’ request or consent legislation. Hence, the requirements of s 15 of the Commonwealth Act which all the States requested, must be fulfilled for any change to occur to that Act pursuant to any further exercise of power under s 51(xxxviii). The position would be different, though, if a Commonwealth law, inconsistent with the Australia Act (Cth), is enacted in reliance on a head of power other than s 51(xxxviii). The basis for requiring the consent of the States would then be absent.214 207 Leslie Zines, The High Court and the Constitution (4th edn, Sydney: Butterworths, 1997) 305–6. The joint judgment of Gleeson CJ, Gummow and Hayne JJ in Sue v Hill (1999) 199 CLR 462 merely adverted to this issue being raised by Zines at 495, fn 115. 208 G. J. Lindell, ‘Why is Australia’s Constitution Binding?’ (1986) 16 Federal Law Review 29, 34–5, fn 22. 209 (308). 210 If s 15 is not just ineffective, but invalid, then this argument is not tenable. 211 For example, if a Commonwealth law is enacted in reliance on a request from a State parliament to amend s 7 of the Commonwealth Act to enable that State to be become a republic, it would be a law within s 51(xxxviii). But as it involved an amendment to the Australia Act (Cth), s 15 ensures that every other State is ‘directly concerned’ in the new exercise of s 51(xxxviii) power. 212 A similar argument is suggested by Zines, above n 207, 307. 213 Lindell, above n 209. See also G. Lindell, ‘Further Reflections on the Date of the Acquisition of Australia’s Independence’ in R. French, G. Lindell and C. Saunders, Reflections on the Australian Constitution (Sydney: Federation Press, 2003) 57–8. 214 Zines, above n 207, 308.

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If s 15 of the Australia Act (Cth) is ineffective, except possibly in the limited way just outlined, the next logical issue is whether s 15 of the Australia Act (UK) is effective to restrict Commonwealth power. The traditional view would suggest that this is so, and that this may have been one of the reasons for its enactment. But this view now flies in the face of the comments of the High Court in Attorney-General (WA) v Marquet,215 which suggest that the Australia Act 1986 (UK) lacks contemporary constitutional relevance. The joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ indicated their preparedness to rely entirely on the validity of the Australia Act 1986 (Cth): The Australia Act . . . is to be traced to its Australian source – the Constitution of the Commonwealth. The Australia Act takes its force and effect from the reference of power to the federal Parliament, made under s 51(xxxviii), and the operation that the Act is to be given as a law of the Commonwealth in relation to State law by s 109 of the Constitution.216

Kirby J went much further in denying the power of the United Kingdom Parliament to enact any law affecting Australia, describing the enactment of the Australia Act (UK) as ‘fundamentally erroneous’ and ‘absurd’.217 The ease with which the Court dispensed with the United Kingdom Act and the lack of any detailed reasoning in support suggests that they may not have considered the difficulties raised above in relation to s 15 of the Commonwealth Act. Whether or not the United Kingdom Act applies becomes a critical issue if s 15 of the Commonwealth Act is ineffective. The assumption, according to traditional legal principle, has been that since the United Kingdom Act applies to Australia (as the last exercise of paramount United Kingdom power), s 15 of that Act binds Australia. But even if that is so (despite the views expressed in Marquet),218 we must be careful to identify to what s 15 is directed. Section 15(1) purports to protect the Statute of Westminster 1931 and the United Kingdom Act itself – not the Commonwealth Act. Consequently, s 15(1) does not purport to restrict the Commonwealth’s capacity to amend or repeal its own Act. While it may then be tempting to suggest that s 15 of the United Kingdom Act does not limit Commonwealth power at all, the doctrine of paramount force ensures that the other provisions of the United Kingdom Act are still binding as part of Australian law. This means that whenever the Commonwealth intends to amend its Act, it would be necessary for it to arrange amendment of the corresponding provisions of the United Kingdom Act in accordance with s 15 of that Act. If the Commonwealth fails to do this, its amendment of the former is repugnant to the United Kingdom provisions, and although the doctrine of repugnancy was abolished in relation to Commonwealth legislation by s 4 of the Statute of Westminster (except in relation to the Commonwealth of Australia Constitution Act, 215 (2003) 217 CLR 545 per Gleeson CJ, Gummow, Hayne and Heydon JJ paras [66]–[70]. 216 Ibid [67]. 217 Ibid [203]. 218 (2003)17 CLR 545.

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the Commonwealth Constitution and the Statute of Westminster), it was expressly extended by s 15(2) of the Australia Act (UK). Given the binding effect of the United Kingdom Act on the Commonwealth and the States, and the ineffectiveness of s 15 of the Commonwealth Act, it is difficult to understand why the High Court in Marquet219 appears to dispense with the United Kingdom Act. The outcome might well be that suggested by Professor Lindell; namely, neither Act imposes a restriction on Commonwealth power but any amendment of the Australia Act (Cth) will require the approval of all the States under s 51(xxxviii) as States ‘directly concerned’, or the approval of the people by referendum under s 128.220 Finally, it should be noted that any attempt by the United Kingdom Parliament to amend or repeal the Commonwealth of Australia Constitution Act including the Commonwealth Constitution, the Statute of Westminster 1931, and the Australia Act 1986 (UK) or (Cth) would have no legal effect in Australia.221

2.9 The future The constitutional future of the States depends primarily on the evolutionary path of the federal system. It also depends, to a lesser extent, on whether Australia becomes a republic. It is evident from the outline of the constitutional history of the States that transformation to a republic at the Commonwealth and State level is the next logical step. The inevitability of that step, however, is more practical than theoretical. So long as the British monarchy survives and retains the respect which it presently has, there is no constitutional necessity for Australia to relinquish its monarchy. Then again, as time passes, a dwindling emotional connection with the British monarchy is likely to enhance public support for a republic. The profound differences of opinion this republican debate arouses reflect the similar debate over federation a century earlier. The irony is that in between these debates, significant constitutional change lawfully occurred without the people being consulted. Of more practical significance is the future trajectory of the States within the federation. There appear to be three principal options: ● the replacement of the States with regional or local governments entirely under central control; ● the creation of more smaller States; or ● the retention of the States with the Northern Territory becoming a State but with increased federal cooperation. What is certain is that the federal system and the role of the States will continue to evolve in response to social, economic, and political forces. Prominent among 219 Ibid. 220 Zines, above n 207, 307–8. 221 See Hanks, Keyzer and Clarke, above n 191, 214; Zines, above n 207, 315–16. Cf the Privy Council view in British Coal Corporation v R [1935] AC 500 at 520 that the United Kingdom Parliament could repeal or ignore s 4 of the Statute of Westminster 1931.

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these forces now and into the future will be globalisation. The need for uniform national responses to economic, social, ecological and security needs may become so critical that they will demand a fundamental realignment of power between the Commonwealth and the States. Whether such a realignment is possible depends on the capacity of the two levels of government to meet future challenges in a productive and cooperative manner within the basic constitutional structure established by the Commonwealth Constitution. The restrictions which that imposes on the States are explored throughout this book. But within those constraints, the States possess considerable flexibility to change their Constitutions – a capacity enjoyed since the birth of their first Constitutions in the 19th century. This flexibility provides the opportunity for more innovation and experimentation at the State level than will ever be possible at the Commonwealth level. It also raises the issue whether some degree of rigidity is necessary to protect the fundamental principles on which their constitutional systems rest. That issue, and the capacity to entrench those principles, are examined in Chapter 6.

3 The Legislature

3.1 Introduction In any Westminster system, the legislature or parliament usually comprises one or two Houses and the Sovereign or her representative. All of the States except Queensland have two Houses: a ‘Legislative Assembly’ or ‘House of Assembly’ (traditionally called the ‘Lower House’); and a ‘Legislative Council’ (traditionally called the ‘Upper House’). Queensland, the ACT, Norfolk Island and the Northern Territory have only a Legislative Assembly. Legislatures comprised of two Houses are bicameral parliaments; those with only one House are unicameral parliaments. The designations of ‘Lower’ and ‘Upper’ House are clearly inappropriate so far as they suggest that one House is superior to the other. Such designations should be abandoned.1 For the purposes of this text, reference will simply be made to the Assembly and to the Council. All Houses in Australia are now elected by universal adult suffrage. The members of the Council were originally appointed by the Governor before the franchise was gradually widened. The Assembly is the larger of the two Houses and is the more representative body which determines the government. Most legislation is initiated in this chamber including all money Bills. The Council is essentially a House of review in relation to Bills, tabled subordinate legislation, and the activities of the Executive. Bills, other than certain money Bills, can also be introduced in this House. The extent to which the Council can block Assembly Bills is considered below. 1 The terms appear to be derived from the House of Lords representing the upper classes and the House of Commons representing the lower classes.

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A detailed analysis of the merits of a bicameral legislature falls outside the scope of this book. Essentially, there are two significant justifications for a second elected chamber: first, the opportunity for the election of representatives of minority groups enhances the democratic legitimacy of the parliament; and second, the capacity for closer review and scrutiny of proposed legislation and of the Executive. These benefits depend, however, on the nature of the second House and the relationship between the two Houses. In other words, it depends on an electoral process to ensure fair electoral representation in the second House and an appropriate deadlock avoidance mechanism to resolve conflicts between both Houses. A fair electoral system is generally achieved by proportional representation in the Councils of New South Wales, South Australia, Victoria2 and Western Australia, but there are different forms of proportional representation depending on the number and type of electorates. Also, the number of members, their term of office and the timing of the election vis-a-vis the Assembly election can have a significant impact on the capacity of the Council to function effectively, particularly as a House of review. Critical to the relationship between the Houses is an appropriate deadlock avoidance provision. This must also deal with the power of the Council over money Bills. The Councils in South Australia, Tasmania and Western Australia still retain the power to reject supply Bills. In New South Wales and Victoria, the Council can only delay up to a month the passage of appropriation Bills for the ordinary annual services of the government. After that period, the Bills can be presented to the Governor for assent3 without the Council’s approval. These deadlock avoidance mechanisms are examined further below.4 As in New Zealand, the Queensland Parliament and the legislatures of the Australian Capital Territory, Norfolk Island and the Northern Territory are unicameral bodies, comprised of a Legislative Assembly. The Queensland Parliament was a bicameral body until 23 March 1922 when the Constitution Act Amendment Act 1922 (Qld) abolished the Legislative Council after the appointment of new members who agreed to pass this legislation.5 Similar attempts to abolish the New South Wales Legislative Council in 1926 and 1930 failed. The Councils are entrenched by referendum in New South Wales;6 South Australia;7 and Victoria;8 by referendum and an absolute majority in both Houses

2 The Constitution (Parliamentary Reform) Act 2003 (Vic) has introduced a proportional representation system as from the next election scheduled in November 2006. 3 Reference is made in this book to ‘assent’ rather than to ‘royal assent’ since assent is only ever given in the name of the Sovereign. 4 A detailed analysis of the present state of the five Legislative Councils, their role and powers is found in the New South Wales Parliament Background Paper 1/2001 on State Upper Houses in Australia by Gareth Griffith and Sharath Srinivasan. See also G. Griffith, ‘The New South Wales Legislative Council: An Analysis of Its Contemporary Performance as a House of Review’ (2002) 17 Australasian Parliamentary Review 49. 5 See the account given in H. V. Evatt, The King and his Dominion Governors (2nd edn, Melbourne: F. W. Cheshire, 1967) in Chapter XVI, 140–5. The same approach was successfully used in New Zealand in 1950: see P. A. Joseph, Constitutional and Administrative Law in New Zealand (2nd edn, Sydney: Law Book Company, 2001) 113–16. 6 Constitution Act 1902 (NSW) s 7A. 7 Constitution Act 1934 (SA) s 10A(2)(b). 8 Constitution Act 1975 (Vic) s 18(1B).

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in Western Australia;9 but not in Tasmania. In contrast, referendum approval is required in Queensland for any other legislative body to be reintroduced.10 Except in South Australia, the Sovereign or her representative is recognised as part of each State Parliament in addition to both Houses (or the Assembly in Queensland).11 In South Australia, the Parliament is simply defined as comprising the two Houses.12 Similarly in the self-governing territories, the legislature is defined as comprising only the members of the legislature.13 The Sovereign’s role, which must be performed by the Governor in the States14 or by the Administrator in Norfolk Island and the Northern Territory, is to grant assent to Bills duly passed by the legislature. This requirement does not apply in the ACT which has no Administrator. It is suggested below that the value of retaining this ancient English requirement is open to doubt, especially if the will of the Houses can be frustrated by Executive refusal to instruct the granting of assent. Dispensing with this requirement in the ACT has not raised any problems there.

3.2 Process of enacting laws The legislative power of the States to enact laws is vested in the parliament which is usually defined as the Queen and both Houses (one House in Queensland).15 The South Australian Constitution defines the Parliament16 as comprising both Houses without expressly including the Queen or her Governor as a constituent element, despite references to assent in other provisions.17 In three states – New South Wales,18 Queensland19 and Western Australia20 – the relevant constitutional provisions maintain the archaic formulation whereby the legislative power is formally vested in the Queen acting with the advice and consent of both Houses (or one in Queensland). This formulation should be replaced with one which reflects the central role of both Houses as the embodiment of the sovereignty of the people. Victoria’s Constitution goes some way towards this by vesting the power in parliament which is simply defined as comprising the Queen and both Houses.21 9 Constitution Act 1889 (WA) s 73(2). 10 Constitution Act Amendment Act 1934 (Qld) s 3. 11 The Sovereign is included: Constitution Act 1902 (NSW) s 3 (refers to ‘The Legislature’ (instead of Parliament) to mean the King acting with the advice and consent of both Houses); Constitution Act 1867 (Qld) s 2A(1) and Constitution of Queensland 2001 s 6; Constitution Act 1975 (Vic) s 15; and the Constitution Act 1889 (WA) s 2(2). In Tasmania, the Governor is included instead: Constitution Act 1934 (Tas) s 10. 12 Constitution Act 1934 (SA) s 4. 13 ACT (Self-Government) Act 1988 (Cth) s 8(2); Norfolk Island Act 1979 (Cth) s 31(2); Northern Territory (Self-Government) Act 1978 (Cth) s 13(2). 14 Australia Acts 1986 s 7(2) unless personally present. 15 Constitution Act 1867 (Qld) s 2A(1) and Constitution of Queensland 2001 s 6; Constitution Act 1934 (Tas) s 10; Constitution Act 1975 (Vic) s 15; Constitution Act 1889 (WA) s 2(2). The Constitution Act 1902 (NSW) s 3 uses the term ‘Legislature’ instead. 16 Constitution Act 1934 (SA) s 4. 17 See, for example, Constitution Act 1934 (SA) ss 8, 10A, 56, 64 and 88. 18 Constitution Act 1902 (NSW) ss 3 and 5. 19 Constitution Act 1867 (Qld) s 2 and Constitution of Queensland 2001 s 8. 20 Constitution Act 1889 (WA) s 2(1). 21 Constitution Act 1975 (Vic) ss 15 and 16.

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In stark contrast to these Constitutions are the formal Constitutions of South Australia and Tasmania which lack any provision referring to or vesting legislative power in parliament. Section 5 of the Constitution Act 1934 (SA) merely provides that each House ‘shall have and exercise all the powers and functions formerly exercised by the Legislative Council constituted pursuant to s 7 of the [13 and 14 Vic c 59 (Australian Constitutions Act (No 2) 1850 (Imp))]’. Hence, reference must still be made to an Imperial Act to find that the legislative power is vested in the Governor acting with the advice and consent of both Houses.22 Tasmania’s Constitution defines the Parliament as constituted by the Governor and both Houses,23 yet it is completely silent on the State’s legislative power. So, reliance must also be placed on s 7 of the Australian Constitutions Act (No 2) 1850 (Imp) (13 and 14 Vic c 59). The Self-Government Acts of the ACT, Norfolk Island and the Northern Territory avoid the use of ‘parliament’ or even ‘legislature’. In Norfolk Island and the Northern Territory, the legislative power is simply vested in the Assembly with the assent of the Administrator or the Governor-General.24 Since there is no equivalent to an Administrator in the ACT, the power to make laws is simply vested in the Assembly.25 It is clear that unless an alternative special statutory procedure is validly provided for, such as in the ACT, an Act does not become law unless both Houses (or one in Queensland, the ACT and the Northern Territory) have passed the Act and it has received assent. The State Constitutions expressly26 or impliedly27 recognise that a law is enacted in the ordinary course only if all the components of the legislature agree to the Bill. Hence, the requirement of assent for enactment is implicit where parliament or the legislature is defined to include the Queen and the Houses (or House). In the Northern Territory, the assent of the Administrator or the Governor-General is expressly required.28 In the ACT, enactment occurs when the Act is registered on the electronic ACT legislation register on the Internet.29

3.2.1 Process for ordinary Bills The ordinary process of enactment is prescribed by the Standing Orders of each House which have been modelled on those of the United Kingdom House of 22 See G. Lindell, ‘Lessons to be learned from the Australian Capital Territory Self-Government Model’ in C. Macintyre and J. Williams (eds), Peace, Order and Good Government – State Constitutional and Parliamentary Reform (Adelaide: Wakefield Press, 2003) 49–50. 23 Constitution Act 1934 (Tas) s 10. 24 Norfolk Island Act 1979 (Cth) s 19(1); Northern Territory (Self-Government) Act 1978 ss 6 and 7. 25 ACT (Self-Government) Act 1988 (Cth) s 22. The law takes effect when lodged on the electronic ACT legislation register: Legislation Act 2001 (ACT) ss 28–9. This replaces the requirement of s 25 of the ACT (Self-Government Act) for notification in the Territory Gazette. 26 Constitution Act 1867 (Qld) s 2A(2) and Constitution of Queensland 2001 s 6; Constitution Act 1889 (WA) s 2(3). 27 Constitution Act 1902 (NSW) s 3; Constitution Act 1934 (Tas) s 10 (merely defines Parliament as the Governor and both Houses); Constitution Act 1975 (Vic) s 15. In South Australia, the requirement of assent under the Constitution Act 1934 (SA) is derived from the fact that the legislative power is vested in the Governor acting with the advice and consent of both Houses: see Lindell, above n 22, 49–50. 28 Northern Territory (Self-Government) Act 1978, ss 6–7. 29 See Legislation Act 2001 (ACT) ss 28–9.

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Commons. The process begins with the introduction of a Bill in either House (except for certain money Bills which are introduced only in the Assembly).30 This is when the Bill is read a first time. At the second reading of the Bill, the member introducing the Bill outlines the purpose and effect of the Bill’s provisions. The House may reject the Bill at this stage, usually by moving that it be postponed indefinitely or for six months. If the second reading of the Bill is approved by the House, the House goes into committee to debate each clause of the Bill. During this period, amendments may be moved. The House then comes out of committee to vote at the third reading of the Bill. If the Bill is passed at its second and third readings by a simple majority of the members, that is, a majority of the members in the House at that time, the Bill will be sent to the other House. The same procedure is followed there. If passed by a simple majority of the members of the other House, the Bill is presented to the Queen’s representative by the Clerk of the House which originated the Bill – or the Clerk of Parliaments – for assent. At this stage, the Governors of Victoria and South Australia and the Administrators of the Northern Territory and of Norfolk Island are empowered to return the Bill to a House with suggested amendments.31 By convention, this power should be used only to correct errors in the Bill before presentation for royal assent.32 Assent is given by the Governor or Administrator signing the certificate of assent attached to the Bill, at which time it becomes an Act of Parliament. The Governor sends a message to both Houses (or the Assembly as the case may be) advising assent has been given. The Act comes into force upon assent unless a different time is prescribed, such as the date when the Act is proclaimed to come into force. Until 1986, certain State Bills were required to be reserved for the Queen’s assent in the United Kingdom,33 or could theoretically be disallowed by her or her representative.34 These requirements of reservation and disallowance were terminated by ss 8 and 9 of the Australia Acts 1986. The significant exception to this procedure exists in the ACT where there is no requirement of assent. Instead, once passed by the Assembly, a Bill becomes law when the Act is registered on the electronic ACT legislation register.35 Nonetheless, within six months of enactment, the Governor-General is empowered to disallow the enactment36 or to recommend amendments.37 The Governor-General is similarly empowered in relation to Northern Territory enactments where assent 30 Constitution Act 1902 (NSW) s 5; Constitution Act 1934 (SA) s 61; Constitution Act 1934 (Tas) s 37; Constitution Act (Vic) s 62 and Constitution Acts Amendment Act 1899 (WA) s 46(1). 31 Constitution Act 1975 (Vic) s 14; Constitution Act 1934 (SA) s 56; Northern Territory (Self-Government) Act 1978 (Cth) s 7(3); Norfolk Island Act 1979 (Cth) s 21(3). 32 Enid Campbell, ‘Royal Assent to Bills’ (2003) 14 Public Law Review 9, 11; John Quick and Robert R. Garran, The Annotated Constitution of the Australian Commonwealth (Sydney: Angus and Robertson, 1901) 692 on the equivalent provision in s 58 of the Commonwealth Constitution. The Final Report of the Constitutional Commission 1988 para 2.172 recommended this power be vested in the Governor-General in Council. 33 Categories of Bills prescribed in the Royal Instructions to Governors and by s 1 Australian State Constitutions Act 1907 (UK). 34 See s 32 Australian Constitutions Act 1842 (Imp). 35 Legislation Act 2001 (ACT) ss 28–29. This replaced the requirement of s 25(2) ACT (Self-Government Act) 1988 (Cth) to be published in the Territory Gazette. 36 ACT (Self-Government) Act 1988 (Cth) s 35(2). 37 Ibid s 35(4).

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is still required.38 In addition, the Administrator may reserve proposed laws for the Governor-General’s pleasure, or return them to the Assembly with recommended amendments. The Governor-General may assent, withhold assent, or return the proposed law to the Administrator with recommended amendments for consideration by the Assembly.39 A message from the Administrator explaining the reasons for withholding assent or the disallowance must be laid before the Assembly within six sitting days.40 Each House determines exclusively whether its Standing Orders for the enactment of a Bill have been satisfied.41 This is usually certified by the Clerk of the Parliament on the Bill itself.42 However, if proven that a Bill was not passed by both Houses or did not receive assent, a court would declare that it was not a valid enactment.43 At times, errors are discovered in the text of the Bill after its passage through both Houses, either before or when presented for assent. Certain clerical, grammatical or typographical errors may be corrected by the Clerk before presentation for assent.44 Such a correction is too late once the Bill is assented to. Remedial legislation may then be necessary unless reliance is placed on a Court applying the ‘slip rule’ to overcome the error. A more serious problem is where the Bill assented to differs substantively from that passed. This can occur where there are distinct Bills and the wrong Bill is assented to. If the latter Bill never passed both Houses, the Governor should cancel his or her signature to that Bill as it is a nullity, and duly assent to the correct Bill.45 More difficult are cases where the Bill assented to includes a proposed amendment which was not passed, or omits an amendment which was passed. In such cases, is the entire Act a nullity so that it can be ignored and the correct Bill assented to? If not, remedial legislation is needed to restore the Act to its intended effect.46 Such legislation should also retrospectively affirm the earlier Act as validly enacted to remove any possible claim of continued nullity.47 A court should be able to receive evidence of the events surrounding the presentation of a Bill for assent without fear of violating parliamentary privilege 38 Northern Territory (Self-Government) Act 1978 (Cth) s 9. 39 Ibid s 8(2). 40 Ibid s 10. 41 See Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 C and F 710 and British Railways Board v Pickin [1974] AC 765. 42 The Clerk in the Northern Territory certifies that the Bill is a true representation of that which passed the Assembly before it is presented to the Administrator for assent. 43 Enid Campbell, Parliamentary Privilege (Sydney: Federation Press, 2003) 122–3. 44 See, for example, SO 20 Vic LC; SO 158 Qld LA. 45 This occurred in 1976 when the Governor-General on the advice of the Attorney-General cancelled his signature to a Bill which had never passed both Houses: see House of Representatives Practice, Department of the House of Representatives (4th edn, Canberra, 2001) 390–1. See Enid Campbell, ‘Revocation and Variation of Administrative Decisions’ (1996) 2 Monash Law Review 30; also Campbell, ‘Royal Assent to Bills’ (2003) 14 Public Law Review 9, 11. 46 The former occurred in Queensland in 1995 and was remedied by legislation: see reference to the Associations Incorporation Act 1981 in the Schedule to the Statute Law (Minor Amendments) Act (No 2) 1995 (Qld). See also Joseph, above n 5, 462–3. 47 Legal, Constitutional and Administrative Review Committee (LCARC), The Queensland Constitution: Specific Content Issues, Report No 36, August 2002 at 42–3 recommended against a statutory provision to deem Bills assented to as those passed by the Legislative Assembly because this would undermine the fundamental requirement of Legislative Assembly approval.

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since these events do not occur in the course of the ‘proceedings of parliament’.48 It should be noted at this stage that, within certain limits, the ordinary procedure for the enactment of laws can be altered by statute. Examples of this are given below in relation to the resolution of deadlocks between Houses of a bicameral legislature. In addition, special procedures may be statutorily prescribed to entrench or make more difficult the enactment of laws designed to change certain laws or matters. The validity of these special legislative procedures is considered in Chapter 6 on manner and form.

3.2.2 Instructions for assent The standard procedure for the granting of assent is that the Bill is presented to the Governor or Administrator by the Clerk of the House in which the Bill originated. The Clerk certifies on the Bill that it has satisfied all the requirements for enactment. A certificate is also forwarded to the Governor or Administrator from the Attorney-General confirming that there is no objection to the granting of assent.49 This practice reflects an earlier era when the Bill might have been required to be reserved for assent by the Queen in the United Kingdom. No specific advice is usually given by the Executive or by the Executive Council. This raises two issues. The first is whether the Governor has a reserve power to decide to grant or decline assent. The accepted position is that the Governor has no such power.50 This naturally leads to the second issue: on whose advice does the Governor assent when presented with a Bill for assent? There are two possibilities: either on the implicit advice of both Houses (or single House) by presenting a Bill for assent; or on the implicit advice of the Executive unless this is revoked in a particular instance. Since the latter possibility allows the Executive to thwart the intention of the Houses, this issue goes to the very core of the system of parliamentary government. Fortunately, it is an issue which has rarely arisen in practice. But the increased prevalence of minority governments makes it more likely to arise. A Bill which is unpopular with a minority government might be passed by both Houses, neither of which is controlled by that government. Can the government prevent the presentation of the Bill to the Governor, or otherwise prevent the Governor from assenting? The first course of action is unlikely to be valid, especially where the Constitution imposes a duty in these terms: ‘every Bill once passed by both Houses shall be presented to the Governor for assent’. Whether the Executive can advise the Governor not to assent is doubtful.51 No such capacity is recognised in the United Kingdom, New Zealand or Canada. Such 48 Campbell, above n 32. 49 The Attorney-General in Queensland certifies to the Governor that the Bill has passed all stages of the Legislative Assembly and it is in order for the Governor to assent. This suggests a Governor might refuse assent to a Bill on the advice of the government. Cf W. Campbell, The Role of a State Governor, 1988 Endowed Lecture of the Royal Australian Institute of Public Administration Queensland Division, delivered 22 March 1988, p 4. 50 Anne Twomey, The Constitution of New South Wales (Sydney: Federation Press, 2004) 221–2. 51 Report No 5, Commission on Government Western Australia, August 1996, Appendix 2, ‘Issues for Consideration by a People’s Convention’, p 118. Cf Campbell, above n 32, 10–11 who asserts that the discretion to assent is exercised on ‘ministerial advice’.

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a capacity is inconsistent with those provisions which vest legislative power in the Queen or her representative, acting on the advice of the Houses. Moreover, it is an affront to the Houses to concede such a capacity. The appropriate Executive response is to introduce legislation to repeal or amend the newly assented Act. To argue that the Executive should have the capacity to prevent assent being given would unjustifiably entrench further Executive dominance of the parliament. If there is a legal impediment to granting assent, which is advised in the Attorney-General’s certificate to the Governor, this may provide a justification for withholding assent until the matter is confirmed by the courts.52 But even this concession may be unnecessary since the validity of the Act can be judicially determined once enacted. Twomey suggests a third scenario where a government wishes to prevent assent to a Bill passed before obtaining office. As suggested, the better approach would be for assent to be given and then for the new government to repeal or amend the unwanted legislation retrospectively.53 A practical measure which avoids most of these difficulties is to provide for the Act to commence on proclamation by the Executive.54 If the Minister or Governor decides in the exercise of their discretion not to issue a proclamation, such a decision is unlikely to be overturned on judicial review.55

3.2.3 Removal of Crown from legislative process The position in the ACT where enactments do not require assent raises the issue whether assent is worth retaining. There are several arguments for dispensing with assent: it constitutes an undemocratic restriction on the expression of the sovereign will of the people through their elected representatives; it reflects the now discarded notion of the sovereignty of the Crown; and it leaves open the possibility that the Executive might veto the will of the Houses by advising that assent be withheld. On the other hand, it can be argued that assent poses no obstacle to the democratic will when Executive control of the Assembly ensures no legislation will be passed which does not already have Executive approval. Moreover, parliament’s status is enhanced by the incorporation of the Crown, while its procedures are checked by the process of assent which provides an opportunity to detect mistakes in proposed legislation. In practice few, if any, difficulties have arisen with assent to warrant a close examination of its comparative benefits. Nonetheless, the grounds suggested above for dispensing with assent, and the precedent in the ACT, provide a persuasive case. But can State parliaments remove the Crown from the enactment process? Prior to the enactment of the Australia Acts 1986, some believed that the State parliaments lacked this power. There appeared to be two possible grounds for this view: first, the plenary legislative power of State parliaments did not confer this power; and second, a law which removes the Crown was repugnant to imperial 52 Twomey, above n 50, 224–5. 53 Ibid 228. 54 And unlike regulations, a proclamation is not subject to veto by either House. 55 See R v Secretary of State for the Home Department; Ex parte Fire Brigades Union [1995] AC 513, cited in Campbell, above n 32, 13.

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paramount law, in particular, s 5 of the Colonial Laws Validity Act (CLVA).56 The first of these grounds seems to be supported by an obiter comment of Isaacs J in Taylor v Attorney-General of Queensland57 which refers to the legislative power in s 5 of the CLVA: When power is given to a colonial legislature to alter the constitution of the legislature, that must be read subject to the fundamental conception that, consistently with the very nature of our constitution as an Empire, the Crown is not included in the ambit of such a power.58

His Honour was referring to the constituent legislative power in s 5 of the CLVA to make laws respecting the constitution of the legislature. This view was applied by Clark J in Re Scully59 in holding invalid Tasmanian legislation which deemed a Bill approved by each House to be enacted without the Governor’s assent. His Honour interpreted s 5 of the CLVA as not ‘clearly and unmistakably [conferring] on a representative colonial legislature the power to alter its constitution by eliminating the Crown from it’.60 In both Taylor and Scully, no reference is made to the peace, welfare and good government grant of legislative power incorporated in the respective State Constitutions. Further support was derived from the decision of the Judicial Committee of the Privy Council in In re The Initiative and Referendum Act61 which held invalid a Manitoba Act which prescribed an alternative process of law making, known as citizen initiated referenda (CIR). Laws were deemed to take effect on being approved by a majority of voters polled, without being submitted for royal assent. Here again, invalidity resulted from a lack of legislative power, in that the power conferred on provincial legislatures by s 92 of the British North America Act 1867 to amend their Constitutions expressly excluded any amendment ‘as regards the office of Lieutenant-Governor’. To remove the requirement of assent to legislation was ‘intended seriously to affect the position of the Lieutenant-Governor as an integral part of the Legislature, and to detract from rights which are important in the legal theory of that position.’62 The second ground, which could have been relied on to prevent enactment without assent, is the repugnancy of such a procedure to a monarchical system ordained by imperial paramount law. But none of these decisions referred to appears to have relied on this particular ground. Instead, they relied on the lack of substantive power ground. Possibly, this second ground was within the contemplation of the joint judgment of Dixon CJ, McTiernan, Taylor and Windeyer JJ in Clayton v Heffron,63 when they noted without further explanation that ‘[t]here 56 George Winterton, Monarchy to Republic – Australian Republican Government (Melbourne: Oxford University Press, 1994). Reprint of 1986 edition 133 refers to both these grounds, although as to the former he refers only to the power under s 5 of the CLVA. The cases relied on relate to that ground rather than to the repugnancy ground. See also R. D. Lumb: ‘Fundamental Law and the Processes of Constitutional Change in Australia’ (1978) 9 Federal Law Review 148, 175–6; also Lumb, The Constitutions of the Australian States (5th edn, St Lucia: University of Queensland Press) 128. 57 (1917) 23 CLR 457. 58 Ibid at 474 with whom Powers J agreed at 481. 59 (1937) 32 Tas LR 3. 60 Ibid 40. 61 [1919] AC 935. 62 Ibid 944. 63 (1960)105 CLR 214.

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are many reasons for assuming that the assent of the Crown must always remain necessary . . .’64 Had this apparent restriction on State legislative power been based alone on this ground of repugnancy, the repeal of that doctrine by s 3(2) of the Australia Acts 1986 would have removed the restriction. Yet, if the States were never conferred the power to remove the Crown from the enactment process by their respective grants of plenary legislative power nor by s 5 of the CLVA, their capacity to do so now depends on s 2(2) of the Australia Acts which provides that: the legislative powers of the Parliament of each State include all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State . . .

On the other hand, other provisions in the Australia Acts appear to entrench the Crown at the State level, such as the provision made by s 7(1) for a Governor in each State to be the Sovereign’s representative. Also, an implication could be derived from ss 8 and 9 that a function of the Governor is to give assent. Section 8 prevents any disallowance by the Sovereign or suspension of any Act assented to by the Governor. Section 9 prevents any law requiring the Governor to withhold assent or to reserve it for the Sovereign’s assent. The better view, it is submitted, is that no implication preventing the abolition of royal assent should be drawn from these sections. Section 2(2) ought to be accorded full scope in declaring that State parliaments possess a plenary constituent power as wide and as unrestricted as that of the United Kingdom Parliament. It is a sovereign power within the constraints of the Commonwealth Constitution and the Australia Acts. Any restrictions on that power from both of those statutes must be either unambiguously expressed or necessarily implied from their text or structure to ensure the efficacy of the federal system. Accordingly, no implication should be derived for denying legislative power to remove the Crown from the legislative process.

3.3 Parliamentary control of finance A key feature of all parliamentary systems based on the Westminster model is parliamentary control of finance. Essentially, both the imposition of taxes and other similar imposts and the expenditure of that revenue by the government must be approved by parliament. It is this control which ensures the ministry is ultimately accountable to the Assembly. Otherwise a ministry might attempt to cling to power if it were able to raise the finance it needs to govern without parliamentary approval. While a ministry starved of funding might endeavour to rely on loans or the sale of assets or services, those sources will only provide temporary relief from bankruptcy. Ultimately, parliamentary approval will be 64 Ibid 251.

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necessary to repay any loans.65 Modern governments are far less able to survive under those circumstances, given the devastating effect their actions would have on their economy. Parliamentary control of finance exists by virtue of three fundamental constitutional principles, namely: ● the imposition of taxation must be authorised by parliament; ● all Crown revenue forms part of the consolidated revenue fund; and ● only parliament can authorise the appropriation of money from the consolidated revenue fund. The first of these principles was enshrined in Article IV of the Bill of Rights 1689 and the other two derive from the common law. Although most State and Territory Constitutions do not expressly refer to these principles, they are unquestionably in force in all States and territories. Only the Constitution of Queensland 2001 expressly incorporates all three principles.66 The New South Wales Constitution67 incorporates the second principle; the ACT68 and Northern Territory69 Constitutions incorporate the third principle. The first principle that taxation must be authorised by parliament requires explicit legislative authority70 for the Executive to impose charges in the nature of taxation.71 Parliament can delegate to the Executive the power to demand and fix licence fees.72 The Executive is nonetheless able to impose fees for its services without parliamentary approval.73 In relation to the second principle, the consolidated revenue fund is a notional fund of which all government revenue automatically forms part as soon as it is received by the government.74 This guarantees the effectiveness of the third principle of parliamentary appropriation which means that no government revenue can be expended without parliamentary approval. This third principle is, as Hanks acknowledges,75 a fundamental rule dating back to the late 17th century.76 Since parliament must authorise, a mere Order in Council77 or ministerial direction78

65 New South Wales v Bardolph (1934) 52 CLR 455 at 495–8 and 501–2. 66 Constitution of Queensland 2001 (QLD) ss 64–6. 67 Constitution Act 1902 (NSW) s 39(1). 68 ACT (Self-Government) Act 1988 (Cth) s 58(1). 69 Northern Territory (Self-Government) Act 1978 (Cth) s 45(1). 70 A resolution of the Victorian Legislative Assembly purporting to authorise the imposition of customs duty was held insufficient in Stevenson v R (1865) 2 WW A’B (L) 143. See also Bowles v Bank of England [1913] 1 Ch 57. 71 See, for example, Attorney-General v Wilts United Dairies Ltd (1920) 37 TLR 884; Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421; Brown v West (1990) 169 CLR 195. 72 Cobb & Co Ltd v Kropp [1967] 1 AC 141 – power delegated to the Queensland State Transport Commissioner. Compare Congreve v Home Office [1976] 1 QB 629. 73 See, for example, Glasbrook Bros Ltd v Glamorgan County Council [1925] AC 270 where police protection of a colliery was charged for, being outside the scope of normal police duties. 74 Northern Suburbs General Cemetery Reserve Trust v Commonwealth of Australia (Training Guarantee case) (1993) 176 CLR 555 and Australian Tape Manufacturers Association v Commonwealth (1993) 176 CLR 480. 75 P. J. Hanks, Constitutional Law in Australia (2nd edn, Sydney: Butterworths, 1996) 97. 76 Alcock v Fergie (1867) 4 WW & A’B (L) 285; Auckland Harbour Board v R [1924] AC 318; New South Wales v Bardolph (1934) 52 CLR 455; Commonwealth v Burns [1971] VR 825 at 827. 77 Australian Alliance Insurance Co Ltd v John Goodwyn [1916] St R Qld 255. 78 Re Bonner [1963] Qd R 488.

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is insufficient. Nonetheless, the level of specificity of appropriation is now fairly flexible. A continuing authority from parliament to expend money, that is, a standing appropriation, is now accepted and widely used. But any conditions attached must be satisfied.79 Instead of focusing on these three fundamental principles, State Constitutions have focused more on specific procedural requirements which reflect the Assembly’s primary responsibility in relation to finance. Since it is that House which determines who forms the Executive, the Assembly bears primary responsibility for scrutinising Executive plans to impose taxes and expend public revenue. There are four common procedural requirements80 in relation to financial Bills (that is, taxation Bills and appropriation Bills): ● Financial Bills only originate in the Assembly.81 ● Before the Assembly passes an appropriation Bill, the Governor must convey a message to the House recommending its passage.82 ● Financial Bills cannot be amended by the Council, only rejected or delayed, or made the subject of suggested amendments83 to the Assembly.84 ● Appropriation Bills for the annual services of the government can only deal with appropriation.85

3.3.1 Judicial review of financial procedures An issue here is whether financial legislation can be challenged as invalid for noncompliance with these procedural requirements. The prima facie position is that as these rules concern the internal procedures of parliament, they are not justiciable. This follows from the exclusive power of each House of Parliament to regulate its own proceedings. Courts have been mostly vigilant to observe this aspect of parliamentary privilege.86 Accordingly, English courts have refused to entertain challenges to English statutes on the ground that the Standing Orders of a House have not been complied with. Yet the justiciability of procedural requirements 79 Auckland Harbour Board v R [1924] AC 318. 80 Hanks, above n 75, 98. 81 Constitution Act 1902 (NSW) s 5; Constitution Act 1934 (SA) s 61; Constitution Act 1934 (Tas) s 37; Constitution Act 1975 (Vic) s 62(1); and Constitution Acts Amendment Act 1899 (WA) s46(1). 82 Constitution Act 1902 (NSW) s 46(1); Constitution of Queensland 2001 (Qld) s 68; Constitution Act 1934 (SA) s 59; ConstitutionAct 1934 (Tas) s 38(1); ConstitutionAct 1975 (Vic) s 63; and ConstitutionActsAmendment Act 1899 (WA) s 46(8). In the Northern Territory, the Administrator recommends (NT s 11), while in the ACT all that is required is that a minister proposes appropriation. The ACT approach is perfectly sufficient to ensure the Executive supports the appropriation. The LCARC commended that the recommendation should be provided by the Governor-in-Council unless a minister moves the Bill or motion for appropriation: recommendation 21 in Report No 36 (August 2002) The Queensland Constitution: Specific Content Issues. 83 The power to only suggest amendments has its origin in the 1857 Compact between South Australia’s two Houses: see Mark Leeming, ‘“Something That Will Appeal to the People at the Hustings”: Paragraph 3 of Section 53 of the Constitution’ (1995) 6 Public Law Review 131, 145–6. 84 Constitution Act 1934 (SA) s 62; Constitution Act 1934 (Tas) s 42(1); Constitution Act 1975 (Vic) ss 62(2) and 64(2)–(3); Constitution Acts Amendment Act 1899 (WA) s 46(2)–(4). As Hanks observes (see above n 75, 98, fn 36) the Constitution Act 1902 (NSW) s 5A(1) implicitly denies the power to amend as it refers only to the Council rejecting, failing to pass, and suggesting amendments. 85 Constitution Act 1902 (NSW) s 5A(3); Constitution Act 1934 (Tas) ss 39–40; Constitution Act 1975 (Vic) s 65(3); Constitution Act 1899 (WA) s 46(6)–(7). 86 See Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 C&F 710 (8 ER 279); Pickin v British Railways Board [1974] AC 765, per Reid at 787–8.

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prescribed by statute, such as the four rules above, ultimately depend on the intention of parliament expressed in the relevant statute. On this basis, the position seems to be that these statutory rules are not justiciable unless they are expressly made so. And this rarely occurs. One instance is found in the Constitutions of New South Wales87 and Tasmania88 which expressly declare invalid provisions, tacked onto an appropriation Act, other than those appropriating money for the ordinary annual services of the government, in violation of the fourth rule above. Other Constitutions make it expressly clear that some or all of these rules are not justiciable. The Western Australian Constitution89 declares this in respect of all four rules, but the Constitutions of South Australia90 and Tasmania91 make this clear in respect of only some of these rules. Support92 for the view that these rules are not justiciable in the absence of a clear indication from parliament, is found in the High Court’s interpretation of the same requirements in ss 53 and 54 of the Commonwealth Constitution. Their requirements, drafted in almost identical language to the State provisions, have been held not to be judicially enforceable. Section 53 provides that no Bill appropriating money or imposing taxation shall originate in the Senate, nor shall the Senate amend such laws. Section 54 requires appropriation Bills for the ordinary annual services of the government shall deal only with appropriation. In referring to ‘proposed laws’, that is, Bills not Acts, ss 53 and 54 are interpreted as directed only to the parliamentary process. Consequently, Griffith CJ in Osborne v The Commonwealth held: ‘Whatever obligations are imposed by these sections are directed to the Houses of Parliament whose conduct of their internal affairs is not subject to review by a Court of law’.93 Even if a legislative intent is found to render legislation invalid for noncompliance, there remains the difficult issue whether such an intent is constitutionally effective. This depends on the capacity of one parliament to bind its successors in this way. For instance, in declaring invalid any non-appropriation provisions tacked onto an Appropriation Act – as occurs in New South Wales94 and Tasmania95 – this can only be legally effective under s 6 of the Australia Acts if the Appropriation Act can be characterised as a law respecting the constitution, powers or procedure of the parliament. Only laws which satisfy that test of characterisation are bound by the restrictive procedure known as ‘manner and form’. It seems unlikely that an Appropriation Act would satisfy that characterisation, 87 Constitution Act 1902 (NSW) s 5A(3). 88 Constitution Act 1934 (Tas) s 40. 89 Constitution Acts Amendment Act 1899 (WA) s 46(9), infringement of none of the four rules results in invalidity. 90 Constitution Act 1934 (SA) s 64 provides no infringement of rules 1 and 3 above in ss 61 and 62 results in invalidity. 91 Constitution Act 1934 (Tas) s 38(2), no infringement of s 38(1) in relation to requirement of Governor’s message results in invalidity. 92 Further support might be provided by an obiter comment in Powell v Apollo Candle Co (1885) 10 App Cas 282 at 290–1 which suggests that a failure to originate in the New South Wales Assembly a Customs Bill as required by s 1 of the Constitution Act 1855 (NSW) would not invalidate its enactment. See also Lumb, The Constitutions of the Australian States, above n 56, 57. 93 (1911) 12 CLR 321 at 336 and 352. See also Buchanan v The Commonwealth (1913) 16 CLR 315 at 329 per Barton ACJ. Osborne was distinguished in Victoria v The Commonwealth and Connor (PMA case) (1975) 134 CLR 81 at 161 and 184 in relation to s 57 of the Commonwealth Constitution. 94 Constitution Act 1902 (NSW) s 5A(3). 95 Constitution Act 1934 (Tas) s 40.

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being more concerned with the power of the Executive than that of the Parliament. If that is so, no invalidity can arise.96 The effects of these manner and form provisions are fully considered in Chapter 6.

3.4 Resolution of deadlocks A range of special procedures has been adopted over time to resolve deadlocks between the Houses of a bicameral parliament. The most drastic measure is to dispense with the approval of the House which refuses to pass the Bill. This is invariably the Legislative Council. In Taylor v Attorney-General of Queensland,97 the High Court upheld the capacity of the Queensland Parliament to enact a deadlock provision which allowed Bills twice rejected by the Legislative Council to be assented to. It also held that a Bill which provided for the abolition of the Council could be enacted in that way. The power relied on was the power in s 5 of the CLVA to make laws ‘respecting the constitution of . . . such legislature’. The joint judgment of Dixon CJ, McTiernan, Taylor and Windeyer JJ in Clayton v Heffron98 affirmed this capacity of State parliaments to change from a bicameral to unicameral legislature, but preferred to rely on the peace, welfare and good government power in s 5 of the Constitution Act 1902 (NSW) rather than s 5 of the CLVA. While it is established that the consent of the Council may be dispensed with – even for a Bill to abolish the Council itself – the consent of the Assembly, as the primary representative chamber, must remain essential for the enactment of any law.99 Note also that the validity or effectiveness of a deadlock procedure does not depend on the existence of any paramount law, such as s 6 of the Australia Acts,100 or of any other paramount principle. Although its special procedure may resemble a manner and form provision, it is not one which restricts the ordinary legislative power of the parliament nor purports to fetter its powers. The entrenchment of the deadlock mechanism depends on paramount law,101 but the mechanism itself does not.

3.4.1 Deadlocks over financial Bills In all States with bicameral parliaments the Council has the significant power to reject or block appropriation and taxation Bills. Councils very rarely exercise 96 Hanks, above n 75, 100. If alternative grounds to s 6 are available, they may enforce the restrictive procedure – see Chapter 6 which discusses this difficult issue. 97 (1917) 23 CLR 457. Seems to be the view also of Isaacs J at 474 with whom Powers J agreed at 481. Gavan Duffy and Rich JJ at 477 saw this as ‘perhaps’ but preferred to leave the issue open. 98 (1960)105 CLR 214 at 249–50. The judgment at 248 also rejected the argument that the reference in s 15 of the Commonwealth Constitution to the ‘Houses of Parliament of the State’ is a constitutional prescription for bicameral State parliaments. 99 See Lumb, ‘Fundamental Law and the Processes of Constitutional Change in Australia’, above n 56, 178. 100 This provision deals with manner and form. 101 The deadlock mechanisms are doubly entrenched by referendum in South Australia (s 10A(1)(d) Constitution Act 1934 (SA)) and Victoria (s 18(1B)(i) Constitution Act 1975 (Vic) but not in New South Wales.

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this power. So far, it has only been exercised in South Australia,102 Tasmania103 and Victoria.104 Threats to block supply have occurred in other States.105 Mechanisms exist only in New South Wales106 and Victoria107 to resolve deadlocks over appropriation Bills for the ordinary annual services of the government.108 Deadlocks over other appropriation Bills or taxation Bills are not covered.109 The constitutional mechanisms adopted in New South Wales110 and Victoria111 are essentially similar. In both States, the basic procedure is that if the Assembly passes an appropriation Bill for the ordinary annual services of the government, and it is not passed112 by the Council within one month of receiving it, the Bill can be presented for assent without the Council’s approval. There are nevertheless subtle differences between the two procedures. The most significant is that the Victorian mechanism adopts a broader definition of what constitutes the ordinary annual services of the government by including expenditure for capital items. In New South Wales, the ordinary meaning applies to cover recurrent items of expenditure, such as salaries and maintenance, but not capital expenditure.113 The Victorian provision also expressly excludes appropriation for parliament.114 Other differences include: ● there is a discretion in New South Wales, which is lacking in Victoria, whether the deadlocked Bill is presented for royal assent without Council approval; ● the non-justiciability of the procedure is expressly put beyond question in Victoria by requiring the Bill to be endorsed with a conclusive Speaker’s certificate which ‘cannot be questioned in any court’; 115 ● unlike the Victorian provision,116 the New South Wales provision117 makes it clear that provisions tacked on, not dealing with the appropriation for ordinary annual services of the government, are of no effect. In South Australia, the two mechanisms for the resolution of legislative deadlocks118 do not distinguish between ordinary Bills and appropriation Bills. But 102 In 1911–1912. 103 In 1924 and 1948. 104 Nine times between 1865 and 1952: see J. Waugh, ‘Blocking Supply in Victoria’ (2002) 13 Public Law Review 241–2; P. J. Hanks, ‘Victoria’s Liberals have a Problem’ (1991) 10(3) Australian Society 5, 6. 105 In Western Australia in 1973 and 1990: Brian de Garis ‘The History of Western Australia’s Constitution and Attempts at Its Reform’ (2003) 31 University of Western Australian Law Review 142, 150. 106 Constitution Act 1902 (NSW) s 5A. 107 Constitution Act 1975 (Vic) s 65 inserted by s 14 of the Constitution (Parliamentary Reform) Act 2003 (Vic). 108 The New South Wales position was recommended for adoption in Western Australia: WA Royal Commission Report on Parliamentary Deadlocks (1984–85) Vol 1, 34 and 74–5. 109 Hence, they differ from s 1 of the Parliament Act 1911 (UK) which overcomes deadlocks by the House of Lords. 110 Constitution Act 1902 (NSW) s 5A. 111 Constitution Act 1975 (Vic) s 65 substituted by s 14 of the Constitution (Parliamentary Reform) Act 2003 (Vic). 112 The Council within one month rejects the Bill, or fails to pass it, or passes it with amendments unacceptable to the Assembly. 113 This was the situation in Victoria before the 2003 amendments to its Constitution: see Waugh, above n 104, 241, 243. 114 Constitution Act 1975 (Vic) s 65(2). 115 Ibid 65(7) and (8). 116 Ibid 65(3). 117 Constitution Act 1902 (NSW) s 5A(3). 118 See ss 28A(1)(c) and 41 Constitution Act 1934 (SA).

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as will become evident below, neither mechanism is likely to resolve a deadlock over any Bill, including a financial Bill. The principle of responsible government demands that all bicameral parliaments possess an effective mechanism to resolve deadlocks over annual appropriation Bills (defined appropriately to cover supply Bills). In recommending that Tasmania adopt an approach similar to that now in place in New South Wales and Victoria,119 the Report of the Royal Commission into the Constitution Act 1934 Tasmania in 1982 concluded: [T]hat the existence of this power [to block or reject supply] has done more to create tensions and ill feeling between the Houses than any other aspect of the Constitution and that the case for the removal of the power far outweighs any arguments for its retention. We also believe that the character of the Upper House as an independent Chamber will be strengthened if the Legislative Council forgoes its power to force a government to the people by refusing supply.120 The existence of the power of the Council with respect to supply also has a potential for altering the working of the system of government that would, in our view, be highly undesirable, producing both instability of government and a degree of stress that could be a danger to the constitutional framework.121

Given the importance of financial legislation, mechanisms ought to be in place to resolve deadlocks between the Houses in relation to all appropriation Bills and taxation Bills. The Tasmanian Royal Commission Report recommended this in relation to Bills imposing taxes.122 Importantly, the Report also recommended measures designed to enhance the Council’s capacity to scrutinise the financial affairs of the government – establishment of finance and estimates committees, research support, and statutory powers to seek explanations and information from ministers and officials.123 This is an important trade-off for removing the Council’s power to block supply.

3.4.2 Deadlocks over other Bills Only in New South Wales,124 South Australia125 and Victoria126 is there a constitutional mechanism dealing with deadlocks between the Houses in relation to ordinary Bills which originate in the Assembly.127 All involve a complex train of requirements which are more likely to encourage compromise rather than actually resolve a deadlock by enacting or rejecting the Bill concerned. Key mechanisms range from various attempts to have members of both Houses explore a compromise, to a general election, a joint sitting of both Houses, and even a referendum. Their complexity obviates any timely resolution of a deadlock. 119 Para 8.18. 120 Ibid para 8.4. 121 Ibid para 8.7. 122 Ibid para 8.40 but acknowledged in para 8.41 that Bills for new taxes might be excluded because of their far-reaching social impact. 123 See paras 10.5, 10.13 and 10.14, Report of the Royal Commission into the Constitution Act 1934 Tasmania. 124 Constitution Act 1902 (NSW) s 5B. 125 Constitution Act 1934 (SA) s 41. 126 Constitution Act 1975 (Vic) Div 9A, ss 65A–65F. 127 There are no mechanisms which resolve deadlocks over Bills which originate in the Council.

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Unlike the system adopted in South Australia, the approaches adopted in both New South Wales and Victoria do ultimately resolve the deadlock. In New South Wales the ultimate decision rests with a referendum of the electorate,128 although in Victoria it rests with a joint sitting of both Houses (as is the case with the Commonwealth Parliament under s 57 of the Commonwealth Constitution). The New South Wales approach favours defeat of the Bill, compared with the Victorian approach which is likely to favour its passage. In South Australia, the procedure peters out with a double dissolution of both Houses or an increase in the number of members in the Council, neither of which will necessarily resolve a deadlock. Yet, none of these procedures has actually been successfully invoked to pass legislation. Even in New South Wales, the final stage of a referendum under s 5B of the Constitution Act 1902 (NSW) has occurred only once in 1961, and the Bill in that instance – to abolish the Legislative Council – was defeated.129 In summary form, the procedure prescribed by s 5B is as follows: The Assembly must pass the Bill and the Council must reject it, or fail to pass it (within two months),130 or pass it with amendments unacceptable to the Assembly. This must be repeated after an interval of three months within the same or next parliamentary session.131 Provision is next made for a free conference between managers of each House to try to reach agreement. If no agreement is reached, the Governor may convene a joint sitting of both Houses to deliberate upon the Bill but no vote is taken. If still no agreement is reached, the Assembly may by resolution direct that the Bill be submitted to a referendum during the current parliament or at the next Assembly general election. If a majority of electors approve the Bill, it must be presented for royal assent. This referendum also satisfies any referendum requirement applicable to the Bill under s 7A or 7B.

The justiciability of these requirements was considered by the High Court in Clayton v Heffron.132 Proceedings were brought to prevent the submission to a referendum pursuant to s 5B of a Bill to abolish the New South Wales Legislative Council, on the ground that two procedural requirements had not been fulfilled: the free conference between the managers of each House and the joint sitting. The Assembly asked for a free conference but the Council refused to send any managers. The Governor then convened a joint sitting but the Council resolved that no members should attend as there was no basis under s 5B entitling the Governor to convene such a sitting. In fact, 23 members of the Council met 128 The validity of dispensing with the approval of the Council in this way was upheld in Taylor v AttorneyGeneral of Queensland (1917) 23 CLR 457 which accept the similar procedure prescribed by the Parliamentary Bills Referendum Act 1908 (Qld). 129 The referendum occurred after a challenge to it was rejected in Clayton v Heffron (1960) 105 CLR 214. 130 Section 5B(4) provides that the Council is taken to have failed to pass a Bill if it is not returned during the same session to the Assembly within two months after its transmission to the Council. 131 This period of three months is presumably measured from the date the Council rejects, or fails to pass the Bill, or when the Assembly indicates its disagreement with Council amendments – since the wording of s 5B(1) in this respect is identical to s 57 of the Commonwealth Constitution: Victoria v The Commonwealth and Connor (1975) (PMA case) 134 CLR 81. 132 (1960) 105 CLR 214.

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with 85 members of the Assembly in the council chamber. The High Court (with Fullagar J dissenting) found the free conference requirement not to be intended by parliament to be essential to validity since it could be so easily frustrated by the Council. Accordingly, as a joint sitting had in fact occurred, despite the Council’s resolution, the essential legal prerequisites for the referendum were satisfied.133 Also, the Court unanimously upheld the validity of s 5B as a manner and form provision, even in its combined operation with s 7A. Section 7A enacted before s 5B entrenched the Council by requiring any Bill to abolish the Council to be passed by both Houses and then be approved by referendum. Section 5B, however, altered this procedure by allowing a Bill to be submitted to the referendum even if it failed to pass the Council, provided it satisfied the series of legislative steps outlined above. Given this alteration, the Court noted that the enactment of s 5B had been approved by referendum in accordance with s 7A. The validity of these manner and form provisions is considered more fully in Chapter 6. There is a significant difference between the procedure prescribed by s 5B of the New South Wales Constitution and that prescribed respectively for South Australia and Victoria: only the former provides for a resolution of a deadlock during the life of a parliament. Both in South Australia and Victoria a general election must occur before the procedure may be fully activated. The Victorian procedure, introduced in 2003,134 still resembles that of New South Wales so far as the Council must have twice rejected the Bill, or failed to pass it within two months, or passed it with amendments unacceptable to the Assembly. But the three-month interval required in New South Wales between each Council rejection is replaced in Victoria with an optional reference to a parliamentary dispute resolution committee and a general election. Only after the second rejection following a general election, may the Premier advise the Governor to convene a joint sitting of both Houses. The Bill must be presented for assent if passed at its third reading by an absolute majority of the total number of members of both Houses.135 A common feature of these procedures is the requirement of the Speaker’s certificate which is deemed to be conclusive and non-justiciable. For instance, s 65(8) of the Constitution Act 1975 (Vic) provides: ‘The certificate of the Speaker under this section is conclusive evidence for all purposes and cannot be questioned in any court.’ The South Australian procedure under s 41 of the Constitution Act 1934 (SA) follows the Victorian approach except, instead of a joint sitting, provision is made for either a double dissolution of both Houses or the issue of writs for the election of two additional members for each Council district. And that is it! An alternative procedure is available under s 28(1)(c) for Bills declared by resolution of the South Australian Assembly to be Bills of special importance, where the 133 Ibid joint judgment of Dixon CJ, McTiernan, Taylor and Windeyer JJ at 246–8, per Kitto J at 268, per Menzies J at 276–7; Fullagar J dissented at 262. 134 See Div 9A Constitution Act 1975 (Vic) inserted by s 15 of the Constitution (Parliamentary Reform) Act 2003 (Vic). 135 Unless required also to be passed by a referendum under s 18(1B).

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Governor may dissolve the Assembly within one month of their rejection by the Council.

3.4.3 Judicial review of legislative process It is inevitable that issues will arise whether these special procedures for resolving deadlocks within a bicameral parliament have been properly followed. A failure to observe the procedures may provide a basis for challenging any enactment which emerges from that procedure. Or it may even lead to a challenge, before an enactment emerges, to the procedure continuing if one of the steps has not been complied with. Each of these scenarios raises the issue whether judicial review is available. In reviewing the validity of an Act of Parliament, the established English principle is that each House of the United Kingdom Parliament determines exclusively whether a Bill has been passed in accordance with its procedural requirements.136 The classic statement of this principle was given by Lord Campbell in Edinburgh and Dalkeith Railway Co v Wauchope: All that a Court of Justice can do is to look to the Parliamentary roll: if from that it should appear that a bill has passed both Houses and received the Royal assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament during its progress in its various stages through both Houses.137

This statement was endorsed in British Railways Board v Pickin138 where the House of Lords rejected an attempt to impugn a statutory provision on the basis that it had been obtained by fraudulently concealing certain matters from parliament. The fact that it occurred in relation to a private rather than public Act was irrelevant. Lord Reid observed that the ‘court has no concern with the manner in which parliament or its officers carrying out its Standing Orders perform these functions.’139 Lord Morris of Borth-y-Gest added that ‘[i]t must be for Parliament to decide whether it is satisfied that an Act should be passed in the form and with the wording set out in the Act.’140 Lord Simon of Glaisdale emphasised that the privileges of the Houses include the exclusive right to determine the regularity of their own internal proceedings.141 But the above statement from Edinburgh and Dalkeith Railway Co v Wauchope cannot be literally applied in Australia where the legislative process can be altered by manner and form provisions. But so far as these legislative restrictions are not in issue, this principle does protect the legislative process from judicial review. Hence, no challenge can be brought for a failure to comply with the Standing Orders of a House (as in Edinburgh and Dalkeith Railway Co v Wauchope), or 136 137 138 141

Victoria v The Commonwealth and Connor (1975) (PMA case) 134 CLR 81 at 181 per Mason J. (1842) 8 C&F 710 at 725 (8 ER 279 at 285). [1974] AC 765. 139 Ibid 787. 140 Ibid 790. Ibid 799. See also Willes J in Lee v Bude and Torrington Junction Railway Co (1871) LR 6 CP 576 at 582.

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because parliament might have been misled by a recital in a Bill (as in British Railways Board v Pickin).142 In applying this principle, the court is simply observing the exclusive power of each House to determine the regularity of its own proceedings – an integral aspect of parliamentary privilege (see below). But the position differs in relation to special law-making procedures prescribed by statute. The joint judgment of Dixon CJ, McTiernan, Taylor and Windeyer JJ in Clayton v Heffron identified with precision the distinction which needs to be made here: The process of law-making is one thing: the power to make the law as it has emerged from the process is another. It is the latter which the court must always have jurisdiction to examine and pronounce upon. Of course, the framers of a constitution may make the validity of a law depend upon any fact, event or consideration they may choose, and if one is chosen which consists in a proceeding within Parliament the courts must take it under their cognizance in order to determine whether the supposed law is a valid law.143

Accordingly, the requirements of s 5B of the New South Wales Constitution were held to be binding for the enactment of valid law.144 Similarly, the requirements of s 57 of the Commonwealth Constitution to resolve deadlocks created by the Senate were held to be binding in Cormack v Cope145 and the PMA case.146 In the former, the High Court distinguished and confined the principle of noninterference in parliamentary proceedings to what Barwick CJ referred to as, ‘the intra-mural deliberative activities of the Parliament’.147 Instead, reliance was placed on the principle from Bribery Commissioner v Ranasinghe148 in relation to the Ceylon Constitution, and the decision in Clayton v Heffron149 in relation to ss 5B and 7A of the New South Wales Constitution, to hold that ‘there is no parliamentary privilege which can stand in the way of this Court’s right and duty to ensure that the constitutionally provided methods of law-making are observed.’150 It is evident from the approach taken in Clayton v Heffron that each step prescribed for the resolution of a deadlock needs to be individually considered to determine whether it is essential. In addition, the failure of members of a House to cooperate, for instance by refusing to attend a free conference of managers or a joint sitting, does not necessarily preclude compliance with the prescribed procedure. Then again, it seems doubtful whether non-compliance with the specific wording of the enactment required by s 5C for enactments made under ss 5A and 5B would have been intended to result in their invalidity.

142 Ibid. 143 (1960) 105 CLR 214 at 235. 144 Except that a failure of Council members to attend the free conference of managers and the joint sitting did not preclude compliance. 145 (1974) 131 CLR 432 at 452–3. 146 Victoria v The Commonwealth and Connor (PMA case) (1975) 134 CLR 81. 147 Clayton v Heffron (1974) 131 CLR 432 at 453. 148 [1965] AC 172. 149 (1960) 105 CLR 214. 150 (1974) 131 CLR 432 at 454.

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In Victoria, the prescribed requirements on their own would appear to be essential to validity,151 except that provision is made for the Speaker to conclusively certify that a Bill is a disputed Bill for presentation to a joint sitting (s 65F(4) and (5)) and that it was passed at that sitting (s 65G(8) and (9)). In each case, it is provided that the certificate cannot be questioned in any court. A conclusive Speaker’s certificate is also provided for under s 65(8) to certify that the requirements of that section have been satisfied to enable assent to be given to an annual appropriation Bill rejected or blocked by the Council.152 There appears no basis for suggesting that such a certificate is ineffective to oust judicial review when it concerns the internal procedures of parliament.153 Given the guiding principle here is parliament’s intention whether each of the prescribed requirements of the special procedure is essential for validity, the courts are obliged to give these certificates full effect.154 Then again, s 65D(3) and (4) make it clear that it is only lawful to present a disputed ordinary Bill to the Governor for royal assent if the requirements of referendum approval or a special or absolute majority are satisfied. These provisions provide the basis for judicial relief if their breach is threatened.155 In South Australia, the prerequisites for a double dissolution of the parliament or the issue of writs for an additional two members in each Council District appear to be essential. But if either of these events occurred without their compliance, this would not affect their validity.156

3.4.4 Judicial intervention in the legislative process On rare occasions, judicial relief has been sought to prevent a Bill proceeding to the next stage of a special legislative procedure on the ground that the essential prerequisites for that stage have not been satisfied. In the context of a deadlock procedure, this was the case in Clayton v Heffron.157 Although no relief was granted because the High Court found no violation of any of the essential prerequisites for submission of the Bill to a referendum, the Court indicated that the appropriate time for judicial review was ‘only after the law in question has been enacted and when its validity as law is impugned by someone affected by its operation.’158 There are several reasons for this judicial reticence to grant discretionary relief: a concern not to violate parliamentary privilege by interfering in the exclusive 151 An attempt by the Council to boycott a joint sitting would not affect the validity of any Act: see Clayton v Heffron (1960) 105 CLR 214. 152 Constitution Act 1975 (Vic) s 65(8) provides: ‘The certificate of the Speaker under this section is conclusive evidence for all purposes and cannot be questioned in any court.’ 153 See Campbell, above n 43, 119–22. 154 The High Court’s approach to privative clauses in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 is not applicable to certificates concerning parliamentary proceedings. 155 See Trethowan v Peden (1930) 21 SR (NSW) 183 and Attorney-General (WA) v Marquet (2003) 217 CLR 545. 156 Follow PMA case (1975) 134 CLR 81. 157 (1960) 105 CLR 214. 158 Ibid at 235 per joint judgment of Dixon CJ, McTiernan, Taylor and Windeyer JJ.

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power of the Houses to regulate their own proceedings; intervention is premature if no enactment emerges; and if one does, its validity can then be declared after enactment. Nonetheless, there is authority to support intervention in two rare situations: first, where there is a clear statutory prohibition on the step about to be taken;159 and second, when the Court’s jurisdiction to declare the law invalid is denied on enactment.160 Neither of these circumstances existed in Cormack v Cope161 when the High Court refused to intervene to prevent the holding of a joint sitting of the Commonwealth Parliament under s 57. Consequently, one of the Acts passed at that joint sitting was later held invalid in the PMA case for failing to comply with all requirements of s 57.162 Yet State Constitutions contain a number of express negative prohibitions similar to that found in s 7A(2) of the Constitution Act 1902 (NSW) which was enforced by the New South Wales Court of Appeal in Trethowan v Peden.163 Section 7A(2) provides: A Bill for any purpose within subsection (1) shall not be presented to the Governor for His Majesty’s assent until the Bill has been approved by the electors in accordance with this section.

Courts have a duty to prevent violation of provisions such as this which expressly prohibit an Act unless its prerequisites are satisfied.164 In Attorney-General of Western Australia v Marquet,165 justiciability was not in issue, although Kirby J briefly considered it. While affirming his views in Eastgate v Rozzoli,166 his Honour held no doubt that compliance with s 13 of the Electoral Distribution Act 1947 (WA) was justiciable for the reasons given by the Western Australian Full Court;167 namely, the case did not concern the deliberative proceedings of the State Parliament and the phrase ‘shall not be lawful’ indicated justiciability.168 Finally, it should be noted that even if it is possible to seek judicial review before enactment, it may not be possible to challenge the legal effect of the procedure taken so far if no adequate remedy is available. An obvious example occurs in relation to an anti-deadlock provision where the Houses are unable to agree on a Bill. As part of the special legislative procedure, the parliament might be dissolved in the hope that the new Houses can resolve the deadlock.169 It would be highly 159 See Trethowan v Peden (1930) 31 SR (NSW) 183 (New South Wales Court of Appeal) where an injunction was issued to prevent the presentation of a Bill to the Governor for assent in view of the express negative provision in s 7A of the Constitution Act 1902 (NSW). But Dixon CJ in Hughes and Vale Pty Ltd v Gair (1954) 90 CLR 203 at 204 revealed his long-held doubt as to the correctness of that decision. 160 See Eastgate v Rozzoli (1990) 20 NSWLR 188 at 199 per Priestley and Handley JJA. 161 Cormack v Cope (1974) 131 CLR 432. 162 PMA case (1975) 134 CLR 81. 163 (1930) 31 SR (NSW) 183. 164 A Bill might still be presented for assent where only specific provisions of the Bill are rendered void for non-compliance with a manner and form requirement: for example s 18(2A) Constitution Act 1975 (Vic) – as occurred over the Road Management Bill in 2004: Victorian Legislative Council Hansard (5 May 2004) pp. 505, 545–8, 586–9. 165 (2003) 217 CLR 545. 166 (1990) 20 NSWLR 188 at 193. 167 Marquet v Attorney-General (WA) (2002) 17 CLR 545 [17], [21], [84], [160]. 168 Ibid [108]–[110]. 169 PMA case (1975) 134 CLR 81, where the view was expressed that no challenge could be brought to a double dissolution (after it occurred) under s 57 if the ground for that were not satisfied: Barwick CJ at 120; Stephen J at 178; Mason J at 183.

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impractical and disruptive for a Court to declare the dissolution invalid after it occurs. Still, judicial relief might be available to prevent this occurring.170 In any event, a dissolution which occurs without the prerequisites satisfied will usually render invalid the remainder of the anti-deadlock procedure.

3.5 Parliamentary privilege The nature and scope of parliamentary privilege is a complex topic which is adequately dealt with elsewhere.171 A brief outline is provided here which focuses on its legal foundation in the States and territories. Parliamentary privilege describes those powers and immunities enjoyed by each House of parliament as well as by its committees, members, officials, and those who appear as witnesses before it or its committees. These powers and immunities are intended to protect the capacity of each House, and hence of parliament as a whole, to perform their legislative functions – principally, the passage of Bills and the scrutiny of the Executive. Essentially, their powers and immunities reflect those vested in the British House of Commons: The powers to: determine the qualifications of its members; regulate and discipline its members; control its own proceedings; conduct inquiries; and punish contempts. The immunities of members from: arrest in civil causes, from jury service, from compulsory attendance before a court or tribunal, and most significantly, the immunity for statements made and action taken in the course of parliamentary debates and proceedings recognized by Art 9 of the Bill of Rights 1689.

Even though these powers and immunities are those of the British House of Commons, the extent to which they are also enjoyed by the Houses of the State and territory legislatures depends on the common law and statute. When the Australian colonies were first granted representative and responsible government in the 19th century, they did not inherit by virtue of the common law all the powers and immunities of the House of Commons. They only inherited those which were needed to enable their Houses to function.172 This common law principle of necessity meant, for instance, that the Houses were not vested with the power to punish members and non-members for contempt of parliament, although they were vested with power to suspend or expel members for unworthy conduct, and to restore order by removing any person disturbing its proceedings.173 Punitive powers were denied, but defensive powers were vested. Also vested by the

170 Ibid per Gibbs J at 157, Mason J at 184. 171 See Campbell, above n 43; Gerard Carney, Members of Parliament: Law and Ethics (Sydney: Prospect, 2000) Chapters 5 and 6. 172 Kielly v Carson (1842) 4 Moo PC 63; Doyle v Falconer (1866) LR 1 PC 328. 173 See, for example, Armstrong v Budd (1969) WN (Pt 2) NSW 241.

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common law were the power to order the production of documents174 and the immunity of Article 9 freedom of speech.175 Statutory adoption of the privileges of the House of Commons, however, has overcome the limitations of the common law position in all States and territories – except in New South Wales and Tasmania. The Houses of the New South Wales Parliament still rely on the common law principle of necessity for their parliamentary privileges.176 So, too in Tasmania, except for statutory adoption of the power to summon witnesses and to punish specified contempts.177 The other States have exercised their general legislative power to adopt all the privileges of the British House of Commons. The only difference between them is when this adoption occurs. By fixing a specific date of adoption in Queensland,178 South Australia,179 Victoria,180 and Western Australia,181 the scope of parliamentary privilege in each of those States is determined by reference to the position in Britain as at that date. Yet an ambulatory approach applies in the ACT,182 the Northern Territory,183 and Norfolk Island,184 where each legislature enjoys the privileges of the House of Representatives as they exist from time to time. Consequently, changes to the privileges of the House of Representatives flow directly to these territory legislatures unless they provide otherwise. Both legislatures are empowered to declare their own privileges provided they do not exceed those of the House of Representatives. The ACT legislature is further restricted in being prevented from imprisoning or fining any person. Apart from changes made so far by the Parliamentary Privileges Act 1987 (Cth), the privileges of both Commonwealth Houses are fixed by s 49 of the Commonwealth Constitution to those of the British House of Commons as at the establishment of the Commonwealth on 1 January 1901. One of the most difficult legal aspects of parliamentary privilege is the extent to which it is subject to judicial review.185 There is a lack of coherent principles to define precisely the jurisdiction of the courts, no doubt partly as a result of the paucity of cases where this issue has been raised. But even in those few cases 174 Egan v Willis (1998) 195 CLR 424 dismissing the appeal from the New South Wales Court of Appeal (1996) 40 NSWLR 650. 175 Gipps v McElhone (1881) 2 LR (NSW) 18; R v Turnbull [1958] Tas SR 80; Chenard and Co v Joachim Arissol [1949] AC 127. 176 Egan v Willis (1998) 195 CLR 424; Barton v Taylor (1886) 11 App Cas 197. 177 Carney, above n 171, 169, fn 69. Note that s 12 merely affirms pre-existing privileges without conferring any. 178 As at 1 January 1901: Constitution of Queensland 2001 s 9; until 2001, s 40A Constitution Act 1867 (Qld) adopted the House of Commons privileges as they existed from time to time. 179 As at 24 October 1856: ss 9 and 38 Constitution Act 1934 (SA). 180 As at 21 July 1855: s 19(1) Constitution Act 1975 (Vic). 181 As at 1 January 1989: s1 Parliamentary Privileges Act 1891 (WA). 182 ACT (Self-Government) Act 1988 (Cth) s 24. 183 Legislative Assembly (Powers and Privileges) Act 1992 (NT) s 4. 184 Norfolk Island Act 1979 (Cth) s 20. 185 CJ Boulton (ed) Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament (21st edn, London: Butterworths 1989), 145: ‘After some three and a half centuries, the boundary between the competence of the law courts and the jurisdiction of either House in matters of privilege is still not entirely determined.’

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where the issue has been decided, there has been a tendency not to articulate clearly the reasons for denying or accepting jurisdiction. When jurisdiction is denied, at times it seems that judges have been too willing to shy away from the spectre of a conflict between parliament and the courts. The fundamental approach to judicial review of parliamentary privilege was established in the early 19th century in Stockdale v Hansard186 and in the Case of the Sheriff of Middlesex.187 The courts have jurisdiction to determine the existence and scope of a parliamentary privilege but not to review its exercise. This approach is based on the fact that parliamentary privileges exist by virtue of the law as interpreted by the courts, but a House when exercising a legally recognised privilege is entitled to act within its discretion in such manner as it sees fit to protect its capacity to function. The apparent simplicity of this distinction between judicial review of the existence and scope of a privilege on the one hand, and denial of that jurisdiction in relation to the exercise of a privilege on the other is, nonetheless, rather misleading.188 The distinction is sometimes difficult to apply in practice. The position is a little clearer if it is recognised that a denial of jurisdiction arises only where a House is purporting to exercise one of its privileges, which will usually involve an exercise of one of its powers. Jurisdiction is not lacking, though, where an immunity is being claimed by a member or a House. In such a case, the courts must enforce the rule of law by deciding on the claim of immunity which – it must be remembered – is an immunity from the law, recognised by statute, and not merely a parliamentary rule. It also appears that the more narrowly defined a privilege, the greater the likelihood that its exercise is reviewable. An example of this occurred in Egan v Willis189 where the Legislative Council of New South Wales ordered one of its members, the State Treasurer, to produce certain government documents. On failing to comply, the House ordered the removal of the member who then challenged in the courts the validity of the order to produce and his removal. McHugh J in dissent refused to consider the validity of the order to produce on the ground that this questioned the propriety of the exercise of the undoubted privilege of the House to discipline its members for obstructing the business of the House. The majority (Gaudron, Gummow, Kirby, Hayne and Callinan JJ) on the other hand, based their finding that the removal of the member was valid on the ground that the House had the power to order the production of the government documents. The majority, therefore, identified the particular power to suspend a member more narrowly as one to be exercised for failure to comply with an order of the House – an issue which McHugh J regarded as delving into the propriety of the 186 (1839) 9 A & E 1; 3 ST TR NS 736; 112 ER 1112. 187 (1840) 11 AD & E 273; 113 ER 419. 188 See New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly) (1993) 100 DLR (4th) 212 at 229–30 per Lamer CJ. 189 (1998) 195 CLR 424.

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exercise of a wider power to suspend a member for obstructing the business of the House.190 Given the obligation to produce the executive documents ordered by the Council, the New South Wales Court of Appeal subsequently held in Egan v Chadwick191 that the Minister could not rely on legal professional privilege or public interest immunity to avoid compliance.

3.6 Parliamentary terms On receiving responsible government, most colonial Assemblies had a five-year term. But by 1900, all had followed the South Australian example of a threeyear term. Currently, the parliamentary term for all Assemblies has lengthened to four years, except in Queensland where it remains three years. These terms are effectively entrenched by referendum in New South Wales,192 Queensland193 and Victoria.194 The four-year term in Tasmania is ineffectively entrenched by a requirement of a two-thirds majority of the Assembly.195

3.7 Prorogation and dissolution Prorogation occurs when a parliamentary session is terminated. It is distinct from a dissolution of a House which vacates all members’ seats. Prorogation effectively adjourns the parliament until its members are summoned again. The powers to prorogue196 and to dissolve197 a House are exercised by the Governor on ministerial advice. In a bicameral parliament, both Houses are liable to be prorogued. Dissolution, though, is usually confined to the Legislative Assembly. Only in South Australia is there the possibility of a double dissolution.198 The circumstances in which a dissolution can occur are explained in Chapter 8 on the Executive. Prorogation rarely occurs as most parliaments sit only one session subject to periodic adjournments. There seems little reason for retaining this power. No power of prorogation exists in the ACT or Norfolk Island. Only in the Northern Territory is the Administrator empowered to prorogue the Legislative Assembly.199 And only in the ACT is there a clear power to dissolve the Assembly 190 See Carney, above n 171, 174–5. 191 (1999) 46 NSWLR 563. 192 Constitution Act 1902 (NSW) s 7B. 193 The three-year term prescribed by s 2 Constitution Act Amendment Act 1890 (Qld) is effectively entrenched from being extended by s 4 Constitution Act Amendment Act 1934 (Qld). 194 Constitution Act 1975 (Vic) s 18(1B). 195 Constitution Act 1934 (Tas) s 41A only singly entrenches s 23. 196 Power to prorogue: Constitution Act 1902 (NSW) s 10; Constitution of Queensland 2001 (Qld) s 15(2); Constitution Act 1934 (SA) s 6; Constitution Act 1934 (Tas) s 12(1); Constitution Act 1975 (Vic) s 8(2); Constitution Act 1889 (WA) s 3 (1889). 197 General power to dissolve the Assembly: Constitution of Queensland 2001 (Qld) s 15(2); Constitution Act 1934 (Tas) s 12(2); s 3 Constitution Act 1889 (WA). Due to fixed term parliaments, restricted power to dissolve the Assembly in Constitution Act 1902 (NSW) s 24B, Constitution Act 1934 (SA) s 28A, and Constitution Act 1975 (Vic) ss 8(3), 8A and 68E(2). 198 Constitution Act 1934 (SA) s 41. 199 Northern Territory (Self-Government) Act 1978 (Cth) s 22(1).

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if the Governor-General believes that it is incapable of performing its functions or is conducting its affairs in a grossly improper manner.200 Both prorogation and dissolution terminate parliamentary proceedings including that of its committees.201 Of particular significance is the impact each has on Bills not yet enacted. The High Court in Attorney-General (WA) v Marquet202 recently clarified the position in relation to prorogation by holding that only pending Bills lapse. Bills which have passed both Houses before being prorogued can still be presented for assent. The prorogation of the Houses of the Western Australian Parliament pursuant to s 3 of the Constitution Act 1889 only put at end pending proceedings in the House prorogued. Kirby J agreed with the joint judgment on this issue, relying on the fact that many Western Australian Bills had been assented to in the past after the Houses were prorogued. The Court in Marquet did not address two other possible scenarios. First, where a Bill is passed by one House before being prorogued and remains before the other House which is not prorogued. Presumably, the Bill remains on foot and if passed by the second House, can be presented for assent. The second is where the Bill is passed by one House and is being considered by the second House, when the second or both Houses are prorogued. The Bill would need to only pass the second House. Except for Kirby J, the Court also did not address the effect of dissolution. Kirby J considered that a Bill which has passed both Houses can still receive assent despite both Houses being dissolved. His Honour relied on past practice, noting that a referendum to approve a Bill has often coincided with a general election, including amendments to the Commonwealth Constitution which were approved by referenda and assented to after dissolution of the Commonwealth Parliament.203 The other members of the Court did not comment on the effect of dissolution which raises a distinct issue from the effect of prorogation. 200 ACT (Self-Government) Act 1988 (Cth) s 16. 201 See I. C. Harris (ed), House of Representatives Practice (4th edn, Canberra: Department of the House of Representatives, 2001) 220–1 and 225–8. 202 [2003] HCA 67 per joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ at [85]; Callinan J at [302] was inclined to follow the joint judgment but left the issue open. Rejected the views expressed by Gibbs J and Stephen J in PMA case (1975) 134 CLR 201 (above n 146). 203 Ibid para [116–18] fn 94.

4 Legislative power

4.1 Introduction This chapter focuses on the legislative power of the State and self-governing territory legislatures. State legislatures are vested with a general law-making power for their State. There is no need to characterise their enactments within any particular head of legislative power as required for Commonwealth enactments. Consequently, State laws are usually prima facie valid. They are, however, subject to invalidation for infringing a range of restrictions on power. Similarly, the Legislative Assemblies of the ACT, Northern Territory and Norfolk Island enjoy plenary legislative power, subject to various exceptions and restrictions imposed by their respective Self-Government Acts. After considering the plenary nature of State and territory legislative power, this chapter examines the constitutional significance of the doctrine of separation of powers at the State and territory level, before outlining the restrictions on their respective powers. The restrictions on State legislative power derive principally from the Commonwealth Constitution and the Australia Acts 1986. In particular, the nature and scope of the implied freedom of political communication are examined. Note that separate consideration is given in the following three chapters to three further substantive restrictions on State power: the doctrine of repugnancy (Chapter 5); manner and form (Chapter 6); and extraterritoriality (Chapter 7). The restrictions on the legislative power of the self-governing territories derive from the Commonwealth Constitution and their Self-Government Acts. Where appropriate, reference is made to those restrictions in this chapter and in Chapters 5 to 7. Otherwise, they are dealt with in Chapters 11 and 12. 103

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4.2 State legislative power The prima facie scope of the legislative power of each State parliament is the same, despite certain differences in the description of their respective powers. The most common description is the power to enact laws for the ‘peace, welfare and good government’ of the State.1 In Western Australia, the phrase differs slightly: ‘peace, order and good government’ of that State.2 In Victoria, the power is simply expressed as a power to make laws ‘in and for Victoria in all cases whatsoever’.3 The scope of their legislative power is unaffected by these linguistic differences.4 In essence, the content and scope of the power is to make all laws for the State. The different formulation in Victoria, an instance of colonial individualism,5 was adopted in its first colonial Constitution: s 1 of the Constitution Act 1855 (Vic). Following the Western Australian formulation, both the ACT and Northern Territory legislatures are vested with power to make laws for the ‘peace, order and good government of the Territory’.6 The vesting of legislative power is found in the formal State Constitutions7 – except in South Australia and Tasmania – where their Constitutions have always relied on the original imperial grant of power. In South Australia, s 5 of the Constitution Act 1934 (SA) incorporates by reference the power conferred by s 14 of the Australian Constitutions Act 1850 (Imp). In Tasmania, that imperial provision continues to vest legislative power in the Tasmanian Parliament.8 In contrast, the grant of legislative power to each of the self-governing territories is made by a Commonwealth Act9 which lies beyond amendment by each territory. As outlined in Chapter 2, it is clear that the original source of State legislative power was imperially derived. Federation, however, required confirmation of the continuation of this power. This was effected by s 106 of the Commonwealth Constitution which continued, subject to the Commonwealth Constitution, each original State Constitution, and by s 107 which continued State legislative power, except that vested exclusively in the Commonwealth Parliament or otherwise withdrawn from the States. Given the express reference in ss 106 and 107 that State Constitutions and State legislative power ‘shall . . . continue’ respectively, it does not seem possible to assert that the only source of State power is now 1 Constitution Act 1902 (NSW) s 5; Constitution of Queensland 2001 s 8 and Constitution Act 1867 (Qld) s 2; Constitution Act 1934 (SA) s 5 with Australian Constitutions Act 1850 (Imp) s 14; Tasmania by Australian Constitutions Act 1850 (Imp) s 14. 2 Constitution Act 1889 (WA) s 2. 3 Constitution Act 1975 (Vic) s 16. 4 Union Steamship Co of Australia v King (1988) 166 CLR 1 at 9. 5 See Ian D. Killey, ‘ “Peace, Order and Good Government”: A Limitation on Legislative Competence’ (1989) 17 Melbourne University Law Review 24, 27. 6 Section 22, ACT (Self-Government) Act 1988 (Cth); s 6 Northern Territory (Self-Government) Act 1978 (Cth). Note that certain matters are excluded from the ACT legislative power by s 23, and by s 50A in relation to the Northern Territory. 7 Constitution Act 1902 (NSW) s 5; Constitution of Queensland 2001 s 8 and Constitution Act 1867 (Qld) s 2; Constitution Act 1975 (Vic) s 16; Constitution Act 1889 (WA) s 2. 8 Tasmania by Australian Constitutions Act 1850 (Imp) s 14. 9 ACT (Self-Government) Act 1988 (Cth); Norfolk Island Act 1979 (Cth); and Northern Territory (SelfGovernment) Act 1978 (Cth).

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the Commonwealth Constitution. Nor is that assertion necessarily supported by the fact that State Constitutions were created as such by s 106.10 In any event, a debate over whether the Commonwealth Constitution continued or conferred State power seems to be of little significance – except in relation to the issue whether the Commonwealth Parliament can amend the State Constitutions.11

4.2.1 Status of State Constitution as a local Act It is evident from the historical evolution of the State Constitutions that each of the State Constitution Acts is an enactment of their respective State parliament, that is, a local Act. With the exception of certain provisions that are effectively entrenched by manner and form (see Chapter 6), each Constitution Act is an ordinary statute, like the proverbial Dog Act,12 which is subject to express and implied amendment and repeal like any other State enactment. This status as a local flexible enactment contrasts with both the paramount rigid nature of the Commonwealth Constitution, as well as the self-governing Territory Constitutions. The Commonwealth Constitution remains technically an imperial enactment which can only be amended via a s 128 referendum, while the Territory Constitutions are Commonwealth enactments which can only be amended by the Commonwealth Parliament. The local status of the State Constitution Acts has, no doubt, contributed to their lack of recognition within the community. What is needed is a greater appreciation of their importance at the State level. It is to be hoped that the special designation of the Constitution of Queensland 2001 will assist in this regard. An attempt was made to distinguish a State Constitution from ordinary legislation in Cooper v Commissioner of Income Tax for the State of Queensland13 when the judges of the Queensland Supreme Court challenged the validity of Queensland income tax legislation so far as it imposed income tax on their judicial salaries. It was argued that this was inconsistent with s 17 of the Constitution Act 1867 (Qld) which provided for the payment of judicial salaries. In rejecting this argument, a majority of the High Court nonetheless concluded that any amendment or repeal of the Constitution Act had first to be made before the enactment of any inconsistent provisions.14 This view was based on clause XXII of the Order in Council of 1859 pursuant to which the Constitution Act 1867 was enacted which conferred a power to alter or repeal the provisions of the order. The force of this imperial law continued in the Constitution Act – both of which O’Connor J referred to as ‘fundamental law’.15

10 Suggested by Brennan CJ in McGinty v Western Australia (1996) 186 CLR 140 at 171. 11 See G. J. Lindell, ‘Why is Australia’s Constitution Binding? The Reasons in 1900 and Now, and the Effect of Independence’ (1986) 16 Federal Law Review 29, 39. 12 See McCawley v The King (1920) 28 CLR 106 (PC) at 115–16. 13 (1907) 4 CLR 1304. 14 Ibid at 1315 per Griffith CJ (with whom Isaacs J agreed), at 1317 per Barton J, at 1328 per O’Connor J; Higgins J left issue open. 15 Ibid 1328.

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The High Court maintained this view narrowly (4–3)16 in McCawley v The King until the Privy Council17 rejected it on appeal. The Privy Council regarded the Queensland Constitution as an uncontrolled Constitution which could be amended expressly or impliedly by ordinary legislation, unless special restrictions had been adopted: The Legislature of Queensland is the master of its own household, except in so far as its powers have in special cases been restricted.18

Accordingly in that case, the Industrial Arbitration Act 1916 (Qld) was held to have impliedly amended the Constitution Act 1867 (Qld) by permitting a judge of the Arbitration Court to be appointed to the Supreme Court for a limited seven-year term, instead of for life as contemplated by ss 15 and 16 of the Constitution Act. The Privy Council rejected the view that certain provisions of the Constitution Act were ‘fundamental or organic’ while others were not. Consequently, within the imperial constraints on their power, the State parliaments enjoy a limited form of parliamentary sovereignty comparable to that which Dicey identified as enjoyed by the Imperial Parliament.19

4.2.2 A plenary power The words, ‘peace, welfare and good government’, and ‘peace, order and good government’20 are not words of restriction; they confer a plenary power for the enactment of any law deemed necessary by parliament. But so long as the power is expressed to be one of or for the State, a territorial restriction is imported (see Chapter 7). The plenary nature of State legislative power was recognised by the Privy Council in Powell v Apollo Candle Co21 which upheld the capacity of the New South Wales Parliament to delegate its powers to the Executive. This case followed two earlier decisions of the Judicial Committee, R v Burah22 and Hodge v The Queen,23 which rejected challenges to the power of the Indian Legislature and the Legislative Assembly of Ontario respectively to delegate their power to the Executive. The opinion delivered by Lord Selborne in R v Burah provides this classic statement of the full nature of colonial power: The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, 16 (1918) 26 CLR 9: Griffith CJ, Barton, Gavan Duffy and Powers JJ; contra Isaacs, Higgins and Rich JJ. 17 (1920) 28 CLR 106. 18 Ibid 125. 19 Ibid. 20 Both phrases are regarded as interchangeable: Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 9. The latter expression is older: Arthur Berriedale Keith, Responsible Government in the Dominions, Vol 1 (2nd edn, Oxford at the Clarendon Press, 1928) 302. The derivation of this phrase has been traced as far back as 1673 in commissions of colonial governors and later used in relation to Canada in 1774: Killey, above n 5, 25. 21 (1885) 10 App Cas 282. 22 (1878) 3 App Cas 889. 23 (1883) 9 App Cas 117.

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plenary powers of legislation, as large, and of the same nature, as those of Parliament itself.24

This plenitude of legislative power was reaffirmed by the Privy Council in Hodge v The Queen: . . . authority as plenary and as ample within the limits prescribed by s 92 [of the British North America Act 1867 (Imp)] as the Imperial Parliament in the plenitude of its power possessed and could bestow.25

No mere delegates of the Imperial Parliament, these colonial legislatures could delegate their powers,26 provided there was no purported abdication of power. Accordingly, those decisions were followed in Powell v Apollo Candle Co27 in upholding the validity of the Customs Regulation Act 1879 (NSW) which empowered the Governor to levy customs duties. The delegation was valid as ‘[t]he Legislature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him.’28 Earlier, the opinion held: ‘It is a Legislature restricted in the area of its powers, but within that area unrestricted and not acting as an agent or a delegate.’29 Similarly, the High Court in Clayton v Heffron30 expressed the scope of the legislative power in s 5 of the Constitution Act 1902 (NSW) – to make laws for the peace, welfare and good government of the State – in the widest possible terms: The first paragraph confers a complete and unrestricted power to make laws with reference to New South Wales. There is doubtless a territorial limitation implied in the reference to New South Wales but there is no limitation of subject matter.

Similarly, Sir Arthur Berriedale Keith described the width of the power in these terms: The means to these ends are entirely for the judgment of the Legislature which enacts; the test is subjective, not objective, and no Court can substitute its views of what should be enacted for those of the Legislature.31

The plenary nature of State legislative power has been consistently recognised by the High Court despite attempts to confine the power to protect fundamental common law rights.32 Instead, certain restrictions have been derived from the Commonwealth Constitution, such as the implied freedom of political communication which is discussed below. 24 (1878) 3 App Cas 889 at 904. 25 (1883) 9 App Cas 117. 26 Hence, the principle delegatus non potest delegare did not apply. 27 (1885) 10 App Cas 282. 28 Ibid 291. 29 Ibid 290. 30 (1960)105 CLR 214 at 249–50 per Dixon CJ. 31 Keith, above n 20. Endorsed by R. D. Lumb, The Constitutions of the Australian States (5th edn, St Lucia: University of Queensland Press 1991) 85. 32 Builders’ Labourers Federation v Minister for Industrial Relations (1986) 7 NSWLR 372; Durham Holdings v New South Wales (2001) 205 CLR 399.

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4.2.3 Fundamental rights It has been argued at times that the power of State legislatures is subject to restrictions which are intended to preserve fundamental common law rights. Such arguments have not succeeded so far in Australia. In Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (NSW BLF case)33 a range of different views on this issue was expressed by the New South Wales Court of Appeal, in response to a challenge to New South Wales legislation which was directed to the deregistration of the Builders’ Labourers Federation as a union under New South Wales law. The ground relied on was that the legislation infringed the doctrine of separation of powers by interfering with the judicial process in proceedings then before that Court. In holding that the New South Wales Constitution was not subject to the doctrine of separation of powers, various judges commented on whether the plenary legislative power was subject to any ‘ultimate’ restrictions. Street CJ accepted that the courts could hold invalid State laws which were ‘inimical to, or which do not serve, the peace, welfare, and good government of our parliamentary democracy’.34 Tyrannous legislation would also be invalid. Priestley JA similarly interpreted ‘peace, welfare and good government’ as words of limitation.35 On the other hand, Kirby P36 and Mahoney JA37 in separate judgments affirmed the traditional view of the plenary nature of State legislative power and rejected any restriction derived from fundamental common law principles. While Kirby P and Glass JA38 reserved their opinions on whether any restriction could be derived from the ‘peace, welfare and good government’ phrase, Kirby P observed that the protection against manifestly unjust laws was ‘fundamentally, a political and democratic one’.39 Similarly, the Diceyan40 view of parliamentary sovereignty was followed by the South Australian Full Court in Grace Bible Church v Reedman in rejecting a challenge to legislative requirements for the registration of non-government schools brought on the basis that they infringed an ‘inalienable right of freedom of religion and religious instruction’.41 So far, the High Court has not fully weighed into this debate of some ultimate protection for fundamental common law rights. While affirming the plenary nature of State legislative power in Union Steamship Co of Australia Pty Ltd v King, the High Court considered it unnecessary to explore the issue: whether the exercise of that legislative power is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law (see Drivers v Road Carriers, [42 ] Fraser v State Services Commission, [43 ] and Taylor v New Zealand Poultry Board), [44 ] a view which Lord Reid firmly rejected in Pickin v British Railways Board [45 ].46 33 36 40 41 42 44

(1986) 7 NSWLR 372. 34 Ibid 387. See also at 382–5. 35 Ibid 421–2. Ibid 404–6. 37 Ibid 413. 38 Ibid 407. 39 Ibid 406. See A. V. Dicey, Introduction to the Study of the Law of the Constitution, first published in 1885. (1984) 36 SASR 376 at 383–4, 385, 387, 390. [1982] 1 NZLR 374 at 390. 43 [1984] 1 NZLR 116 at 121. [1984] 1 NZLR 394 at 398. 45 [1974] AC 765 at 782. 46 (1988) 166 CLR 1 at 10.

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Support for the proposition which the Court sidestepped, namely, that there are fundamental principles of the common law which are beyond legislative abrogation, comes from a range of obiter judicial commentary. Prominent observations include remarks of Cooke J (as he then was) made in the trio of New Zealand decisions cited in the above passage. None of his Honour’s remarks in those cases was necessary for the decisions reached. In Drivers v Road Carriers, Cooke J was joined by McMullin and Ongley JJ in the Court of Appeal in upholding the validity of a regulation which restricted access to the Arbitration Court as intra vires the empowering statute. In obiter, their Honours warned that: we have reservations as to the extent to which in New Zealand even an Act of Parliament can take away the rights of citizens to resort to the ordinary Courts of law for the determination of their rights.47

In Taylor v New Zealand Poultry Board, a more general principle was identified by Cooke J: ‘[s]ome common law rights presumably lie so deep that even Parliament could not override them.’48 Therefore his Honour suggested that the New Zealand Parliament would lack the power to prescribe literal compulsion such as torture. In Fraser v State Services Commission, a case which involved a denial of natural justice, the same general principle was expressed without any further elaboration.49 Support for Lord Cooke’s approach is found in an obiter comment of Murphy J in Sillery v The Queen: In the light of our constitutional history any law which requires or authorizes infliction of cruel and unusual punishment should be regarded as transcending the limits of power expressed in the words ‘peace, order, and good government’.50

Notable academic support51 for the existence of a limitation on this ‘plenary power’ includes Geoffrey de Q. Walker: 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 . . . But its foundations are weak and it has never clearly and formally, least of all democratically, been made part of our Constitutions. There is no reason why the Australian legal system, as it nears its bicentennial year, should chain itself to such a dubious, dangerous and stultifying piece of theoretical speculation.52

47 [1982] 1 NZLR 374 at 390. 48 [1984] 1 NZLR 394 at 398. 49 See also L v M [1979] 2 NZLR 519 at 527. 50 (1981) 180 CLR 353 at 362. 51 See also Paul Fairall, ‘Peace, Welfare and Good Government Limitations on the Powers of the New South Wales Parliament’ (1988) Law Society Journal 39; D. A. Smallbone, ‘Recent Suggestions of an Implied “Bill of Rights” in the Constitution, Considered as Part of a General Trend in Constitutional Interpretation’ (1992–3) 21 Federal Law Review 254. 52 ‘Dicey’s Dubious Dogma of Parliamentary Sovereignty: A Recent Fray with Freedom of Religion’ (1985) 59 Australian Law Journal 276, 284.

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Professor Walker relies on early cases, especially Coke CJ in Dr Bonham’s case53 in 1605: And it appears in our books, that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void.

He also relies on more recent judicial comment, such as the obiter of Lord President Cooper in MacCormickvLordAdvocate54 that the United Kingdom Parliament could not repeal the 1707 Treaty of Union with Scotland. The critical difficulty with the view that there is at least an ultimate limit on the supremacy of parliament is the impossibility of precisely defining the nature and scope of that limit. Inevitably, it must involve judicial discretion. This would impose on judges an onerous political responsibility.55 Nonetheless, there are restrictions on State power which protect certain fundamental features of their constitutional systems. They include: limited extraterritorial competence;56 an incapacity to abdicate power;57 restrictions on entrenchment;58 restrictions derived expressly and impliedly from the Commonwealth Constitution; and even implied restrictions from entrenched provisions of State Constitutions. These restrictions are not found in the phrase ‘peace, welfare and good government’, but derive from limits on the constituent grant of power itself. These restrictions do not have a human rights focus. They are concerned with maintaining the grant of legislative power and its exercise by the body in which it was vested and its lawful successors. Subsequent decisions of the High Court provide little encouragement for the view that Lord Cooke’s approach would be embraced by the current High Court.59 This is particularly evident in Durham Holdings v New South Wales60 which concerned a challenge, brought in reliance on the obiter comment in UnionSteamship, to the validity of New South Wales legislation which effected a compulsory acquisition of certain coal deposits without providing fair compensation. Full compensation was not guaranteed as the Governor was authorised to cap the amount of compensation paid to certain companies including Durham Holdings. The High Court refused to grant special leave to appeal from the New South Wales Court of Appeal, dismissing the challenge on the basis that there were no prospects of success. The joint judgment of Gaudron, McHugh, Gummow and Hayne JJ61 (with whom Callinan J62 agreed) regarded any such limitation on State legislative power as having to be found in s 107 of the Commonwealth Constitution or 53 (1610) 8 Co Rep 113b at 118a; 77 ER 646 at 652. For the historical background to Dr Bonham’s case, see Jeffrey Goldsworthy, The Sovereignty of Parliament – History and Philosophy (Oxford: Clarendon Press 1999) 44–5; A. D. Boyer, “‘Understanding, Authority, and Will”: Sir Edward Coke and the Elizabethan Origins of Judicial Review’ (1997) 39 Boston College Law Review 43. 54 [1953] SC 396 411 at 412 – with whom Carmont agreed generally at 414; Russell reserved his opinion on this issue at 417. 55 Cf Killey, above n 5. 56 See Chapter 7. 57 See Chapter 6. 58 Ibid. 59 Such as Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51 per Dawson J at 587–91 with whom Brennan CJ agreed at 581–2 and Toohey J at 602. 60 (2001) 205 CLR 399. 61 Ibid 410 [14]. 62 Ibid 433 [79].

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in s 2(2) of the Australia Act (which confers on State parliaments all the powers previously held by the United Kingdom Parliament in relation to their States). A right to fair compensation could not be found in s 107 since it was not ‘as a matter of logical or practical necessity, implicit in the federal structure within which State Parliaments legislate.’ Nor could it ever be considered one of the deeply rooted rights which Union Steamship ‘identified but not explored’.63 Kirby J followed his views in the NSW BLF case64 in rejecting the deeply entrenched rights argument based on the common law.65 However, his Honour suggested at the end of his judgment66 that some protection against extreme State laws is to be found in implications from the Commonwealth Constitution – although the law in question fell ‘far short’67 of such an extreme law. His Honour suggested that these implications can be drawn from Chapter III as in Kable68 in relation to the judiciary and the judicial process. He relied on the implicit requirement in s 107 that each State has a parliament to argue that the Commonwealth Constitution therefore contemplates ‘laws’ of a certain kind which might not include certain ‘extreme’ laws. He also suggested that the sovereignty of the people would reinforce these implications. Finally, his Honour then attempts to avoid what Winterton refers to as the ‘schizoid quality’69 of his judgment, by emphasising the legitimacy of judicial derivation of constitutional implications compared with a common law judicial role based on deeply rooted rights. Referring to these implications, his Honour asserted: In Australia, considerations such as these, derived directly or indirectly from the Constitution, afford the likely future judicial response to any extreme affront masquerading as a State law. The answer lies in the implications derived from the Constitution, not in assertions by judges that the common law authorises them to ignore an otherwise valid law of a State. Such an over-mighty assertion in relation to constitutional powers of lawmaking is as alien to our law as to our political realities. On the other hand, judicial derivation of implications from the federal Constitution is not alien but familiar.70

We may be familiar with the derivation of constitutional implications after cases like Kable, but this does not legitimise those implications. The distinction which Kirby J attempts here is, with respect, not convincing. Whichever approach is followed, the judicial role is brought into question and the same dilemma is posed: what is an ‘extreme law’? The issue of protection of fundamental rights has also arisen in relation to the plenary nature of the territories power in s 122 of the Commonwealth Constitution. In Kruger v The Commonwealth,71 provisions of the Aboriginals Ordinance 1918 (NT) – made by the Governor-General under the Northern Territory Acceptance Act 1910 (Cth) and the Northern Territory Administration Act 1910 (Cth) 63 65 66 68 69 70

Ibid 410 [14]. 64 BLF v Minister for Industrial Relations, above n 32, at 405. (2001) 205 CLR 399 especially at 424–5 [55]. Ibid 430–2 [70] – [77]. 67 Ibid 432 [76]. Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51. George Winterton, ‘Justice Kirby’s Coda in Durham’ (2002) 13 Public Law Review 165, 167. (2001) 205 CLR 399 at 431–2 [75]. 71 Kruger v The Commonwealth (1997) 190 CLR 1.

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which authorised the removal of Aboriginal children from their families to institutions – were challenged as outside s 122. It was argued that they were not reasonably capable of being seen as appropriate and adapted for governing the Territory because they effected an extraordinary intrusion on fundamental rights and common law liberties. Dawson J rejected this as contrary to the sovereign nature of the power.72 Although both Toohey J and Gaudron J rejected the relevance of proportionality, Toohey J accepted the possibility of implied constitutional restrictions applying to s 122, including those intimated in the Union Steamship case as deeply rooted in the Constitution.73 Gaudron J was prepared to go further to impose some limit on the Commonwealth’s capacity to rule its territories as ‘Commonwealth fiefdoms’: I would consider it much the better view that s 122 is to be construed in light of the fact, unlike other Australians, persons resident in a Territory have no constitutional right to participate in the democratic processes and, thus, have no protection on that account in the event of an abuse of power. And, I would consider that that approach requires that s 122 should be construed on the basis that it was not intended to extend to laws authorising gross violations of human rights and dignity contrary to established principles of the common law.74

What then, is the purpose of including ‘peace, welfare and good government’ in the grant of legislative power if that phrase imports no restriction on a plenary power? The simple answer is that it expresses the fundamental principle that the sovereign power of the people is to be exercised for their benefit in the public interest.75 It simply reflects the public trust owed by legislatures. Admittedly, when these grants of power were originally made the sovereignty of the people was not recognised as such, but the formula still expressed the expectation of the Imperial Parliament that the legislative power would be exercised in the public interest. At that time, any violation of that trust could be remedied by withholding royal assent or later disallowing the law. Today, the sanction lies principally with the ballot box. We cannot expect all principles underlying a Constitution, whether express or implied, to be judicially enforceable. Yet the courts have adopted certain assumptions which give effect to these fundamental principles. Most significant is the principle of statutory interpretation, by which courts strive to interpret legislation so as not to override fundamental rights unless parliament has expressed its intention by ‘unmistakable and unambiguous language’.76 The only firm foundation for the protection of fundamental rights is an enforceable and binding Bill of Rights, or at least entrenched specific guarantees. In the absence of such protection, we must depend on the integrity and judgment of parliament to protect those rights, the electoral system to check the parliament, judicial review of administrative action, and the principles of statutory interpretation available in cases of judicial review. 72 Ibid 55. 73 Ibid 79. 75 Cf Killey, above n 5, 46.

74 Ibid 106–7. 76 See Coco v The Queen (1994) 179 CLR 427 at 437.

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The ultimate protection of any constitutional system lies in the political, not the legal, realm. For this reason, the final exercise of power must rest with a political institution which represents the sovereignty of the people. If the representative legitimacy of that institution is undermined, then the ultimate remedy lies with the people. Professor Goldsworthy has shown that this was recognised in the 18th century: Eighteenth century statesmen and lawyers developed Locke’s insights into a sophisticated defence of the thesis that the people’s right to resist parliamentary tyranny was a moral and not a legal right. It was unnecessary for the law to recognise any limits to Parliament’s authority, because the people had never in the past, and would not in the future, need any legal pretext to resist tyranny. And it was undesirable for the law to do so, because moral limits were so abstract and vague, that it was more likely that they would be interpreted too broadly, inciting unjustified resistance, that Parliament would violate them.77

The arguments advanced for and against an ultimate narrow limitation on State legislative power might be summarised in the following way. The arguments in support of such a limitation include: ● prevent extremist laws; ● accord the phrase ‘peace, welfare (or order) and good government’ its literal meaning; ● courts already decide political issues; ● a yardstick already exists in terms of preventing the abrogation of fundamental human rights and fundamental freedoms; ● parliament should be subject to natural law or fundamental common law rules; and ● since parliament’s role is generally hampered by a dominant Executive, it too should be subject to greater judicial scrutiny, as has the Executive. The arguments against such a limitation include the following: ● the ultimate responsibility for political issues rests with parliament which is accountable to the people through the electoral process; ● given their lack of democratic legitimacy, courts are inappropriate bodies to resolve political issues for which no constitutional yardstick exists; ● courts should continue to protect fundamental rights by established rules of statutory interpretation; and ● the lack of judicial support for undermining the principle of parliamentary supremacy.

4.3 Legislative power of self-governing territories The Legislative Assemblies of the ACT, Northern Territory and Norfolk Island are each vested with legislative power ‘to make laws for the peace, order and good 77 Goldsworthy, above n 53, 232–3.

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government of the Territory’.78 This is recognised as a plenary power, equivalent to that of the State parliaments, and distinct from that of the Commonwealth Parliament.79 However, as with the power of the State parliaments, restrictions apply to the territories legislative powers. These derive from the Commonwealth Constitution and their Self-Government Acts. These restrictions have aroused considerable legal controversy because of the High Court’s initial disjointed view of the territories. The present position favours a more integrated approach. Accordingly, the following restrictions on territorial legislative power, derived from the Commonwealth Constitution, are recognised: no power to impose customs or excise duties (s 90); full faith and credit to be given to State laws, public Acts and records, and judicial proceedings (s 118); a measure of Chapter III protection in relation to the territory judicial systems; and the implied freedom of political communication.80 Further, the territory Self-Government Acts exclude from power a range of matters. Common to all three is the inability to authorise the acquisition of property other than on just terms, and to legalise euthanasia. More extensive lists of excluded matters are found in s 23 of the Australian Capital Territory (SelfGovernment) Act 1988 (Cth) and in subsections 19(2) and (2A) of the Norfolk Island Act 1979 (Cth). These are considered in Chapters 11 and 12. Restrictions held in common with the States are covered in Chapter 5 (repugnancy), Chapter 6 (manner and form), and Chapter 7 (extraterritoriality).

4.4 Doctrine of separation of powers Reference should be made here to the doctrine of separation of powers as the political keystone of the constitutional systems in Australia. Despite it having far greater legal effect at the Commonwealth level, it remains nonetheless a central tenet of the constitutional systems of the Australian States and territories. It defines the appropriate relationship between the three branches of government in order to protect their respective functions. The doctrine of separation of powers is concerned to confine the three branches of government to their respective fields. In its pure form, the powers and personnel of each branch remain separate: the legislature alone exercises legislative power; the Executive alone exercises executive power; and the judiciary alone exercises judicial power. Of course, the Westminster system departs from this pure theory in significant respects. Its essential feature of responsible government requires the members of the Executive to be members of the legislature. Consequently, the legislature is permitted to delegate some of its power to 78 ACT (Self-Government) Act 1988 (Cth) s 22(1); Northern Territory (Self-Government) Act 1978 (Cth) s 6; Norfolk Island Act 1979 (Cth) s 19(1). 79 Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 282 per Brennan, Deane and Toohey JJ; Svikart v Stewart (1994) 181 CLR 548 at 561–2 per Mason CJ, Deane, Dawson and McHugh JJ. 80 Those which do not apply are s 51(xxxi), s 109 and s 116.

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the Executive to make delegated legislation. Moreover, each House of parliament is vested with power to punish those found to be in contempt. On the other hand, other deviations from the doctrine are not acceptable because they violate fundamental principles of the rule of law. For instance, the enactment of a Bill of attainder by a legislature where it adjudges the guilt of an accused violates the right to trial by an independent judiciary. In a common law system, such a violation is not justiciable unless there is a constitutional guarantee of binding force to prevent infringements of the doctrine of separation of powers. Such a guarantee exists under Chapter III of the Commonwealth Constitution. In relation to the States and self-governing territories, the view has been consistently accepted that the doctrine of separation of powers is not legally enforceable at their level. But this established view can no longer be held with the same degree of certainty. The recognition by the High Court in Kable’s case of an integrated Australian legal system provides a firm foundation for subjecting the States and self-governing territories to a good measure of those constitutional restraints on Commonwealth power derived from Chapter III as pertain to the separation of judicial and non-judicial power. This topic is considered in Chapter 10. Despite Chapter III implications, the doctrine of separation of powers in relation to legislative and executive power has no legal effect on State and selfgoverning territory power – except that it does provide an additional ground for invalidating any legislative attempt to abdicate a power to the Executive. But there is no practical constitutional restraint on the delegation of legislative power to the Executive. This reflects the position at the Commonwealth level, established in Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan.81 In that case, the High Court upheld a very wide delegation of power to the Governor-General by s 3 of the Transport Workers Act 1928 (Cth), to make regulations regarding transport workers. The principles of responsible government and parliamentary sovereignty precluded any constitutional restraint on the Executive exercising delegated legislative power, and the parliament encroaching on executive power. The Court acknowledged, however, two qualifications of little practical significance: ● the power delegated cannot be so wide or uncertain that it is incapable of being characterised as a law with respect to one of the Commonwealth heads of legislative power; and ● parliament must retain ultimate control over the delegation. Obviously, only the latter applies to State and territory laws, and since their legislatures are incapable of abdicating any of their powers, they always retain the capacity to revoke the delegation. Indeed, it has even been suggested that the power of parliamentary delegation is so unlimited that it would permit the delegation to a State Governor or Premier of a power to legislate by decree.82 81 (1931) 46 CLR 73. 82 David Malcolm, ‘The Limitations, if Any, on the Powers of Parliament to Delegate the Power to Legislate’ (1992) 66 Australian Law Journal 247, 252–3.

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No Commonwealth,83 State84 or territory law has ever been successfully challenged for infringing the separation of legislative and executive powers. Despite the lack of any legally enforceable restraint, the separation of those powers does have profound political and parliamentary significance. It provides the foundation for the striking of an appropriate balance between parliament and the Executive in the exercise of their respective powers. The tendency of the latter to control the former generates a tension which must be managed. A range of mechanisms is now in place to scrutinise the executive branch which includes a system of parliamentary committees and independent parliamentary officials, such as the Auditor-General and the Ombudsman, as well as a merits review of administrative decisions under an enactment.85 The availability of judicial review of executive action has also improved at common law and pursuant to statutory rights of review.86

4.5 Restrictions on State power Although State legislative power is described as plenary, there are limits to its scope which derive from the Commonwealth Constitution and the Australia Acts 1986. Certain limits are also imposed by the States themselves by enacting manner and form provisions to entrench certain legislation. Subsequent chapters examine the three principal restrictions maintained by the Australia Acts 1986: repugnancy (Chapter 5); manner and form (Chapter 6); and extraterritoriality (Chapter 7). The restrictions derived from the Commonwealth Constitution are both express and implied. They extend to the States by virtue of s 106 which continues ‘subject to this Constitution’ the Constitution of the former colonies and now States. It is beyond the scope of this book to examine all of these restrictions. They are already well analysed in other constitutional texts which focus on the Commonwealth Constitution. It is useful, though, to list here the express restrictions on State power: ● States are precluded from exercising any exclusive Commonwealth powers under s 52;87 ● States cannot levy customs and excise duties, nor grant any bounty on the production or export of goods (s 90); 83 See wide Commonwealth delegations of power in Crowe v The Commonwealth (1935) 54 CLR 69, Radio Corporation Pty Ltd v The Commonwealth (1938) 59 CLR 170, Wishart v Fraser (1941) 64 CLR 470, Giris Pty Ltd v FCT (1969) 119 CLR 365. 84 See, for example, Cobb & Co Ltd v Kropp [1967] AC 141; Malcolm, above n 82, 251–3. 85 Administrative Decisions Tribunal Act 1997 (NSW); Civil and Administrative Tribunal Act 1998 (Vic); State Administrative Tribunal Act 2004 (WA); Administrative Appeals Tribunal Act 1989 (ACT). 86 See, for example, common law review of statutory decisions of the Governor-in-Council: FAI Insurances Ltd v Winneke (1982) 151 CLR 342; and statutory rights of review under the Judicial Review Act 1991 (Qld); Administrative Decisions (Judicial Review) Act 1989 (ACT); cf Administrative Law Act 1978 (Vic). 87 Section 52 vests in the Commonwealth Parliament exclusive power to make laws respecting: ‘(i) the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes; (ii) matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth; (iii) other matters declared by this Constitution to be within the exclusive power of the Parliament.’

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States cannot infringe the freedom of interstate trade, commerce and intercourse (s 92); State laws inconsistent with Commonwealth laws are invalid to the extent of the inconsistency (s 109); States may not raise or maintain any naval or military force without the consent of the Commonwealth Parliament (s 114); States cannot impose any tax on Commonwealth property (s 114); States cannot coin money, nor make anything but gold and silver coin legal tender (s 115); States cannot discriminate against residents of other States (s 117); and States must give full faith and credit throughout the Commonwealth to the public Acts and records, and to the judicial proceedings of every State (s 118).

The principal restrictions on State power implied from the Commonwealth Constitution are: ● restrictions arising from Chapter III in relation to the judicial branch; ● the implied freedom of communication about government and political matters; ● the freedom of Australians to access the federal government; and ● Commonwealth immunity from State regulation in respect of its capacities and functions. The first of these is considered in Chapter 10. The second restriction is considered below in the context of those restrictions on State legislative power which may protect democratic government. The third restriction protects the capacity of Australians to travel to the seat of government and to access the institutions of government.88 The fourth restriction falls outside the scope of this book.89

4.6 Protection of democratic government While the earlier discussion in this chapter considered the plenary nature of State legislative power, unrestricted by any fundamental principles of the common law, a number of restrictions do exist which protect certain democratic features of State constitutional systems. These restrictions derive from both the Commonwealth Constitution and certain State Constitutions. The Commonwealth Constitution protects discussion about State government and State political matters – at least so far as these matters are connected to federal issues. It may also guarantee the existence of some form of State parliament. Both of these 88 See R v Smithers; Ex parte Benson (1912) 16 CLR 99 at 108–9 per Griffith CJ, at 109–10 per Barton J; Pioneer Express Pty Ltd v Hotchkiss (1958) 101 CLR 536 per Dixon CJ; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 169 per Deane J and at 206 per McHugh J. 89 See Re Residential Tenancies Tribunal of New South Wales; Ex parte Defence Housing Authority (Henderson’s case) (1997) 190 CLR 410.

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restrictions are considered below. Various State Constitutions also protect certain democratic features by manner and form requirements, such as by referendum or a special majority of members in each House. While these requirements are considered specifically in Chapter 6, it should be noted here that they relate to the direct election of members of parliament, the role of the Governor in parliament, the composition of each House, the number of Houses, and parliamentary terms. Reference should also be made to those restrictions in relation to financial legislation outlined in Chapter 3 which require parliamentary approval for taxation and appropriation. Prior to the Australia Acts 1986, other specific restrictions on State legislative power derived from the operation of the repugnancy doctrine (see Chapter 5) and from the nature of the grant of legislative power found in their Constitutions and in s 5 of the Colonial Laws Validity Act 1865 (Imp) (CLVA). Essentially, those restrictions prevented a State parliament from: ● removing the Crown from the legislative process; ● removing the monarchy; ● denying representative and responsible government;90 ● abdicating any of its legislative power; and ● prescribing manner and form provisions which are impossible to satisfy. Since s 3 of the Australia Acts 1986 abolished the doctrine of repugnancy with imperial law, the continued operation of these restrictions depends on the Australia Acts themselves and any implications derived from the Commonwealth Constitution. Otherwise, they are effectively removed by s 2(2) of the Australia Acts which provides: It is hereby further declared and enacted that the legislative powers of the Parliament of each State include all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State but nothing in this subsection confers on a State any capacity that the State did not have immediately before the commencement of this Act to engage in relations with countries outside Australia.

Although doubt has been cast on the effect of this provision,91 it is submitted that it enlarges the scope of the legislative power of State parliaments by removing all pre-existing restrictions on power, other than those retained by the Australia Acts.92 In other words, except to the extent the Australia Acts restrict the power, the States were intended to receive the same sovereign and full power as that enjoyed by the United Kingdom Parliament. Whether this may even preclude 90 Lumb argued that the States are prevented from abolishing responsible government: R. D. Lumb, ‘Fundamental Law and the Processes of Constitutional Change in Australia’ (1978) 9 Federal Law Review 148, 178–9. Winterton regards this view as highly questionable: George Winterton, Parliament, the Executive and the Governor-General – A Constitutional Analysis (Melbourne: Melbourne University Press, 1983) 74. 91 See P. J. Hanks, Constitutional Law in Australia, 2nd edn (Sydney: Butterworths 1996) 220; S. Joseph and M. Castan, Federal Constitutional Law – A Contemporary View (Sydney: Law Book Company 2001) 26. 92 See Christopher D. Gilbert, ‘Extraterritorial State Laws and the Australia Acts’ (1987) 17 Federal Law Review 25 at especially 41. Gummow J sitting alone in O’Meara v McTackett (2000) 74 ALJR 1010 at 1012 regarded state legislative power as ‘underlined and reinforced’ by ss 2 and 3 of the Australia Acts 1986.

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the drawing of implied restrictions on legislative power from State Constitutions remains unclear. A close examination is required of the Australia Acts to determine whether any of the five specific restrictions listed above continues to exist, and whether any new restrictions are created. This analysis occurs later in this chapter and elsewhere in this book.93

4.6.1 Parliament Several provisions in the Commonwealth Constitution assume the existence of State parliaments (ss 9, 15, 29, 123), with more than one House (ss 10, 15, 41), whose members are elected under a State electoral system (ss 10, 25, 30, 31, 41). Judicial commentary from the 1990s suggested that these provisions mandated representative government at the State level94 or their democratic nature.95 Yet, the High Court had earlier in Clayton v Heffron warned against reading the assumption in s 15 which referred to the ‘Houses of Parliament of the State’ as a constitutional prescription for bicameral State parliaments: It is obvious that the provision supposes that there will be two Houses of Parliament in every State: it is argued that it necessarily implies that there shall continue to be two Houses of Parliament accordingly. The contention means that the Federal Constitution deprives the State legislature of the power to abolish one [H]ouse. This argument seems clearly enough to be ill founded. The supposition that there will be two Houses implies no intention legislatively to provide that the constitutional power of the State to change to a unicameral system, if the power existed, should cease.96

This passage was adopted and taken further by McHugh J in Theophanous v Herald & Weekly Times Ltd in a strident rejection of reading the constitutional provisions referred to above as imposing any restrictions on the form of State government: [T]he Constitution has nothing whatever to say about the form of government in the States and Territories of Australia. Even if the terms of ss 1, 7, 24, 30 and 41 implied that the institution of representative government as understood in the majority judgments in Australian Capital Television was part of the Constitution in relation to the Commonwealth, those sections have nothing to say about the form of government for the States and Territories. If a State wishes to have a system of one party government, to abolish one or both of its legislative chambers or to deny significant sections of its population the right to vote, nothing in the Constitution implies that it cannot do it. There is not a word in the Constitution that remotely suggests that a State must have a representative or democratic form of government or that any part of the population of a State has the right to vote in State elections. The Constitution contains no guarantee of a right

93 For (1) see Chapter 4; for (2) see Chapter 9; for (3) see Chapter 4; for (4) and (5) see Chapter 6. Lumb, above n 90, 175–80. 94 See Deane and Toohey JJ in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 72–3. 95 Gaudron J in ACTV v Commonwealth (1992) 177 CLR 106 at 216 citing ss 9,10, 15, 25, 29, 30, 31, 41, 123, 128. 96 (1960) 105 CLR 214 at 248 per Dixon CJ, McTiernan, Taylor and Windeyer JJ.

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to vote in State elections. Nor, despite references in the Constitution to the Houses of Parliament of the States, does the Constitution guarantee the continued existence of the State Houses of Parliament.97

With respect, the last of these comments is difficult to justify. While the Commonwealth Constitution does not expressly require a democratic form of State government, it does contemplate the continued existence of State parliaments in ss 9, 15, 29 and 123. Furthermore, any attempt to remove democracy at the State level is likely to affect the Commonwealth’s implied freedoms of political communication and of association discussed below. Before the repeal of the CLVA in relation to the States by s 3(1) of the Australia Acts 1986, there was support for the view that State legislatures must remain ‘representative’ in character.98 This was based on the grant of legislative power to their parliaments by s 5 of the CLVA: [E]very representative legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers, and procedure of such legislature . . . (emphases added)

On this basis, Professor Lumb99 argued that the States could not abolish their ‘Lower House’, bypass the need for the approval of that House to any legislation, or introduce any non-representative element into the legislative process. By also including in this field of protection, the system of responsible government as implicit in ‘representative government’, he may have gone too far.100 These two features of Australia’s constitutional system are distinct and not necessarily interdependent. Obviously, these views can no longer rely on the CLVA since its repeal by the Australia Acts 1986 in relation to the States. Any protection of the representative character of their legislatures must be found elsewhere – most likely the Commonwealth Constitution. At least Kirby J would be receptive to this, having observed in Attorney-General (WA) v Marquet: The concept of representative government or representative democracy has been held repeatedly to be a crucial feature of the system of government which the federal Constitution establishes. The States (and in my view the self-governing territories) are integral parts of the Commonwealth. A tyranny or autocracy could not exist as a constituent polity of the integrated federal nation to which the Constitution gave birth.101

An attempt was made in McGinty v Western Australia102 to invalidate the electoral system in Western Australia on the basis that it did not provide for one vote, one value. Reliance was placed on both the Commonwealth and Western Australian 97 (1994) 182 CLR 104 at 201. 98 Taylor v Attorney-General of Queensland (1917) 23 CLR 457 at 468 per Barton J. See also Isaacs J at 474 and Gavan Duffy and Rich JJ at 478. Note that ‘representative legislature’ was defined in s 1 to mean ‘any colonial legislature which shall comprise a legislative body of which one half are elected by inhabitants of the colony’. 99 Lumb, above n 90, 178. 100 George Winterton, Monarchy to Republic – Australian Republican Government (Melbourne: Oxford University Press, 1994) at 134 argues that a State could substitute a presidential system for responsible government. 101 (2003) 217 CLR 545 at [166]. 102 (1996) 186 CLR 140.

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Constitutions. The former involved a broad claim for recognition of a constitutional implied guarantee of representative and responsible government under the Commonwealth Constitution, in reliance on a range of sections, especially ss 7 and 24 which require members of each House of the Commonwealth Parliament to be ‘directly chosen by the people of the State’. In rejecting this claim, the Court emphasised that while the Commonwealth Constitution reflected certain characteristics of a representative democracy, all of its features were not impliedly protected. Only those which could be derived from the text or structure of the Constitution were guaranteed. While full adult suffrage, direct elections, and freedom of political communication were protected by ss 7 and 24, the principle of one vote, one value in electoral distributions was not. Gummow J indicated, however, that a challenge could be brought where the number of electors is grossly disproportionate as this would ‘deny ultimate control by popular election’.103 A majority of the Court was also unable to find any implied guarantee of one vote, one value under the Western Australian Constitution.104 Although s 73(2)(c) of the Constitution Act 1889 (WA) effectively entrenched a similar requirement to that found in ss 7 and 24 of the Commonwealth Constitution – that both Houses be composed of members directly chosen by the people of that State – it did not guarantee a principle of one vote, one value. The majority relied on the fact that this enactment could not have been intended to override the existing system of electoral distribution which had never been based on that principle.105 They rejected any notion that the States were prevented from undermining representative democracy except so far as this might be protected by the Commonwealth Constitution or by entrenched State provision.106 In dissent, Toohey J implied from the Western Australian Constitution ‘the principle of representative democracy’ and found that it was infringed by the malapportionment between metropolitan and non-metropolitan electors.107 Gaudron J arrived at the same conclusion.108 Still, their Honours did agree with the majority that no implication of representative democracy for the States was to be derived from s 106 of the Commonwealth Constitution.109 The derivation of implications from Constitutions is difficult.110 They must be found in the text or structure of the Constitution. For the implication to constitute a binding constitutional guarantee, they must also be derived from provisions which are effectively entrenched.111 Otherwise, any implication is simply overruled and repealed in the face of inconsistent legislation. So far, the only implied constitutional guarantee to be derived from a State Constitution is the implied 103 Ibid 286. 104 Brennan CJ, Dawson, McHugh and Gummow JJ; contra Toohey and Gaudron JJ. 105 (1996) 186 CLR 140 at 178 per Brennan CJ. 106 Ibid 254 per McHugh J. 107 Ibid 215. 108 Ibid 223. 109 Ibid 210 per Toohey J, at 216 per Gaudron J. 110 Kirby J in Egan v Willis (1998) 195 CLR 424 at 495 [137] warned: ‘Rigidity of interpretation should be avoided, given the variations which already exist in the composition and election of the Upper Houses of State Parliaments in Australia and the undesirability of importing unexpressed restrictions which would needlessly inhibit legitimate experimentation in the government of the States.’ 111 See Muldowney v South Australia (1996) 186 CLR 352; Bradley Selway, The Constitution of South Australia (Sydney: Federation Press, 1997) 66.

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freedom of political communication and its derivative freedom of political association, which have been implied from the Constitutions of Western Australia and of South Australia.112

4.6.2 Implied freedom of political communication The implied freedom of communication113 about government or political matters, derived from the Commonwealth Constitution, operates as a restriction on Commonwealth, State and territory power. The classic statement of this restriction was given in Lange v Australian Broadcasting Corporation: When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people . . . If the first question is answered ‘yes’ and the second is answered ‘no’, the law is invalid.114

An important qualification to this statement is the need, recently identified by the High Court, to identify a non-statutory freedom which is burdened. In Mulholland v Australian Electoral Commission,115 a majority of the High Court116 found restrictions on the registration of a political party under the Commonwealth Electoral Act 1918 (Cth) imposed no relevant burden on the freedom to communicate about government and political matters. While the restrictions prevented the name of an unregistered political party to be endorsed on the ballot paper, the right of endorsement was merely a statutory right which could be modified or even abrogated. Consequently, there was no common law ‘freedom’ burdened. McHugh J required a freedom which existed independently of the law impugned.117 Gummow and Hayne JJ required a common law right.118 This followed from the nature of the implied freedom as a freedom from laws which purport to restrict a pre-existing freedom to communicate, such as existed in ACTV119 with a right to advertise on television. No comparable right exists in 112 Also possibly an implied freedom of movement: see Gaudron J in Kruger v Commonwealth (1997) 190 CLR 1 at 113–16 and 126; Levy v Victoria (1997) 189 CLR 579 at 617; Mulholland v Australian Electoral Commission (2004) 209 ALR 582. 113 All forms of communication are covered including non-verbal forms: Levy v Victoria (1997) 189 CLR 579 at 598, 613, 622 and 641. 114 (1997) 189 CLR 520 at 567–8 (footnotes omitted). 115 (2004) 209 ALR 582. 116 McHugh, Gummow, Hayne, Callinan and Heydon JJ; contra Kirby J. 117 Ibid [107]. 118 Ibid [187]. 119 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.

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relation to the issue of ballot papers.120 Kirby J rejected this approach, warning that it could ‘effectively neuter’ the implied freedom.121 This approach of the majority in Mulholland is, with respect, difficult to accept. First, the requirement of a freedom under the general law imposes an arbitrary limit on the nature of the implied freedom which undermines its constitutional purpose, namely, to enable a real choice to be made at the ballot box. Second, what the implied freedom protects is the right to communicate on political and governmental matters. The fact that the medium by which such a communication is made exists by virtue of a statutory right, is irrelevant. Third, such a limitation was never contemplated in the series of High Court decisions which established the implied freedom. Last, the basis for distinguishing ACTV is not convincing. The right to advertise through the electronic media depends on a statutory licence to broadcast. An additional issue was whether the inclusion of the names of political parties on the ballot paper constituted a protected political communication, since it was a communication between the Executive Government and the electorate. Only Heydon J122 accepted the Australian Electoral Commission argument that such communications were not protected. Gleeson CJ, McHugh and Kirby JJ123 rejected the argument.124 Both McHugh J125 and Kirby J126 regarded the freedom to discuss and criticise the activities of the Executive as necessary for the efficacy of the system of representative and responsible government. Significantly, a majority of the Court in Mulholland v Australian Electoral Commission recognised the existence of an implied freedom of political association which complements the implied freedom of political communication.127 Any exercise of State and territory power can be challenged for violating the Commonwealth implied freedom for impermissibly burdening the freedom to discuss government and political affairs – at least to the extent that those affairs are connected with the Commonwealth. In the absence of such a connection, it remains unclear whether this freedom protects discussion of State political matters which lack any real connection with Commonwealth affairs. Matters of that nature are unusual, given the close relationship which exists between the political affairs of the Commonwealth, the States and the territories. Criticism of the conduct of State members of parliament as occurred in Stephens v West Australian Newspapers128 is one example. Another is the issue of ballot papers in a State election. In such cases, consideration needs to be given whether a comparable freedom can be implied from the relevant State Constitution. Complementing this

120 (2004) 209 ALR 582 per Gummow and Hayne JJ at [188]. 121 Ibid [279]. 122 Ibid [355]. 123 Ibid respectively at [30], [94] and [255]. 124 Gummow, Hayne and Callinan JJ did not refer to this issue. 125 Ibid [94]. 126 Ibid [282]. 127 Ibid, McHugh J at [114] following his view in ACTV v Commonwealth (1992) 177 CLR 106 at 232 and in Kruger v The Commonwealth (1997) 190 CLR 1 at 142; Gummow and Hayne JJ at [148] to a limited extent; and Kirby J at [284]. 128 (1994) 182 CLR 211.

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freedom is a freedom of political association. Each of these points is considered in turn. The implied freedom of political communication was first derived from the Commonwealth Constitution in Nationwide News Pty Ltd v Wills129 and Australian Capital Television Pty Ltd v Commonwealth.130 It was implied principally131 from the requirement in ss 7 and 24 of the Constitution that the members of each House of the Commonwealth Parliament be ‘directly chosen by the people of the State’. If the people are to make a meaningful choice of their federal parliamentary representatives, the Constitution implicitly requires that they are free to discuss whatever issues might be relevant to that decision. It followed that the Commonwealth was prevented from burdening that freedom unless it was reasonably appropriate and adapted to protecting some other public interest. In ACTV, a majority of the Court accepted that the freedom protected discussion about political affairs at all levels of government, given the impracticality of distinguishing between Commonwealth and State political affairs.132 This indivisibility of political affairs is best described in the later joint judgment of Mason CJ, Toohey and Gaudron JJ in Theophanous v Herald & Weekly Times Ltd: The interrelationship of Commonwealth and State powers and the interaction between the various tiers of government in Australia, the constant flow of political information, ideas and debate across the tiers of government and the absence of any limit capable of definition to the range of matters that may be relevant to debate in the Commonwealth Parliament and to its workings make unrealistic any attempt to confine the freedom to matters relating to the Commonwealth government.133

While this interrelationship between Commonwealth and State political affairs cannot be denied, it does not follow that the Commonwealth implied freedom protects discussion of political affairs which have no connection with the Commonwealth.134 In Theophanous v Herald & Weekly Times Ltd135 and Stephens v West Australian Newspapers Ltd136 the Court took the next logical step by implicitly recognising that the Commonwealth implied freedom is also a restriction on State power to the same extent as it restricts Commonwealth power. Surprisingly, this point received scant attention in most judgments. The joint judgment of Mason CJ, Toohey and Gaudron JJ in both cases did not address the issue at all, seemingly content to reaffirm the indivisibility of political affairs. In Theophanous, only 129 (1992) 177 CLR 1. 130 ACTV, above n 118. 131 A majority of the Court in ACTV derived the freedom from a principle of representative government which their Honours regarded as enshrined in the Constitution by ss 1, 7, 8, 13, 24, 25, 28 and 30. This approach was later rejected by the joint judgment of the Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. 132 (1992) 177 CLR 106, per Mason CJ at 142, per Deane and Toohey JJ at 168–9, per Gaudron J at 216–17. In Nationwide News (1992) 177 CLR 1, Deane and Toohey JJ at 75–6 favoured this view but did not firmly adopt it. 133 (1994) 182 CLR 104 at 122. 134 See J. M. Finnis, ‘The Responsibilities of the United Kingdom Parliament and Government under the Australian Constitution’ (1983) 9 Adelaide Law Review 91, 103 fn 41. 135 (1994) 182 CLR 104. 136 (1994) 182 CLR 211 at 232–4 per Mason CJ, Toohey and Gaudron JJ, at 236 per Brennan J.

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Brennan J,137 Deane J and Dawson J138 mentioned the point. Deane J discussed the issue in some detail, relying on the subjugation of State Constitutions to the Constitution by s 106, as well as on common sense and persuasive authority, to explain the operation of the Commonwealth implied freedom as a restriction on State power.139 There is even less discussion of the issue in Stephens where a further significant development occurred. The implied freedom was extended to restrict State power even in relation to discrete State political affairs which have no possible connection with federal political affairs.140 In that case, the constitutional defence of qualified privilege applied to defamation proceedings relating to an entirely State political affair – the performance and fitness for office of certain members of the Western Australian Parliament. The joint judgment of Mason CJ, Toohey and Gaudron JJ141 simply relied on the indivisibility of Australian political affairs. Yet, it is difficult to understand how a freedom to discuss purely State political affairs with no connection to Commonwealth political affairs can be derived from ss 7 and 24 of the Commonwealth Constitution. Those provisions are solely concerned with the composition of the Commonwealth Parliament. This was recognised by Brennan J in Stephens: Although the constitutional implication is capable of limiting the exercise of the legislative power of the Parliaments of the States, that implication is to be found in provisions that prescribe the structure of the government of the Commonwealth, not the structure of the government of the States. That implication effects a qualified (not absolute) freedom to discuss government, governmental institutions and political matters in order to protect the structure of the government of the Commonwealth. But the publication of the material complained of in these proceedings touching the performance by members of the Western Australian Parliament of their official functions is irrelevant to the government of the Commonwealth and is unaffected by the implication.142

His Honour repeated this view in Muldowney v South Australia143 in rejecting the Commonwealth implied freedom as relevant to a challenge to provisions of the Electoral Act 1985 (SA) which prohibited a person from publicly advocating voters to mark their ballot paper in State elections other than in the prescribed manner. Since these decisions, the Court has not clarified whether the Commonwealth implied freedom protects discussion of political affairs with no connection to a federal matter. The issue was left undecided in Levy v Victoria144 which upheld the validity of Victorian regulations that restricted entry to duck hunting territory during the opening of the season. The practical impact of this restriction 137 (1994) 182 CLR 104 at 156. 138 Ibid at 190 suggests in addition to mere inconsistency with ss 7 and 24, the Melbourne Corporation principle (1947) 74 CLR 31 at 81, and that it may also be beyond the peace, order and good government power of the States. 139 Ibid 164–6. 140 See also Roberts v Bass (2002) 212 CLR 1. 141 (1994) 182 CLR 211 at 232–4 per Mason CJ, Toohey and Gaudron JJ, at 236 per Brennan J. 142 Ibid 235. This view reflected his earlier comments in Nationwide News at 52 which restricted the implied freedom to protecting the people’s democratic rights and privileges in federal matters. 143 (1996) 186 CLR 352 at 365. 144 (1997) 189 CLR 579.

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prevented protestors filming the opening of the duck season. Victoria argued the demurrer on the assumption that the regulations burdened the Commonwealth implied freedom. The only issue was whether the regulations were reasonably appropriate and adapted to protecting public safety. The Court unanimously found this was so, without having to decide the application of the Commonwealth implied freedom or the existence of a comparable freedom implied from the Constitution Act 1975 (Vic). However, Brennan CJ indicated that he retained his view in Stephens that the Commonwealth freedom did not encompass discrete State issues.145 Similarly, McHugh J had difficulty finding a Commonwealth connection.146 His Honour also had difficulty in finding any ‘freedom’ which was burdened, since the requisite freedom to enter the restricted hunting area had to be found in the common law or in a Victorian statute.147 As noted earlier, this point was later adopted by a majority of the Court in Mulholland v Australian Electoral Commission148 as the threshold issue in all challenges based on the Commonwealth implied freedom. Further, there is limited High Court commentary in Lange v Australian Broadcasting Corporation149 and Coleman v Power,150 which suggests some connection is required. The joint judgment of the Court in Lange v Australian Broadcasting Corporation151 rejected the constitutional defence to defamation adopted in Theophanous v Herald & Weekly Times Ltd152 and Stephens,153 and instead extended the common law defence of qualified privilege. While the Court confirmed that the Commonwealth freedom restricts the legislative and executive power of the Commonwealth, States and those territories whose people exercise the federal franchise, it appeared to confine the freedom to communications with a federal connection by suggesting that the extended common law defence might go further than is necessary to comply with the freedom. This was because the defence extended to the discussion of matters concerning the United Nations or other countries ‘even if those discussions cannot illuminate the choice for electors at federal elections or in amending the Constitution or cannot throw light on the administration of federal government’. And since it extended to discussion of government or politics at the State, territory and local government level ‘whether or not it bears on matters at the federal level’.154 Yet the susceptibility of State political or governmental issues becoming federal issues was well recognised: Of course, the discussion of matters at State, Territory or local level might bear on the choice that the people have to make in federal elections or in voting to amend the Constitution, and on their evaluation of the performance of federal Ministers and their 145 Ibid 595–6. 146 Ibid 622–3 and 625–6. 147 Ibid 625. 148 (2004) 209 ALR 582. 149 (1997) 189 CLR 520. 150 (2004) 209 ALR 182. 151 (1997) 189 CLR 520. 152 (1994) 182 CLR 104. 153 (1994) 182 CLR 211. Lange held that although the implied freedom conferred no positive constitutional right as such, being only a restriction on power, it did require the common law of Australia to be consistent with it. On this basis, the Court extended the common law defence of qualified privilege to protect statements on political affairs at all levels of government made to a wider audience which were reasonable in the circumstances. As Lange involved the political affairs of New Zealand and not those of a State, the scope of the implied freedom in respect of only State political affairs was not considered. 154 (1997) 189 CLR 520 at 571.

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departments. The existence of national political parties operating at federal, State, Territory and local government levels, the financial independence of State, Territory and local governments on federal funding and policies, and the increasing integration of social, economic and political matters in Australia make this conclusion inevitable.155

Similar inferences are discernible in Coleman v Power156 where a majority157 of the High Court set aside the conviction of Coleman for an offence under s 7(1)(d) of the Vagrants, Gaming and Other Offences Act 1931 (Qld) for publicly insulting Constable Power in the Townsville Mall by accusing him of being a ‘corrupt cop’. Section 7(1)(d) made it an offence for any person in any public place to use insulting words to any person. In the majority, the joint judgment of Gummow and Hayne JJ158 and that of Kirby J159 interpreted the offence narrowly so that words were only ‘insulting’ if they were intended to or were reasonably likely to provoke physical retaliation. As this was not the case on the facts, the conviction was set aside. Interpreted on that basis, their Honours upheld the validity of s 7(1)(d) within the second limb of the Lange test, that is, as reasonably adopted and appropriate in protecting the peace. In contrast, the other majority judge, McHugh J found the conviction established after according ‘insulting’ its ordinary meaning, that is, calculated to hurt the personal feelings of others,160 but set aside the conviction on the basis that s 7(1)(d) violated the implied freedom because the burden imposed on the communication of political and governmental matters meant that it was no longer ‘free’. While it was intended to prevent a breach of the peace, which was a legitimate end compatible with the maintenance of the constitutionally prescribed system of representative and responsible government, its terms were not reasonably appropriate and adapted to that end, as the offence was not qualified in such a way as to accommodate the freedom.161 And this conclusion was reached even allowing for the ‘margin of choice’ which the courts must accord the parliament in the selection of the means to achieve the legitimate end. Little guidance is provided on how far the Commonwealth implied freedom renders invalid State legislation which impermissibly burdens the freedom of political communication on issues purely of State concern. This was due primarily to the agreement reached between the parties that s 7(1)(d) imposed a burden on political communication within the scope of the implied freedom. The only issue in dispute was whether the provision was reasonably appropriate and adapted to protecting a legitimate interest. That aspect is considered below. But it can be argued that all four majority judges required a federal connection. Each accepted that the implied freedom operated as a restriction on the operation of 155 Ibid 571–2. 156 (2004) 209 ALR 182. Note that another constitutional challenge by Mr Coleman against a Townsville City Council by-law which prevented a public demonstration or address in the city’s mall failed: Sellars v Coleman (2001) 2 Qd R 565. The Crown accepted that the Commonwealth implied freedom applied. A majority of the Queensland Court of Appeal found the by-law valid within the Lange test as reasonably appropriate and adapted to regulating the use of the mall. 157 McHugh, Gummow, Kirby, Hayne JJ; contra Gleeson CJ, Callinan and Heydon JJ. 158 [2004] HCA 39 at [193]. 159 Ibid [226]. 160 Ibid [64]. 161 Ibid [102].

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s 7(1)(d) on the facts of the case. Each recognised a connection between State police corruption and federal political affairs because of the tactical relationship which existed between the federal, State and territory police forces.162 McHugh J accepted the Queensland Attorney-General’s submission that ‘the particular communication at issue in this case, concerning corruption and the propriety of the police force, had the requisite connection with federal matters, bearing in mind the integrated character of law enforcement.’163 His Honour observed: The conduct of State police officers is relevant to the system of representative and responsible government set up by the Constitution. State police officers are involved in the administration and enforcement of federal as well as State criminal law. Members of the police forces of the States and Territories are included in the definitions of ‘constable’ and ‘law enforcement officer’ in the Crimes Act 1914 (Cth) . . . [therefore] [a]llegations that members of the Queensland police force are corrupt may reflect on federal Ministers as well as the responsible State Ministers. Such allegations may undermine public confidence in the administration of the federal, as well as the State, criminal justice system.164

The joint judgment of Gummow and Hayne JJ expressed a similar view by adopting the language used in Lange165 in holding that an allegation of corruption against a State police officer concerned ‘a government or political matter that affects the people of Australia’ – given the close cooperation of federal, State and territory police forces.166 Kirby J observed that the protected communications are not confined solely to matters of federal concern: . . . even communications that principally, or substantially, concern State governmental or political issues (such as the alleged corruption of State police) may constitute communications about government or political matters for the purposes of the federal Constitution and the Lange test.167

Significantly, none of these statements goes so far as to hold that a purely State political or governmental issue falls within the protection of the implied freedom. Of the minority judgments, only Callinan J obliquely refers to this issue168 by observing that s 7(1)(d) posed no threat to the freedom of communication ‘about Federal political or governmental affairs’.169 Earlier, his Honour had viewed the Vagrants, Gaming and Other Offences Act 1931 (Qld) as not intending to affect ‘Federal institutions, elections or referenda, or to interfere with the operation of the Constitution.’170 The case is also important for the reformulation of the second limb of the Lange test proposed by McHugh J which must now be read as follows:

162 163 166 168 169

Ibid at McHugh J at [76] and [78]; Gummow and Hayne JJ at [197]; Kirby J at [229]. Ibid [78]. 164 Ibid [80]. 165 (1997) 189 CLR 520 at 571. (2004) 209 ALR 182 at [197]. 167 Ibid [229]. Ibid at [325], only an oblique reference is made to federal elections. Ibid [298]. 170 Ibid [293].

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. . . is the law reasonably appropriate and adapted to serve a legitimate end [in a manner] which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

McHugh J’s rejection of the submission171 that the test should be ‘reasonably capable of being seen as appropriate and adapted’ was approved by the other majority justices.172 Conversely, Kirby J maintained his opposition to the phrase ‘appropriate and adapted’, preferring instead the concept of ‘proportionality’.173 The minority (Gleeson CJ, Callinan and Heydon JJ) upheld the conviction under s 7(1)(d) despite their different interpretations of that provision. Gleeson CJ required language contrary to contemporary standards of public good order, but excluded personally offensive language in a statement of opinion on political and government issues if no threat to the peace is posed.174 Absent that exception, a similar interpretation was given by Callinan J in requiring words ‘unnecessarily potentially provocative, or so incompatible with civilised discourse and passage’.175 Heydon J gave the widest interpretation by adopting the ordinary meaning of insulting, being language liable to hurt the feelings of another person.176 On the implied freedom, the minority was uncomfortable with the concession made by the Attorney-General of Queensland that s 7(1)(d) imposed a burden on the freedom of political communication. Gleeson CJ regarded the insulting language in the case as only ‘political’ in the broadest sense.177 Callinan J found no burden on the freedom.178 Heydon J accepted the concession with difficulty.179 Given the concession, all three justices regarded s 7(1)(d) as reasonably appropriate and adapted to serving a legitimate end compatible with the maintenance of constitutional government. That end was, in the words of Callinan J, to further ‘peaceable and civilised passages and discourse in public places’.180 In the most considered analysis of the minority judgments on this aspect, Heydon J found this legitimate end enhanced constitutional government by facilitating reasoned debate,181 and that the offence was a ‘reasonably adequate attempt at solving the problem’.182 The Court’s role was not to determine the best way to achieve the legitimate end, but simply to decide if the means adopted was a reasonable regulation. The onus was on the challenger to establish that this was not so.183 Kirby J responded to these views with an injection of practical reality: Reading the description of civilised interchange about governmental and political matters in the reasons of Heydon J, I had difficulty in recognising the Australian political system as I know it. His Honour’s chronicle appears more like a description of an intellectual salon where civility always (or usually) prevails. It is not, with respect, an accurate description of the Australian governmental and political system in action.184

171 173 177 181

Ibid [93]. 172 Ibid, Gummow and Hayne JJ at [196]; Kirby J at [211]. Ibid [234–5]. 174 Ibid [14]. 175 Ibid [287]. 176 Ibid [314]. Ibid [28]. 178 Ibid [298]. 179 Ibid [319]. 180 Ibid [297]. Ibid [325]. 182 Ibid [328]. 183 Ibid. 184 Ibid [238].

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A further outcome of the case was that s 7(1)(d) was in fact upheld as valid by six justices for different reasons, with only McHugh J holding it invalid. But the majority view on the meaning of ‘insulting’ is the interpretation given by Gummow, Heydon and Kirby JJ (in the majority) and by Callinan J (in the minority), namely, words intended to or likely to provoke physical retaliation. It is surprising that the States have not always disputed the application of the Commonwealth implied freedom of political communication to State legislation applying in circumstances without any federal connection. This issue has been conceded by States in many cases both before the High Court185 and in the lower courts.186 This discussion leads us to conclude that the extension of the Commonwealth implied freedom as a restriction on State power to protect the discussion of federal or Commonwealth issues is clearly justified by virtue of s 106 of the Commonwealth Constitution. The States cannot use their powers to stifle that discussion, thereby undermining the capacity of their electors to exercise their constitutional right under ss 7 and 24 of the Commonwealth Constitution to directly choose their Commonwealth parliamentary representatives. This restriction can also extend to State matters which bear a sufficient connection with federal issues. But there is no basis for extending that restriction on State power to purely State affairs which have no connection with Commonwealth political issues. This seems to be implicitly accepted in both Lange and Coleman v Power. This conclusion is consistent with the approach taken by a majority of the New South Wales Court of Appeal in John Fairfax Publications Pty Ltd v AttorneyGeneral (NSW)187 which confined the implied freedom to protecting discussion of government and political matters connected with the Commonwealth.188 However, Spigelman CJ (with whom Priestley concurred),189 with respect, applied this requirement too narrowly in holding that discussion of State ministers and of the State judiciary fell outside the protection of the implied freedom.190 As the Court recognised in Coleman v Power,191 even discussion of State ministers may have the requisite federal connection. Nor is there any reason for denying the protection of the freedom to discussion of the judicial system.192 The majority in Fairfax held provisions193 of the Supreme Court Act 1970 (NSW) violated the Commonwealth implied freedom194 to the extent that they required certain legal proceedings before the Court of Appeal to be heard in camera and banned reports of submissions made there. The proceedings affected were those brought by the New South Wales Attorney-General by way of a submission to the 185 For example, Muldowney v South Australia (1996) 186 CLR 352; Coleman v Powers (2004) 209 ALR 182. 186 For example, Sellars v Coleman (2001) 2 QdR 565. 187 (2000) 181 ALR 694. 188 Ibid, Spigelman CJ at [87] and [99]. Priestley J simply concurred at [157]. 189 Ibid [157]. 190 Ibid [83] and [87]. 191 (2004)209 ALR 182. 192 Cf APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44 at [63] and [65] per McHugh J, who confined the freedom to discussion of political or governmental, not judicial, decisions. 193 Section 101A (7) and (8)(a). Subsection (8)(b) was held to be reasonably appropriate and adapted as it protected the identity of the acquitted contemnor. 194 Spigelman CJ observed at [79] that the New South Wales Attorney-General raised no issue over the application of the Commonwealth implied freedom to the State.

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Court of Appeal of a question of law arising from unsuccessful criminal contempt proceedings. The majority found a connection with the Commonwealth, since the original contempt proceedings were instigated in relation to newspaper articles concerned with the drug trade which involved both State and federal police operations and State and federal offences.195 The restrictions referred to were held to violate the implied freedom since they were disproportionate in protecting the person acquitted.196 The position under the implied freedom of political communication should be distinguished from the extended common law defence of qualified privilege which does extend to communications on purely State issues. This is evident from Roberts v Bass which involved a defamation action brought by an electoral candidate for the South Australian Assembly regarding comments made about him during the election campaign. The traditional common law defence of qualified privilege was relied on, rather than the Lange extended version. By requiring in this case that that common law defence be consistent with the Commonwealth implied freedom, the joint judgment of Gaudron, McHugh and Gummow JJ197 and that of Kirby J198 applied the freedom to a discrete State political affair – local criticism of a State electoral candidate. But their Honours did not address (nor did they need to) the scope of the restriction on State legislative or executive power in relation to a freedom to discuss discrete State political affairs. A further consequence of the implied freedom of political communication is the impact this has – as a constitutional restriction – on the common law which now must conform to that freedom. This is likely to restrict State and territory power (as well as Commonwealth power) so far as they may wish to alter the common law by statute. The joint judgment in Lange v Australian Broadcasting Corporation declared: ‘Of necessity, the common law must conform with the Constitution. The development of the common law in Australia cannot run counter to constitutional imperatives. The common law and the Constitution cannot be at odds.’199 4.6.2.1 Implication from State Constitutions If the Commonwealth implied freedom operates as a restriction on State power in relation to purely State political affairs, it becomes academic whether a similar freedom can be derived from a State Constitution. But since the High Court has continued to indicate a need for some federal connection, the position is worth exploring. 195 (2000) 181 ALR 694 at [99] and [107]. 196 Ibid [129]. 197 (2002) 212 CLR 1 at 29 [73]. See Geoffrey Lindell, Comment: ‘The constitutional and other significance of Roberts v Bass – Stephens v West Australian Newspapers Ltd reinstated?’ (2003) 14 Public Law Review 201–5. 198 (2002) 212 CLR 1 at 58 [159]. 199 (1997) 189 CLR 520 at 566. See Adriene Stone, ‘The Constitution, the Common Law and the Freedom of Political Communication’ (1998) 26 Federal Law Review 219; Adriene Stone, ‘Choice of Law Rules, the Constitution and the Common Law’ (2001) 12 Public Law Review 9; M. G. Sexton, ‘Constitutional Intersections: The Common Law and the Constitution’, in J. S. Jones and J. McMillan (eds), Public Law Intersections: Papers presented at the Public Law Weekend, 2000 & 2001 (Canberra: Centre for International and Public Law, 2003) 79–96.

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It is submitted that the discussion of purely State political affairs can only be protected by the relevant State Constitution. Stephens is such a case where an implied freedom of political communication was derived by a majority of the High Court200 from s 73(2)(c) of the Constitution Act 1889 (WA). That provision restricts the Western Australian Parliament from providing that either House shall ‘be composed of members other than members chosen directly by the people’. Any Bill to that effect had to be passed by an absolute parliamentary majority and approved at a referendum. The joint judgment of Mason CJ, Toohey and Gaudron JJ considered: s 73(2) was plainly enacted with the object of reinforcing representative democracy and placing a further constitutional impediment in the way of any attempt to weaken representative democracy. And, so long, at least, as the Western Australian Constitution continues to provide for a representative democracy in which the members of the legislature are ‘directly chosen by the people’, a freedom of communication must necessarily be implied in that Constitution.201

Implicit in this passage is recognition of the critical importance of the entrenchment of those provisions from which an implied freedom is derived. While a constitutional implication might still be derived from unentrenched provisions, it is of limited value given its susceptibility to abrogation by subsequent inconsistent enactment. The practical need for entrenchment was recognised by the judgments of Toohey, McHugh and Gummow JJ in McGinty v Western Australia.202 Nonetheless, until abrogated, an unentrenched constitutional implication may still provide protection from delegated legislation and from an exercise of executive power, as well as override earlier inconsistent legislation. The Solicitor-General of South Australia conceded in Muldowney v South Australia203 that an implied freedom, equivalent to that derived from the Commonwealth Constitution, was to be derived from the Constitution Act 1934 (SA). Reliance was placed particularly on ss 11 and 27 which require that the members of both Houses be elected by the inhabitants of the State, and the fact that both provisions are referendum entrenched by ss 8, 10A and 88. But the High Court found it unnecessary to decide if an implied freedom could be derived, since no infringement could be established. The case involved a challenge to provisions of the Electoral Act 1985 (SA) which prohibited a person from publicly advocating electors to mark their ballot paper in State elections other than in the prescribed manner. The Court regarded these restrictions as justified to protect the integrity of the voting system.204 200 Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211at 232 per Mason CJ, Toohey and Gaudron JJ, at 236 per Brennan J. 201 Ibid 233–4. 202 (1996) 186 CLR 140 at 211–212 per Toohey J, at 254 per McHugh J, at 299 per Gummow J. See also Brennan CJ in Levy v Victoria (1997) 189 CLR 579 at 599. 203 (1996) 186 CLR 352. 204 Note that Dawson J at 369 accepted an implied restriction not to ‘legislate in a manner inconsistent with the exercise by electors of a genuine choice’. The Full Court of South Australia in Cameron v Becker (1995) 64 SASR 238 held s 113 of the Electoral Act 1885 (SA), which made it an offence to publish inaccurate and

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As for the other four State Constitutions, the only one to require direct election of their members of parliament is the Constitution of Queensland 2001 (s 10). On the basis of the derivation of the Commonwealth and Western Australian implied freedoms from similar provisions, s 10 clearly provides the foundation for an implied constitutional freedom of political communication about State affairs.205 Nevertheless, the lack of any entrenchment of s 10 means that the Queensland Parliament can undermine that freedom by inconsistent legislation.206 The remaining Constitutions of New South Wales,207 Tasmania208 and Victoria209 may also provide the foundation for a similar implied freedom by relying simply on the provision made in each for the election of members representing electorates. But only New South Wales protects such an implication by referendum entrenchment.210 4.6.2.2 The territories At the territory level, the Commonwealth implied freedom restricts both: the Commonwealth’s territories power in s 122; and the power of the self-governing territories. At the Commonwealth level, the implied freedom protects discussion of territory affairs to ensure that federal electors are sufficiently informed about that area of Commonwealth responsibility. Although the focus of ss 7 and 24 of the Commonwealth Constitution – from which the implied freedom is derived – is on State electors, the Commonwealth is responsible to them for the administration of its territories. In this instance, no distinction between federal and territorial affairs should be drawn. The High Court has not yet reached a clear position on this. There is some comment on the issue in Australian Capital Television Pty Ltd v The Commonwealth (ACTV)211 which concerned a challenge to the validity of Commonwealth statutory controls on political advertising during federal, State and ACT and Northern Territory election campaigns. Since the regulation of the territory elections was based on the communications power in s 51(v), the scope of s 122 was not in issue. Nonetheless, Deane and Toohey JJ212 in their joint judgment were not persuaded that s 122 was immune from the freedom which was drawn from the Constitution as a whole. McHugh J213 viewed s 122 as unconstrained by the implied freedom which his Honour confined to federal elections. The issue arose more directly in Kruger v The Commonwealth214 where the Commonwealth was sued by several Aborigines for being unlawfully removed as misleading political advertisements, did not infringe the implied freedom of political communication under the Commonwealth Constitution. Left open whether such an implication might be drawn from the South Australian Constitution, although saw no difficulty in this: pp 247 and 253. 205 Effective as from 6 June 2002. 206 Brisbane TV Limited; Ex parte Criminal Justice Commission [1996] QCA 295 where McPherson JA reached the same conclusion on the now repealed s 10 of the Constitution Act 1867 (Qld). 207 Constitution Act 1902 (NSW) s 26. 208 Constitution Act 1934 (Tas) ss 18 and 22. 209 Constitution Act 1975 (Vic) ss 26 and 34. 210 Constitution Act 1902 (NSW) s 26 is entrenched by s 7B(1). 211 (1992) 177 CLR 106. 212 Ibid 176. 213 Ibid 246. 214 (1997) 190 CLR 1.

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children from their families and detained in institutions. They argued that provisions of the Aboriginals Ordinance 1918 (NT), made by the Governor-General under the Northern Territory Acceptance Act 1910 (Cth) and the Northern Territory Administration Act 1910 (Cth), pursuant to which the Chief Protector of Aboriginals so acted, were invalid on a range of grounds, including infringement of an implied freedom of movement and association for political, cultural and familial purposes. The Court split 2–2 on whether this implied freedom restricted the territories power in s 122. Dawson J215 followed McHugh J in ACTV216 in rejecting the implied freedom’s application to s 122 since there was no constitutional requirement of representative government for the territories, neither in their internal government nor in their relationship with the Commonwealth. McHugh J217 at least held the implied freedom inapplicable to the Northern Territory between 1918 and 1957, during which there was no constitutional right to elect a full voting member of either House. On the other hand, Gaudron J218 (with whom Toohey J agreed)219 reached the opposite conclusion. Her Honour relied on the fact that the Commonwealth is responsible to the people of the Commonwealth for its exclusive governance of the territories and that this necessitates the free flow of information in relation to all matters which affect the government of the territory. This is, with respect, clearly the correct approach. The implied freedom of political communication and association must restrict the Commonwealth exercise of power under s 122, at least to protect the availability of information on the government of the territories for which the Commonwealth has ultimate responsibility. The absence of any constitutional requirement of representative government for the territories is irrelevant. At the territory level, the Commonwealth implied freedom equally restricts the power of self-governing territories. This was expressly recognised in Lange v Australian Broadcasting Corporation – at least for those ‘Territories whose residents are entitled to exercise the federal franchise’.220 Presently, this covers all three self-governing territories, with the adoption of a Commonwealth franchise on Norfolk Island in 2004. Support for a restriction on territory power was earlier given by Brennan J in Theophanous221 on the basis that the Commonwealth lacks the power to authorise territory legislatures to impermissibly burden the discussion of territorial governmental matters. But the qualification given in Lange, confining the freedom to those territories with a federal franchise, is unnecessary since any impermissible burden imposed on the free discussion of territory matters (and Commonwealth matters) will influence the capacity of federal electors to assess the Commonwealth’s record of territory administration.222 215 Ibid 69–70. 216 (1992) 177 CLR 106 at 246. 217 (1997) 190 CLR 1 at 142–3. 218 Ibid 117–18. 219 Ibid at 91–2 agreed with Gaudron J in ACTV at 215 and in this case. 220 (1997) 189 CLR 520 at 566–8 (footnotes omitted). 221 (1994) 182 CLR 104 at 156. 222 Challenges to Northern Territory laws include: Watson v Trenerry Supreme Court of the Northern Territory (Court of Appeal) (1998) 122 NTR 1 Gray AJ (with whom Mildren J agreed) rejected a submission that the

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4.7 Conclusion A wide range of State and territory laws may burden the implied freedom of political communication and the associated freedoms of political association and movement. For instance, challenges have already been brought against laws relating to official secrecy provisions,223 industrial relations224 and vagrancy offences,225 while a challenge has been suggested in relation to begging offences.226 It is necessary for all legislatures and governments to scrutinise respectively their proposed enactments and decisions to ensure that they do not infringe those freedoms. At times, this may be difficult to determine where a legitimate public interest conflicts with the freedom. In such cases, the measures adopted need to be carefully formulated to ensure that they are reasonably appropriate and adapted for achieving that other public purpose. If challenged, the court should concede a margin of appreciation. offence for disorderly behaviour in a public place under s 47(a) of the Summary Offences Act 1978 (NT) should be read down to exclude political protests, because it was not directed against political protests and its effect on such protests was oblique (at 21). Charges were brought against persons involved in a public protest against the Indonesian occupation of East Timor. The Court overturned the convictions as the danger posed was trifling. 223 Bennett v HREOC (2004) 204 ALR 119, Finn J held invalid reg 7(13) of the Commonwealth Public Service Regulations which prohibited public servants from disclosing, except in the course of their duties, ‘any information about public business or anything of which the employee has official knowledge’. 224 See, for example, Registrar of Western Australian Industrial Relations Commission v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia, Engineering and Electrical Division WA Branch [1999] WASCA 170 Court of Appeal – Kennedy J and Scott J found no infringement by s 97P of the Industrial Relations Act 1979 (WA) which prevented industrial organisations from engaging in political expenditure except from a designated political fund comprised of funds given for that purpose. 225 Coleman v Power (2004) 209 ALR 182. 226 See Tamara Walsh, ‘Defending Begging Offenders’ (2004) 4 Queensland University of Technology Law and Justice Journal 58, 67.

5 Repugnancy

5.1 Introduction The doctrine of repugnancy describes the situation where a State or territory law is rendered invalid for being inconsistent with paramount law. Paramount law emanates from the original source of State or territory legislative power. This, in the case of the Australian States, is the United Kingdom Parliament, in the past referred to as the Imperial Parliament. Paramount laws in relation to the States are United Kingdom or imperial laws intended to extend to the States. Consequently, where a State law is inconsistent with the terms of an imperial paramount law, the State law is void for repugnancy at common law. Since the Australia Acts 1986, the States are now bound by only three paramount imperial laws: the Commonwealth of Australia Constitution Act 1900 (Imp) which of course includes the Commonwealth Constitution; the Statute of Westminster 1931 (Imp); and the Australia Act 1986 (UK).1 Otherwise the doctrine of repugnancy was abolished in relation to the States by s 3(2) of the Australia Acts 1986. In the case of the territories, their paramount laws are the enactments of the Commonwealth. Accordingly, territory laws are invalid for repugnancy so far as they are inconsistent with Commonwealth laws, in particular, their respective Self-Government Act. Territory laws are also invalid so far as they are inconsistent with the Commonwealth Constitution – an imperial law. By comparison, no repugnancy arises where a State law is inconsistent with a Commonwealth law. In such a case, s 109 of the Commonwealth Constitution provides for the latter to override the former to the extent of the inconsistency. The State law is

1 Australia Acts 1986 s 5.

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merely rendered inoperative so long as an inconsistency exists, and it revives if the inconsistency is removed.2 To understand the doctrine of repugnancy, it is necessary to outline first the reception of English law in the Australian colonies.

5.2 Reception of English law in the Australian colonies The view was originally adopted that since the first British settlement in Sydney in 1788 was a ‘settled colony’,3 it received, by virtue of the common law, all English enactments and common law which were capable of being applied in the colony at that time. The classic statement of the common law principle in relation to the inheritance of English law in settled colonies is found in Blackstone’s Commentaries: It hath been held that if an uninhabited country be discovered and planted by English subjects all the English laws then in being, which are the birthright of every English subject are immediately in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their new situation and the condition of the infant colony, such, for instance as the general rules of inheritance and of protection from personal injuries. The artificial distinctions and refinements, incident to the property of a great and commercial people, the laws of police and revenue (such as are enforced by penalties), the mode of maintenance for the established clergy, the jurisdiction of spiritual courts, and a multitude of other provisions, are neither necessary nor convenient for them and therefore are not in force. What shall be admitted and what rejected, at what times and under what restrictions, must in cases of dispute be decided in the first instance by their own provincial judicature, subject to the decision and control of the King-in-Council; the whole of their constitution being also liable to be newly modelled and reformed by the general superintending power of the legislature of the mother country.4

The essential test identified by Blackstone is that inherited law is capable of being applied to the new colony.5 Lord Watson described this in Cooper v Stuart6 as ‘the silent operation of constitutional principles’. Because they were penal settlements, doubts later arose over the inheritance of English civil law in both New South Wales and Tasmania,7 although no similar 2 Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 274, 278, 282–3, 286. 3 Defined as a territory which was uninhabited or inhabited ‘by a primitive people whose laws and customs were considered inapplicable to a civilized race’: Alex C. Castles, ‘The Reception and Status of English Law in Australia’ (1963) 2 Adelaide Law Review 1, 2 citing Case 15: Anonymous 2 Peere Williams 75. 4 William Blackstone, Commentaries on the Laws of England 1765–1769 (1st publ 1765, 12th edn 1978) Vol 1, 107 (Introduction, s 4). 5 B. H. McPherson, ‘The Mystery of Anonymous (1722)’ (2001) 75 Australian Law Journal 169 attributes an Anonymous decision of the Privy Council (1722) 2 P Wms 75; 24 ER 646 for this principle, following the decision in Calvin’s case (1608) 2 St Tr 659; 7 Co Rep 1a; 77 ER 377 which established that a person born anywhere within the King’s dominions was an English subject. 6 (1889) 14 App Cas 286 at 293. 7 Castles, see above n 3.

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doubt arose over the reception of English criminal law in those colonies.8 Accordingly, to remove all doubt9 over the reception of English civil law in New South Wales and Tasmania as ‘settled’ colonies, s 24 of the Australian Courts Act 1828 (Imp)10 was enacted to confirm the application of the common law rule, as at the date of enactment, 25 July 1828: That all Laws and Statutes in force within the Realm of England at the Time of the passing of this Act . . . shall be applied in the Administration of Justice in the Courts of New South Wales and Van Diemen’s Land respectively, so far as the same can be applied within the said Colonies.

Since Victoria and Queensland11 were separated from New South Wales in 1851 and 1859 respectively, their inherited law is also determined as at 25 July 1828.12 The position is different in South Australia and Western Australia, each being settled after that date and neither as a penal colony. Accordingly, for Western Australia, applicable United Kingdom law was inherited as at the date of the first settlement, 1 June 1829.13 For South Australia, the date of inheritance has been statutorily prescribed as the date of the colony’s establishment: 28 December 1836.14 However, since the new colony was created by separation from New South Wales, inherited United Kingdom law would have extended to that region pursuant to s 24 of the Australian Courts Act 1828 (Imp) as at 25 July 1828. That date was effectively substituted with the date of establishment of the new colony of South Australia by the South Australian Colonisation Act 1834 (Imp)15 which denied continued operation of New South Wales law as if the colony had never been associated with New South Wales. Neither the common law nor s 24 of the Australian Courts Act 1828 (Imp) provided for the inheritance of all English statutory and non-statutory law. The test under each was whether the law was capable of being applied to the circumstances then existing in the colony at the relevant date of inheritance.16 In Dugan v Mirror Newspapers Ltd, Gibbs J cited the test as follows: 8 Imported under Letters Patent in 1787: Castles, ibid. 9 W. J. V. Windeyer, Lectures on Legal History (2nd rev edn, Sydney: Law Book Company, 1957) 304–5 suggests that the Act was mainly enacted to clarify the date ordinary English statutes no longer applied, and that the selection of 1828 ensured that criminal law reforms enacted between 1823 and 1828 applied. 10 9 Geo IV c 83. 11 Note that a New South Wales amendment to an imperial inherited statute before Queensland’s separation in 1859 may be confined to a locality within the current New South Wales and so not extend to the territory of what becomes Queensland: Abel Lemon & Co Pty Ltd v Baylin Pty Ltd (1985) 60 ALJR 190 (PC). 12 M’Hugh v Robertson (1885) 11 VLR 410 at 429. 13 Interpretation Act 1984 (WA) s 73 deems the State to have been established on that date for the purpose of determining the applicability of any Imperial Act. On that date Captain Stirling sailed up the Swan River in the Parmelia to establish the settlement at Perth. The relevant date for the inheritance of English law is the date of the first settlement of the colony which this is; not the date of establishment of the colony: see R v De Baun (1901) 3 WALR 1. 14 See s 48 Acts Interpretation Act 1915 (SA); previously Ordinance No 2 of 1843 and Act No 9 of 1872. This followed from the effect of a provision of the South Australian Colonisation Act 1834 (Imp) (4 & 5 Wm IV c 95) which, in authorising the establishment of the colony of South Australia, denied therein continued operation of all New South Wales law ‘as if the province had never had any association with the mother colony’: White v McLean (1890) 24 SALR 97 at 100 per Boucaut J. Followed in Winterbottom v Vardon & Sons Ltd [1921] SASR 364 at 368–9; Delohery v Permanent Trustee Company of New South Wales (1904) 1 CLR 283 at 297. See also Castles, above n 3, 3. 15 4 & 5 Will IV c 95. 16 See Cooper v Stuart (1889) 14 App Cas 286 at 291–3 which held the rule against perpetuities applicable in New South Wales in 1828.

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[W]hether the law could reasonably be applied in the conditions of the colony. A law will fail to meet that test if it relates to ‘matters and exigencies peculiar to the local condition of England’ (Nelan v Downes),17 but it will not be rejected because in the light of opinions held a century and a half later it appears inconvenient or unjust.18

This reflects the test given in Blackstone’s Commentaries,19 of which the 1828 Act was held declaratory.20 It proved, however, more of an obstacle to the incorporation of English statutory law than the common law. The incorporation of the latter was assisted by, as Alex Castles observed, ‘a strong sense of unity . . . between the unenacted law of England and Australia’. Various factors promoted this unity: the existence of the Privy Council as the ultimate court of appeal from the colonies; the importance attached to the precedents of the English courts; a disinclination to allow local conditions to justify changes to English common law principles; and the lack of importance attached to the date of reception.21 On the whole, most English common law was inherited at least in terms of its general principles including ‘the vast bulk of the unenacted law of inheritance, torts, criminal law, mercantile law, private international law, real and personal property and equity.’22 Less significance was placed on whether the common law principles were capable of being given effect to at the date of reception. Rather, their adoption was just gradually recognised by the courts over time.23 Of course, a significant qualification to this inherited law regarding real property is the recognition of Native title in Mabo v Queensland (No 2)24 which qualified the acquisition of Crown title until the extinguishment of Native title expressly or impliedly by statute. In relation to the application of English statutes, a clear distinction is drawn between those statutes which were enacted before the date of reception of English law, and those enacted after that date. The former apply, provided they were suitable to the conditions of the colony at the date of reception, or were intended to apply to British colonies. The latter apply only if they were intended to apply to the colony. Hence, a further distinction is drawn between general English statutes and those which are intended expressly or by implication to extend to the colonies, specifically or as a class. These distinctions rendered more difficult the reception of imperial statutes compared with the relative ease with which English common law was inherited.

17 (1917) 23 CLR 546 at 551. 18 (1978) 142 CLR 583 at 591. 19 Blackstone, see above n 4. 20 R v Farrell, Dingle and Woodward (1) (1831) 1 Legge 5 at 10 per Forbes CJ. 21 Castles , above n 3, 9–10. 22 Ibid 7. Note Walker v New South Wales (1994) 182 CLR 45 where Mason J sitting alone held that general criminal statutes have extinguished any customary criminal law of Aboriginal people which might have survived British settlement. 23 See, for example, Municipality of Pictou v Geldert [1893] AC 524 where the Privy Council applied a common law principle relating to the duty of a public corporation to repair roads and bridges at the settlement of Nova Scotia even though that infrastructure was built later; Delohery v Permanent Trustee Company of NSW (1904) 1 CLR 283 where the joint judgment (delivered by Griffith CJ) at 310–11 emphasised that the test of applicability was not whether the law was suitable or beneficial, but merely whether it can be applied. Held that the common law rule of prescription of ancient lights was applicable in New South Wales being a general regulation of property, not a law of local United Kingdom policy. See also Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583. 24 (1992) 175 CLR 1.

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In deciding whether an imperial statute was applicable to the conditions of the colony, for instance, New South Wales on 25 July 1828, the courts tended to find them unsuitable where the statute addressed specific local concerns in Britain,25 relied on institutions which were peculiar to Britain, or depended on procedures which could only be followed in Britain.26 For instance, in Quan Yick v Hinds27 the High Court held that an offence for selling tickets in an unauthorised lottery prescribed by the Vagrancy Act (Imp) (4 Geo IV c 60) passed between 1788 and 1828 was not received into New South Wales in 1828 because the enforcement machinery for that offence, the Quarter Session Courts, was not established in New South Wales by that date. The fact those Courts were established two years later in 1830 indicates the strictness with which the reception of general imperial statutes was often determined – particularly bearing in mind that the appellant was charged with the offence in 1905. Many general imperial statutes were identified by Professor Castles28 as having been received in 1828 including ‘statutes of limitation,29 Sunday Observance laws,30 statutes dealing with the criminal law and police offences,31 lotteries,32 land legislation,33 Statutes of Distribution34 and laws dealing with Master and Servant Relationships’.35 For instance in Attorney-General for New South Wales v Love,36 the Privy Council held that the Nullum Tempus Act37 which denied the Crown’s right to recover land held by others continuously for 60 years, applied in New South Wales. Similarly, in M’Hugh v Robertson,38 the Sunday Observance Act 1780 was held applicable in Victoria in 1828 because, like Britain, the colony then was generally British and Christian. Molesworth ACJ articulated the test to be whether ‘from the circumstances of the colony [of Sydney in 1828], as to population and habits, whether it was so like England at the time of the passing of the former Act, that the law might reasonably be applied’.39 Fundamental statutes such as the Magna Carta, the Bill of Rights 1689,40 and the Act of Settlement 1701 are also regarded as being inherited as at 1828. 25 For example, Jolly v Smith (1899) 1 N&S 143 (statute to suppress treasonous societies and their publications in the United Kingdom); Winterbottom v Vardon & Sons Ltd [1921] SASR 364 (statute to reduce duties on United Kingdom newspapers). 26 See Whicker v Hume (1858) 1 De G M&G 506; 42 ER 649 7 HLC 124 held the Statute of Mortmain (9 Geo III c 1) inapplicable as required the enrolment of every deed in the United Kingdom. 27 (1905) 2 CLR 345 at 364–5. 28 Castles, above n 3, 18–19: only selected cases listed in following footnotes. Add to his list the prohibition on ‘stock-jobbing’ in relation to stock options by the Sir John Barnard’s Act 1734 (7 Geo II c 8): Garrett v Overy (1968) 88 WN (Pt 2) (NSW) 184. 29 For example, Griffith v Bloch (1878) 4 VLR (L) 294; Attorney-General for NSW v Love [1898] AC 679. 30 For example, Ronald v Lalor (1872) 3 VR (E) 98; Scott v Cawsey (1907) 5 CLR 132; Cox v McAllister [1962] NSWR 1429. 31 For example, R v Black Peter (1863) 2 SCR (NSW) 207. 32 Lotteries Act 10 & 11 Wm 3 Ch 17 (Imp): R v De Baun (1901) 3 WALR 1. 33 For example, Cannon v Keighran (1843) 1 Legge 170. 34 For example, Skeeles v Hughes (1877) 3 VLR (E) 161. 35 For example, Bilby v Hartley (1892) QLJ 137. 36 [1898] AC 679. 37 Crown Suits Act 1769 (Imp). 38 (1885) 11 VLR 410. 39 Ibid 428. 40 Regarded as declaratory of the common law: see Smith v The Queen (1991) NSW CA per Kirby P who found in dissent a $60,000 fine imposed for contempt of court on an impecunious convicted murderer serving a life sentence was in breach of Article X as an excessive fine; discussed in (1991) 65 Australian Law Journal 695.

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While much imperial legislation was received into the Australian colonies at the date of reception of English law, no subsequent amendment or repeal of that legislation in Britain extended to the colonies unless: (1) it was expressed to do so or by necessary intendment, that is, by paramount force (see below); or (2) it was adopted by colonial law. Uncertainty over which imperial inherited legislation continued to operate within Australia promoted the enactment of State41 and territory42 legislation to resolve the issue.43 Passed before the Australia Acts substantially abrogated the repugnancy doctrine, these enactments concerned only inherited statutes. The general approach adopted was to repeal the application of all inherited imperial statutes (other than those applying by paramount force) – except those statutes specifically listed, such as the Magna Carta and the Bill of Rights 1689.

5.3 Paramount imperial law Imperial United Kingdom power to enact statutes extending expressly or impliedly to its colonies was referred to by Blackstone as the ‘general superintending power of the legislature of the mother country’.44 The legal capacity of the Imperial Parliament to enact paramount law extending to the Australian colonies and States was recognised by Australian courts until the enactment of the Australia Acts 1986. By s 1 of the Australia Act 1986 (Imp) the United Kingdom Parliament renounced, as from 3 March 1986, its capacity to legislate for the Commonwealth, the States and any territory. Note that paramount laws enacted before that date remain unaffected by this renunciation and continue to apply – but their paramountcy is removed by s 3. A radical view was propounded by Murphy J in Bistricic v Rokov45 and Robinson v Western Australian Museum46 that Australia became an independent nation at federation on 1 January 1901, at which time the United Kingdom Parliament lost its capacity to legislate for the Commonwealth and the States, and existing paramount laws dealing with colonial relations – such as the ColonialLawsValidity Act 1865 (CLVA) and the Merchant Shipping Act 1894 – ceased to apply from that date. In Bistricic v Rokov47 his Honour argued: In my opinion (notwithstanding many statements to the contrary) Australia’s independence and freedom from United Kingdom legislative authority should be taken as dating from 1901. The United Kingdom Parliament ceased to be an Imperial Parliament in relation to Australia at the inauguration of the Commonwealth. Provisions of statutes directed towards regulating the Imperial–colonial relations (eg those in the Colonial Laws Validity Act 1865) then ceased to be applicable. 41 Imperial Acts Application Act 1969 (NSW); Imperial Acts Application Act 1984 (Qld); Imperial Acts Application Act 1980 (Vic). 42 Imperial Acts Application Act 1986 (ACT) and Imperial Acts (Repeal) Act 1988 (ACT). 43 The original enactment to this effect was the Imperial Acts Application Act 1922 (Vic) (13 Geo V No 3270) promoted by Sir Leo Cussen: see Castles, above n 3, 28–9. On ‘Westbury savings’ clauses: see Peter M. McDermott, ‘Imperial Statutes in Australia and New Zealand’ (1990) 2 Bond Law Review 162. 44 Blackstone, see above n 4. 45 (1976) 135 CLR 552 at 565–7. 46 (1977) 138 CLR 283 at 343. 47 (1976) 135 CLR 552 at 566.

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This view was firmly rejected by a majority of the High Court in China Ocean Shipping Co v South Australia.48 Very few paramount United Kingdom laws were made in relation to Australia during the 20th century, apart from the Commonwealth of Australia Constitution Act (1900), the Statute of Westminster 1931, and the Australia Act 1986.49 More were enacted during the latter half of the 19th century to confirm the validity of colonial activities (for example the CLVA) or to deal with imperial matters of common concern (for example the Fugitive Offenders Act 1881 (Imp)50 and the Merchant Shipping Act 1894 (Imp)). Nor were paramount laws confined to those enacted since the enactment of the CLVA. Indeed, it was clear that any imperial law enacted with the intention that it apply to the dominions, whenever enacted, applied by paramount force. This included even 17th century statutes, such as the Crimes by Governors of Colonies Act 1698–99 (Imp).51 An example of United Kingdom amending legislation applying by paramount force is the 1900 amendment52 to the Merchant Shipping Act 1894 (Imp) which was held in 1979 by a majority of the High Court in China Ocean Shipping Co v South Australia53 to have implicitly applied to the Australian colonies in 1900. At the Commonwealth level, s 4 of the Statute of Westminster 1931 (adopted by the Statute of Westminster Adoption Act 1942 (Cth)) prevented any United Kingdom statute enacted after the commencement of the 1931 Act from applying to the Commonwealth (and to its territories) unless the statute expressly declared that the Commonwealth Parliament and Government54 had requested and consented to that enactment. Apart from the Australia Act 1986 (UK), the only other United Kingdom Acts to be enacted at the request and with the consent of the Commonwealth55 were the Cocos Islands Act 1955 (Imp) and the Christmas Island Act 1958 (Imp). Although the request and consent requirement in s 4 of the Statute of Westminster 1931 did not apply at the State level, the Australian courts still recognised the reality of Australia’s relationship with the United Kingdom in deciding whether United Kingdom legislation was intended to apply to the States. For United Kingdom legislation enacted in the 1950s, an express intention on the part of the United Kingdom Parliament was needed to extend to the Australian States.56 By 48 (1979) 145 CLR 172 per Barwick CJ at 181–3; Gibbs J at 194; Stephen J at 209–15; Aickin J at 240; Murphy J maintained his view at 236. 49 See, for example, Geneva Convention Act 1937 (UK) which expressly terminated the operation of the Geneva Convention Act 1911 (Imp). 50 Bailey v Kelsey (1959) 100 CLR 352. 51 11 Will III c 12. 52 Merchant Shipping (Liability of Shipowners and Others) Act 1900 (Imp). 53 (1979) 145 CLR 172 per Barwick CJ, Gibbs, Stephen and Aickin JJ; Murphy J contra. 54 Included by s 9(3). 55 The Cocos (Keeling) Islands (Request and Consent) Act 1954 (Cth) and the Christmas Island (Request and Consent) Act 1957 (Cth). 56 See Bistricic v Rokov (1976) 135 CLR 552 per Mason J at 557 (with whom Barwick CJ and Stephen J agreed): ‘The legislative policy which underlies s 11 [sic s 4] of the Statute of Westminster is as important as the language of the section. This policy, which has evolved over the long history of constitutional development leading to responsible government, legislative autonomy and Australian nationhood, is that a statute of the United Kingdom Parliament, if it is intended to apply to an Australian State, will be expressed to apply to that State’. The majority of the Court held a 1958 United Kingdom amendment to the Merchant Shipping Act 1894 (Imp) which applied by paramount force (ss 735 and 736) was not intended to extend to New South Wales.

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the 1970s, the test became even more onerous whereby the States needed to have requested and consented to United Kingdom legislation before it would be recognised as extending to them.57 These principles of statutory interpretation achieved for the States the benefit, at least in practice if not in theory, of s 4 of the Statute of Westminster. They remain relevant to United Kingdom laws enacted before the Australia Acts came into effect on 3 March 1986. By virtue of the renunciation of paramount power in s 1, no United Kingdom law enacted on or after that date is capable of applying to Australia.

5.4 Repugnancy to imperial law The significance of imperial paramount statute law was not only that it extended to Australia, but that it was incapable of being altered by colonial and State law. Australian laws inconsistent with paramount statute law were repugnant and void.58 Also, doubts arose as to whether colonial laws were void for repugnancy if merely inconsistent with English common law. In the early years of colonial responsible government in the 1850s, Judge Boothby of the South Australian Supreme Court became notorious for holding key South Australian legislation invalid for repugnancy with imperial statutes, the common law and even royal instructions.59 Consequently, the Imperial Parliament enacted the Colonial Laws Validity Act 1865 (Imp) (CLVA) to address many of the issues raised by Boothby J and thereby clarify the powers of the colonial legislatures.60 Sections 2 and 3 of the CLVA clarified the position that colonial law can only be repugnant to imperial statutes which expressly or by necessary intendment apply to that colony (including orders and regulations made under such statutes).61 In other words, colonial law was only repugnant and therefore void if inconsistent with United Kingdom paramount statute law extending to the colony. This firmly established the capacity of the colonies to alter all other imperial statutes in force within their jurisdiction, as well as inherited English common law. It is unclear whether the inconsistency required for repugnancy within s 2 of the CLVA encompassed both direct and indirect forms of inconsistency. Direct 57 See Ukley v Ukley [1977] VR 121 at 129 and 131 per curiam the Full Court of the Supreme Court of Victoria held a 1975 United Kingdom repeal of a paramount statute, the Foreign Tribunals Evidence Act 1856 (Imp), did not apply in Victoria, given inter alia a ‘strong and unbending convention’ that ‘in these times the Parliament at Westminster would not legislate so as to affect the law in operation in an Australian State except at the request of and with the consent of the State concerned’. 58 Isaacs J in Attorney-General of Queensland v Attorney-General for the Commonwealth (1915) 20 CLR 148 at 166–7 left open whether repugnancy here meant merely inoperative but tended to favour the view that it meant void. 59 For instance, see McEllister v Fenn cited in D. B. Swinfen, ‘The Genesis of the Colonial Laws Validity Act’ [1967] Juridical Review 29, 35 and fn 21. 60 The Colonial Laws Validity Act 1865 (Imp) and its repugnancy doctrine applied to Commonwealth legislation from federation until the adoption of the Statute of Westminster in 1942 as from 3 September 1939. Nonetheless, Commonwealth legislation enacted before that date remains vulnerable to invalidation for repugnancy to United Kingdom paramount law in force at the date of enactment: see Castles, above n 3, 30 fn 156. 61 Phillips v Eyre (1870) LR 6 QB 1 at 20–1.

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inconsistency can arise in three ways: (1) when it is impossible to obey both laws; (2) when one law permits that which the other law prohibits; and (3) when one law imposes an obligation or confers a right and the other law modifies it.62 Indirect inconsistency occurs where the paramount law evinces an intention to ‘cover the field’ so that the subordinate law will be inconsistent if it trespasses on that field. Both forms of inconsistency fall within s 109 whereby Commonwealth law overrides any inconsistent State law.63 Whether both forms are also covered by s 2 of the CLVA has never been clearly determined by the authorities. Scant judicial comment64 appears to support the view that repugnancy under s 2 of the CLVA required some form of direct inconsistency.65 Support for this view is found in Ffrost v Stevenson66 where the High Court divided 2–2 on whether provisions of the Service and Execution of Process Act 1901 (Cth) and its regulations were repugnant – within s 2 of the CLVA – to the Fugitive Offenders Act 1881 (Imp), in their application to the surrender of fugitives by the Commonwealth to the mandated Territory of New Guinea. Latham CJ saw no repugnancy in a magistrate having jurisdiction under both laws.67 Evatt J addressed the issue directly by strongly opposing the ‘cover the field’ test under s 2 of the CLVA as well as under s 109.68 On the other hand, Dixon J and McTiernan J each found a direct inconsistency.69 Dixon J observed that the test of repugnancy under s 2 of the CLVA ‘may be’ different from that under s 109, but noted that Hume v Palmer70 would support the contrary view.71 Yet, no inconsistency of any form was found in Hume v Palmer between provisions of the Navigation Act 1912 (Cth) and s 735 of the Merchant Shipping Act 1894 (Imp), nor was the nature of repugnancy under s 2 of the CLVA discussed. The clear policy reason for confining the doctrine of repugnancy under s 2 of the CLVA to direct forms of inconsistency was to give effect to the objective of the CLVA to confirm, if not enhance, colonial legislative power. Since the effect of repugnancy under s 2 of the CLVA was to render the inconsistent provision void ab initio, this prevented the colonial or State law from reviving if the paramount law was no longer inconsistent. Significantly though, s 2 only rendered void the relevant colonial or State law to the extent of the inconsistency. This overcame the accepted common law principle whereby repugnancy would invalidate the entire Act.

62 See v The Australian Agricultural Company (1910) 10 SR (NSW) 690. 63 For example, Ex parte McLean (1930) 43 CLR 472 at 483 per Dixon J. 64 Attorney-General of Queensland v Attorney-General for the Commonwealth (1915) 20 CLR 148, per Isaacs J at 167–8, per Higgins J at 178; Union Steamship Co of New Zealand Ltd v The Commonwealth (1925) 36 CLR 130 at 148–51 per Isaacs J with whom Starke J agreed at 164; Higgins J at 156, 159. 65 Yougarla v Western Australia (2001) 207 CLR 344 at 355 [17]. Cf Castles, above n 3, 31. See also Alex C. Castles, An Australian Legal History (Sydney: Law Book Company 1982) 420. 66 (1937) 58 CLR 528 at 572. 67 Ibid 559–60. 68 Ibid 604, citing his comments on s 109 in Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128 at 147–8. 69 (1937) 58 CLR 528 at 572 and 611–12 respectively. 70 (1926) 38 CLR 441. 71 (1937) 58 CLR 528 at 572.

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5.5 Effect of Australia Acts 1986 Section 1 of the Australia Acts terminated as from 3 March 1986 the capacity of the United Kingdom Parliament to extend legislation to Australia. While this had no effect on paramount United Kingdom law enacted before that date in relation to the States, s 3(2) denied those statutes their paramountcy by terminating the doctrine of repugnancy and enabling them to be repealed or amended by State law.72 Interestingly, Victoria has attempted to exercise this capacity retrospectively by purporting to give to all statutory provisions enacted before the Australia Acts 1986, the effect they would have had, if they been enacted after the 1986 Acts. This means that an earlier provision may override a paramount law.73 The last limb of s 3(2) of the Australia Acts raises the issue – what form of inconsistency is required for a State law to override a former paramount United Kingdom law? The subsection provides that ‘the powers of the Parliament of a State shall include the power to repeal or amend any such Act, order, rule or regulation in so far as it is part of the law of the State’. Uncertainty existed over whether the ‘cover the field’ test applied under the comparable provision in s 2(2) of the Statute of Westminster 1931.74 It is suggested that s 3(2) of the Australia Acts only contemplates the direct forms of inconsistency.75 As noted earlier, s 5(b) of the Australia Acts 1986 preserves the paramountcy of three United Kingdom statutes: the Commonwealth of Australia Constitution Act 1900 (Imp) including the Commonwealth Constitution; the Statute of Westminster 1931; and the Australia Act itself. They can only be amended by Commonwealth legislation enacted pursuant to s 15 in one of two ways. The first option under subsection (1) is by a Commonwealth Act passed at the request or with the concurrence of all State parliaments. The alternative option under subsection (3) is pursuant to a power to amend or repeal those statutes conferred on the Commonwealth by an amendment to the Commonwealth Constitution made pursuant to s 128. The effect of s 15 was considered in Chapter 2 at 2.8.2. The Australia Acts repeal certain paramount laws to the extent that they are part of Australian law. Section 3(1) repeals the CLVA in relation to State laws made after 3 March 1986. Section 4 repeals ss 735 and 736 of the Merchant Shipping Act 1894 (Imp). Section 11(2) repeals s 15 of The Australian Courts Act 1828, The Judicial Committee Act 1833, The Judicial Committee Act 1844, s 28 of The Australian Constitutions Act 1850, and s 6 of The Colonial Courts of Admiralty Act 72 R. D. Lumb, The Constitutions of the Australian States (5th edn, St Lucia: University of Queensland Press 1992) 112 asserts that a State must repeal United Kingdom paramount law ‘specifically’. 73 Interpretation of Legislation Act (Vic) s 58 added by the Constitution (Amendment) Act 1994 (Vic). John Waugh leaves open whether s 58 could have this retrospective effect: ‘The Victorian Government and the Jurisdiction of the Supreme Court’ (1996) 19 University of New South Wales Law Journal 409, 413. 74 Alex C. Castles ‘The Paramount Force of Commonwealth Legislation Since the Statute of Westminster’ (1962) 35 Australian Law Journal 402, 405. 75 Compare competing policy grounds – ibid, 406.

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1890. Section 12 repeals ss 4, 9(2) and (3), and 10(2) of the Statute of Westminster 1931. The Act also amended certain entrenched State legislation. Section 13 amended ss 11A, 11B, and 14(2) of the Constitution Act 1867 (Qld). Section 14 amended ss 50 and 51 of the Constitution Act 1889 (WA). Ultimately, the freedom from imperial sourced restraints will not be absolute until the Commonwealth Constitution is repatriated.

5.6 Self-governing territories The foundation of law in each of the territories derives from the law of the State from which the territory was created. All laws in force in South Australia prior to 1 January 1911 continued in force in the Northern Territory.76 Similarly, all laws in force in New South Wales prior to 1 January 1911 continued in force in the ACT.77 Certain State laws were excluded from this adoption.78 All retained State laws were deemed to operate in each territory as if a territory enactment, subject to the Governor-General by Ordinance directing that the law continue to be administered by the State as if the territory remained part of the State.79 Until the grant of self-government, all of this inherited law was capable of being amended and repealed by an Ordinance made by the Governor-General and by Commonwealth law pursuant to s 122. The position was quite different, though, in relation to imperial paramount law. Since the CLVA originally applied to the Commonwealth and consequently to the territories, the doctrine of repugnancy applied to them until it was substantially abrogated on 3 September 1939 by the retrospective adoption of the Statute of Westminster 1931 by the Statute of Westminster Adoption Act 1942 (Cth).80 Thereafter, all such paramount law was liable to be amended or repealed by the Commonwealth in its application to the territories.81 Nor could the United Kingdom Parliament enact legislation for the territories without the request and consent of the Commonwealth Parliament pursuant to s 4.82 The Australia Acts 1986 had very limited effect on the territories except so far as s 1 deemed that no United Kingdom Act shall extend ‘to the Commonwealth, to a State or to a Territory’, and by s 11 no appeal can be taken to the Privy Council from a territory court. Interestingly, while ‘State’ is defined, ‘Territory’ is not.83

76 Northern Territory (Acceptance) Act 1910 (Cth) s 7(1). 77 Seat of Government Acceptance Act 1909 (Cth) s 6(1). 78 Seat of Government (Administration) Act 1910 (Cth) s 3. 79 Ibid, s 4. 80 H. E. Renfree, The Federal Judicial System of Australia (Sydney: Legal Books 1984) 760. 81 Castles, An Australian Legal History, above n 65, 425. 82 Apart from the Australia Act 1986 (UK), the only other Imperial Acts requested and consented to by the Commonwealth related to the transfer of imperial control to the Commonwealth over the Cocos (Keeling) Islands and Christmas Island: Cocos (Keeling) Islands (Request and Consent) Act 1954 (Cth) and the Christmas Island (Request and Consent) Act 1957 (Cth). 83 For the Australia Act 1986 (Cth), ‘Territory’ is defined by s 17(p) of the Acts Interpretation Act 1901 (Cth) to mean a territory within s 122 and to include one administered under a Trusteeship Agreement.

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The operation of imperial statutes in the ACT was clarified in 1986 by the Imperial Acts Application Ordinance (ACT) which followed a similar approach to that taken by the States, that is, it repealed all imperial statutes other than those specifically saved by the Schedule to the Ordinance.84 On the grant of self-government in 1988, the laws in force in the ACT comprised Commonwealth Acts and Ordinances, as well as certain New South Wales and imperial statutes. To enable the newly established Legislative Assembly to repeal or amend these laws, s 34 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) deemed all Commonwealth Ordinances, New South Wales Acts and Imperial Acts in force in the Territory (except for those listed in Schedule 5) to be Territory enactments. In contrast, only certain Commonwealth Acts listed in Schedule 2 were deemed to be Territory enactments. The ACT then enacted s 3(2) of the Imperial Acts (Repeal) Ordinance 1988 (ACT) to repeal all remaining Imperial Acts (both inherited and paramount) as from 21 December 1988, other than those continued in force by the 1986 legislation. In 1996, three statutes continued in force under the 1986 Act were repealed: the 1285 (13 Edw 1 c 22); The Common Informers Act 1575 (18 Eliz 1 c 5); and the Limitations of Actions 1623 (21 Jas 1 c 16).85 The impact of self-government on the Northern Territory in 1978 was not as dramatic constitutionally as it was for the ACT, because there was, since 1974, a Legislative Assembly to enact laws for the Territory. Accordingly, s 57(1) of the Northern Territory (Self-Government) Act 1978 (Cth) merely provided for all Territory laws existing immediately before 1 July 1978 to continue to operate as before, subject to alteration or repeal by Territory law. Excluded from this were existing Commonwealth Acts and Ordinances. The territories, of course, remain subject to the paramount law of the Commonwealth. As a general rule, this means territory laws will be invalid for repugnancy to the extent of any inconsistency with Commonwealth law.86 Such an inconsistency can arise directly or indirectly.87 As noted earlier, direct inconsistency is usually clear from the terms of the respective enactments: (1) when it is impossible to obey both laws; (2) when one law permits that which the other law prohibits; and (3) when one law imposes an obligation or confers a right and the other law modifies it. Indirect inconsistency requires an intention on the part of the Commonwealth to exclusively regulate the activity, that is, ‘to cover the field’. Both of these forms of inconsistency result in the overriding of State laws by an inconsistent Commonwealth law pursuant to s 109 of the Commonwealth Constitution.88 Except 84 As recommended by the ACT Law Reform Commission of the Australian Capital Territory, Report on Imperial Acts in Force in the Australian Capital Territory and Supplementary Report, Canberra 1973. 85 Law Reform (Abolitions and Repeals) Act 1996 (ACT) s 6 and Sch, Pt I. 86 See Northern Territory v GPAO (1999) 196 CLR 553 at 576 per Gleeson CJ and Gummow J (with whom Hayne J agreed generally), at 630 per Kirby J. See also University of Wollongong v Metwally (1984) 158 CLR 447 at 464 per Mason J; Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582 at 588 per Dixon J. 87 See Northern Territory v GPAO (1999) 196 CLR 553 at 582 per Gleeson CJ and Gummow J. 88 Of course, s 109 is confined to inconsistency between Commonwealth and State laws.

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in the ACT, the doctrine of repugnancy has the same effect where a direct or indirect inconsistency arises between a Commonwealth law and a territory law. However, it is unclear whether a territory law will revive if the inconsistency with the Commonwealth law disappears as a result of the Commonwealth law being amended or repealed. In the ACT, an attempt is made by s 28 of the Australian Capital Territory (SelfGovernment) Act 1988 (Cth) to preclude one form of indirect inconsistency where both the Commonwealth and ACT laws are capable of operating concurrently.89 The difficulty with this provision is that if a Commonwealth law enacted since 1988 clearly indicates an intention to cover a field, this may impliedly amend s 28 in that instance to override the ACT law. To avoid this, s 28 would need to be recognised as having an organic character which requires express rather than implied repeal. Finally, it needs to be appreciated that paramount Commonwealth law cannot amend or repeal territory law as such. Rather, the Commonwealth law simply overrides any rights or obligations prescribed by territory law.90 This occurred when the Commonwealth enacted the Euthanasia Laws Act 1997 (Cth) to override the Rights of the Terminally Ill Act 1995 (NT). Alternatively, the Commonwealth can amend or repeal the Self-Government Acts as Commonwealth statutes to impose new restrictions on the power of the self-governing territories. The Euthanasia Law Act 1997 (Cth) also did this by amending the three territory Self-Government Acts to impose a further restriction on their legislative capacity by denying their legislatures power to enact euthanasia laws. 89 See Northern Territory v GPAO (1999) 196 CLR 553 at 582–3 per Gleeson CJ and Gummow J; Wylkian Pty Ltd v ACT Government [2002] ACTSC 97 (24 Sept 2002) per Gyles J at [57]. 90 Northern Territory v GPAO (1999) 196 CLR 553 at 581–2 per Gleeson CJ and Gummow J. An example is s 39A(5) Norfolk Island Amendment Act 2004 (Cth) which expressly overrides subsections 6(1) and (2) of the Legislative Assembly Act 1979 (NI).

6 Manner and form

6.1 Introduction This chapter considers the extent to which State and territory legislatures can restrict the future exercise of their own power. From time to time, a legislature or government wishes to entrench or protect certain legislation1 from being amended or repealed by legislation enacted in the ordinary way. This is justified at the time on the ground that the legislation is of sufficient importance to warrant special requirements for its amendment or repeal. These special requirements are often referred to as ‘manner and form’.2 The capacity of a legislature to restrict or fetter itself in this way has profound implications for representative and democratic government. It also raises intricate legal issues about the legal basis for restricting the plenary nature of State legislative power. The degree of entrenchment, and thus the difficulty in changing the law, may vary considerably. Certain manner and form requirements are designed only to prevent any change occurring by implication. Other requirements are designed to make change quite difficult. The level of complexity usually depends on the importance attached to what is entrenched.

1 Attempts are also made to entrench ‘principles’ rather than specific legislation as such: see, for example, s 4(1) Proportional Representation (Hare-Clark) Entrenchment Act 1994 (ACT) which entrenches certain prescribed principles of the proportional representation (Hare-Clark) electoral system. This approach casts a wider restriction on legislative power. 2 This chapter only considers manner and form provisions which restrict the ordinary process of law-making. Provisions which prescribe no restriction, such as those designed to resolve deadlocks between the Houses, were considered in Chapter 3 at 3.4. Since they do not restrict the ordinary legislative process, unlike manner and form provisions, they do not depend on any paramount law. Although some commentators prefer the expression ‘restrictive procedure’ to ‘manner and form’, the latter expression is used throughout this chapter to refer to a restrictive procedure.

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The States have rarely restricted their legislative power by manner and form.3 When they do, it is usually in relation to key constitutional provisions. A classic example is s 53(1) of the Constitution Act 1867 (Qld): 53(1) A Bill that expressly or impliedly provides for the abolition of or alteration in the office of Governor or that expressly or impliedly in any way affects any of the following sections of this Act namely – sections 1, 2, 2A, 11A, 11B, 14; and this section 53 shall not be presented for assent by or in the name of the Queen unless it has first been approved by the electors in accordance with this section and a Bill so assented to consequent upon its presentation in contravention of this subsection shall be of no effect as an Act.4

For manner and form requirements such as this to be effectively binding, they must be supported by some paramount legal principle. Otherwise the plenary nature of State legislative power would simply override any restriction they purport to impose. That paramount principle is currently provided by s 6 of the Australia Acts 1986: . . . a law made after the commencement of this Act by the Parliament of a State respecting the constitution, powers or procedure of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament, whether made before or after the commencement of this Act.

This provision both restricts and implicitly empowers State legislative power. First, it gives binding effect to manner and form requirements but only in relation to a limited class of laws – laws ‘respecting the constitution, powers or procedure of the Parliament’– by denying force or effect to non-compliant laws. Second, it recognises the power of State parliaments to restrict their power in this way. Prior to the Australia Acts, the proviso to s 5 of the Colonial Laws Validity Act 1865 (Imp) (CLVA) had substantially the same effect as s 6: . . . every representative legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers and procedure of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, Letters Patent, Order in Council, or colonial law for the time being in force in the said colony.

It was from this proviso that the expression ‘manner and form’ is derived. Since not all legislation is capable of being entrenched under s 6 nor under its predecessor, other legal grounds have been suggested for expanding this capacity. 3 The most extensive example of entrenchment was adopted in 2003 for the Constitution Act 1975 (Vic) Part II, s 18. 4 Continued in force despite the enactment of the Constitution of Queensland 2001. Other examples of manner and form provisions include: Constitution Act 1902 (NSW) ss 7A–7B; Constitution Act 1934 (SA) ss 8, 10A, 64A and 88; Constitution Act 1934 (Tas) s 41A; Constitution Act 1975 (Vic) s18; Constitution Act 1889 (WA) s 73; Electoral Distribution Act 1947 (WA) s 13(2).

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While these additional grounds are outlined below, it seems in the light of dicta comments in Attorney-General (WA) v Marquet5 that s 6 may be the only basis for entrenchment of State legislation. The capacity of the territories to effectively entrench their legislation is considered separately near the end of this chapter. Confined to the States, s 6 of the Australia Acts obviously does not extend to the territories. Only the ACT is specifically empowered by the Commonwealth to entrench.6 Lacking similar empowerment, the Northern Territory and Norfolk Island legislatures have very limited, if any, capacity to entrench, given the paramountcy of their respective Commonwealth conferred ‘constitution’ (that is, the Northern Territory (Self-Government) Act 1978 (Cth) and the Norfolk Island Act 1979 (Cth)). Their position in this respect is not unlike that of the Commonwealth.7 It is important to note at this stage that whatever legal basis is relied on to bind a future parliament, the manner and form provision must be doubly entrenched to effectively bind or fetter the powers of a future parliament. This simply means that the manner and form provision is itself entrenched, and therefore cannot be repealed or amended by ordinary legislation. If the manner and form provision is only singly entrenched, it can be repealed by ordinary legislation. The difference between single and double entrenchment is considered further below.8 Of concern is the ease with which State legislatures can entrench enactments by ordinary legislation. Provisions such as s 53 of the Constitution Act 1867 (Qld) (above) which prescribe a referendum for legislative change were entrenched without referendum approval. This is a potentially dangerous capacity if used for improper or misguided purposes. There is, at last, growing recognition of the need to ensure that entrenchment only occurs by the same process which is prescribed.9 The capacity to entrench legislation raises profound democratic issues. Although it is firmly established that parliament cannot abdicate its power, the capacity to prescribe manner and form provisions can in practice amount to an abdication where, for instance, the electorate refuses to approve a Bill, or a specified parliamentary majority is never achieved. For these reasons, the capacity to entrench needs to be carefully defined in terms of the nature of the legislation which can be entrenched, the range of manner and form requirements which can be prescribed, and the process by which entrenchment occurs. It is a pity that these matters were not carefully considered when the CLVA was enacted in 1865 in response to the Boothby affair in South Australia (see below). Nor were they sufficiently considered when s 6 of the Australia Acts substantially retained the effect of the proviso to s 5 of the CLVA. As will become evident, reforms are needed to address these issues. 5 (2003) 217 CLR 545. 6 Section 26, Australian Capital Territory (Self-Government) Act 1988 (Cth). 7 See below 6.8. 8 See below 6.5. 9 This was recognised in Victoria when entrenching s 1A of the Constitution Act 1975 (Vic) which provides for Aboriginal recognition. The Bill was passed in accordance with the manner and form requirements it prescribes.

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6.2 Qualification to parliamentary sovereignty The starting point in any analysis of the capacity of parliament to bind its successors by manner and form is to return to the Westminster doctrine of parliamentary sovereignty – a doctrine which describes the position of the United Kingdom Parliament, but only partly pertains to the Australian legislatures. In the context of manner and form, Professor Wade identified several principles encompassed by the doctrine: An orthodox English lawyer, brought up consciously or unconsciously on the doctrine of parliamentary sovereignty stated by Coke and Blackstone, and enlarged upon by Dicey, could explain it in simple terms. He would say that it meant merely that no Act of the sovereign legislature (composed of the Queen, Lords and Commons) could be invalid in the eyes of the courts; that it was always open to the legislature, so constituted, to repeal any previous legislation whatever; that therefore no Parliament could bind its successors; and that the legislature had only one process for enacting sovereign legislation, whereby it was declared to be the joint Act of the Crown, Lords and Commons in Parliament assembled. He would probably add that it is an invariable rule that in case of conflict between two Acts of Parliament, the later repeals the earlier.10

Brought together in this passage are four fundamental English common law principles: ● no Act of parliament can be held invalid by the courts; ● parliament cannot bind its successors; ● there is only one process for enacting sovereign legislation: the joint Act of the Crown, Lords and Commons in parliament assembled; and ● where two Acts conflict, the later repeals the earlier. The first of these principles is clearly not the position in Australia where, by virtue of the statutory basis of their legislative power, the courts undertake judicial review of all enactments by Commonwealth, State and territory legislatures. Nonetheless, the other three principles do apply unless altered by some paramount law. Both the second and third principles describe the orthodox view of the United Kingdom Parliament as espoused by Bacon, Coke, Blackstone, and Dicey. But their view has been questioned at least by Sir Ivor Jennings11 and Professor Friedmann12 who argued that the United Kingdom Parliament has the power to bind its successors by reconstituting parliament in order to repose in the reconstituted parliament the sole power to amend or repeal certain legislation. For instance, a manner and form provision which requires referendum approval before legislation is amended or repealed, reconstitutes parliament by adding an additional chamber, the electorate. This debate concerning the United Kingdom Parliament13 is considered later in relation to possible grounds for the 10 H. W. R. Wade, ‘The Basis of Legal Sovereignty’ [1955] Cambridge Law Journal 172 at 174. 11 I. Jennings, The Law and the Constitution (5th edn, London: University of London Press, 1959). 12 W. Friedmann, ‘Trethowan’s Case, Parliamentary Sovereignty, and the Limits of Legal Change’ (1950) 24 Australian Law Journal 103. 13 See M. Fazal, ‘Entrenched Rights and Parliamentary Sovereignty’ [1974] Public Law 295.

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enforcement of manner and form provisions outside s 6 of the Australia Acts 1986. However, State parliaments clearly possess the capacity to bind their successor parliaments by manner and form, as this chapter will explain. The fourth principle – where two Acts of parliament conflict, the later Act repeals the earlier – applies equally in Australia as it does in the United Kingdom as a principle of statutory interpretation.14 In the Australian context, this principle only operates when the later Act is within the powers of the enacting parliament. If the later Act is required to comply with a manner and form provision but fails to do so, it will be of no effect so no repeal is effected. In other words, this fourth principle is subject to the ability of parliament to bind its successors – a point made by the Privy Council in McCawley v The King.15 In that case, the Privy Council upheld the validity of s 6(6) of The Industrial Arbitration Act 1916 (Qld) which authorised the Governor-in-Council to appoint the President or any judge of the Court of Industrial Arbitration as a judge of the Supreme Court. As both the President and judges of the Court of Industrial Arbitration were appointed for seven years, the Privy Council held their appointment to the Supreme Court under s 6(6) was limited to whatever term for which they were appointed to the Court of Industrial Arbitration. The effect of s 6(6) was to validly alter the Queensland Constitution which contemplated that all appointments to the Supreme Court were for life. Although accepting that the Queensland Constitution was flexible, one which could be amended expressly or impliedly (as in that case), the Privy Council recognised that the Queensland Parliament possessed limited sovereignty: The Legislature of Queensland is the master of its own household, except in so far as its powers have in special cases been restricted.16

One of these ‘special cases’ is that of manner and form.

6.3 Justification for parliament to bind its successors Before considering the legal basis on which parliament can bind its successors, it is necessary to consider the justification for imposing a binding restriction on the limited sovereignty of State legislatures. Two grounds exist. The first is practical, namely, to prevent an implied repeal or amendment of legislation by a later inconsistent Act to ensure that any repeal or amendment has been fully considered by the legislature. The second justification is to protect fundamental constitutional provisions from simple majority change by requiring more onerous requirements 14 This principle is qualified in the United Kingdom by the operation of s 2(4) of the European Communities Act 1972 (UK) which prevents the United Kingdom courts from applying United Kingdom statutory provisions if directly inconsistent with European Community law: R v Secretary of State for Transport, Ex parte Factortame Ltd (No 2) [1991] AC 603. 15 [1920] AC 691. 16 Ibid 714.

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for their repeal or amendment. As Rich J in Attorney-General (NSW) v Trethowan noted, both these justifications are clearly applicable to State Constitutions: There is no reason why a Parliament representing the people should be powerless to determine whether the constitutional salvation of the State is to be reached by cautious and well considered steps rather than by rash and ill considered measures.17

Whether they can be extended to other statutory provisions is very debatable.

6.3.1 Prevent implied repeal The first justification for manner and form is to ensure that any change to earlier legislation must be directly considered and expressly intended by the drafters of the later Act. This prevents not only any unintended implied repeal or amendment, but also any attempt to do so surreptitiously. Since the reason for adopting a manner and form requirement in these circumstances is not to prevent an express change to legislation – only an implied change – no substantive restriction on legislative power occurs. So the requirements of the manner and form are not onerous, serving more as a ‘warning light to the legislature. It says “Stop! Think before you proceed.”’18 A typical example of such a manner and form requirement is that a Bill is passed only after scrutiny by a parliamentary committee. Such a requirement relates to the ‘manner’ of enactment. Directed to the ‘form’ of an enactment is a provision which prevents the express or implied amendment or repeal of certain legislation unless specific words are used in the amending or repealing law. Where the ‘form’ of the law is prescribed, it is necessary for parliament to indicate that the prescribed formula of words is intended to restrict the legal effect of future legislation, and not merely operate as a rule of construction.19 The former requires parliament to express its intention clearly that no amendment or repeal of the earlier law occurs unless the specific formula of words is used. Such clarity was lacking in South-Eastern Drainage Board (SA) v Savings Bank of South Australia20 where s 6 of the Real Property Act 1886 (SA) provided: No law, so far as inconsistent with this Act, shall apply to land subject to the provisions of this Act, nor shall any future law, so far as inconsistent with this Act, so apply unless it shall be expressly enacted that it shall so apply ‘notwithstanding the provisions of The Real Property Act 1886’.

17 (1931) 44 CLR 394 at 420. 18 39th Report of the Legal and Constitutional Committee of the Victorian Parliament, A Report Upon the Constitution Act 1975 (March 1990) 11, para 2.2. 19 Common law rules of statutory construction require Parliament to clearly indicate its intention to abrogate fundamental common law rights, such as the privilege against self-incrimination and parliamentary privilege. There are also statutory rules to similar effect, such as the requirement that no Act binds the Crown or derogates from the Crown’s prerogative rights unless the Act expressly provides: s 13 Acts Interpretation Act 1954 (Qld); and that no Act affects Native title unless expressly provided: s 13A Acts Interpretation Act 1954 (Qld). 20 (1939) 62 CLR 603.

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The focus of this direction was that inconsistent laws do not apply to land under the Real Property Act unless the specific formula is used. This was interpreted at least by Dixon and McTiernan JJ merely as a rule of construction which was defeated by a clear contrary intention in the subsequent South-Eastern Drainage Acts 1931 and 1933 (SA).21 Section 6 could have been expressed more clearly in terms of preventing any amendment or repeal of the Real Property Act. Arguably this was implicit in the reference to ‘No law, so far as inconsistent with the Act, shall apply to land’ (emphasis added). The majority at least assumed that s 6 of the Real Property Act purported to bind later parliaments but held it ineffective to do so, falling outside s 5 of the CLVA for not being a law respecting the constitution, powers or procedure of the legislature.22 On the other hand, Evatt J interpreted s 6 as purporting impermissibly to restrict the plenary power of the South Australian Parliament ‘to couch its enactments in such literary form as it may choose. It cannot be effectively commanded by a prior legislature to express its intention in a particular way’.23 His Honour’s approach follows that in a number of English decisions which reject the capacity of the United Kingdom Parliament to prevent successor parliaments from altering legislation expressly or impliedly unless specific words are used.24 Although this approach also applies in Australia,25 it must be subject to the capacity of the State legislatures to prescribe valid manner and form provisions pursuant to s 6 of the Australia Act 1986.26 A requirement as to the literary form of future law appears to fall naturally within a manner and form provision.27 Such a mechanism can be useful, even politically determinative, in a range of areas including that of a Bill of Rights. For instance, s 2 of the Canadian Bill of Rights 1960 (Can) provided: Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe . . . the rights or freedoms herein recognised and declared . . . 21 Ibid Latham CJ at 618, Dixon J at 625, McTiernan J at 636. 22 They characterised the wrong law: see below at 6.4.1.1 ff. 23 South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603 at 633. 24 For example in Ellen Street Estates Ltd v Minister for Health [1934] 1 KB 590 per Maugham L J stated at 597: ‘The Legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal’. See Scrutton L J at 595–6. See also Vauxhall Estates Limited v Liverpool Corporation [1932] 1 KB 733 at 734 and 746. 25 Sir Harry Gibbs in the Eleventh Wilfred Fullagar Memorial Lecture ‘The Constitutional Protection of Human Rights’ (1982) 9 Monash University Law Review 1, 11 refers to South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603 and Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 at 33–5 for holding that ‘one statute (not having the force of a Constitution) cannot prevent a later statute from operating according to its proper meaning’. In Vlattas, Gibbs J stated at 35 that although the earlier statute the Real Property Act was important (it provided that good title was created by registration of void leases), it was not ‘a fundamental or organic law’ to which the subsequent Industrial Arbitration Act 1940 was subordinate (which rendered such leases void). 26 See J. D. Goldsworthy, ‘Manner and Form in the Australian States’ (1987) 16 Melbourne University Law Review 403, 419. 27 Enid Campbell, ‘Comment on State Government Agreements’ (1977) 1 Australian Mining and Petroleum Law Journal 53, 55–6. Cf Anne Twomey, The Constitution of New South Wales (Sydney: Federation Press, 2004) 285.

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Apparently, debate ensued for a decade whether this provision was merely a rule of construction, or whether it rendered ineffective inconsistent laws which omitted the prescribed statutory formula. Finally, a majority of the Supreme Court of Canada in R v Drybones28 held that an offence prescribed by the Indian Act 1952 (Can) for an Indian to be intoxicated outside a reserve, was rendered inoperative by s 2 for violating the right to equality before the law in s 1(b) of the Canadian Bill of Rights. They derived from s 2 an implicit intention that laws were not to be applied in violation of the rights and freedoms, and that to regard it merely as a rule of interpretation, as the minority had done, rendered the statutory formula superfluous. The minority considered that parliament had not expressed this intention clearly enough.29 This case, followed in later decisions,30 did not consider the capacity of the Canadian Parliament to bind itself in relation to future enactments, nor did it need to, as the Indian Act offence was enacted before the Canadian Bill of Rights. However, Professor Hogg regards it as arguable that a prescribed statutory formula might be a manner and form provision,31 relying on the view expressed by three justices in Re Singh and Minister of Employment & Immigration that the Drybones principle applied to a provision enacted after the Canadian Bill of Rights.32 Significantly, the Drybones principle arose in the absence of any specific constitutional foundation for binding manner and form such as the proviso to s 5 of the CLVA or s 6 of the Australia Acts. Under the current Canadian Charter of Rights and Freedoms, all Canadian and provincial legislation is overridden if inconsistent with the terms of the Charter, unless the legislation expressly declares that it ‘shall operate notwithstanding’ the relevant provision in the Charter (s 33(1)). As Part I of the Canada Act 1982 (Can) in Schedule B to the Canada Act 1982 (UK), the Charter enjoys paramount force, as well as the protection of Part V of the Act which regulates the amendment of the Act.33 An Australian example of a manner and form provision designed to avoid implied repeal is s 85(5) of the Constitution Act 1975 (Vic) which provides: A provision of an Act, other than a provision which directly repeals or directly amends any part of this section, is not to be taken to repeal, alter or vary this section unless – (a) the Act expressly refers to this section in, or in relation to, that provision and expressly, and not merely by implication, states an intention to repeal, alter or vary this section; and

28 [1970] SCR 282; (1969) 9 DLR (3d) 473, Ritchie J at 481–2 with whom Fauteux, Martland, Judson, Hall and Spence JJ concurred. 29 Ibid Cartwright CJC at 476–7 with whom Abbott J agreed at 477; Pigeon J at 491. 30 R v Randall Unland [1989] Alta. D. 6100–01. See also, for example, Lavell v A G Canada [1974] SCR 1349, 1364, 1374, 1382; R v Burnshine [1975] 1 SCR 693, 714. 31 P. W. Hogg, Constitutional Law of Canada (4th edn, Scarborough: Carswell Company, 2002) 686. 32 (1985) 17 DLR (4th) 422 per Beetz J at 441 with whom Estey and McIntyre JJ concurred. 33 Section 38 permits amendment of the Canada Act 1982 by proclamation issued by the Governor-General under the Great Seal of Canada where authorised by resolutions of the Senate and the House of Commons, and of the legislative assemblies of the provinces representing at least two-thirds of the population of the provinces. All legislatures must consent under s 41 if the amendment affects several prescribed matters including, for example, the office of the Queen.

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(b) the member of the Parliament who introduces the Bill for the Act or, if the provision is inserted in the Act by another Act, the Bill for that other Act, or a person acting on his or her behalf, makes a statement to the Council or the Assembly, as the case requires, of the reasons for repealing, altering or varying this section; and (c) the statement is so made – (i) during the member’s second reading speech; or (ii) after not less than 24 hours’ notice is given of the intention to make the statement but before the third reading of the Bill; or (iii) with the leave of the Council or the Assembly, as the case requires, at any time before the third reading of the Bill.34

The interpretation of this provision is considered further below. A similar approach requiring a statutory formula has been recommended for amendments to the Queensland Constitution.35 There are sound practical reasons for recognising the capacity of a State parliament to prescribe by a manner and form provision the use of specific language to effect amendment or repeal of important legislation. As Professor Goldsworthy recognises, no practical restriction on legislative power is imposed:36 The power of a legislature to change its procedure, or form of legislation, is consistent with its possessing continuing sovereignty provided that it must always remain free to change the substance of the law however and whenever it chooses.37

It provides a convenient mechanism to avoid unintended implied amendment of significant legislative provisions, as well as ensuring that any intended change is brought to the attention of the parliament and the public. Professor Winterton argues this mechanism is available for the Commonwealth, although non-compliance should render the impugned law merely inoperative rather than invalid. Otherwise, a procedurally self-embracing notion of Commonwealth supremacy needs to be adopted to avoid the amendment requirements of s 128 of the Constitution.38 On this basis, clauses 5(2) and (3) of the Commonwealth Human Rights Bill 1973 purported to render a Commonwealth law of no effect if inconsistent with the Bill – unless the law expressly declared that it was ‘to operate notwithstanding the Bill’. This imposes no substantive restriction on Commonwealth power, but it illustrates how a requirement as to the ‘form’ of legislation can protect legislation from implied repeal. The counterargument to this is that such a direction to a later parliament can only be binding by virtue of some paramount legal principle, such as s 6 of the Australia Acts. 34 In BHP v Dagi [1996] 2 VR 117, a majority of the Victorian Court of Appeal decided that s 46 of the Public Prosecutions Act 1994 (Vic) was duly enacted in compliance with s 85(5), without any issue being raised that its requirements were not effectively binding. Consequently, no issue of characterisation under s 6 of the Australia Acts was raised. 35 See the Report of the Legal, Constitutional and Administrative Review Committee of the Queensland Parliament (LCARC), ‘The Queensland Constitution: Entrenchment’ (2002). 36 See also: George Winterton, ‘Can the Commonwealth Parliament Enact “Manner and Form” Legislation?’ (1980) 11 Federal Law Review 167, 190–1; G. Williams, Human Rights under the Australian Constitution (Oxford: Oxford University Press, 1999) 267–8. 37 J. D. Goldsworthy, The Sovereignty of Parliament – History and Philosophy (Oxford: Clarendon Press, 1999) 15. 38 Winterton, above n 36.

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Otherwise, the later inconsistent enactment must implicitly repeal the earlier law.

6.3.2 Restricting parliamentary sovereignty The other justification for prescribing special manner and form requirements is to render more difficult the repeal or amendment of important legislation. The range of difficulty can vary considerably. The additional requirements might be easily satisfied by an ordinary majority of members where, for instance, the Bill must be referred to a parliamentary committee whose report is then to be considered by each House.39 Usually, more onerous requirements are prescribed, such as referendum approval of the Bill or for the Bill to be passed by a special majority of the members of each House. The more onerous the manner and form, the greater the restriction on parliamentary sovereignty. At issue then, is whether any restriction is justified, or how far can it be allowed to go. Lord Birkenhead LC in delivering the opinion of the Privy Council in McCawley’s case identified the competing considerations here: Some communities, and notably Great Britain, have not in the framing of constitutions felt it necessary, or thought it useful, to shackle the complete independence of their successors. They have shrunk from the assumption that a degree of wisdom and foresight has been conceded to their generation which will be, or may be, wanting to their successors, in spite of the fact that those successors will possess more experience of the circumstances and necessities amid which their lives are lived. Those constitution framers who have adopted the other view must be supposed to have believed that certainty and stability were in such a matter the supreme desiderata. Giving effect to this belief, they have created obstacles of varying difficulty in the path of those who would lay rash hands upon the ark of the constitution.40

One could argue that the expression of the people’s will through the deliberations of parliament as a democratically elected body should not be restricted by earlier parliaments representing the people of another age or time. This argument asserts that the sovereignty of the people should remain intact and unfettered.41 In Attorney-General (WA) v Marquet,42 Kirby J referred to this as giving effect to ‘the dead hand of past political notions and factional interests’.43 The counter argument is that if one accepts the possibility that at some time in the future either the will of the people might be distorted on certain issues or that the parliamentary system might be manipulated to disregard the rights of minority groups or even the majority of the people, then the adoption of safeguards to protect a State from such occasional lapses in good government are fully justified, particularly 39 The Queensland Constitutional Review Commission (QCRC) recommended a form of ‘parliamentary entrenchment’ which does not in substance render it more difficult to enact law, instead it imposes certain procedural requirements such as referral to a parliamentary committee, as well as expressly entitling the law as an amendment Act. 40 [1920] AC 691 at 703. 41 This is strongly supported by M. J. Detmold, The Australian Commonwealth – A Fundamental Analysis of its Constitution (Sydney: Law Book Company, 1985) 207–17. 42 (2003) 217 CLR 545. 43 Ibid [195].

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in sensitive areas connected with the Constitution of the State or in relation to statutory guarantees of human rights, like a Bill of Rights.44 This is an attractive view but for its failure to appreciate that the capacity to introduce safeguards against undesirable laws is a capacity which can also be used to entrench undesirable laws. There is no guarantee that this capacity to bind future parliaments will only be exercised in the public interest. For this reason, it is desirable that when a State parliament enacts restrictions on the exercise of its legislative power, like a referendum requirement, that enactment should comply with the very procedure it is prescribing. Yet the assumption and the practice has always been that manner and form provisions can be enacted by a simple parliamentary majority. Only in recent times has it been suggested in dicta that these provisions should be enacted in accordance with the very procedure they purport to prescribe.45 Indeed, Kirby J went much further by suggesting in Attorney-General (WA) v Marquet46 that the proviso to s 5 of the CLVA should never have been interpreted as enabling State parliaments to bind their successors by restricting their State constituent legislative power by a simple majority vote. The absurdity of this capacity becomes evident if it allows State parliaments by a mere majority vote in each House to entrench legislation by subjecting its amendment or repeal to 99 per cent referendum approval.47

6.4 The position in the Australian States Section 6 of the Australia Act 1986 (Cth) provides the only clear legal ground for entrenching State legislation by a manner and form provision. Whether there is scope for a manner and form provision to effectively restrict State legislative power outside s 6 or the proviso to s 5 is now doubtful. Three alternative grounds have been suggested in the past for giving a manner and form provision binding force, but dicta in Marquet48 suggest they are no longer feasible at the State level. Those grounds are: the reconstituted legislature argument; the principle of The Bribery Commissioner v Ranasinghe;49 and s 106 of the Commonwealth Constitution. These three alternative grounds are considered following the discussion on s 6 of the Australia Acts 1986.

6.4.1 Section 6 Australia Acts 1986 The only clear legal basis for restricting the power of State parliaments by a manner and form provision is s 6 of the Australia Acts 1986. Essentially, s 6 is to 44 See also D. V. Cowen, ‘Legislature and Judiciary’ (1953) 16 Melbourne Law Review 273, 298. 45 Gummow J in McGinty v Western Australia (1996) 186 CLR 140 at 299. 46 (2003) 217 CLR 545. 47 Ibid [194]. But such a percentage would appear to be invalid as an effective abdication of power: see R. D. Lumb, The Constitutions of the Australian States (4th edn, St Lucia: University of Queensland Press, 1977) 131 referred to 90%, but any percentage above 50% might be suspect. See also Friedmann, above n 12, 105–6; P. A. Joseph, Constitutional and Administrative Law in New Zealand (2nd edn, Wellington: Brookers, 2001) 531–2. 48 Attorney-General (WA) v Marquet (2003) 217 CLR 545. 49 [1965] AC 172.

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the same effect as the provision it replaced, the proviso to s 5 of the CLVA. Note that the proviso to s 5 retains a residual operation under the Australia Acts. Section 6 restricts the legislative power of State parliaments to alter an entrenched law by any law enacted since the commencement of the Australia Acts on 3 March 1986.50 The same restriction continues to apply by virtue of the proviso to s 5 of the CLVA regarding enactments prior to that date which purport to change an entrenched law.51 It is useful to cite both of these provisions here. Section 6 of the Australia Acts 1986 provides: . . . a law made after the commencement of this Act by the Parliament of a State respecting the constitution, powers or procedure of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament, whether made before or after the commencement of this Act.

Section 5 of the CLVA provided: . . . every representative legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers and procedure of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, Letters Patent, Order in Council, or colonial law for the time being in force in the said colony.

The conferral of power in s 5 ‘to make laws respecting the constitution, powers and procedure of such legislature’ is effectively retained by s 2(2) of the Australia Acts 1986: It is hereby further declared and enacted that the legislative powers of the Parliament of each State include all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State but nothing in this subsection confers on a State any capacity that the State did not have immediately before the commencement of this Act to engage in relations with countries outside Australia.

Although the wording of s 6 differs from that of the proviso to s 5, their legal effect is not substantially different.52 The two key phrases of the proviso are adopted in s 6: ‘respecting the constitution, powers or procedure’53 and ‘manner and form’. Nevertheless, there are three subtle differences worth noting: ● Under the proviso to s 5, the manner and form provision could be contained in any Act of the Imperial Parliament, Letters Patent, Order in Council or colonial law, whereas under s 6, the only binding manner and form provisions are those in a law of the State parliament. 50 Section 6 expressly applies irrespective of when the manner and form provision was enacted. But s 6 expressly only applies to laws required to comply with the manner and form if enacted after 3 March 1986. 51 The CLVA is only repealed in respect of State laws made after 3 March 1986: s 3(1) Australia Acts 1986. 52 Attorney-General (WA) v Marquet (2003) 217 CLR 545 at [73] [248]–[249] and [290]–[292]. 53 The substitution of ‘or’ in s 6 for ‘and’ in the proviso to s 5 makes no difference: Attorney-General (WA) v Marquet (2003) 217 CLR 545. Contrast this with [73] which states that this means a change from a grant of power to the requirement to obey the manner and form.

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The proviso to s 5 applied to laws ‘passed’, whereas s 6 refers to ‘a law made . . . by the Parliament’. The significance of this difference in wording is discussed further below.54 Section 6 expressly declares that a law made in non-compliance with a manner and form provision ‘shall be of no force and effect’, whereas the proviso to s 5 merely implied invalidity, an implication recognised and enforced for the first time in Attorney-General for New South Wales v Trethowan.55

In relation to the third difference, it has been argued in providing that noncompliant laws ‘shall be of no force or effect’, s 6 of the Australia Acts does not render those laws invalid, merely inoperative.56 In contrast, the proviso to s 5 of the CLVA invalidated non-compliant laws because it effectively deprived the legislature of the power to enact those laws. On the basis of this distinction, it is then argued that s 6 provides no basis for enforcing a requirement that a noncompliant Bill not be presented to the Governor for royal assent unless it has satisfied applicable manner and form requirements. This argument is based on the view that s 6 does not prevent the enactment; it only renders inoperative, not invalid, the law when enacted. Thus there is no basis, such as in Trethowan57 and Marquet,58 for an injunction to prevent presentation for royal assent without referendum approval. There are difficulties with this reasoning. Surely, the effect of s 6 in rendering a non-compliant law ‘of no force or effect’ is to render it invalid from the moment of enactment. Nor does it overcome the fact that the presentation of a non-compliant Bill for assent usually violates an express statutory prohibition. Whether or not such a prohibition is singly or doubly entrenched, unless it is expressly repealed, it continues to prescribe a lawful command which the courts are obliged to enforce. In any event, the ultimate basis for the invalidity of laws enacted in noncompliance with a manner and form provision is not s 6, nor was it the proviso to s 5. This is because s 6 must be reinforced to prevent its repeal or amendment in the same way as the proviso to s 5 needed to be reinforced. The proviso to s 5 was reinforced by the doctrine of repugnancy declared by s 2 of the CLVA which prohibited colonial and State legislatures from enacting legislation inconsistent with imperial paramount laws, including the proviso to s 5. Similarly, s 6 is reinforced by the remnants of this doctrine of repugnancy by s 15 of the Australia Acts 1986 which prevents the States repealing or amending any of the Act’s provisions except by an Act of the Commonwealth Parliament passed at the request or with the concurrence of all the State parliaments. 6.4.1.1 The prerequisites of section 6 The prerequisites for a binding manner and form provision under s 6 are basically identical to those which were required under the proviso to s 5. The five prerequisites suggested here derive from the judicial interpretation of the proviso: 54 See subheading, ‘A manner and form requirement must relate to the legislative process’. 55 (1931) 44 CLR 394. 56 Twomey, above n 27, 287–8. 57 (1931) 44 CLR 394. 58 (2003) 217 CLR 545.

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the manner and form provision can be contained in any Act of the State parliament; the manner and form provision binds only future laws respecting the constitution, powers or procedure of the parliament; only mandatory manner and form requirements are binding; manner and form requirements must relate to the legislative process; and manner and form requirements must not purport to abdicate legislative power.

A manner and form provision can be contained in any Act of the State parliament This point appears quite clearly in s 6 as it did in the proviso to s 5, although the latter also enforced manner and form provisions in imperial enactments, Letters Patent and Orders in Council. Consequently, the manner and form provision can be found in any Act whether it deals with animals, water pollution or the constitutional powers of the State. What is required, though, is that the legislation to which the manner and form is directed must be a law respecting the constitution, powers or procedure of the parliament. Every case involving an allegation of non-compliance with a manner and form provision involves at least two laws. The first, earlier in time, is the law which contains the manner and form provision, and it can theoretically be a law on any subject. The second law, later in time, is the law which is challenged for not complying with the manner and form provision, and it is this second law which must be characterised as a law respecting the constitution, powers or procedure of the parliament. In other words, the characterisation requirement applies only to the second law. This is clearly the position under s 6, as it was under the proviso to s 5, although s 6 avoids the more complicated wording of the proviso. Nevertheless, judicial interpretation of the proviso appears, at times, to have departed from this position. In The South-Eastern Drainage Board (South Australia) v The Savings Bank of South Australia59 a majority of the High Court60 seemed to confuse the position by holding that the proviso to s 5 was not applicable because the Act prescribing the manner and form was not a law respecting the constitution, powers or procedure of the legislature. The manner and form provision was s 6 of the Real Property Act 1886 (SA) which, as noted previously, provided: No law, so far as inconsistent with this Act, shall apply to land subject to the provisions of this Act, nor shall any future law, so far as inconsistent with this Act, so apply unless it shall be expressly enacted that it shall so apply ‘Notwithstanding the provisions of “The Real Property Act 1886”’.

The impugned Act, the South-Eastern Drainage Act 1900 (SA), created first charges over land which were inconsistent with the provisions of the Real Property Act 1886 (SA), without complying with its s 6. On this basis, the 1900 Act was 59 (1939) 62 CLR 603. 60 Ibid, Latham CJ at 618, Starke J at 623, Dixon J at 625 and McTiernan J at 636.

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challenged. Yet, a majority of the High Court rejected this argument, not because the 1900 Act dealing with drainage rights was not a law respecting the constitution, powers or procedure of the legislature, but on the basis that the 1886 Act was not of that kind. The majority appeared to characterise the wrong Act, that is, the first rather than the second.61 Yet, it may have been that the Court merely decided that the manner and form provision was not one enforced by the proviso to s 5 because it did not purport to regulate the enactment of future laws respecting the constitution, powers or procedure of the legislature.62 Or that it did not purport to restrict parliament’s power at all, being merely a rule of construction.63 Similar confusion is evident in Commonwealth Aluminium Corporation Limited v Attorney-General for Queensland64 (Comalco’s case) where a 1957 Queensland Act gave statutory force to an agreement between Comalco and the Queensland Government pursuant to which Comalco obtained mining rights in Weipa in return for the payment of fixed royalties to the Queensland Government. Under s 4 of the 1957 Act, the agreement was only to be varied by agreement between the Minister and Comalco with the approval of the Governor-in-Council by Order in Council. That agreement and any variation were given the force of law by the 1957 Act. In 1974, the Mining Royalties Act was enacted which authorised the Governor-in-Council to make regulations to fix the rates of royalties payable on mining leases irrespective of any agreement between the Government and the mining companies. When notified of the increased royalty rates, imposed without its consent, Comalco challenged the validity of the 1974 Act and Regulations for non-compliance with s 4 of the 1957 Act as a binding manner and form provision. The majority, Wanstall SPJ and Dunn J, held s 4 of the 1957 Act not to be a ‘manner and form’ provision at all and so upheld the validity of the 1974 Act and Regulations without having to decide the issue of characterisation. However, both Justices touched on the issue. Wanstall SPJ merely assumed for the purposes of looking at the validity of s 4 that the first Act, the 1957 Act, was a law respecting the constitution, powers or procedure of the legislature.65 Dunn J expressed as a closing remark the opposite view that both the 1957 and 1974 Acts were not laws of that kind.66 Hoare J who in dissent held the 1974 Act and Regulations invalid for non-compliance with s 4 of the 1957 Act, characterised both Acts. Again, the characterisation of the 1957 Act may be explained on the ground that it established the validity of the Act. In contrast to Comalco’s case is the approach of the Full Court of South Australia to similar facts in West Lakes Limited v The State of South Australia.67 In that case, 61 This is the view of Lumb, above n 47, 99 who was approved by Matheson J in West Lakes Limited v The State of South Australia (1980) 25 SASR 389 at 419. See also Campbell, above n 27, 54–5. 62 See Starke J at 623 (of (1939) 62 CLR 603): ‘But s.5 [i.e. of the CLVA] has nothing to do with ordinary legislation such as is the subject of s 6 of the RPA 1886; it deals with laws respecting the constitution powers or procedure of representative legislative bodies . . .’ (emphasis added). The concern expressed appears to be with the character of the legislation contemplated by the manner and form provision as falling within its requirements rather than with the 1886 Act itself. 63 See Dixon J (1939) 62 CLR 603 at 625. 64 [1976] Qd R 231. 65 Ibid 237. 66 Ibid 260. 67 (1980) 25 SASR 389.

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the agreement between West Lakes Limited and the South Australian Government for the development of a residential estate was ratified by a 1969–70 Act. Although both under the 1969–70 Act and the agreement, the consent of West Lakes was required to any variation of the agreement, a Bill was introduced in 1980 to enable the making of regulations to vary the agreement without the company’s consent. The Court unanimously recognised the need to characterise the 1980 Bill but only King CJ68 and Matheson J69 held it was not a law respecting the constitution, powers or procedure of the legislature. Matheson J characterised the 1980 Bill as a law with respect to the regulation-making powers of the minister, not a law relating to the powers or procedures of the parliament.70 His Honour expressly agreed with Professor Lumb’s view of the High Court’s approach in the South-Eastern Drainage Board case that the Court mistakenly characterised the first rather than the second Act.71 Although no reference was made to this issue in Attorney-General (WA) v Marquet,72 the joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ correctly characterised only the 2001 Bills, not the manner and form provision in s 13 of the Electoral Distribution Act 1947 (WA). On the other hand, Kirby J characterised both the 1947 Act and the Bills.73 A manner and form provision binds only future laws respecting the constitution, powers or procedure of the parliament This is the most significant limitation on the utility of manner and form provisions under s 6. Unless the law can be so characterised, no challenge can be made to its validity under s 6 for non-compliance with a manner and form provision. In those circumstances, consideration then needs to be given to whether the manner and form is binding on other grounds where this requirement of characterisation is absent (see below). In defining ‘laws respecting the constitution, powers or procedure of parliament’, it is usual to begin with the classic interpretation of the constituent legislative power in s 5 of the CLVA from which this test of characterisation originally derived. Dixon J in Trethowan’s case interpreted the power in s 5 that ‘every representative legislature shall . . . have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers and procedure of such legislature’ to mean: The power to make laws respecting its own constitution enables the legislature to deal with its own nature and composition. The power to make laws respecting its own procedure enables it to prescribe rules which have the force of law for its own conduct. Laws which relate to its own constitution and procedure must govern the legislature in the exercise of its powers, including the exercise of its power to repeal those very laws. The power to make laws respecting its own powers would naturally be understood to mean that it might deal with its own legislature authority.74 68 Ibid 396. 69 Ibid 417–20. 70 Ibid 420. 72 (2003) 217 CLR 545. 73 Ibid [197]–[198].

71 Lumb, above n 47, 99. 74 (1931) 44 CLR 394 at 429–30.

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In summary, examples of laws which appear to satisfy this characterisation include: ● respecting the constitution of parliament75 – laws which abolish a House; restore a second House; remove the Queen or her representative as a constituent element of parliament; affect royal assent; alter electoral districts, the number of seats, the system of voting or the duration of a parliamentary term; concern the relationship between both Houses;76 ● respecting the powers of parliament – laws which impose or expressly repeal or amend a manner and form provision; concern parliamentary privilege;77 deal with the resolution of deadlocks between the Houses; and ● respecting the procedure of parliament – laws relating to Standing Orders; the office of Speaker; quorums;78 as well as certain laws respecting the powers of parliament (see category above). The test of characterisation required under s 6 severely limits its capacity to effectively entrench both constitutional and non-constitutional legislative provisions. Merely being inconsistent with the formal Constitution does not necessarily mean that it is a law respecting the constitution, powers or procedure of the parliament. Constitutional provisions relating solely to the other two branches of government, the executive79 and the judiciary,80 lie beyond the protection of s 6. But where parliament is defined to include the Queen or the Governor, entrenchment of the monarchy and the office of Governor is possible.81 A range of other matters, such as a Bill of Rights82 or specific freedoms and guarantees, local government,83 and the qualifications of members and of voters84 also lie beyond the protection of

75 Barton J in Taylor v Attorney-General of Queensland (1917) 23 CLR 457 at 468 interpreted ‘constitution of a legislature’ in s 5 of the CLVA to mean ‘the composition, form or nature’ of the House or Houses of the legislature. 76 These examples deal with parliament or with one of its Houses. 77 Cf Arena v Nader (1997) 42 NSWLR 427 at 436 which held that statutory modification of the privileges of the New South Wales Legislative Council was not an alteration of the ‘powers’ of the House which required referendum approval under s 7A of the Constitution Act 1902 (NSW). Section 7A was confined to laws reducing its legislative powers. Brennan CJ sitting alone appears to have affirmed that view: Arena v Nader (1977) 71 ALJR 1604 at 1605. 78 See Lumb, above n 47, 119 for the last two suggestions. 79 Dixon J in Attorney-General (NSW) v Trethowan (1931) 44 CLR 394 at 429 regarded the conferral of power in s 5 of the CLVA as not extending ‘to the executive power in the constitution’. 80 Cf Collingwood v Victoria [No 2] [1994] 1 VR 652 at 669–70 where Brooking J (with whom Southwell and Teague JJ agreed) described the Constitution of Victoria as ‘controlled’ in many respects by ss 18 and 85 of the Constitution Act 1975 (Vic), and previously by the proviso to s LX of the Constitution Act 1855. Section 18 requires an absolute majority to change those parts of the Act which deal with the Crown, local government, the Supreme Court, the Executive Council, and the two Houses. But no legal basis is cited for that entrenchment. Yet nothing was derived from that entrenchment as the Full Court still rejected any doctrine of separation of powers could be derived from the Constitution. Harper J in the original proceedings below (Collingwood v Victoria [1993] 2 VR 66) at 73 and 78 accepted the binding force of s 85 without explanation. 81 See s 53 of the Constitution Act 1867 (Qld). 82 See Lumb, above n 47, 119–20 that a Bill of Rights is not covered; Goldsworthy, above n 26, 416–17. 83 Cf South Melbourne v Hallam [1995] 1 VLR 247 where the Victorian Full Court assumed the effectiveness of the entrenchment (a special majority requirement) of local government in Part IIA of the Constitution Act 1975 (Vic). No basis for this assumption is given. 84 Clydesdale v Hughes (1934) 51 CLR 518 per joint judgment of Rich, Dixon and McTiernan JJ at 528. The contrary view adopted in Wilsmore v State of Western Australia [1981] WAR 159 (WA FC) was disapproved of on appeal by Wilson J (with whom Gibbs CJ, Stephen, and Mason JJ agreed) in Western Australia v Wilsmore (1982) 149 CLR 79 at 102.

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s 6. Further consideration is given below to the last of these matters, including the capacity to entrench electoral legislation as law respecting the constitution of parliament. A law which expressly repeals a valid manner and form provision is clearly a law respecting the powers and procedure of the parliament. Conversely, is a law which simply fails to comply with a manner and form, able to be characterised in this way? If so, is there any point in characterising the law at all? In Comalco’s case, the Mining Royalties Act 1974 (Qld) which fixed the mining royalties payable to the Queensland Government, was characterised by Hoare J in dissent as a law respecting the powers and procedure of the Queensland Parliament: [B]ecause [the 1974 Act] enacts provisions which conflict with the 1957 Act it necessarily follows that it is an Act respecting the powers and procedure of the legislature of Queensland . . . It is I think an over simplification to say that the 1974 Act is an Act relating to mining royalties and inferentially that therefore it is not an Act ‘respecting the constitution, powers and procedure’ of the legislature. To determine what an Act of Parliament does, it is necessary to consider the operation of the Act (Kariapper v Wijesinha [1968] AC 717 at 743 to 744). It seems to me clear enough that an Act may be categorised under more than one heading.85

There are at least two difficulties with this approach. The first is the view that the two Acts conflict. This is not evident since the enactment of an Act without complying with a manner and form does not create two inconsistent Acts (see subsequent discussion on this under single entrenchment below). Second, the result of that approach is that every law which fails to comply with a manner and form satisfies the test of characterisation prescribed by s 6. But such an interpretation which renders that test otiose cannot be sustained.86 Moreover, it would expand the opportunity for entrenchment when this needs to be curtailed. For these reasons, his Honour’s approach, with respect, should not be followed. The confinement of s 6 to restricting the enactment of laws respecting the constitution, powers or procedure of parliament is more a consequence of history rather than any deliberate decision to restrict its scope. The test of characterisation derives originally from the confirmation of power in s 5 of the CLVA for representative legislatures to make laws respecting the constitution, powers and procedure of the legislature. As noted in Chapter 5, this confirmation was to set aside doubts raised in the decisions of Boothby J in the South Australian Supreme Court as to the scope of colonial legislative power to enact laws inconsistent with imperial law.87 Since the proviso to s 5 was a restriction on that power to make laws respecting the constitution, powers and procedure of the legislature, it was naturally confined to laws of that character. It could be argued that the proviso was intended only to confirm one aspect of an already existing general capacity to entrench by manner and form, rather than introducing a new and singular 85 [1976] Qd R 231 at 248. 86 Goldsworthy, above n 26, 415–17. 87 For example, see Driffield v Registrar-General cited in D. B. Swinfen, ‘The Genesis of the Colonial Laws Validity Act’ [1967] Juridical Review 29, 40, fn 45 as SAPP 53 LC 1863 and noting that Gwynne J disagreed, holding registration under either form sufficient.

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restriction.88 Alternatively, it could be argued that the proviso established the only basis for entrenchment by colonial legislatures.89 Support for the former view can be gathered from the constitutional issues raised by Boothby J in South Australia and the response of the Imperial Law Officers at that time. Pursuant to Imperial Statute 13 & 14 Vict c 59, the Governor of South Australia, on the advice of the Legislative Council, enacted Act No 2 of 1856 to establish a bicameral parliament consisting of the Legislative Council and the House of Assembly. Section 34 prescribed a manner and form provision pursuant to which parliament was empowered: to repeal, alter, or vary any of the provisions of this Act and to substitute others in lieu thereof, provided that it shall not be lawful to present to the Governor for Her Majesty’s assent any Bill by which any alteration of the said Legislative Council or House of Assembly may be made unless the second and third reading of such Bill shall have been passed with the concurrence of an absolute majority of the whole of the members of the said Legislative Council and of the House of Assembly respectively.

In 1863 the Imperial Law Officers concluded the Electoral Act 1861 (SA) was invalid for failing to comply with s 34. Since that Act altered the boundaries of electoral districts and the number of members elected from each to the House of Assembly, this was regarded as an alteration to the House of Assembly requiring an absolute majority which was not obtained. South Australia’s Attorney-General argued the Act’s validity on the grounds that: s 34 only applied to a Bill which expressly repealed, altered or varied Act No 2 of 1856; the court should presume compliance if no deficiency appears on the face of the law; and that the Legislative Council had no power to bind a future legislature by enacting s 34.90 The opinion of the Imperial Law Officers in May 1863 clearly rejected the first two grounds and appears to reject the third ground by concluding that the validity of the Electoral Act was ‘open to question’.91 However, they regarded the Electoral Act as invalid for a more fundamental reason – namely, that Imperial Statute 13 & 14 Vict c 59 did not authorise the Legislative Council to enact a provision such as s 34 which purported to empower the new parliament to enact laws to alter either House.92 Accordingly, an Imperial Statute was required to validate the Electoral Act as well as all laws enacted by the parliament since its enactment. This was enacted: 26 & 27 Vict c 84. The central issue then was the power to alter the ‘constitution’ of the Houses. Accordingly, s 5 of the CLVA was enacted to confirm that specific power subject to the proviso. The Law Officers’ opinion seems to accept that even before the enactment of the proviso to s 5, a colonial manner and form provision was capable 88 Cf Campbell, above n 27, 57. 89 It is not possible to argue that the proviso was not intended to empower the colonial legislatures to entrench their laws when the proviso specifically requires compliance with manner and form prescribed by a ‘colonial law’. Cf Twomey, above n 27, 274. 90 Cited in D. P. O’Connell and A. Riordan, Opinions on Imperial Constitutional Law (Melbourne: Law Book Company, 1971), Opinion No 181 of 13 May 1863, 66. 91 Ibid, by Atherton and Palmer. 92 Ibid.

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of binding future parliaments. After observing that the Electoral Act was open to question, they referred to: the great inconvenience of imposing such restrictions on the legislative action of provincial Assemblies as well as of the omission to observe in the passing of Acts conditions which, whether expedient or not, can so easily be fulfilled. The Legislature has obtained (at most) conditional power, and such power can only, in our opinion, be properly exercised on compliance with the conditions.

And later they observed: ‘it would appear to us to be inadvisable to make the validity of Acts of particular descriptions dependent upon particular majorities, though it may be proper to provide that Bills of certain descriptions shall be preserved for signification of the Royal Assent.’93 A second opinion94 provided by Messrs Palmer and Collier in September 1864, which prompted the enactment of the CLVA, dealt with related issues following the decision of the Supreme Court of South Australia in Auld v Murray. This opinion confirmed the view that non-compliance with a special majority requirement renders the law invalid: ‘such majorities are a conditio sine qua non to its exercise’.95 In their view, indeed the whole Act was invalid, not just the specific provisions which were required to be passed by the special majority.96 Their reasoning in distinguishing this situation from repugnancy – which only invalidates the inconsistent provisions – is not persuasive. The drafting of s 5 of the CLVA derives directly from the wording of paragraph 5 of this opinion which recommended ‘it will be very expedient to pass an Imperial Act for the purpose of empowering the Legislature of [South Australia] (and of any other Colonies or Colony which may be in like circumstances) to alter its own constitution’ (emphasis added; that is, the constitution of the Legislature). The High Court has held that the qualifications of members of parliament or even of electors (at least where these are included in the former) are not regarded as part of the ‘constitution’ of a legislature. In Clydesdale v Hughes,97 the Court concluded without explanation that a change to the grounds of disqualification of members of parliament is not a change in the constitution of a House. This view was affirmed in obiter in Western Australia v Wilsmore98 by Wilson J (with whom Gibbs CJ, Stephen and Mason JJ agreed).99 The rationale for that view may be found in the dissenting judgment of Wallace J in the WA Full Court before the 93 Ibid. 94 One issue was whether the Colonial Registration Act (SA) was saved by the Imperial Statute 26 & 27 Vict c 84 which validated local laws enacted ‘with the object of’ altering the constitution of the Legislature. The opinion of the Law Officers (para 5) rejected the view that, by altering the land registration system and so affecting the franchise, that Act had altered the constitution of the Legislature only inadvertently and so was not validated. In their view, no relevant alteration occurred. 95 O’Connell and Riordan, above n 90, Opinion No 275 of 28 September 1864, 671, para 4. 96 Ibid para 3. 97 (1934) 51 CLR 518 in the joint judgment of Rich, Dixon and McTiernan JJ at 528. 98 (1982) 149 CLR 79 at 102. 99 See also Attorney-General for Western Australia (Ex rel Burke) v State of Western Australia [1982] WAR 241. Cf the contrary view taken by Wickham J (with whom Smith J agreed) in Wilsmore v State of Western Australia [1981] WAR 159 at 164 that a change in the qualification or disqualification of electors and members is a change in the constitution of the Houses, relying on Stawell CJ in Kenny v Chapman (1861) 1 W & W 93 at 100, and O’Brien J in McDonald v Cain [1953] VLR 411 at 441. Wallace J at 170 doubted this view.

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High Court appeal where his Honour adapted a description of a ‘constitution’ of a House, given by Isaacs and Rich JJ in McCawley v R,100 to mean ‘the charter and rules by which either House exists as an entity and is regulated’.101 An alternative basis might be that suggested by Burt CJ (with whom Wallace J specifically agreed)102 in Attorney-General for Western Australia (Ex rel Burke) v State of Western Australia,103 namely, that it refers merely to the number of members to be elected to each House from defined electoral districts. Clydesdale v Hughes104 was cited by the joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ in Attorney-General (WA) v Marquet105 in warning that ‘not every matter which touches the election of members of a parliament is a matter affecting the Parliament’s constitution’.106 Twomey suggests that this leaves open whether the provisions relating to the qualifications of voters, compulsory voting and the length of parliamentary terms satisfy the s 6 characterisation test.107 In Marquet, however, two electoral Bills were characterised within s 6. In that case, the Clerk of the Parliament of Western Australia sought declarations in the Western Australian Supreme Court whether it was lawful for him to present to the Governor for royal assent the Electoral Distribution Repeal Bill 2001 and the Electoral Amendment Bill 2001, which were passed by only a simple majority in the Legislative Council. The first Bill purported to repeal the Electoral Distribution Act 1947 (WA) while the second Bill purported to provide for an electoral system in an amended form to that previously in place under the 1947 Act. Two Bills were introduced to avoid having to comply with the manner and form in s 13 of the 1947 Act which required passage through both Houses by an absolute majority of any Bill to ‘amend’ that Act: It shall not be lawful to present to the Governor for Her Majesty’s assent any Bill to amend this Act, unless the second and third readings of such Bill shall have been passed with the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Council and the Legislative Assembly respectively.

Nevertheless, the High Court by a majority interpreted s 13 to encompass Bills which purport to change the 1947 Act by amending or repealing it108 and concluded that, by virtue of s 6 of the Australia Act 1986 (Cth), s 13 of the 1947 Act prescribed a binding manner and form requirement that both Bills be passed by an absolute majority in each House. Both Bills were found to satisfy the characterisation test in s 6 as laws respecting the ‘constitution’ of the Western Australian Parliament. The joint judgment109 observed that ‘[t]he “constitution” of a State 100 (1918) 26 CLR 9 at 51. 101 [1981] WAR 159 at 170. 102 [1982] WAR 241 at 247. 103 Ibid 244–5. 104 (1934) 51 CLR 518 in the joint judgment of Rich, Dixon and McTiernan JJ at 528. 105 (2003) 217 CLR 545. 106 Ibid [77]. 107 Twomey, above n 27, 279. See also her Comment, ‘Manner and Form Limitations on the Power to Amend State Constitution’ (2004) 15 Public Law Review 169, 185. 108 Attorney-General (WA) v Marquet (2003) 217 CLR 545 in the joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ at [51–2]; Callinan J at [274]; Kirby J dissented at [123]. 109 Gleeson CJ, Gummow, Hayne and Heydon JJ.

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parliament includes (perhaps it is confined to) its own “nature and composition’” – citing Dixon J from Attorney-General (NSW) v Trethowan.110 The nature and composition of the Western Australian Parliament was described as bicameral and representative. Thus, a law which related to the representative nature of the Houses was one relating to its constitution. Accordingly, since the first Bill repealed the existing electoral boundaries, while the second Bill provided new rules for drawing replacement electoral boundaries, decreased the tolerance percentage, and increased the number of seats in the Legislative Council – both Bills concerned laws respecting the constitution of parliament. Callinan J characterised the Bills at the core of the nature and composition of the legislature.111 While unnecessary to his decision (as he found s 13 did not prevent repeal of the 1947 Act), Kirby J interpreted ‘constitution’ more narrowly than the majority in confining it to the ‘fundamental provisions affecting the design and institutional composition of the legislature . . . [its] framework and basic structure . . . not concerned with matters of detail such as individual membership of a parliamentary chamber or elections.’112 He found that both the 1947 Act and the 2001 Bills failed the characterisation test; the former under the proviso to s 5 of the CLVA113 and the latter under s 6 of the Australia Acts.114 Strictly, it was unnecessary to characterise the 1947 Act, and in so doing his Honour115 appears to have fallen into the same trap as others in the past.116 Only mandatory manner and form requirements are binding A law challenged under s 6 is only invalid if it has failed to comply with one or more mandatory requirements of a manner and form provision, that is, those requirements the fulfilment of which is intended by parliament to be essential for validity. Non-compliance with a directory requirement is intended to have no effect on the validity of the law. Most manner and form requirements are mandatory if their purpose is to curtail the exercise of legislative power. Yet the more complex they are, the greater the likelihood that certain requirements are optional or directory.117 This has been found in the complex provisions designed 110 (1931) 44 CLR 394 at 429. 111 Attorney-General (WA) v Marquet (2003) 217 CLR 545 at [291]. 112 Ibid [197]. 113 Ibid [198]. 114 Ibid [212–13]. 115 At [195] his Honour correctly refers to the need to characterise the amending Bills, but then focuses on the 1947 Act. 116 Kirby J, with respect, appears to be confused about the relationship between the proviso to s 5 of the CLVA and s 6 of the Australia Acts. At [196–7] his Honour characterised s 13 within the proviso to s 5 of the CLVA because it was enacted before 1986. But as the majority approach shows, only the 2001 Bills needed to be characterised within s 6, since the binding effect of s 13 on those Bills depended on its effectiveness under s 6, rather than the proviso to s 5. His conclusion that ‘the powers of “entrenchment” afforded by the proviso to s 5 of the CLVA did not extend to the entrenchment of s 13’ at [201] fails, with respect, to address the issue of entrenchment at the crucial time when Bills are proposed, not when the manner and form is enacted. 117 Although the High Court in Project Blue Sky v ABA (1998) 194 CLR 353 per Brennan CJ at 374–5 and per McHugh, Gummow, Kirby and Hayne JJ at 390 disapproved of the ‘elusive distinction between mandatory and directory requirements’ (quoting Gummow J from Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119 at 146), it is submitted that these terms remain useful descriptions of requirements which respectively are intended to be complied with for validity and those which are not so intended. Significantly though, the Court rejected the view that invalidity could result even if there is no substantial compliance of a directory requirement.

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to resolve deadlocks between the Houses of a bicameral parliament. For instance, Clayton v Heffron118 concerned an attempt by members of the Legislative Council of New South Wales to prevent a Bill to abolish that House from being submitted to a referendum pursuant to s 5B of the Constitution Act 1902 (NSW). Section 5B resolves a deadlock between the two Houses by ultimately allowing a Bill to receive royal assent without being passed by the Legislative Council. It requires a Bill to proceed through the following legislative stages (described here in summary form): (1) the Bill must be rejected twice by the Legislative Council; (2) a free conference is called between the managers of each House at which no agreement is reached; (3) a joint sitting of both Houses is convened by the Governor, not to vote on the Bill but simply to deliberate upon it; (4) if no agreement is reached at the joint sitting, the Bill can then be submitted to a referendum; and (5) if approved by referendum, the Bill can be presented to the Governor for royal assent. The High Court rejected the argument that the Bill, if enacted, would be invalid for non-compliance with requirement (2). The Legislative Assembly had sent the appropriate message to the Legislative Council requesting a free conference but the Council resolved that there was no basis for holding one. In the joint judgment of Dixon CJ, McTiernan, Taylor and Windeyer JJ, the distinction was made between mandatory requirements non-compliance with which spells invalidity for the Act, and other requirements of a directory nature which are not intended to have that effect: There is no doubt that the words ‘after a free conference between managers’ contain an implied direction that such a conference shall take place. In the same way the words relating to the joint sitting of members of the Houses import an intention that the Governor shall then exercise the authority to convene a joint sitting of members. But it is an entirely different thing to find in the direction an intention that a departure from the procedure shall spell invalidity in the statute when it is passed approved and assented to. In this case there are two matters with which we are dealing: the legislative power and the procedure for its exercise. The principles of the common law distinguished sharply between invalid attempts to exercise a legislative power and departures from the prescribed course for its exercise which may not or do not bring invalidity as a necessary consequence. In the end the distinction must be governed by the intention expressed by the legislation conferring the power and prescribing the steps to be taken in the course of its exercise. But commonly no express declaration is to be found in a statutory power as to the effect on validity of departures from the procedure laid down. The question is then determined by reference to the nature of the power conferred, the consequences which flow from its exercise, the character and purpose of the procedure prescribed.119 118 (1960) 105 CLR 214.

119 Ibid 246.

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The requirement of a free conference was held not to be mandatory for two principal reasons: first, the ease with which such a conference could be aborted by the same non-cooperative attitude on the part of the Legislative Council which necessitated reliance on s 5B in the first place; and second, the drastic consequences for the public interest and the stability of government if the proposed law was held invalid.120 Even where a requirement is mandatory, judicial review may be confined to checking its basic compliance without going any further. In BHP v Dagi, a majority of the Victorian Court of Appeal refused to review the adequacy of a statement of reasons required to be given under s 85(5)(b) of the Constitution Act 1975 (Vic) by a member who introduces into Parliament a Bill which indirectly amends or repeals the jurisdiction of the Supreme Court.121 Such a statement was mandatory but the adequacy of the reasons given was not reviewable.122 Finally, it should be noted that despite judicial reticence in reviewing parliamentary proceedings, lest they tread on parliamentary privilege, there is no impediment to reviewing parliamentary compliance with the requirements of a manner and form provision, such as a special majority in a House. In such cases, the Court is merely ascertaining whether certain events occurred within the House and is not questioning what occurred there.123 On the other hand, judicial review is excluded if provision is made for a conclusive certificate to be issued by the Speaker or other official, certifying that the requirements of the manner and form have been satisfied.124 This is so, at least in respect of those requirements which occur within the course of parliamentary proceedings.125 A manner and form requirement must relate to the legislative process Section 6 of the Australia Acts 1986, as did the proviso to s 5 of the CLVA, only enforces manner and form requirements so far as they regulate the enactment of legislation through parliament. Section 6 refers to ‘a law made . . . by the Parliament of a State’, while the proviso to s 5 of the CLVA referred to a law ‘passed’. Accordingly, s 6 cannot be used to enforce manner and form requirements in relation to the making of delegated legislation or other activities of the Executive. This point is well illustrated by Comalco’s case126 which concerned a challenge to the validity of the Mining Royalties Act 1974 (Qld) and its regulations to the extent that they prescribed royalty rates higher than those agreed between Comalco and the Queensland Government for the mining of bauxite at Weipa. Clause 3 of their formal agreement provided: 120 Ibid. 121 [1996] 2 VR 117, at 189 per Phillips JA (with whom Brooking JA agreed), at 207 per Hayne JA; cf Tadgell JA at 161–2. 122 The adequacy of the reasons given is no doubt left to the judgment of the parliament. 123 See, for example, Attorney-General (NSW) v Trethowan (Trethowan’s case) (1931) 44 CLR 394; Clayton v Heffron (1960) 105 CLR 214 at 454. 124 See, for example, Constitution Act 1975 (Vic) s 65(8): ‘The certificate of the Speaker under this section is conclusive evidence for all purposes and cannot be questioned in any court.’ 125 See Enid Campbell, Parliamentary Privilege (Sydney: Federation Press, 2003) 119–22. 126 [1976] Qd R 231.

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This Agreement may be varied pursuant to agreement between the Minister and the Company with the approval of the Governor in Council by Order in Council and no provision of this Agreement shall be varied nor shall the powers and rights of the company hereunder be derogated from except in such manner.

That agreement was authorised by the Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Qld), ss 3 and 4 of which provided: (3) Upon the making of the Agreement the provisions thereof shall have the force of law as though the Agreement were an enactment of this Act. The Governor in Council shall by Proclamation notify the date of the making of the Agreement. (4) The Agreement may be varied pursuant to agreement between the Minister for the time being administering this Act and the Company with the approval of the Governor in Council by Order in [C]ouncil and no provision of the Agreement shall be varied nor the powers and rights of the company under the Agreement be derogated from except in such manner. Any purported alteration of the Agreement not made and approved in such manner shall be void and of no legal effect whatsoever.

Comalco’s challenge to the validity of the 1974 Act and Regulations to the extent that they imposed royalty rates without the company’s consent was based on their failure to comply with s 4 of the 1957 Act as a binding manner and form provision. A majority of the Full Court comprising Wanstall SPJ and Dunn J rejected Comalco’s argument for different reasons. Wanstall SPJ found s 4 of the 1957 Act to be no bar to the 1974 Act on two grounds: (i) s 4 was invalid since it purported to deny Parliament the legislative power to vary the agreement, vesting this power solely in the Executive and Comalco in breach of the principle of In re The Initiative and Referendum Act127 that a legislature cannot ‘create and endow with its own capacity a new legislative power not created by the Act to which it owes its existence’;128 and (ii) s 4 was not a manner and form provision within the contemplation of the proviso to s 5. The proviso ‘is concerned with the use and operation of the legislative process and nothing else’, whereas s 4 of the 1957 Act conferred a power on the Executive and denied Parliament the power of variation. His Honour interpreted ‘passed’ in the proviso to indicate that manner and form provisions related to the enactment of future legislation through the legislative process, and that although s 3 of the 1957 Act conferred on any variation of the agreement the force of law, this was not within the contemplation of the proviso.129

Dunn J rejected Comalco’s challenge to the 1974 Act and Regulations by adopting a different and preferable interpretation of s 4 of the 1957 Act, namely, that it was only a restriction on the power of the Executive (not of parliament) to vary the agreement without Comalco’s consent. It was not a manner and form provision at all because it did not purport to regulate parliament in any respect.130 In dissent, Hoare J directly tackled this point and, unlike Wanstall SPJ, was prepared to extend the operation of the proviso to cover manner and form requirements 127 [1919] AC 935.

128 Ibid 945.

129 [1976] Qd R 231 at 236–7.

130 Ibid 260.

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prescribed for law-making by the Executive.131 His Honour interpreted the proviso, laws ‘passed’, to mean laws ‘made’ whether by parliament or by the Executive in exercise of delegated power.132 With respect, the view of Wanstall SPJ that the proviso to s 5 was confined to manner and form which regulated the enactment of laws by parliament, is clearly the correct interpretation. Enacted 10 years after Comalco’s case, s 6 has made it perfectly clear that it only enforces manner and form requirements which regulate law-making by parliament. Even where the manner and form provision purports to regulate the enactment of legislation, there remains an issue under s 6 as to how far the process of enactment can be regulated. What limits (if any) are there on the nature of the requirements able to be imposed under s 6? Do the requirements have to form part of the parliamentary process? For example, must the Bill be passed by an absolute or special majority, submitted to a joint conference, or include prescribed words? Apart from requirements to reserve Bills for the Queen’s assent and for tabling before both Houses of the Imperial Parliament, the only requirement so far approved which falls outside the normal parliamentary process is that of a referendum of the electorate.133 This was established in Attorney-General (NSW) v Trethowan.134 In that case,135 s 7A of the Constitution Act 1902 (NSW) provided that the Legislative Council could not be abolished nor could its constitution or powers be altered except by a Bill which was passed by both Houses and approved by the electors at a referendum. Section 7A(6) doubly entrenched this requirement. A majority of the High Court136 and the Privy Council137 upheld the binding effect of s 7A as a manner and form provision. The requirement of holding a referendum, although it stood outside the internal process of passing Bills through the legislature, was nevertheless a valid manner and form requirement. In rejecting the argument that a referendum was not a valid requirement, Rich J expressed the position rather widely: In my opinion the proviso to s 5 [of the CLVA] relates to the entire process of turning a proposed law into a legislative enactment, and was intended to enjoin fulfilment of every condition and compliance with every requirement which existing legislation imposed upon the process of law-making.138

131 Ibid 249. 132 His Honour relied on comments made in Attorney-General (NSW) v Trethowan (1931) 44 CLR 394 by Rich J at 418–19 and Dixon J at 431–2 and on certain comments by Fullagar J in Clayton v Heffron (1960) 105 CLR 214 at 255. But none of these authorities necessarily supports his Honour’s view as the comments relied on concerned the point that since manner and form requirements are not limited to matters of parliamentary procedure, a referendum is a valid requirement. They were not directing their attention to whether the proviso regulated the creation of law by the Executive. Indeed, their comments appear to be made only on the basis that the law is made by parliament. 133 See Attorney-General (NSW) v Trethowan (1931) 44 CLR 394 per Rich J at 419 and per Dixon J at 432. 134 (1931) 44 CLR 394. Dixon J referred at 432 to a referendum requirement as a ‘manner’ provision. 135 Ibid. 136 Rich, Starke and Dixon JJ; Gavan Duffy CJ and McTiernan J dissented. 137 [1932] AC 526. 138 (1931) 44 CLR 394 at 419.

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Dixon J also expressed a wide view: The more natural, the wider and the more generally accepted meaning includes within the proviso all the conditions which the Imperial Parliament or that of the self-governing State or Colony may see fit to prescribe as essential to the enactment of a valid law.139

The argument was rejected by the majority140 of the High Court that by referring in the proviso to laws ‘passed in such manner and form’, the manner and form requirements had to relate to the passage of Bills through the legislature.141 Instead, the proviso was interpreted as referring to laws ‘made’ by the legislature. Obviously, this interpretation was adopted in drafting s 6 of the Australia Acts which refers to laws ‘made’. Yet, the fairly unrestricted nature of the requirements contemplated in that case occurred in the context of a challenge to a referendum requirement – a classic mechanism of entrenchment. Their comments should not be taken too far. It is clear from the final prerequisite below that parliament cannot purport to subject its legislative power to the consent of any extra-parliamentary body other than the electorate. A manner and form requirement must not purport to abdicate legislative power A distinction must be drawn between a manner and form provision that regulates the procedure by which future legislation is enacted, that is, the law-making process, and a provision which purports to deprive parliament of the power of law-making.142 The latter provision may be one which either intends to deprive parliament of one of its powers, or has that effect in practice. Examples of the former include a provision which prohibits any repeal of the law forever or for a number of years,143 or a provision which confers on the Governor-in-Council sole power to amend certain legislation by issuing Orders in Council.144 An example of a provision which in practice has the effect of denying parliament one of its powers is one which requires a Bill to be approved by a very high percentage of the electorate at a referendum before being presented for royal assent.145 A similar problem may arise with a special majority requirement where it becomes a question of degree whether parliament is abdicating its power.146 These examples fall outside the contemplation of s 6 since none regulates the manner and form of future legislation. Also, they are probably invalid on the basis 139 Ibid 432–3. 140 Ibid, Rich J at 418–19, Dixon J at 432, Starke J did not comment on this issue; the argument was accepted by Gavan Duffy CJ at 412 and McTiernan J at 444 in dissent. Both Gavan Duffy CJ and McTiernan J rejected a referendum as a manner and form provision for it deprived parliament of its power. 141 Ibid 432. 142 See King CJ in West Lakes Case (1980) 25 SASR 389 at 397. 143 See J. Spedding, R. L. Ellis and D. D. Heath, The Works of Francis Bacon (Vol VII, London: Spottiswoode and Company, 1859) 370. 144 See Comalco’s case where Wanstall SPJ interpreted s 4 of the 1957 Act in this way. 145 Lumb, above n 47, 131 referred to 90%, but any percentage above 50% might be suspect. See Friedmann, above n 12, 105–6; Joseph, above n 47. 146 See Goldsworthy, above n 26, 420–2; West Lakes Ltd v South Australia (1980) 25 SASR 389 per King CJ at 397; Queensland Constitutional Review Commission (QCRC), Report on the Possible Reform and Changes to the Acts and Laws that Relate to the Queensland Constitution (2000).

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of the well-established principle that parliament cannot purport to abdicate any of its powers.147 This principle was established in a series of cases148 concerned with the capacity of a colonial or State parliament to delegate one or more of its powers to the Executive.149 The Privy Council recognised that a grant of power to make laws for the peace, order and good government of a colony or State was a grant of plenary power subject only to any specific restrictions imposed by the Imperial Parliament. Accordingly, as colonial and State legislatures were not mere delegates of the Imperial Parliament, they possessed the capacity to delegate one or more of their powers to the Executive provided they did not abdicate their powers. The test adopted by the Privy Council as to whether an abdication of power occurred was simply whether parliament always retains the capacity to revoke the delegation and recall its power. In Cobb and Co Ltd v Kropp,150 the Privy Council upheld Queensland’s transport legislation which authorised the Commissioner for Transport to fix and impose licence fees. No abdication of power occurred because: [The Queensland Legislature] preserved their own capacity intact and they retained perfect control over the Commissioner for Transport insomuch as they could at any time repeal the legislation and withdraw such authority and discretion as they had vested in him.151

Two further types of restriction on the formulation of manner and form requirements need to be considered here. Both prevent parliament from purporting to abdicate its legislative power in other ways. The first is that parliament cannot divest its law-making function to an outside body (that is, create an entirely new process of law-making which exists apart from its own legislative process); while the second is a variation on that which prevents parliament from subjecting the exercise of its power to the consent of some outside body. The first restriction prevents parliament from divesting the enactment of law to some other body, such as a chamber of commerce or a union. The principle relied on here is that articulated by the Privy Council in In re The Initiative and Referendum Act,152 that a legislature cannot ‘create and endow with its own capacity a new legislative power not created by the Act to which it owes its existence’.153 Although parliament can delegate its powers to subordinate 147 In Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 265 the joint judgment of Mason CJ, Dawson and McHugh JJ expressed the view that ‘[t]here are very considerable difficulties in the concept of an unconstitutional abdication of power by Parliament. So long as Parliament retains the power to repeal or amend the authority which it confers upon another body to make laws with respect to a head or heads of legislative power entrusted to the Parliament, it is not easy to see how the conferral of that authority amounts to an abdication of power.’ 148 Reg v Burah (1878) 3 App Cas 889; Hodge v The Queen (1883) 9 App Cas 117; and Powell v Apollo Candle Co Ltd (1885) 10 App Cas 282. 149 Whether Parliament purports to abdicate its power does not depend on whether the relevant provision is doubly entrenched, it merely depends on whether the provision itself intends to have that effect. 150 [1967] AC 141. 151 Ibid 156. 152 [1919] AC 935. 153 Ibid 945. In that case, the Privy Council held invalid The Initiative and Referendum Act (Manitoba) which allowed proposed laws to be initiated by a percentage of electors and then enacted into law simply on majority approval at a referendum. This process of law-making was held invalid because it dispensed with the Governor’s assent.

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agencies ‘ while preserving its own capacity intact’,154 it cannot delegate to a body outside the constitutional framework. A manner and form provision which confers on such a body the power of future enactment will be invalid for infringing this principle. No infringement of this principle occurs, though, where parliament otherwise validly reconstitutes itself, for instance by abolishing one of its Houses as occurred in Queensland in 1921. The second restriction is that parliament cannot subject the exercise of its legislative power to the consent of some outside body. Where consent of such a body is statutorily prescribed, care must be taken to check whether this requirement purports to restrict the exercise of legislative power or if it is directed merely to the exercise of executive power. Obviously, only the former involves a manner and form issue. This distinction is highlighted by comparing Comalco’s case155 and West Lakes case156 where the restriction was held to be directed to the parliament in the former and to the Executive in the latter. In Comalco’s case, s 4 of the 1957 Act stipulated that any variation to the agreement in the schedule to the Act required the consent of Comalco and the relevant Minister and was to be given effect by the Governor-in-Council. Only Dunn J interpreted s 4 as merely restricting the power of the Executive, not the parliament, to vary the agreement.157 Both Wanstall SPJ and Hoare J (in dissent) interpreted s 4 as depriving parliament of its power to vary the agreement. Wanstall SPJ observed: . . . to the extent to which [s 4] purports to restrain the Legislature from enacting legislation effecting a variation without agreement of the plaintiff it is plainly invalid, unless it could be construed as a manner and form provision. But it overstrains the latter concept to include in it a provision which touches the Legislature only by impliedly depriving it of legislative power on the subject matter of the agreement. The nettle that must ultimately be grasped by the argument is its logical conclusion that, by s 4, Parliament has set up a body with legislative power, the power of amending an agreement having the force of a law enacted by Parliament, and to do so to the exclusion of Parliament which cannot take the matter of variation directly into its own hands. Thus would the Queensland Legislature ‘create and endow with its own capacity a new legislative power not created by the act to which it owes its existence’. (In re The Initiative and Referendum Act [1919] AC 935, 945; Cobb and Co Ltd v Kropp [1967] 1 AC 141, 157). I would hold invalid an enactment purporting to do that. (Cf The Queen v Burah (1878) 3 App Cas 889, 905 PC)158

It is not entirely clear why his Honour applied the principle from In re The Initiative and Referendum Act for it would have been more appropriate to rely on the distinction between a provision which regulates and one which deprives parliament of its law-making powers. Yet earlier in his judgment, Wanstall SPJ referred to the principle of Cobb & Co Ltd v Kropp and how s 4 appeared to infringe this principle, for parliament had delegated the power of varying the agreement to the company and the Executive without retaining ‘. . . intact its own power to 154 Ibid. 155 [1976] Qd R 231. 156 (1980) 25 SASR 389. 157 [1976] Qd R 231 at 260. 158 Ibid 236–7.

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withdraw or to alter the authority it has conferred upon its agent . . .’159 He rejected the argument that parliament’s right to disallow any Order in Council giving effect to a variation of the agreement prevented any abdication of power occurring.160 Nonetheless, it is difficult to see how parliament lost its power to revoke the delegation of power when s 4 was only singly entrenched and so could be repealed by an ordinary Act of parliament. Although Hoare J agreed with Wanstall SPJ’s interpretation of s 4, his Honour concluded that an abdication of power by parliament was avoided after taking into account the general purpose of the 1957 Act, the arbitration provisions, and parliament’s power of veto in s 5(4) of the Act.161 In West Lakes case, the statutory provision which prevented any variation of the development agreement without the consent of West Lakes Limited was interpreted by the Full Court of South Australia as not intended to deprive parliament of its power of variation, but merely to restrict the capacity of the Executive to vary the agreement unilaterally. King CJ discussed the need to distinguish between provisions which prescribe the manner and form for the exercise of power and those which deprive parliament of power. The Chief Justice identified particular difficulties with certain kinds of requirements: ● a special majority requirement for the passage of proposed legislation through parliament may reach: ‘a point at which [such a] provision would appear as an attempt to deprive the parliament of powers rather than as a measure to prescribe the manner or form of their exercise. This point might be reached more quickly where the legislative topic which is the subject of the requirement is not a fundamental constitutional provision’;162 and ● extra-parliamentary requirements such as a ‘. . . provision requiring the consent to legislation of a certain kind, of an entity not forming part of the legislative structure (including in that structure the people whom the members of the legislature represent)’ which, in his Honour’s view, did not ‘prescribe a manner or form of law-making, but rather amounts to a renunciation pro tanto of the law-making power. Such a provision relates to the substance of the law-making power, not to the manner or form of its exercise’.163 Since Attorney-General (NSW) v Trethowan,164 it is clear that the only valid extraparliamentary consent to which the legislature can be subject is that of the electorate. King CJ also recognised this.165 Requiring the consent of any other body constitutes an abdication of power. At what point a special majority requirement for the passage of legislation also constitutes an abdication of legislative power, is difficult to define.166 159 Ibid 236. 160 Ibid. 161 Ibid 249–50. 162 (1980) 25 SASR 389 at 397. 163 Ibid 398. 164 (1931) 44 CLR 394 – see especially Rich J at 42, Dixon J at 432; contra Gavan Duffy CJ at 414. 165 West Lakes Ltd v South Australia (1980) 25 SASR 389 at 398. 166 See Comment by Carolyn Evans, ‘Entrenching Constitutional Reform in Victoria’ (2003) 14 Public Law Review 133, 134–5.

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6.4.1.2 Conclusion on section 6 The above five prerequisites for s 6 of the Australia Acts provide a framework for determining the binding effect of any purported entrenchment of State legislation by manner and form. If one of the three latter prerequisites is not satisfied, the entrenchment is ineffective. But if it is only the second prerequisite which fails – that is, the impugned law is not a law respecting the constitution, powers or procedure of the State parliament – then consideration needs to be given as to whether the manner and form requirements are binding on grounds outside s 6 of the Australia Acts.

6.4.2 Grounds outside section 6 Australia Acts 1986 The need to consider whether a manner and form provision can be binding outside s 6 arises in those cases where s 6 is inapplicable because the law under challenge for non-compliance is unable to be characterised as a law respecting the constitution, powers or procedure of parliament. This characterisation requirement severely limits the applicability of s 6. Thus, in those cases where s 6 is inapplicable, reliance is often sought in alternative legal grounds. There is, though, little judicial authority in Australia on the capacity of a State parliament to bind itself by manner and form provisions outside s 6. Three potential grounds have been referred to in dicta: the reconstituted legislature argument; the principle of Bribery Commissioner v Ranasinghe; and s 106 of the Commonwealth Constitution. In view of certain dicta167 in Marquet, none of these appears likely to gain the support of a majority of the current High Court. But if any do, it is clear that the latter three prerequisites (c), (d) and (e) suggested earlier in relation to s 6, apply equally to these alternative grounds. Still, two of the potential grounds above, the Ranasinghe principle and s 106, also require the manner and form provision to be part of the ‘State Constitution’. 6.4.2.1 Pre-CLVA position Before considering the three potential alternate grounds to s 6 of the Australia Act, it is pertinent to consider the capacity of the colonial legislatures to entrench legislation prior to the enactment of the proviso to s 5 of the CLVA in 1865. Early forms of manner and form appeared in Imperial Acts which required colonial Bills to be reserved for the Sovereign’s assent or to be laid before each House of the Imperial Parliament. For instance, they appeared in the first Constitution Acts of New South Wales and South Australia. The Constitution Act 1855 (NSW) prescribed special requirements in ss 15 and 36. For Bills which altered the number or apportionment of members in the Legislative Assembly, s 15 required the second and third readings of the Bill to be passed by a majority of the Legislative Council and by a two-thirds majority of the Legislative Assembly, and for 167 Attorney-General (WA) v Marquet (2003) 217 CLR 545 at [80] per joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ, and at [215] per Kirby J.

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assent to be given only on an address from the Assembly confirming that these requirements were satisfied. For Bills altering ‘provisions or laws . . . concerning the Legislative Council’, s 36 required the second and third readings of the Bill to be passed by a two-thirds majority in both Houses, for the Bill to be reserved for Her Majesty’s assent, and then laid before both Houses of the Imperial Parliament for 30 days before assent was given. As these manner and form requirements were not doubly entrenched, they were repealed in 1857 by ordinary New South Wales legislation.168 Section 34 of the South Australian Constitution Act 1856 (SA) required any Bill providing for ‘an alteration in the Constitution of the said Legislative Council or House of Assembly’ to be passed at the second and third reading by an absolute majority in each House, and to be reserved for Her Majesty’s pleasure. During the Boothby crisis in South Australia in the 1860s, the Law Officers of the Crown were of the view that a failure to comply with a special majority requirement invalidated colonial legislation.169 They also regarded statutory changes to the electoral system – such as alterations to the electoral boundaries and the number of members returned – constituted an alteration to the constitution of the legislature within s 34.170 This was also the view of Mr Justice Boothby in Driffield v Registrar-General171 in holding the Colonial Registration Act (SA) invalid for failing to be passed by absolute majorities under s 34. That Act was held to affect the ‘constitution’ of the Houses to the extent that it affected the qualification of electors. This occurred because the Act replaced the old land title system by making registration of land compulsory under the Real Property Act 1860 (SA), and thereby incidentally affected the qualification of electors who were required to own a certain area of land under the old system of land title. An Imperial Act (26 & 27 Vic c 84) to confirm the validity of these changes to the Constitution was subsequently held by Boothby and Gwynne JJ in Re Ware; Ex parte Bayne not to save the Colonial Registration Act (SA) since it was not passed with the object of altering the constitution of the Legislature. While the Law Officers accepted that an alteration to the qualifications of electors altered the ‘constitution’ of the Legislature, they regarded the Colonial Registration Act (SA) as validated by the Imperial Act.172 More serious concerns were raised by an earlier opinion of the Law Officers of 13 May 1863 (Atherton and Palmer) which concluded that s 34 of the Constitution Act 1855 (SA) was ultra vires the power of the South Australian Parliament because the Legislative Council which enacted that Act had no power to alter its own Constitution and therefore, had no power to vest such a power in the new 168 20 Vic No 10 (1857) (NSW) ss 1 and 2. For the historical background to these provisions, see Twomey, above n 27, 269–70. 169 See O’Connell and Riordan, above n 90, Opinion dated 28 September 1864, 71, para 3. The Opinion dated 13 May 1863, 67 was more guarded, expressing the view that the validity of the Electoral Act 1861 (SA) was ‘open to question’ for failing to be passed by absolute majorities. 170 Ibid, 72, para 5; and Opinion dated 13 May 1863, 67. 171 Cited in Swinfen, above n 87. 172 O’Connell and Riordan, above n 90, Opinion dated 28 September 1864, 72, para 5.

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bicameral legislature.173 Also at this time, Boothby J in Auld v Murray174 went too far by even suggesting that the Constitution Act 1855 had been repealed by an Act No 10 of 1856. With mounting public concern, the Law Officers in 1864 recommended urgent imperial legislation to clearly empower the South Australian Parliament and all other representative legislatures to alter their own Constitution.175 The CLVA was passed with that principal objective and came into effect on 29 June 1865. It is clear from this brief historical background that the confinement of the proviso to s 5 of the CLVA to laws respecting the constitution, powers or procedure of [representative] legislatures simply followed the confirmation of the constituent power and reflected the fact that until then all manner and form requirements concerned the legislative process. No attempt had been made to entrench provisions respecting the executive or judicial branches since the new colonial Constitutions at that time made little reference to them. The proviso reflected the view of the Law Officers that restrictions on the legislative process such as special majorities, tabling and reservation requirements, were intended to be binding. Their opinions do not address the constitutional basis for this view in any depth. They were probably only considering imperially prescribed manner and form requirements. One opinion noted that ‘[t]he Legislature has obtained (at most) conditional power, and such power can only, in our opinion, be properly exercised on compliance with the conditions.’176 The proviso to s 5, on the other hand, did at least confirm the capacity of colonial legislatures to entrench by manner and form – a capacity which would have aroused considerable debate in the absence of the proviso. 6.4.2.2 Alternative grounds The capacity to entrench provisions relating to matters other than the constitution, powers or procedure of the legislature, depends on the existence of paramount legal grounds outside s 6 which were not abrogated by the CLVA or the Australia Acts. If the proviso to s 5 or s 6 was intended to codify exhaustively the capacity of the State legislatures to entrench their legislation, there is no point in considering alternative legal grounds. It is unclear, though, whether this was intended. It could be argued that in following on from the confirmation in s 5 of the constituent legislative power to make laws respecting the constitution, powers and procedure of the legislature, the proviso to s 5 of the CLVA was intended merely to confirm the capacity to entrench provisions concerning the legislature, and thereby remove any doubts arising from the judicial and extrajudicial pronouncements of Boothby J.

173 Ibid, Opinion dated 13 May 1863, 67, para 5. 174 His argument was that because Ordinance No 1 of 1851 (SA) had been repealed by an Act No 10 of 1856, the Constitution Act 1855 which had been passed pursuant to the 1851 Act was also repealed. The Law Officers described Boothby J’s reasoning as one which ‘travels in a vicious circle, and results in repugnant and absurd conclusions’: ibid, Opinion dated 28 September 1864, 73, para 6. 175 Ibid, 72 para 5. 176 Ibid, Opinion dated 13 May 1863, 67.

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Yet there are grounds to support the view that the proviso was intended to define exhaustively the capacity of colonial legislatures to entrench their legislation. First, there is the plenary nature of the continuing constituent power of the legislature – the paramount principle qualified only by the proviso. Second, the object of the CLVA was to make absolutely clear the nature and scope of all restrictions on colonial legislative power. Third, the absence of any clear judicial authority establishing a capacity to entrench before the enactment of the CLVA in 1865. Support for the first of these grounds is found in the judgment of Dixon J in Attorney-General (NSW) v Trethowan177 where his Honour viewed the proviso to s 5 as conferring a limited capacity to entrench what otherwise might have been denied by the expectation in s 5 that the constituent power be enjoyed at ‘all times’ by the legislature: [T]he proviso recognizes that the exercise of the [constituent] power may to some extent be qualified or controlled by law . . . The extent is limited to which such a law may qualify or control the power to make laws respecting the constitution, powers and procedure of the Legislature. It cannot do more than prescribe the mode in which laws respecting these matters must be made . . . Its validity cannot otherwise be affected by a prior law of that legislature. In other words no degree of rigidity greater than this can be given by the legislature to the constitution.178 (emphasis added)

On the other hand, Rich J saw in s 5 two methods of fettering the legislature’s power: by reconstituting the legislature, and by manner and form within the proviso.179 Comments by Starke J can also be interpreted to similar effect.180 But McTiernan J only recognised the latter of these, so unless the proviso to s 5 of the CLVA applied, manner and form could be avoided.181 Even if the proviso to s 5 did not intend to define exhaustively the power to entrench, the case appears stronger for s 6 of the Australia Acts which expressly operates as a qualification to the plenary conferral of power in s 2: (1) It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State that have extra-territorial operation. (2) It is hereby further declared and enacted that the legislative powers of the Parliament of each State include all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State but nothing in this subsection confers on a State any capacity that the State did not have immediately before the commencement of this Act to engage in relations with countries outside Australia.

It is submitted that ss 2 and 6 of the Australia Acts provide an exhaustive code of entrenchment. Even so, s 2 may still confer the first of the potential alternative grounds, the reconstituted legislature, so far as this ground can be relied on by the United Kingdom Parliament. Consideration is later given to the other two 177 Attorney-General (NSW) v Trethowan (1931) 44 CLR 394. 179 Ibid 418. 180 Ibid 423. 181 Ibid 444.

178 Ibid 431.

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potential grounds referred to above which, it is suggested here, cannot be relied on since the Australia Acts 1986. Reconstituted legislature This basis for the enforcement of a manner and form provision depends on the provision reconstituting or reconstructing the legislature for the purposes of enacting certain legislation. The clearest example of a reconstituted legislature is the typical manner and form provision which imposes a referendum requirement. The newly constituted legislature comprises both Houses (or one if unicameral) of the original legislature, the electorate, and the Governor. The electorate is added as if it was another chamber. Such a reconstitution is effected for the special purpose of enacting those laws for which the manner and form is prescribed. The crucial point is that this power to enact those laws now lies solely with the reconstituted legislature, the original legislature no longer possesses this power and, provided the referendum requirement is doubly entrenched, nor is it capable of recalling the power. Before considering the support which this view has in its application to the State parliaments, it is relevant to consider the extent to which this view has been embraced in relation to the United Kingdom Parliament and how it is reconcilable with the doctrine of parliamentary sovereignty and the principle it espouses that parliament cannot bind its successors. This issue arose in the debate over the Irish Home Rule Bill of 1886182 which proposed separate parliaments for Ireland and Britain. In supporting the Bill, Lord Bryce183 argued that parliament could always repeal the proposed law, relying on the sovereignty of parliament and its inability to bind itself, despite the altered composition of parliament now no longer comprising Irish members. On the other hand, Dicey and Anson, who opposed Home Rule, rejected this view. Dicey declared: ‘[N]o principle of jurisprudence is more certain than that sovereignty implies the power of abdication’.184 Similarly Anson argued: I should be disposed to combat this proposition, which lies at the root of the whole discussion. It is said that the Imperial Parliament cannot bind its successors, that what one Parliament may enact another Parliament may repudiate. But if the Irish Government Bill had become law the Parliament of 1885 would have had no successors. It met as the Parliament of the United Kingdom of Great Britain and Ireland; if the Bill had become law, that Parliament would have ceased to exist, and the assembly sitting at Westminster would have been the Parliament of Great Britain only. A repudiation of the Acts of the Parliament of 1885 by such an assembly would not have been a repeal by one Parliament of the Acts of another Parliament similarly constituted . . .185

182 Entitled ‘Government of Ireland Bill 1886’. 183 Then Under-Secretary of State for Foreign Affairs. See Hansard (17 May 1886) col 1220. 184 A. V. Dicey, England’s Case Against Home Rule (Reprint, Richmond Publishing Company, 1973) 244–5. 185 W. R. Anson, ‘The Government of Ireland Bill and the Sovereignty of Parliament’ (1886) 2 Law Quarterly Review 427.

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Sir Ivor Jennings also argued that the United Kingdom Parliament possessed the capacity to bind itself by reconstituting itself for special purposes by prescribing a referendum requirement: ‘Legal sovereignty’ is merely a name indicating that the legislature has for the time being power to make laws of any kind in the manner required by the law. That is, a rule expressed to be made by the King, ‘with the advice and consent of the Lords spiritual and temporal, and Commons in this present Parliament assembled, and by the authority of the same’, will be recognised by the courts, including a rule which alters this law itself. If this is so, the ‘legal sovereign’ may impose legal limitations upon itself, because its power to change the law includes the power to change the law affecting itself.186

Professor Wade rejected this reasoning by arguing that the authority of Acts of parliament derives from the common law, and although parliament can alter the common law, it cannot by statute alter the common law rule that demands that courts obey enactments of the parliament comprising the Queen, the Lords and the Commons. In his view, this rule is ‘an ultimate political fact’ which can only be altered by revolution.187 Dixon J in Attorney-General (NSW) v Trethowan expressed a similar view to that of Dicey and Anson in suggesting that a United Kingdom doubly entrenched statutory requirement, which required a Bill to be approved by referendum before receiving royal assent, had the force of law. Accordingly, unless this requirement was first repealed, the English courts would declare any attempt to present a Bill for royal assent without referendum approval as unlawful. If, before judicial intervention the Bill was assented to, his Honour observed that: the Courts might be called upon to consider whether the supreme legislative power in respect of the matter had in truth been exercised in the manner required for its authentic expression and by the elements in which it had come to reside. But the answer to this question, whether evident or obscure, would be deduced from the principle of parliamentary supremacy over the law.188

Certain commentators have rejected this view that one parliament can bind its successors simply by reconstituting itself.189 This dilemma as to whether a sovereign legislature can be bound by manner and form was squarely presented to the Appeal Court of South Africa in Harris and Others v Minister of the Interior190 where amendments to the South Africa Act 1909 (Imp) were challenged for not complying with s 152 of that Act which prescribed a manner and form requiring both Houses to sit and deliberate on the proposed amendments in relation to voting rights in a joint sitting and to pass them by a 186 Jennings, above n 11, 143. 187 Wade, above n 10, 186–90. What is lacking in the arguments put forward by Wade, Jennings and others is a detailed analysis of the various ways parliament may attempt to bind its successors and whether some or all of these ways are effective. Such an analysis is given by Cowen, above n 44, 295 ff. 188 (1931) 44 CLR 394 at 426. 189 See Geoffrey Sawer, ‘Injunction, Parliamentary Process, and the Restriction of Parliamentary Competence’ (1944) 60 Law Quarterly Review 83; Detmold, above n 41, 207–17; George Winterton, ‘The British Grundnorm: Parliamentary Supremacy Re-examined’ (1976) 92 Law Quarterly Review 591. 190 [1952] 2 SA 428; [1952] 1 TLR 1245.

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two-thirds majority. The CLVA no longer applied to South Africa by virtue of the Statute of Westminster. Nevertheless, while accepting the sovereignty of the South African Parliament, the Appeal Court enforced the manner and form and declared the amendments invalid because the authority to enact those amendments was vested solely in the Parliament as constituted by s 152 of the South Africa Act. In effect, the Court accepted divisible sovereignty – that parliament can be differently constituted for different purposes. Similarly in New Zealand, there is no paramount law such as s 6 of the Australia Acts which gives binding force to manner and form provisions. While the traditional view has been that legally binding entrenchment is not possible, academic support exists for the view that the New Zealand Parliament can reconstitute itself for limited purposes by referenda or special majority.191 The above discussion concerns the capacity of a sovereign parliament to bind itself by manner and form. What about State parliaments that possess only a limited plenary power? Subject to the difficulties outlined below, it is submitted that their position is not distinguishable. The Australia Acts do not preclude reliance on this ground to entrench legislation. It is clear that the State legislatures are empowered to reconstitute themselves either by their general legislative power or by s 2 of the Australia Acts. If they have the power to reconstitute for certain purposes, they must have the power to make their plenary power divisible. Support for this view is found in Trethowan’s case where Rich J recognised in s 5 of the CLVA that the constituent power and the proviso each generated a separate basis for the enforcement of manner and form: Two methods of controlling the operations of the Legislature appear to be allowed by the express terms of the section. The constitution of the legislative body may be altered; that is to say, the power of legislation may be reposed in an authority differently constituted. Again, laws may be passed imposing legal requirements as to manner and form in which constitutional amendments must be passed.192

His Honour found s 7A of the Constitution Act 1902 (NSW) binding as a manner and form on both grounds: by virtue of the proviso to s 5, and by reconstituting the Legislature193 with a third chamber by including the ‘electorate as an element in the legislative authority in which the power of constitutional alteration resides’.194 The latter derived from the Legislature’s plenary power to regulate its own constitution recognised in McCawley: McCawley’s Case reaffirms the full power of such a legislature as that of New South Wales, which passed s 7A, to regulate its own constitution. Such a power naturally extends to the enactments of safeguards aimed at restraining improvident or hasty 191 See Joseph, above n 47, 545; and P. A. Joseph, ‘The Apparent Futility of Constitutional Entrenchment in New Zealand’ (1982) 10 New Zealand University Law Review 27. 192 Attorney-General (NSW) v Trethowan (1931) 44 CLR 394 at 418. 193 Note that Rich J rejected the argument that the reference to ‘representative legislature’ in s 5 could not encompass reconstituted legislatures: ibid 419–20. See also Clayton v Heffron (1960) 105 CLR 214 at 251 where the joint judgment adopts the same approach in relation to s 5 of the Constitution Act 1902 (NSW). 194 Attorney-General (NSW) v Trethowan (1931) 44 CLR 394 at 421.

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action. There is no reason why a Parliament representing the people should be powerless to determine whether the constitutional salvation of the State is to be reached by cautious and well considered steps rather than by rash and ill considered measures.195

McTiernan J in dissent rejected this ground on the basis that there can only be one legislature in New South Wales, and that the electors were never made a constituent element of parliament.196 The issue today is whether s 2(2) of the Australia Acts 1986, which has replaced s 5197 of the CLVA as the continuing constituent power,198 allows the reconstruction of parliament for different purposes. A difference between the two provisions is that s 2(2) refers to a ‘Parliament’ of each state, rather than to a ‘legislature’: It is hereby further declared and enacted that the legislative powers of the Parliament of each State include all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State but nothing in this subsection confers on a State any capacity that the State did not have immediately before the commencement of this Act to engage in relations with countries outside Australia.

The reference to ‘Parliament of each State’ must refer to a parliament as defined from time to time in each State Constitution.199 So, in order to effect a reconstitution there must be an express or implied amendment to the definition of the State parliament within the State Constitution.200 Accordingly, it is necessary to clearly indicate, when enacting a manner and form in reliance on this ground, that parliament is being reconstructed for that purpose. If, as noted earlier, the United Kingdom Parliament has the capacity to entrench legislation, this is conferred on the State parliaments pursuant to s 2(2).201 On the basis that State parliaments have the power to reconstitute themselves for special purposes, in what ways can this be achieved and what limits apply? Reconstitution from a bicameral to a unicameral parliament generally, as well as for special purposes, is permissible.202 The addition of another chamber such as the electorate is also valid.203 It has also been argued that reconstitution may

195 Ibid 420. 196 Ibid 445–48. 197 Prior to the Australia Acts 1986, the capacity of the original legislature to ignore manner and form outside the proviso to s 5 of the CLVA was based on the continuing constituent power conferred by s 5 itself: ‘[E]very representative legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers and procedure of such legislature . . .’ 198 See Goldsworthy, above n 26, 412. 199 When read with s 16(1) Australia Acts: ibid at 413–15. 200 Goldsworthy, above n 26, 413–14 who argues this is implausible – even Rich J’s approach in Trethowan’s case was in his view ‘strained’. 201 Ibid 408–9: Goldsworthy argued that although the Ranasinghe principle cannot be relied on in view of ss 2(2) and 6 of the Australia Acts, two other principles are available: the reconstitution argument; and ‘pure procedures and forms’. Neither of these conflict with the continuing constituent power of the State parliaments. The former leaves the power intact but only alters the constitution of parliament, while the latter involves no diminution of power provided the special requirements are ‘not excessively difficult, costly or time-consuming’ (409). 202 See Taylor v Attorney-General of Queensland (1917) 23 CLR 457 and Clayton v Heffron (1960) 105 CLR 214. 203 See Attorney-General (NSW) v Trethowan (1931) 44 CLR 394. What about some other outside body? See West Lakes case (1980) 25 SASR 389 and Goldsworthy, above n 26, 423.

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occur in a procedural sense by a special majority requirement,204 although not with a special timing requirement.205 The limitations on reconstitution include those matters already discussed in relation to s 6 of the Australia Acts 1986. Parliament cannot abdicate its powers by divesting its power. Obviously valid reconstitution does not infringe this limitation. But a purported reconstitution which subjects the exercise of power to the consent of an outside body (other than the electorate) or makes it impossible to exercise (for example, an 80 per cent referendum approval requirement or a special majority in parliament)206 will be invalid.207 Whether the Crown must remain part of the parliament for the purpose of granting royal assent is unclear.208 A significant practical difficulty with this ground is that in several States, laws altering the constitution of the parliament must comply with manner and form for their enactment.209 These pre-existing manner and form requirements, if binding, must be followed when enacting a further manner and form provision which reconstitutes the parliament. More specifically in Queensland, any Bill which provides for the establishment of another legislative body in addition to the Legislative Assembly must be referendum approved before receiving royal assent.210 Only if the reconstitution involves the addition of another ‘legislative body’ does this section apply. Although a referendum requirement includes the electorate in the legislative process, the electorate should not be regarded as a ‘legislative body’, since it is not a representative body of the same nature as the Legislative Assembly or the former Legislative Council. The Principle of Bribery Commissioner v Ranasinghe The Privy Council in The Bribery Commissioner v Pedrick Ranasinghe211 stated what is sometimes referred to as the Ranasinghe principle: . . . a Legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make laws.212

With the CLVA no longer applicable to Ceylon, it was on the basis of this principle that the Privy Council enforced s 29(4) of the Ceylon Constitution contained within an Imperial Order in Council of 1946. Section 29(4) required any Bill repealing or amending the Order in Council to be passed by a special majority of two-thirds of the House of Representatives and have attached to it the Speaker’s certificate verifying that it had been so passed before being presented for royal 204 See Goldsworthy, ibid, 420. 205 Ibid 408. 206 Ibid 423. 207 See West Lakes case (1980) 25 SASR 389. 208 See In re The Initiative and Referendum Act [1919] AC 935 and Taylor v Attorney-General of Queensland (1917) 23 CLR 457; R. D. Lumb, ‘Manner and Form in the Australian Constitutional Systems Post Australia Acts’ (1992) 12 The Queensland Lawyer 177, 182. 209 See s 8 Constitution Act 1934 (SA); 73 Constitution Act 1889 (Imp) (WA); ss 7A and 7B Constitution Act 1902 (NSW); ss 18(1B) and 18(2) Constitution Act 1975 (Vic). 210 Section 3 Constitution Act Amendment Act 1934 (Qld), noted in s 6 Constitution of Queensland 2001. 211 [1965] AC 172. 212 Ibid 197.

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assent. The Bribery Amendment Act 1958 (Ceylon) which was inconsistent with the Constitution and which failed to comply with s 29(4) was found to be void. The derivation of the principle (cited above) is not clear from the opinion, although some reliance was placed on the restriction recognised by the Privy Council in McCawley v The King213 that: ‘The Legislature of Queensland is the master of its own household, except in so far as its powers have in special cases been restricted.’214 (emphasis added). Although the basis for that restriction was not stated in McCawley’s case, the most obvious basis would have been the proviso to s 5 of the CLVA which bound the Queensland legislature (unlike the Ceylon legislature when Ranasinghe’s case was decided). The only reference in Ranasinghe’s case to the proviso in s 5 of the CLVA occurred when discussing Trethowan’s case.215 The Privy Council did observe, however, that the principle it espoused arose ‘independently of the question whether the legislature is sovereign’,216 later adding that the need to obtain a two-thirds majority vote in the House of Representatives ‘did not limit the sovereign powers of the parliament itself which can always, whenever it chooses, pass the amendment with the requisite majority.’217 No significance appears to have been given to the fact that the Ceylon Constitution was contained in an Imperial Order in Council, nor should it have been since the doctrines of paramountcy and repugnancy no longer applied in Ceylon. Ranasinghe’s principle has received some judicial approval in Australia. Hoare J in Comalco’s case218 referred to the principle with approval as a basis for the enforcement of manner and form provisions outside s 5 of the CLVA but did not rely on it. Earlier, Gibbs J in Victoria v The Commonwealth and Connor,219 in obiter, approved the decisions in Harris v Minister of the Interior220 and Ranasinghe’s case. His Honour adopted the statement of the principle given by Lord Pearce in Ranasinghe’s case but noted that it was not limited to constitutional amendments.221 Further, he agreed that it was a principle which arose whether or not the legislature is sovereign.222 The principle was also approved in West Lakes case223 by Matheson and Zelling JJ,224 although Matheson J held it inapplicable to the West Lakes Development Act 1969–1970 (SA) for it was not ‘ . . . an instrument which regulates the power to make law of the Parliament of South Australia in the sense clearly intended by Lord Pearce.’225 The sense intended by Lord Pearce would appear to be the formal Constitution; otherwise, the scope for imposing restrictive procedures on later parliaments would be far wider than that under s 6 of the Australia Acts. It was argued in West Lakes case that Gibbs J in Victoria v The Commonwealth and Connor, in suggesting that Ranasinghe’s principle was not limited to constitutional amendments, 213 [1920] AC 691. 214 Ibid 714. 215 [1965] AC 172 at 199. 216 Ibid 197. 217 Ibid 200. 218 [1967] Qd R 231 at 247. 219 (PMA case) (1975) 134 CLR 81 at 163. 220 [1952] 2 SA 428; [1952] 1 TLR 1245. 221 (1975) 134 CLR 81 at 163. 222 Ibid 164. 223 (1980) 25 SASR 389. 224 Ibid 413, 421. Zelling J after citing Ranasinghe’s case accepted without deciding that it is possible to have a binding manner and form outside the CLVA but ‘. . . given the general rule that the Acts of one Parliament do not bind its successors it would require very clear words before a court would find that that was what had happened.’ 225 Ibid 421.

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indicated that the manner and form provision could also be prescribed by an Act other than the formal Constitution. Matheson J rejected any suggestion that the principle extended to all Acts of parliament nor did he interpret Gibbs J ’s remarks as endorsing that view.226 There are obvious difficulties with this ground. The first is the lack of any principled foundation which reconciles it with parliamentary sovereignty. The second is the ambiguity in defining the ‘instrument’ or Constitution. The third is in the potential inconsistency with s 2(2) of the Australia Acts, on which basis Goldsworthy argued that this ground becomes untenable.227 This view also appears to have been followed by Gummow J in McGinty v Western Australia: . . . whilst s 2(2) of the Australia Acts declares and enacts that the State Parliaments have plenary legislative power, it is further provided in s 6 that, notwithstanding this provision, manner and form requirements must be satisfied. This express treatment of the subject must leave no room for any greater operation which a principle derived from Ranasinghe might otherwise have had for any Parliament of an Australian State.228

This view was affirmed in dicta229 by the joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ in Attorney-General (WA) v Marquet,230 which appears to reject any alternative grounds for the enforcement of manner and form provisions – at least in the field occupied by s 6 of the Australia Acts: [T]he express provisions of s 6 can leave no room for the operation of some other principle, at the very least in the field in which s 6 operates, if such a principle can be derived from considerations of the kind which informed the Privy Council’s decision in Bribery Commissioner v Ranasinghe231 and can then be applied in a federation.232

Precisely what is the ‘field in which s 6 operates’ is unclear. If the field is simply that of entrenchment of State legislation, then all three potential alternative grounds are precluded. On the other hand, if it is the relatively narrow field of entrenchment of laws respecting the constitution, powers or procedure of the State parliaments, the alternative grounds to s 6 may operate in respect of laws not of that character.233 Section 106 Commonwealth Constitution Section 106 provides for the continuation of the State Constitutions and subjects them to the Commonwealth Constitution: 226 Ibid 422. 227 Goldsworthy, above n 26, 426 and ‘The “Principle in Ranasinghe”: A Reply to H. P. Lee’ (1992) 15 University of New South Wales Law Journal 540, 542. Lee’s article was: H. P. Lee, ‘“Manner and Form”: An Imbroglio in Victoria’ (1992) 15 University of New South Wales Law Journal 516. 228 (1996) 186 CLR 140 at 297. 229 Similarly, Kirby J (2003) 202 ALR 233 at [215] rejected any common law principle including the Ranasinghe principle which purports to fetter State legislative power. A binding fetter can only come from a higher law. 230 (2003) 217 CLR 545. 231 [1965] AC 172. 232 Attorney-General (WA) v Marquet (2003) 217 CLR 545 at [80]. 233 Cf Lee above n 227, 530 who argues that Ranasinghe is not precluded in Australia.

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The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.

The final limb, ‘until altered in accordance with the Constitution of the State’, appears234 to have been interpreted by the Full Court of Western Australia in the State of Western Australia v Wilsmore235 to require that a State parliament observe any manner and form provisions in a State Constitution. Burt CJ (with whom Lavan SPJ and Jones J concurred) concluded: . . . section 106 of the Commonwealth Constitution by its own force and for its own purposes is a law which requires that such manner and form provisions as are to be found in the State Constitution conditioning the power to amend the Constitution be observed.236

In that case, Western Australia sought special leave to appeal to the Privy Council from a decision of the Full Court (Wickham and Smith JJ; contra Wallace J)237 that an amendment to the Electoral Act 1907 (WA) was void for non-compliance with the first proviso in s 73(1) of the Constitution Act 1890 (Imp). That proviso required any Bill ‘by which any change in the Constitution of the Legislative Council or of the Legislative Assembly shall be affected’ to be approved by an absolute majority in each House. The Full Court gave no indication on what basis this manner and form was binding except for a reference to Ranasinghe’s case. Special leave to appeal to the Privy Council was denied on the ground that non-compliance with the proviso infringed s 106 of the Commonwealth Constitution, since the State Constitution had not been ‘altered in accordance with the Constitution of the State’.238 Accordingly, as a matter arising under the Commonwealth Constitution, an appeal to the Privy Council was precluded.239 On appeal, the High Court found s 73 of the Constitution Act 1890 (Imp) inapplicable to the impugned legislation. Consequently, none of the judgments commented on whether s 106 enforced manner and form requirements.240 It is suggested, with respect, that the final limb of s 106 does not provide an additional ground for enforcement of manner and form provisions.241 The purpose of that limb was to ensure that s 106 has continuing effect by maintaining State Constitutions as they exist from time to time, and in subjecting them as amended to the Commonwealth Constitution.242 The limb was inserted to 234 Goldsworthy, above n 26, suggests at 426 this may not have been their view. 235 [1981] WAR 179. 236 Ibid 184. 237 Wilsmore v State of Western Australia [1981] WAR 159. 238 State of Western Australia v Wilsmore [1981] WAR 179. 239 Pursuant to ss 30(2)(a) and 39(2)(a) Judiciary Act 1903 (Cth). 240 Western Australia v Wilsmore (1982) 149 CLR 79. Wilson J (with whom Gibbs CJ, Stephen, Mason and Aickin JJ generally agreed) at 96 accepted that the first proviso to s 73 was binding but refused to comment on which ground. Cf Murphy J at 86 who regarded the CLVA as no longer applicable to the States since 1901. 241 Cf R. D. Lumb, ‘The Northern Territory and Statehood’ (1978) 52 Australian Law Journal 554, 560–1 who suggested s 106 entrenches amending procedures in the Constitutions of new States. 242 Little consideration was given to this part of s 106 at the Constitutional Convention Debates except for Dr Cockburn at the Adelaide Convention (Official Record of the National Australasian Convention, 20 April 1897, 991–2) unsuccessfully moving the deletion of that part to ensure the States were not obliged ‘to go

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avoid an interpretation of s 106 which prevented the States from amending their Constitutions within their respective powers of amendment, or to avoid an interpretation that s 106 subjected only the Constitutions of the States as they existed as at 1901 to the Commonwealth Constitution. As Goldsworthy243 suggests: ‘in accordance with’ in the final phrase of s 106 simply means ‘not in violation of’. Therefore, the binding nature of any manner and form provision is left to be determined under the general law and derives no force from s 106.244 As Kirby J observed in Marquet: ‘Without more, the provisions of s 106 . . . do not supply a power of entrenchment. They simply refer back to the requirements of the State Constitution and thus beg the question to be answered.’245 Reinforcing this interpretation is the ambiguity in what constitutes the ‘Constitution of the State’.246 It is impossible to distinguish, with precision, legislation which is constitutional in character from that which is not. Yet, the interpretation which may have been adopted in Wilsmore’s case requires such a distinction to be made both in determining whether the manner and form is enforced by s 106 and whether the impugned law purports to amend ‘the Constitution’. The result would probably be that any legislation which affects the State’s constitutional system,247 not just the formal Constitution Acts, could, by virtue of s 106, prescribe and be subject to manner and form. Given this uncertainty, the preferable view is that s 106 does not have that effect.

6.5 Entrenchment of manner and form provisions For a manner and form provision to be effectively binding on a legislature, it must be doubly entrenched.248 Double entrenchment means that the manner and form provision is entrenched so that it cannot be amended or repealed by ordinary legislation. Commonly, the same requirements prescribed by the manner and form apply to its own amendment or repeal, but this need not be so. To be effectively entrenched, the special requirements need to be at least as onerous as those which it prescribes. An example of a doubly entrenched provision of the former to any outside authority’ to change their Constitutions. At the Melbourne Convention in 1898, Mr Barton responded to the view that the clause was unnecessary by noting that it was designed to reassure those fearful of federation that the States would keep their Constitutions and be able to change them when they wanted to do so (Official Record of the Debates of the Australasian Federal Convention, Third Session 1898, Vol 1, 645). 243 Goldsworthy, above n 26, 427. 244 In McGinty v Western Australia (1996) 186 CLR 140, Gummow J at 296–7 left this issue open. 245 Attorney-General (WA) v Marquet (2003) 217 CLR 545 at [190]. He asserts that no majority of the Court has adopted this ground, citing McGinty v Western Australia (1996) 186 CLR 140, per Brennan CJ at 172–3, per Gummow J at 296–7. Cf State of Western Australia v Wilsmore [1981] WAR 179 at 184. 246 See C. D. Gilbert, ‘Federal Constitutional Guarantees of the States: Section 106 and Appeals to the Privy Council from State Supreme Courts’ (1978) 9 Federal Law Review 348, 350–7. 247 See interpretation of ‘Constitution’ in McCawley v R (1918) 26 CLR 9, per Isaacs and Rich JJ at 51–2; Yougarla v Western Australia (2001) 207 CLR 344 at [64] joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. 248 See Attorney-General (NSW) v Trethowan (1931) 44 CLR 394 where s 7A(6) Constitution Act 1902 (NSW) doubly entrenched the referendum requirement in s 7A; Arthur Berriedale Keith, Imperial Unity and the Dominions (Oxford: Clarendon Press, 1916) 389–90, cited by Starke J in Trethowan at 424.

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kind is s 53 of the Constitution Act 1867 (Qld) which not only entrenches a range of provisions by referendum, but also entrenches itself by that same requirement. To remove the referendum requirement to abolish the office of Governor, a referendum is required to amend s 53 accordingly. An example of a manner and form provision which purports to be entrenched by different requirements to those which it prescribes is s 85 of the Constitution Act 1975 (Vic) which requires Bills altering the jurisdiction of the Supreme Court to be explained by the member introducing the Bill, but any amendment or repeal of s 85 must be passed by an absolute majority of each House (s 18(2A)). The manner and form provision in Trethowan’s case, s 7A of the Constitution Act 1902 (NSW), was doubly entrenched by subsection 6 which was upheld by a majority249 of the High Court and affirmed by the Privy Council250 as an effective technique to ensure that the remainder of the section could not be repealed unless its own manner and form requirements were complied with. Whether or not a manner and form provision is doubly entrenched depends on the wording of the provision. In Trethowan’s case, s 7A(6) was added251 in 1929 to apply the manner and form requirements to a Bill to repeal the whole of s 7A. In other cases, the provision may simply state: ‘No bill to amend or repeal any of the provisions of this Act shall be presented to the Governor for royal assent unless it is approved by the electorate at a referendum.’ Because the manner and form provision is one of ‘the provisions of this Act’, it is therefore doubly entrenched. Single entrenchment describes a manner and form provision which is not entrenched itself, and so is liable to be amended or repealed by ordinary legislation. Whether it is necessary in such a case to repeal or amend the manner and form provision first by ordinary legislation before acting contrary to its requirements, or whether a legislature can simply ignore the manner and form altogether, is unclear. The prudent course is to remove the manner and form provision first.252 Where this is not done, Goldsworthy argues that the enactment of the inconsistent legislation impliedly repeals the manner and form: ‘. . . the later Act declares that ‘such-and-such is the law’ while the earlier Act in effect declares that ‘such-and-such shall not be the law’: there is a contradiction here sufficient to construe the latter as having been impliedly repealed.’253 However, the preferable view254 seems to be that no implied repeal is effected because it is not possible to point to a provision in the impugned legislation which is inconsistent with the 249 (1931) 44 CLR 396, Rich J at 418, Starke J at 424, and Dixon J at 431–2. 250 Attorney-General (NSW) v Trethowan (1932) 47 CLR 97; [1932] AC 526. 251 By s 2 Constitution (Legislative Council) Amendment Act 1929 (NSW). 252 All cases in which a manner and form provision has been upheld and enforced, were cases of double entrenchment. In Comalco’s case, s 4 of the 1957 Act purported to prevent any alteration of the terms of the agreement without Comalco’s consent – this agreement being given the force of law by the 1957 Act. Section 4 only regulated the alteration of the agreement, not the Act itself, and so was not doubly entrenched. In West Lakes case, the alleged manner and form provision was only singly entrenched, a point noted by Zelling J who observed that an express repeal was not prevented since there was no double entrenchment. But his Honour made no reference to implied repeal. 253 Goldsworthy, above n 26, 406, fn 19. 254 See P. J. Hanks, P. Keyzer and J. Clarke, Australian Constitutional Law, Materials and Commentary (7th edn, Sydney: LexisNexis Butterworths, 2004) 5.4.19–20, 320. This view is supported by Lumb, above n 47, 121.

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manner and form provision.255 All that is inconsistent is the manner of enactment. Consequently, for a manner and form provision to be repealed, it must be done expressly.256 Hanks even suggests that this express repeal should be effected by one Act with the proposed legislation enacted separately later.257 This view seems unnecessarily technical.258 If then, no implied repeal of the singly entrenched manner and form provision is effected by legislation which ignores its requirements, is the legislation invalid for non-compliance? Section 6 of the Australia Acts seems to have that effect, in providing that ‘a law . . . respecting the constitution, powers or procedure . . . shall be of no force or effect unless it is made in such manner and form’ (emphasis added). For manner and form outside s 6, the result will depend on the construction of the manner and form provision whether parliament intended that result. Often, parliament’s intent is expressly given such as where the manner and form provision declares, ‘No bill to amend or repeal any of the provisions of this Act shall be presented to the Governor for royal assent unless it is approved by the electorate at a referendum.’ The courts cannot ignore that statutory declaration whether the manner and form is singly or doubly entrenched. Support for that position can be gleaned from Fullagar J in Clayton v Heffron: [Parliament] may repeal or alter a ‘manner or form’ which has been prescribed, but, until it has specifically repealed or altered the prescribed ‘manner or form’, a law which has not been ‘passed’ in the prescribed ‘manner or form’ will not be a valid law.259 Any prescription of manner and form may be repealed or amended, but, while it stands, the process prescribed by it must be followed. That was decided by Trethowan’s Case.260

Although his Honour was explaining the effect of the doubly entrenched s 7A(6) of the Constitution Act 1902 (NSW), the position would be the same had the provision been singly entrenched. For these reasons, even singly entrenched manner and form provisions should be repealed before a Bill is passed other than in accordance with its requirements.

6.5.1 Prerequisite for double entrenchment In relation to double entrenchment, a principle should be recognised, both politically and legally, that no manner and form provision can be entrenched without complying with the requirements prescribed for its own amendment or repeal.261 255 See F. A. R. Bennion, Statutory Interpretation (London: Butterworths, 1984) 422 (s 173 of Code); S. G. G. Edgar, Craies on Statute Law (6th edn, London: Sweet and Maxwell, 1963) 365–6; Kutner v Phillips [1891] 2 QB 267 at 272. 256 This occurred, for instance, in Queensland in 1908 when the singly entrenched requirement of a twothirds majority of the Legislative Council to alter its constitution was removed by simple repeal: see Keith, above n 248. 257 P. J. Hanks, Australian Constitutional Law (3rd edn, Sydney: Butterworths, 1985) 109. This suggestion is maintained in Hanks, Keyzer and Clarke, above n 254. 258 Cf In McCawley v R (1918) 26 CLR 9 at 116–17 the Privy Council regarded as ridiculous the idea that two separate Acts were needed – one to amend the Constitution and the other to make the inconsistent law. 259 (1960) 105 CLR 214 at 255. 260 Ibid 262. 261 Supported by Winterton’s submission to the Western Australian Government, Commission on Government, Report 5 August 1996, 86.

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For instance, referendum approval should be required to enact a manner and form provision which prescribes a referendum262 for its own amendment or repeal. Most of the doubly entrenched manner and form provisions listed below were passed by simple majorities of State parliaments.263 It is extraordinary that a simple parliamentary majority can so easily fetter the power of successor parliaments. The risk is that factional groups with a simple majority of parliament will entrench their interests in this way. No suggestion of such a principle as proposed was given by the High Court or the Privy Council in Trethowan’s case. Nor was it referred to by the majority in Attorney-General (WA) v Marquet.264 However, Kirby J in Marquet did refer to the ‘absurdity’ of entrenchment by simple majority,265 reflecting similar obiter comments by Gummow J in McGinty v Western Australia: There is a conceptual difficulty, to my mind, with the legitimacy of a manner and form requirement which is inserted in a written constitution otherwise than by a law made with observance of that manner and form which is thereafter to apply, or by a law having paramount force.266

It is unclear whether his Honour was casting doubt on the validity of a double entrenchment enacted in the ordinary way, or merely recommending best political practice. The former view could be based on an implication from the principle of parliamentary sovereignty which restricts the capacity of parliament to bind its successors.267 Even in the absence of such a constitutional restriction, there is considerable merit in promoting, as a principle of good political practice, the requirement that double entrenchment occur only in accordance with its own special procedure. And to take this further by enacting that principle as a legal requirement.268 Such an approach has been prescribed in the ACT by s 26 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) which effectively prevents any form of entrenchment without electoral approval. While the Legislative Assembly is empowered to enact a manner and form provision in an ‘entrenching law’, all such provisions (irrespective of the nature of their special requirements) must 262 Note that an interesting issue arises whether a Bill can still be presented for royal assent following referendum approval given at the same time as a general election. Can the Bill be enacted when the Assembly has been dissolved? Prorogation does not prevent this: see Attorney-General (WA) v Marquet (2003) 217 CLR 545. Kirby J noted at [116–18] that even amendments to the Commonwealth Constitution were approved by referenda and assented to after dissolution of the Commonwealth Parliament: fn 94. 263 In New South Wales, referenda held out of caution: Twomey, above n 27, 313–14. 264 (2003) 217 CLR 545. 265 Ibid at [194] and at [100] his Honour referred to the fact that s 13 was enacted in the ordinary way without itself being passed by an absolute majority of each House. 266 (1996) 186 CLR 140 at 297. 267 Some support for this approach might be indirectly provided in those States and territories where a restriction is imposed on changes to the constitution of the parliament or either of its House. For instance, s 7A(1)(a) Constitution Act 1902 (NSW) protects the power of the Legislative Council from being reduced by the adoption of manner and form requirements; cf Twomey, above n 27, 313. See also s 18 of the Constitution Act 1975 (Vic) which requires any Bill ‘by which an alteration in the constitution of the Parliament, the Council or the Assembly may be made’ to be passed by absolute majorities of both Houses. Thus, the enactment of any manner and form requirement which alters the constitution of parliament must comply with s 18. 268 Recommendations 15 and 16 of the LCARC were accepted by the Queensland Government’s response. It could not be argued that such a statutory requirement is inconsistent with s 6 of the Australia Acts being a manner and form requirement which s 6 enforces.

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first be approved by a referendum of the electorate. Additionally, these manner and form provisions must be passed by any special parliamentary or referendum majority which they prescribe for future laws.

6.5.2 Severance It is important to construe manner and form provisions carefully to determine whether parliament intended to render the entire Act invalid for non-compliance with its requirements, or just those specific provisions which are the subject of the manner and form. The former is commonly the position. For instance, s 53(1) of the Constitution Act 1867 (Qld) requires the relevant ‘Bill’ to be enacted in accordance with its requirements, otherwise it is ‘of no effect as an Act’. If the Bill fails to observe the manner and form requirements, it fails in its entirety, not just those clauses of the Bill which were subject to the manner and form.269 The position might be different if instead of ‘Bill’, s 53(1) referred to ‘statutory provisions’ or even to ‘law’. Such expressions are sufficiently flexible to target specific provisions of an enactment, rather than the whole enactment. Consequently, those provisions which fail to comply with the manner and form may be severable from those which are not. This approach depends, however, on whether s 6 of the Australia Acts 1986 permits this. In referring to a ‘law’ having to comply with manner and form, s 6 is capable of targeting only those provisions of the Bill which ought to have complied with the manner and form. On that interpretation, severance is not precluded. Support can also be gained from the provision made in Acts Interpretation legislation that every section of an Act takes effect as a ‘substantive enactment’.270 Severance on these grounds avoids the drastic consequence of an entire Act being invalid because one provision failed to comply with a manner and form requirement – often in circumstances where the need to comply was not recognised.271

6.6 Entrenchment under specific State Constitutions 6.6.1 New South Wales The Constitution Act 1902 (NSW) in ss 7A and 7B purports to doubly entrench, by referendum, a range of provisions concerned respectively with the Legislative Council and the Legislative Assembly. In relation to the Legislative Council, 269 In the 19th century, Law Officers of the Crown expressed the opinion that severance was not available in respect of an Act which fails to comply with a special majority requirement: see O’Connell and Riordan, above n 90, Opinion dated 28 September 1864, 71, para 3. See also Twomey, above n 27, 287–8. Cf Wilsmore v Western Australia [1981] WAR 159 per Wickham J at 166 and Smith J at 177 who allowed severance in reliance on dicta in Bribery Commissioner v Ranasinghe [1965] AC 172 at 200. 270 See, for example, InterpretationAct 1987 (NSW) s 64; ActsInterpretationAct 1954 (Qld) s 10; Interpretation Act 1918 (SA) s 18; Acts Interpretation Act 1931 (Tas) s 6(1); Interpretation of Legislation Act 1984 (Vic) s 7; Interpretation Act 1984 (WA) s 29; Interpretation Act (NT) s 54. Relied on in Wilsmore v Western Australia [1981] WAR 159 per Wickham J at 166 and Smith J at 177 for allowing severance. 271 See, for example, the difficulties experienced in Victoria over unintended changes to the jurisdiction of the Supreme Court, discussed below at 6.6.5.

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referendum approval is required under s 7A, subject to certain exceptions,272 of any Bill to abolish or dissolve the Legislative Council, to alter its powers,273 or to amend or repeal provisions dealing with the election of members, including their disqualification. In relation to the Legislative Assembly, referendum approval is required under s 7B, subject to certain exceptions, of any Bill to amend or repeal provisions relating to Assembly elections (including compulsory voting, single member districts, 10 per cent variation in the size of electoral districts, and the parliamentary term) and the judiciary. Most of these provisions are likely to be amended or repealed by laws respecting the constitution, powers or procedure of the parliament. Accordingly, their entrenchment is effective under s 6 of the Australia Acts. Laws that are likely to fail this characterisation test and so do not need referendum approval, include those concerned with the qualification and disqualification of members and of voters, compulsory voting, the issue of election writs, and Part 9 on the judiciary.274

6.6.2 Queensland In Queensland, several provisions purport to prescribe entrenched manner and form requirements. The principal manner and form provision is s 53(1) of the Constitution Act 1867 (Qld) which requires referendum approval for any Bill which ‘expressly or impliedly provides for the abolition of or alteration in the office of Governor or that expressly or impliedly in any way affects’ ss 1, 2, 2A, 11A, 11B and 53. Those sections respectively provide for: the Legislative Assembly (s 1); the legislative power of the Queen and the Legislative Assembly to make laws for the peace, welfare and good government of the colony in all cases whatsoever (s 2); the Parliament of Queensland to consist of the Queen and the Legislative Assembly, with royal assent needed for enactment of all Bills (s 2A); and the Queen’s representative, the Governor, who holds office during the Queen’s pleasure (s 11A(1)); no abolition or alteration in the office of Governor except in accordance with s 53 (s 11A(2)); and the definition of the ‘Royal Sign Manual’ to mean the signature of the Sovereign (s 11B). Section 3 of the Constitution Act Amendment Act 1934 (Qld) requires referendum approval for any Bill which provides for ‘another legislative body’ or which repeals or amends that section. Section 4 of the Constitution Act Amendment Act 1934 (Qld) requires referendum approval for any Bill which extends the period of the Legislative Assembly from three years as prescribed by s 2 of the Constitution Act Amendment Act 1890 (Qld) or which repeals or amends s 4 of the 1934 Act. Any amendment or repeal of these entrenched provisions is likely to satisfy the characterisation test of s 6 of the Australia Acts. The only uncertainty arises in 272 See s 7A(6). 273 Such an alteration must be to reduce the legislative power of the Legislative Council; it does not include a change to the parliamentary privileges of the House: Arena v Nader (1997) 42 NSWLR 427 at 436; affirmed by Brennan CJ sitting alone: Arena v Nader (1977) 71 ALJR 1604 at 1605. 274 See Twomey, above n 27, 299–312 for a detailed analysis of ss 7A and 7B.

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relation to the entrenchment of the office of Governor by ss 11A and 53, and the meaning of ‘Royal Sign Manual’ in s 11B. It should be noted here that until 1996, s 53 also purported to entrench s 14 which vested in the Governor-in-Council power to appoint all public offices (other than minor appointments) and vested in the Governor alone power to appoint and dismiss ministers. Section 146 of the Public Service Act 1996 (Qld) purported to repeal s 14(1) and to amend s 53 by removing the reference to s 14 – in each case without a referendum. It is unlikely that s 146 of the Public Service Act 1996 (Qld) satisfied the characterisation test of s 6 of the Australia Acts. But if the reconstituted legislature ground is accepted, s 14 may have been effectively entrenched. If so, not only is s 146 invalid, but s 53 also renders invalid the entire Public Service Act 1996. This result could only be avoided if a court was prepared to adopt a new principle of law whereby the entrenchment of s 53 was never effective because no referendum was held to approve its enactment. With the consolidation of the Queensland Constitution into two principal Acts, the Constitution of Queensland 2001 and the Parliament of Queensland Act 2001 (Qld), no attempt was made to move any of these entrenched provisions. They remain in their original statutes, although reference is made to them in ss 6,275 7,276 8277 and 30278 of the Constitution of Queensland 2001, with their text conveniently reproduced in Attachment 1 to the Act. Two alternative approaches to achieve a better consolidation of the Queensland Constitution were not adopted for fear they would be challenged, or worse, found invalid. One was simply to re-enact the entrenched provisions in the Constitution of Queensland 2001 in a modernised form without altering their substantive legal effect and to repeal the original entrenched provisions. The other approach differed only in not repealing the original entrenched provisions, leaving them intact as parallel provisions to their modernised form in the Constitution of Queensland 2001. The first approach most certainly would have been invalid. The other approach might not have activated s 53 since its requirements only apply to Bills which ‘affect’ the provisions it is designed to protect. There is much to be said for the view that merely updating entrenched provisions or simply re-enacting them in the consolidated Constitution without altering their legal effect does not ‘affect’ them within s 53. But the risk in that approach was that if the new parallel provisions were viewed as in any way ‘affecting’ the original provisions, the entire Bill for the Constitution of Queensland would be of no effect.279 Section 53(1), like many manner and form provisions,280 declares the whole Bill void even if only one of its provisions fails 275 Refers expressly to s 2A Constitution Act 1867 (Qld) (Parliament) and notes s 3 of the Constitution Act Amendment Act 1934 (Qld). 276 Refers expressly to s 1 Constitution Act 1867 (Qld) (Legislative Assembly). 277 Refers expressly to s 2 Constitution Act 1867 (Qld) (legislative power). 278 Refers expressly to ss 11A and 11B Constitution Act 1867 (Qld) (office of Governor). 279 This problem was recognised by Lee in his article ‘‘Manner and Form’: above n 228, 518 in relation to s 18 of the Constitution Act 1975 (Vic) before its amendment in 1991 where only the relevant provision was rendered invalid. The 2003 amendments have reversed the position so that the whole Bill is now invalid: s18 (3), (4) and (5) Constitution Act 1975 (Vic). 280 See, for example, ss 7A and 7B of the Constitution Act 1902 (NSW) and ss 10A and 88 of the Constitution Act 1934 (SA).

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to satisfy the manner and form. In drafting manner and form provisions, noncompliance should be expressed to render void only those specific provisions which fail to comply, not the entire Act of which they form a part.281 Also note that s 78 of the Constitution of Queensland 2001 prescribes a referendum requirement for any Bill to end the system of local government in Queensland. As the section is only singly entrenched, it is capable of being amended and repealed by an ordinary enactment. Connolly J in R v Minister for Justice and the Attorney-General of Queensland; Ex parte Skyring282 rejected a challenge to the validity of the Australia Act (Request) Act 1985 (Qld) on the basis that it amended ss 11B and 14 of the Constitution Act 1867 (Qld) without complying with s 53. His Honour dismissed the challenge on two grounds: the 1985 Act did not amend the Constitution Act; and s 53 could not prevent the Queensland Parliament acting pursuant to s 51(38) of the Commonwealth Constitution to request a constitutional change. Two decisions of the Queensland Supreme Court illustrate the uncertainties which can arise in relation to a manner and form provision such as s 53 which refers rather vaguely to an ‘alteration in the office of Governor’. In Sharples v Arnison,283 a challenge was brought to the calling of the 2001 State election on the basis that the source of the Governor’s power, the Constitution (Office of Governor) Act 1987 (Qld), was invalid. It was argued that this Act altered ‘the office of Governor’ without complying with the referendum requirement in s 53. Ambrose J found no ‘alteration’ in the office after comparing the duties and powers of the office under the Letters Patent of 8 March 1986 with those under the impugned 1987 Act. His Honour ignored stylistic changes and a minor difference on the basis of de minimis non curat lex.284 But, in any event, his Honour held that, even if the 1987 Act were invalid, any exercise of power would have been supported by the Letters Patent of 8 March 1986. The Court of Appeal upheld his Honour’s decision.285 McPherson JA (with whom McMurdo P and Davies JA agreed) considered any ‘alteration to the office of Governor’ in s 53(1) required ‘a comparison between the nature, and also to some extent the powers of office’ before and after the enactment of the 1987 Act.286 His Honour agreed with Ambrose J that the only apparent difference concerned the prerogative of mercy, but on closer inspection there was in fact no legal difference as the form in which that power was confirmed by the 1987 Act merely reflected the actual legal position before that enactment.287 In Skyring v Electoral Commission of Queensland,288 Muir J followed the decision in Sharples v Arnison in refusing leave to a vexatious litigant to challenge the validity of the 2001 Queensland election on the basis that the Constitution 281 282 283 285 287

See the Legal and Constitutional Committee, 39th Victorian Report, above n 18. Unreported decision of the Queensland Supreme Court, 17 February 1986. (2001) 260 FLR 194 per Ambrose J. 284 Ibid [76] and [94]. Sharples v Arnison (2001) 2 Qd R 444. 286 Ibid at 454 [15]. Ibid at 456 [20]. 288 [2001] QSC 080.

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(Office of Governor) Act 1987 was invalid. His Honour relied on the Letters Patent being sufficient and left open the issue over s 53, although he regarded as ‘not unarguable’ the submission that the 1987 Act was in breach of s 53.289 In response to the respondent’s argument that s 6 of the Australia Acts was not applicable as the 1987 Act was not one respecting the constitution, powers or procedure of parliament, his Honour left open whether s 6 of the Australia Acts is the only basis for binding manner and form but expressed the view that Clayton v Heffron provides an alternative basis so far as it recognised that manner and form requirements can be prescribed pursuant to its peace, welfare and good government power. Yet this fails to address the paramount legal grounds for the binding effect of manner and form. Several useful recommendations290 were made in 2003 by the Legal, Constitutional and Administrative Review Committee (LCARC) of the Queensland Legislative Assembly in relation to entrenchment of the Queensland Constitution. The Committee recommended two forms of entrenchment to cover the whole of the Constitution. First, referendum entrenchment was recommended for those provisions which establish the essential structure of the State’s constitutional system, provide for its fundamental constitutional principles, and maintain the balance between the three arms of government appropriate for a system of representative and responsible government. Provisions of this nature were those dealing with the Legislative Assembly, its members, single member electoral divisions, minimum sitting requirement of the Assembly, maximum limit on number of ministers and parliamentary secretaries, the judiciary, the consolidated revenue fund, imposition of taxation, withdrawal from the consolidated revenue fund, and the system of local government. The second form of entrenchment, termed ‘parliamentary entrenchment’, was recommended for any change to the Constitution (including the referendum entrenched provisions). The requirements of this form of entrenchment were that relevant Bills: ● not be passed within 27 days of being introduced; ● be the subject of a parliamentary inquiry and report to the Parliament before being passed; ● include ‘Constitution Amendment’ in their title; and ● be passed by an absolute majority of members.291 While the LCARC recognised that many constitutional provisions may not be legally entrenched under s 6 of the Australia Acts, the Committee expressed the expectation ‘that future governments and parliaments would find them politically and morally binding, particularly if their entrenchment were approved at a referendum.’292 289 Ibid [27]. 290 LCARC, Review of the Queensland Constitutional Review Commission’s Recommendations Regarding Entrenchment of the Queensland Constitution, Report No 41, August 2003. 291 Recommendation 7. 292 Section 2.6 at 11.

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The LCARC also made a number of recommendations in relation to the adoption and management of manner and form provisions. The Committee recommended that entrenchment occur only after the special procedure proposed is followed for that entrenchment, especially in relation to referendum entrenchment, and that this requirement be referendum entrenched.293 To reduce the risk of invalidity for failure to comply with these forms of entrenchment, only the relevant provision, not the whole Act, should be void for non-compliance,294 and that the Scrutiny of Legislation Committee scrutinise all Bills for consistency with the Constitution.295 To facilitate future consolidation and updating of the form of the Constitution, it was recommended that the Constitution authorise the relocation and renumbering of referendum entrenched provisions and such other amendments necessary to give effect to these changes.296 Nonetheless, the majority of the LCARC recommended that the entrenchment of the Queensland Constitution along these lines be deferred until a referendum is held on the transformation of the State to a republic. This was to avoid any further entrenchment of the State’s monarchical system of government.297 The Queensland Government’s response298 rejected the recommendation that all of the Constitution of Queensland 2001 be entrenched in one or both ways, that is, by referendum and/or parliamentary entrenchment. It was not prepared to support any form of entrenchment which was not likely to be legally enforceable. The practical moral and political benefit of such a proposal was not recognised. Rather, the fear of legislative challenge outweighed that benefit. Still, the Government supported entrenchment of those provisions which provided the essential structure of the State’s constitutional system and its fundamental principles so far as they were capable of being effectively entrenched. Any entrenchment had to comply with its own manner and form requirements. Their response also supported the practical reforms which would permit the relocation, renumbering and consequential amendments to entrenched provisions, and the confinement of invalidity to those provisions which fail to comply with manner and form, rather than the whole Act.

6.6.3 South Australia Under the Constitution Act 1934 (SA), the existence of both Houses is referendum entrenched, along with the powers of the Legislative Council and the procedure for resolving deadlocks between the Houses under s 41.299 Also referendum entrenched is the system of distributing seats in the Assembly provided for in s 32 and Part 5.300 An absolute majority in each House is required to alter the constitution of each House,301 and this requirement is referendum entrenched.302 It appears likely that all of these doubly entrenched provisions are effectively 293 296 298 299

Recommendation 16. 294 Recommendation 9. 295 Recommendation 7. Recommendation 10. 297 Recommendation 2. Government Response to the LCARC Report No 41, above n 290. Section 10A(2). 300 Section 88. 301 Section 8. 302 Section 10A(2)(d).

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entrenched under s 6 of the Australia Act 1986 (Cth). Less likely is s 64A(3) which requires an absolute parliamentary majority to any Bill which would cease the system of local government prescribed by s 64A(1) (that is, a system of elected local government bodies). Any Bill relating to local government is unlikely to be a law respecting the constitution, powers or procedure of parliament. This requirement in s 64A(3) is not, however, doubly entrenched.

6.6.4 Tasmania Section 41A of the Constitution Act 1934 (Tas) only singly entrenches s 23 of the Constitution which prescribes a fixed four-year term for the Legislative Assembly, by requiring any ‘Bill to amend’ s 23 to be passed by at least two-thirds of the members of the Assembly. No special parliamentary majority is prescribed for the Legislative Council. Section 41A suffers from the same textual defect as s 13 of the Electoral Distribution Act 1947 (WA) in referring only to Bills which amend, not those which purport to repeal. It seems likely that ‘repeal’ would be implied as in Marquet’s case.303 The issue is not so crucial in Tasmania since s 41A can be expressly repealed by ordinary legislation.

6.6.5 Victoria Major amendments304 to the Constitution Act 1975 (Vic) in 2003 attempt to doubly entrench many constitutional provisions in one of three ways, that is, they cannot be changed unless the Bill is: (1) approved by referendum; (2) passed in each House by a special majority of three-fifths; or (3) passed by an absolute parliamentary majority.305 The range of provisions entrenched in one of these ways is very wide: ● A referendum is required under s 18(1B) to change provisions relating to the composition and election of both Houses, the fixed four-year parliamentary term, appropriation, the resolution of deadlocks between the Houses, local government, the Supreme Court, the Executive, the offices of the Director of Public Prosecutions, the Auditor-General, the Ombudsman and the Electoral Commissioner, the Electoral Boundaries Commission, access to information, and this subsection. ● Under s 18(2) Bills must be passed at the third reading by a special parliamentary majority of three-fifths in each House so far as they change provisions concerned with Aboriginal recognition, the Crown, the composition and powers of parliament, membership of and disqualification from both Houses, and this requirement. Soon after these amendments were enacted, a new Part VII was added306 to the Constitution Act and 303 Attorney-General (WA) v Marquet (2003) 217 CLR 545. 304 Constitution (Parliamentary Reform) Act 2003 (Vic) Division 4. 305 See Comment by Evans, above n 166. 306 Constitution (Water Authorities) Act 2003 (Vic).

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included under s 18(2), to require that responsibility for the delivery of water services remains with a public authority accountable to a minister. Finally, the provisions in Part III (other than ss 75(i) and 85) dealing with the Supreme Court cannot be changed unless passed by an ‘absolute majority’ at the third reading. Section 18(2AA)(b) omits to indicate whether this is an absolute majority of both Houses, or of one of the Houses. Presumably it refers to both Houses, given that ‘special majority’ is defined in that way by s 18(1A). But it is unclear whether this omission would be rectified by judicial interpretation as in Marquet,307 or result in the invalidity of the requirement altogether for uncertainty.

Bills amending or repealing many of these provisions will not, however, satisfy the test of characterisation under s 6 of the Australia Acts as laws respecting the constitution, powers or procedure of parliament. This was recognised by the Victorian Government308 which relied on alternative authorities ‘for a general power of entrenchment’. With respect, the authorities cited either do not support such a power or may no longer be relied on. The most significant authority, Bribery Commissioner v Ranasinghe309 has, since the enactment of these constitutional amendments, been rejected by the High Court in Marquet,310 although the basis for that rejection requires further consideration. Also relied on was the decision of the Supreme Court of Victoria in Collingwood v Victoria [No 2]311 which simply assumed, without citing any legal authority, the effective entrenchment of the Supreme Court’s jurisdiction by s 85 of the Constitution Act 1975 (Vic).312 The remaining authority was the obiter of Gibbs J in Victoria v Commonwealth and Connor,313 and the decision of the Supreme Court of South Africa in Harris v Minister of the Interior.314 The only possible ground for supporting all three forms of entrenchment is the reconstituted legislature ground which, as noted earlier, is of uncertain status in Australia following the enactment of the Australia Acts. Prior to the 2003 amendments, the Constitution Act 1975 (Vic) had similarly prescribed entrenchment of provisions unlikely to be protected by s 6 of the Australia Acts,315 or its predecessor, the proviso to s 5 of the CLVA. The 2003 amendments implemented the recommendations of the Constitution Commission of Victoria, A House for Our Future: A Report (2002), which suggested that a number of ‘core provisions’316 of the Constitution be referendum entrenched, while ‘procedural changes’ require a special three-fifths parliamentary majority.317 The Constitution Commission’s report does not examine the legal effectiveness of entrenchment. It assumes that it limits parliament’s power to change the 307 Attorney-General (WA) v Marquet (2003) 217 CLR 545. 308 See the Minister’s Response to the comment of the Scrutiny of Acts and Legislation Committee on the Constitution (Parliamentary Reform) Bill 2003 in Alert Digest No 5 of 2003. 309 [1965] AC 172 310 Attorney-General (WA) v Marquet (2003) 217 CLR 545. 311 [1994] 1 VR 652 at 669–70. 312 Cf Comment by Evans, above n 166, 136; Enid Campbell, ‘Constitutional Protection of State Courts and Judges’ (1997) 23 Monash Law Review 397, 403. 313 (PMA case) (1975) 134 CLR 81 at 163–4, referred to at n 219. 314 [1952] 2 SALR 428. 315 Sections 18(1) and (2) and 85(5). 316 Commission accepted at 70 entrenchment of ‘fundamental democratic institutions and rights’. 317 Ibid.

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Constitution, and merely observes the improved sense of ‘community ownership’ of the Constitution which flows from referendum entrenchment.318 Surprisingly, there is no suggestion in the report of the need to obtain electoral support before adopting referendum entrenchment. Reference was made earlier to s 85(5) of the Constitution Act 1975 (Vic) which purports to continue to prevent implied repeal or amendment of the jurisdiction of the Supreme Court of Victoria by requiring a law repealing or restricting jurisdiction under s 85 to state this intention expressly, and that the member who introduces the Bill make a statement, usually during the second reading speech, of the reasons319 for the repeal or alteration.320 Consequently, any legislation which impliedly repeals or amends s 85 is inoperative.321 A failure to provide a statement of reasons renders any express provision void, not the whole Bill in which it is located. Section 18(2A) entrenches s 85 by requiring the third reading of any amending Bill to be passed by an absolute majority of the members of each House. The effectiveness of this entrenchment is likewise doubtful since amending legislation will not satisfy the characterisation test in s 6 of the Australia Acts 1986. The enactment of s 85(5) and s 18(2A)322 followed the recommendations of the 39th Report of the Legal and Constitutional Committee of the Victorian Parliament323 which were designed to overcome uncertainty324 over the class of Bills which had to comply with the absolute majority requirement in s 18(2) so far as they altered the Supreme Court’s jurisdiction under s 85, and to confine invalidity to the provisions enacted in non-compliance. That report did not address the legal basis for the binding force of these provisions, but subsequent commentary supported the report’s assumption that these provisions, although not binding under s 6 of the Australia Acts, were binding under alternative grounds.325

6.6.6 Western Australia Section 73(2) of the Constitution Act 1889 (WA) doubly entrenches the office of Governor, the Legislative Council and the Legislative Assembly. Bills to alter that office or abolish those Houses must be passed by an absolute majority of both Houses and be approved by the electorate at a referendum.326 The same manner and form requirements also apply to any Bill which expressly or impliedly provides that the members of both Houses be chosen otherwise than directly by the people, to a Bill which reduces the number of members in either House,327 and to a Bill which ‘in any way affects’ a number of provisions which concern the 318 See the Legal and Constitutional Committee, 39th Victorian Report, above n 18. 319 Judicial review does not extend to the sufficiency of the reasons given in the House: BHP v Dagi [1996] 2 VR 117. 320 For the background and effect of the 1991 amendments, see J. Waugh, ‘The Victorian Government and the Jurisdiction of the Supreme Court’ (1996) 19 University of New South Wales Law Journal 409; C. Foley ‘Section 85 Victorian Constitution Act 1975: Constitutionally Entrenched Right . . . or Wrong?’ (1994) Monash University Law Review 110. 321 Section 85(5) is not applicable to a ‘provision which directly repeals or directly amends any part of [s 85]’. This appears to refer to direct repeal or amendment of the text of s 85: see Waugh, ibid 415–16. 322 Constitution (Jurisdiction of Supreme Court) Act 1991 (Vic). 323 A Report Upon the Constitution Act 1975 (March 1990). 324 See Waugh, above n 320. 325 Lee, above n 228, 536–9 argued that the Ranasinghe principle applied; Goldsworthy, above n 26, 545, fn 26 relied on his ‘pure procedure and form’ ground. 326 Section 73(2)(a) and (b). 327 Section 73(2)(c) and (d).

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legislative power of the State, the composition of parliament, the requirement of royal assent, the Governor’s powers to convene and prorogue parliament, as well as dissolve the Legislative Assembly, the requisite annual session of each House, and the office of Governor. All of these provisions satisfy the characterisation test under s 6 of the Australia Acts as laws respecting the constitution, powers or procedure of the Western Australian Parliament.328 For the reasons given earlier in relation to the position in Queensland, this includes the entrenchment of the office of Governor because, as Her Majesty’s representative, the Governor is a constituent component of the parliament under s 2(2). Section 13 of the Electoral Distribution Act 1947 (WA), which provides the system for distributing electorates for both Houses, requires an absolute majority in both Houses to ‘amend’ the Act. As noted earlier, this manner and form provision was held in Attorney-General (WA) v Marquet329 to extend to a Bill which purports to repeal as well as amend the Act. It was also held to be a binding manner and form by virtue of s 6 of the Australia Act 1986 (Cth).

6.7 Position in the territories The self-governing territories cannot derive from either s 6 of the Australia Acts 1986 or s 106 of the Commonwealth Constitution, a capacity to entrench their own legislation by manner and form. Those two grounds for binding manner and form only extend to the States. The ACT Legislative Assembly is unique in being specifically empowered by the Commonwealth to entrench legislation by manner and form.330 Neither the Northern Territory nor Norfolk Island is similarly empowered.

6.7.1 Australian Capital Territory The capacity of the ACT Legislative Assembly to entrench its legislation is conferred by s 26 of the Australian Capital Territory (Self-Government) Act 1988 (Cth). This model provision for authorising entrenchment of legislation provides as follows: (1) The Assembly may pass a law (in this section called the ‘entrenching law’) prescribing restrictions on the manner and form of making particular enactments (which may include enactments amending or repealing the entrenching law). (2) The entrenching law shall be submitted to a referendum of the electors of the Territory as provided by enactment. (3) If a majority of the electors approve the entrenching law, it takes effect as provided by section 25. 328 See Attorney-General (WA) v Marquet (2003) 217 CLR 545. For an historical account of s 73(2), see Robert S. French, ‘Manner and Form in Western Australia: An Historical Note’ (1993) 23 Western Australian Law Review 335. 329 (2003) 217 CLR 545. 330 Section 26, ACT (Self-Government) Act 1988 (Cth).

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(4) While the entrenching law is in force, an enactment to which it applies has no effect unless made in accordance with the entrenching law. (5) If an entrenching law includes the requirement (however expressed) that an enactment or enactments be passed by a specified majority of the members (in this subsection called a ‘special majority’), the same requirement shall be taken to apply to the entrenching law, so that it must be passed by: (a) that special majority; or (b) if it specifies different special majorities for different enactments – the highest of those special majorities. (6) If an entrenching law passed by the Assembly: (a) includes the requirement (however expressed) that an enactment or enactments be submitted to a referendum of the electors of the Territory; and (b) includes provision (however expressed) that, to have effect, the referendum is to be passed by a specified majority of the electors (in this subsection called a ‘special majority’); the same requirement shall be taken to apply to the entrenching law, so that the reference in subsection (3) to a majority of the electors shall be taken to be a reference to: (c) that special majority; or (d) if the entrenching law specifies different special majorities for different enactments – the highest of those special majorities.

Subsection (1) expressly vests in the ACT Assembly the power to enact manner and form provisions, while subsection (4) gives them binding force. The power conferred by this provision is very wide in the absence of any characterisation requirement. The enactment of any law, not just laws respecting the constitution, powers or procedure of the legislature, can be subject to manner and form. But the trade-off for this is the requirement that the enactment of all manner and form provisions be referendum approved (subsection (2)). Additional requirements apply where the manner and form provision prescribes a special majority of members to pass certain laws, or prescribes a special majority of electors to approve the law at a referendum. The enactment of such manner and form provisions must also comply with these same requirements (subsections (5) and (6)). Other manner and form requirements, such as a report from a particular parliamentary committee on the Bill, are not prescribed for the enactment of the entrenching law. It is implicit in s 26(3), that if the entrenching law is not approved by referendum and fails to comply with any special majority requirements, it is of no effect. The distinction between single and double entrenchment applies equally under s 26 as it does under s 6 of the Australia Acts. While the range of laws liable to binding manner and form is unrestricted, the other prerequisites of s 6 of the Australia Acts should apply to any manner and form provisions enacted in the ACT. Hence, only mandatory manner and form requirements are binding; those requirements must relate to the legislative process; and they must not purport to abdicate legislative power. In relation to this last point, s 26 makes it clear that a special majority of members in the legislature, and even a special majority of electors in a referendum, are valid requirements. Although s 26 expresses no limit to either of these special majorities, it is suggested that

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the Commonwealth Parliament would not have contemplated a special majority which constitutes an abdication of power. Otherwise, this would undermine the grant of general legislative power to the Legislative Assembly.331 Section 26 renders invalid the whole of an entrenching law if it is not enacted in compliance with its requirements, even if the entrenching law contains provisions unrelated to the entrenching requirements it purports to prescribe. So far, the only entrenching law enacted by the ACT Legislative Assembly pursuant to s 26 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) is the Proportional Representation (Hare-Clark) Entrenchment Act 1994 (ACT) which entrenches the principles of the proportional representation (Hare-Clark) electoral system. Laws inconsistent with those principles listed in s 4(1), or respecting the number of members of the Assembly, are of no effect unless they are passed pursuant to s 5 either: by the Assembly and by a majority of the electors at a referendum (s 5(2((a)); or by at least a two-thirds majority of the members of the Assembly (s 5(2)(b)).332 These manner and form requirements are doubly entrenched by s 5(1) which requires any amendment or repeal of the Act to be passed by both a two-thirds majority of the Assembly and a referendum.333 Notably, the 1994 Act entrenches certain principles of proportional representation rather than the specific legislative provisions which have given them effect.334 This accords with s 26 which merely contemplates the prescription of manner and form requirements for particular enactments without specifying that they must be intended to protect specific legislation. While this approach entrenches only the substantive effect of the law, rather than its mere form, it widens the opportunity to claim inconsistency with those principles. Interestingly, no attempt has been made to use s 26 to entrench the proposed ACT Bill of Rights.335

6.7.2 Northern Territory None of the grounds for the enforcement of manner and form provisions applies to the Northern Territory. Even the potential grounds of reconstituted legislature and Ranasinghe’s principle cannot apply because the Territory Constitution, the Northern Territory (Self-Government) Act 1978 (Cth), is a law of paramount force in the Territory. Consequently, the Territory is in a similar position to the Commonwealth in that the general law-making power of the Northern Territory legislature, conferred by s 6 of the Self-Government Act, is incapable of being effectively amended or qualified by a Territory enactment. In other words, the power vested by s 6 in the Legislative Assembly, ‘with the assent of the Administrator or the Governor-General, to make laws for the peace, order and good government of the Territory’, cannot be qualified by a Territory enacted manner 331 Ibid, section 6. 332 The manner and form appears only directed to laws enacted after the commencement of this Act on 2 May 1995. 333 In accordance with s 26(2) and (6) of the Self-Government Act, those same requirements were followed in the enactment of the 1994 Act itself. 334 Electoral Act 1992 (ACT). 335 Bill of Rights Act 2004 (ACT).

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and form provision – at least not by one which is doubly entrenched. This position is reinforced by s 27 which specifies that all questions in the Assembly must be resolved by a majority of votes.336 There remains, though, the possibility that the Legislative Assembly, like the Commonwealth Parliament, might have the capacity to impose a requirement as to the form of future legislation.

6.7.3 Norfolk Island The position in the Northern Territory applies equally in Norfolk Island. The Island’s Legislative Assembly is vested by s 19(1) of the Norfolk Island Act 1979 (Cth) with legislative power to make laws, with the assent of the Administrator or the Governor-General, for the peace, order and good government of the Territory. If the Assembly were to attempt to fetter this power by prescribing additional manner and form requirements, such restrictions would be inconsistent and hence repugnant to paramount Commonwealth law. As with the Northern Territory, there remains the possibility that requirements as to the form of future laws have some effect.

6.8 The Commonwealth Only two grounds for entrenchment by manner and form potentially apply to the Commonwealth, given the inapplicability of s 6 of the Australia Acts: the reconstituted legislature argument, and Ranasinghe’s principle. Yet, both these grounds concern manner and form which purport to restrict the process of lawmaking prescribed by the Constitution. For instance, a referendum requirement cannot be binding given that s 1 defines parliament as comprising the Queen, the Senate and the House of Representatives. For this reason, the purported referendum entrenchment in 1998337 of the current Australian National Flag by s 3(2) of the Flags Act 1953 (Cth) imposes no legal restriction on Commonwealth legislative power – merely a moral and political one. Similarly, a special majority requirement would be inconsistent with ss 23 and 40 of the Constitution which contemplate passage by simple majority. Accordingly, it seems clear that, in the absence of a constitutional amendment, the Commonwealth Parliament cannot impose further fetters on itself by prescribing manner and form provisions. However, Professor Winterton has argued that the Commonwealth Parliament may prescribe the ‘form’ of future legislation or provide for special legislatures.338 A statutory formula of words operates more as a rule of construction than as a fetter on power, since it involves no diminution of legislative power. It provides a convenient mechanism to avoid unintended implied amendment of significant legislative provisions, as well as ensuring that any intended change is brought 336 G. Nicholson, ‘Constitutionalism in the Northern Territory and Other Territories’ (1992) 3 Public Law Review 50, 54, fn 33. 337 Flags Amendment Act 1998 (Cth). 338 Winterton, above n 36.

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to the attention of the parliament and the public. Given the constitutional constraints, a failure to use the statutory prescription will affect its interpretation rather than render the law invalid.339 As noted earlier, it was on this basis that the Commonwealth drafted clauses 5 (2) and (3) of the Commonwealth Human Rights Bill 1973 which purported to render a Commonwealth law of no effect if inconsistent with the Bill unless expressly declared ‘to operate notwithstanding the Bill’. Then again, it is by no means clear that such a mechanism would be effective at the Commonwealth level. The case for it working at the State level and in the ACT is much stronger, given the enforcement in those jurisdictions of manner and form requirements by paramount law. At the Commonwealth level, it is more likely that a statutory declaration of the type proposed in clause 5 of the Commonwealth Human Rights Bill 1973 is implicitly overridden by later legislation which evinces a clear intention to do this – irrespective of the language of that enactment.

6.9 Conclusion The capacity of the self-governing territories to entrench their laws is considerably different from that of the States. Subject to a referendum requirement, the ACT has a much wider capacity than that of the States, while it is lacking altogether in the Northern Territory and Norfolk Island. For historical reasons, the States’ capacity to entrench legislation is confined by s 6 of the Australia Acts 1986 to provisions respecting the constitution, powers or procedure of the parliament. Consequently, to entrench other provisions, including those concerned with the executive and judicial branches of government, alternative grounds have been suggested: in particular, a reconstituted legislature, Ranasinghe’s principle, and s 106 of the Commonwealth Constitution. But only the first of these grounds may survive the intent of ss 2 and 6 of the Australia Acts to confer a plenary constituent power. Even if none of these grounds enforces a particular manner and form provision, such a provision may still provide a political and moral foundation for arguing that the special procedure ought to be followed – at least where what is purported to be entrenched is considered of sufficient importance to warrant that procedure. On significant public issues, public expectation can at times be just as effective as the law.340 For this reason, some form of entrenchment ought to be contemplated for the fundamental structures and principles of the States’ constitutional systems. These would cover the three branches of government, their essential functions, and the mechanisms which regulate their interrelationship, 339 Ibid 190–1. 340 Dicey recognised this over a century ago in relation to the United Kingdom Parliament which, although ‘it cannot impose any legal limit to the exercise of its own power, may so express an intention to use or not to use its power in a particular way as to excite expectations which it will be extremely difficult or hazardous to disappoint, and so may find itself morally fettered as to its subsequent legislative action.’: Dicey, above n 184, 245.

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such as the right to challenge unconstitutional legislation and to seek judicial review of the Executive.341 Binding manner and form requirements pose a challenge to the sovereignty of the people through their parliamentary representatives. Yet, the Australian people are familiar with the phenomenon – the entire Commonwealth Constitution is referendum entrenched. Nonetheless, State legislatures are subject to certain constraints when entrenching legislation within s 6 of the Australia Acts or the reconstituted legislature ground. For instance, manner and form requirements cannot amount to an abdication of power. But further constraints are needed to overcome the ease with which legislation can be entrenched by a simple majority of both Houses. At the same time, provision should be made to enable entrenched provisions to be updated or even moved without effecting any substantive change. Despite these concerns, there is a strong case for entrenching those fundamental constitutional provisions which establish the essential framework of a constitutional system and the fundamental principles by which that system operates, provided, of course, this occurs in accordance with the manner and form requirements being prescribed. It should also be appreciated that by entrenching these provisions and principles, this may give rise to constitutional implications that enjoy similar entrenchment, such as an implied freedom of political communication.342 341 These rights were suggested by Waugh, above n 320, 425. 342 See Muldowney v South Australia (1996) 186 CLR 352; Bradley Selway, The Constitution of South Australia (Sydney: Federation Press, 1997) 66.

7 Extraterritoriality

7.1 Introduction All State parliaments are restricted in their capacity to legislate extraterritorially. They may do so only when a sufficient connection or nexus exists between the State and the extraterritorial effect of the law. The modern justification for this restriction is the practical necessity to avoid jurisdictional clashes between the States, given the absence of any equivalent to s 109 of the Commonwealth Constitution.1 The ACT, Northern Territory and Norfolk Island legislatures are subject to the same extraterritorial restriction as State parliaments.2 Although following the enactment of s 2(1) of the Australia Acts 1986, the continued existence of this extraterritorial limitation was debated,3 the High Court has clearly indicated that the Australia Acts have not removed this limitation.4 Specific issues still to be resolved include: how tenuous the nexus can be; what safeguards are there against unjustified burdens being imposed on the residents of other States, especially in the fields of taxation and criminal law; and how inconsistencies between State laws are to be resolved. Before addressing these issues, consideration is given to the boundaries of each State and territory, including the constitutional arrangements between the Commonwealth and the States in relation to the waters surrounding the States. The concept of extraterritoriality and the legal foundation for the extraterritorial 1 This was the view of Gibbs J in Pearce v Florenca (1976) 135 CLR 507 at 519, which he repeated in Robinson v Western Australian Museum (1977) 138 CLR 283 at 303–4. Under s 109, Commonwealth laws prevail over State laws to the extent of any inconsistency. 2 See Traut v Rogers (1984) 70 FLR 17. 3 Mark Moshinsky, ‘State Extraterritorial Legislation and the Australia Acts 1986’ (1987) 61 Australian Law Journal 779. 4 Union Steamship Co. of Australia Pty Ltd v King (1988) 166 CLR 1.

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restriction are then considered, before examining the extent to which the States and the territories can legislate extraterritorially (that is, the ‘sufficient connection’ or ‘nexus’ test).

7.2 Land boundaries The land boundaries of each colony were originally delineated by imperial instruments at the time they were created as separate colonies.5 Until federation, these boundaries were capable of imperial alteration.6 Since 1901, this power is vested exclusively in the Commonwealth Parliament, conditional on the consent of the relevant State parliament and of the people of that State by referendum.7 Since federation the High Court and the Privy Council have been required to determine the precise location of the boundary between Victoria and South Australia, and then between Victoria and New South Wales. It is clear from these determinations that improvements in technology cannot be relied on to challenge the location of the existing boundaries which were drawn in the 19th century with the best technology then available. In the first of these cases, South Australia v Victoria,8 South Australia challenged the surveyed eastern boundary with Victoria on the ground that when surveyed in 1847, it had strayed by two miles and 19 chains too far westward from the meridian of 141 degrees east longitude prescribed by Letters Patent of 19 February 1836 which provided for the establishment of the Colony of South Australia.9 Both the High Court and on appeal, the Privy Council, upheld the surveyed boundary on the ground that the Letters Patent required the fixing of the boundary by practical means as accurately as possible. As this had occurred with the available technology of that time, no subsequent challenge based on improvements in technology could be maintained. Otherwise, jurisdictional chaos would have arisen if the boundary line kept changing as more accurate measurements became possible, affecting the rights of owners each side of the border. Griffith CJ also acknowledged that even the boundary between South Australia and New South Wales north from the Murray River along the same meridian, which was surveyed later in 1868 with electric telegraphy, was probably 100 yards east of that meridian.10 As for the boundary with New South Wales, originally Victoria’s northern boundary was the Murray River beginning at the source of the river (with a line drawn from there to Cape Howe) and ending at the South Australian 5 M. H. McLelland, ‘Colonial and State Boundaries in Australia’ (1971) 45 Australian Law Journal 671; Sandford D. Clark, ‘The River Murray Question: Part I – Colonial Days’ (1971) 8 Melbourne University Law Review 11. 6 See, for example, s 2 Australian Colonies Act 1861 (Imp) and s 1 Colonial Boundaries Act 1895 (Imp), considered in Wacando v The Commonwealth (1981) 148 CLR 1 which held that Darnley Island in the Torres Strait was part of Queensland. 7 Commonwealth Constitution 1901 (Cth) s 123. 8 (1911) 12 CLR 667 (HC); (1914) 18 CLR 115 (PC). 9 Letters Patent made pursuant to the Act of 1834 4 & 5 Will IV c 95. 10 (1911) 12 CLR 667 at 696.

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border.11 Subsequent legislation specified that the ‘whole Watercourse’ of the river remained part of New South Wales: s 5 of the New South Wales Constitution Act 1855 (Imp) (18 & 19 Vict c 54).12 In Ward v R13 the High Court interpreted this to mean that the actual boundary of Victoria was at the top of the southern bank of the river. On this basis, the Court accepted Victoria’s concession in that case that no common law offence of murder was committed in Victoria since the victim died on the lower southern bank in New South Wales from a shot fired from the top of that bank in Victoria.14

7.3 Sea boundaries The High Court held by majority in the Seas and Submerged Lands Act case (New South Wales v Commonwealth)15 that the territory of the States ends at the lowwater mark.16 That case concerned a challenge by all six States to the validity of the Seas and Submerged Lands Act 1973 (Cth) which in s 6 declared and enacted that the Commonwealth Crown had sovereignty in the three nautical mile territorial sea, the airspace over it and its seabed and subsoil. The States argued that as colonies in 1900 they had proprietary rights in the subsoil of the territorial sea and dominion over the territorial sea of three miles, or at least had, since their respective grants of self-government, legislative and executive authority over those areas. The majority (Barwick CJ, McTiernan, Mason, Jacobs and Murphy JJ) rejected these claims. Even if the British Crown had such interests in the territorial sea, they were never transferred to the colonies, despite various opinions of the Law Officers which appeared to assume that the colonies had rights over the territorial sea and its seabed. The majority relied on R v Keyn,17 establishing in 1876 that the territorial sea had never formed part of British territory. Barwick CJ also adopted the view18 expressed by the United States Supreme Court in United States v Texas: ‘once the low water mark is passed, the international domain is reached.’19 Since any rights in relation to that area were rights recognised under international law, they had always been vested in the British Crown. The States never had international standing to assume those rights. Accordingly, the declaration in s 6 to vest sovereignty in the Commonwealth took nothing away from the States and was a valid enactment pursuant to the Commonwealth’s external affairs power 11 13 & 14 Vict c 59 (Australian Constitutions Act (No 2) 1850 (Imp)). 12 Section 5 also conferred power on each State to regulate customs and navigation on the Murray River, and empowered them jointly to redefine the boundary line along the course of the river. 13 (1980) 142 CLR 308. All members of the Court agreed with Stephen J – see especially at 336. 14 Gibbs J noted that a Victorian statute could deem the offence committed at the point of discharge: ibid at 314. 15 Seas and Submerged Lands Act case (1975) 135 CLR 337. 16 Subject to where baselines are drawn across bays, inlets and islands: Port MacDonnell Professional Fishermen’s Assn Inc v South Australia (1989) 168 CLR 340 at 369; Raptis (A) & Son v South Australia (1977) 138 CLR 346. 17 (1876) LR 2 Ex D 63. 18 New South Wales v Commonwealth (1975) 135 CLR 337 at 360. 19 (1950) 339 US 707 at 719.

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in s 51(xxix). By enacting s 6, the Commonwealth was implementing the terms of the Convention on the Territorial Sea and the Contiguous Zone.20 Gibbs and Stephen JJ dissented in relation to the territorial sea, although they accepted the validity of the provisions in relation to the continental shelf. Gibbs J was in no doubt, especially after the Privy Council decision in Benest v Pipon,21 that the subsoil of the three mile territorial sea of England and hence of its colonies was Crown property – unless a subject acquired an interest by grant or prescription.22 Therefore the territorial sea had to be part of the territory of the Crown.23 Thus, on self-government, the territorial sea of each colony became vested in the Crown in right of that colony, irrespective of the fact that as colonies, they were not recognised under international law. Nor did federation alter this position.24 Since the determination of sovereignty within Australia was not a matter within the scope of the Convention on the Territorial Sea and the Contiguous Zone, s 6 was not a valid implementation of the Convention. Stephen J reasoned along similar lines.25

7.3.1 Regime under the Seas and Submerged Lands Act 1973 (Cth) The Seas and Submerged Lands Act 1973 (Cth) was designed to give effect to two international conventions: the Convention on the Territorial Sea and the Contiguous Zone (included in Schedule 1); and the Convention on the Continental Shelf (included in Schedule 2). Section 6 ‘declared and enacted that the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth’. Section 7 empowered the Governor-General to declare by proclamation the limits of the territorial sea. Section 10 declared and enacted that Commonwealth sovereignty also extended to any waters of the sea on the landward side of the baseline of the territorial sea (described as internal waters), without affecting the internal waters of the States under s 14(a). Section 11 declared and enacted that the Commonwealth Crown was vested with sovereign rights to explore the continental shelf and to exploit its natural resources. Section 12 similarly empowered the Governor-General to determine by proclamation the limits of the continental shelf. The Act is specifically expressed not to affect the sovereign rights of the States in relation to any waters of or within any bay, gulf, estuary, river, creek, inlet, port or harbour which remain within the limits of a State since 1 January 1901 (s 14(a)) – referred to as internal waters. Additionally, the Act does not vest in the Commonwealth Crown any wharf, jetty, pier, breakwater, building, platform, 20 Seas and Submerged Lands Act case (1975) 135 CLR 337 at 392. 21 (1829) 1 Knapp 60; 12 ER 243 – the harvesting of weed on rocks below the high-water mark must be the subject of the King’s grant. 22 (1975) 135 CLR 337 at 392. 23 Ibid 400. 24 Ibid 406–7. 25 Ibid especially 442–3.

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pipeline, lighthouse, beacon, navigational aid, buoy, cable or other structure or works (s 15). Finally, s 16 ensures the continued operation of all Commonwealth, State and territory laws, with the exclusion of any State laws which ‘vest or make exercisable any sovereignty or sovereign rights otherwise than as provided by the Act.’ So, subject to that condition, State laws continue to operate within the territorial sea and State extraterritorial competence remained unaffected: Pearce v Florenca.26 Since, by s 16, the Act was declaratory of Commonwealth power, no inconsistency under s 109 arose in relation to such extraterritorial State laws. At the time of enactment in 1973, Australia maintained a three nautical mile territorial sea from the low-water mark or relevant baselines.

7.3.2 Commonwealth–State offshore settlement of 1979 In response to concerns over the States’ limited extraterritorial competence within the territorial sea, particularly in the aftermath of the Seas and Submerged Lands Act case,27 a Commonwealth–State agreement was reached after the Premiers’ Conference in 1979, known as the ‘Off-Shore Settlement’,28 to give the States full power to legislate in relation to the territorial sea and title to the seabed adjacent to their coasts. This settlement was given effect pursuant to s 51(xxxviii) of the Commonwealth Constitution by the Coastal Waters (State Powers) Act 1980 (Cth) and the Coastal Waters (State Title) Act 1980 (Cth). The same legislative scheme was adopted for the Northern Territory.29 Under s 5 (a) of the Coastal Waters (State Powers) Act 1980 (Cth), each State’s general legislative capacity is extended over its adjacent territorial sea, as well as over those inland waters on the landward side of the low-water mark baselines, not within State territory. Power is also given to the States by s 5(b) to enact laws beyond the territorial sea in relation to: (i) subterranean mining from land within the limits of a State, and (ii) over ports, harbours and other shipping facilities relating thereto; and by s 5(c) with respect to fisheries in Australian waters beyond the territorial sea in accordance with any arrangements made between the Commonwealth and a State.30 The Act expressly declares that it does not extend the limits of any State or derogate from the extraterritorial competence of the State (s 7). The territorial sea adjacent to each State is defined by s 4 as the ‘coastal waters of the state’ and is confined to three nautical miles, despite the expansion in Australia’s territorial sea to 12 nautical miles in 1990.31 Section 4(1) of the Coastal Waters (State Title) Act 1980 (Cth) vests in the States ownership of the seabed beneath the coastal waters of the State, subject to 26 (1976) 135 CLR 507. 27 Seas and Submerged Lands Act case (1975) 135 CLR 337. 28 See the Off-Shore Constitutional Settlement: A Milestone in Co-operative Federalism (Canberra: Australian Government Publishing Service, 1980). 29 Coastal Waters (Northern Territory Powers) Act 1980 (Cth) and the Coastal Waters (Northern Territory Title) Act 1980 (Cth). 30 Para (c) was upheld in Port MacDonnell Professional Fishermen’s Assn, above n 16 at 379–82. 31 As from 20 November 1990 by Proclamation under s 7 Seas and Submerged Lands Act 1973 (Cth): Commonwealth Government Gazette No S 297, Tuesday 13 November 1990.

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several reservations under s 4(2) including: (a) pre-existing rights over the seabed, (b) Commonwealth rights to use the seabed for communications, safety of navigation, quarantine and defence, and (c) Commonwealth authorised petroleum pipelines, and under s 4(3) in relation to the operation of the Great Barrier Reef Marine Park Act 1975 (Cth).

7.4 Concept of extraterritoriality Essentially, the issue of extraterritorial competence arises whenever a State or territory law operates by reference to some act, matter or thing which lies outside the State’s or territory’s boundaries. In other words, the State or territory purports to make a legal liability or other legal consequence depend upon facts outside its territory.32 These types of cases are wide ranging. They are not limited to laws which purport to regulate an activity outside the State, such as in the offshore waters, within the territory of another State or territory, or beyond the territory of Australia.33 They extend to any law which merely includes for its operation some extraterritorial element.34 So when reference is made to the capacity of a State to legislate extraterritorially, it needs to be recognised that this may occur in many different ways. The following examples of hypothetical State laws illustrate this: ● a Victorian law which renders it an offence under Victorian law to exceed 50 km per hour in the Sydney CBD;35 ● a Queensland law which regulates fishing up to 200 nautical miles off the Queensland coast;36 ● a New South Wales law which imposes liability on out-of-State directors of a company whose only connection with New South Wales is that the company carries on some business there;37 ● a South Australian law which imposes income tax on persons outside the State for interest received from a security registered in that State;38 ● a Western Australian law which removes a person from the State to another State or territory;39 ● the appointment by Tasmania of a royal commissioner to investigate a matter both within and outside the State.40 32 See Peter W. Hogg, Constitutional Law in Canada, looseleaf edn (3rd edn, Vol 1, Ontario: Carswell Company, 1997) 13.1. 33 Interestingly, issues of extraterritoriality do not arise between the States and the Commonwealth, except in relation to the territories. The application of State law to the Commonwealth has focused instead on Commonwealth immunity and the specific adoption of State law for Commonwealth places by the Commonwealth Places (Application of Laws) Act 1970 (Cth) and for federal jurisdiction by s 79 Judiciary Act 1903 (Cth). 34 See F. A. Trindade, ‘The Australian States and the Doctrine of Extra-territorial Legislative Incompetence’ (1971) 45 Australian Law Journal 233, 234. 35 Cf MacLeod v Attorney-General for New South Wales [1891] AC 455. 36 Cf Port MacDonnell Professional Fishermen’s Assn, above n 16. 37 Cf Welker v Hewett (1969) 120 CLR 503. 38 Cf Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337. 39 Cf Ray v M’Mackin (1875) 1 VLR 274. 40 Cf Boath v Wyvill (1989) 85 ALR 621.

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In determining the validity of a State extraterritorial law, the precise nature of its extraterritorial element must be considered, as well as the boundary which it purports to cross; that is, whether it is the State’s land or water border. Before considering how these factors affect State extraterritorial competence, it is necessary to first clarify the legal foundation for this extraterritorial restriction on State legislative power.

7.5 Legal foundation of restriction For decades the legal foundation and scope of this restriction have been debated. This was due, at least in part, to the fact that such a restriction was originally recognised in 19th century United Kingdom colonial office policy,41 supported by the opinions of its Law Officers, rather than in judicial decisions. Professor O’Connell considered that the Law Officers created this restriction out of ‘much muddled thinking on the interaction of international law and constitutional law’.42 He suggested as ‘probable that the Law Officers, in elaborating the doctrine, were originally doing no more than applying to colonial legislatures their views on the limitations imposed by international law on the constitutional competence of even the Imperial Parliament.’43 Still, the doctrine evolved into a wider restriction on colonial legislative power which culminated in the view that colonial laws were confined solely to the territory of the colony and could not extend even to its own residents who engage in conduct outside the State. This ‘executive’ view appeared to be adopted in 1891 by the Privy Council in MacLeod v Attorney-General for New South Wales.44 A New South Wales offence of bigamy was enacted in wide terms: ‘whosoever being married marries another person during the life of the former husband or wife, wheresoever such second marriage takes place, shall be liable to penal servitude for seven years’.45 The Privy Council regarded the widest interpretation of the offence (that is, applying to a bigamous marriage contracted by anyone anywhere in the world) as an impossible construction, beyond the colony’s legislative power which was confined to its own 41 B. H. McPherson argues the Law Officers’ opinion followed earlier cases, such as Craw v Ramsey (1670) Vaughan 274; 124 ER 1072. 42 D. P. O’Connell, ‘The Doctrine of Colonial Extra-Territorial Legislative Incompetence’ (1959) 75 Law Quarterly Review 318, 323. 43 Ibid 320. In Jeffreys v Boosey (1854) 4 HLC 815 at 939 (10 ER 681 at 725, 730) Pollock B held: ‘The statutes of this realm have no power, are of no force, beyond the dominions of Her Majesty, not even to bind the subjects of the realm, unless they are expressly mentioned, or can be necessarily implied.’ See Parke B at 926/725. Note that Gibbs J in Pearce v Florenca (1976) 135 CLR 507 at 515 interpreted these comments not as suggesting that such laws might be ultra vires the Imperial Parliament, but merely as referring to the inability of their practical enforcement or to a rule of statutory interpretation. Cf John Salmond, ‘The Limitations of Colonial Legislative Power’ (1917) 80 Law Quarterly Review 117, 120, who suggested that it was not possible even for the Imperial Parliament to make laws which operate in France, although it can make law in the United Kingdom with respect to France, such as murder done in Paris to be a criminal offence in London. This view contradicts the traditional view of United Kingdom parliamentary sovereignty which would prevent the United Kingdom courts from questioning the validity of the law: W. A. Wynes, Legislative, Executive and Judicial Powers in Australia (5th edn, Sydney: Law Book Company, 1976) 67. 44 [1891] AC 455 at 458. The Privy Council at 458–9 also appeared to recognise in reliance on Jeffreys v Boosey (1854) 4 HLC 815 that the Imperial Parliament similarly lacked power in relation to offences committed in other jurisdictions by those who were not its subjects [458–9]. MacLeod’s case was followed in R v Lander [1919] NZLR 305. 45 Criminal Law Amendment Act 1883 (NSW) s 54.

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territory.46 Accordingly, the offence was read down so as to apply only to persons who contracted their second marriage within New South Wales. The New South Wales conviction relating to a bigamous marriage in the United States was set aside. The Privy Council was clearly concerned that if the offence was interpreted without territorial limitation, it would exceed even the power of the Imperial Parliament.47 Despite the focus on the construction of the statutory offence, this decision is regarded as the high-water mark of colonial extraterritorial incompetence. Subsequent decisions of the Privy Council, especially Ashbury v Ellis48 and Croft v Dunphy,49 followed by decisions of the High Court, most notably, Broken Hill South Ltd v Commissioner of Taxation (NSW),50 Bonser v La Macchia51 and R v Bull,52 recognised a limited extraterritorial competence, dependent on establishing a sufficient connection with the interests of the colony or State. So, a law which purported to operate extraterritorially, would be valid, provided its extraterritorial operation was linked in some way to the State. This would apply, for example, where the law imposed a liability on a person outside the State who was domiciled or resident in the enacting State, or else carried on business or owned property there. This test of sufficient connection was usually cited as establishing whether or not the law was for the peace, order and good government of the State to be within the grant of legislative power. These cases still failed to elucidate clearly the legal foundation on which this restriction on State power rested. A view developed that the source of this restriction is the phrase ‘peace, order (or welfare) and good government’ used in the grant of legislative power. For instance, in Union Steamship Co of Australia Pty Ltd v King53 the joint judgment of the High Court noted: It has been said that the words ‘peace, order and good government’ are now the source of whatever territorial limitations exist in relation to the Parliaments of the States: R v Foster; Ex parte Eastern & Australian Steamship Co Ltd;54 Johnson v Commissioner of Stamp Duties (NSW).55

46 Cf an English bigamy offence which expressly applied to a bigamous marriage anywhere that was upheld by the House of Lords in Trial of Earl Russell [1901] AC 446. 47 [1891] AC 455 at 458–9. 48 [1893] AC 339. 49 [1933] AC 156. Trindade, above n 34, argues at 235–6 that Croft v Dunphy essentially removed the extraterritorial restriction on State power. While Croft v Dunphy was decided before s 3 of the Statute of Westminster applied to the Dominion of Canada, the Privy Council at 163 saw ‘no reason to restrict the permitted scope of such legislation by any other consideration than is applicable to the legislation of a fully Sovereign State.’ Accordingly, it upheld the validity of Canadian ‘hovering’ legislation which permitted the search and seizure of dutiable or prohibited goods from vessels within three marine miles of the Canadian coast (or 12 marine miles for Canadian registered vessels) as within the customs power – given that such hovering legislation is necessary to ensure the effectiveness of its laws. It intimated that the British North America Act 1867 (Imp) might have restricted the Dominion’s power to legislate contrary to international law, but this case involved no such difficulty. Although it was ‘accepted as a general principle that States can legislate effectively only for their own territories . . . it has long been recognized that for certain purposes, notably those of police, revenue, public health and fisheries, a State may enact laws affecting the seas surrounding its coasts to a distance seaward which exceeds the ordinary limits of its territory’ (162). 50 (1937) 56 CLR 337 at 358 per Latham CJ. See also Evatt J in Trustees Executors & Agency Co Ltd v Federal Commissioner of Taxation (1933) 49 CLR 220 at 235. 51 (1969) 122 CLR 177 at 189 per Barwick CJ, 202 per Kitto J, 225 per Windeyer J. 52 (1974) 131 CLR 203 at 231 per Barwick CJ, 263 per Gibbs J, 269–72 per Stephen J, 280–2 per Mason J. 53 (1988) 166 CLR 1. 54 (1959) 103 CLR 256 at 307. 55 [1956] AC 331.

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Yet this emphasis on ‘peace, order and good government’ is misplaced. Rather, it is the remaining description of the power which effectively confines its scope to matters concerning the interests of the State: namely, that the law be one for the peace, welfare (or order) and good government of the State.56 In other words, the power must be exercised for the State, not for some other polity. This means that the same requirement applies in Victoria where the traditional formulation of legislative power was departed from. It also means that the restriction cannot be removed simply by amending the actual description of legislative power.57 Support for this approach is found in Clayton v Heffron58 where the joint judgment of Dixon CJ, McTiernan, Taylor and Windeyer JJ observed of the grant of legislative power in s 5 of the Constitution Act 1902 (NSW) that it ‘confers a complete and unrestricted power to make laws with reference to New South Wales. There is doubtless a territorial limitation implied in the reference to New South Wales but there is no limitation of subject matter.’59 Although Union Steamship did not advert to this point, the joint judgment in Port MacDonnell Professional Fishermen’s Assn Inc v South Australia did note that ‘[T]he limits of extra-territorial operation of a colonial or State law were ultimately found to inhere in the grant of power to the legislature.’60 Essentially, the grant of legislative power to each Australian colony was made for the government of that colony. Implicit in such a grant was a territorial restriction. And this was reflected in s 5 of the Colonial Laws Validity Act 1865 (Imp) which, while it deemed every representative legislature to have full power to make laws respecting its constitution, powers and procedures, described this power as one ‘in respect to the Colony under its Jurisdiction’.61 Given the variety of ways in which a State can legislate extraterritorially, there is some merit in the view expressed by Professor Castles that, subject to a possible implication from the Commonwealth Constitution, the extraterritorial operation of a law is really irrelevant.62 Rather, it is the link or connection with the interests of the State which is the critical requirement to bring the law within the State’s legislative power. This view accommodates all the possible ways in which a law may contain some extraterritorial element. Whenever such an element exists in a 56 See also Kenneth Roberts-Wray, Commonwealth and Colonial Law (London: Stevens & Sons, 1966) 370 emphasises the words ‘for the peace, order and good government of’ the country. Note the use of ‘within’ at the commencement of s 2 of the Constitution Act 1867 (Qld) should not detract from the width of the provision: Arthur Berriedale Keith, Responsible Government in the Dominions, Vol 1 (Oxford at the Clarendon Press, 1912) 372. 57 Cf Gibbs J in Pearce v Florenca (1976) 135 CLR 507 at 515; Moshinsky, above n 3, especially 781–3; ‘State Extraterritorial Legislation: Further Developments’ (1990) 64 Australian Law Journal 42. 58 (1960) 105 CLR 214 at 250. See also Wallace Brothers & Co Ltd v Commissioner of Income Tax, Bombay City and Bombay Suburban District (1948) 75 Indian Appeals 86 (PC) which concerned the extraterritorial competence of the Indian Legislature under s 99 of the Government of India Act 1935 (Imp) which was empowered to ‘make laws for the whole or any part of British India’. 59 Windeyer J observed in R v Foster; Ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256 at 308 that the origin and extent of the prohibition of extraterritorial legislation are obscure. 60 (1989) 168 CLR 340 at 370. 61 Cf Trindade, above n 34, 237–8. 62 Alex Castles, ‘The Autonomy of the Australian States’ [1962] Public Law 175, 198. For example, in both Croft v Dunphy [1933] AC 156 and Johnson v Commissioner of Stamp Duties [1956] AC 331 (PC), the court merely asked whether the law fell within the legislative power. See also Trindade, ibid, who argued that the restriction did not then exist, or if it did, that it could be removed by the State legislatures.

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law, the issue simply becomes whether the incorporation of that extraterritorial element can be justified as sufficiently linked to the interests of the State. Alternatively, we might view the extraterritorial competence of State parliaments as an additional or incidental power, rather than as a limitation on power. Their grants of legislative power are literally confined to their respective States but by implication are extended to matters outside their boundaries which are likely to be sufficiently connected with the interests of their State. Similarly, Barwick CJ in Bonser v La Macchia63 focused on the source of power rather than its limitation in saying that the power derives from ‘the plenary nature of the power to make laws for the peace, order and good government of the territory assigned to the colony.’

7.6 Rationale for restriction The 19th century rationale for this extraterritorial restriction on State power was neatly summarised by the joint judgment of the High Court in Union Steamship Co of Australia Pty Ltd v King: In the context of a grant of legislative power to a legislature in a colony forming part of a far-flung empire, it was natural to conclude, as did the law officers in the nineteenth century, that laws made in the exercise of such a power were binding and valid only within the boundaries of the colony: O’Connell and Riordan, Opinions on Imperial Constitutional Law. The prevailing rule of construction applicable to Imperial statutes was that they had no force beyond the Sovereign’s Dominions, not even to bind subjects, unless that application was expressly mentioned or was necessarily implied: Jeffreys v Boosey. Furthermore, there were powerful policy considerations which combined to generate an absolute doctrine of colonial extraterritorial incompetence. The need to protect British maritime and commercial interests from colonial legislation operating outside colonial boundaries and the possibility that colonial laws or acts done under such laws might involve Great Britain in a breach of international law or of an international obligation were prominent factors which contributed to the development of the doctrine.64

None of these factors provides contemporary justification for the restriction today. The modern rationale is the need to avoid jurisdictional conflicts between the States, as Gibbs J recognised in Robinson v Western Australian Museum: The doctrine limiting the power of State legislatures to enact legislation having extraterritorial effect is colonial in its origins, vague and uncertain in its nature and often inconvenient in its operation. The only possible justification in principle for the doctrine is as a means of preventing or mitigating conflicts between the laws of two legislatures, when both sets of laws operate within the same territorial area.65

63 (1969) 122 CLR 177 at 189. 64 (1988) 166 CLR 1 at 11. 65 (1977) 138 CLR 283 at 303–4. His Honour made the same point earlier in Pearce v Florenca (1976) 135 CLR 507 at 519.

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The nature of these jurisdictional conflicts is explored below. However, apart from the area of offshore waters, it is doubtful whether two State laws can operate within the same territorial area as contemplated by Gibbs J. They may claim to impose different liabilities regarding the same conduct occurring within one State, but this is not to say that both laws purport to operate within that State.

7.6.1 Australia Acts 1986 Today, the capacity of the States to legislate extraterritorially, like that of the Commonwealth, is confirmed by statute. Yet, while the States’ capacity remains restricted, that of the Commonwealth under s 3 of the Statute of Westminster 1931 (Imp) is unrestricted: ‘It is hereby declared and enacted that the Parliament of a Dominion has full power to make laws having extraterritorial operation’. This provision, which was adopted in 1942 by the Commonwealth’s Statute of Westminster Adoption Act, was confined to the Commonwealth, leaving the States subject to their accepted extraterritorial restriction.66 In 1986 though, specific provision was made for the States’ capacity to legislate extraterritorially in s 2(1) of the Australia Acts 1986: It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State that have extra-territorial operation.67

Following its enactment, debate ensued whether s 2(1) removed the extraterritorial restriction on State power. Two conflicting interpretations emerged. The first, which focused on the inclusion of ‘full power’, was that it removed the previously recognised restriction on State extraterritorial competence.68 The other view was that it preserved the restriction by including the traditional formula of ‘peace, order and good government’ from which the restriction is said to be derived.69 Yet neither of these views is satisfactory because both fail to grasp the point, made earlier, that each State’s limited extraterritorial competence derives from the conferral of power to make laws ‘for . . . that State’. Importantly, that requirement is expressly maintained in s 2(1). In this respect, s 2(1) differs from s 3 of the Statute of Westminster which omits reference to the territory of a dominion. It seems reasonable to conclude that this omission was intended to ensure the removal of any extraterritorial restriction on Commonwealth power.70 66 According to Robert R. Garran in his article, ‘The Statute and Australia’ (1932) 13 British Yearbook of International Law 116, 116, the States wanted to enjoy the same protection from invalidity on the grounds of repugnancy and extraterritoriality as the Commonwealth under the Statute of Westminster. A provision along the lines of s 3 was recommended in paras 38–9 of the Report of the 1929 Conference on the Operation of Dominion Legislation (Cmd 3479) which was approved by the Imperial Conference of 1930 (Cmd 3717). 67 Came into effect 5 am GMT, 3 March 1986. 68 Moshinsky, above n 3, especially 781–3. See also Damien J. Cremean, ‘Australia – You’re Legislating in It!’ (1986) 60 Law Institute Journal 436, 437. 69 See Christopher D. Gilbert, ‘Extraterritorial State Laws and the Australia Acts’ (1987) 17 Federal Law Review 25; P. M. Griffin, ‘Division 30 of the Stamp Duties Act: Territoriality and the Australia Acts 1986’ (1988) 17 Australian Tax Review 142. 70 Section 3 provides: ‘It is hereby declared and enacted that the Parliament of a Dominion has full power to make laws having extraterritorial operation.’ Trindade, above n 34, 239, argues that s 2 (1) of the Australia

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By describing the power to make laws for the State, s 2(1) simply confirms the limited extraterritorial competence of the State parliaments. The inclusion of ‘declared and enacted’ in s 2(1) supports this view. It is significant that never before had there been statutory recognition of this competence. Also, this interpretation of s 2(1) accords with the modern rationale for the restriction noted above, to avoid or alleviate the incidence of jurisdictional conflicts, especially between the Australian States.71 It is reasonable to assume that this rationale led the High Court to comment in obiter in Union Steamship Co of Australia Pty Ltd v King72 that the States should remain subject to an extraterritorial restriction, irrespective of s 2(1) of the Australia Acts. Accordingly, the Court rejected the submission of the Solicitor-General for New South Wales that State parliaments should not be subject to any restriction on their extraterritorial competence.73 While leaving open the effect of s 2(1), the joint judgment relied instead on the Commonwealth Constitution for maintaining a territorial restriction on State power: [T]he nineteenth century decisions do not deny that the words ‘peace, order and good government’ may be a source of territorial limitation, however slight that limitation may be. And, as each State Parliament in the Australian federation has power to enact laws for its State, it is appropriate to maintain the need for some territorial limitation in conformity with the terms of the grant, notwithstanding the recent recognition in the constitutional rearrangements for Australia made in 1986 that State Parliaments have power to enact laws having an extraterritorial operation: Australia Act 1986 (Cth), s 2(1); Australia Act 1986 (UK) s 2(1). That new dispensation is, of course, subject to the provisions of the Constitution (see s 5(a) of each Act) and cannot affect territorial limitations of State legislative powers inter se which are expressed or implied in the Constitution. That being so, the new dispensation may do no more than recognise what has already been achieved in the course of judicial decisions.74 (emphasis added)

No indication is given of these express or implied territorial limitations on State legislative powers inter se to be found in the Commonwealth Constitution. Possibly, the Court may have had in mind, as express provisions, ss 108, 112, 113 and 118.75 These provisions are considered below. What is clear is that by virtue of the federal structure the legislative power of the States remains restricted extraterritorially.76 In Mobil Oil Australia Pty Ltd v Victoria77 the joint judgment of Gaudron, Gummow and Hayne JJ regarded ‘as settled’ by the Court the view expressed by Gibbs J in Pearce v Florenca:

Acts was intended to have the same effect as s 3 of the statute; see also Moshinsky, above n 3, 785. It has been recognised that the statutory presumption against extraterritorial operation assumed greater importance at the Commonwealth level with the enactment of s 3: R v Foster; Ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256 at 275 per Dixon CJ. 71 See Gibbs J in Pearce v Florenca (1976) 135 CLR 507 at 519 and in Robinson v Western Australian Museum (1977) 138 CLR 283 at 303–4. 72 (1988) 166 CLR 1. 73 Ibid 13–14. 74 Ibid. 75 See Boath v Wyvill (1989) 85 ALR 621 at 638. 76 See State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 271 per Brennan CJ, Deane, Toohey and Gaudron JJ. 77 (2002) 211 CLR 1 at 34 [48]. Also accepted by Gleeson CJ at 22 [9].

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It is clear that legislation of a State parliament ‘should be held valid if there is any real connection – even a remote or general connection – between the subject-matter of the legislation and the State.’78 This proposition has now twice been adopted in unanimous judgments of the Court79 and should be regarded as settled. That is not to say, however, that there may not remain some questions first, about what is meant in a particular case by ‘real connection’ and secondly, about the resolution of conflict if two States make inconsistent laws.80

In any event, the modern rationale for the extraterritorial restriction has been disputed on grounds of principle and practicality. On principle, it has been suggested such a restriction is inconsistent with the ‘States being fully mature self-governing polities’, especially when the territories might be accorded greater extraterritorial power under s 122.81 As for practicality, it has been argued that it may be better to have conflicting legislation rather than no legislation at all.82

7.6.2 Incapacity to change another jurisdiction’s law While the States and territories possess the capacity to legislate extraterritorially, they obviously cannot alter the law of another State or territory. This point was made clear in Permanent Trustee Co (Canberra) Ltd v Finlayson83 where the deceased left two wills: one disposing of her estate in the ACT and appointing a trustee company in the ACT; the other disposing of her estate in New South Wales and appointing a New South Wales executor. The New South Wales Commissioner of Stamp Duties assessed the New South Wales estate to include the ACT property and sought to recover payment of the New South Wales duty from the ACT estate as the New South Wales estate was insufficient to cover the duty. The High Court rejected this claim brought in reliance on s 118 of the Commonwealth Constitution and s 18 of the State and Territorial Laws and Records Recognition Act 1901 (Cth)84 since this amounted to New South Wales law altering ACT law in the administration of deceased estates. The Court observed: . . . it is one thing to give full faith and credit to the New South Wales Stamp Duties Act as achieving all that it purports to achieve as an alteration of the law of New South Wales, and quite another thing to treat it as producing an extra-territorial result which on its true construction it does not purport to have and could not constitutionally have, namely to alter the law of the Territory as to Territory administrations.85

7.6.3 Statutory presumption Since legislation is often drafted in terms which do not expressly confine it to the territory of a State or territory, the courts readily imply a presumption that it is not 78 Pearce v Florenca (1976) 135 CLR 507 at 518 per Gibbs J. 79 Union Steamship (1988) 166 CLR 1 at 14; Port MacDonnell Professional Fishermen’s Assn, above n 16 at 372. 80 Port MacDonnell, ibid 374; State Authorities Superannuation Board, above n 76 at 285–6 per McHugh and Gummow JJ. 81 Moshinsky, above n 3, 785. 82 Trindade, above n 34, 239. 83 (1968) 122 CLR 338 at 343. 84 Re-enacted as s 185 Evidence Act 1995 (Cth). 85 (1968) 122 CLR 338 at 343.

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intended to operate extraterritorially. A classic description of this presumption was given by O’Connor J in Jumbunna Coal Mine, No Liability v Victorian Coal Miners’ Association: In the interpretation of general words in a Statute there is always a presumption that the legislature does not intend to exceed its jurisdiction. Most statutes, if their general words were to be taken literally in their widest sense, would apply to the whole world, but they are always read as being prima facie restricted in their operation within territorial limits.86

The application of this presumption is well illustrated in Pearce v Florenca where s 24(1) of the Fisheries Act 1905 (WA) made it an offence to have undersized fish (wherever caught), inter alia, on any boat. Literally, the offence might have been committed on any boat anywhere in the world. To avoid exceeding the legislative capacity of the Western Australian Parliament, the offence was read down only to apply to boats within the State’s offshore waters. Similarly, the Queensland Full Court in Horgan v Sieber; Ex parte Horgan87 confined an offence under the Racing and Betting Act 1954 (Qld) for possessing ‘any instrument of betting on horse racing’ to instruments used for unlawful betting in Queensland. It was clear from the context of the Act that the offence was not concerned with the possession of instruments of betting outside Queensland. The ease with which this presumption is displaced depends on the particular extraterritorial element of the law. Displacement is more likely to occur where the extraterritorial operation is necessary for the efficacy of the law – such as criminal offences or in State offshore waters, rather than when the asserted operation is within an overseas jurisdiction. As Malcolm CJ in Dempster v NCSC observed: The use of the presumption against the extra-territorial application of criminal laws, which presumption was developed by English courts in cases involving acts or events in other nations, is open to question when sought to be applied within the federation of Australian States. The presumption is based, at least in part, on notions of the comity of nations, the difficulty of enforcement of the law against persons in another jurisdiction, and, it seems to me, more fundamentally, the absence of any real interest in the application of those laws to events or persons outside the sovereign territory of England. The same considerations do not apply, at least not as strongly, in the context of corresponding laws for the regulation of companies within Australia.88

In that case, s 129 of the Companies (Queensland) Code, which prohibited a company from financing dealings in its own shares, was held to have extraterritorial operation in Western Australia in relation to a company incorporated in Queensland. The Acts Interpretation Acts prescribe two rules of statutory interpretation which are derived from this common law rule presumption: first, an Act should 86 (1908) 6 CLR 309 at 363. See also Welker v Hewitt (1969) 120 CLR 503 at 511 per Kitto J. 87 [1976] Qd R 25. 88 (1993) 9 WAR 215 at 241–2. Walsh and Anderson JJ agreed with Malcolm CJ.

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be interpreted so as not to exceed the scope of the legislature’s power;89 and second, a reference in a statute to an officer, office or entity, or to a locality, jurisdiction or other thing is a reference to any of those matters within the enacting jurisdiction.90 It is important to recognise the distinction between this common law presumption of statutory interpretation, and the limited scope of State extraterritorial legislative power. Both may need to be applied in a particular case. The presumption should be applied first, and only if it has been rebutted by an evident intention to legislate extraterritorially, is it necessary to consider the validity of that operation.91

7.7 Nature of a sufficient connection or nexus To the extent a State or territory law professes to operate extraterritorially, the basic test is whether there is a sufficient connection or nexus between the extraterritorial element and the interests of the State. This test clearly involves issues of degree. The High Court has endorsed on several occasions the view expressed by Gibbs J in Pearce v Florenca,92 that this test of sufficient connection is to be applied liberally so that even a remote or general connection will be sufficient.93 His Honour noted that it is unhelpful simply to ask, is the law for the peace, order or good government of the State? A more precise test is required, such as whether the law is ‘connected, not too remotely, with the State which enacted it’, or whether ‘it [operates] on some circumstance which really appertains to the State’.94 Given the plenary nature of State legislative power, a flexible approach in finding a sufficient connection is warranted: [I]t is obviously in the public interest that the test should be liberally applied, and that legislation should be held valid if there is any real connexion – even a remote or general connexion – between the subject matter of the legislation and the State. And it has been established in Cobb & Co Ltd v Kropp, that within their limits the legislatures of the States have powers ‘as plenary and as ample’ as those of the Imperial Legislature itself. It would seem anomalous and unfitting that the enactments of such a legislature should be held invalid on narrow or technical grounds.95

89 See s 15A Acts Interpretation Act 1901 (Cth); s 31 Interpretation Act 1987 (NSW); s 9 Acts Interpretation Act 1954 (Qld); s 22A Acts Interpretation Act 1915 (SA); s 3 Acts Interpretation Act 1931 (Tas ); s 7 Interpretation Act 1984 (WA); s 11AA Interpretation Act 1967 (ACT); s 59 Interpretation Act 1967 (NT). 90 See s 21 Acts Interpretation Act 1901 (Cth); s 12 Interpretation Act 1987 (NSW); s 35 Acts Interpretation Act 1954 (Qld); ); s 48 Interpretation of Legislation Act 1948 (Vic); s 27 Acts Interpretation Act 1931 (Tas); s 25 Interpretation Act 1967 (ACT); s 38 Interpretation Act 1967 (NT). Cf D. C. Pearce & R. S. Geddes, Statutory Interpretation in Australia (4th edn, Sydney: Butterworths, 1996) 170. 91 Cf Ex parte Iskra [1963] SR (NSW) 538 at 553 per Brereton J. 92 (1976) 135 CLR 507 at 518. 93 See Union Steamship case (1988) 166 CLR 1 at 14, Port MacDonnell Professional Fishermen’s Assn Inc v South Australia (1989) 168 CLR 340 at 372 and Mobil Oil Aust Pty Ltd v Victoria (2002) 211 CLR 1 at [9] 22–3; [123] 58–9. 94 (1976) 135 CLR 507 at 517 – adopting Latham CJ in Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337 at 358. 95 Pearce v Florenca (1976) 135 CLR 507 at 518.

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In Pearce v Florenca, Barwick CJ also indicated a flexible approach in describing extraterritorial competence as extending to matters which ‘touch and concern’ the peace, order and good government of the State.96 Similarly, in Trustees Executors & Agency Co Ltd v Federal Commissioner of Taxation, Evatt J considered that Croft v Dunphy had confined the restriction to ‘a very small compass indeed’97 and that it would be ‘a very rare case’98 where a law would be held invalid for extraterritorial incompetence. This flexible approach, suggested by Gibbs J in Pearce v Florenca,99 has since been specifically endorsed by the High Court in Union Steamship Co of Australia Pty Ltd v King,100 Port MacDonnell Professional Fishermen’s Assn Inc v South Australia,101 and Mobil Oil Aust Pty Ltd v Victoria.102 While a flexible approach may be appropriate in relation to legislation which claims to operate in a State’s offshore waters, it is not necessarily appropriate in other cases where a clash is likely with the law of another State. Nor is it necessarily appropriate where a State imposes a statutory liability on residents of other States who have only an indirect, remote connection with that State. As in Pearce v Florenca, all of the decisions referred to above which have endorsed the view of Gibbs J in that case, apart from Mobil Oil, involved extraterritorial operation of State laws within the State’s offshore waters. These cases concern a direct regulation of an activity occurring within the territorial sea or the high seas beyond. The mere proximity of those activities to the State and the lack of any conflict with the law of any other jurisdiction readily established a sufficient connection. As Gibbs J observed in Pearce v Florenca, it would be ‘anomalous and unfitting’ in such cases to adopt a technical or narrow view. But the same cannot be said in relation to laws which purport to affect persons in other States or territories. A flexible approach here is not appropriate in a federal system. It increases the likelihood of a clash of State and territory laws for which the Commonwealth Constitution provides no express resolution. And even when no clash arises, the imposition of liabilities on residents of other States can only be justified if a substantive connection exists with the enacting State. To permit, for instance, one State to tax the residents of other States because of some remote connection with the former, undermines government accountability and leaves the residents of other States vulnerable. It could subject the federal system to an intolerable strain. Accordingly, the ease with which the sufficient connection test is satisfied must depend on the circumstances of each case. This more considered approach is evident in two significant decisions of the High Court which predated Pearce v Florenca, each concerned with the extraterritorial imposition of a State tax. In the first decision, the tax was upheld. In the latter it was not. The first, Broken Hill South Ltd v Commissioner of Taxation (NSW),103 involved a Victorian company which was assessed for New South Wales income tax on interest payable from debentures secured by a mortgage on property situate both within and outside New South Wales. Both the debentures and the mortgage were 96 Ibid 512. 97 (1933) 49 CLR 220 at 235. 98 Ibid 236. 99 (1976) 135 CLR 507. 100 (1988) 166 CLR 1 at 14. 101 (1989) 168 CLR 340 at 372. 102 (2002) 211 CLR 1 at 22–3 [9]; 58–9 [123]. 103 (1937) 56 CLR 337.

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registered in New South Wales. The High Court held 5–1 that this benefit satisfied the requisite connection.104 Essentially, liability was imposed on an entity outside New South Wales because it derived the benefit of securities registered in that State on property in that State. Latham CJ considered this an extreme case.105 Rich J, in sole dissent, found an insufficient connection with New South Wales because the tax regime relied on the possibility that the property secured in that State would contribute to the income taxed rather than relying on the extent to which it in fact so contributed.106 The enforcement of this tax against the Victorian company was possible as it was registered as a foreign company in New South Wales. Sir Owen Dixon articulated in this case a classic statement of the sufficient connection test: The power to make laws for the peace, order and good government of a State does not enable the State Parliament to impose by reference to some act, matter or thing occurring outside the State a liability upon a person unconnected with the State whether by domicil, residence or otherwise. But it is within the competence of the State legislature to make any fact, circumstance, occurrence or thing in or connected with the territory the occasion of the imposition upon any person concerned therein of a liability to taxation or of any other liability. It is also within the competence of the legislature to base the imposition of liability on no more than the relation of the person to the territory. The relation may consist in presence within the territory, residence, domicil, carrying on business there, or even remoter connections. If a connection exists, it is for the legislature to decide how far it should go in the exercise of its powers.107

The second decision is Commissioner of Stamp Duties (NSW) v Millar108 where a deceased estate outside New South Wales was held to be insufficiently concerned with the carrying on of business within that State to be liable for New South Wales death duty. A majority109 of the High Court held that New South Wales death duty could not be validly imposed in relation to shares owned by the deceased (who was resident and domiciled in Victoria) in several Victorian registered companies which mined in New South Wales. The connection with New South Wales was regarded as too remote because, as the joint judgment of Rich, Dixon and McTiernan JJ noted, the focus of the liability was on the shares, not on the economic advantage obtained from New South Wales. Their Honours indicated that a sufficient connection might exist had the duty been imposed on that part of the shares’ value which reflected the extent of the companies’ business in New South Wales, or if the deceased had some personal connection with the State.110 Starke J concluded that the connection between the shares and the business carried on in New South Wales was ‘somewhat attenuated’ and that the tax exceeded the legislative capacity of the New South Wales Parliament, given that the shares were not situate in the State, nor issued by any company 104 Ibid per Latham CJ at 358–9; Starke J at 366–7; Dixon J at 375–6; Evatt J at 379–80; McTiernan J at 380 simply agreed with the Chief Justice and Dixon J; contra Rich J at 361. 105 Ibid 359. 106 Ibid 361. 107 Ibid 375. 108 (1932) 48 CLR 618. 109 Rich, Starke, Dixon and McTiernan JJ; contra Gavan Duffy CJ and Evatt J. 110 Ibid at 632 per Rich, Dixon and McTiernan JJ.

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incorporated in the State, nor owned by any person resident or domiciled in the State.111 In their joint dissent, Gavan Duffy CJ and Evatt J regarded the holding of shares in a company carrying on business in the State as a sufficient connection with that State for imposing a tax on that shareholder’s estate.112 Their Honours adopted a flexible approach in holding that a State could select ‘any event, circumstance, or course of activity within its borders’113 as the basis for the imposition of a tax liability. Also, the extent of its business carried on in the State compared with that carried on outside the State was irrelevant.114 These decisions have significant ramifications for the vulnerability of State residents to be taxed or otherwise affected by other States in relation to some remote connection in those States. At least the majority approach in Commissioner of Stamp Duties (NSW) v Millar115 offers some protection from extraterritorial liability. In these cases, the protection afforded the rights of residents of different States by s 117 of the Commonwealth Constitution is useless in the absence of discrimination.116 In this area, a liberal approach to finding a sufficient connection should not be adopted. A resident in one State should not necessarily be subjected to another State’s imposition of liability by virtue of some remote or general connection. Otherwise, the protection of individual liberty and property is at risk. A substantive connection reduces this risk. In Canada, this concern is recognised in the principle that service of originating proceedings against a defendant can only be effected outside a province where the defendant has a sufficiently substantial connection with the forum.117 Once a sufficient connection is established, it is unlikely that a lack of proportionality might be relied on to invalidate a State law. Dixon J in Broken Hill South Ltd v Commissioner of Taxation (NSW)118 confined the court’s function to deciding whether the circumstances provided a nexus, so as not to include consideration of the nature of the regulation: No doubt there must be some relevance to the circumstances in the exercise of the power. But it is of no importance upon the question of validity that the liability imposed is, or may be, altogether disproportionate to the territorial connection or that it includes many cases that cannot have been foreseen.119

This approach is consistent with that explained in Leask v Commonwealth,120 which confined the relevance of proportionality to a narrow scope in characterising Commonwealth laws. If the direct legal effect of the law falls within a head of power, its proportionality is generally irrelevant; so too, where a law is characterised within the incidental scope of a power because it has a sufficient connection with the subject matter of that head of power. Similarly, if a sufficient connection with the interests of the State is found, the proportionality of 111 Ibid 636. 112 Ibid 628–9. 113 Ibid 628. 114 Ibid 630. 115 (1932) 48 CLR 618. 116 See Street v Queensland Bar Association (1989) 168 CLR 461. 117 See De Savoye v Morguard Investments [1990] 3 SCR 1077; Hunt v T & N [1993] 4 SCR 289 at 327 extended principle to other court orders – cited in Hogg, above n 32, 13.5(c). 118 (1937) 56 CLR 337. 119 Ibid. 120 (1996) 187 CLR 579.

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the extraterritorial law is not in issue. However, as recognised in Leask, a lack of proportionality may, in an exceptional case, indicate the absence of a connection with a head of power or with the interests of a State.

7.8 Categories of extraterritoriality Sir Owen Dixon’s classic test in Broken Hill South Ltd v Commissioner of Taxation (NSW),121 referred to above, effectively identifies three general categories where the sufficient connection test is likely to be satisfied: (1) where the law imposes liability on any person who has a relationship with the State, by reference to some act, matter or thing occurring outside the State; (2) where the law imposes liability on any person who is concerned with any act, circumstance, occurrence or thing within the State; or (3) where the law imposes liability on any person who is concerned with any act, circumstance, occurrence or thing outside the State which is connected with the State. Category (1) requires nothing to occur within the State, relying only on the person’s relationship with the State. Categories (2) and (3), unlike (1), concern persons who are not necessarily present in the State nor have any relationship with the State, apart from the relationship which arises by virtue of the connection established in those categories. Although these two categories are closely related, they differ in relation to the locus of the basis for the imposition of liability. In (2), liability is imposed by reference to events occurring within the State; in (3), it is imposed by reference to events which occur outside the State. This distinction serves to establish a connection more easily in (2) than in (3). An extreme example of an extraterritorial law which falls outside each of these categories is given by Evatt J in Trustees Executors & Agency Co Ltd v Federal Commissioner of Taxation, namely, for a State to ‘make punishable within its borders an assault committed upon French soil by a Frenchman upon a Frenchman’.122 As his Honour concluded, such a law would be invalid for having no connection whatever with the State. Each of these categories is explored below by reference to some of the more prominent cases where the extraterritorial competence of a State has been in issue. (1)

where the law imposes liability on any person who has a relationship with the State, by reference to some act, matter or thing occurring outside the State

121 (1937) 56 CLR 337. 122 (1933) 49 CLR 220 at 235–6 – although he referred to New Zealand so enacting pre-Statute of Westminster. Possibly inspired by the scenario cited by John Salmond in his article ‘The Limitations of Colonial Legislative Power’ (1917) 80 Law Quarterly Review 117, 120.

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This category covers cases where the State law extends extraterritorially by imposing on persons, who possess a relationship with the State, liability in respect of acts committed or matters existing outside the State. The relationship, as Dixon J described it in the Broken Hill South case, may ‘consist in presence within the territory, residence, domicil, carrying on business there, or even remoter connections’. This relationship alone provides the sufficient connection to impose a liability for something which has no other connection with the State. A simple example within this category was given by Latham CJ in the Broken Hill South case: a resident of a State can be taxed by that State ‘in respect of his income wherever derived, his property wherever situated, or of any other circumstance’.123 A further example might be derived from MacLeod v AttorneyGeneral for New South Wales,124 if the statutory offence for bigamy had been confined to residents of New South Wales who entered into a bigamous marriage anywhere in the world. Domicil was used in Trustees Executors & Agency Co Ltd v Federal Commissioner of Taxation125 to impose federal death duty on the estate of any person who, at the time of death, was domiciled in Australia. The estate was deemed to include their personal property, wherever situated, including property transferred by way of gift within the year preceding death. The court readily held this liability validly attached to property situated abroad. Only Evatt J explored extraterritoriality in any depth – because in catching transfers of property within a year of death, there was no requirement that the deceased was domiciled at that time in Australia, and in view of the fact that Australia had not yet adopted s 3 of the Statute of Westminster. This category obviously includes corporations incorporated in a State or territory. Mere incorporation provides the nexus to support their regulation in relation to activities occurring outside that State: Dempster v NCSC.126 In that case, s 129 of the Companies (Queensland) Code was held to have extraterritorial operation in Western Australia in relation to a company incorporated in Queensland.127 The inclusion of ‘even remoter connections’ at the end of Dixon J’s test introduces uncertainty here in the absence of any clear principle which justifies why a relationship alone provides a sufficient connection. For instance, would merely having visited the State in the past be sufficient? Latham CJ thought not in suggesting that a head tax on all persons in a State might not be validly extended to any person outside the State who had visited the State in the past.128 Nor should it be. Nor should mere ownership of property constitute a sufficient connection to enable any law to be directed to the owner in respect of any matter occurring outside the State. The relationship to a polity of citizenship, domicil or residence has traditionally attracted its jurisdiction as the most appropriate polity to provide protection and to regulate. Not only is their status dependent on that polity’s laws, but their status has served to resolve the potential of conflicting jurisdiction. 123 (1937) 56 CLR 337 at 356. 124 [1891] AC 455. 125 (1933) 49 CLR 220. 126 (1993) 9 WAR 215. 127 See also Myer Emporium v Commissioner of Stamp Duties (1967) 68 SR (NSW) 220.

128 Ibid 356.

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It is difficult to perceive other relationships with the State which alone provide a sufficient connection with the State. (2)

where the law imposes liability on any person who is concerned with any act, circumstance, occurrence or thing within the State

The cases which most often fall within this category are those involving the imposition of a tax or other liability on persons outside the State in respect of an activity or thing within the State. States may cast their legislation extraterritorially to apply to such persons if they are sufficiently ‘concerned’ with that activity or thing within the State in respect of which the liability is imposed. The High Court has sought at times some form of personal concern before finding a sufficient connection. Here again, a substantive rather than some remote connection is sought. Clear examples of this basis for extraterritorial operation are found in challenges to State road maintenance charges levied for the use of the State’s roads on interstate registered vehicles or their out-of-State owners: Ex parte Iskra;129 O’Sullivan v Dejneko;130 and Welker v Hewett.131 In both Ex parte Iskra132 and O’Sullivan v Dejneko,133 the owners of a commercial vehicle in each case, registered in another State, were held liable to pay New South Wales road maintenance charges, calculated on the mileage covered on New South Wales roads and payable by the actual or registered owner of the vehicle who was under an obligation to record and supply a record of mileage covered. As owner, each was concerned in the activity of driving on New South Wales roads, at least because in Ex parte Iskra the owner actually drove the vehicle himself. In O’Sullivan v Dejneko,134 however, the owner had given a general licence to his son (who was not his servant or agent)135 to drive the vehicle. Although Kitto J136 relied on this licence to find a sufficient connection, the joint majority of Taylor, Windeyer and Owen JJ137 (with whom Menzies J agreed) relied solely on actual or registered ownership of the vehicle. In Welker v Hewett,138 New South Wales extended its legislation to impose the liability to pay the road maintenance charges, in the event that a corporate owner failed to do so, on each director, member or manager of the body corporate whose vehicles used New South Wales roads. As one of two directors of a South Australian company whose South Australian registered vehicle incurred New South Wales road maintenance charges, Welker successfully challenged the imposition of this liability on him on the ground that he was not concerned with the activity in New South Wales. He had no connection with New South Wales. To be ‘concerned’ within Dixon J’s test in the Broken Hill South case, Kitto J (with whom Barwick CJ and Menzies J agreed) required ‘a personal implication or involvement in [the] fact, circumstance, occurrence or thing’139 within the enacting State. This might have been so had the liability been imposed on those 129 132 135 138

[1963] SR (NSW) 538. 130 (1964) 110 CLR 498. [1963] SR (NSW) 538. 133 (1964) 110 CLR 498. Ibid. 136 Ibid 505. 137 Ibid 509–10. (1969) 120 CLR 503. 139 Ibid 512.

131 (1969) 120 CLR 503. 134 Ibid.

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directors who were concerned with the actual driving on New South Wales roads or the company’s failure to pay the charges. His Honour was not prepared to accept that all directors are responsible for their company’s failure to pay specific debts. In dissent, McTiernan J agreed with the New South Wales Court of Appeal that a sufficient connection existed simply by virtue of being a director of the company whose vehicle used New South Wales roads, given that directors control the management of the company’s affairs including its vehicles.140 Instead of focusing on the collective responsibility of company directors, the majority relied on their individual responsibility to find an insufficient connection. Welker v Hewett was followed by a majority in Cox v Tomat,141 despite an attempt to distinguish the Western Australian legislation in the latter case, where the same liability was imposed on both the directors of the corporate owner of a vehicle, as well as on the company. This distinction was, nevertheless, accepted by the minority of the court, McTiernan J and Menzies J, the latter observing that: a director of a company is sufficiently responsible for the business operations of the company, while he is a director, to enable the Parliament of a State to impose on him obligations arising out of the company’s operations in that State, notwithstanding that the company is incorporated in another State and the director has no connexion with the State whose laws the company has infringed other than that the company infringed those laws in carrying on business there.142

Welker v Hewett was distinguished by the minority on the ground that the directors were liable in that case, irrespective of whether they were directors at the time the company’s vehicles incurred the liability to the New South Wales charges. This was an insufficient connection compared to that in Cox v Tomat where liability was imposed on the directors of the company at the same time as the company’s liability was incurred. (3)

where the law imposes liability on any person who is concerned with any act, circumstance, occurrence or thing outside the State which is connected with the State

This category differs from (2) above in that the liability is imposed in respect of some activity or thing which occurs outside the State, yet is sufficiently connected with the State. The connection tends to be less direct than that found in category (2) where the liability is imposed in respect of some activity or thing which occurs within the State. Although the distinction between the two categories can be blurred, there is no necessity to classify a case within one or the other. But if this is possible, it assists to identify the sufficiency of the connection. Also in this category are the two decisions discussed earlier, Broken Hill South Ltd v Commissioner of Taxation (NSW)143 and Commissioner of Stamp Duties (NSW) v Millar.144 In each case a tax was imposed on a person outside the State 140 Ibid 507–8. 141 (1972) 126 CLR 105 at 112 per Barwick CJ, at 121 per Walsh J, at 126 per Gibbs J. 142 Ibid 115. See McTiernan J at 114. 143 (1937) 56 CLR 337. 144 (1932) 48 CLR 618.

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in respect of an event which occurred outside the State, although calculated on the basis of some fact or activity which occurred within the State. As noted earlier in Broken Hill South Ltd v Commissioner of Taxation (NSW),145 New South Wales imposed a liability to income tax on a Victorian registered company relating to debenture interest paid in Victoria to that company. The connection with New South Wales was the fact that the debentures were secured by a mortgage on property situate both within and outside New South Wales, with both the debentures and the mortgage registered in that State. Essentially, liability was therefore imposed on an entity outside New South Wales because it derived the benefit of securities registered in that State on property in that State.146 In stark contrast with the flexible approach later advocated by Gibbs J in Pearce v Florenca,147 Latham CJ considered this an extreme case.148 Rich J, in sole dissent, found an insufficient connection with New South Wales because the tax regime relied on the possibility that the property secured in that State would contribute to the income taxed rather than relying on the extent to which it in fact so contributed.149 In contrast with this is the earlier decision in Commissioner of Stamp Duties (NSW) v Millar,150 where liability for death duty was imposed by a New South Wales law on a deceased estate in Victoria. Death duty was payable on the value of shares owned by the deceased, who was resident and domiciled in Victoria, in several Victorian registered companies because they carried on business (that is, mining) in New South Wales. A majority of the High Court151 held that was insufficiently concerned with the carrying on of business within that State. The connection with New South Wales was regarded as too remote because, as the joint judgment of Rich, Dixon and McTiernan JJ noted, the focus of the liability was on the shares, not on the economic advantage obtained from New South Wales. Their Honours indicated that a sufficient connection might exist had the duty been imposed on that part of the shares’ value which reflected the extent of the companies’ business in New South Wales, or if the deceased had some personal connection with the State.152 Starke J concluded that the connection between the shares and the business carried on in New South Wales was ‘somewhat attenuated’ and that the tax exceeded the legislative capacity of the New South Wales Legislature, given that the shares were not situate in the State, nor issued by any company incorporated in the State, nor owned by any person resident or domiciled in the State.153 In their joint dissent, Gavan Duffy CJ and Evatt J regarded the holding of shares in a company carrying on business in the State as a sufficient connection with that State for imposing a tax on that shareholder’s estate.154 Their Honours adopted 145 (1937) 56 CLR 337. 146 Ibid per Latham CJ at 358–9; Starke J at 366–7; Dixon J at 375–6; Evatt J at 379–380; McTiernan J at 380 simply agreed with the Chief Justice and Dixon J; contra Rich J at 361. 147 (1976) 135 CLR 507. 148 Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337 at 359. 149 Ibid 361. 150 (1932) 48 CLR 618. 151 Rich, Starke, Dixon and McTiernan JJ; contra Gavan Duffy CJ and Evatt J. 152 Ibid at 632 per Rich, Dixon and McTiernan JJ. 153 Ibid 636. 154 Ibid 628–9.

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a flexible approach in holding that a State could select ‘any event, circumstance, or course of activity within its borders’155 as the basis for the imposition of a tax liability. Furthermore, the extent of its business carried on in the State compared with that carried on outside the State was irrelevant.156

Stamp duty A further instance of extraterritorial operation arises in relation to the imposition of stamp duty on instruments executed and on transactions which occur outside the State. The former fall within this category where the duty is imposed in respect of the act of executing the instrument outside the State, but a sufficient connection with the State exists since the instrument affects property within the State, and the legal effect of the instrument depends on that State’s law. It has been suggested that this connection is less clear when the duty is imposed in respect of a transaction.157 In this context, it has been argued that a sufficient connection needs to be a legal relationship, not a mere economic or non-legal relationship: [A] person must be relying on the laws of the State for the efficacy of his transaction and have the advantage of those laws before there is a nexus of sufficient solidity for taxation of that person by the State.158

Similarly, it has been argued that to be ‘sufficiently concerned therein’ requires a legal or equitable interest, not simply an economic interest, because only the former enjoys the benefit of the law of the State.

Result offences Other cases may arise within this category where the law purports to extend across State borders to achieve some benefit for the enacting State. For example, South Australia might impose a penalty on those responsible in any State for affecting the quality of the rivers in their State which eventually flow into and pollute the Murray River. If the link of causation could be proven, a sufficient nexus with South Australia might well be established, despite the offence having been committed entirely outside South Australia. Less problematic would be a South Australian offence for polluting the South Australian waters of the Murray River. The elements of such an offence might occur across several States, but the pollution must arise in South Australia. This is termed a ‘result offence’. Legislation of this nature was considered in Brownlie v State Pollution Control Commission.159 In that case, the Clean Waters Act 1970 (NSW) made it an offence 155 Ibid 628. 156 Ibid 630. 157 Griffin, above n 69, 147; see the Div 30 example. 158 Ibid. 159 (1992) 27 NSWLR 78. Similar facts arose in Interprovincial Cooperatives v The Queen [1976] 1 SCR 477 where the Supreme Court of Canada held 4–3 Manitoba legislation invalid for lacking a sufficient connection in creating a statutory right of action against out-of-province farmers who polluted rivers flowing into Manitoba and destroyed their fisheries.

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to ‘pollute any waters’ (s 16(1)), and deemed a person to so pollute if they allowed a substance to be washed into the water (s16(2)). A Queensland farmer was prosecuted for this offence for spraying his crops with an insecticide which was washed by rainfall into the adjoining Barwon River, polluting its waters. The middle of the river formed the border between Queensland and New South Wales. While it was accepted that the offence applied only to pollution of New South Wales waters, the New South Wales Court of Criminal Appeal rejected the appellant’s submission that the acts contemplated by s 16(2) had also to occur in New South Wales. As a ‘result offence’, the focus was on the pollution which occurred in New South Wales, while the conduct which caused that result might occur outside the State. This was clearly the intention of parliament, as well as being clearly within the extraterritorial competence of the State.

Maritime laws This category (3) also covers laws which purport to regulate activities within the State’s ‘coastal waters’ (that is, within three nautical miles of the State’s low-water mark), the ‘territorial sea’ (that is, within 12 nautical miles from the low-water mark), and/or beyond to the ‘high seas’. It was clearly recognised in Bonser v La Macchia160 by Barwick CJ161 and Windeyer J162 that the States have the capacity to legislate both within and outside the coastal waters. Compared with the other two categories, the connection with the State under this category tends to be less direct, since there is an extraterritorial event which must influence the State in some way and the person whose legal rights are affected by the law must be concerned to some degree with that outside event. Rarely is there such a clear structural connection, as the jetty in Barnes v Cameron.163 Nonetheless, the States’ capacity to enact extraterritorially is almost unrestricted in relation to the coastal waters and the territorial sea, although the same width of power is not enjoyed in relation to the high seas. This distinction between the coastal waters and territorial sea on one hand, and the high seas on the other, has little significance in relation to ships registered in the enacting State or which use its ports. States readily possess the capacity to regulate employment conditions on those ships. This was the case in Union Steamship Co of Australia Pty Ltd v King164 which involved a challenge to s 46 of the Workers’ Compensation Act 1926 (NSW) as beyond the State’s extraterritorial competence.165 Section 46 extended workers’ compensation to injuries incurred by a worker on a ship which was either registered in New South Wales or engaged on a journey between ports within New South Wales. The joint judgment of the 160 (1969) 122 CLR 177, at 189, 220, 224–6. 161 Ibid 189. 162 Ibid 226. 163 [1975] Qd R 128 (FC). A Green Island jetty regulation preventing the use of loud hailers on the jetty was assumed to operate beyond the territory of Queensland when a violation occurred on the jetty on the seaward side of the low-water mark A sufficient connection was easily found so the law was one for the peace, welfare and good government of Queensland. 164 (1988) 166 CLR 1. 165 Note that s 7(1A) also operated extraterritorially by covering injuries suffered by workers outside the State where they were employed by the employer present in the State. The judgment did not question its validity.

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High Court upheld the extraterritorial operation of s 46 simply on the ground that the registration of the ship in New South Wales was a sufficient connection for the law to be for the peace, order and good government of New South Wales. The Court added: ‘As registration of the ship was a sufficient connexion with the State, it was for the legislature to decide how far it would go, as Dixon J pointed out in Broken Hill South.’166 As noted earlier, the Court left open the precise effect of s 2(1) of the Australia Acts 1986 (Cth), since s 46 preceded the enactment of s 2(1).

Coastal waters and territorial sea Where a State law operates within the State’s coastal waters and the territorial sea, that alone usually establishes a sufficient connection or nexus with the State. Indeed, Windeyer J in Bonser v La Macchia,167 rather colourfully observed that the States could ‘prescribe the size of bathing costumes to be worn by those who swim in the surf.’168 As Gibbs J observed in Pearce v Florenca, geographical proximity means that law enforcement and local industry, including fishing, depend on those waters: The very fact that the waters are the off-shore waters of the State provides the nexus necessary to render valid a law operating within those waters. There is an intimate connexion between the land territory of a State and its off-shore waters. Those waters have been popularly regarded as the waters of the State, and as vital to its trade. The people of the State have traditionally exploited the resources of the off-shore waters and used them for recreation. The enforcement of the laws of the State would be gravely impeded if a person could escape from the reach of the laws and the authority of the State by going below low-water mark.169

A further factor is the unlikelihood of any clash with other State laws within the territorial sea – except in those waters adjacent to the point where the land boundaries meet the sea. Here jurisdictional lines need to be drawn to divide these adjacent waters between the States (see further below). Accordingly, as a general rule, it can be said that, at common law, State power over the territorial sea adjoining its coastline is as plenary as that over the land territory of the State. On this basis, before the Commonwealth conferred170 a general power to legislate over three nautical miles, the Court in Pearce v Florenca upheld the validity of offences prescribed by the Fisheries Act 1905 (WA) for illegal fishing, by restricting them to fishing committed within three miles of the Western Australian coast.171

166 (1937) 56 CLR 337 at 375. 167 (1969) 122 CLR 177, at 189, 220, 224–6. 168 Ibid 224. 169 (1976) 135 CLR 507 at 519. His Honour reversed his view in the Seas and Submerged Lands Act case (New South Wales v The Commonwealth) (1976) 135 CLR 337 at 404–5. See also Jacobs J at 527; Stephens J relied on his views in R v Bull (1974) 131 CLR 203 and the Seas and Submerged Lands Act case (1975) 135 CLR 337 at 337. 170 Coastal Waters (State Powers) Act 1980 (Cth) s 5(a). 171 Section 24(1)(a) was read down to apply only to those in possession of undersized fish within ‘Western Australian waters’; that is, no further than the three mile territorial sea: Gibbs J at 513–4; Mason J at 524; Jacobs J at 527.

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The Court also rejected any inconsistency with the Commonwealth’s declared sovereignty under the Seas and Submerged Lands Act 1973 (Cth).172 A similar argument of inconsistency was made in Robinson v Western Australian Museum173 which involved a challenge to Western Australian legislation dealing with historic shipwrecks off the Western Australian coast, including the Gilt Dragon, a Dutch ship which in 1656 was wrecked 2.87 nautical miles from the coast. The Museum Act 1969 (WA) vested ownership and control of any wrecks located within the territorial sea of Western Australia in the Western Australian Museum. The Maritime Archaeology Act 1973 (WA), which replaced the 1969 Act, extended the regime of potential protection beyond the territorial sea to wrecks lying on or off the Western Australian coast. This Act was held invalid so far as it claimed to vest in the Crown in right of that State certain proprietary interests in historic shipwrecks lying within the territorial waters of Western Australia. Of the statutory majority, only Barwick CJ and Murphy J held that it lay outside the extraterritorial competence of Western Australia, while Gibbs and Mason JJ in dissent concluded otherwise. Jacobs174 and Murphy175 JJ found inconsistency with Part VII of the Navigation Act 1912 (Cth), as well as with s 6 of the Seas and Submerged Lands Act 1973 (Cth).176 Subsequent to the events in this case, the Commonwealth enacted the Historic Shipwrecks Act 1976 (Cth) to protect and regulate all historic shipwrecks within Australian waters. Surprisingly, Barwick CJ refused to acknowledge that ships wrecked off the Western Australian coast before 1900 were of historical interest to the State. In his view, they had nothing to do with the colony or State of Western Australia as they were Dutch vessels trading between Holland and the East Indies.177 Accordingly, the extraterritorial operation of the legislation lacked the necessary connection for it to be for the peace, order and good government of the State. In emphasising the lack of connection with the government of the State, the Chief Justice adopted a narrower test than previously articulated which merely looked to a connection with the interests of the State, such as the local fishing industry. Murphy J simply expressed the view that assertion of dominion over wrecks and archaeological sites beyond the boundaries of the State was outside the extraterritorial competence of the State.178 His Honour, along with Mason179 and Jacobs JJ, also found an inconsistency with s 6 of the Seas and Submerged Lands Act 1973 (Cth). In dissent, Gibbs J readily accepted that the legislation was within the extraterritorial competence of Western Australia, simply because it operated within the territorial waters of the State: ‘To restrict the power of the States to enact legislation taking effect within the offshore waters is a needless impediment to the exercise of their legislative authority’.180 Additionally, a sufficient connection was established because ‘[t]he wreck of the Gilt Dragon is part of the history of Western Australia’, while the regulation of such wrecks maintained order among 172 Section 16(b) Seas and Submerged Lands Act 1973 (Cth) made it clear that no inconsistency arises until the Commonwealth enacted specific legislation. 173 (1977) 138 CLR 283. 174 Ibid 342. 175 Ibid 344. 176 Ibid 340–1 per Jacobs J; 344 per Mason J. 177 Ibid 295. 178 Ibid 344. 179 Ibid 338. 180 Ibid 304.

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those seeking to explore them.181 Mason J also recognised a sufficient connection with the State, even beyond the territorial sea – under the Maritime Archaeology Act 1973 (WA) which operated ‘on or near’ the coasts of Western Australia.182 Stephen J held that the plaintiff lacked standing and failed to establish any cause of action.183

High seas With the requisite connection established, State laws may also operate over the high seas – beyond the territorial sea. This commonly occurs for purposes of fishing regulation, criminal law, and maritime industrial relations. Indeed, the ‘hovering’ customs legislation in Croft v Dunphy184 was held to validly operate beyond the territorial sea of Canada. The Privy Council observed that ‘it has long been recognized that for certain purposes, notably those of police, revenue, public health and fisheries, a State may enact laws affecting the seas surrounding its coasts to a distance seaward which exceeds the ordinary limits of its territory’.185 Much of the case law within this category concerns fishing offences. In Giles v Tumminello, South Australian criminal jurisdiction was held to validly extend to the theft of a crayfish pot four and a half miles from the coast. The Supreme Court of South Australia concluded: [t]he power to make and administer laws, for the peace order and good government of the territory, must be understood as giving jurisdiction over what we have referred to as the fringe, namely, laws for the control and the protection of residents of the territory while on the seas bordering the coast of South Australia.186

Similarly, in Munro v Lombardo, Western Australian fisheries legislation was held to extend to an alleged illegal capture of female crayfish between five and six miles from the coast. The Court read down the legislation to apply only to those permanently resident or domiciled in the State, whether they caught the crayfish within or outside Western Australian waters.187 The High Court eventually reviewed these cases in Port MacDonnell Professional Fishermen’s Assn Inc v South Australia188 which upheld the capacity of the South Australian Parliament to regulate the catching of rock lobsters up to 200 miles from the State’s coast. The joint judgment of the Court emphasised that validity depended not on the distance from the low-water mark, but ‘on the existence and nature of a connection between South Australia and the activities which constitute the fishery in the assigned area.’189 The Court found a real and substantial connexion: ‘The fishery described in the arrangement is a finite resource available for exploitation and exploited by South Australian residents; it is a significant source of South Australian trade and employment.’190 The Court also held s 5(c) of the Coastal Waters (State Powers) Act 1980 (Cth) was valid within 181 Ibid 304–5. 182 Ibid 331. 183 Ibid 325. 184 [1933] AC 156. 185 [1933]AC156 at162. 186 [1963] SASR 96 at 102. 187 [1964] WAR 63 at 67 per Wolff CJ (with whom D’Arcy J agreed). 188 (1989) 168 CLR 340. 189 Ibid 372–3. 190 Ibid 373.

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s 51(xxxviii). Section 5(c) includes within State legislative competence the power to make laws with respect to fisheries in Australian waters beyond a State’s coastal waters which are to be managed by State law pursuant to a Commonwealth and State arrangement.191

Maritime boundaries between States The High Court in Port MacDonnell Professional Fishermen’s Assn Inc v South Australia192 recognised the possibility of a jurisdictional clash between States if their fishery laws overlapped in their respective offshore waters. In that case, the area covered by the Commonwealth and South Australian arrangement was bounded on the east and west by the meridians of longitude which extended from the State’s respective borders. This differed from an alternative arrangement where lines are drawn to maintain an equidistance between the closest land points of the neighbouring States.193 The Court noted that there is no equivalent provision to s 109 of the Commonwealth Constitution which would resolve inconsistent State laws. While there was no conflict with any law of another State, the South Australian legislation was interpreted so as not to intrude on the Victorian side of the line of equidistance.194 Had it done so, it would have been invalid ‘if the extra-territorial operation claimed . . . for the Act exceeds what might properly be claimed having regard to the legislative powers which adjoining States might exercise over the same fishery’.195 The difficulty of resolving inconsistent State laws is examined below.

7.8.1 General criminal jurisdiction Significant issues of extraterritorial competence arise in the exercise of criminal jurisdiction by the States.196 Most obviously this occurs where crimes are committed in the adjacent waters of a State. But they also arise within the exercise of general criminal jurisdiction where one, several or all of the elements of an offence occur outside the jurisdiction. Two principles confine this jurisdiction territorially: criminal jurisdiction is traditionally confined to acts or omissions occurring within the territory of the State; and while statutory offences are usually drafted in general terms without express territorial restriction, there is the common law presumption, discussed earlier, that legislation is intended not to operate extraterritorially. Accordingly, in the absence of a clear contrary intention, State criminal jurisdiction – both statutory and common law – extends only to offences committed within the State’s territory. This presumption led to difficulty in relation to offences committed on the high seas. For instance, in R v Oteri,197 the Full Court of Western Australia held in the absence of Western 191 Ibid at 375 ff on the construction of s 51(38). 192 (1989) 168 CLR 340. 193 See, for example, ss 5(1), 5A(1) and Sched 2 Petroleum (Submerged Lands) Act 1967 (Cth). 194 (1989) 168 CLR 340 at 374. 195 Ibid 373. 196 See Matthew Goode, ‘The Tortured Tale of Criminal Jurisdiction’ [1997] 21 Melbourne University Law Review 411; David Lanham, Cross-Border Criminal Law (Melbourne: FT Law and Tax Asia Pacific (imprint of Pearson Professional (Australia)) 1997). 197 [1975] WAR 120. Affirmed on appeal by the Privy Council: Oteri v R (1976) 51 ALJR 122. But in R v Olney (1996) 1 Qd R 187, Thomas J at 192 pointed out that each court omitted to pay sufficient regard to

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Australian criminal law extending to the high seas, that the British Theft Act 1968 (UK) applied to the theft of a crayfish pot on a British ship 22 miles from the State’s coast. Determining the location of the commission of the offence is essential in order to decide in which jurisdiction the accused should be tried. Thompson v R198 illustrates this point. The accused was charged with two counts of murder in the ACT, where two female bodies were found in the burnt-out shell of a car which the accused had just driven across the nearby New South Wales border into the ACT. The accused appealed his conviction on the ground that it had not been established beyond a reasonable doubt that he had murdered them in the ACT. Had the women been murdered in New South Wales, he should have been prosecuted there. The High Court rejected the appeal, adopting the civil standard of proof, on the balance of probabilities. That standard of proof reduced the risk that an accused might escape prosecution in all relevant jurisdictions through an incapacity to establish in which jurisdiction the offence occurred.199 Where all elements of an offence occur outside a State, the view was that no jurisdiction was attracted: R v Hildebrandt.200 While this may continue to be the position in relation to statutory offences, it is no longer the case with offences committed under the common law of Australia: Lipohar v R.201 Where an offence is constituted by conduct occurring across more than one State or territory, the difficulty is to decide which jurisdiction or jurisdictions should be invoked. The common law doctrine that crimes are committed in a single place – that crime is local – offers no solution, and has proven to be unsustainable.202 Crimes which may extend beyond more than one jurisdiction include conspiracy offences, environmental offences, computer offences, and even murder. In these cases, two theories compete: the terminatory theory and the initiatory theory. The former looks to the place where the result occurred; the initiatory theory looks to the place where the conduct occurred which caused that result. A vivid example of the application of the terminatory theory is Ward v R203 where the convicted accused, while at the top of the bank on the southern side of the Murray River, shot and killed a man fishing at the bottom of that bank. The central issue before the High Court was to determine where the Victorian/New South Wales border lay. As earlier discussed, the Court concluded that it lay at the top of the bank on the Victorian side of the river. Since Victoria conceded that the s 1 Admiralty Offences (Colonial) Act 1849 (UK) which applied colonial law to offences committed on the high seas and prosecuted in a colony. 198 (1989) 169 CLR 1. 199 See, for example, R v Hildebrandt [1964] Qd R 43 where convictions under the Queensland Criminal Code for placing explosives on board a plane flying from Sydney to Brisbane were quashed because the evidence was not capable of establishing beyond a reasonable doubt that this occurred within Queensland airspace. By s 12 the Code only applied to persons who were present in Queensland when their acts or omissions constituted an offence. Hildebrandt was later convicted of offences in New South Wales arising from this incident: (1963) 81 WN (Pt 1) (NSW) 143. The burden of proof held in R v Hildebrandt [1964] Qd R 43 was overruled in Thompson v R (1989) 169 CLR 1 which adopted proof on the balance of probabilities. 200 [1964] Qd R 43. 201 (1999) 200 CLR 485. 202 See, for example, R v Keyn (1867) 2 Ex D 63 at 68, 117, 152, 160–1, 239. 203 (1980) 142 CLR 308. All members of the Court agreed with Stephen J – see especially at 336. The United States of America has its equivalent: Simpson v State 17 SE 984 (1893) which involved the border between South Carolina and Georgia.

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jurisdiction in which the victim was shot determined which State had jurisdiction, the Court quashed the Victorian conviction for murder on the basis that he should have been tried in New South Wales where the victim was shot.204 Professor Lanham has cast doubt on Victoria’s concession, arguing that the initiatory theory has much to commend it, and that the authorities relied on for the terminatory theory were not strong.205 A further complication was the availability of the defence of diminished responsibility in New South Wales but not in Victoria. This aspect is considered further below. It is not surprising that this common law doctrine that crimes are committed in a single place has been undermined by an increase in cross-border criminal activity. Consequently, the States have extended their criminal jurisdiction to offences partly committed within their territory.206 This statutory extension confers jurisdiction where at least one element of the offence occurs within the jurisdiction, or where an event or an act which caused the event occurred within the jurisdiction. In other words, both the terminatory and the initiatory theories are accommodated. In each of these situations, a sufficient connection with the State clearly exists. While this statutory change overcomes the difficulty in cases such as in Ward v R,207 it does not resolve the difficulty in establishing where the elements of the offence occurred. For instance, the situation in Thompson v R208 where it was unclear where the murders occurred, is not resolved where the issue is simply in which jurisdiction the elements of the offence occurred.209 Moreover, the statutory change may render the accused liable to prosecution in multiple jurisdictions where the defences available or the punishment may differ. How justice is achieved in these circumstances remains problematic.210 This concern is examined below. The position is also altered in view of the recognition by the High Court in Lipohar v R211 of the single common law of Australia. Consequently, a common law offence is committed not under the law of any particular State or territory, but under Australian common law. So the jurisdiction to prosecute that offence depends on the jurisdiction of the relevant court, rather than directly on the location where the elements of the offence were committed. To establish that jurisdiction, it is not necessarily required that any element of the offence occur within that jurisdiction. So in Lipohar v R,212 the High Court upheld the jurisdiction of the Supreme Court of South Australia to prosecute certain persons with the common law offence of conspiracy to defraud, despite all the elements of the offence having occurred outside South Australia. The Supreme Court had 204 Gibbs J observed that Victorian law could deem the offence committed at the point of discharge: (1980) 142 CLR 308 at 314. 205 Lanham, above n 196, 5–7. 206 See, for example, ss 12, 13 and 14 The Criminal Code (Qld); s 5C Criminal Law Consolidation Act 1935 (SA). See also R v Goulden [1993] 2 Qd R 534. 207 (1980) 142 CLR 308. 208 (1989) 169 CLR 1. 209 Martin Hinton and Craig Lind, ‘The Territorial Application of the Criminal Law: When Crime is not Local’ (1999) 23 Criminal Law Journal 285, 289. 210 Ibid 290–1. Cf Brennan J in Thompson v The Queen (1989) 169 CLR 1 at 29–30. 211 (1999) 200 CLR 485. 212 Ibid.

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jurisdiction by s 17(2)(a) of the Supreme Court Act (SA) ‘in and for the state’ because there was a sufficient connection with the State. Although the joint judgment of Gaudron, Gummow and Hayne JJ applied the dicta in the Union Steamship case in determining the limitation on State legislative power ‘expressed or implied in the [Commonwealth] Constitution’,213 the territorial limitation in this case derived directly from the Supreme Court Act (SA) s 17(2)(a). The judgment then posed the question ‘whether the connection between the subject matter of the charge and South Australia was sufficient’.214 The reference to the ‘subject matter’ of the charge presumably referred to the elements of the offence. With the nexus requirement to be ‘liberally applied’ to find a ‘remote and general connection’,215 a real connection was found. Although the conspiracy comprised acts committed in Victoria, Queensland and overseas in relation to a proposed lease of an office building in Melbourne, the nexus with South Australia existed by virtue of several factors: the object of the conspiracy was to defraud a company incorporated in South Australia; that company’s solicitors received a fraudulent facsimile in Adelaide; and the ultimate commercial impact was to be felt by the body politic of South Australia which beneficially owned the company.216 Since the common law offence of conspiracy to defraud arose under the common law of Australia, the joint judgment of Gaudron, Gummow and Hayne JJ emphasised that this case was not one where South Australia was prescribing an offence with an extraterritorial operation. That can only occur now with State and territory statutory offences, since Australian common law offences have national operation and effect.217 7.8.1.1 Multiple or conflicting criminal jurisdictions Where the elements of the offence occur in more than one jurisdiction, difficult issues arise, particularly whether the accused can be tried in all relevant jurisdictions, and if so, whether the rules of double jeopardy apply. Reference was made earlier to the fact that there is no express constitutional provision to resolve conflicting State laws. While the choice of law rules may resolve such conflicts in civil cases (see below), they are regarded as having no application in criminal law.218 Nevertheless, rules need to be developed to resolve conflicting State criminal laws which arise where more than one State or territory has jurisdiction. The joint judgment in Lipohar v R219 briefly considered the problem where an accused might face prosecution from more than one State or territory in respect of the same conduct. It noted that the doctrines of autrefois acquit and autrefois convict may not resolve this problem. It did indicate though, that assistance 213 Ibid 534. 214 Ibid. 215 Ibid 510. 216 Ibid 535. Had one element occurred within the State, s 5C of the Criminal Law Consolidation Act 1935 (SA) would have conferred jurisdiction. 217 Ibid 505. 218 See Mark Leeming, ‘Resolving Conflicts between State Criminal Laws’ (1994) 12 Australian Bar Review 107, 108. 219 (1999) 200 CLR 485.

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might be found in the inherent power of a court ‘to take appropriate action to prevent injustice’220 arising in the course of criminal proceedings brought within its jurisdiction.221 The most obvious solution to avoid double jeopardy is to permit only one jurisdiction to prosecute. This would be either that which has the predominant territorial nexus, or that which first prosecutes. The former test derives support from Deane J in Breavington v Godleman222 and from Gleeson CJ in Brownlie v State Pollution Control Commission223 and might be implied from s 118. The latter suggestion was the approach of the United States Supreme Court in Nielsen v State of Oregon.224 Other possible solutions include: an extension of the double jeopardy rule;225 a joint agreement between the States and territories to vest in the Federal Court the ultimate determination as to which jurisdiction should prevail;226 or the Commonwealth might enact pursuant to s 51(xxv) of the Constitution uniform choice of law rules.227 7.8.1.2 Crimes at sea The Crimes at Sea Act 2000 (Cth) gives statutory ratification to a cooperative scheme agreed to between the Commonwealth and the States to apply the criminal law of the States extraterritorially in the waters adjacent to the States. Under this scheme, the criminal laws of each State, to the extent that they are applicable, extend: (1) by State legislation to the 12 nautical mile territorial sea adjoining its coastline (the inner adjacent area); and (2) by Commonwealth legislation, beyond that point to 200 nautical miles from the baselines of each State, as well as to the outer limit of the continental shelf so far as it extends further (the outer adjacent area).228 Accordingly, the operation of State criminal laws beyond the lowwater mark is no longer dependent on establishing a sufficient connection with the State nor is it necessary to rely on s 5(a) of the Coastal Waters (State Powers) Act 1980 (Cth). The extension of State criminal law beyond the 12 nautical mile territorial sea occurs by Commonwealth law pursuant to its external affairs power (s 51(xxix)). Specific provision is also made in relation to the application of the laws of criminal investigation, procedure and evidence of the Commonwealth and the States.229 The Commonwealth Attorney-General’s consent is required for any prosecution where the offence is alleged to have occurred on a foreign registered ship within the jurisdiction.230 Beyond both adjacent areas,231 s 6 of the Act extends the substantive criminal law of the Jervis Bay Territory to the remainder of the high seas if a prescribed 220 Quoting Mason CJ in Jago v District Court (NSW) (1989) 168 CLR 23 at 25. 221 Lipohar v R (1999) 200 CLR 485 at 535–6. 222 (1988) 169 CLR 41 at 129. 223 (1992) 27 NSWLR 78 at 87. 224 212 US 315 (1909); cf Heath v Alabama (1985) cited in Leeming, above n 218, 112. 225 Lanham, above n 196, 58. 226 Leeming, above n 218, 117–18 using s 76(iv) of the Constitution. 227 Ibid 118–19. 228 See clause 2, Part 2, Schedule 1. 229 See clause 3, Part 2, Schedule 1. 230 Clause 7, Part 4, Schedule 1. 231 Also excluded are the territorial waters of Norfolk Island and the coastal sea of the other six external territories: s 6(10). Another exclusion is the Joint Petroleum Development Area in the Timor Sea between Australia and East Timor to which the substantive criminal law of the Northern Territory applies: Part 3A.

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nexus exists. Essentially, that nexus must be that the criminal act occurs on an Australian ship, or is committed by an Australian citizen (other than a member of the crew) on a foreign ship, or is committed on a foreign ship whose next port of call is Australia. No charge under s 6 can be heard unless the Commonwealth Attorney-General, after consulting any country which has jurisdiction under international law, gives written consent.232 Before the adoption of the 2000 cooperative scheme, the Crimes at Sea Act 1979 (Cth) gave effect to an earlier cooperative scheme which, apart from Queensland, involved complementary State and Northern Territory legislation. Queensland instead amended its Criminal Code233 by inserting s 14A to apply to offences committed on the high seas up to 200 nautical miles from the Queensland coast. This jurisdiction was conditional on establishing that the person accused of the offence either: was connected with Queensland (subsection (1)); or, had come into Queensland, after affecting the person or property of a person who was connected with Queensland (subsection (3)). Subsection (2) defined a person connected to Queensland to include one who is normally resident or domiciled in the State, or was on a vessel, aircraft, rig or other structure or installation which is licensed or regulated under Queensland law. This extension of criminal jurisdiction by s 14A was upheld by Thomas J in R v Olney234 where the accused was charged with murder on a vessel in the Gulf of Carpentaria within 200 nautical miles of the Queensland coast. While no issue of territorial incompetence was raised, his Honour rejected the challenge to s 14A for being inconsistent with the Merchant Shipping Act 1894 (Imp) by holding that Australian ships were no longer British ships.235 Nor was there, in his view, any inconsistency with the Crimes at Sea Act 1979 (Cth) which applied local law. Queensland has since joined a new cooperative scheme. By the Crimes at Sea Act 2001 (Qld), Queensland joined a Commonwealth and State arrangement (including the Northern Territory) under the Crimes at Sea Act 2000 (Cth) which covers offences committed at sea. The Crimes at Sea Act 2000 (Cth) expressly excludes offences in the airspace above the relevant offshore waters. These are covered by s 15 of the Crimes (Aviation) Act 1991 (Cth).

7.9 Extraterritoriality and choice of law rules Before considering the difficult issue of inconsistent State laws, it is worth exploring the relationship between extraterritoriality and choice of law rules. Choice of law rules are applied by a court in civil proceedings which concern conduct occurring in another jurisdiction. In deciding the case, the court must choose between the law applicable in its jurisdiction (the law of the forum or lex fori) and the 232 Part 4, Schedule 1. 233 Act 25 1976. 234 [1996] 1 Qd R 187. 235 The challenge on this ground apparently relied on arguments made in R. J. Sibley, ‘Maritime Crime and the Extraterritorial Jurisdiction of the Queensland Courts’ (1988) 4 Queensland University of Technology Law Journal 161.

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law applicable in the jurisdiction in which the relevant conduct occurred (the lex loci delicti). This often occurs in tort litigation where the plaintiff is injured in one State or territory and the action is commenced, often for strategic reasons, in another State or territory. The need to choose between the laws in each jurisdiction usually only arises where they differ. And that will only arise now in relation to legislation, since the High Court has established that there is only one common law for the whole of Australia.236 In choosing between the law of the two jurisdictions, no issue of extraterritorial competence arises, since the choice occurs pursuant to the choice of law rules of the forum. The lex loci delicti does not apply in the forum by virtue of its own force. Although it might be argued, if the lex fori is applied, the forum State is applying its law extraterritorially to conduct which occurred outside its territory,237 an issue of extraterritorial competence only arises if the lex fori or the lex loci delicti itself professes to operate extraterritorially. In such a case, the validity of that law needs to be determined before the choice of law rules are considered.238 So what do those choice of law rules prescribe? The High Court originally viewed the States as if they were foreign States. Windeyer J expressed this view best in Pedersen v Young: ‘The States are separate countries in private international law, and are to be so regarded in relation to one another’.239 Accordingly, the English choice of law rules in relation to the application of the law of foreign States were followed in cases with conflicting State laws, such as the rule in Phillips v Eyre240 which determined when a suit could be commenced for a wrong committed in another jurisdiction. This rule was applied by the High Court in two tort cases, Koop v Bebb241 and Anderson v Eric Anderson Radio & TV Ltd.242 No longer, however, are the States viewed between themselves as foreign entities.243 The change began in Breavington v Godleman244 where Mr Breavington was injured in a motor vehicle accident in the Northern Territory and sued the driver of the other car, Mr Godleman, and others for damages at common law in Victoria. At the time the action was instigated, Godleman was resident in Victoria. A further advantage of suing in Victoria was that no limit was imposed on the quantum of damages, whereas the Motor Accidents (Compensation) Act 1979 (NT) limited damages in the Territory. Nonetheless, the High Court concluded that the Victorian Supreme Court should apply the Northern Territory legislation as the 236 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 514 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; 551 per Kirby J; 568 per Callinan J. 237 Hogg suggests that an exercise of extraterritorial capacity arises where the forum applies its own law as the substantive law to a case involving a foreign element: see Interprovincial Cooperatives v The Queen [1976] 1 SCR 477. 238 See E. Sykes, ‘Full Faith and Credit – Further Reflections’ (1954) 6 Res Judicata 352, 364–5; cf Z. Cowen, ‘Full Faith and Credit, the Australian Experience’ in Essays on the Australian Constitution (R. E. Else-Mitchell (ed) 1956) 293. See Elizabeth Edinger, ‘Territorial Limitations on Provincial Powers’ (1982) 14 Ottawa Law Review 57, 67. 239 (1964) 110 CLR 162 at 170. 240 (1870) 6 QB 1. 241 (1951) 84 CLR 629. 242 (1965) 114 CLR 20. 243 Also rejected in Canada: Hogg, above n 32, 13.5 citing De Savoye v Morguard Investments [1990] 3 SCR 1077. 244 (1988) 169 CLR 41.

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lex loci delicti. So at least tortious claims will be determined throughout Australia, wherever the action is heard, according to the lex loci delicti. As for the legal basis for that choice of law rule, a variety of different views were expressed. Most significant was the interpretation of s 118 of the Commonwealth Constitution which provides: Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.

While the majority of the Court (Mason CJ, Brennan, Dawson and Toohey) applied the common law choice of law rules, with Mason CJ clearly indicating that s 118 was not a choice of law provision,245 Deane J and Wilson and Gaudron JJ relied on s 118. In rejecting the English choice of law rules, Deane J interpreted s 118 as requiring the Court to adopt the lex loci delicti, that is, to comply with the constitutional requirement to give ‘full faith and credit’ to the laws of the States. He conceded, nevertheless, that the procedural rules of the forum were to be followed.246 Wilson and Gaudron JJ similarly interpreted s 118247 as requiring that a situation be judged according to only one body of law wherever the action is commenced within the Australian States. The same rule applied by the common law to proceedings commenced within the territories.248 For tortious claims this would be the law of the place where the relevant events occurred, while the law of the forum continued to determine procedural issues.249 Their Honours noted that this was not giving extraterritorial effect to the law of the State or territory, since the application of their law occurred by virtue of the choice of law rule within the jurisdiction in which the action was instituted. The Court remained divided in its interpretation of s 118 in McKain v R W Miller & Co (SA) Pty Ltd250 which decided by a 4–3 majority that a statute of limitations was procedural, not substantive, so the law of the forum applied. The most recent case to consider s 118 is John Pfeiffer Pty Ltd v Rogerson,251 which was decided after Lipohar v R settled the principle of a single common law of Australia. The joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ and Kirby J (with Callinan J dissenting) did not rely on s 118, in holding that the law of the lex locus delicti applied in an action commenced by Mr Rogerson, a carpenter, who was injured while employed on a site in New South Wales. He sued his employer in the ACT Supreme Court for damages for personal injury rather than in New South Wales where there was a statutory cap on the damages imposed by the Workers Compensation Act 1987 (NSW). The joint judgment rejected the socalled double-actionability rule from Phillips v Eyre252 to establish as a choice of

245 Ibid 82–3. 246 Ibid 135–6. 247 Ibid 98–9. 248 Ibid 98. 249 Ibid 98–9. 250 (1991) 174 CLR 1, at 31 per Mason CJ, at 37 per Brennan, Dawson, Toohey and McHugh JJ, at 45–6 per Deane J. 251 (2000) 203 CLR 503 at 514 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 252 (1870) 6 QB 1.

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law rule that the lex loci delicti is the governing law with respect to torts committed in Australia which have an interstate element.253 The basis for this development of the common law choice of law rule appears to be a mix of constitutional influences and practical considerations. It appears to be based on two factors: the constitutional requirement identified in Lange v Australian Broadcasting Corporation254 for the common law to adapt to the Commonwealth Constitution; and the need for the common law to ‘adapt so as to provide practical solutions to particular legal problems which occur in the federal system’.255 The adaption in this case was to provide certainty and uniformity in both the exercise of federal and non-federal jurisdiction, as well as give effect to the ‘predominant territorial concern’ of State and territory legislatures’.256 While the joint judgment observed that these matters, derived from the constitutional text and structure, may dictate a constitutional imperative for this choice of law rule, it expressly left the issue open – given the absence of submissions on this issue.257 Accordingly, it is unclear whether that common law rule can be altered by statute.258 There are instances where Commonwealth statutes purport to do this.259 The Court also reversed the effect of McKain v R W Miller & Co (SA) Pty Ltd260 in holding that limitation periods and restrictions on the kinds and amount of damages were substantive issues to be determined in accordance with the lex loci delicti. Kirby J agreed with the joint judgment. His Honour emphasised that the choice of law rules between the States were based not on considerations of international comity but national integrity.261 As for s 118, while Kirby J rejected it as a choice of law provision,262 the joint judgment did not adopt a final position although it indicated that it does not state any rule which dictates what choice is to be made or what common law choice of law rule should be adopted. But it may: [deal] with questions of competition between public policy choices reflected in the legislation of different states – at least by denying resort to the contention that one state’s courts may deny the application of the rules embodied in the statute law of another state on public policy grounds.263

While s 118 precludes the view that as between themselves the States are foreign States, the joint judgment contemplated that the section may suggest: . . . that the constitutional balance which should be struck in cases of intranational tort claims is one which is focused more on the need for each state to acknowledge the predominantly territorial interest of each in what occurs within its territory than it is on a plaintiff’s desire to achieve maximum compensation for an alleged wrong.264 253 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 514. 254 (1997) 189 CLR 520 at 562. 255 (2000) 203 CLR 503 at 528. 256 Ibid 540. 257 Ibid 535. 258 See Adrienne Stone, ‘Choice of Law Rules, the Constitution and the Common Law’ (2001) 12 Public Law Review 9. 259 See the discussion of provisions of the Insurance Contract Act 1984 (Cth) and the Trade Practices Act 1974 (Cth) in Winnie Jo-Mei Ma, ‘What’s my choice – Deciphering the Provisions on Conflict of Laws in the Trade Practices Act’ (2003) 11 Trade Practices Law Journal 149. 260 (1991) 174 CLR 1. 261 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 550–1. 262 Ibid. 263 Ibid 533. 264 Ibid 533–4.

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In dissent, Callinan J, following Lipohar, accepted that the case involved the common law of Australia, and that laws restricting the heads of damage and imposing limitation periods were substantive. Accordingly, he agreed that the law of New South Wales applied. He left open the position on s 118, but considered the view attractive that it might entitle a court to refuse to apply the law of another State which is alien or repugnant to the State in which the action was brought.265 The practical effect of Pfeiffer is to increase the application in State and territory courts of the statutes of other States and territories in cases involving intranational torts. It has been suggested by Nygh and Davies that the territorial restriction on State and territory power: . . . may prevent a State or territory from imposing its own statutory solution [that is, change the common law choice of law rules] in a situation where it has no legitimate interest, though such a case would be exceedingly rare. But, in the absence of federal legislation, a State remains free to legislate to impose its solution in matters that have a sufficient connection with its territory even if this results in a conflict of laws.266

In relation to the principle of statutory interpretation, confining legislation to the territory of the enacting parliament, Dixon J in Wanganui-Rangitikei Electric Power Board v AMP Society267 observed that: . . . in the absence of any counteracting consideration, the principle is, I think, that general words should not be understood as extending to cases which, according to the rules of private international law administered in our Courts, are governed by foreign law.268

But his Honour accepted that the court should not follow this approach if it defeats the purpose of the forum’s legislation by making it easy to evade.269

7.10 Inconsistent State laws: constitutional and legislative solutions It is apparent from the above discussion in relation to the exercise of both criminal and civil jurisdiction, that conflicting State laws may arise which purport to apply to the same matter or individual. Such a conflict can arise in several different ways.270 First, where conduct occurs across more than one jurisdiction. This was the situation in Ward v R271 and Brownlie’s case272 where the conduct in each case – which led to murder and pollution respectively – occurred across the State border. Now that the principle that crime is local has been displaced by statute, the 265 Ibid 576. 266 P. E. Nygh and Martin Davies, Conflict of Laws in Australia (7th edn, Sydney: LexisNexis Butterworths, 2002) 22, 2.11, citing: Nygh, ‘Full Faith and Credit: A Constitutional Rule for Conflict Resolution?’ in Sydney Centenary Essays in Law, 1991, 183, 196–200; Cowen, above n 238, 325; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 514–15. 267 (1934) 50 CLR 581 at 601. 268 Quoted in Nygh and Davies, above n 266, 3.22. 269 Ibid 41–2. 270 See the discussion of the nature of ‘conflict’ in the federation in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 527. 271 (1980) 142 CLR 308. 272 Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78.

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risk of being prosecuted in multiple jurisdictions has increased. As noted earlier, the joint judgment in Lipohar v R273 recognised that the doctrines of autrefois acquit and autrefois convict may not resolve this problem. Second, where both State laws claim to operate in the same law area.274 This can occur in many different ways, such as in Australia’s offshore waters adjoining the end of two States’ land boundaries,275 or it may arise in relation to a ship registered in one State but within the offshore waters of another State. It can also arise within a State where the conflicting law of the other State satisfies the sufficient connection test. For instance, if a Queensland law purported to prescribe a higher maximum speed limit for Queensland registered vehicles within Sydney’s CBD than under New South Wales law. Third, where not only a conflict arises between the laws of two States within one State, but the other State purports to resolve that conflict in a particular way. For instance, where a State law creates a corporation and provides that it is immune from any tax imposed by another State. Another State then intends to impose a tax on that corporation relating to a transaction occurring within that State. As the extraterritorial operation of the first law appears to have a sufficient connection with the enacting State, the dilemma of inconsistent State laws thus arises.276 As McHugh and Gummow JJ observed in State Authorities Superannuation Board v Commissioner of State Taxation (WA),277 an increased capacity to legislate extraterritorially correspondingly enhances the potential for these forms of inconsistency. Given the lack of any equivalent to s 109 of the Constitution to resolve such conflicts, the solution might lie with Commonwealth legislation or be found in a constitutional principle derived from the Commonwealth Constitution.278 The first option involves the Commonwealth enacting legislation under its power in s 51(xxv) of the Constitution with respect to ‘The recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States’.279 Alternatively, it might enact legislation within its other heads of power to override the relevant laws of the States in reliance on s 109 of the Constitution.280 Another suggestion has been to develop a joint agreement between the States and territories to vest in the Federal Court the ultimate determination as to which jurisdiction should prevail.281 The second option is to derive from the Commonwealth Constitution an implied constitutional principle to resolve the inconsistency between the 273 (1999) 200 CLR 485. 274 State Authorities Superannuation Board, above n 76 at 285 fn 126 per McHugh and Gummow JJ. 275 As contemplated in Port MacDonnell Professional Fishermen’s Assn, above n 16 at 362. 276 Based on the example discussed by McHugh and Gummow JJ in State Authorities Superannuation Board, above n 76 at 285–6. 277 (1996) 189 CLR 253 at 286. 278 Dawson J in Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 557–8 observed that a provision like s 109 was unnecessary to resolve conflicts between state and territory laws: ‘Such conflicts are resolved either as questions of power or under the rules of private international law.’ 279 Leeming, above n 218, 118–19. 280 Trindade, above n 34, 239. 281 Leeming, above n 218, 117–18 using s 76(iv) of the Constitution.

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competing State laws. Such an implication might be derived from ss 106 and 107 which continue, subject to the Constitution, the constitution and powers of the States – both of which were, and remain, under s 2(1) of the Australia Acts 1986, territorially restricted. Or the implication might be derived from s 118.282 What would be the principle? Suggestions for deciding the paramount State law include: (1) that which has the strongest territorial connection; or (2) that which acts first. Support for the former implication is found in an obiter comment in the joint judgment of the High Court in Port MacDonnell Professional Fishermen’s Assn Inc v South Australia. Although no conflict existed in that case between the fishery laws of South Australia and Victoria in relation to waters on the Victorian side of the line of equidistance between the two States, the Court noted that if one existed ‘there would obviously have been grounds for arguing that the Victorian nexus with activities in these waters was as strong as or stronger than the South Australian nexus.’283 Further support for this approach is given by Gleeson CJ in Brownlie v State Pollution Control Commission284 where a Queensland farmer was prosecuted under New South Wales law for polluting the New South Wales side of the Barwon River, the middle of which formed the border between Queensland and New South Wales. The offence was constituted by spraying crops on the Queensland side of the river with an insecticide which was washed by rainfall into the adjoining river. While there was no evidence that the appellant’s conduct constituted an offence under Queensland law,285 the Chief Justice expressed support for the view that even if Queensland law authorised the spraying of the crops, the New South Wales offence would still apply on account of its ‘predominant territorial nexus’.286 The same formula was derived from s 118 by Deane J in Breavington v Godleman after his Honour noted the historical fact that the Constitution was framed at a time when strict territorial limitations precluded the extraterritorial operation of colonial laws: Viewed in that traditional context, the constitutional solution of competition and inconsistency between purported laws of different States as part of the national law must, where the necessary nexus for prima facie validity exists, be found either in the territorial confinement of their application or, in the case of multi-State circumstances, in the determination of predominant territorial nexus. That would have been the position under the provisions of the Constitution (in particular, ss 106, 107 and 108) even if those provisions had not included s 118. The presence of s 118 serves to make that position plain.287 (emphasis added)

282 Suggested by Owen Dixon in ‘Sources of Legal Authority’, Jesting Pilate (Sydney: Law Book Company 1965) 198, 201; cited by McHugh and Gummow JJ in State Authorities Superannuation Board, above n 76 at 286 in suggesting that s 118 might provide an undefined solution. 283 (1989) 168 CLR 340 at 374. 284 (1992) 27 NSWLR 78. 285 Apparently, a defence was available under the Clean Waters Act 1971 (Qld) but no evidence was led as to this: Leeming, above n 218, 111. 286 (1992) 27 NSWLR 78 at 87. 287 (1988) 169 CLR 41 at 129.

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His Honour then elaborated on the role of s 118 in resolving conflicting State laws by reference to the strength of the territorial nexus: [T]he reconciliation of competing laws of different States is ordinarily to be found in the prima facie paramount (as between the States) competence of each State Parliament to make laws for its territory and in the obligation to accord full faith and credit to the laws and Acts of other States made within their legislative competence . . . [A] law of one State which purports to attach legal liability for conduct and consequences which are wholly within the territory of another State will, in the absence of some relevant overriding territorial nexus, infringe the injunction of s 118 of the Constitution regardless of whether the law of the other State expressly deals with that conduct or its consequences in a different fashion or simply treats that conduct as not giving rise to legal liability by saying nothing about it.288 (emphasis added)

In McKain v R W Miller & Co (SA) Pty Ltd,289 Deane J qualified this view by noting that considerations of justice would be relevant at least in a borderline case in weighing the various factors to determine the predominant territorial nexus. Reliance on the predominant territorial nexus does lead to uncertainty. In Pfeiffer, the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ noted this in relation to the proper law of the tort theory.290 Nor does reliance on the predominant territorial nexus adequately resolve the risk of double jeopardy for criminal conduct occurring in multiple jurisdictions. While the joint judgment in Lipohar v R291 indicated that assistance might be found in the inherent power of a court ‘to take appropriate action to prevent injustice’,292 an alternative approach is the implied principle suggested above – that the State which acts first has paramountcy. This approach has been adopted by the United States Supreme Court in Nielsen v State of Oregon.293 It has also been adopted in Canada which lacks an express full faith and credit clause. In Bank of Montreal v Metropolitan Investigation and Security (Canada) Ltd,294 the Supreme Court of Canada upheld a Quebec judicial order over a Manitoba order, both made in respect of the same bank accounts with two banks in Montreal, on the ground that the Quebec order was made first in time. It is also reflected in the approach of Fitzgerald P and William J in Rothwells Ltd (In liq) v Connell295 in admitting into evidence a deed stamped in Queensland although not stamped in Western Australia where the deed was executed. Their Honours simply applied the law of the forum.296 In relation to an accused faced with the risk of multiple prosecutions from different jurisdictions, it may well be preferable, as Professor Lanham297 has suggested, to extend the rules of double jeopardy to provide appropriate relief. 288 Ibid 136. 289 (1991) 174 CLR 1 at 46. 290 (2000) 203 CLR 503 at 538. 291 (1999) 200 CLR 485 292 Ibid 535–6 quoting Mason CJ in Jago v District Court (NSW) (1989) 168 CLR 23 at 25. 293 212 US 315 (1909); cf Heath v Alabama (1985) – cited in Leeming article, above n 218, 112. 294 [1975] 2 SCR 546, (1974) 50 DLR (3d) 76. See also Rhodes v McKee Harvester (Alberta) Ltd (1979) 9 Alta LR (2d) 179, 99 DLR (3d) 704 (Alberta Supreme Court). 295 (1993) 27 ATR 137. 296 McHugh and Gummow JJ in State Authorities Superannuation Board, above n 76 at 286–7 expressed the view that no conflict arose in that case since the Western Australian legislation did not purport to prevent the admissibility of the deed in courts outside that State. 297 Lanham, above n 196, 58.

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Another principle which might be derived is one similar to the Melbourne Corporation principle which would prevent the States from destroying or substantially impairing each other’s capacity to function as States. McHugh and Gummow JJ left open this suggestion in State Authorities Superannuation Board v Commissioner of State Taxation (WA).298 Still, it has only limited application, being confined to serious conflicts involving the rights of State governments.

7.11 Court proceedings and extraterritoriality There is a common law principle which applies to the initiation of court proceedings: ‘the writ does not run beyond the limits of the State’.299 As this principle applies in England as well as Australia, its origin lies not in any lack of extraterritorial competence, but in the practical necessity to confine the jurisdiction of the courts to ensure the enforcement of its orders. As a consequence of that common law principle, the court’s jurisdiction is usually activated merely by serving the defendant with an originating process within the court’s geographical jurisdiction. The mere presence of the defendant on whom service is effected within the State or territory provides the requisite connection. The subject matter of the claim need have no connection with that jurisdiction.300 The extent of any such connection may affect, though, the application of the choice of law rules, and the likelihood that the matter be removed, by virtue of the doctrine of forum non conveniens, to another federal, State or territory court. As a consequence of these principles, proceedings may be commenced in more than one court in respect of the same issues and between the same parties. The joint judgment of Gaudron, Gummow and Hayne JJ in Mobil Oil Aust Pty Ltd v Victoria301 observed that these conflicting or overlapping actions are resolved by abuse of process principles. Nonetheless, service of an originating process is permitted outside the jurisdiction of a State or territory both within Australia and overseas. Service of a State or territory originating process within Australia is made possible by the Service and Execution of Process Act 1992 (Cth). Enacted pursuant to s 51(xxv) of the Constitution, there is no need to establish any connection with the jurisdiction in which the proceedings are initiated. Provision is also made under that Act for service of subpoenas in other States or territories302 and for the execution of judgments.303 For service outside Australia, provision is made by the relevant rules of court of each jurisdiction. Unlike service extraterritorially within Australia, they require a sufficient connection with the jurisdiction. The rules prescribe a list of circumstances establishing that connection. For instance, under Rule 124(1)(g)–(h) of 298 (1996) 189 CLR 253 at 288. 299 Laurie v Carroll (1958) 98 CLR 310. 300 See John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 517 [14]; Mobil Oil Aust Pty Ltd v Victoria (2002) 211 CLR 1 at 36 [55] per Gaudron, Gummow and Hayne JJ. 301 (2002) 211 CLR 1 at 36–7 [58]. 302 Service and Execution of Process Act 1992 (Cth) s 29. 303 Enforcement by registration is again permitted under s 105 of the Service and Execution of Process Act 1992 (Cth), Nygh & Davies, above n 266, 210–19.

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the Uniform Civil Procedure Rules (Qld), service out of the jurisdiction can be ordered in respect of proceedings in relation to a contract where the contract is made within the jurisdiction, or where the contract is breached within the jurisdiction, irrespective of where it was made.

7.12 Restriction on executive power So far not considered is whether executive power is subject to any extraterritorial restriction. The case law and commentary refer only to extraterritorial restrictions on legislative power. While the statutory powers of the executive would normally be so restricted, there is little authority on whether extraterritorial restrictions apply to the exercise of the royal prerogative powers and those other executive powers and capacities vested in the Crown as a legal entity. In Canada, Professor Hogg regards executive power as not subject to the doctrine of extraterritoriality, although he only refers to the legal entity powers of a provincial Crown to engage in contractual and other commercial activities in other provinces and its spending power.304 In Australia, the point has not been specifically argued, although it effectively arose in Boath v Wyvill305 in relation to the prerogative power to hold an inquiry. That case involved a challenge to the validity of the joint appointment by the Commonwealth and Western Australia of a royal commissioner to investigate deaths in custody of Aboriginals and Torres Strait Islanders. The challenge to the appointment by Western Australia relied on the fact that in authorising the commissioner to inquire into deaths beyond Western Australia, in South Australia and the Northern Territory, as well as elsewhere in Australia, the inquiry lacked the requisite connection with Western Australia. The joint judgment of the Full Federal Court (Sheppard, Beaumont and Gummow JJ) refused to confine the power of appointment in s 5 of the Royal Commissions Act 1968 (WA) or the corresponding common law prerogative power to matters within the State,306 although they did imply a territorial restriction in the statutory conferral of coercive powers on the commissioner to prevent the summoning of witnesses from other States.307 Although their Honours accepted that the commissioner could inquire into deaths in custody outside Western Australia, they followed Brennan J in Victoria v Australian Building Construction Employees’ and Builders’ Labourers’ Federation308 in requiring that the inquiry be one undertaken, not for some ‘idle curiosity’ but for the purposes of the government of Western Australia. In effect, this inherent requirement of the prerogative power imports the need for a requisite connection with the State. Such a connection was found since the Crown in right of a State 304 See Hogg, above n 32, 13.4, citing Verreault v Attorney-General (Quebec) [1977] 1 SCR 41 at 47; AttorneyGeneral (Quebec) v Labrecque [1980] 2 SCR 1057 at 1082. 305 (1989) 85 ALR 621. 306 Section 5 Royal Commissions Act 1968 (WA). 307 (1989) 85 ALR 621 at 637. 308 (1982) 152 CLR 25 at 156.

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might properly wish to inquire into matters outside the State which may bear on the position within the State. Thus, the circumstances of deaths in custody in other jurisdictions might well assist the inquiry of similar deaths in Western Australia.309 What is apparent from the discussion in Boath v Wyvill, is that the common law powers of the Crown including the royal prerogatives are inherently subject to a territorial restriction so far as they are to be exercised for the benefit of the Crown in right of its territory. In addition, by complementing the territorial restriction of the legislature, this approach is consistent with the view that executive power should be co-extensive with legislative power.310

7.13 Section 92 restriction Section 92 of the Commonwealth Constitution provides for two distinct guarantees, both of which have the potential to be invoked in cases where a State purports to exercise power extraterritorially. The first is the freedom of trade and commerce between the States, the scope of which has been clarified in Cole v Whitfield.311 The second guarantee is the freedom of intercourse between the States which protects the right of personal movement between the States whether or not in the course of trade or commerce.312 It also encompasses all other forms of interchange between the States, such as communications.313 In Canada, restrictions on interprovincial trade or contractual rights may be invalid if characterised as not intraprovincial but as having extraprovincial effect.314 For instance, a view developed that contractual rights could not be altered by a province unless both parties to the contract were resident in that province.315

7.14 Restriction on territories The legislatures of the three self-governing territories, the ACT, Northern Territory and Norfolk Island, should be subject to the same extraterritorial restriction as State parliaments. As they are vested with legislative power in terms practically identical to those for States,316 there is no basis for suggesting that they are in any different position. The same justification for limited extraterritorial competence applies here as for the States – the need to avoid clashes of State and territory laws. Although s 109 gives paramountcy to any territory law enacted by the 309 (1989) 85 ALR 621 at 635 and 638. 310 See Chapter 8, section 8.2 on executive power. 311 (1988) 165 CLR 360. 312 Gratwick v Johnson (1945) 70 CLR 1 at 17. 313 See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 55–6 per Brennan J, at 83 per Deane and Toohey JJ; George Williams, Human Rights under the Australian Constitution (South Melbourne: Oxford University Press, 2002) 135–7. 314 See, for example, Royal Bank of Canada v The King [1913] AC 283. 315 See Hogg, above n 32, 13.3(c). 316 Section 22(1) ACT (Self-Government) Act 1988 (Cth); s 6 Northern Territory (Self-Government) Act 1978 (Cth); s 19(1) Norfolk Island Act 1979 (Cth).

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Commonwealth pursuant to s 122,317 it does not extend the same paramountcy to laws enacted by a territory legislature.318 While Lamshed v Lake319 established that the Commonwealth can enact laws pursuant to s 122 which operate beyond the boundaries of a territory – ‘wherever territorially the authority of the Commonwealth runs’ – it does not follow from this that the territories themselves possess this capacity to legislate extraterritorially.320 No doubt, subject to any constitutional implication, s 122 allows the Commonwealth to confer this capacity on territory legislatures. This view is supported by Gummow J in Newcrest Mining (WA) Ltd v The Commonwealth, citing Traut v Rogers:321 [I]t would appear that the power of the Parliament to establish territorial legislatures extends to empowering such a legislature itself to make laws with extra-territorial operation, at least within Australia.322

The grant of legislative power to the self-governing territories implicitly confers the capacity to legislate extraterritorially. This was recognised in relation to the Northern Territory by the Full Court of the Northern Territory Supreme Court in Traut v Rogers323 which held that the Northern Territory Legislative Assembly was subject to the same extraterritorial restriction as the States. Accordingly, s 76 of the Supreme Court Act 1979 (NT), which empowered the Court in civil proceedings to order the examination of witnesses on oath anywhere in Australia, was held valid on the ground that it had a sufficient nexus with the Territory. Further, there is High Court obiter which assumes the extraterritorial competence of the mainland territories: Kirby J in Lipohar v The Queen324 and the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in John Pfeiffer Pty Ltd v Rogerson.325 The territories remain, however, unable to remove the restriction on their capacity to legislate extraterritorially, because this would be inconsistent with their Self-Government Act. 317 Lamshed v Lake (1958) 99 CLR 132. 318 Michael Tilbury, Gary Davis and Brian Opeskin, Conflict of Laws in Australia (Melbourne: Oxford University Press, 2002) 525–6. 319 (1958) 99 CLR 132. 320 See Castles, above n 62, 200. Cf O’Connell, above n 42, 319, who suggests the Northern Territory legislature is not extraterritorially restricted – merely citing Lamshed v Lake. 321 Traut v Rogers (1984) 70 FLR 17. 322 (1997) 190 CLR 513 at 601. 323 (1984) 70 FLR 17 at 20. 324 (1999) 200 CLR 485 assumed by Kirby J at 547. 325 (2000) 203 CLR 503 at 514–15 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

8 Executive power

8.1 Introduction The executive branch remains today the most powerful and yet least understood of the three branches of government. This lack of understanding is partly due to the absence of detailed provisions in the State Constitution Acts which deal with the executive branch. Worse, the provisions which are found there are misleading. They give the impression the Governor of the State actually governs! There is little if any reference to the Premier, to Cabinet, or to the fundamental conventions which determine how responsible government operates in practice. The reasons for this woefully inadequate coverage are history and timidity. The new colonial Constitutions only addressed those matters which required statutory recognition.1 Consequently, Higinbotham CJ in Toy v Musgrove described the Constitution Act 1855 (Vic) as having ‘obscure and apparently disjointed clauses . . . pregnant though they appear to be with deep but suppressed meaning’.2 Since then there has been little attempt to include in State Constitutions further provisions which spell out the institutions and conventions of the executive branch. Recommendations to fill this void are often rejected for fear of unintended damage to the constitutional system. Clearly, a more robust attitude is needed to rewrite the State Constitution Acts for this new century. Throughout this chapter an attempt is made to highlight where and how far this makeover is most needed. Despite the lack of statutory codification, the executive branches in each State have an almost identical structure and range of powers because of their common 19th century origins in an imperial monarchy. They also observe in common those 1 Higinbotham CJ in Toy v Musgrove (1888) 14 VLR 349 at 391.

2 Ibid 387–8.

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‘constitutional conventions’ which were inherited with the grant of responsible government, as well as those which thereafter evolved. These conventions continue to be observed in Australia, despite being legally unenforceable, because they are universally recognised as necessary for the effective functioning of a Westminster system of government. The colonial executives provided the model for the Commonwealth Executive, and more recently, for the Northern Territory Executive and to a lesser extent, the ACT Executive. As well, their adaptation has been a challenge in Norfolk Island. The homogeneous nature of all Australian executive branches has facilitated the level of intergovernmental agreement which characterises cooperative federalism in Australia. This ought not to be forgotten in any transformation to a republic. At the pinnacle of each State Executive is the Queen, represented by the State Governor who is appointed by her on the advice of the Premier.3 The State Constitutions vest most powers in the Governor, rather than in the Queen. Section 7(2) of the Australia Acts has reinforced this position by confining to the Governor even the exercise of those few powers still vested in the Queen, except when she is personally present within the State (subsection (4)). This latter dispensation depends on appropriate arrangements being made between the State Premier and the Queen. However, the most important of the Queen’s powers remain with her – the power to appoint and dismiss the Governor (subsection (3)). Yet, all of the powers exercised by the Queen and the Governor must be exercised on the advice of the relevant State ministry. The only exception to this fundamental Westminster convention is when extraordinary circumstances arise to justify an exercise of certain limited powers without or contrary to that advice as an exercise of reserve power. The other fundamental and complementary convention is that the ministry must maintain the confidence of the Assembly. For this reason, all members of the ministry should be members of parliament, primarily from the Assembly. Apart from the structure of the executive branch and its relationship with the legislature, consideration must also be given to the nature and scope of its executive power. Unlike the Commonwealth Constitution,4 State Constitutions do not expressly refer to ‘the executive power of the State’. Nor do they refer to the repository of this power. Nonetheless, each State Executive possesses such a power by virtue of the common law, subject to any statutory restrictions and extensions. The principal focus of this chapter is on the range of powers vested in the Queen and the State Governors, as well as the constitutional conventions which regulate their exercise. Consideration is also given to the role of the ministry, its structure and powers, and its relationship with the parliament and the judiciary. Apart from transition to a republic (see Chapter 9), the need for significant reforms to the executive branch becomes apparent in relation to such matters 3 Australia Acts 1986 s 7(5). 4 Section 61 vests the executive power of the Commonwealth in the Queen exercisable by the GovernorGeneral.

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as the appointment and removal process for vice-regal representatives, selective codification of conventions to remove the fa¸cade of monarchical power, and continued improvement in mechanisms of executive accountability. While the nature of the Executive in the self-governing territories is covered in Chapter 12, much in this chapter applies equally to the executive branches and Administrators in the Northern Territory and Norfolk Island. Without an Administrator, the ACT stands in an entirely different position. The Northern Territory Executive most resembles the State Executive branches, with a Chief Minister performing the role of a State Premier and an Administrator performing the role of the State Governor. Although the Administrator is formally appointed by the Governor-General on the advice of the Commonwealth, the appointee is selected by the Chief Minister. There is, however, a restriction on the range of executive functions transferred from the Commonwealth to the Territory Government.5 In contrast, the ACT Executive differs significantly from all other State Executives in dispensing altogether with a vice-regal representative, there being no equivalent to a State Governor or Administrator. But a role is given to the Governor-General to dissolve the Assembly in certain extreme circumstances.6 Instead, the ACT Executive7 comprises only the Chief Minister and such other ministers who are appointed by the Chief Minister.8 But for the fact that the ACT is a Commonwealth territory, established as a body politic under the Crown (s 7), it could be described as having virtually a republican system of government.

8.2 Responsible government The principle of responsible government is the key feature of the Westminster system of government on which all Australian State and self-governing territory constitutional systems are based. Central to this principle is the existence of an executive branch of government which is ultimately responsible to the people, not directly, but through a popularly elected parliamentary chamber. It will become evident in this chapter that this principle receives scant recognition in the express terms of the State Constitutions. This is because much of its content has been provided by unwritten Westminster conventions and practices which traditionally have been regarded as best left unwritten. There is nervousness about incorporating constitutional conventions in statutory form for several reasons: lack of precedent; risk of justiciability; and difficulty in drafting with both precision and flexibility. At the time of the federation debates, there was even 5 Northern Territory (Self-Government) Act 1978 (Cth) s 35 and reg 4; Northern Territory (Self-Government) Regulations 1978. 6 Northern Territory (Self-Government) Act 1978 (Cth) s 16: if the Assembly, in the Governor-General’s opinion, (a) is incapable of effectively performing its functions; or (b) is conducting its affairs in a grossly improper manner. 7 ACT (Self-Government) Act 1988 (Cth) s 36. 8 Ibid s 39(1).

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a fear of British ridicule for attempting to incorporate them in the Commonwealth Constitution.9 The key conventions on which responsible government is based are: ● The Governor/Administrator acts always on the advice of the ministry – except when exercising a reserve power. ● The Governor/Administrator is only entitled to exercise the few recognised reserve powers in accordance with the established conventions for their exercise. ● The ministry comprises those members, mostly from the Assembly, who have the confidence of a majority of the members of that House. ● A ministry is obliged to offer its resignation if it loses this confidence. ● The first minister is the Premier of the State or the Chief Minister of the territory. ● Cabinet comprises the ministers of State whose decisions are given effect to by the Executive Council. At the heart of responsible government lie the twin doctrines of collective and individual responsibility of ministers. Collective responsibility refers to the ministry as a whole being held to account for its decisions – initially by parliament, and ultimately by the electorate. By precluding ministers from opting out of government decisions or dissenting in public, it provides the basis for the principles of Cabinet solidarity and confidentiality.10 Individual responsibility of ministers refers to their being held to account for the actions of their respective departments. In the past, ministers resigned or took full responsibility for the mistakes of their departments. These days, a ministerial resignation is only expected if the minister was implicated in the mistake, failed to remedy the situation, or deliberately misled parliament or the public.11 Much has been written of the conflict, anticipated by the drafters of the Commonwealth Constitution and subsequently realised in 1975, between the principles of responsible government and of federalism.12 The marriage of these two principles remains strained at the Commonwealth level. A variation of this problem emerged at the colonial level when their Legislative Councils evolved into representative chambers. How the consequent deadlocks between the Houses are resolved without undermining representative government was considered in Chapter 4. To understand the constitutional foundation of responsible government, it is necessary to outline how and when this principle arrived in the Australian States. 9 See Official Record of the Debates of the Australasian Federal Convention, Vol III Adelaide 1897, 913 (per Mr Barton); George Winterton, Parliament, The Executive and the Governor-General – A Constitutional Analysis (Melbourne: Melbourne University Press, 1983) 3. 10 Recognised in Commonwealth v Northern Land Council (1993) 176 CLR 604 at 615; Egan v Willis (1996) 40 NSWLR 650 at 669 per Gleeson CJ; Egan v Chadwick (1999) 46 NSWLR 563 at 572 per Spigelman CJ. 11 G. Lindell, ‘The Effect of a Parliamentary Vote of No Confidence in a Minister: An Unresolved Question’ (1998) 1 Constitutional Law and Policy Review 6; David Blunt, ‘Responsible Government: Ministerial Responsibility and Motions of “Censure”/“No Confidence”’(2004) 19 Australasian Parliamentary Review 71. 12 See, for example, G. Sawer, Federation Under Strain: Australia 1972–1975 (Melbourne: Melbourne University Press, 1977); Winterton, above n 9, 5.

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The more accepted view is that a good portion of it was granted to the Australian colonies when they achieved representative government in the 1850s (or the 1890s in Western Australia) under their own Constitutions. Australia followed closely the trail-blazing efforts in Canada where responsible government was first granted to Nova Scotia in 1847.13 Yet the Australian colonial Constitution Acts only gave oblique recognition to responsible government by referring, for example, to ‘officers liable to retire on political grounds’. Some ministers were required to be members of parliament. Most prominent, though, was the requirement in South Australia that ministers had to be members within three months of their appointment.14 From these provisions, the principles of responsible government were implied and judicially recognised.15 Full implementation of the principles of responsible government depended ultimately on their practical adoption by the Governor and the members of the legislature and executive branches in their management of the affairs of state. Most of the Westminster conventions soon developed as the colonial systems modelled themselves on the British system, and as the role of the Governor continued to evolve. At that time, the Governor acted both as representative of the monarch on the instructions of the colonial ministry and as an imperial agent for the British Government. The latter role was retained to a lessening degree up to the end of the Second World War. After this, the Governor acted entirely on the advice of the State ministry. A consequence of the Governor’s dual role was that the Crown’s royal prerogatives were not recognised as having been vested entirely in the local Crown until after the grant of responsible government, despite the protestations of Chief Justice Higinbotham in Victoria.16 While responsible government arrived with a ‘small bang’, it took some time, as Professor Lumb17 recognised, for it to mature fully on Australian soil: There is no doubt that, in the nineteenth century, the Imperial Government itself did not accept the proposition that complete responsible government had been attained by the Australian colonies. It was recognised in various despatches from the colonial secretary that the governor had the right to refuse the advice of his ministers in matters of local concern in exceptional circumstances and in fact a number of colonial governors acted contrary to advice given to them by ministers. The view of Keith,18 Jenks,19 and Windeyer20 that responsible government was not introduced solely by the Constitution 13 Its origins are said to lie in the ‘Durham Report’, Report of the Affairs of British North America from the Earl of Durham (11 February 1839), see Winterton, ibid 266, fn 247. See also H. V. Evatt, The King and his Dominion Governors (2nd edn, Melbourne: F. W. Cheshire, 1967) Chapter III, 15–29. 14 Constitution Act 1855–56 (SA) s 32. 15 See, for example Toy v Musgrove (1888) 14 VLR 349 at 392–3; Ryder v Foley (1906) 4 CLR 422 at 432–3; Williams v Attorney-General (NSW) (1913) 16 CLR 404 at 459–60; Theodore v Duncan [1919] AC 696 at 706 (PC); Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 114; New South Wales v Bardolph (1934) 52 CLR 455 at 509. 16 See his dissent in Toy v Musgrove (1888) 14 VLR 349 especially at 394–7. 17 R. D. Lumb, The Constitutions of the Australian States (5th edn, St Lucia: University of Queensland Press, 1991) 68. 18 Arthur Berriedale Keith, Responsible Government in the Dominions (2nd edn, Oxford: Clarendon Press, 1928), Vol I, 122 ff, p 177. 19 Edward Jenks, The Government of Victoria (Australia) (London: Macmillan and Company, 1891), 207. 20 ‘Responsible Government’ (1957) 42 Royal Australian Historical Society Journal 217.

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Acts, in one fell swoop as it were, seems to be more in keeping with constitutional practice in the Australian colonies in the nineteenth century than does the view of Higinbotham. While one can agree with the latter that the doctrine was implicitly recognised in the Constitution Acts, one cannot agree that it was solely dependent on this source. It depended also on the attitudes and practices of the Imperial Government and governors which accompanied the grant of self-government and on a gradual development of an awareness – an opinio juris – that the governor must act on the advice of his ministers.21

It seems this opinio juris only really developed after federation. During the second half of the 19th century there are many instances of colonial Governors refusing to act on the advice of their ministries, or even interfering in the general administration of the colony.22 Eventually, the convention that Governors always act on ministerial advice became entrenched, at least by 1916 following the recall of the Governor of New South Wales, Sir Gerald Strickland, for failing to assent to a Bill on the advice of the Holman ministry. It would appear that by 1926 the Colonial Office regarded it as inappropriate to issue constitutional instructions to the Governor.23 Nonetheless, a State Governor continued to be formally an agent of the United Kingdom Government probably until the Second World War. Until the Australia Acts 1986, they were appointed by the Queen – not on the advice of the State Premier – but on the advice of the Minister for Foreign and Commonwealth Affairs. This was also the situation with the appointment of the Governor-General until the Balfour Declaration of 1926 declared dominion status for Canada, the Commonwealth of Australia, New Zealand and South Africa, the Irish Free State and Newfoundland. Subsequently, the Governor-General was appointed by the Queen on the advice of the Prime Minister of Australia, and no longer served as an agent for the British Government.24 The Report of the 1929 Imperial Conference recognised the need to make formal legal changes to give effect to this new dominion status and these were agreed to by the 1930 Imperial Conference which led to the Statute of Westminster of 1931. Yet the Australian States and the Canadian provinces were not represented at these conferences. Consequently, their position was not the subject of recommendation – although the Canadian provinces were accorded the benefit of the Statute of Westminster while the Australian States were not. Dr Evatt argued that they ought to have been because their internal status was indistinguishable from that 21 K. Bailey, ‘Self-Government in Australia 1860–1900’, Cambridge History of the British Empire (Cambridge: Cambridge University Press, 1929) Vol II, 397. 22 Two Queensland examples are given by Walter Campbell, ‘Problems of Some Early Queensland Governors’, The Inaugural John Oxley History Lecture, April 1992, State Library of Queensland: in 1866 Governor Bowen advised his Queensland ministry that he would not assent to a proposed Bill authorising the issue of inconvertible paper notes as legal tender (p 2); and in 1888 Governor Musgrave refused to act on ministerial advice to remit a sentence (p 4). 23 J. M. Finnis, ‘The Responsibilities of the United Kingdom Parliament and Government under the Australian Constitution’ (1983) 9 Adelaide Law Review 91, 99. 24 The catalyst for this declaration was the Canadian Crisis of 1926 after which Prime Minister Mackenzie King’s government sought recognition that the Governor-General was in the same position as the King and was not the Imperial Government’s representative in Canada: J. I. Fajgenbaum and P. J. Hanks, Australian Constitutional Law (Sydney: Butterworths, 1980) 91–2.

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of the Commonwealth.25 Unlike the Canadian provinces,26 it appears the States never sought inclusion in order to preserve their direct lines of communication with the British Government during a period of heightened federal tension.27 While inclusion would have freed the States from imperial restraints on power half a century before this was finally achieved in 1986,28 it is likely the Commonwealth would have sought to ensure that all communications between the States and the monarch would have proceeded through the Governor-General.29 It is surprising that at the beginning of the 21st century, around the sesquicentenary of their enactment, the State Constitution Acts continue to give meagre recognition to the principle of responsible government. For instance, the fundamental convention that ministers be members of parliament is only expressly stated in the Tasmanian Constitution.30 It is effectively prescribed in South Australia31 and Victoria32 by requiring ministers to be members within three months of their appointment, while the Queensland Constitution merely acknowledges that Cabinet is ‘collectively responsible’ to parliament.33 Nor is the binding convention that the Governor act on the advice of the ministry referred to.34 Furthermore, except in Queensland, parliamentary control of the imposition of taxes and public expenditure is not expressly acknowledged.35 Despite their omission from the text of State Constitutions, these fundamental rules are still implied. The extent to which they may be entrenched was considered in Chapter 4. There remains a need, using the Constitutions of the self-governing territories as a model, to redraft the State Constitutions to clearly recognise the principle of responsible government. Otherwise, they risk being viewed as irrelevant and redundant.

8.3 Executive structure 8.3.1 The Crown The executive branch in each State and the self-governing territories is often referred to as ‘the Crown’.36 This derives from the Sovereign being regarded as 25 Evatt, above n 13, Chapter XXII, especially 216. 26 Anne Twomey, The Constitution of New South Wales (Sydney: Federation Press, 2004) 60–2. 27 Secession was being mooted in Western Australia and the States were responding to the Great Depression. 28 Commentary by Leslie Zines to H. V. Evatt, The Royal Prerogative (Sydney: Law Book Company, 1987) Chapter 8. 29 Twomey, above n 26, 61. 30 Constitution Act 1934 (Tas) s 8B(1). There is a proposal to amend the Constitution of Queensland 2001 to expressly require ministers (including the Premier) to be a member of the Assembly or at least a candidate for election: Constitutional and Other Legislation Amendment Bill 2005. 31 Constitution Act 1934 (SA) s 66(1). 32 Constitution Act 1975 (Vic) s 51. 33 Constitution of Queensland 2001 (Qld) s 42(2). 34 The phrase ‘Governor-in-Council’ is, however, defined to mean the Governor acting with the advice of the Executive Council: Interpretation Act 1967 (NSW) s 14; Acts Interpretation Act 1954 (Qld) s 36; Acts Interpretation Act 1915 (SA) s 23; Acts Interpretation Act 1931 (Tas) s 43; Interpretation of Legislation Act 1984 (Vic) s 38; Interpretation Act 1984 (WA) s 60; Interpretation Act 1978 (NT) s 34. 35 Constitution of Queensland 2001(Qld) ss 64–6. 36 For various senses in which the ‘Crown’ is used, see Sue v Hill (1999) 199 CLR 462 at 497–503 per Gleeson CJ, Gummow and Hayne JJ.

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the formal head of each executive branch in whom executive power is vested by the common law. These separate Crown entities arose in the States and the selfgoverning territories as each was granted self-government.37 As the repository of executive power, the Sovereign personifies each executive branch and accords it status as a distinct legal entity. This legal entity is referred to as ‘the Crown in right of the jurisdiction concerned,38 such as the Crown in right of New South Wales, the Crown in right of the Northern Territory, and so on. Since these entities are legally distinct, they possess the capacity to sue each other and to enter into contractual relations. A distinct issue concerns the nature of the Sovereign who heads each of these State Crowns. Is this a single and indivisible sovereign whose realm as Queen of Australia encompasses the Commonwealth, the States and the territories, or are there distinct Commonwealth and State realms, where in respect of each the Queen acts as a distinct Sovereign? The former means that the Sovereign in respect of each State is the Queen of Australia – the same as the Commonwealth Sovereign. The Australian Sovereign is therefore indivisible – each State Crown merely a different emanation or agent39 of that Sovereign.40 The latter situation means Australia is a heptarchy – a nation of seven monarchies under the same Queen.41 If this is so, the Commonwealth and the States each constitute a separate realm which requires the Queen to be described as the Queen of that realm; for example, Queen of New South Wales. This issue really concerns the divisibility of the Sovereign, rather than of the Crown.42 The existence of separate Crowns at the State level is clearly established.43 Each Crown is a distinct legal entity. While the Crown is personified in the Sovereign, the Sovereign is a distinct but related institution from the Crown. The role of the Sovereign and the identification of her realms are less easily defined than the emanations of the Crown. Normally, a realm constitutes an independent nation or polity.44 This occurred with the personal union of

37 Ironically, the indivisibility of the Crown aided the devolution of the prerogatives to the colonies and uncertainty as to their scope assisted the attainment of self-government: Evatt, above n 28, 94–109. 38 Municipal Council of Sydney v The Commonwealth (1904) 1 CLR 208 at 231; The King v Sutton (1908) 5 CLR 789 at 805 per O’Connor J; P. J. Hanks, Constitutional Law in Australia (2nd edn, Sydney: Butterworths, 1996) 159. 39 B. Selway, The Constitution of South Australia (Sydney: Federation Press, 1997) 23. 40 Leslie Zines, The High Court and the Constitution (4th edn, Sydney: Butterworths, 1997) 314; George Winterton, ‘The Constitutional Position of Australian State Governors’ in H. P. Lee and George Winterton (eds), Australian Constitutional Perspectives (Sydney: Law Book Company, 1992) 274; George Winterton, ‘The Evolution of a Separate Australian Crown’ (1993) 19 Monash Law Review 1, 3–4 and ‘The States and the Republic: A Constitutional Accord?’ (1995) 6 Public Law Review 107, 113. Cf the view that there is only one Australian body politic: Michael Stokes, ‘Comment – Are There Separate State Crowns?’ (1998) 20 Sydney Law Review 127 especially 131. 41 G. Craven ‘The Constitutional Minefield of Australian Republicanism’ (Spring 1992) Policy 33, 35; Twomey, above n 26, 600–3. Cf Witten v Lombard Australia Ltd (1968) 14 FLR 322 (ACT Supreme Court) per Gibbs J at 330–1. 42 This distinction was not clearly made in the 1993 Report of the Republic Advisory Committee, An Australian Republic – The Options (Canberra: Australian Government Publishing Service, 1993),Vol1, The Report, 124–5. 43 Sue v Hill (1999) 199 CLR 462 at 500–2 per Gleeson CJ, Gummow and Hayne JJ; New South Wales v Commonwealth (1975) 135 CLR 337 at 494 per Jacobs J. 44 Michael Stokes, ‘Comment: Are there Separate State Crowns?’ (1998) 20 Sydney Law Review 127.

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the kingdoms of England and Scotland between 1603 and 1707.45 Similarly, the Sovereign of the United Kingdom evolved into distinct Sovereigns and realms in each of the dominions. Until the 1920s, the Sovereign of the United Kingdom was considered indivisible, although the executive government of each colony was viewed as a distinct legal entity. The granting of dominion status to Canada, the Commonwealth of Australia, New Zealand, South Africa, the Irish Free State and Newfoundland by the Balfour Declaration of 1926 and the Statute of Westminster 1931 (Imp) and their attainment of international personality, led to recognition of a Sovereign in right of the Commonwealth of Australia as distinct from the Sovereign in right of the United Kingdom, in right of New Zealand and so on.46 In essence, different realms or monarchies were created, each adopting the United Kingdom Sovereign as their respective monarch. Consequently, the 1952 Commonwealth Prime Ministers’ Conference recommended each dominion adopt its own appropriate royal style and title.47 Australia did this by the Royal Style and Titles Act 1953 (Cth). The present royal style and title for Australia, which refers to the Queen of Australia and makes no reference to the United Kingdom, was prescribed by the Royal Style and Titles Act 1973 (Cth): Elizabeth the Second, by the Grace of God Queen of Australia and Her Other Realms and Territories, Head of the Commonwealth.

The issue posed here is whether a similar process of constitutional evolution occurred at the State level in Australia. The existence of one Australian sovereign and realm is supported by both Professors Zines and Winterton. Zines relies on the preamble to the Commonwealth of Australia Constitution Act 1900 (Imp) which refers to ‘one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland’ and covering clause 2 which refers to the Queen ‘in the sovereignty of the United Kingdom’.48 Winterton relies on the fact that a sovereign exists only for a nation, so that each State viceroy represents the same legal person, the Queen of Australia.49 He rejects the view that the only determining factor is on whose advice the Queen acts. In his view, both nationhood and direct advice from the ministry to the sovereign are required to establish a separate realm. Certainly, an Australian realm was recognised in relation to the Commonwealth by the time it had achieved nationhood status and its ministers became responsible for directly advising the Queen on Commonwealth matters.50 But it has been suggested only the latter is essential to establish a separate realm.51 Accordingly, because the Queen has been required to act on the advice of her State Premiers rather than on the advice of her United Kingdom ministers since 45 Zines, above n 40, 314. Note the comment of Gleeson CJ in Sue v Hill (1999) 199 CLR 462 at [94]. 46 See Sue v Hill (1999) 199 CLR 462 at 489–90 per Gleeson CJ, Gummow and Hayne JJ. 47 K. C. Wheare, The Constitutional Structure of the Commonwealth (Oxford: Clarendon Press, 1960) 166–8. 48 Zines, above n 40, 314. 49 Winterton, ‘The Constitutional Position of Australian State Governors’, above n 40. 50 This was probably achieved with the enactment of the Statute of Westminster 1931 on 11 December 1931: Winterton ‘The Evolution of a Separate Australian Crown’, above n 40, 4–5. 51 See Twomey, above n 26, 602.

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the enactment of s 7 of the Australia Acts 1986, it is suggested that she now constitutes a separate Sovereign in each State. Prior to 1986, the Queen always acted on the advice of her United Kingdom ministers in relation to State matters. Her United Kingdom ministers in turn usually followed the advice of the State ministry, although they never felt bound to do so.52 For this reason, the Australian States were regarded by the British Government as dependencies of the Crown in right of the United Kingdom. This meant that it could be argued that until 1986, the State Crowns came under the Queen of the United Kingdom, not the Queen of Australia. Consequently, the ‘patriation’ of the State Constitutions by s 7 of the Australia Acts 198653 resulted in the transfer of power from the Queen of the United Kingdom to a new realm for the Queen of each respective State. This line of argument gains support from the fact that since the Australia Acts 1986, the relationship between the Queen and each of the States is no different from that which exists between the Queen and the Commonwealth of Australia. In each case, the Queen acts only on the direct advice of the Commonwealth or State ministry, and her only remaining substantive power in respect of which this advice is required, is the power to appoint and dismiss her vice-regal representative. Moreover, the Queen’s relationship with her Commonwealth ministry is entirely separate from her relationship with her respective State ministries. The Governor-General possesses no responsibility for State affairs and has no formal relationship with the State Governors.54 Hence, there are in effect seven parallel and independent relationships with the Queen. This is unique among the Queen’s realms. It can also be seen as the final stage of constitutional evolution of the States, following on from and complementing the evolution of the ‘Crown’ as a distinct legal entity in each State. The whole notion of the indivisibility of the Crown has been continually eroded for its failure to reflect legal reality.55 Similarly, it is arguable that the notion of a single Australian Sovereign or monarch must give way to legal reality. The weakness in this line of reasoning is the failure to recognise the fundamental assumption which underlies the creation of the Australian federation – that the Commonwealth and the States are united under one Sovereign. This is most clearly implicit in the preamble to the Commonwealth of Australia Constitution Act 1900 (Imp) which cites the Australian colonies agreeing to unite in ‘one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland’. While that realm has transformed itself with the separation of Eire, and has allowed the evolution of separate realms in each dominion, the assumption is that the Commonwealth of Australia will remain under 52 Anne Twomey, ‘Constitutional Convention and Constitutional Reality’ (2004) 78 Australian Law Journal 798, 807–8. 53 See J. A. Thomson, ‘The Australia Acts 1986: A State Constitutional Perspective’ (1990) 20 University of Western Australia Law Review 409, 425. 54 Except in the appointment of the most senior State Governor as Administrator of the Commonwealth. Commmunications occur between State Governors and the Governor-General in relation to, for example, the conferral of honours and the date for Senate elections. 55 See Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107 at 122, 128; Selway, above n 39, 24.

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one Sovereign and that its citizens will owe allegiance to that one Australian Sovereign.56 The prospect of owing allegiance to different Australian Sovereigns conflicts with the nature of the Commonwealth itself. The practical significance of this debate over a single Australian Sovereign or several Australian Sovereigns appears fairly confined to the royal style and title of the Queen, the rules of succession and regency, and transformation to an Australian republic. Regarding the last of these, the status of the Queen in relation to the States bears on whether a republic can be achieved at the Commonwealth level without a corresponding and simultaneous transformation in each of the States. Possibly not all components of the federal system would agree to transform their constitutional system simultaneously. This raises the issue whether the federal system can tolerate a partial republic. The answer would seem to depend on the nature of the monarchy in Australia. If there is a single Sovereign of Australia, it is difficult to contemplate the legislative capacity of one of the federal components to renounce the extension of the Sovereign to that jurisdiction. Yet, despite their apparent incongruity, the view of a single Australian Sovereign is presented along with the view that a partial republic is constitutionally possible in the absence of any constitutional authorisation.57 As for the royal style and title of the Queen, the description as ‘Queen of Australia’ by the Royal Style and Titles Act 1973 (Cth) will apply at the State level if there is only one Australian realm. On the other hand, if she is Sovereign of multiple Australian realms, there is no reason why she cannot be described separately as Queen of each realm. None of the States has formally adopted such a title, although in 1975 Queensland sought clarification of its power in this regard by making a reference to the Privy Council for an advisory opinion whether it could prescribe a royal style and title, ‘Queen of Queensland’.58 The reference was never heard by the Privy Council as the High Court held invalid the Queensland legislation authorising the referral as a breach of Chapter III of the Commonwealth Constitution.59 Even if the States can prescribe a royal style and title for their State, this would still require the agreement of the Queen. There is also a view that the Commonwealth has the exclusive power to prescribe the royal style and title of the Queen.60 A common assumption is that the adoption of the Queen of the United Kingdom as the Sovereign in Australia is required by covering clause 2 of the Commonwealth of Australia Constitution Act 1900 (Imp) which provides that references to the Queen in the Constitution extend to ‘Her Majesty’s heirs and successors in the sovereignty of the United Kingdom’. Accordingly, the English rules of succession determine the identity of 56 The essence of Australian citizenship is allegiance to the Queen of Australia: Sue v Hill (1999) 199 CLR 462 at 503. 57 Winterton, ‘The Constitutional Position of Australian State Governors’, above n 40, 274. 58 The oath of allegiance in the Second Schedule to the Constitution Act 1975 (Vic) refers to the Queen as ‘lawful Sovereign of the United Kingdom and of this State of Victoria’. 59 Commonwealth v Queensland (1975) 134 CLR 298. 60 See Zines, above n 40, 272; Winterton, ‘The Constitutional Position of Australian State Governors’, above n 40; Hanks, above n 38.

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the Queen of Australia. Prior to federation, these rules would have extended to the colonies as paramount English law.61 Now, by virtue of s 1 of the Australia Acts 1986, any change to those rules in the United Kingdom has no effect in Australia unless adopted by Australian law.62 An alternative view of covering clause 2 is that it is not prescriptive; it is merely an ‘anachronistic’ principle of statutory interpretation.63 Therefore, the Commonwealth has an inherent power to legislate for the succession and the royal style and title of Queen of Australia.64 A related issue is whether the Queen can be described as ‘head of state’ of a State.65 Heads of State, as distinct from the Government, serve several purposes. They represent the polity to the world and they act on behalf of all its people in expressing a view, conferring a benefit, or accepting a responsibility. They are the personification of the polity as a whole.66 Her Majesty is clearly recognised under international law as ‘head of state’ of the Commonwealth of Australia, as the personification of the body politic. Although not referred to as such in the Commonwealth Constitution, the Queen assumes this title as the pivotal head of the executive branch of the Commonwealth under s 61 of the Commonwealth Constitution.67 On the other hand, the Australian States and self-governing territories lack international personality. For them to designate the Queen as head of state within their respective jurisdiction, has no effect under international law. Nonetheless, such a designation is more justified if there is a separate realm in each State. But if there is only a single Australian realm, a more appropriate designation at the State level would be as ‘executive head of the State’.68 Whichever description is the more accurate, it is clear that State Governors and Territory Administrators fulfil the ceremonial function of ‘head of state’ at the State and territory level. Some uncertainty exists about the position in Australia if the Queen became physically or mentally incapacitated. In the United Kingdom, the Regency Act 1937 (UK) provides for the appointment, for the period of the incapacity, of the heir to the throne as regent where a declaration69 is made that the Sovereign is ‘by reason of infirmity of mind or body incapable for the time being of performing 61 See Hanks, ibid. 62 Sue v Hill (1999) 199 CLR 462 at 502 per Gleeson CJ, Gummow and Hayne JJ. 63 See Bailey, ‘The Abdication Legislation in the United Kingdom and in the Dominions’ (1938) 3 Politica 1, 17–18, cited in Zines, above n 40, 315–16. 64 Zines, ibid 316. 65 Hanks, above n 38. The ACT should also be included as it is established as a body politic under the Crown – ACT (Self-Government Act) 1988 (Cth) s 7. 66 Paul Hasluck, The Office of Governor-General (Melbourne: Melbourne University Press, 1979) 6–7. 67 The role of head of State of Australia is in fact shared between the Queen and the Governor-General since all diplomatic functions are performed by the Governor-General, not by the Queen. This role of head of State was described by Gleeson CJ, Gummow and Hayne JJ in Sue v Hill (1999) 199 CLR 462 at 498 [85] as: ‘the incarnation of the international personality of a body politic, by whom and to whom diplomatic representatives are accredited and by whom and with whom treaties are concluded’. 68 In R v The Governor of the State of South Australia (1907) 4 CLR 1497 at 1512–13 the judgment of the High Court delivered by Barton J referred to the State Governor as ‘Head of the State’ and as ‘Constitutional Head of the State’. The Court held that mandamus did not lie against a State Governor as ‘Head of the State’ for the same reason that it did not lie against the Sovereign. In The King v Sutton (1908) 5 CLR 789, O’Connor J at 804 referred to the King as ‘executive head of each of the States and of the Commonwealth respectively’. 69 The declaration is made by any three of – the Sovereign’s spouse, the Lord Chancellor, the Speaker of the House of Commons, the Lord Chief Justice of England and the Master of the Rolls – on evidence including that of physicians (s 2(1)).

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the royal functions’, or ‘for some definite cause not available for the performance of those functions’ (s 2). In less serious cases, provision is made for the Sovereign to delegate her royal functions to a Council of State, comprising the spouse of the Sovereign and the four adults next in line of succession (s 6). But it is unclear whether the Regency Act 1937 (UK) applies in Australia by paramount force. While the New South Wales Law Reform Commission70 in 1972 thought it did, Dr Vernon Bogdanor considers each dominion must make its own provision for the Sovereign’s incapacity.71 He suggested though, this would only need to cover the powers specifically vested in the Sovereign, that is, the power to appoint and dismiss the vice-regal representatives. This view assumes, probably correctly, that the incapacity of the Sovereign does not affect the powers vested in those representatives. Finally, note that most State Constitutions make provision for avoiding the common law effect of the demise of the Sovereign on parliament, Crown appointments or offices under the Crown, contracts with the Crown, and other acts of the Crown.72

8.3.2 Powers of the Queen The Queen’s constitutional role in the States is extremely limited since the vast bulk of powers is vested by statute in her Governors. Essentially, the Queen’s only significant power today is the power to appoint and dismiss her representatives. Detailed consideration is given below to this power. Since the enactment of the Australia Acts, other powers vested in her – such as the power to assent to legislation,73 the power to revoke or amend Letters Patent relating to the office of Governor,74 and the removal of Western Australian judges on an address from both Houses of the Western Australian Parliament75 – are only exercisable by her representative, the State Governor, unless arrangements have been made for her to exercise those powers when she is personally present in the State.76 It is clearly established that the Queen never interferes in the exercise of any power by a Governor.77 Yet there is another aspect to the Queen’s constitutional role which tends to be overlooked, despite it being probably the most important: the extent to which the institution of the monarchy or the Sovereign attracts certain key principles of the common law, in particular, the royal prerogatives. The very existence of the Queen as the head of the executive branch in right of the Commonwealth and the 70 New South Wales Law Reform Commission, Working Paper on Legislative Powers, Government Printer, Sydney, 1972, para 167. Section 2(2) of the Regency Act 1937 (UK) requires any declaration of the Sovereign’s incapacity to be made to the Privy Council and communicated to the Dominion Governments. 71 V. Bogdanor, The Monarchy and the Constitution (Oxford: Clarendon Press, 1995) 49–51. 72 Constitution Act 1902 (NSW) s 49A; Constitution of Queensland 2001 (Qld) ss 17 and 38; Constitution Act 1934 (Tas) ss 4–7; Constitution Act 1975 (Vic) ss 9–11; Constitution Act 1934 (SA) ss 4–7. 73 Constitution Act 1902 (NSW) s 8A expressly confines the power if personally present in the State. 74 Letters Patent (SA) of 14 February 1986 cl XXIII, gazetted 6 March 1986; Letters Patent (Tas) of 14 February 1986, cl V; Letters Patent (WA) of 14 February 1986, cl VI. 75 Constitution Act 1889 (WA) s 55. 76 Australia Acts 1986 s 7. 77 Practice 11 of the Practices Recognised and Declared by Resolution, Proceedings of the Australian Constitutional Convention Vol 1 Official Record of Debates and Biographical Notes, Adelaide, 26–9 April 1983, 320.

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States ensures the conferral of the common law powers, rights, immunities and preferences which constitute the royal prerogatives. Consequently, any transformation to a republic must ensure the continued enjoyment of those prerogatives by each Crown.78

8.3.3 Role of Governors and Administrators The primary formal role of State Governors is to represent the Sovereign in their respective State, as provided for by s 7(1) of the Australia Acts 1986: ‘Her Majesty’s representative in each State shall be the Governor’. Yet, their role is not merely one of representing the Queen but extends much further – indeed it substantially replaces the Queen. The Queen’s only substantive function is to appoint and dismiss the Governor. All other constitutional and ceremonial functions are performed by the Governor. One significant qualification to this view – that the Queen has been effectively replaced – is the fact that the Queen and not the Governor is a constituent component of parliament in New South Wales, Queensland, Victoria and Western Australia.79 This is reflected in the Governor giving royal assent to Bills in the Queen’s name – in this respect at least, the Governor and Queen are acting in concert. Only in Tasmania is the Governor a constituent component of parliament.80 Clearly, the role of a State Governor has evolved since the appointment of Captain Arthur Phillip as the first Governor of New South Wales. As Professor Galligan observed: The office of Governor is the oldest part of the machinery of government in Australia and the part that has undergone the most substantial evolutionary change.81

The early Governors exercised autocratic power over a penal colony on behalf of the Imperial Government.82 As self-government progressed within the Australian colonies, the Governor’s role as the agent of the Imperial Government contracted gradually83 until the assumption of full responsible and representative government confined the office to a limited constitutional and ceremonial role by the first quarter of the 20th century. Federation played a significant role in this process of evolution since State Governors could now no longer protect imperial interests with the eventual transfer to the Commonwealth of responsibility for defence and external affairs. Still, until the end of the Second World War, the practice of appointing British dignitaries as State Governors continued. This was facilitated by the fact that until 1986 the British Government formally advised 78 See proposed s 70A of the Constitution Alteration (Establishment of Republic) Bill 1999. 79 Constitution Act 1902 (NSW) s 3; Constitution Act 1867 (Qld) s 2A(1) and Constitution of Queensland 2001 s 6; Constitution Act 1975 (Vic) s 15; and the Constitution Act 1889 (WA) s 2(2). 80 Constitution Act 1934 (Tas) s 10. 81 B. Galligan, ‘Australia’ in D. Butler and D. A. Lowe (eds), Sovereigns and Surrogates: Constitutional Heads of State in the Commonwealth (London: Macmillan, 1991) 77. 82 See Enid Campbell, ‘Prerogative Rule in New South Wales 1788–1823’ (1964) 50 Royal Australian Historical Society Journal 161 which assesses the validity of the exercise of power by the early Governors. 83 See Winterton, above n 9, 21.

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the Queen on the appointment of State Governors. According to the accepted view at the time, it followed that the legal capacity of the British Government to influence Australian affairs continued. It appears that the last instance of direct United Kingdom intervention in the conduct of a Governor occurred during the Strickland–Holman crisis of 1916. The Governor of New South Wales, Sir Gerald Strickland, refused to deal with Labor Premier Holman after his party passed a resolution of no confidence in him. The party was split over the issue of conscription which had just been defeated at a federal referendum. Mr Holman, who had supported conscription, survived as Premier with the support of the Liberal Opposition by agreeing to form a National Party to assist in the prosecution of the war and to extend the life of the parliament by one year. The Governor indicated initially that he would not give royal assent to the Bill to provide for that extension. The Colonial Office intervened at the request of Premier Holman and recalled the Governor. Meanwhile, the Governor assented to the Bill before returning to England.84 A further opportunity to intervene in New South Wales arose in 1925 when the Governor, Sir Dudley de Chair, refused Premier Lang’s advice to appoint further members to the Legislative Council who were to vote on a Bill to abolish that House. The Governor had already appointed 25 new members for that purpose. Since a number had ‘ratted’, further appointments were sought. The imperial authorities, though, refused to intervene and regarded any issue of instructions to the Governor as improper.85 The possibility of imperial intervention continued until the 1970s in relation to the appointment of Governors. So long as the United Kingdom ministry advised the Queen on the appointment of State Governors, the opportunity and justification for United Kingdom interference was maintained. Originally, of course, colonial governors were selected by the United Kingdom Government without colonial consultation. By the 1890s, colonial governments were consulted over future appointments and eventually they were able to provide nominees.86 Despite federal and State pressure since federation for the appointment of an Australian as Governor or Governor-General, this was only achieved in 1930 with the appointment of Sir Isaac Isaacs as Governor-General. A Victorian attempt to have an Australian Governor was rejected by imperial authorities in 1931.87 In 1946 Lieutenant-General Sir John Northcott, the first Australian State Governor, was appointed Governor of New South Wales.88 In Western Australia, no appointment was made for over 15 years because of the British Government’s refusal to accept the Western Australian Government’s nominee, Sir James Mitchell, and the refusal of the Western Australian Government to accept anyone else. Eventually, Sir James was appointed Governor in 1948. 84 Evatt, above n 13, 146–52. 85 See Fajgenbaum and Hanks, above n 24, 19–20. 86 Winterton, ‘The Constitutional Position of Australian State Governors’, above n 40, 275. 87 So the Deputy Governor was relied on until 1934: see D. Clark, Principles of Australian Public Law (Sydney: LexisNexis Butterworths, 2002) 179 [8.6]. 88 See Twomey, above n 26, 612–14. Another Australian appointment at this time was Lt-Gen Sir John Lavarack as Governor of Queensland in 1946.

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Since the Second World War, vice-regal appointments have been predominantly Australian, and with only a couple of exceptions, always the preferred nominee of the State government. It has recently been suggested that until the Australia Acts 1986, the United Kingdom maintained the view that it was not bound by the advice from the State ministries.89 Still, there are very few reported instances where their advice was not followed. Most prominent was the refusal of the British Government in 1976 to advise the Queen, as per the Queensland Government’s instructions, to reappoint Sir Colin Hannah as Governor of Queensland.90 His public criticism of the Whitlam Labor Government had rendered reappointment inappropriate. Since the Australia Acts 1986, the matter is now entirely one between the State Premier and the Queen. Yet the practice continues where the Queen’s reaction to informal advice on a proposed appointee is gauged before formal advice is tendered. In this way, the Queen can exercise her rights to consult, encourage and warn. 8.3.3.1 Office of Governor The office of Governor was originally established by Letters Patent. Today, the office exists in four States (New South Wales, Queensland, Victoria, and Western Australia) by virtue of their Constitution Acts.91 In South Australia and Tasmania, the office exists only by virtue of Letters Patent dated 14 February 1986 relating to the office of Governor issued by the Queen of the United Kingdom (not by the Queen of Australia) just prior to the commencement of the Australia Acts.92 The office is also provided for in Victoria and Western Australia by similar Letters Patent of 14 February 1986,93 but the Letters Patent for Queensland were suspended by s 13 of the Constitution (Office of Governor) Act 1987 (Qld), while those in New South Wales94 were revoked. Provision to amend or revoke the Letters Patent of Victoria differs from that found in South Australia, Tasmania and Western Australia. The Victorian Letters Patent empower the Governor-in-Council to make, revoke, or alter any Letters Patent relating to the office of Governor,95 while those in relation to the other three States leave this power with the Queen.96 But by s 7(2) of the Australia Acts that power is now only exercisable by the Governor unless the Queen is personally present in the State, and in any case must be exercised only on the advice of the relevant State Premier (s 7(5)). A significant issue in the republic debate at the State level is whether the office of Governor is entrenched. Professor Winterton argues that s 7(1) of the Australia Acts, in merely providing for the State Governor as the Queen’s representative, 89 Twomey, above n 26, 140–1. 90 C. Hughes, The Government of Queensland (St Lucia: University of Queensland Press, 1980) 195–6. 91 Constitution Act 1902 (NSW) s 9A(1); Constitution of Queensland 2001 (Qld) s 29; Constitution Act 1975 (Vic) s 6; Constitution Act 1889 (WA) s 50. 92 United Kingdom, Statutory Instruments 1986 (HMSO, 1987), Part I, Section 3, 2496–99 (SA) and 2500–02 (Tas). 93 Ibid 2503–04 (Vic) and 2505–08 (WA). 94 Constitution (Amendment) Act 1987 (NSW). 95 Letters Patent (Vic) of 14 February 1986, cl X. 96 Letters Patent (SA) of 14 February 1986, cl XXIII; Letters Patent (Tas) of 14 February 1986, cl V; Letters Patent (WA) of 14 February 1986, cl VI.

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does not entrench the monarchy. It does not expressly or impliedly require that there shall be a Governor.97 But with great respect, there appears to be a clear implication in s 7(1) that there be a Governor so long as the Queen has any constitutional function to serve in the State. The functions of the Governor other than representing the Queen are not defined in the Australia Acts, except that ‘Governor’ is defined in s 16(1) as ‘any person for the time being administering the government of the State’. Two States, Queensland and Western Australia, expressly entrench the office of Governor by requiring any Bill which expressly or impliedly provides for the abolition of or alteration in the office of Governor to be approved by referendum before being presented for royal assent.98 Western Australia has an additional requirement that the Bill be passed by an absolute majority in each House.99 This entrenchment is legally effective in each State (see Chapter 6). In addition to the office of Governor, there are usually other offices to act in place of the Governor when the Governor is absent from the State or otherwise incapable of performing the functions of the office. These are: ● A Lieutenant-Governor who is appointed by the Queen on the advice of the Premier to act whenever there is a vacancy in the office of Governor, or when the Governor is absent or incapacitated.100 ● A Deputy Governor (usually the Lieutenant-Governor or Administrator – see below) who is appointed by the Governor on the advice of the Premier for a limited period during the Governor’s absence or illness.101 ● If no Deputy Governor is appointed by the Governor, the Administrator (or Acting Governor) who is normally the Chief Justice or next senior judge,102 automatically assumes the administration of the State when there is no Governor or Lieutenant-Governor, when they are unable to perform the duties of office (for example while acting as administrator of the Commonwealth), are absent from the State, or incapable of performing the duties of the office.103 8.3.3.2 Appointment State Governors are appointed by the Queen on the formal advice of the Premier.104 Before the Australia Acts, although a State Government chose its 97 George Winterton, ‘An Australian Republic’ (1988) 16 Melbourne University Law Review 467, 479. 98 Constitution Act 1867 (Qld) s 53(1). Section 11A which provides for the Governor as the Queen’s representative in Queensland is similarly entrenched by s 53. 99 Constitution Act 1889 (WA) s 73(2). 100 Constitution Act 1902 (NSW) ss 9B–9C; Constitution Act 1934 (SA) s 70; Constitution Act 1934 (Tas) s 8. 101 Constitution of Queensland 2001(Qld) s 40; Constitution Act 1902 (NSW) s 9D; Constitution Act 1934 (SA) s 70; Constitution Act 1934 (Tas) s 8. 102 The appointment of judges to these vice-regal positions has been criticised for compromising judicial independence: Official Records of the Debates of the Australasian Federal Convention, Melbourne, Vol 1, 355–75; Report No 36 of the Legal, Constitutional and Administrative Review Committee (LCARC) of the Queensland Legislative Assembly, The Queensland Constitution: Specific Content Issues, August 2002, 3.2, p 24. 103 Constitution of Queensland 2001 (Qld) s 41 – called an Acting Governor. 104 During the federal convention debates of the 1890s, it was suggested that State Governors might be elected, or else appointed by the Governor-General: Anne Twomey, ‘Electing the Representative of the Crown: An 1890s Perspective’ (1995) 4 Constitutional Centenary Newsletter 1–3.

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Governor, formal advice was tendered to the Queen through the British Government.105 Thus, the British Government retained the capacity to interfere in the appointment – as it did in 1976 – in refusing to advise the Queen to reappoint Sir Colin Hannah for another term as Governor of Queensland.106 That capacity was effectively renounced by s 10 of the Australia Acts 1986. And by s 7(5) of those Acts the Premier now advises the Queen directly. The practice still remains for the Premier initially to convey informally to the Queen the name of an appointee to give her the opportunity to exercise her right to comment on the proposal. Then the Premier conveys the formal advice. Governors used to be appointed by commission to an office created by Letters Patent, whose conduct was subject to royal instructions. While their appointment is still made by commission under the Royal Sign Manual,107 the office of most State Governors now exists by virtue of State legislation108 rather than Letters Patent,109 and they are no longer subject to royal instructions. The existence of the office of Governor is at least reinforced by s 7(1) of the Australia Acts in prescribing that ‘Her Majesty’s representative in each State shall be the Governor’. At present, there is no formal process of public consultation over the appointment of a State Governor. In practice, the selection is usually the personal choice of the Premier.110 Clearly, some level of public and political consultation is appropriate. At least the approval of the Leader of the Opposition ought to be sought to ensure that the appointee enjoys the confidence of both the Government and the Opposition. This would establish the appointee’s capacity for political impartiality. Some might argue that the electorate should have the right to vote on a State Governor. A middle approach here is that proposed for the selection of a President in the 1999 Commonwealth republic referendum.111 Following a process of public nominations to a committee, a short list of names was to be submitted to the Prime Minister, who would agree with the Leader of the Opposition on the submission of one nominee to a joint sitting of the Commonwealth Parliament for ratification by a two-thirds majority. There is no constitutional impediment to the immediate adoption of a similar process for the selection of State Governors or even Territory Administrators. A step in the proper direction occurred in 2003 when the Queensland Premier, Mr Beattie, submitted his nominee for Governor, Quentin Bryce, to the Legislative Assembly of Queensland for approval.112 105 Through the Foreign and Commonwealth Office, London. 106 See Hughes, above n 90. 107 The signature or royal hand of the Sovereign. 108 Constitution Act 1902 (NSW) s 9A(1); Constitution Act 1975 (Vic) s 6; Constitution of Queensland 2001 (Qld) ss 29–30, Constitution Act 1867 (Qld) ss 11A and 11B; Constitution Act 1889 (WA) s 50(1). 109 Letters Patent (SA) of 14 February 1986 cl 2, gazetted 6 March 1986; Letters Patent (Tas) of 14 February 1986 cl 2, gazetted 14 March 1986. The Letters Patent of Queensland were suspended by s 13 Constitution (Office of Governor) Act 1987 (Qld). The New South Wales Letters Patent were revoked: s 9F Constitution Act 1902 (NSW). 110 This is justified by Hasluck, above n 66, 43, on the ground that if Cabinet or the party were consulted this would ‘damage the office and increase the difficulties of the occupant if appointment were preceded by factional contention or personal rivalry.’ The Queen also is effectively consulted before formal advice is tendered by the Premier. 111 See Constitution Alteration (Establishment of Republic) Bill 1999 (Cth) cl 60. 112 Legislative Assembly, Hansard Report, 11 March 2003, p 369.

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8.3.3.3 Tenure A Governor is appointed during Her Majesty’s pleasure.113 While formally there is no fixed term of appointment, by convention a Governor usually serves a five-year term.114 Often this term is renewed. It also follows that a Governor can be removed by the Queen, acting on the advice of the Premier, at any time for any reason.115 Unlike many other public offices, there is no security of tenure. It is unclear whether dismissal by the Queen could be instantly effected by, for instance, a telephone call to the Governor.116 This cannot occur in Queensland where dismissal occurs only in writing by instrument under the Royal Sign Manual on publication in the Gazette or such later date specified.117 It is clear that the Queen is usually entitled to written advice from the Premier advising the reasons for dismissal, an opportunity to seek a response from the Governor, and a reasonable period to consider all of the information provided.118 Although probably nonjusticiable, it is submitted that the Queen is under a duty to seek the Governor’s response to the reasons provided by the Premier, at least if the Premier has not already sought that response and conveyed it to the Queen.119 To this extent, procedural fairness should be accorded.120 Professor Winterton doubts whether the Queen could request the Premier to consult with Cabinet before acting on the Premier’s advice to dismiss.121 Such a request ought to be made, though, if the Queen is unsure whether the Premier retains the support of the ministry.122 It is clear the Queen has no reserve power in exercising the power of dismissal.123 On what grounds should a Governor have to resign or else be dismissed? And how should the existence of those grounds be determined? There are no clear answers to these issues since no Australian vice-regal representative has been dismissed since the 19th century, although forced resignations have occurred.124 The circumstances surrounding the resignation of Dr Peter Hollingworth as Governor-General in 2003 demonstrate the lack of any clearly established standard of conduct against which a vice-regal representative should be judged. The grounds warranting removal and the process determining their existence have 113 Constitution Act 1902 (NSW) s 9A(1); Constitution of Queensland 2001 (Qld) s 30 and Constitution Act 1867 (Qld) s 11A(1); Constitution Act 1975 (Vic) s 6; Constitution Act 1889 (WA) s 50. 114 Walter Campbell, The Role of a State Governor, 1988 Endowed Lecture of the Royal Australian Institute of Public Administration, Queensland Division, delivered 22 March 1988, p 3. 115 This is implicit in Australia Acts 1986 s 7(3). 116 V. Bogdanor, The Monarchy and the Constitution (Oxford: Clarendon Press, 1995) 286 refers to the view of the Queen’s private secretary, Sir William Heseltine, that the Queen would have required a formal instrument of advice from Mr Whitlam if he had sought the dismissal of Sir John Kerr. 117 Constitution of Queensland 2001 (Qld) s 32. 118 See Winterton, ‘The Constitutional Position of Australian State Governors’, above n 40, 275; Campbell, above n 114. 119 The rules of procedural fairness should apply unless this would undermine the Queen’s capacity to act on the Premier’s advice. This would be so if she considered it likely that the Governor would retaliate by dismissing the Premier to save office. 120 See Winterton, ‘The Constitutional Position of Australian State Governors’, above n 40, 278, fn 29 citing Sawer, above n 12, 148; Winterton, above n 9, 128–33. 121 See Winterton, above n 40, 279. 122 Campbell, above n 114, 9. 123 See Winterton, ‘The Constitutional Position of Australian State Governors’, above n 40, 280–1. Cf Bogdanor, above n 116, 284–7. 124 Most recently, Dr Peter Hollingworth as Governor-General in 2003, and Mr Richard Butler as the Governor of Tasmania in 2004.

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never been sufficiently articulated.125 To determine the grounds for removal, we look to the functions of the office and the corresponding qualities required to determine the circumstances when the continued performance of those functions becomes impossible. The functions are essentially twofold: to act as a de facto head of State to represent the people of the State; and to act as a politically impartial constitutional guardian on those rare occasions when the governmental system needs correction. A Governor who is unable to continue to perform these two functions should resign. The circumstances in which this regrettable situation may arise cannot be exhaustively defined, but they are capable of being defined in general terms. Accordingly, a Governor ought to resign when public confidence in the performance of his or her vice-regal functions has been manifestly undermined, or the incumbent has brought the office of Governor into disrepute. The difficulty with these tests is that their application is likely to lead to divergent viewpoints within the Australian community. As for the process to determine whether a Governor should resign or be dismissed, the options include: the appointment of an independent commission of inquiry to investigate any serious allegations; a parliamentary or executive inquiry; a conference between the Governor, the Premier and the Leader of the Opposition; or leave the matter with the Premier. Selecting the appropriate option depends on the nature of the case against the Governor. But whichever option is followed, the incumbent must be given the opportunity to respond to the case brought against him or her before the matter is resolved. As the resignation of Dr Hollingworth as Governor-General in 2003 demonstrated, the public withdrawal of confidence in a vice-regal representative by the Leader of the Opposition places the incumbent in an untenable position. Such a stand by the Opposition should not usually be made until whatever process of inquiry has reported. Ideally, the Government and the Opposition should agree on the outcome of that inquiry. This is one of the many lessons to be learnt from the Hollingworth case.126 8.3.3.4 Powers of Governor The powers of a Governor are now only conferred by statute and to a lesser extent by the common law, since all royal instructions have been revoked. Unless an exercise of reserve power, all of these powers are exercised by the Governor only on the advice of the ministry. As Sir Walter Campbell remarked: ‘The principle that the Governor acts only with the advice of ministers is the very essence of our system of responsible government.’127 The common law prerogative powers of the Crown were formerly thought to be only vested in the Governor by formal assignment from the Queen, either by Letters Patent or royal instructions. But by rendering ‘all powers and functions of Her Majesty in respect of a State [to 125 Between 1945 and 1991, 11 instances of dismissal or premature retirement of a Governor-General are given in Bogdanor, above n 116, 282–3. 126 Appendix 4 in this book lists ‘Ten Lessons’ to be learnt from that constitutional crisis. 127 Campbell, above n 114, 5.

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be] exercisable only by the Governor’, 7(2) of the Australia Acts 1986 effectively transferred all these common law prerogative powers to the Governor. The effect has been similar to that of s 61 of the Commonwealth Constitution which vests the executive power of the Commonwealth in the Queen exercisable by the GovernorGeneral. Section 7(2) patriates the Crown’s prerogative powers and converts the Governor into a ‘Viceroy’.128 Since by virtue of s 7(2), the Queen is now unable to ratify or reverse decisions of the Governor nor issue instructions to the Governor, the relationship is no longer one of principal and agent.129 The relationship is the same as that which exists between the Queen and the Governor-General.130 This transfer of prerogative power to the State Governor means that a State government, through its Governor, could exercise that power to redefine the office and powers of the Governor by issuing new Letters Patent or instructions. This might have had repercussions for the Governor’s reserve powers, except that Professor Winterton has argued that the reserve powers are immune from mere executive change, given their statutory basis today.131 Although the transfer of executive power is effected by a provision of paramount force (s 7(2) Australia Acts 1986), any statutory change to those powers involves no repugnancy with the Australia Acts. Royal prerogatives remain subject to statute, while any statutory powers of the Queen must similarly remain open to repeal and amendment by the enacting State parliament. However, repugnancy would arise if a State parliament purported to alter the power to appoint and dismiss the Governor in s 7(3).132 Consideration is given below only to those powers vested specifically in the Governor which relate to the three branches of government. Most are vested in the Governor alone,133 although some are vested in the Governor-in-Council, that is, the Governor acting with the advice of the Executive Council. Still, by convention, all powers vested in the Governor must be exercised with the advice of the ministry.134 Those powers vested in the Governor alone deal, as Hanks notes, with ‘the more sensitive political functions’.135 Yet, since all exercises of power by the Governor must be on the advice of the ministry, the distinction between the two sets of power can only be justified in relation to the few reserve powers which might need to be exercised without that advice. The scope of those reserve powers in relation to the appointment and dismissal of a ministry, and the dissolution of parliament, is examined below. 128 Thomson, above n 53, 424–5; Evatt, above n 28, 94–109. 129 Winterton, ‘The Constitutional Position of Australian State Governors’ above n 40, 282. 130 Interestingly, the Letters Patent issued for the State Governors in early 1986 were the last exercise of power by the Queen of the United Kingdom before that capacity was effectively renounced by s 10 of the Australia Acts 1986: Winterton, ibid 289. 131 Ibid 286. 132 Ibid 289–90. 133 That is, simply vested in ‘the Governor’. Rarely, the expression ‘the Governor alone’ is actually used, for example Constitution Act 1889 (WA) s 74. Both expressions have the same meaning, and both powers must be exercised only on the advice of the ministry. 134 Note that cl III of the Letters Patent of South Australia, Tasmania, Victoria and Western Australia distinguish between powers vested in the Governor-in-Council (to be exercised on the advice of the Executive Council) and those vested in the Governor which are to be exercised on the advice of the Premier. 135 Hanks, above n 38, 194.

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Given the fundamental nature of the convention that the Governor always acts on the advice of the ministry (except in the exercise of reserve power), it is surprising that there is still little, if any, express recognition of this convention in the Constitution Acts. It was considered both ‘constitutionally inelegant and unnecessary’ to do this at the time of federation.136 Yet the convention was cited in the Royal Instructions to Governors137 and obliquely referred to in the Letters Patent138 relating to the office. So far, codification has occurred spasmodically and often inadequately. For instance, s 87E of the Constitution Act 1975 (Vic) merely clarifies who advises the Governor without requiring that advice be acted on: s 87E Where the Governor is bound by law or established constitutional convention to act in accordance with advice – (a) the Executive Council shall advise the Governor on the occasions when the Governor is permitted or required by any statute or other instrument to act in Council; and (b) the Premier . . . shall tender advice to the Governor in relation to the exercise of the other powers and functions of Governor.

More useful is the provision made in all States and the Northern Territory like s 60 of the Interpretation Act 1984 (WA):139 Where in a written law the Governor is authorised or required to do any act, matter, or thing, it shall be taken to mean that such act, matter, or thing may or shall be done by the Governor with the advice and consent of the Executive Council.

At the time of writing, it is proposed to amend s 34 of the Constitution of Queensland 2001 to provide that when exercising the power of appointment and dismissal of ministers, the Governor ‘must, in accordance with constitutional conventions, act on the advice of the Premier’.140 Although not entirely clear, it is intended that the Governor retain the right to refuse to act on the Premier’s advice where this is justified as exercise of reserve power. Such a situation might arise where the Premier appears no longer to possess the confidence of the Assembly. There is also judicial recognition of the strict convention that the Governor or Governor-General acts on the advice of the ministry, except for the legitimate exercise of reserve power: New South Wales v Bardolph;141 the PMA case

136 See Winterton, above n 9, 21. 137 See, for example, cl vi of the 1925 Royal Instructions to the Governor of Queensland, which provided: ‘In the exercise of the powers and authorities vested in him the Governor shall be guided by the advice of the Executive Council, but if in any case he shall see sufficient cause to dissent from the opinion of the said Council he may act in the exercise of his said powers and authorities in opposition to the opinion of the Council, reporting the matter to us without delay, with the reasons for his so acting.’ 138 For example, the Letters Patent of 14 February 1986 relating to the Governors of South Australia, Tasmania and Western Australia refer to an Executive Council to advise the Governor. 139 Interpretation Act 1967 (NSW) s 14; Acts Interpretation Act 1954 (Qld) s 36; Acts Interpretation Act 1915 (South Australia) s 23; Acts Interpretation Act 1931 (Tas) s 43; Interpretation of Legislation Act 1984 (Vic) s 38; Interpretation Act 1978 (NT) s 34. 140 Clause 8 of the Constitutional and Other Legislation Amendment Bill 2005. 141 (1934) 52 CLR 455 at 517 per McTiernan J.

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(Victoria v Commonwealth);142 the First Territory Senators’ case (Western Australia v Commonwealth);143 FAI Insurances Ltd v Winneke144 and Sue v Hill.145 While the Governor is required to act on the advice of the ministry, the Governor retains, in Bagehot’s terms, the constitutional rights to be consulted, to encourage and to warn.146 This is most obviously reflected in the established convention whereby any formal decisions by the Queen are made only after informal advice is first conveyed and approved.147 However, this practice of informal advice is not prevalent with State Governors. The right to inquire has been judicially recognised in FAI Insurances Ltd v Winneke148 where Mason J observed: [I]t is not to be thought that the Queen, the Governor-General or a Governor is bound to accept without question the advice proffered. History and practice provide many instances in which the Queen or her Australian representatives have called into question the advice which has been tendered, have suggested modifications to it and have asked the Ministry to reconsider it even though in the last resort the advice tendered must be accepted. (See, for example, de Smith, Constitutional and Administrative Law (3rd edn, 1977) 99).149

Similarly, Wilson J describes this unique role the Governor performs: It would be absurd to suppose that the principle of responsible government requires the Governor to act purely as an automaton. He may be described as a rubber stamp, in the sense that his executive acts are based, and necessarily based, on the advice that he is given. But his responsibility is to administer the executive government, and to do so with integrity, discretion and a complete absence of political partiality.150

Ultimately, the Governor must exercise the powers of the office in accordance with the advice of the ministry. Nevertheless, the Governor is not expected to do so without taking an interest in the matter. The Governor is entitled to ask the reasons for a decision, whether the correct procedures have been followed – including appropriate consultation – and that the decision is lawful. The Governor should read the minutes provided for the meetings of the Executive Council, as well as the Cabinet papers which are routinely sent to the Governor. Implicit in the three rights – to be consulted, to encourage and to warn – is an expectation to be kept informed of events and a right to make further inquiries of the ministry in connection with those matters raised by the Executive Council.151 It would also encompass matters relevant to the exercise of any reserve power and such other 142 (1975) 134 CLR 81 at 155–6 per Gibbs J. 143 (1975) 134 CLR 201 at 278 per Jacobs J, at 293 per Murphy J. 144 (1982) 151 CLR 342 at 364–6, 349–50, 351, 381, 400, 414. 145 (1999) 199 CLR 462 at 494 per Gleeson CJ, Gummow and Hayne JJ. 146 W. Bagehot, The English Constitution (Great Britain: Fontana Library, 1864) 111. These rights are recognised in Practice R of the Practices Recognised and Declared by Resolution of the Report of the Committee on the Structure of Government (Conventions of the Constitution) Australian Constitutional Convention Proceedings, Brisbane, 391 (see Appendix 1 in this book). 147 Hasluck, above n 66, 10. 148 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 349 per Gibbs CJ, at 351 per Stephen J, at 364–5 per Mason J, at 396 per Wilson J, and at 414 per Brennan J. 149 Ibid 365. Stephen J agreed generally at 351. 150 FAI Insurances Ltd v Winneke 400–1. 151 Practice 16, above n 77.

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functions performed by the Governor or Administrator. Apart from these areas, it would still be unwise for a Governor to assume a role comparable to that of an ombudsman by, for instance, undertaking an inquiry into an issue of public concern in response to a complaint from a member of the public. Nor is it wise for a Governor even to be perceived to undertake such a role.152 Such an inquiry would inevitably implicate the Governor in a political issue and undermine his or her political impartiality. Nonetheless, there is clearly a monitoring role for Governors and Administrators. Former Governor-General, Sir Paul Hasluck, has provided a fascinating insight into that role for which he was particularly qualified, having served as a cabinet minister for many years.153 But the capacity of vice-regal representatives to undertake that role and the way they interpret their role will obviously vary depending on their background and personality.154 Another concern is that this monitoring role could be hampered by a Premier and ministry who fail to keep the Governor adequately informed, or by their appointment of a person who lacks the experience to fulfil such a role. In this respect, the role of the Governor is quite vulnerable. Difficulties are unlikely to become public unless the Governor resigns or is dismissed. While no dismissal has occurred in modern times, resignations have probably avoided the necessity for such action. Mechanisms to protect the Governor’s capacity to act as watchdog are clearly required.155 The Governor’s powers can be classified into those vested in the Governor alone and those vested in the Governor-in-Council. Principal powers vested in Governor alone The principal powers vested in the Governor alone relate to the parliament, the executive and the judiciary. Parliament ● Issue writs for elections.156 ● Power to fix the time and place for sessions of the Houses.157 The common requirement is that at least one session be held in each House each year with no more than 12 months elapsing between the first and last sitting days.158 Queensland altered the position in 2001 to require at least two sittings each calendar year with no more than six months between sittings.159 152 The Queensland Governor, Ms Quentin Bryce, appears to have done this in October 2003 in requesting a ‘situation brief ’ from the Government on the ‘Heiner Affair’. This request and the Government’s delay in responding was conceded by the answer to a Question on Notice to Premier Beattie on 23 February 2005. 153 Hasluck, above n 66, 37–41. 154 Ibid 22, Hasluck warned: ‘I fervently hope that Australia in the future will always have the good fortune to have Governors-General with some experience of the working of government’. 155 A start was suggested in Queensland when the Queensland Constitutional Review Commission (QCRC) recommended the inclusion of a provision in the Constitution to express the Governor’s right to be kept informed; endorsed by Report No 36 of the LCARC, above n 102, 2.5, Recommendation 4, at 13. 156 Constitution Act 1902 (NSW) s 11A; Constitution Act 1934 (SA) s 28; Constitution Acts Amendment Act 1899 (WA) s 12; Electoral Act 2002 (Vic) s 61; Electoral Act 1992 (Qld) s 78; Electoral Act 2004 (Tas) s 63. 157 Constitution Act 1902 (NSW) s 10; Constitution of Queensland 2001 (Qld) s 18; Constitution Act 1934 (SA) s 6; Constitution Act 1934 (Tas) s 12(1); Constitution Act 1975 (Vic) s 8(1); Constitution Act 1889 (WA) s 3. 158 Constitution Act 1902 (NSW) s 10; Constitution Act 1934 (SA) s 7; Constitution Act 1934 (Tas) s 11; Constitution Act 1975 (Vic) s 41; Constitution Act 1889 (WA) s 4. 159 Constitution of Queensland 2001 (Qld) s 19.

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Power to summon both Houses160 or the Legislative Assembly.161 Power to prorogue both Houses.162 Recommend, by message to the Assembly, the passage of legislation which appropriates from the Consolidated Revenue Fund or imposes a tax or impost.163 This requirement prevents independent and opposition members from introducing Bills for public expenditure. Only in New South Wales is this requirement dispensed with, where the Bill is introduced by a minister.164 This is a sensible dispensation given that the purpose of the message is to ensure that the Executive, which controls monetary policy within the State and will be ultimately responsible for the public expenditure, agrees with the proposed expenditure. Power to assent to Bills. Only the New South Wales, Queensland and Western Australian Constitutions expressly require that all Bills be presented to the Governor for assent in the name of and on behalf of the Queen.165 In the other States, this is only implicitly required.166 The South Australian and Victorian Constitutions allow their respective Governors to suggest amendments to a Bill which has been presented to them for assent.167 By convention, amendments should only be suggested on the advice of the responsible minister to correct errors to the Bill.168 Reference has already been made in Chapter 3 as to whether assent ought to be retained as an essential requirement for enactment of legislation. Approve standing rules and orders.169 Receive resignations of legislative councillors.170 Power to dissolve the Legislative Assembly.

The power to dissolve the Legislative Assembly remains unrestricted in Queensland,171 Tasmania172 and Western Australia.173 In the other States, the power has been restricted because of fixed or partially fixed parliamentary terms. With a 160 Constitution Act 1975 (Vic) s 20. 161 Constitution Act 1902 (NSW) s 23; Constitution of Queensland 2001 (Qld) s 15(1); Constitution Act 1934 (Tas) s 13; Constitution Act 1934 (SA) s 6(1)(a); Constitution Act 1989 (WA) s 3. 162 Constitution Act 1902 (NSW) s 10; Constitution Act 1934 (SA) s 6; Constitution Act 1934 (Tas) s 12(1); Constitution Act 1975 (Vic) s 8(2); Constitution Act 1889 (WA) s 3. For the Legislative Assembly only, Constitution of Queensland 2001 (Qld) s 15(2). There is a case for transferring the Governor’s power to prorogue to the Assembly itself. 163 Constitution Act 1902 (NSW) s 46(1); Constitution of Queensland 2001 (Qld) s 68; Constitution Act 1934 (SA) s 59; Constitution Act 1934 (Tas) s 38; Constitution Act 1975 (Vic) s 63; Constitution Act 1889 (WA) s 46(8). 164 Constitution Act 1902 (NSW) 46(2). 165 Constitution Act 1902 (NSW) s 8A; Constitution of Queensland 2001(Qld) s 6, Constitution Act 1867 (Qld) s 2A(2); Constitution Act 1889 (WA) s 2(3). 166 Constitution Act 1934 (SA) s 56; Constitution Act 1934 (Tas) s 17(1); Constitution Act 1975(Vic)ss14,18. 167 Constitution Act 1934 (SA) s 56; Constitution Act 1975 (Vic) s 14. 168 Enid Campbell, ‘Royal Assent to Bills’ (2003) 14 Public Law Review 9, 11; John Quick and Robert R. Garran, The Annotated Constitution of the Australian Commonwealth (Sydney: Angus and Robertson, 1901) 692 on the equivalent provision in s 58 of the Commonwealth Constitution. The Final Report of the Constitutional Commission 1988 para 2.172 recommended this power be vested in the Governor-General-in-Council. 169 Constitution Act 1902 (NSW) s 15; Constitution Act 1934 (SA) s 55(2); Constitution Act 1934 (Tas) s 17(2). This power in the three other States is vested in the parliament: Parliament of Queensland Act 2001(Qld) s 11; Constitution Act 1975 (Vic) s 43; Constitution Act 1889 (WA) s 34. 170 Constitution Act 1902 (NSW) s 22; Constitution Act 1889 (WA) s 8. 171 Constitution of Queensland 2001 (Qld) s 15(2). 172 Constitution Act 1934 (Tas) s 12(2). 173 Constitution Act 1889 (WA) s 3.

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fixed four-year term in New South Wales,174 the Governor is vested with a discretion175 to dissolve the Legislative Assembly by proclamation176 in the following two circumstances: (i) where a motion of no confidence in the Government is passed by the Legislative Assembly (which is in effect not reversed by the passage of a motion of confidence within 8 days);177 or (ii) where the Legislative Assembly rejects a bill which appropriates revenue or moneys for the ordinary annual services of the Government, or fails to pass such a bill before the time the Governor considers that the appropriation is required.178

While these provisions curtail the calling of early elections by a Premier, provision is made for the Governor to dissolve the Assembly in other circumstances ‘if the Governor could do so in accordance with established constitutional conventions’. While some guidance is given to its exercise, this means that the Governor’s reserve power to dissolve the Assembly is retained intact.179 In South Australia, the prescribed grounds for an early dissolution of the House of Assembly go further than those in New South Wales because they attempt to cover the circumstances in which the Governor’s former reserve power to dissolve would have been activated. Those circumstances are where a motion of confidence in the Government in the House of Assembly is defeated, as well as where the Legislative Council rejects ‘a bill of special importance’ – provided the dissolution occurs within one month of the Bill’s rejection. Such a Bill must be declared so by resolution of the House of Assembly before or immediately after the third reading of the Bill. The Legislative Council is deemed to have rejected the Bill if it is not passed within two months of transmission or passed with amendments to which the Assembly disagrees and the differences are unresolved within a month of passage through the Legislative Council.180 Additionally in South Australia, there is provision for a double dissolution of both Houses where a Bill has been rejected by the Legislative Council on two occasions with a general election held between each rejection. The dissolution must occur within six months of the second rejection.181 In Victoria, the only grounds for the Governor dissolving the Legislative Assembly are a vote of no confidence in the government under similar circumstances to those prescribed in New South Wales, and where the Houses are deadlocked over a Bill.182 These restrictions on the dissolution of the South Australian and Victorian Assemblies curtail the capacity of the Governor in those States to exercise reserve power in relation to the dissolution of the Assembly. 174 See Constitution Act 1902 (NSW) ss 24, 24A. 175 Constitution Act 1902 (NSW) s 24B. 176 Dissolution also available within two months of due date of expiration to avoid an inconvenient election date: Constitution Act 1902 (NSW) s 24B(4). 177 Constitution Act 1902 (NSW) s 24B(2). 178 Constitution Act 1902 (NSW) s 24B(3). 179 Section 24B(5) expressly provides that this can occur ‘despite any advice of the Premier or Executive Council’; and the Governor’s discretion is to be guided by ‘whether a viable alternative Government can be formed without a dissolution’ and should have regard to any successful motion of confidence in a named individual as Premier (s 24B(6)). 180 Constitution Act 1934 (SA) s 28A(4). 181 Constitution Act 1934 (SA) s 41. Instead of a dissolution, the Governor may issue writs for the election of two additional members for each Council district. 182 Constitution Act 1975 (Vic) ss 8(3), 8A and 68E(2).

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Executive In all States, ministers are appointed by the Governor and hold office during the Governor’s pleasure.183 Except for the appointment of the Premier, the Governor appoints and dismisses ministers on the advice of the Premier. The appointment and dismissal of a Premier occur, by convention, as an exercise of reserve power (see below). Responsibility for keeping and using the Public Seal of the State is usually vested in the Governor.184 Judiciary While the power of appointment of judges is vested in the Governor-in-Council, the power to remove a judge is vested in most States in the Governor alone on an address from both Houses.185 In Western Australia, the power of removal is vested in the Queen,186 although this power is now exercised by the State Governor.187 Only in Queensland is this power of removal vested in the Governor-in-Council on an address from the parliament on prescribed grounds of proved misbehaviour or proved incapacity.188 This is a model provision which the other States and territories might well follow. Principal powers vested in Governor-in-Council The institution of the Governor-in-Council is the formal body which gives legal effect to the decisions of the Executive. It describes the Governor acting on the advice of the Executive Council which comprises the ministers of State. As such, the Governor-in-Council acts as a rubber stamp for the decisions of Cabinet or of a minister. Considerable statutory powers are vested in the Governor-in-Council which could be vested in ministers. On the other hand, this historical tradition189 does provide a further opportunity for questions to be asked if problems become apparent. The principal powers vested in the Governor-in-Council by State Constitutions include: ● Appointment of public officers (except for minor officers who are appointed within Departments).190 ● Appointment of judges.191 ● In Queensland, the power to remove a judge is vested in the Governor-inCouncil on an address from the Legislative Assembly,192 whereas the power is vested in the Governor alone in the other States. ● In Victoria, the Governor-in-Council may vary dates specified in Acts of Parliament.193 183 Constitution Act 1902 (NSW) s 35E(1); Constitution of Queensland 2001 (Qld) s 43; Constitution Act 1934 (SA) s 65; Constitution Act 1934 (Tas) s 8A; Constitution Act 1975 (Vic) s 50; Constitution Acts Amendment Act 1899 (WA) s 43. 184 Constitution Act 1902 (NSW) s 9H; Constitution of Queensland 2001 (Qld) s 37. 185 Constitution Act 1902 (NSW) s 53(2); Constitution Act 1934 (SA) s 75; Constitution Act 1975 (Vic) s 77(1). 186 Constitution Act 1889 (WA) s 55. 187 Australia Acts 1986 s 7(2). 188 Constitution of Queensland 2001 (Qld) s 61. 189 FAI Insurances Ltd v Winneke (1982) 151 CLR 342, per Stephen J at 354. 190 Constitution Act 1902 (NSW) s 47; Constitution Act 1934 (SA) s 68; Constitution Act 1889 (WA) s 74; cf Constitution Act 1975 (Vic) s 88. 191 Constitution of Queensland 2001(Qld) s 59; Constitution Act 1975 (Vic) s 75B(2). 192 Constitution of Queensland 2001 (Qld) s 61. 193 Constitution Act 1975 (Vic) s 70.

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Note that statutory powers vested in a State Governor alone are usually required by interpretation legislation to be exercised with the advice of the Executive Council.194 Powers vested in State Governors by Commonwealth Constitution State Governors are vested by the Commonwealth Constitution with various powers in relation to the Senate which are exercised on the advice of their respective State ministry. Essentially these powers are: to certify to the GovernorGeneral the names of persons elected or chosen as senators (ss 7 and 15); to issue writs for Senate elections (s 12);195 to fill temporarily a casual Senate vacancy on the advice of the Executive Council of the State where the State parliament is not in session (s 15); and to receive notification from the President or the Governor-General of a vacancy in the Senate (s 21). State Governors are issued with a dormant commission from the Queen on the advice of the Prime Minister to act as Administrator of the Commonwealth under s 4 of the Commonwealth Constitution.196 The most senior State Governor acts as Administrator. The Governor-General on the Prime Minister’s advice is also authorised under s 126 to appoint State Governors as deputies. 8.3.3.5 Reserve power Reserve powers are those powers which are accepted by constitutional practice and convention as being exercisable by the Governor without, or contrary to, the advice of the ministry. In other words, in exceptional circumstances, a Governor possesses a personal discretion. While there is general agreement on what are the reserve powers, controversy often arises over whether their rare exercise was justified. The generally accepted ‘reserve’ powers of a Governor arise in relation to: ● the appointment of a Premier; ● the dismissal of a Premier; and ● the dissolution of the Assembly. The confinement of the reserve power to these three powers reflects their central importance in a democratic system of responsible government.197 They preserve the key links in the chain of responsibility created by responsible government. This is achieved because the ultimate effect of any proper exercise of these reserve 194 The phrase ‘Governor-in-Council’ is, however, defined to mean the Governor acting with the advice of the Executive Council: Interpretation Act 1967 (NSW) s 14; Acts Interpretation Act 1954 (Qld) s 36; Acts Interpretation Act 1915 (SA) s 23; Acts Interpretation Act 1931 (Tas) s 43; Interpretation of Legislation Act 1984 (Vic) s 38; Interpretation Act 1984 (WA) s 60; Interpretation Act 1978 (NT) s 34. 195 The State Governors issue Senate writs on the advice of their State ministry. Senate election dates are proposed by the Commonwealth Government and are always agreed to by the State governments unless they raise ‘a sound practical objection to the convenience of the States’: Practice 33, above n 77, 321. See Senators’ Elections Act 1903 (NSW) s 3; Senate Elections Act 1960 (Qld) s 3; Election of Senators Act 1903 (SA) s 3; Senate Elections Act 1935 (Tas) s 3; Senate Elections Act 1958 (Vic) s 3; Election of Senators Act 1903 (WA) s 3. 196 Practice 6, ibid 319. 197 As Winterton puts it: ‘an unelected Governor-General can be allowed no personal discretion beyond that absolutely necessary to ensure the effective operation of parliamentary democracy’, above n 9, 152.

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powers is to ensure there is a ministry which has the confidence of the Assembly. Unless such a ministry is in place, the Governor lacks proper ministerial advisors. To ensure this happens, the Governor may be required to act without proper advice. Accordingly, the need to preserve the principles of responsible government defines the three reserve powers and the circumstances in which they may be legitimately exercised, specifically: who is appointed Premier, when a Premier should resign, and when to follow or reject advice to dissolve the Assembly. Ultimately, every exercise of reserve power should produce advisors who enjoy the confidence of the Assembly and are prepared to be accountable for its exercise.198 As with all repositories of public power, there must be a line of accountability for the exercise of reserve power by a Governor.199 This is especially important since an exercise of reserve power is not justiciable.200 The existence of the Governor’s discretion is facilitated by the fact that these powers remain vested in the Governor alone, and are not dependent on Executive Council advice. At times, Governors are asked or petitioned to refuse to follow the advice of their ministers for various reasons. The proper response is always to reassert the fundamental obligation to act on ministerial advice. It is only when the advice comes from a ministry which may have lost the confidence of the Assembly, or is undermining the constitutional system itself – either directly or indirectly through persistent illegality – that the Governor is entitled to exercise an independent discretion. The Governor’s constitutional duty to act on the advice of the ministry is usually performed by acting on the advice of the Premier201 – on the basis that the incumbent retains the support of the ministry. Where the Governor reasonably believes that the incumbent has lost that support, the Governor is justified in requiring a reaffirmation of that support before acting on the Premier’s advice.202 This was the approach adopted by the Governor of Queensland, Sir Walter Campbell, in 1987 in not immediately dismissing ministers on the advice of the Premier, Sir Joh Bjelke-Petersen.203 No reference is made here to the Queen possessing any reserve power. This is because the Queen possesses no reserve power in the exercise of her powers to appoint and dismiss a Governor.204 This is so even where the Premier advises the Queen to dismiss a Governor who might be intending to dismiss the Premier for illegality. The existence of a reserve power to refuse to act on the Premier’s advice 198 Fajgenbaum and Hanks, above n 24 suggest at 90, the Governor’s decision ‘to decline Ministerial advice can only be taken . . . in a situation where he believes an alternative viable Ministry is available – or where, as in Victoria in 1952 such a decision is essential to preserve the constitutional government of the State.’ 199 See Winterton, above n 9, 21 and Evatt, above n 13, 130, as to concerns raised once it became apparent in 1925 that the imperial authorities were not prepared to issue instructions to the Governor. 200 See, for example, Greiner v ICAC (1992) 28 NSWLR 125 at 190 per Priestley JA. 201 See, for example, Constitution Act 1975 (Vic) s 87E. 202 Hasluck, above n 66, 19. 203 See the account of this in Galligan, above n 81, 85–92. See also the letter from Premier Bjelke-Petersen to Governor Campbell (23 November 1987), proposing to tender the resignation of the entire ministry and an appointment of a new one, and the letter in reply from Governor Campbell to Premier Bjelke-Petersen (25 November 1987). 204 Winterton, ‘The Constitutional Position of Australian State Governors’, above n 40, 280–1. Cf Lumb, above n 17, 78–9 who saw the possibility of a clash of reserve powers between the Queen and a Governor.

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is inconsistent with the purely formal role the Queen has in the exercise of her powers of appointment and dismissal. The Queen would, however, have every right to seek further information and to counsel the Premier, but ultimately she would have to comply with the advice tendered so long as the Premier retained the confidence of the Assembly. So far, no attempt has been made by any State to comprehensively codify the reserve powers or the circumstances in which their exercise is justified. Only in recent times has there ever been legislative recognition of the existence of reserve power. For instance, s 34 of the Constitution of Queensland 2001 provides that in the exercise of the power to appoint and dismiss ministers, the Governor ‘is not subject to direction by any person and is not limited as to the Governor’s sources of advice.’205 Provisions of this nature reside uneasily in State Constitution Acts which, as noted earlier, are renowned for their skeletal nature and lack of reference to the most fundamental principles and conventions. It is incongruous to recognise expressly the existence of reserve power without recognising at the same time the fundamental obligation to act on ministerial advice. What is the point in acknowledging the exception to the general rule without recognising the general rule itself? If the general rule is recognised, care must be taken not to exclude or abrogate the reserve power. For example, Professors Hanks206 and Galligan207 have separately argued that clause III of the Victorian Letters Patent relating to the office of Governor eliminates the reserve powers of the Victorian Governor: ‘The Premier . . . shall tender advice to the Governor in relation to the exercise of the . . . powers and functions of Governor [except when acting in Council].’ But, as Professor Winterton has noted, this clause merely identifies who advises the Governor, not that the advice must be followed.208 Nor does it preclude, in his view, other sources of advice. In any event, as they are now statutorily based, the reserve powers could not be affected by the Letters Patent. The difficult task is to define, even in general terms, those exceptional circumstances when an exercise of reserve power is justified. Yet a small body of precedents with expert constitutional commentary over the last century assists to define those circumstances.209 Although codification tends to be elusive,210 agreement was reached at the Australian Constitutional Convention in Brisbane in 1985 on a statement of principles and practices which should be observed as constitutional conventions for the exercise of reserve power at the Commonwealth level.211 Apart from paragraphs K, P and Q, the remaining paragraphs are equally applicable to the States and the self-governing territories.212 Fortunately in Australia, a potential exercise of reserve power arises very rarely, although 205 Clause 8 of the Constitutional and Other Legislation Amendment Bill 2005 proposes to remove that provision from s 34. 206 P. J. Hanks, ‘Victoria’s Liberals have a Problem’ (1991) 10(3) Australian Society 5, 6. 207 Galligan, above n 81, 81. 208 Winterton, ‘The Constitutional Position of Australian State Governors’, above n 40, 288. 209 See, for example, Keith, above n 18; Evatt, above n 13, Fajgenbaum and Hanks, above n 24, 40–7, 64–8; Winterton, above n 9, 149–60. 210 Lumb, above n 17, 79 suggested more precedents needed before codification. 211 See Resolution adopted Item No B1, Structure of Government (Conventions of the Constitution): Proceedings of the Australian Constitutional Convention, Brisbane, 29 July–1 August 1985, 389–91. 212 These paragraphs are reproduced in Appendix 1 of this book.

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when one does, it immediately becomes labelled a ‘constitutional crisis’! Regrettably, such overreactions tend to undermine public confidence in the constitutional system. Conversely, a justified exercise of reserve power actually demonstrates the resilience of the system, not its inadequacy. The circumstances in which each of the three accepted reserve powers may be exercised are now considered in turn. Appointment of Premier All State Constitutions vest power in the Governor to appoint ministers who hold office during the Governor’s pleasure.213 Usually, the appointment of a Premier involves no exercise by the Governor of an independent discretion. The appointee is the member who, as the leader of the majority party or coalition in the Assembly, commands the confidence of a majority of the House. If that is not the incumbent Premier, they should advise the Governor to appoint the member who commands that confidence and then resign. Only when it is unclear who enjoys majority support, does the Governor need to exercise an independent discretion. This situation arises more frequently now at the State level when independents and members of smaller political parties hold the balance of power. In these circumstances, the Governor must consult with various members to ascertain the level of support which any particular party or coalition will have in the Assembly. If there is any doubt who can command the confidence of the Assembly, the Governor should summon the Assembly to determine the issue.214 An incumbent Premier is entitled to test the level of their support in the House.215 The Governor’s discretion is to be exercised solely by reference to ‘the parliamentary situation’.216 Dismissal of Premier The most serious and controversial exercise of reserve power is to dismiss the Premier. This also means the dismissal of the entire ministry. In Australia, there have only been two instances of the exercise of this power – both controversial. The first, at the State level, was the dismissal of the New South Wales Premier, Jack Lang, by the New South Wales Governor, Sir Philip Game, in 1932 for alleged illegality. The other was the dismissal of Prime Minister Gough Whitlam by the Governor-General, Sir John Kerr, in 1975 for failing to secure supply through the Senate. These dismissals are considered further below. Accepted grounds for the exercise of this reserve power are: (a) when a Government loses the confidence of the Assembly and refuses to resign or advise a dissolution; or (b) when a Premier refuses to resign when no longer leader of the party or coalition which retains the support of the Assembly. The situation in (a) requires an unequivocal loss of confidence which indicates that the 213 Constitution Act 1902 (NSW) s 35E(1); Constitution of Queensland 2001 (Qld) s 43; Constitution Act 1934 (SA) s 65; Constitution Act 1934 (Tas) s 8A; Constitution Act 1975 (Vic) s 50; Constitution Acts Amendment Act 1899 (WA) s 43. 214 Constitution Act 1934 (SA), 1968 – Fajgenbaum and Hanks, above n 24, 71–4. 215 Lumb, above n 17, 77. 216 Memorandum from Governor-General Munro-Ferguson to Prime Minister W. M. Hughes (1918) 83 Commonwealth Parliamentary Debates 2896 – see Fajgenbaum and Hanks, above n 24, 70–1.

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ministry should be replaced. Mere defeat on a government Bill is insufficient. The situation in (b) briefly arose in Queensland in 1987 when the Premier Sir Joh Bjelke-Petersen failed to resign as Premier immediately on losing the leadership of the National Party. The Governor, Sir Walter Campbell, abstained from acting to allow Sir Joh the opportunity to resign, which he did four days later. The cardinal principle to be followed in both situations by any Governor is that the dismissal of a Premier must be a last resort to avoid a serious collapse of the constitutional system. A complementary principle is that the Governor must accord procedural fairness. In observing both these principles in relation to Sir Joh in 1987, Sir Walter Campbell acted with consummate skill and discretion. His correspondence to Sir Joh and others at the time217 demonstrated a sophisticated appreciation of his delicate constitutional role. It cannot be expected that all Governors will possess a similar appreciation of their constitutional role. After all, Sir Walter Campbell was a former Chief Justice of Queensland. It has become increasingly apparent in an age of greater public scrutiny and media investigation, that vice-regal representatives need the provision of appropriately qualified constitutional advisors. By convention, it is accepted that they are entitled, with the consent of the Premier, to seek the advice of the Attorney-General or the Solicitor-General or other counsel.218 Alternatively, advice could be provided by a council of independent constitutional advisors. Such a council might comprise a former vice-regal representative, a former judge and a former minister to provide advice which is later published.219 Illegality Dismissal of a Premier may also be justified where the Premier or Government is found to be engaged in persistent serious illegality which threatens to undermine the constitutional system.220 Not every act of illegality activates this reserve power. It must be sufficiently serious to warrant the government’s dismissal. Professor Lumb suggested as a threshold ‘a situation where the “rule of law” as the ultimate foundation of the constitutional system is being undermined, for example, by an assault on representative democracy through attempts to establish a “one-party” State.’221 Other forms of serious illegality would include official corruption. It is also generally accepted that the Governor should only

217 Letter from Mike Ahern to the Governor dated 26 November 1987 advising that he had been appointed the new parliamentary leader of the National Party, and the letter dated 30 November 1987 from Bjelke-Petersen to the Governor resigning as a member of the Executive Council as from 1 December 1987. 218 Hasluck, above n 66, 16. 219 See Gerard Brennan, One Hundred Years On: Strengths and Strains in the Constitution, delivered as the Fourth Geoffrey Sawer Lecture, published as Law and Policy Paper 18, Centre for International and Public Law and Federation Press, September 2001. 220 See Lumb, above n 17, 77–8: derived from the Lang dismissal, a precedent ‘that where ministers have wilfully persisted in a course of conduct involving grave illegality (which does not admit of resolution in the courts), a governor may withdraw the commission of those ministers’. 221 Lumb, ibid; Winterton, above n 9, 37, seems to reject this whole notion of the Governor as guardian of the constitutional system. Cf Fajgenbaum and Hanks, above n 24, 90, who suggest that the Governor’s decision ‘to decline Ministerial advice can only be taken . . . in a situation where he believes an alternative viable Ministry is available – or where, as in Victoria in 1952, such a decision is essential to preserve the constitutional government of the State.’ (emphasis added)

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dismiss a government on this ground if there has been a judicial determination of illegality – at least where judicial review can be practically sought.222 The dismissal of the New South Wales Premier, Jack Lang, by the Governor, Sir Philip Game in 1932 provides the clearest precedent for dismissal on the ground of illegality, albeit a flawed one since the Governor and not a court adjudged the Government’s actions illegal. Judicial determination was not sought. Dismissal was founded on a perceived illegality. The origins of the dismissal lay in the decision of the Lang Government to repudiate the payment of interest on its State bonds. Under the Financial Agreement of 1927, this interest was to be paid to the Commonwealth for transmission to overseas bondholders. The Commonwealth Parliament enacted the Financial Agreement Enforcement Act 1932 (Cth) to authorise the seizure of New South Wales revenue and Commonwealth moneys owing to New South Wales. After the High Court upheld the validity of this Act,223 the Commonwealth issued on 6 May a Proclamation (No 42 of 1932) directing New South Wales public servants to deal with New South Wales revenue in accordance with the instructions of the Federal Treasurer. On 10 May, Lang issued an instruction to all State public servants not to bank any State taxes or charges received but to forward them to the State Treasurer. Amid increasing public concern over the capacity of the State government to function and to pay its employees, the Governor asked Lang on 12 May to establish the legality of his instruction in light of the Commonwealth Proclamation of 6 May, or else withdraw it. Lang’s reply of 13 May simply refused to withdraw the instruction, without commenting on its legality. Later that day, the Governor wrote to Lang seeking the ministry’s resignation on the basis that the ‘Ministers are committing a breach of the law’ and ‘[m]y position is that if my Ministers are unable to carry on essential services without breaking the law, my plain duty is to endeavour to obtain Ministers who feel able to do so.’224 Lang refused to resign, whereupon he and his government were dismissed by the Governor later that same day (13 May), and the Leader of the Opposition, Mr Stevens, was appointed Premier with the support of only 35 of the 90 seats in the Assembly. The Assembly was dissolved on Stevens’ advice. At the ensuing election, Stevens was elected with a majority. Most commentators have criticised the Governor225 for acting without a judicial determination of the legality of the New South Wales instruction.226 222 See Sawer, above n 12, 164; R. D. Lumb, Australian Constitutionalism (Butterworths, Sydney 1983) 77–8; cf Winterton, above n 9, 155. 223 New South Wales v Commonwealth (No 1) (Garnishee case) (1932) 46 CLR 155. See also New South Wales v Commonwealth (No 3) (1932) 46 CLR 246. 224 Copies of letters reproduced in B. Foott, Dismissal of a Premier (The Philip Game Papers) (Sydney: Morgan Publications, 1968) 209–10. 225 A. B. Piddington, The King and the People and the Severing of Their Unity (Sydney: R. T. Kelly, 1932); Evatt, above n 13, 173–4; Hanks, above n 38, 199. 226 For contemporary opinions on the legality of the dismissal, see Chapter XIX, Evatt, ibid. Interesting to note that the dismissal was justified at the time by two distinguished commentators: Walter Harrison Moore because Lang was a danger to the political unity of the federation: Melbourne Argus, 4 February 1932; and Berriedale Keith because of the unjust mortgage tax about to be presented for royal assent, as well as a breach of the law: Melbourne Argus, 14 May 1932.

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While there is support for the view that a Governor is justified in dismissing a Government which is engaged in persistent illegality, the determination of illegality should not be made by the Governor. That is a matter for the courts.227 There may be times when this is impracticable or impossible – but that was not so with the Lang dismissal. Had Lang violated a court order, or maintained the instruction in spite of being declared invalid, dismissal may have been clearly justified.228 The likelihood is that any judicial determination will be respected and obeyed by a government. So, the Lang dismissal was premature and it failed the cardinal principle to be observed in the exercise of reserve power – that it is always a measure of last resort. Despite the enormous public pressure which may be felt by a Governor in any constitutional crisis, this cannot be allowed to distract the Governor from giving every opportunity to the political and legal process to resolve the crisis, and then to dismiss only as a last resort.229 Lang’s failure to justify the legality of his actions should not be seen as providing a legitimate basis for his dismissal.230 A perceived illegality is insufficient to warrant an exercise of reserve power. Ironically, despite considerable pressure from the press, politicians, lawyers and the public to resolve the impasse between the Commonwealth and the Lang Governments, Sir Philip Game appeared to have an appropriate perspective on his duty, in observing publicly before the dismissal that ‘the people had responsible Government and that it was for them, and their duty, and not that of the Governor to find a way out of their trouble.’231 Where a government is dismissed for illegality, an alternative ministry is unlikely to be available.232 In such cases, a caretaker government must be appointed to advise a dissolution of the Assembly. As with the Commonwealth Parliament, this may not resolve an impasse over supply created by a Legislative Council. Of course, a subsequent election of the caretaker government with a majority in the Assembly cannot be relied on to justify the dismissal in the first place.233 A less serious situation is where the Governor is asked to act on ministerial advice which the Governor believes is wrong in law. Sir Isaac Isaacs as Governor-General recognised the fundamental nature of the obligation to act

227 Statutory provision should be made entitling the Governor to seek a judicial declaration as to legality: see Report No 36 LCARC, above n 102. 2.5, Recommendation 4, p 13; Republic Advisory Committee, above n 42, 104 which suggests for a Commonwealth Head of State that a High Court declaration be sought and if not complied with, then the Governor-General may dissolve the House of Representatives. 228 See A. S. Morrison, ‘Dominions Office Correspondence on New South Wales Constitutional Crises 1930– 32’ (1976) 61 Journal of the Royal Australian Historical Society 323, 337. 229 The Governor would need to be aware that at least in a unicameral system, the illegality might be retrospectively validated by legislation. 230 Cf Final Report of the Constitution Commission 1988, Vol 1, 93 [2.220]. 231 This Narromine speech as reported in the Bulletin and the Age (around April, May 1932 ), was quoted indirectly in a letter by Lady Game of 15 May reproduced in Foott, above n 224, 212. 232 Unless sufficient government members cross the floor to join the opposition members to give them a majority. 233 Evatt, above n 13, 166.

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always on ministerial advice, even if the legality of the advice was in doubt.234 These views were expressed in a letter to the Senate of 6 June 1931, explaining his rejection of a Senate request for him to refuse to continue to make regulations under the Transport Workers Act 1928 (Cth). The same regulations had been made many times by the Governor-General on the advice of the Scullin Labor Government. Within a day of being disallowed by the Senate, the Government arranged for the Governor-General to remake them. Sir Isaacs did observe that, in his opinion, the remaking of the regulations in this fashion involved no illegality, and that had been confirmed by the Commonwealth Attorney-General. However, he acknowledged that the responsibility for determining any illegality lay with the courts. It is unclear what his attitude might have been had he opined illegality. Sir Isaacs also emphasised in his response that his plain duty was to act on the advice of his ministers who must take responsibility for that advice. For him to ignore that advice would constitute an act of partisanship in preferring one House over another. He described himself as merely ‘the designated executant of a statutory power created and conferred by the whole Parliament’.235 Loss of confidence/ rejection of supply Whenever the Assembly unambiguously expresses its loss of confidence in the government the Premier, and consequently the government, must tender their resignation. Such a loss of confidence is deemed to arise if the annual appropriation Bills (that is, supply) are rejected or blocked by an Assembly. If resignation is not tendered, the Governor is entitled to dismiss the Premier in the exercise of reserve power. The Assembly should then be convened to decide who has its confidence, at which time the Governor would appoint that member as Premier. If no member has the confidence of the Assembly, a caretaker Premier must be appointed to advise a dissolution and general election. The position is different if supply is rejected or blocked by the Council. Governments do not require the confidence of the Council, only that of the Assembly. Nonetheless, a constitutional crisis is sparked when a Council denies annual appropriation to a government which continues to have the confidence of the Assembly. In all States with bicameral parliaments, the Council has the power to reject or block appropriation and taxation Bills. As noted in Chapter 3, this power has rarely been exercised by a Council; so far only in South Australia,236 Tasmania237 and Victoria.238 There are now constitutional mechanisms to resolve most deadlocks over supply in New South Wales239 and Victoria.240 Both the 234 His Honour observed that this obligation was ‘confirmed and perhaps strengthened by the pronouncement of the Imperial Conference of 1926.’ 130 Commonwealth Parliamentary Debates, pp 2595–97, reproduced in Fajgenbaum and Hanks, above n 24, 77–9. 235 Ibid. 236 In 1911–1912. 237 In 1924 and 1948. 238 Nine times between 1865 and 1952: see J. Waugh, ‘Blocking Supply in Victoria’ (2002) 13 Public Law Review 241–2. 239 Constitution Act 1902 (NSW) s 5A. 240 Constitution Act 1975 (Vic) s 65 substituted by Constitution (Parliamentary Reform) Act 2003 (Vic) s 14.

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House of Lords in 1910 and the Australian Senate in 1975 blocked supply. The dismissal of the Whitlam Government in 1975 for failing to resign following the Senate’s blocking of supply is regarded by most commentators as an unjustified exercise of reserve power by the Governor-General, Sir John Kerr.241 Although Lumb242 expressed the view that rejection of supply even by a Legislative Council requires the government’s resignation, the better view is that the government is entitled to remain in office and to attempt to resolve the impasse. Only if such endeavours are ultimately unsuccessful is resignation required at a time when supply can still be passed by a new government or parliament.243 Refusal of dissolution The third reserve power of the Governor is the power to dissolve the Assembly. This power has been truncated in certain States where some or all of the term of the Assembly is fixed by statute to prevent the Government calling an early general election. The parliamentary term of four years in New South Wales,244 and in the ACT,245 are both fixed for those respective periods. The four-year terms in South Australia246 and Victoria247 are fixed for the first three years. All of these fixed terms are subject to an early dissolution if the Government loses the confidence of the Assembly or supply is blocked. Consequently, the Governor’s power to dissolve the Assembly is abrogated in South Australia and Victoria during the fixed three-year component of the four-year term.248 In contrast, the reserve power is preserved in New South Wales throughout the fixed four-year term.249 Where the Governor retains the power to dissolve the Assembly, a ministerial request for the Governor to grant a dissolution is usually acceded to when this is routinely sought near the end of the parliamentary term. It is an accepted principle that before granting dissolution, supply should be secured. A dissolution should also be sought and granted if the ministry loses the confidence of the Assembly and no alternative ministry is available.250 But where a dissolution is sought outside these circumstances, it seems the Governor has a discretion to refuse the request as an exercise of reserve power, where the current ministry has lost the support of the Assembly and an alternative ministry is available; and where the current ministry, while retaining the support of the Assembly, seeks a dissolution soon after being elected – say within 12 months.

241 See, for example, Sawer, above n 12, 141–72. 242 Lumb, above n 17, 77. 243 Sawer, above n 12, 172. 244 Constitution Act 1902 (NSW) s 24. 245 Electoral Act 1992 (ACT) s 100; ACT (Self-Government Act) 1988 (Cth) ss 16 and 48. 246 Constitution Act 1934 (SA) ss 28 and 28A. 247 Constitution Act 1975 (Vic) ss 8(3), 8A, 38(2) and 38A. 248 This approach has been recommended for Queensland: Review of the Queensland Constitutional Review Commission’s Recommendation for Four Year Parliamentary Terms, Report No 27 (July 2000) LCARC of the Queensland Parliament, para 9.2. 249 Constitution Act 1902 (NSW) s 24B(5). 250 This happened in Victoria in 1908, and Tasmania in 1956.

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Precedents which support refusal in the first instance exist in Victoria,251 Tasmania252 and Canada253 where requests for a dissolution, following defeat in the Assembly, were refused on account of being able to appoint an alternative ministry. In any event, a Governor is justified in refraining from deciding until the Assembly is given an opportunity to demonstrate whom it supports. Consistent with these precedents are two of the rules formulated by the Australian Constitutional Convention in 1985 for the Commonwealth which are just as applicable to a State or territory: E. If following a defeat in the House of Representatives, the Prime Minister, acting in accordance with Practice F, advises the Governor-General to dissolve the House of Representatives or to send for the person who the Prime Minister believes can form a Ministry that has the confidence of the House of Representatives, the Governor-General acts on the advice. F. In advising the Governor-General for the purpose of Practice E, the Prime Minister acts in accordance with the basic principle that the Ministry should have the confidence of the House of Representatives and if, in his opinion, there is another person who can form a ministry which has the confidence of the House of Representatives, he advises the Governor-General to send for that person.254

The second situation above, when a request for a dissolution may be legitimately refused, is when the request occurs within say, 12 months of a general election. This is to avoid the electorate being inconvenienced. Sir Paul Hasluck thought ‘good and sufficient reasons’ were required for a mid-term election, such as where parliament has become unworkable.255 Lumb256 suggested that a government with majority support in the Assembly is not usually entitled to a dissolution during this initial period of a parliament. But he accepted that an early dissolution might be justified under certain circumstances, such as where the Opposition agrees, an important new issue of public policy arises, the parliamentary situation has changed significantly, or the Premier has resigned and no

251 In 1950 and 1952: Zelman Cowen, ‘A Historical Survey of the Victorian Constitution, 1856 to 1956’ (1957) 1 Melbourne University Law Review 9, 29; S. Encel, Cabinet Government in Australia (2nd edn, Melbourne: Melbourne University Press, 1974) 22–3. 252 In 1989 when the Liberal Gray Government was defeated in the Assembly within a few days of the general election. The Government resigned and a minority Labor Government was appointed after the Governor satisfied himself that the stability of government was assured by the accord reached with the five Green Independents: Lumb, above n 17, 74–5. 253 The Canadian Crisis of 1926 when the Mackenzie King Government was defeated three times in the House of Commons and was refused a dissolution by the Governor-General, Lord Byng, who appointed the leader of the Conservative Party, Mr Meigher, after ascertaining that he was able to hold the confidence of a majority of the House. He later lost that confidence when the House declared by a majority of one vote that the appointment of a temporary ministry was a breach of parliamentary privilege. Lord Byng then granted a dissolution to Mr Meigher. After his re-election, King attended the Imperial Conference of 1926 where he obtained the Balfour Declaration which declared that the Governor-General is not the representative of the Imperial Government but stands in the same position as the King. 254 Practices Recognised and Declared by Resolution of the Report of the Committee on the Structure of Government (Conventions of the Constitution) Australian Constitutional Convention Proceedings, Brisbane, at 390 (see Appendix 1 in this book). 255 Hasluck, above n 66, 16. 256 Lumb, above n 17, second principle at 74–5.

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alternative government is possible.257 In addition, a Governor may have a discretion whether or not to grant a dissolution where a Premier loses the support of his or her own parliamentary party, or where after an election, no party has majority support and the incumbent Premier advises another election to try to gain a majority and avoid a minority government. It should also be noted that the Governor may have a reserve power to summon the Assembly. This may arise where the Premier ought to advise the Governor to summon the Assembly, for instance to determine if they retain the confidence of the Assembly, but refuses to do so.258 Refusal to act on advice Instances where a Governor has refused to act on the ministry’s advice have occurred in relation to the appointment of additional members to the Council to overcome legislative deadlocks or to secure the passage of legislation to abolish the Council itself. In 1925, the New South Wales Governor, Sir Dudley de Chair, refused to appoint, on Premier Lang’s advice, additional members to the New South Wales Legislative Council who were to vote on a Bill to abolish that House. The Governor had already appointed 25 new members for that purpose but as some had ‘ratted’, further appointments were sought. In 1931, the situation was nearly repeated when Sir Philip Game initially refused to appoint further members to the Council but later relented and appointed 25 new members.259 Governors have threatened to withhold royal assent to a Bill, but no threat has ever been realised. In 1916, the Governor of New South Wales, Sir Gerald Strickland, indicated a desire not to assent to a Bill which extended the life of the New South Wales Parliament by one year. The extension was sought following a split in the Labor Party and the formation of a new party under the Premier, Mr Holman, with the support of the Liberal Opposition to assist in the prosecution of the war. The Colonial Office intervened at the request of Premier Holman and recalled the Governor. Meanwhile, the Governor assented to the Bill before returning to England.260 Dr Evatt relates the debate in September 1917 in The Times between Professor Berriedale Keith and Sir William Wade over this incident. Professor Keith defended the Governor in refusing to accept the advice of the Ministry if he believed it no longer commanded the confidence of the Assembly. Sir William argued the Governor was required to act on the ministerial advice. Dr Evatt contrasted the 1916 affair with the Lang dismissal, noted the inconsistencies, and concluded with ‘the need for definition, regulation, and enforcement of the Crown’s reserve powers.’261 Another instance when a Governor contemplated 257 Cf Final Report of the Constitution Commission 1988, Vol 1, 93 [2.221] noted that no request by a Prime Minister for a dissolution of the House of Representatives has been refused since 1909, and that such a request could not be refused if the government intended to resign if not granted. 258 See Lumb, above n 17, 78; Western Australian Commission on Government Report No 5, August 1996, 123. 259 Evatt, above n 13, 158–9. 260 Ibid 146–52; W. G. McMinn, A Constitutional History of Australia (Melbourne: Oxford University Press, 1979) 161–2. 261 Evatt, above n 13, 152.

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a refusal to assent was in 1932 over Premier Lang’s Mortgage Bill.262 That crisis was avoided as the Bill was never presented for assent to the Governor, Sir Philip Game, on account of Lang’s dismissal. In contrast, there is support for the view that where the Governor detects an error in a Bill presented for royal assent, it can be returned to the Parliament for correction.263 Where it is argued that a Bill will be invalid if enacted, it has been suggested that a Governor may be entitled to return it to parliament for reconsideration. But this is only appropriate in the most extreme circumstances which seriously threaten the democratic system itself.264 Codification/abdication of reserve power Having identified three reserve powers and outlined the circumstances in which their exercise might be justified in accordance with constitutional convention, the issue which naturally flows from that discussion is whether or not those powers and the conventions regulating their exercise should be codified in legislation. Codification requires, however, a decision to be made on the level of discretion to be left with the Governor. At one end of the spectrum is codification merely of the general principles. This leaves the Governor’s discretion intact. Rarely are these principles codified in State and Territory Constitutions.265 At the other end is a detailed codification which abrogates the discretion altogether.266 Codification at the State level would best occur by amendment to the Constitution Act, although the capacity to entrench the relevant provisions is doubtful. For the Northern Territory, the Commonwealth would need to amend the Self-Government Act. A further issue is whether the exercise of the codified powers should be justiciable. On the central issue – to what extent codification is desirable – a range of expert opinions have already been given. On the one hand, Dr Eugene Forsey argued against codification as useless and inadequate, given the impossibility of covering every possible scenario. He also argued that the reserve power should be retained but only to the extent absolutely necessary to ensure the effective operation of parliamentary democracy.267 On the other hand, Dr Evatt argued for codification to overcome the uncertainty surrounding both their existence and exercise, and to preserve the impartiality of the vice-regal representative who is relieved of seeking advice or of acting in circumstances which are likely to arouse political controversy.268 Professor Winterton269 argued in 1983 that the Governor should have no discretion at all. While accepting the Governor retains the three 262 The Mortgage Bill, introduced in the Legislative Assembly two days before Lang’s dismissal, imposed a tax payable on all mortgages within 14 days to raise seven million pounds. 263 Hasluck, above n 66, 13. 264 Hasluck thought this theoretically possible: ibid at 13–14 in extreme cases. He referred to the GovernorGeneral presenting the crisis to parliament and if necessary to the nation to determine. 265 For example s 42 Constitution of Queensland 2001 requires a Cabinet and provides that it is ‘collectively responsible to the Parliament’. 266 In support of this view is the comment by Gough Whitlam: ‘experience has shown that a Head of State who is anything more than an ornament is a menace’ – The Truth of the Matter (2nd edn, Melbourne: Penguin, 1983) 184. 267 E. A. Forsey, The Royal Power of Dissolution of Parliament in the British Commonwealth (Toronto: Oxford University Press, 1943, Canadian paperback 1968) 257. 268 Evatt, above n 13, 6–11. 269 Winterton, above n 9, 154; Evatt, above n 13 at 7 argues for statutory codification of the reserve powers.

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rights recognised by Bagehot – to be consulted, to encourage, and to warn270 – he suggested the following codification for the Commonwealth271 which has been transposed here for the States: ● the Assembly should choose the Premier to be appointed by the Governor; ● ministers should be appointed on the advice of the Premier; ● a government should resign only if the Assembly expresses no confidence in it and nominates a new Premier within a prescribed period; ● the Governor could be authorised to dismiss a government only if it fails to resign in those circumstances (but unnecessary); ● the Governor could be authorised to dissolve the Assembly in the unlikely event that the government is defeated, the Assembly is unable to choose a successor, and the Premier refuses to advise a dissolution; and ● to overcome the problem of a Premier seeking a dissolution immediately after losing a general election, the Assembly should be required to meet before being dissolved again.272 This problem could not arise with a fixedterm parliament. The Report of the Republic Advisory Committee in 1993 favoured codification for the reasons argued by Dr Evatt in 1936.273 The Report provides two models: one for partial codification;274 and the other for complete codification with retention of discretionary powers.275 An alternative to codification is to rely on the declaration of constitutional principles and procedures agreed to by the Australian Constitutional Convention in Brisbane in 1985.276 Although these principles concern the Commonwealth, apart from paragraphs K, P and Q, they are equally applicable to the States and the self-governing territories as constitutional conventions.277

8.3.4 Executive Council and Governor-in-Council Only the New South Wales, Queensland and Victorian Constitution Acts require an Executive Council, whose members are appointed during the Governor’s pleasure.278 In the other States, the Executive Council is established by the Letters Patent relating to the office of Governor.279 Although the Constitutions provide for the appointment of any person, by convention only ministers of State are appointed. Appointment to the Executive Council is an ex officio entitlement of ministers in New South Wales, Queensland, South Australia and Victoria.280 By convention, ministers in New South Wales, South Australia and Western Australia

270 Bagehot, above n 146, 111. Endorsed by Wilson J in FAI Insurance v Winneke (1982) 151 CLR 342. 271 Winterton, above n 9, 157–8. 272 Ibid 158. 273 An Australian Republic, The Options – The Report, Vol 1, 99. 274 Ibid 102–5. 275 Ibid 108–12. 276 See Resolution adopted Item No B1, above n 211. 277 See Appendix 1 in this book. 278 Constitution Act 1902 (NSW) ss 35B–35C; Constitution of Queensland 2001 (Qld) s 48–49; Constitution Act 1975 (Vic) ss 87A–87B. 279 See Letters Patent (SA) of 14 February 1986, cl III. 280 Hanks, above n 38, 173 fn 116.

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resign from the Executive Council when they vacate ministerial office.281 In contrast, former ministers in Queensland, Tasmania and Victoria remain members of the Executive Council for life but are not summoned to attend its meetings.282 The Executive Council advises the Governor in the exercise of those powers which are vested in the Governor-in-Council. Such statutory powers are required to be exercised in accordance with the advice of the Executive Council. Even statutory powers vested in the Governor alone are deemed by Acts Interpretation legislation in all States to be exercised on the advice of the Executive Council.283 The advice tendered by the Executive Council is usually decided by Cabinet, a minister, or an authorised departmental official. Cabinet approval is often required before a matter is put before the Executive Council.284 The Governor-in-Council merely formalises certain decisions of the Executive, as Aickin J observed in FAI Insurances Ltd v Winneke: It is the body which gives the force of law to, and thus makes effective, decisions of the executive government, ie the Cabinet and individual Ministers. That is the body in which executive power is vested by the constitutional system although the mode of the carrying into effect of the decisions of executive government differs according to the circumstances. Some executive acts may be wholly performed by Ministers or delegated to heads of government departments or to statutory authorities and some may be a formal order of the Governor in Council.285

By merely formalising executive decisions, neither the Executive Council nor the Governor-in-Council deliberate on any issues.286 For that reason, the meetings of the Executive Council with the Governor are usually brief. They are summoned by the authority of the Governor on the advice of the Premier and require a quorum of at least two members of the Executive Council (apart from the Governor or other person presiding).287 Meetings are usually held weekly at Government House.288 The Governor presides at those meetings, although if absent, the Deputy-Governor, the Lieutenant Governor or Administrator presides. In the event none of them is available, a member of the Executive Council would be authorised to preside instead.289 In some States, the quorum of two members is now statutorily prescribed and has become mandatory.290 Then again, there 281 This convention was approved for New South Wales by the Secretary of State for the Colonies in the 1850s: Twomey, above n 26, 698. 282 Hanks, above n 38, 173. 283 The phrase ‘Governor-in-Council’ is, however, defined to mean the Governor acting with the advice of the Executive Council: Interpretation Act 1967 (NSW) s 14; Acts Interpretation Act 1954 (Qld) s 36; Acts Interpretation Act 1915 (SA) s 23; Acts Interpretation Act 1931 (Tas) s 43; Interpretation of Legislation Act 1984 (Vic) s 38; Interpretation Act 1984 (WA) s 60; Interpretation Act 1978 (NT) s 34. 284 See, for example, The Queensland Executive Council Handbook – Governing Queensland, Queensland Government, 2002, 5.1. 285 (1982) 151 CLR 342 at 382. 286 Practice 15, above n 77. 287 Constitution Act 1902 (NSW) s 35D(3); Constitution of Queensland 2001 (Qld) s 50; Constitution Act 1975 (Vic) s 87C. 288 In Queensland, usually at the Executive Building because Government House lacks an Executive Council room – except for urgent meetings. 289 Constitution of Queensland 2001 (Qld) s 50(2) requires the Governor to have ‘good reason’ for being absent. 290 Constitution Act 1902 (NSW) s 35D(3); Constitution Act 1975 (Vic) s 87C(3).

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can be ‘flying minutes’:291 departmental minutes signed by the relevant minister with explanatory memoranda are tabled at Executive Council meetings which constitute the recommendations to the Governor. These Executive Council minutes are usually provided to the Governor at least a day before the Council meets, which gives the Governor the opportunity (rarely taken up) to discuss any relevant matter with the minister before or at the meeting. As the former Governor of Queensland, Sir Walter Campbell recognised, it is well established that the Governor is entitled to exercise Bagehot’s three rights at those meetings: The Governor of Queensland then has no right to dissent from the opinion of the Council, although he may suggest that a particular recommendation be stood over or deferred until further consideration has been given to it or until further relevant information is obtained from the appropriate minister.292

From his illuminating account of the Federal Executive Council, Sir Paul Hasluck indicated the range of questions a Governor and Governor-General might ask to protect ‘the government and especially the Prime Minister from the carelessness or precipitate action either of neglectful ministers or self-willed departments’.293 For instance: Is this proposal in accordance with the Government’s policy? Does it conflict in any way with what you are doing in another area of administration? Is there likely to be any political repercussion? Has it been before Cabinet? Does the Prime Minister himself know of the proposed action? Is the action subject to any agreement or understanding with the State governments? Is it in keeping with the established conventions?294

As the Governor of Victoria, Mr Richard McGarvie, observed in 1995, such questions can only be asked by a Governor who is impartial and apolitical.295 Until the Governor signs the Executive Council minutes, they have no legal effect.296 Whether the decisions of the Governor-in-Council, such as the issue of an Order in Council – otherwise than in accordance with these procedural requirements – vitiates the decision or Order in Council, is unclear. The issue might arise where the quorum of members was not complied with, a meeting occurs without the Governor summoning it or being present (or authorising a presiding minister to act in the Governor’s absence),297 or a dispute over whether the terms of the Order in Council accurately reflect the decision of Cabinet,

291 Twomey, above n 26 suggests at 699 that the New South Wales Governor signs Executive Council minutes afterwards. 292 Walter Campbell, The Role of a State Governor with Particular Reference to Queensland, 1988 Endowed Lecture of the Royal Australian Institute of Public Administration Queensland Division, 22 March 1988, 6–7. See also the detailed account of Executive Council proceedings in Hasluck, above n 66, 38–42 293 Hasluck, ibid 40. 294 Ibid 39–40. 295 An interview reported in the Sunday Age 3 September 1995, ‘The Governor’s Pleasure’, p 13. 296 Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 79 per Dixon J; adopted in FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 352, 382, 396 and 415. Hasluck, above n 66, 42. Campbell, above n 292, 6. 297 This occurred in December 1974 when the Commonwealth Executive Council met at The Lodge in Canberra without the Governor-General who later signed the Minute: Galligan, above n 81, 68.

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the minister, or the department.298 The legal effect of non-compliance with any of these requirements will depend first on whether they are imposed by law, by convention, or by policy. For instance, they are legal requirements if prescribed by the Letters Patent or statutory provisions establishing the office of Governor, but not if required merely by royal instructions.299 Even if they are legal requirements, they might still be viewed as ‘directory’ (not mandatory) and non-justiciable, on the ground that their observance is not sufficiently important to warrant judicial review, since the role of Governor-in-Council is merely to rubber-stamp the decisions of Cabinet. Also, it can be argued that the appropriate remedy lies with Cabinet or the parliament to reverse any decisions of the Governor-inCouncil of which they disapprove. Then again, occasions might arise where neither Cabinet nor parliament can reverse an irregular decision. Retrospective legal action might be required to undo the legal effect of a decision which is beyond the power of a Governor-inCouncil or parliament (if the Houses are deadlocked over the issue). Of further concern is the risk that ministers might use the Governor-in-Council to give effect to their decisions without Cabinet approval. These risks support the view that the procedures of the Governor-in-Council ought to be legally prescribed and judicially enforceable. This would complement the availability of judicial review in respect of the substantive validity of the decisions of the Governor-in-Council in exercise of statutory power: FAI Insurances Ltd v Winneke300 (see further below). Ultimately, parliament could, if it wishes, rectify any irregularity to remove the possibility of judicial review.301 The Executive Council is clearly a remnant of 19th century colonial administration. The Council was the first body established to advise the autocratic colonial governors. Its survival into the 21st century is remarkable, given the limited role it performs. This ceremonial role through the Governor-in-Council to rubber-stamp Cabinet and ministerial decisions must have some benefit for public administration if its retention is justified. That benefit is, as Sir Paul Hasluck identified for Governors-General, to provide a final opportunity to review the Executive’s decision-making process: In presiding in Executive Council in this way a Governor-General is both a watchdog over the Constitution and laws for the nation as a whole and a watchdog for the Government considered as a whole (whatever Government may be in power). He does not reject advice outright but seeks to ensure that advice is well-founded, carefully considered, and consistent with stable government and the established standards of the nation.302 ... 298 These two issues were raised to argue that the Fitzgerald Commission of Inquiry was invalidly constituted by Orders in Council in Queensland in 1987–88: see opinions of Gavan Griffith and P A Neskovcin of 21 July 2003 and 6 January 2004. 299 See Sharples v Arnison [2002] 2 Qd R 444 per McPherson JA at 455 [17]. 300 (1982) 151 CLR 342 at 349 per Gibbs CJ, at 351 per Stephen J, at 364–5 per Mason J, at 396 per Wilson J, and at 414 per Brennan J. 301 See, for example, Constitution (Executive Actions Validity) Act 1988 (Qld) validated an Order in Council which was held ineffective to amend the Brisbane Town Plan because of a procedural irregularity: Brisbane City Council v Mainsel Investments Pty Ltd [1989] 2 Qd R 204. 302 Hasluck, above n 66, 18.

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The great value of strict attention to Executive Council business is that it corrects a tendency in the public service and in the less efficient members of a Ministry to regard the Council as only a rubber stamp.303

But these benefits depend on the personal qualities of the Governor, the preparedness of ministers to permit this watchdog role which they could easily frustrate, and their willingness to listen to any advice proffered. An alternative approach is to rely on a Cabinet office to scrutinise all matters before they are submitted to the Governor.304 While this might enhance scrutiny and assist cooperation across a wide range of government departments and statutory authorities which need Governor-in-Council approval, it is unlikely to provide adequate scrutiny of the decisions of Cabinet itself. That role ultimately belongs to the Governor, so far as the ministry permits this.

8.3.5 Cabinet Cabinet comprises the ministers of State. It meets to determine the highest level of government policy and to make the most important decisions of the executive branch. While the Commonwealth has an inner and outer Cabinet, no similar distinction has been drawn at the State or territory level. In most States, the Cabinet is entirely a creature of convention, not established by any formal legal act or instrument. The Queensland Constitution requires that there must be a Cabinet consisting of the Premier and the Ministers of the State.305 Further codification of convention occurs in providing: ‘The Cabinet is collectively responsible to the parliament’.306 These provisions confine the composition of the Queensland Cabinet to ministers of State. Cabinet might include non-ministerial appointees.307 But even if ministers alone constitute Cabinet, such as in Queensland, there is no requirement that they be members of parliament. Despite their creation by convention, the Cabinet is recognised as an entity by freedom of information legislation.308 Courts have also recognised their existence and accorded legal effect to their decisions at times.309 Much prominence has been given to the description of Cabinet given by Lutwyche J in R v Davenport: The Cabinet, as it is called, is not a body recognised by the Constitution, but the Executive Council, which is composed of the Governor and different members of the administration – the heads of the departments – is. The deliberations of the Cabinet, and the determinations to which the Cabinet may come, are only binding and effectual if they are proposed to be carried into execution, and are ratified, by the action of the Executive Council.310

303 Ibid 41. 304 See the role of the New South Wales Cabinet Office described in Twomey, above n 26, 701–2. 305 Constitution of Queensland 2001 (Qld) s 42(1). 306 Constitution of Queensland 2001 (Qld) s 42(2). 307 Victoria appointed two businessmen in 2005 to sit on Cabinet subcommittees. 308 For example, Freedom of Information Act 1992 (Qld) s 36. 309 In Davenport v R (1877) 3 App Cas 115, waiver by the Queensland Government of breaches of a Crown lease was found on the basis of evidence of the decisions of the Queensland Cabinet. 310 (1874) 4 QSC 99 at 100.

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This statement merely observes the fact that both the common law and the parliament have not utilised the institution of Cabinet to formally exercise executive or delegated legislative power. So far, parliament has resisted using Cabinet in this way. Several factors account for this. First, the inherited constitutional machinery surrounding the Executive Council has worked well. Second, the involvement of the Governor in the Executive Council lends status to the implementation of the political decisions of Cabinet. Third, there is the difficulty in exercising judicial review of the deliberations and decisions of Cabinet which are protected by a principle of Cabinet confidentiality.311 And fourth, the need to preserve the speed and informality of Cabinet.312 A modern development has been the holding of ‘community Cabinet meetings’ in different regions of several States313 and the Northern Territory to encourage the submission of formal and informal public deputations.

8.3.6 Ministers of State The ‘Government’ essentially comprises the Ministers of State led by the Premier who hold office so long as they retain the confidence of a majority of the Assembly. Despite having no role to play in the determination of the ministry, most Councils have the capacity to frustrate the legislative program of the government, even to the extent of blocking or rejecting supply.314 The rules for selecting the Executive are not expressly stated in any of the formal Constitutions in Australia. Rather, they are unwritten conventions of the Westminster system which may generally be grouped together under the principle of responsible government. The most important convention is that those who are asked to form a government must possess the confidence of a majority of the Assembly as the House which is intended to most truly represent the interests of the people. The evolution of political parties has facilitated the operation of this convention by making it somewhat easier to determine who will have the confidence of the Assembly. This convention gives effect to the principle of collective ministerial responsibility. When the government no longer possesses the confidence of the Assembly, it must by convention offer to resign. In all States, ministers are appointed by the Governor and hold office during the Governor’s pleasure.315 In most, the number of ministers is specified by the Constitution – nine in Tasmania,316 15 in South Australia, 17 in Western Australia, 19 in Queensland, and 22 in Victoria. In Victoria, the distribution between 311 See The Commonwealth v Northern Land Council (1993) 176 CLR 604 at 615; South Australia v O’Shea (1987) 163 CLR 378 at 387, 419–20. 312 G. Sawer, ‘Councils, Ministers and Cabinets in Australia’ [1956] Public Law 110, 116 identifies, in his view, sound practical reasons for this: the risk of impairing the speed and informality of Cabinet proceedings. 313 Queensland, Victoria and Western Australia. 314 Note statutory recognition of a government mandate – Constitution Act 1975 (Vic) s 16A – that the Legislative Council will exercise its powers ‘in recognition of the right and obligation of the current Government to implement’ its mandate. By its terms, this is confined to the Government at the time of enactment. 315 Constitution Act 1902 (NSW) s 35E(1); Constitution of Queensland 2001 (Qld) s 43; Constitution Act 1934 (SA) s 65; Constitution Act 1934 (Tas) s 8A; Constitution Act 1975 (Vic) s 50; Constitution Acts Amendment Act 1899 (WA) s 43. 316 Constitution Act 1934 (Tas) s 8A (or 8 plus Secretary to Cabinet).

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both Houses is prescribed with no more than six in the Legislative Council and no more than 14 in the Legislative Assembly.317 In Western Australia, a minimum of one minister must be appointed from the Legislative Council.318 Only in Tasmania is there a statutory requirement that the ministerial appointee is at the time of appointment, a member of either House.319 In New South Wales,320 they must be a member of the Executive Council, while in Victoria, at least 10 of the 22 ministers must be a member of either House but all appointees must become a member within three months of their appointment.321 The same three-month stipulation applies in South Australia.322 By contrast, in Queensland, any ‘person’ may be appointed.323 Provision is made in Tasmania that ministers hold office for seven days after the return of the writs for elections.324 The allocation of ministerial portfolios usually occurs by an instrument issued by the Governor on the advice of the Premier. It is clearly unsatisfactory that there is lacking in most States an express constitutional requirement that those appointed to the ministry must be members of either House of parliament. This reflects the fact that the original colonial constitutions did not require all ministers to be members of parliament.325 Now, as one of the most fundamental constitutional principles in any Westminster system, it ought to be enshrined expressly. It is insufficient to rely on the continued observance of this principle as supporting a fundamental constitutional convention.326 The innovative appointment in 2005 of two non-members to the Victorian Cabinet, essentially as advisors without ministerial portfolio, indicates the need to give statutory force to the convention. While such appointments have been encouraged at times to broaden the expertise of Cabinet, they have at least two significant disadvantages. First, they undermine the lines of accountability by which ministers as members of parliament are held accountable to their House, to the parliament as a whole and thus both directly and indirectly to the people. Second, their political role may become confused with the administrative role of the senior executive service, blurring further the demarcation between those roles. Circumstances may arise to justify a limited dispensation from the convention, such as a minister resigning from one House in order to be elected to the other House. The dispensation provided for in South Australia327 and Victoria328 (and at the Commonwealth level)329 that ministers must be members within three months of their appointment may not be sufficient to cover that situation. The Commonwealth dispensation was adopted to facilitate the appointment of the 317 Constitution Act 1975 (Vic) s 50. 318 Constitution Act Amendment Act 1899 (WA) s 43. 319 Constitution Act 1934 (Tas) s 8B(1). 320 Constitution Act 1902 (NSW) s 35E(1). 321 Constitution Act 1975 (Vic) ss 50 and 51. 322 Constitution Act 1934 (SA) s 66(1). 323 Constitution of Queensland 2001 (Qld) s 43(2). There is a proposal to amend the Constitution of Queensland 2001 to expressly require ministers (including the Premier) to be a member of the Assembly or at least a candidate for election: Constitutional and Other Legislation Amendment Bill 2005. 324 Constitution Act 1934 (Tas) s 8B(2)–(4). 325 For example, Constitution Act 1855 (NSW) s 18; Jenks, above n 19, 260, 268 and 276. 326 See Egan v Willis (1996) 40 NSWLR 650 at 660 per Gleeson CJ (NSWCA). 327 Constitution Act 1934 (SA) s 66(1). 328 Constitution Act 1975 (Vic) s 51. 329 Commonwealth Constitution s 64.

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first Commonwealth ministry prior to the inaugural election of members to the Commonwealth Parliament. It was modelled330 on the South Australian and Victorian provisions. There is an issue whether ministers should only be drawn from the Assembly. Usually, a minority of ministers are members of the Council. Their preclusion is suggested on the ground that this would enhance the capacity of the Council to scrutinise the Executive. A more realistic assessment of such a proposal is that it would tend to undermine the standing and effectiveness of the Council as a House of review. It would deter the election of talented members to the Council who aspire to ministerial appointment. It would also deprive the Council of the opportunity to question its members who are ministers and to demand the production of relevant papers under their control. Provision is made in certain Constitutions for the appointment of members as acting ministers to cover the absence or disability of a minister or a ministerial vacancy.331 The appointment of a member of parliament as a parliamentary secretary is a fairly recent innovation in Westminster systems. Their role is to assist a minister both inside and outside parliamentary proceedings. Appointment is by the Premier in New South Wales,332 by the Governor in South Australia,333 and by the Governor-in-Council in both Queensland334 and Western Australia.335 A significant issue is whether the number of parliamentary secretaries should be capped to restrict the Executive’s capacity to influence members of parliament. The number is capped in South Australia at two336 but a recommended cap of five in Queensland was rejected by the Queensland Government in 2004.337 A minister is dismissed by the Governor on the advice of the Premier – provided the Premier retains the confidence of the Assembly and of their political party. A vote of no confidence in a minister passed by the Assembly (even if a member of that House) is a matter for the Premier and the parliamentary party to consider. Given the demise of the principle of individual ministerial responsibility, it is extremely unlikely that the minister would resign unless the Premier demanded it. There is no established convention which would demand the minister’s resignation under those circumstances.338 Nor is there any reserve power in the Governor to dismiss the minister. A refusal to resign does not constitute a breach of parliamentary privilege.339 Only an Assembly vote of no confidence (or 330 Official Record of the Debates, above n 9, 9101 (per Mr Barton). 331 Constitution Act 1902 (NSW) s 36; Constitution of Queensland 2001 (Qld) s 45; Constitution Act 1934 (SA) s 67. In NSW, provision is made for any minister to act if no other minister is available: Constitution Act 1902 (NSW) ss 37–8. 332 Constitution Act 1902 (NSW) s 38B. 333 Constitution Act 1934 (SA) s 67A. 334 Constitution of Queensland 2001 (Qld) s 24. 335 Constitution Acts Amendment Act 1899 (WA) s 44A. 336 Constitution Act 1934 (SA) s 67A(2). 337 Queensland Government response to the LCARC Report No 36, above n 102. 338 Other commentators argue for such a convention: Lindell and Blunt, above n 11. 339 See Queensland Legislative Assembly, Members’ Ethics and Parliamentary Privileges Committee, Report on a Matter of Privilege: Alleged contempt by the Attorney-General for failing to resign his ministerial office following a vote of no confidence in him by the Legislative Assembly, Report No 15, April 1998 which found no breach of privilege in the refusal of the Queensland Attorney-General to resign following an Assembly vote of no confidence in him. The vote of no confidence was agreed to by an independent member who maintained her support for the minority government by voting at the same time against a no confidence motion in the

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equivalent) in the Premier or the ministry as a whole warrants the resignation of the Premier and consequently of the ministry. If a vote of no confidence in a minister is not acted on by the Premier, the Assembly simply must decide whether to continue its support for the Premier.

8.3.7 Premier and Chief Minister The parliamentary leader of those members who have the support of a majority of the members of the Assembly to form and lead a government is sworn in as the ‘Premier’. The position of Premier (or before federation, ‘Colonial Secretary’ or ‘Chief Minister’) was originally established by convention, although certain State Constitutions now refer to the office.340 The power of a State Governor to appoint and dismiss ministers includes the power to appoint and dismiss the Premier. These powers must be exercised in accordance with the constitutional conventions discussed earlier. The Premier is by convention always a member of the Assembly.341 Reflecting their different status, the self-governing Commonwealth territories have a ‘Chief Minister’. This position exists by convention, except in the ACT where it is provided for in s 40 of the Australian Capital Territory (Self-Government) Act 1988 (Cth).

8.3.8 Caretaker governments On the dissolution of an Assembly for a general election, the incumbent ministry assumes the limited role of a ‘caretaker government’ until a new ministry is sworn in following the election. This occurs because there is no Assembly to which the incumbent ministry is accountable. As well, if an existing ministry loses the confidence of the Assembly, it also operates as a caretaker government until such time as a new ministry is sworn in. By convention, a caretaker government should only make those decisions which are necessary for the interim administration of the State or territory. This means that a caretaker government should refrain from adopting major new policies, from signing significant contracts, and from making any senior appointments.342 A failure to observe this convention incurs only political, not legal, repercussions. Still, there appears to be considerable agreement within Australia, at least within the public service, on the scope of this convention and their duty to observe it as the Executive’s Government. See also Winterton, above n 9, 81 who cites G. C. Moodie, The Government of Great Britain (London: Methuen, 1964) at 88 that it is impossible for the House of Commons to vote for removal of a single member of parliament or minister. They can only vote for removal of the ministry as a whole. 340 See Constitution Act 1902 (NSW) s 35E(1); Constitution of Queensland 2001 (Qld) s 42; Constitution Act 1934 (SA) s 67A(b); Constitution Act 1975 (Vic) s 6B. There is a proposal to amend the Constitution of Queensland 2001 to expressly require ministers (including the Premier) to be a member of the Assembly or at least a candidate for election: Constitutional and Other Legislation Amendment Bill 2005. 341 A precedent in New South Wales exists in 1904 when a member of the Legislative Council served as Premier for a short period of one to two months: see Twomey, above n 26, 691. Queensland proposes to permit the appointment as ministers of electoral candidates to the Assembly for a maximum period of 90 days: Constitutional and Other Legislation Amendment Bill 2005. 342 See G. Davis, A. Ling, B. Scales and R. Wilkins, ‘Rethinking Caretaker Conventions for Australian Governments’ (2001) 60 Australian Journal of Public Administration 3, 11.

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administrators.343 One area which still requires clarification is the extent to which a ministry can prevent the public service from releasing politically damaging government information during an election period.

8.3.9 Reform Given the importance attached to transparency of government and the contemporary questioning of all forms of authority, it is imperative that the fundamental legal documents of a society are not misleading. A range of matters concerned with the executive branch have been raised above which should be expressly addressed in State Constitution Acts to overcome the misleading impression they presently give. They can be summarised as follows: ● The executive power of the State should be vested in the Queen exercisable by the Governor on the advice of the Premier or appropriate minister. ● The Governor must be kept informed of the affairs of State, and is entitled to express his or her views to the Premier or other appropriate minister. ● The Premier and ministers must be members of the parliament. They hold office only so long as they enjoy the confidence of the Assembly. ● The ministers are appointed and dismissed by the Governor only on the advice of the Premier. ● The Governor must exercise all power in accordance with the advice of the Premier or appropriate minister – except when exercising reserve power: – the reserve power of the Governor extends only to the power to appoint and dismiss the Premier, and to dissolve the Assembly; – the Governor should appoint as Premier the member whom the Governor believes is likely to enjoy the confidence of a majority of the Assembly; – the Premier should resign upon losing the confidence of the Assembly or when found by a Court to be engaged in persistent or serious illegality; – if the Premier refuses to resign, then the Governor may dismiss the Premier on those grounds; and – the Assembly should only be dissolved for an election by the Governor without advice where the Governor is of the opinion that it is no longer able to function.

8.3.10 The position in the ACT As noted earlier, there is no equivalent of a State Governor or the Northern Territory Administrator in the ACT. Consequently, the requirement of royal assent is dispensed with, while other provision is made in the Australian Capital Territory (Self-Government) Act 1988 (Cth) for the enactment of laws, the appointment and dismissal of the Chief Minister and ministers, and for resolving or avoiding crises which might otherwise have been dealt with by an exercise of reserve power. This 343 For example, see New South Wales Cabinet Office Memorandum No T2002–6, ‘Caretaker Government Conventions and Other Pre-election Practices’, 19 December 2002 cited in Twomey, above n 26, 711, fn 568. See also Davis, Ling, Scales and Wilkins, ibid, Appendix 1: A Suggested New Draft Code, 23–6.

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made it necessary to codify the principle of responsible government. Specifically, ss 40 and 41(1) provide that the Chief Minister and other ministers can only be appointed from the Assembly, while s 40(3) provides that the Chief Minister only retains office with the confidence of the Assembly. The Executive, established by s 36 as the ‘Australian Capital Territory Executive’ comprises only the Chief Minister and such other ministers as are appointed by the Chief Minister (s 39(1)). The status of the Executive is not expressly described in the Act as a body corporate or as part of the Crown. However, since s 7 establishes the ACT ‘as a body politic under the Crown’, this must constitute the ACT Executive as the Crown in right of the ACT. The Act confirms the existence of the Crown in right of the Territory in only two provisions. Section 66A specifies that Part ‘Elections to Assembly’ binds the Crown in right of the Territory – except for the liability to be prosecuted. And s 69A ensures that Commonwealth Acts which bind the States or the Crown in right thereof also bind the ‘Territory, or the Crown in right of the Territory’. It is certainly novel for a Constitution to create a new emanation of the Crown without providing for a vice-regal representative. Consequently, neither the Sovereign nor her vice-regal representative is a constituent component of the legislature. Nor is it clear that the Sovereign is even the ceremonial head of the Executive.344 The primary reason for creating the Territory as a body politic under the Crown may have been to ensure that the prerogatives of the Crown were vested in the Executive as provided for in s 37(d). Yet this was probably unnecessary because powers equivalent to the prerogative powers could have been vested instead. In any event, the ACT is the closest Australia has to a republican system of government. But for being created a ‘body politic under the Crown’ (s 7), the Crown would have no presence in the Territory nor would there be a Crown in right of the Territory. The absence of any vice-regal representative necessitated explicit rules for the appointment and dismissal of ministers including the resolution of difficulties which might have been resolved by an exercise of reserve power. The power to appoint and dismiss the Chief Minister is vested in the Assembly (s 40); the power to appoint and dismiss ministers is vested in the Chief Minister (s 41); and the power to dissolve the Assembly in extreme circumstances is vested in the Governor-General (s 16). Where a vote of no confidence is passed in the Chief Minister, the Assembly is required to elect a new Chief Minister (s 40(3)), but if this does not occur within 30 days of the vote, a general election must be held (s 48).345 These provisions attempt to resolve any constitutional crises in the absence of reserve power. Even the dissolution of the Assembly under s 16 and the disallowance of an ACT enactment under s 35 – in each case by the 344 Nor could the Governor-General be seen to serve that role by virtue of being vested by s 16 with authority to dissolve the Assembly in certain extreme circumstances, namely, if the Assembly, in the Governor-General’s opinion, (a) is incapable of effectively performing its functions; or (b) is conducting its affairs in a grossly improper manner. 345 On a date gazetted by the Commonwealth which is between 36 and 90 days after that 30-day period.

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Governor-General – involves no exercise of reserve power as such, since the Governor-General is by convention required to act on the advice of the Commonwealth ministry. To this extent the Territory remains within the protective wrap of the Commonwealth. This could be viewed positively as useful insurance for Australia’s chief constitutional laboratory, or negatively as the vesting of reserve power in their powerful political master. In time, conventions may develop reflecting a closer relationship between the ACT and the Governor-General as Kirby J in Eastman predicted:346 In practice, it could be assumed that conventions would develop by which the GovernorGeneral in Council would take closely into account the advice of the Executive of the ACT, just as would be done in respect of other functions assigned to the GovernorGeneral by the Self-Government Act.

8.4 Scope of executive power The scope of the executive power of the States is wide ranging, evolutionary and at times elusive. There is no statutory definition like that provided for their legislative power. Indeed, their Constitutions do not even refer to the ‘executive power’ of the State. There is no comparable provision to s 61 of the Commonwealth Constitution which vests the executive power of the Commonwealth in the Queen exercisable by the Governor-General. Such a provision was unnecessary for granting self-government to the Australian colonies because the common law recognised the devolution of imperial executive power to the new emanations of the Crown in each colony. This occurred with the grant of responsible government by which certain prerogatives became vested in ‘the Crown in right of the colony’.347 Even now, only the Queensland Constitution expressly refers to the inclusion within State executive power of the Crown’s individual or corporate capacity by providing that the ‘Executive Government of the State of Queensland (the “State”) has all the powers, and the legal capacity, of an individual’.348 Executive power is composed of a range of specific powers recognised by the common law or conferred by statute. The vulnerability of the common law powers to statutory modification or abrogation means that the content of the executive power evolves according to parliamentary whim. Hence, the existence of claimed common law powers depends at times on detailed historical analysis. Having just considered the specific constitutional powers of the Governor or Administrator, this outline of executive power focuses on the executive powers of the respective Crowns in right of the States and territories. In other words, the executive powers of the State and territory governments. Despite the amoebic qualities of executive power, its essential content comprises: 346 Re Governor, Goulburn CC; Ex parte Eastman (1999) 200 CLR 322 at 380. 347 See Sue v Hill (1999) 199 CLR 462 at 500 per Gleeson CJ, Gummow and Hayne JJ. Cf Toy v Musgrove (1888) 14 VLR 349. 348 Constitution of Queensland 2001 s 51(1).

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royal prerogative powers; power to engage in contracts and business enterprises, and powers delegated to the Executive by parliament.

Each of these categories of power is examined below.349 The distinction drawn between the first two categories is not one which is observed by all commentators.350 Nonetheless, it is an important distinction to retain because it may be relevant in deciding whether the rights of individuals can be affected, whether the exercise of a particular executive power is amenable to judicial review, or whether the power has been abrogated by statute.351 Federation involved not only a division of legislative power between the Commonwealth and the States, it also involved a division of executive power. Consequently, certain powers are shared while others are exclusive to one or other level of government.352 This division of executive power is examined below. While the exercise of legislative power by parliament occurs by Act of parliament, an exercise of executive power is evidenced or effected in a number of different ways, such as by the issue of: ● an Order in Council by the Executive Council; ● a proclamation, writ, Letters Patent, grant or other document under the Great Seal; ● a warrant, commission, order or instructions under the Sign Manual; and ● a declaration by a minister.

8.4.1 Royal prerogative powers The royal prerogative powers are those powers, rights, immunities and preferences of the Crown still recognised by the common law as unique or special to the Crown.353 Accordingly, those other powers of the Crown derived from its corporate status – such as the power to contract or to engage in business – are not prerogative powers. While ‘prerogative’ may sound elitist, the royal prerogative powers, as with all public power, are to be exercised only in the public interest. As Dicey observed: ‘The prerogatives of the Crown have become the privileges of the people.’354 As remnants of the Crown’s absolute power, the creation of new prerogative powers is precluded – at least since the Glorious Revolution in 1688. Diplock LJ observed in British Broadcasting Corporation v Johns: ‘it is 350 years 349 New South Wales v Bardolph (1934) 52 CLR 455; Enid Campbell, ‘Commonwealth Contracts’ (1970) 44 Australian Law Journal 14. 350 Distinction maintained by: William Blackstone, Commentaries on the Laws of England 1765–1769 (1st publ 1765, 12th edn 1978), Vol 1, 239; and by Zines, above n 40, 254. Distinction not maintained by: A. V. Dicey, An Introduction To the Study of the Law of the Constitution (10th edn, Basingstoke: Macmillan Education, 1959) 425; Winterton, above n 9, 112; Selway, above n 39, 87, fn 1; Council of Civil Service Unions v Minister for the Civil Service (CCSU) [1985] AC 374 (HL), except for Lord Diplock at 409. 351 Zines, above n 40, 254. 352 FCT v Official Liquidator of E. O. Farley Ltd (1940) 63 CLR 278. 353 See Blackstone’s Commentaries, above n 350, 239; P. Jackson and P. Leopold, O. Hood Phillips & Jackson: Constitutional and Administrative Law (8th edn, London: Sweet and Maxwell, 2001) 305. 354 Dicey, above n 350, 468.

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and a civil war too late for the Queen’s courts to broaden the prerogative’.355 While many prerogatives are well recognised, others possibly suffer desuetude. For instance, in Ruddock v Vadarlis, the Full Federal Court split 2–1 whether the Commonwealth Executive possessed a prerogative power to exclude aliens from Australia. Authorities from the 19th century were relied on.356 Professor Winterton warns, though, that there is a fine line between applying an existing prerogative to a new situation and recognising a new prerogative.357 8.4.1.1 Source of royal prerogative powers Initially, the granting of responsible government to the colonies in the 19th century was not thought sufficient to include a devolution of all the royal prerogative powers to the colonial Governor. A majority of the Supreme Court of Victoria in Toy v Musgrove358 held that the Victorian Governor possessed only those powers conferred by the Queen in Letters Patent and royal instructions, or by statute.359 Accordingly, he lacked the conceded prerogative power to exclude an alien from the State. The visionary dissents of Higinbotham CJ and Kerferd J regarded the Crown in right of Victoria as possessing the requisite power since, as Higinbotham CJ observed: [T]he Executive Government of Victoria possesses and exercises necessary functions under and by virtue of ‘The Constitution Act’ similar to, and co-extensive, as regards the internal affairs of Victoria, with the functions possessed and exercised by the Imperial Government with regard to the internal affairs of Great Britain . . . [namely, within the restraints on its powers] to do all acts and to make all provisions that can be necessary and that are in its opinion necessary or expedient for the reasonable and proper administration of law and the conduct of public affairs, and for the security, safety, or welfare of the people of Victoria.360

The Higinbotham view was effectively accepted by the High Court much later in Joseph v Colonial Treasurer (NSW)361 and Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd.362 Accordingly, the executive power of the 355 [1965] 1 Ch 32 at 79. The BBC argued that it was exercising as agent one of the Crown’s prerogative rights; namely, a right to a monopoly over the new inventions of broadcasting. No such right was found to exist. 356 (2001) 183 ALR 1 at 50–3 [186]–[197] per French J (with whom Beaumont J agreed); cf Black CJ in dissent at 7–12 [9]–[29] who regarded the existence of the prerogative as at best doubtful. 357 Winterton, above n 9, 120, citing Malone v Metropolitan Police Commissioner [1979] Chapter 344, 383–4. 358 Toy v Musgrove (1888) 14 VLR 349. 359 See, for example, Commonwealth v Colonial Combing Spinning and Weaving Co Ltd (1922) 31 CLR 421. Similar difficulty arose even with the Commonwealth’s prerogative powers which were initially thought not to have been conferred by virtue of s 61 of the Commonwealth Constitution but were confined to those specifically assigned to the Governor-General by the Queen pursuant to s 2 of the Constitution. Consequently, special assignments of power were made, as late as 1973. Since the decisions of the High Court in Barton v The Commonwealth (1974) 131 CLR 477 and Victoria v Commonwealth (AAP case) (1975) 134 CLR 338 s 61 has been regarded as sufficient to confer all prerogative powers on the Commonwealth Crown. 360 (1888) 14 VLR 349 at 397. On appeal, the Privy Council left this issue open: Musgrove v Chun Teehong Toy [1891] App Cas 272 at 283. See Charles Parkinson, ‘George Higinbotham and Responsible Government in Colonial Victoria’ (2001) 25 Melbourne University Law Review 181. 361 (1918) 25 CLR 32. 362 (1940) 63 CLR 278. See also The Attorney-General for New South Wales v Butterworth & Co (Australia) Ltd (1938) 38 St R NSW 195 at 218 per Long Innes CJ in Eq.

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States derives from the common law, given their attainment of responsible government.363 This matter was finally put beyond doubt by s 7(2) of the Australia Acts 1986 in providing that ‘all powers and functions of Her Majesty in respect of a State are exercisable only by the Governor of the State’.364 8.4.1.2 Classification of prerogative powers The royal prerogative powers can be divided into two categories: domestic and external prerogatives, but only the former is relevant to the States and territories. The external prerogatives – essentially the disposition of the armed forces, the conduct of diplomatic relations, and the signature and ratification of treaties – are effectively vested in the Commonwealth Crown alone. This is because only the Commonwealth and not the States has international status. Most domestic prerogatives are now either replaced or regulated by statute. Indeed, the power over Crown lands (waste lands) was only ever given to the colonies by imperial enactment.365 Subject to overriding Commonwealth legislation, the Executives of the States enjoy the following domestic prerogatives to the extent they survive at common law: the initiation and termination of criminal proceedings; granting pardons; public interest immunity in relation to evidence;366 the maintenance of internal security including the quelling of riot and insurrection;367 creation of corporations by charter; bona vacantia; waifs, treasure trove; and copyright in public documents.368 Former prerogatives abrogated by statute include: intestate estates; royal grants; the creation of harbours and ports; the establishment and governance of prisons; estrays;369 wrecks; and royal fish.370 Those prerogatives which are now partly regulated by statute include: parens patriae;371 royal commissions; immunity from suit;372 priority in payment of debts; and escheat. Imperial honours continued to be awarded by the Queen on the advice of certain State Premiers until 1992. Arrangements were made with the Queen for 363 See David Wood, ‘Responsible Government in the Australian Colonies: Toy v Musgrove Reconsidered’ (1988) 16 Melbourne University Law Review 760. 364 Subject to s 7(3) which excludes the power to appoint and dismiss the Governor and to s 7(4) when the Queen is personally present in the State. Note that s 7(2) is broader than s 61 of the Commonwealth Constitution if interpreted as suggested by Zines in his Commentary to Evatt, above n 28, Chapter 14, as not encompassing Crown privileges and immunities as these are not ‘powers’. 365 See, for example, s 2 New South Wales Constitution Statute 1855 (Imp). 366 Sankey v Whitlam (1978) 142 CLR 1. 367 Cf Australian Communist Party v Commonwealth (Communist Party Case) (1951) 83 CLR 1 at 187–8 per Dixon J. 368 Note that the presumption of Crown immunity from statutory obligations is not regarded as a prerogative, merely a rule of statutory construction: Bropho v Western Australia (1990) 171 CLR 1 at 15. 369 Animals wandering at large. 370 Dolphins and sturgeon. 371 This has four dimensions: to care for minors, mentally disturbed persons, superintend charities, and protect public rights: Selway, above n 39, 95. 372 Note that State Governors may possess sovereign immunity as the Sovereign’s representative: O’Sullivan v Central Sydney Area Health Service (No 2) [2005] NSWADT 136 – which found the New South Wales Governor, Marie Bashir, was not compellable as a witness, on events predating her appointment as Governor, before the New South Wales Administrative Decisions Tribunal Equal Opportunities Division both under s 15 of the Evidence Act 1995 (NSW) and at common law. On the Sovereign’s immunity see Attorney-General v Radloff (1854) 10 Ex 84; 42 ER 366. Reliance placed on the New South Wales Law Reform Commission’s Discussion Paper on Competence and Compellability (No 7: 1980) and the ALRC Final Report on Evidence (No 38: 1987) which considered the Sovereign’s immunity extended to her vice-regal representatives.

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this to continue following the Australia Acts 1986. The federal Order of Australia was established by Letters Patent dated 14 February 1975 issued by the Queen on the advice of the Commonwealth Government. In the absence of Commonwealth legislation which precludes the States from granting their own honours,373 the States could reintroduce an honours system within their respective States.374 The Queen retains in the United Kingdom the right to exercise personally her prerogative power to award certain honours375 which may be awarded to Australians.376 And the Queen still personally approves the creation of new honours in Australia.377 The use of ‘Royal’, the award of royal patronage, and the approval of the use of royal insignia are matters referred to the Queen by the State Governor.378 8.4.1.3 The self-governing territories While the Executives of the ACT, the Northern Territory and Norfolk Island are granted very wide executive power, in each case the Commonwealth retains responsibility for certain matters. On the whole, each territory’s executive power is commensurate with the plenary legislative power vested in their respective Legislative Assembly. The ACT Executive is given by s 37(a) responsibility relating to an extensive list of matters specified in Schedule 4 of the Australian Capital Territory (SelfGovernment) Act 1988 (Cth).379 This list is regarded as comprehensive – except for the areas precluded from the legislative power of the Legislative Assembly by s 23 of the Australian Capital Territory (Self-Government) Act and which concern the reservation to the Commonwealth of land title in the Territory by the Australian Capital Territory Planning and Land Management Act 1988 (Cth). In addition, s 37 confers responsibility for: (b) executing and maintaining Territory enactments and subordinate laws; and (c) for exercising other powers vested in the Executive by Commonwealth law or by an agreement or arrangement with the Commonwealth, a State or another territory. Further, s 37(d) vests in the Executive, the ‘prerogatives of the Crown so far as they relate to the Executive’s responsibility’ in these three paragraphs of s 37. This express recognition of the prerogative powers was added in 1994 to overcome doubts over their vesting. A similar approach was adopted in the Northern Territory where the Commonwealth specified by regulation the matters in which executive authority is vested in the Territory Executive: Regulation 4 of the Northern Territory (SelfGovernment) Regulations 1978 (Cth).380 The original list of matters was soon expanded to confer on the Territory responsibility for virtually all matters within 373 Doubtful whether the Melbourne Corporation principle would invalidate a Commonwealth law to this effect which would rely on the Commonwealth’s implied nationhood power. 374 This has occurred in the Canadian provinces. Presumably, the Queen’s consent is needed. 375 For example, the Order of Merit, the Orders of the Garter, the Thistle and St Patrick: B. S. Markensinis, ‘The Royal Prerogative Re-visited’ [1973] Cambridge Law Journal 287, 289. 376 For example, Ninian Stephen was made a Knight of the Garter in 1994. 377 For example, the new Australian Defence Medal approved by the Queen in July 2004. 378 Campbell, above n 114, p 11. 379 See Appendix 3 in this book. 380 See Appendix 2 in this book.

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the power of the State Executives. The remaining areas of Commonwealth responsibility excluded from territorial executive power relate to uranium mining,381 Aboriginal land rights,382 specific national parks,383 and conciliation and arbitration.384 Express reference is also made to the prerogatives of the Crown which are vested in the Executive by s 31 to the extent that they relate to the duties, powers, functions and authorities vested by the Self-Government Act in the Administrator, the Executive Council and the ministers. The Territory Executives also possess – by virtue of the express conferral of the royal prerogatives or else by virtue of being a body politic – the common law capacity to contract, engage in business enterprises, and to sue and be sued. Additionally, there is the Commonwealth’s executive power under s 61 of the Commonwealth Constitution in relation to the territories. As with the Commonwealth’s legislative power in s 122, the grant of self-government to a territory does not extinguish the Commonwealth’s executive power in relation to the territories. Prior to the grant of self-government to the ACT, the High Court in Johnson v Kent385 held that the Commonwealth Executive had by virtue of s 61 the full scope of prerogative power in relation to the Territory. Accordingly, the Commonwealth could erect, subject to statute, a communications tower or establish ‘parks, gardens, sports grounds, tourist facilities and the like’ without statutory authorisation.386 8.4.1.4 Judicial review of exercise of prerogative power While the courts clearly have the responsibility to determine the existence and scope of a royal prerogative,387 there are limits to judicial review of their exercise. The former immunity from judicial review of an exercise of a royal prerogative power has been replaced with an acceptance of their general susceptibility to judicial review.388 This follows judicial review of the exercise of statutory powers by the Governor-in-Council.389 But not every exercise of prerogative power is reviewable. Some prerogatives or particular exercises of a prerogative will be 381 Expressly excluded by Reg 4(2)(a) (see Appendix 2 in this book) – regulated under the Atomic Energy Act 1953 (Cth). 382 Expressly excluded by Reg 4(2)(b) (see Appendix 2) – regulated under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). 383 Kakadu National Park and Uluru-Kata Tjuta National Park – regulated under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth). 384 Under the Workplace Relations Act 1996 (Cth) – s 53 Northern Territory (Self-Government) Act 1978 (Cth). 385 Johnson v Kent (1975) 132 CLR 164. 386 Ibid at 170 per Barwick CJ (with whom McTiernan, Stephen, and Jacobs JJ agreed). 387 The Case of Proclamations (1611) 12 Co Rep 74, 77 ER 1352 (PC); Burmah Oil Co Ltd v Lord Advocate [1965] AC 75 (HL). 388 See Mason J in R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 219–21; Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 (HL), accepted by the Full Federal Court in Minister for the Arts, Heritage and the Environment v Peko-Wallsend Ltd (1987) 75 ALR 218. M. Aronson and B. Dyer, Judicial Review of Administrative Action (2nd edn, Sydney: Law Book Company Information Services, 2000) 114–18. 389 See R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; FAI Insurance Ltd v Winneke (1982) 151 CLR 342; South Australia v O’Shea (1987) 163 CLR 378. Earlier authority had denied judicial review of vice-regal acts: Duncan v Theodore (1917) 23 CLR 510 at 544 per Rich and Isaacs JJ; Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 178–9 per Dixon J.

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non-justiciable if they involve complex policy or political issues which are inappropriate for the courts to review.390 This is more likely the position in relation to the Commonwealth’s external prerogatives, such as the conduct of international relations and the disposition of the armed services.391 Exercises of domestic prerogatives are less likely to be non-justiciable, although judicial review is unlikely to be available in relation to the Attorney-General’s decisions to grant or refuse a fiat in a relator action, to enter a nolle prosequi, or to file an ex officio information.392 Judicial review will equally extend to an exercise of the common law powers of the Crown to undertake commercial activities.393 The royal instructions were not justiciable,394 being a matter between the Crown and its representative.395 8.4.1.5 Statutory abrogation As creatures of the common law, the royal prerogative powers are clearly subject to statutory abrogation, modification,396 or regulation.397 In determining whether parliament intended to abrogate a prerogative power, express words or necessary intendment are required.398 The latter will usually be satisfied where the statute covers the whole area of the prerogative.399 This was not the case in Barton v The Commonwealth400 where the field had only been partially covered. There, the prerogative right to request extradition to Australia of a fugitive offender from a foreign State with which Australia did not have an extradition treaty, was held not to be abrogated by Commonwealth legislation which only dealt with such requests to a State where an extradition treaty was in force. Professor Winterton401 suggests that the stringency with which the test was applied in Barton should be relaxed where an alteration to the prerogative benefits human rights. This is unlikely to occur, however, where national security or sovereignty is at stake. In Ruddock v Vadarlis402 the majority403 of the Full Federal Court found that the Commonwealth’s executive power to prevent the 390 The Full Federal Court in Minister for the Arts, Heritage and the Environment v Peko-Wallsend Ltd (1987) 75 ALR 218 per Bowen CJ and Shepherd J seriously doubted the availability of judicial review of Federal Cabinet’s decisions. Cf O’Shea v South Australia (1987) 163 CLR 378 where Mason J at 387–8 and Deane J at 415–16 thought Cabinet decisions were reviewable. 391 For instance, the prerogatives in relation to war and the disposition of the armed forces are not susceptible to judicial review: R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 219–20 per Mason J; Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 at 943–4. 392 See R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 218–20 per Mason J; F. Wheeler, ‘Judicial Review of Prerogative Power in Australia: Issues and Prospects’ (1992) 14 Sydney Law Review 432. 393 Wheeler, ibid. 394 D. B. Swinfen, ‘The Legal Status of Royal Instructions to Colonial Governors’ [1968] Juridical Review 21. 395 Fajgenbaum and Hanks, above n 24, 20. Reinforced by the CLVA s 4 which deemed no colonial legislation could be impeached for breach of royal instructions or for failure to reserve a Bill for royal assent. The sanction lay with the Monarch to dismiss her representative. 396 Modification could restrict and/or enhance the prerogative – both intended in Attorney-General v De Keyser’s Royal Hotel [1920] AC 508. 397 See Ruddock v Vadarlis (2001) 183 ALR 1 at 48 per French J. 398 Barton v The Commonwealth (1974) 131 CLR 477, at 488 per Barwick CJ, at 501 per Mason J, at 508 per Jacobs J. Barwick CJ stated at 488 that ‘the rule that the prerogative of the Crown is not displaced except by a clear and unambiguous provision is extremely strong’. 399 As in Attorney-General v De Keyser’s Royal Hotel [1920] AC 508 (HL). 400 Barton v Commonwealth (1974) 131 CLR 477. 401 Winterton, above n 9, 113–14. 402 (2001) 183 ALR 1. 403 Ibid Beaumont and French JJ; Black CJ dissenting.

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entry of non-citizens into Australia was not abrogated by provisions of the Migration Act 1958 (Cth). French J (with whom Beaumont J agreed) required ‘a clear and unambiguous intention to deprive the executive of the power’404 and saw ‘no place then for any doctrine that a law made on a particular subject matter is presumed to displace or regulate the operation of the executive power in respect of that subject matter’.405 His Honour later observed: 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. In such a case close scrutiny will be required of any contention that a statute, without express words to that effect, has displaced the operation of the executive power by virtue of ‘covering the field’ of the subject matter.406

It follows from this, that although the same requirement of a clear intent is required for the abrogation or modification of all prerogative powers, the burden may not be so onerous in relation to the domestic prerogatives. The same position exists also in relation to abrogating or restricting the Crown’s powers to contract and to engage in business transactions.407 Where a prerogative power has been the subject of statutory abrogation, modification or regulation, what is the consequence if the relevant statutory provisions are later repealed?408 The general principle at common law is that the prerogative would be revived in its original common law form, freed from these statutory restrictions.409 However, that common law principle has been altered by Acts Interpretation legislation which provides that the repeal or amendment of an Act does not revive the pre-existing law.410 Consequently, it can be argued that where a prerogative has been abolished, it will not revive. Nevertheless, the position may be different where the prerogative has only been altered or regulated since the statutory ban on revival only applies to ‘anything not in force or existing’ at the time of the repeal. A prerogative which has only been altered or regulated, never ceased to exist. Consequently, repeal of its statutory alteration or regulation may restore the prerogative to its original form.411

404 Ibid 54. 405 Ibid 49. 406 Ibid 50. 407 See Ling v Commonwealth (1994) 51 FCR 88; 123 ALR 65 regarding legislative effect on the Crown’s power to take an assignment of a chose in action. The Court at 92 adopted the test of Street J in Booth v Williams (1909) 9 SR (NSW) 421 at 440: ‘it is presumed that the Legislature does not intend to deprive the Crown of any prerogative right or property unless it expresses its intention to do so in explicit terms or makes the inference irresistible.’ See also Oates v Attorney-General (Cth) (2003) 214 CLR 496 at [34] and [43]. Those authorities cited with implicit approval by French J in Ruddock v Vadarlis (2001) 183 ALR 1 at 49–50. 408 Attorney-General v De Keyser’s Royal Hotel [1920] AC 508. 409 Support for revival is seen in obiter comment of Lord Denning in Sabally and N’Jie v Attorney-General [1965] 1 QB 273, as well as obiter of Lord Atkinson in Attorney-General v De Keyser’s Royal Hotel [1920] AC 508. 410 Interpretation Act 1967 (NSW) s 28; Acts Interpretation Act 1954 (Qld) s 20(2)(a); Acts Interpretation Act 1915 (SA) s 17; Acts Interpretation Act 1931 (Tas) s 14; Interpretation of Legislation Act 1984 (Vic) s 14; Interpretation Act 1984 (WA) s 34; Legislation Act 2001 (ACT) s 86; Interpretation Act 1978 (NT) s 11. 411 Obiter dicta support for revival of a prerogative occurs in cases where restrictions on a prerogative have been removed, rather than where the prerogative was entirely abrogated: Attorney-General v De Keyser’s Royal Hotel [1920] AC 508 at 539–40 per Lord Atkinson, at 561 per Lord Sumner; Burmah Oil Co Ltd v Lord Advocate [1965] AC 75 at 148 per Lord Pearce. Cf Winterton, above n 9, 117.

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Whether a prerogative can be lost through desuetude is unclear. Professor Winterton argues it should be, especially if grossly anomalous and anachronistic to resurrect it.412 8.4.1.6 Division of prerogatives between the Commonwealth, the States and the territories Not only does the Commonwealth Constitution effect a division of legislative power between the Commonwealth and the States, it also effects a division of executive and judicial power.413 While the Constitution is fairly specific in relation to the legislative and judicial powers vested in the Commonwealth, little assistance is given in defining the ‘executive power of the Commonwealth’ in s 61. Some assistance is found in s 68 which appoints the Governor-General (as the Queen’s representative) as the commander-in-chief of the Commonwealth’s naval and military forces, and in s 114 which prohibits the States from raising or maintaining any naval or military force. Also, s 69 transferred the colonial departments of customs and excise at the establishment of the Commonwealth and provided for the subsequent transfer to the Commonwealth of the State departments concerned with posts, telegraphs and telephones, naval and military defence, lighthouses, lightships, beacons and buoys, and quarantine.414 As well, s 70 provides for the transfer of all powers and functions from State Governors to the Governor-General in respect of those matters transferred by the Constitution to the Executive Government of the Commonwealth – but does not define what those matters are. As a general rule, the division of executive power follows the division of legislative power where some powers are exclusive to the Commonwealth, some concurrent with the States, and others exclusive to the States. For instance, the High Court in Joseph v Colonial Treasurer (NSW)415 concluded that since the defence power was an exclusive Commonwealth power, it followed that the war prerogative was also exclusive to the Commonwealth. Accordingly, the New South Wales Government’s defence in an action brought against it for forcing purchasers to break their contracts with the plaintiff – on the ground, inter alia, that this was done in exercise of the royal war prerogative – was rejected.416 While it has been accepted since this case that the defence power in s 51(vi) is not entirely exclusive 412 Winterton, above n 9, 118, adopting the view of Lord Simon of Glaisdale in McKendrick v Sinclair [1972] SC (HL) 25 at 60–1 that a rule of the common law does not become extinct through disuse except when ‘grossly anomalous and anachronistic’. His Lordship continued: ‘a rule of the common law cannot become as dead as the dodo, it can at least go into a cataleptic trance like Brunnhilde or Rip Van Winkle or the Sleeping Beauty. In such a state the rule in question cannot, in my view, be revived at the mere call of any passing litigant, but only if its appropriate moment has come again to operate usefully and without gross anomaly.’ See also South Australia v Victoria (1911) 12 CLR 667 at 703 per Griffith CJ; Ruddock v Vadarlis (2001) 183 ALR 1 at 9–12 [19]–[29] per Black CJ in dissent. 413 While s 107 continues the powers of the State parliaments except those exclusively vested in the Commonwealth Parliament or withdrawn from the States, no comparable provision addresses continuation of the executive power of the States. This is covered though by s 106 which preserves the State Constitutions, subject to the Commonwealth Constitution. 414 Section 84 transferred all State officers to the Commonwealth Executive when their departments were transferred under s 69. 415 (1918) 25 CLR 32. 416 Cf Fajgenbaum and Hanks, above n 24, 65–6.

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to the Commonwealth, the war prerogative is still an exclusive Commonwealth executive power.417 In Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd,418 Evatt J built on the principle of Joseph’s case by classifying prerogatives into three categories419 to assist in identifying their distribution between the Commonwealth and the States. While his Honour agreed that the division of legislative power provides a guide to the first category, it was, in his view, incapable of applying to the disparate range of prerogatives. The three categories are: (1) executive prerogatives (essentially the external prerogatives) which are exclusive to the Commonwealth420 – here, the division of legislative power is the guide; (2) preferences, immunities and exceptions which are enjoyed by both the Commonwealth and the States; and (3) the proprietary prerogatives which are usually confined to the States because of their territory.421 In that case, the Court upheld the Companies Act 1899 (NSW) so far as it ranked equally in a company winding-up, ahead of all other unsecured creditors, any debts owed separately to the Crown in right of the Commonwealth and to the Crown in right of New South Wales. Both Crowns enjoyed this prerogative preference equally within category (2) above. Since the Commonwealth has the capacity within the scope of its legislative power422 to abrogate or qualify State prerogatives, it subsequently removed the States’ priority in a winding-up pursuant to its bankruptcy and insolvency power in s 51(xvii).423 The tripartite division of prerogatives suggested by Evatt J in Farley’s case remains the guide today.424 Essentially, the prerogatives denied the States are those which fall within the areas of exclusive Commonwealth authority or are otherwise beyond State power: the control of the armed forces; the conduct of international relations;425 fields of paramount Commonwealth law under s 109; and areas within exclusive426 Commonwealth powers. 417 Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 at 571–2 per Latham CJ, 596 per Williams J. 418 (1940) 63 CLR 278. 419 Ibid 320–2. These categories were originally developed in his 1924 doctoral thesis which was later published as Evatt, The Royal Prerogative, above n 28, 50. 420 (1940) 63 CLR 278 at 321 Evatt J suggested that s 70 of the Commonwealth Constitution is referring to these prerogatives. 421 Such as royal metals: Commonwealth v New South Wales (The Metals case) (1923) 33 CLR 1 at 15. 422 Subject to the principle from Melbourne Corporation v Commonwealth (1947) 74 CLR 31 as reinterpreted in Austin v Commonwealth (2003) 215 CLR 185 which prevents the Commonwealth from placing a particular burden on the operations of the State governments. 423 Upheld in Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372. 424 See, for example, Long Innes CJ in Attorney-General for New South Wales v Butterworths & Co (Aust) Ltd (1938) 38 SR (NSW) 195; Selway above n 39, 88–9. 425 Barwick CJ in the Seas and Submerged Lands Act case (1975) 135 CLR 337 at 373: ‘Whilst the power with respect to external affairs is not expressed to be a power exclusively vested in the Commonwealth it must necessarily of its nature be so as to international relations and affairs. Only the Commonwealth has international status. The colonies never were and the States are not international persons.’ 426 For example, Commonwealth acquired places and the seat of government (s 52); customs and excise duties (s 90).

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There is the potential, particularly in relation to the preferences, immunities and exceptions in category (2) above, for a concurrent exercise of Commonwealth and State executive power. While certain commentators427 argue that the Commonwealth’s concurrent executive power only arises when Commonwealth legislation on that subject matter is enacted, the better view is that this is an untenable restriction on Commonwealth executive power.428 What, then, if the concurrent exercise of executive power produces an inconsistency? How is this to be resolved? Section 109 probably does not apply for lack of inconsistent ‘laws’.429 In Farley’s case, both Crowns were ranked equally in their priority for repayment of their debts. Yet, conflicts could arise which must be resolved, such as inconsistent Commonwealth and State prescriptions on weights and measures.430 Dr Evatt in his thesis suggested asking: ‘whether in exercising the prerogative power an effective and coherent policy required the full power to be controlled by a single authority’.431

8.4.2 Power to engage in contracts and business enterprises As the equivalent of a corporate legal entity, each State and territory Crown possesses the same legal capacity as any adult individual.432 Accordingly, their governments may enter into binding contracts, make payments of money, form corporations, and engage in business enterprises. They can purchase and sell all forms of property both real and personal, construct buildings and other structures, as well as engage employees and consultants.433 This power is, of course, commensurate with the scope of their legislative and executive power. Despite an early decision of the Queensland Supreme Court434 which suggested that statutory authorisation was required for all such undertakings for which appropriation of public revenue was needed, the High Court in New South Wales v Bardolph435 clearly established that the Crown’s capacity in these matters is not dependent on prior parliamentary approval or appropriation. It is usually

427 W. Anstey Wynes, Legislative, Executive and Judicial Powers in Australia (5th edn, Sydney: Law Book Company, 1976) 387; H. E. Renfree, The Executive Power of the Commonwealth of Australia (Sydney: Legal Books, 1984) 431, doubted Commonwealth power without legislation. 428 See Commentary by Zines in Evatt, above n 28, Chapter 13. 429 Ibid Chapter 15; P. J. Hanks, Australian Constitutional Law (3rd edn, Sydney: Butterworths, 1985) 306–7. Cf P. Lane, The Australian Federal System (2nd edn, Sydney: Law Book Company, 1979) 866 who accepts that the common law in covered by ‘law’ in s 109. 430 Suggested by Zines’ Commentary in Evatt, above n 28, Chapters 13–14. 431 Ibid Chapter 14. 432 Cf the doubt raised in Selway, above n 39, 93, fn 54, citing the obiter comment of Rich J in AttorneyGeneral (Vic) v The Commonwealth (1935) 52 CLR 533 at 562. Also cited was the joint judgment in Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424 at 461 where the Court expressed the view that the contract which was alleged to have been formed between the Commonwealth and the plaintiff was one for which statutory authority was needed. The alleged contract which the Court rejected was one where the Commonwealth agreed to pay a subsidy to the plaintiff in respect of wool purchased at auction. This being a case ‘entirely unlike Bardolph’s Case’ (ie New South Wales v Bardolph (1934) 52 CLR 455). 433 Selway, above n 39, 93. 434 Australian Alliance Assurance Co Ltd v John Goodwyn, The Insurance Commissioner [1916] St R Qd 225, especially Lukin J at 258 and Shand J at 272. 435 (1934) 52 CLR 455.

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just an implied term of any contract that appropriation will be provided. In that case, the New South Wales Government was held to have validly contracted with Mr Bardolph for advertisements relating to the Government’s tourist bureau to appear in the Labor Weekly. Statutory authorisation was not required but parliamentary appropriation was an implied term. Still, the class of contracts for which statutory authorisation was not required seemed to be confined by various judgments. Dixon J (with whom Gavan Duffy CJ agreed) held: No statutory power to make a contract in the ordinary course of administering a recognised part of the government of the State appears to me to be necessary in order that, if made by the appropriate servant of the Crown, it should become the contract of the Crown, and, subject to the provision of funds to answer it, binding upon the Crown.436 (emphasis added)

There is considerable debate over the nature of and justification for this suggested restriction. The better view seems to be that it is untenable.437 Nonetheless, it is likely that each Crown’s capacity to contract or to engage in business enterprises is not completely unlimited. There is support at the Commonwealth level for the principle that executive capacity is confined to the scope of legislative power.438 In other words, the Commonwealth Executive can only engage in activities which could be the subject of valid Commonwealth legislation. Such a principle seems equally applicable at the State and territory level. This means that State and territory Crowns cannot engage in activities which fall within the field of exclusive Commonwealth power, infringe any Commonwealth restriction on their power (such as s 92), or which lack a territorial connection with their territory.439 Other restrictions on State and territory power may arise because of various Crown immunities or privileges.440 The Queensland Constitution purports to remove any doubt arising from Bardolph over the scope of the executive’s power to engage in commercial activities by expressly declaring that the Executive Government ‘may carry out commercial activities’ (s 53(1)) which are defined to include those commercial activities ‘not within the ordinary functions of the State’ (s 52 (a)). Ministers are specifically authorised to carry out these activities for the State and to delegate this power to other officials (ss 54 and 55). While these provisions overcome the suggested restriction in Bardolph, they do not overcome any restrictions derived from the Commonwealth Constitution.

436 Ibid 508. See also Rich J at 496 and Starke J at 503. 437 See Campbell, ‘Commonwealth Contracts’, above n 349; N. Seddon, Government Contracts: Federal, State and Local (2nd edn, Sydney: Federation Press, 1999) 59–60 [2.19]. 438 See, for example, Victoria v Commonwealth (AAP case) (1975) 134 CLR 338 at 362, 379, 398, 405–6; cf Davis v Commonwealth (1988) 166 CLR 79 at 93–4, 111. 439 See Seddon, above n 437 [2.17] fn 94 and [2.18]. 440 It has been suggested that the Crown cannot, except pursuant to statute, hold land jointly nor pledge or mortgage property: Selway, above n 39, 94.

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8.4.3 Powers delegated to the Executive by parliament The vast bulk of power vested in the State and Territory Executives is delegated by their respective legislatures. The proportion of executive power derived from the royal prerogative and the common law is minor compared with these widespread statutory powers. On account of the principle of responsible government, there are effectively no constitutional limits on the legislature’s capacity to delegate its power to the Executive.441 In the exercise of these delegated powers, the Executive remains politically responsible to the Assembly. Nonetheless, safeguards have developed to facilitate legislative scrutiny of delegated law-making and other executive action. Most delegated legislation created by the Executive must be gazetted and tabled in both Houses where it is subject to scrutiny and veto by either House.442 As well, judicial review exists to ensure that the Executive acts within the scope of its statutory powers.443 441 David Malcolm, ‘The Limitations, if Any, on the Powers of Parliament to Delegate the Power to Legislate’ (1992) 66 Australian Law Journal 247. 442 See, for example, Interpretation Act 1987 (NSW) s 41. 443 Aronson and Dyer, above n 388.

9 Republic

9.1 Introduction The republican debate of the mid-1990s focused almost entirely on the Commonwealth Constitution with little consideration given to the impact of a republic on the States. The sole national report, that of the Commonwealth’s Republic Advisory Committee, An Australian Republic, only briefly considered the States.1 Fortunately, certain States instigated their own reports, since an Australian republic cannot sensibly be debated without having regard to all the constituent elements of the federal system.2 If the Commonwealth alone became a republic following referendum approval under s 128 of the Commonwealth Constitution, where would that leave the six States? It cannot be assumed the States will simply fall into line and become republics as well. Nor that a Commonwealth republic has no constitutional impact on the States. The focus to date on the Commonwealth partly reflects a failure to appreciate that the States possess their own constitutional monarchies. It also reflects a failure to adequately address the issue, discussed earlier in Chapter 8, whether Australia is a heptarchy – a nation of seven monarchies, or only a single monarchy with seven emanations.3 The Commonwealth focus seems designed, misleadingly, 1 Report of the Republic Advisory Committee, An Australian Republic: The Options, Volume 1 – The Report (Canberra: Australian Government Publishing Service, 1993) only briefly considered the States in Chapter 8. The Committee’s main focus was on the options for a republic at the Commonwealth level. 2 See the Report of the Western Australian Constitutional Committee (January 1995); Report of the Tasmanian Advisory Committee on Constitutional/State Relations, ‘A Republican Australia? – Issues for Tasmanians’ (June 1995); the South Australian Constitutional Advisory Council First Report, ‘South Australia and Proposals for an Australian Republic’ (September 1996); Northern Territory Sessional Committee on Constitutional Development Discussion Paper No 7, ‘An Australian Republic? Implications for the Northern Territory’. 3 See Republic Advisory Committee Report, above n 1, Vol 1, 125. The respective Crowns in right of the ACT, the Northern Territory and Norfolk Island are part of the Commonwealth monarchy.

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to simplify the transition to a republic to enhance its electoral approval. And yet, as this chapter shows, such a transition to an Australian republic needs to embrace comprehensively both the Commonwealth and State constitutional systems. Two fundamental political principles need to be accepted in this republican debate: first, that the Commonwealth and all the States should convert to a republic at the same time; and second, that no State should be forced to convert without the approval of a majority of its electorate.4 The Bill submitted to the 1999 republic referendum ignored both of these principles. It only proposed a Commonwealth republic while leaving to the States the decision whether to sever their links with the Crown.5 Had the Bill been approved, as required by s 128, by a majority of the Australian electorate in a majority of States, the likely outcome would have been a Commonwealth republic with some States becoming republics and others remaining monarchies. While there is distinguished support for the legality of such a cocktail of constitutional systems, it is politically untenable. For that reason, it is doubtful whether the monarch would agree to remain as Queen of Australia under those circumstances.6 The second principle raises the issue whether the Commonwealth has the legislative capacity to force the States to become republics. Whether or not this is so, Commonwealth coercion of the States on this issue is repugnant to the true spirit of Australian federalism. It would divide the nation on an issue which arouses deep emotional concerns. So in order to achieve a republic, the appropriate strategy is to submit to the Australian electorate for its approval the necessary legislation to amend the Commonwealth and all State Constitutions. This will involve a referendum in each State in addition to the Commonwealth referendum. For the latter, the approval of a majority of the Australian electorate in a majority of the six States is required. Only when the necessary approvals are in place, should the transition to a republic occur simultaneously throughout Australia. While this approach makes a transformation to a republic more difficult to achieve, it recognises the importance of ensuring that all constituent elements of the federation agree with the most fundamental change to Australia’s constitutional system since 1901. It follows the tradition in the 1890s where each colonial electorate7 had to approve the Commonwealth Constitution Bill for that colony to join the federation. Such a fundamental change as transformation to a republic demands the same level of approval. 4 The second of these principles has received considerable support: for example, George Winterton, ‘The States and the Republic: A Constitutional Accord?’ (1995) 6 Public Law Review 107; ‘A Legal Opinion by Sir Harry Gibbs and the Legal Committee of Australians for Constitutional Monarchy in Response to the Republic Advisory Committee Report’, Appendix II in M. A. Stephenson and Clive Turner (eds), Australia – Republic or Monarchy? Legal and Constitutional Issues (St Lucia: University of Queensland Press, 1994) 298. 5 Clause 5 of Schedule 2 of the Constitution Alteration (Establishment of Republic) Bill 1999, following the recommendation of the Republic Advisory Committee Report, above n 1, Vol l, 125, and the recommendations of the 1998 Constitutional Convention which nevertheless recognised that it was desirable that the Commonwealth and all States become republics simultaneously (3.2.1 B2). The 1999 Gladstone Constitutional Convention also recommended that each State have the option to become a republic when they want to: see 1.1 of their Communiqu´e. 6 This would be her personal decision. 7 Admittedly a rather restricted franchise applied then.

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The position of the territories in this debate is even more obscure. Their constitutional destiny in this respect lies with the s 128 Commonwealth referendum proposal on which their electors would vote. The policy arguments for and against republicanism are well dealt with elsewhere.8 This chapter addresses the key constitutional issues which arise from the State perspective in relation to an Australian republic: what forms of republicanism are available to the States; what legal obstacles are placed in their way; whether one or more States can remain monarchical within a republican Commonwealth (and vice versa); and whether the Commonwealth can force the States to adopt a republican system.

9.2 A State republican model: formal head of Executive It is not intended here to outline all possible options for converting a State to a republican system of government.9 The focus instead is on the model most likely to secure majority approval of the people of a State which retains its Westminster system. This is also the model most likely to secure s 128 approval for a Commonwealth republic. Ideally, the two models should be similar, given the advantages of maintaining substantial consistency between the two systems of government. The other significant factor in fashioning the republican model is to accommodate the twin roles of the monarch and of her representatives: their constitutional and ceremonial roles. Both roles are inextricably linked. While the legal issues at stake primarily concern the constitutional role, they also influence the ceremonial role – the role more appreciated and understood by the Australian people. In working towards a State republican model, the first step is to identify which features of the current monarchical systems of the States will need to change in any conversion to a republic. The most crucial change is of course the deletion of all references to the Queen in the State Constitutions. This means that her roles and powers must be vested in another person or institution, or else be dispensed with. Her primary roles are as a constituent component of the parliament, in whose name assent is given to legislation, and as head of the executive branch, being the personification of the Crown in right of the State. The latter role encompasses the power to appoint and dismiss her representative, the Governor. As outlined in Chapter 8, the remaining powers of the monarch are vested in and exercised by the Governor.10 This means that a transformation to a republic can be achieved with relatively minimal change to the current State Constitutions. This is not to say that the changes are of minimal significance or easily achieved. But the compass within which changes need to be made is fairly confined to the role and powers of the 8 Of the numerous publications on this issue, a useful one is: Stephenson and Turner, above n 4. 9 For example, the United States presidential model. 10 Australia Acts 1986 s 7.

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Queen and of her representatives. Those changes involve no substantive alteration to the principles of responsible and representative government. Specifically, several practical constitutional issues emerge: ● is there a need for an equivalent to a Governor to perform the current constitutional and ceremonial roles? ● if so, how should that person be appointed and dismissed, and with what powers should they be vested? or, ● if not, which powers need to be transferred and to whom? The proposed changes to the Commonwealth Constitution which were defeated at the 1999 referendum addressed these issues at the Commonwealth level. Essentially, it was proposed to transfer the functions and powers of the GovernorGeneral to a President of the Commonwealth of Australia. The President also assumed the two key functions of the Queen as a constituent component of parliament and as head of State. The power to appoint the President was vested in the parliament. This involved a joint sitting of both Houses to approve by a two-thirds majority, the single nomination of the Prime Minister, seconded by the Leader of the Opposition. The profound weakness in the 1999 Bill was that the power to remove the President was vested in the Prime Minister alone who could act on any ground. These proposals inform the debate at the State level. More prominent, though, is the first issue referred to above: is it really necessary for a State to retain an office equivalent to the State Governor as the formal head of Executive? Since the Commonwealth of Australia is recognised as the nation state according to international law for ceremonial and diplomatic purposes, a head of state is clearly required at that level.11 The States, on the other hand, not being individual nation states, can dispense with a formal head of Executive.12 A model for this is provided in the ACT where there is no formal head of Executive. The issue involves assessing whether the twin constitutional and ceremonial roles of a State Governor need to be maintained, and if so, who best to do that. One option is for the constitutional role to be performed by the Chief Justice, while the ceremonial role would be assumed by local politicians or other officials. Clearly, opinions will differ on the necessity to retain each of these roles and the benefit each provides the community in terms of political and social stability. The ceremonial role calls for someone who commands general public respect as the people’s representative, and who is politically neutral. While the GovernorGeneral represents ‘the Australian nation to the people of Australia’,13 the State Governor represents the State to the people of that State. The constitutional role of a State Governor is substantially similar to that of the Governor-General. The range of powers vested in the Governor are detailed in Chapter 8. While

11 See Republic Advisory Committee Report, above n 1, Vol 1, 47–51. 12 The expression ‘head of State’ is best confined to individual nation States and ought to be avoided in relation to States and territories. 13 Ninian Stephen, ‘Depicting a Nation to Its People’, Weekend Australian, 7–8 January 1989, 12.

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they are exercised only by convention on the advice of the ministry, exceptional circumstances may justify the exercise of certain powers without or contrary to that advice. It is generally accepted that this reserve power of a State Governor is likely to arise only in relation to the following situations: ● the appointment of a Premier, particularly when only a minority government can be formed; ● the dismissal of a Premier for illegal conduct, loss of support in the lower House, or parliamentary denial of funds for the continued functioning of the Government; and ● the granting of an early general election by dissolving the lower House. Since an exercise of reserve power occurs rarely,14 exceptional circumstances are required to justify its exercise. The Governor’s role as a constitutional guardian includes, in addition to these reserve powers, the right to be consulted, to encourage, and to warn their ministers (Bagehot’s three rights).15 A distinctive feature of the vice-regal role in Australia is that Governors or Governors-General are part of a tripartite relationship with the Queen and the Premier or Prime Minister. While the Queen possesses no reserve power herself, she acts as an intermediary between the other two offices, and is entitled to be consulted, to encourage, and to warn each of them. The case in favour of having a republican head of executive government at the State level is significantly stronger if that office is intended to perform some guardianship role of the constitutional system. It has been suggested that this role is required by the very nature of the Westminster system of responsible government.16 Such a role would entail powers and responsibilities similar to those currently vested in the State Governors. The conventions regulating their exercise and the circumstances in which an exercise of reserve power is justified may be expressly incorporated in a republican Constitution without denying the formal head of the Executive an important constitutional role. This approach was recommended by the 1999 Gladstone Constitutional Convention.17 Dispensing with a formal head of the Executive at the State level requires the elimination of the constitutional role by substituting detailed rules, justiciable before the courts or a special constitutional court, to resolve all future constitutional problems. Professor Winterton18 advocates this approach, relying on its adoption by the States of Germany. Whether detailed constitutional rules can adequately resolve all future constitutional crises seems doubtful. Their weakness is in the impossibility of prescribing rules which will cover every possible situation 14 See recent case studies from Queensland (1987) and Tasmania (1989) in B. Galligan, ‘Australia’ in D. Butler and D. A. Lowe (eds), Sovereigns and Surrogates: Constitutional Heads of State in the Commonwealth (London: Macmillan, 1991) 85–97. 15 Walter Bagehot, The English Constitution (1963 reprint by Collins – Fontana Library) 111. 16 See Peter W. Hogg, Constitutional Law of Canada (4th edn, Toronto: Carswell Company, 1997) 263: ‘A system of responsible government cannot work without a formal Head of State who is possessed of certain reserve powers’‘. 17 Communiqu´ e 2.1 and 2.2. 18 George Winterton, Monarchy to Republic (Melbourne: Oxford University Press, 1986) 106–7.

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and the delay which any judicial determination of those rules may inflict on the resolution of the crisis. Such delay may be inimical to political stability when swift action is required to prevent further undermining of the political system by unconstitutional conduct. An alternative to detailed rules is to vest the ultimate guardianship of the constitutional system of a State in an existing public official, such as the presiding officer of either House,19 the Chief Justice, or even the President of a republican Commonwealth. None of these office-holders could perform the constitutional role as well as act as formal head of the Executive. Presiding officers are political appointees and therefore lack the necessary neutrality, while the independence of the judiciary may be compromised if this role is given to the Chief Justice. The President may well suffer an actual or apparent conflict of interest if acting as head of state for the Commonwealth as well as for the States. There are models of republican federal systems with and without formal heads of the Executive at the State level.20 In India, the States have a Governor to perform both constitutional and ceremonial roles. Then again, the federal States of Austria21 and of Germany22 essentially leave those roles to the chief minister of each State, the Landeshauptmann in Austria and the Ministerpr¨ asident or Regierenden B¨ urgenmeister in Germany. The importance and demands of the ceremonial role of a State Governor should not be underestimated. The State Governor performs a significant role within the community by providing support for an enormous range of projects designed for the public benefit. The political neutrality of the position confers on the office considerable respect and influence, and provides a unifying force for the State. Those benefits for the State which derive from the position of Governor would probably be lost if the position were disbanded and its ceremonial functions transferred to politicians or other public officials. They simply do not have the time to perform such a role, nor could they perform it nearly as well. Therefore it is suggested that the States should maintain a formal head of Executive to perform the twin constitutional and ceremonial roles of the current State Governors. The disbursement of those roles to other officials or their abandonment would create more problems than this would solve. This was also the view of the Gladstone Constitutional Convention in 1999 which recommended a republican Governor to act as: a unifying symbol of the State who: • Has a constitutional role in the State • Performs ceremonial and community functions and activities • Acts as a representative of the State • Is and is perceived to be above party politics.23 19 Ibid. In Sweden, the Speaker performs this role. 20 Not a presidential system with an executive head of State as in the United States. 21 See the case study by B. Raschauer, ‘Austria’ in the Republic Advisory Committee Report, above n 1, Vol 2, 21, 46. 22 See the case study by K. Von Beyne, ‘Germany’ in the Republic Advisory Committee Report, ibid, 53, 68. 23 Communiqu´ e 2.1.

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This acknowledges that a ‘head of Executive’ within a State performs a similar role to that performed by the head of state of the Commonwealth – although without the added dimension of representing the polity at the international level. As the personification of the State as a whole, they act on behalf of all the people of the State in expressing a view, in conferring a benefit, or accepting a responsibility. If a formal head of Executive ought to be retained by the States in any transformation to a republic, issues similar to those which have been considered at the Commonwealth level arise: ● What title is to be given to the formal head of Executive? ● How is the appointment made? ● What are the grounds and procedure for removal from office? ● What should be the powers and functions of the office?

9.2.1 Title The title must reflect the importance of the position as the formal head of the Executive. The current title of ‘Governor’ is an option,24 given that it is the designation used in the republican States of the United States and in the States of the Republic of India. Another option is ‘Administrator’ which was used in the provinces of South Africa. Within Australia, it is currently used in the selfgoverning territories of the Northern Territory and Norfolk Island, and in the Australian States to describe the person who assumes the powers of a State Governor when the office is vacant or the incumbent is unable to perform the duties of office. If the office is to assume both constitutional and ceremonial roles, the preferable title would be ‘Governor’. Apart from involving fewer constitutional amendments, such a title reflects the importance of the office, is used in other federal republics, and assists in maintaining continuity with the conventions and traditions of a State Governor. Those conventions and traditions include: acting only on the advice of the ministry, except in exercise of reserve power; political neutrality; guardianship of the constitutional system; and acting as the representative of the people of the State. Also, it is the oldest title of public office in Australia and it would be unfortunate not to preserve it as part of the historical evolution of Australia.

9.2.2 Appointment The process of appointment of a formal head of the Executive at the State level may be guided by the republican constitutional arrangements adopted at the Commonwealth level. It seems desirable to adopt similar arrangements at the State level to maintain consistency within the Australian constitutional system – if only to reduce public confusion over the nature of the constitutional 24 Recommended by the South Australian Constitutional Advisory Council First Report, above n 2, Recommendation 20.

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system at both levels. Moreover, it allows the States and the Commonwealth to draw on each other’s constitutional experience in the development of appropriate conventions and customs. It may also facilitate cooperative federalism. In deciding on the appointment process at the State level, a distinction should be drawn between the process by which an individual is selected and the process of formal appointment. The former is more critical, the latter more symbolic. The principal options for selecting a head of Executive are: (1) by the Premier (the current position in practice); (2) by the State parliament; (3) by a form of electoral college; or (4) by the people. One option unlikely to have much support is for the selection to be made by the President of the Commonwealth (if there is one) on the advice of the federal government. This is the position in both Canada25 and India26 where the Provincial and State Governors are appointed by the Governor-General and President respectively on the advice of the federal government. It is also the situation in the self-governing territory of Norfolk Island.27 It would be clearly unacceptable to the Australian States that their respective heads of Executive be chosen by the Commonwealth. The process of selection must eliminate or minimise as far as possible any politicisation of the office to ensure its neutrality. It must avoid a situation arising where the head of Executive believes they have a mandate from the people to act as a rival to the elected government; and it must not discourage eminently qualified Australians from accepting nomination. These requirements seem to rule out option (1) by the Premier, and option (4) by the people.28 Selection by the Premier alone is inappropriate, given the need for the incumbent to remain politically neutral; although not inappropriate if made with the agreement of the Leader of the Opposition.29 Direct election by the people is also inappropriate as this would tend both to undermine the impartiality of the incumbent and to mislead the electorate into thinking that the incumbent has a more democratic mandate than the Premier who is selected by the Assembly, not the people. The push for an office directly elected by the people stems from a misconception about the nature of the office. The office is to serve the people on the advice of those elected members who have the confidence of the Assembly. To provide for a directly elected head of Executive would jeopardise the relationship of trust required between the head of Executive and the elected representatives. If the people insist on an elected office, this will result in an office which is subtly but 25 In Canada, the formal head of Executive in each province is the Lieutenant-Governor who is appointed by the Governor-General in Council on the advice of the Prime Minister, not the Premier of the province: Constitution Act 1867, s 58. 26 In India, the President of India appoints the State Governors on the advice of the Indian Government: Art 155 Constitution of India. Consequently, certain State Governors have been accused of being puppets of the Federal Government: A. G. Noorani, ‘India’, Republic Advisory Committee Report, above n 1, Vol 2, 91–2. 27 Cf the Administrator of the Northern Territory who is formally appointed by the Governor-General on Commonwealth advice, which usually follows advice from the Territory’s Chief Minister. 28 Winterton, Monarchy to Republic, above n 18, 108. 29 This was recommended by the 1999 Gladstone Constitutional Convention Communiqu´ e 2.3.

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significantly different. Since the consequences of that change are hard to predict, great caution is required if the option of direct election is to be embraced. Since option (3), an electoral college, would add unnecessary complexity to the process, this leaves the parliamentary process as the most appropriate mechanism for appointment. It complements and improves on the present constitutional system. The selection process would begin with an invitation to the people of Australia to nominate distinguished Australians for appointment. An independent committee would then compile a short list of nominees for consideration by the Premier, the Leader of the Opposition and the leaders of the other minority parties. A bipartisan recommendation would then be put to a joint sitting of the State parliament for ratification by at least a two-thirds majority.30 This proposal resembles that of the 1999 Commonwealth referendum for the appointment of a President of the Commonwealth.31 Its key feature is that the appointment is bipartisan. Eligibility for appointment should exclude nominees who have held elected office in Australia for a prescribed period, say five years. This period must be sufficient to reduce the danger of the nomination of a prominent politician who may be unable to bring to the position the neutrality it requires. As a temporary disqualification on politicians, it still accommodates suitable nominees whose former political involvement may have been followed by a successful career outside politics. It also allows those with extensive political experience to distance themselves from the current political scene to enable them to assume an apolitical role. Once State parliament has approved the new incumbent, the formal appointment could be made by parliament itself, Cabinet, or even the President of the Commonwealth republic, acting on the advice of the Premier. Certain advantages flow from this last option which closely resembles the current position where State Governors are appointed by the Queen on the advice of the Premier. Formal appointment by the President of the Commonwealth on the advice of the Premier would maintain a tripartite relationship as a constitutional safeguard, although possibly one not as effective as that currently in place. It also reflects the federal compact by providing a formal constitutional link between all six heads of State Executives and the President. In so doing, it supports the right of State Executives to be consulted over the appointment of the President which would stamp the presidency as a truly federal office.32 It would also facilitate consistency in ceremonial custom, in much the same way as occurs through Buckingham Palace, and it would assist the continued appointment of a formal head of the State Executive as the administrator of the Commonwealth when the President was absent from office.33 From the States’ perspective, the main drawback of the appointment being formally made by the President is the precedence this accords the President over the

30 In a unicameral parliament, the majority might need to be higher than two-thirds. 31 Republic Advisory Committee Report, above n 1, Vol l, 66–9. 32 Ibid 73–4. 33 This option has aroused considerable State antagonism: see Anne Twomey, ‘A Federal Process: Options for the Presidential Selection Involving the People, the States and the Commonwealth’ (2001) 3 The University of Notre Dame Australia Law Review 113, 121–2.

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heads of State Executives. This is currently not the case with the Governor-General and the State Governors, who each have equal status.34 Yet the advantages of this proposal seem to outweigh this loss of precedence. Also, surely it is reasonable to expect that the President of the Commonwealth – as the actual head of State of Australia – should have precedence over the heads of State Executives? Such recognition of the national status of the Commonwealth presidency reflects the international status of the Commonwealth as a nation State. The only appropriate alternative to the President of the Commonwealth making the formal appointment would be State parliament itself.

9.2.3 Removal The procedure for removal of the head of Executive is a sensitive issue. Currently, Governors are liable to be removed by the Queen on the advice of the Premier on any ground. This enables the Queen to have a moderating influence on any rash decision by a Premier.35 To empower a Premier unilaterally to remove the head of Executive for any reason, undermines the capacity of that office to act as a guardian of the constitutional system.36 A nasty conflict can be imagined where the Governor and the Premier purport to dismiss each other simultaneously.37 A more prudent course is to vest in the State parliament at a joint sitting by a twothirds majority, the ultimate power to dismiss on one or more prescribed grounds. The parliament would only act following a finding by an independent advisory body that a ground of dismissal has been established. The grounds justifying dismissal might be expressed in general terms, such as conduct which renders the incumbent unfit for office, conduct amounting to proved misbehaviour or incapacity,38 or conduct which undermines public confidence in the office or brings it into disrepute. Or the grounds for removal might be more specifically defined to be less susceptible to political manipulation, such as conduct which constitutes a serious crime, abuse of office or breach of the Constitution.

9.2.4 Powers and functions Transformation to a republic requires a careful review of the powers currently vested in a State Governor. While the scope and nature of the Governor’s powers were outlined in Chapter 8, the following summary is useful here: 34 Winterton, above n 4, 113. 35 Cf Constitution of Queensland 2001, s 32 which requires the removal of the State Governor to be by instrument under the Royal Sign Manual on publication in the Gazette. 36 This was the position under the Constitution Alteration (Establishment of Republic) Bill 1999 cl 62 which appeared to contribute to the failure of the referendum. 37 Sir John Kerr feared such a conflict occurring in 1975: John Kerr, Matters for Judgment: An Autobiography (Melbourne: Macmillan, 1978) 331–2. 38 The current grounds for removal of federal justices under s 72 of the Commonwealth Constitution and for removal of State judges: see Queensland Parliament, ‘First Report of the Parliamentary Judges Commission of Inquiry, 1989’; ‘Ruling on Meaning of “Misbehaviour” by the Parliamentary Commission of Inquiry into The Hon. Mr Justice Murphy’ (1986) Australian Bar Review 203.

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grant royal assent to Bills either in the name of the Queen or in the name of the Governor; summon and prorogue parliament and dissolve the Assembly; recommend to parliament the passage of appropriation and taxation Bills; appoint and dismiss ministers; attend and preside over meetings of the Executive Council; remove and suspend public officials; remove judges on an address from parliament; grant pardons; and issue writs for Senate elections (Commonwealth Constitution s 12), and appoint a temporary replacement senator where the position of a senator becomes vacant at a time when the State parliament is not sitting (Commonwealth Constitution s 15).

Key issues in any republican transition include the following considerations: ● is it necessary to require ‘assent’ to Bills before they become law? ● should the formal head of Executive’s powers be expressly exercised only on the advice of the Premier or appropriate minister? ● if the formal head of Executive is to retain ‘reserve power’, should this power be statutorily defined and regulated? and ● should the powers of the formal head of Executive and their exercise be justiciable before the courts? Since transition to a republic necessitates careful consideration of these issues, it provides a valuable opportunity to reconsider the executive branch. Possible changes include: dispensing with the distinction between vesting powers in the Governor and the Governor-in-Council; confining the vesting of general statutory powers in ministers; reconsidering the need for an Executive Council; and deciding whether the Westminster conventions – including those governing the exercise of reserve power – should be expressly included in the Constitution, if only to ensure that they are not lost along with the abolition of the monarchy. These would include the fundamental conventions that the formal head of Executive acts on the advice of ministers who hold office only so long as they have the confidence of the Assembly. Similar provision needs to be made at the State level, especially if the formal head of Executive is to be popularly elected. Most critical is the extent to which the head of Executive should retain reserve power. Several options arise here: ● merely provide for the continuation of the reserve powers subject to its conventions (status quo); ● define the reserve powers and subject them to the accepted conventions; ● define both the reserve powers and the conventions which regulate their exercise; and ● convert the reserve powers into statutory powers with minimal or no discretion.

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The last option reflects the view of Professor Winterton, who argues that a Commonwealth President should possess only one reserve power – the power to select the Prime Minister.39 The other reserve powers relating to the dismissal of the Prime Minister and the dissolution of parliament should be replaced with detailed rules to remove the need for the Governor-General to exercise any discretion. While this approach alleviates various concerns over a directly elected head of Executive, it creates dilemmas of its own. If reserve power is retained, consideration should be given to Sir Gerard Brennan’s suggestion to establish a Constitutional Council comprised of both Commonwealth and State former heads of State and chief justices to certify whether an exercise of reserve power is justified.40 Provision also needs to be made for the continuation of each State’s executive power to ensure that the royal prerogative powers are not lost by the abolition of the monarchy. Such a provision would be similar to this clause included in the 1999 Commonwealth Republic Referendum Bill: All powers and functions that were vested under this section in the Governor-General, or in the Governor-General in Council, immediately before the office of Governor-General ceased to exist shall vest in the President, or in the President in Council, as the case requires.41

The matters so far considered deal with the transfer of the functions and powers of the Queen and of her representative to a republican Governor. There is of course a multitude of other changes which follow from this transfer of authority. For instance, the Letters Patent relating to the office of Governor in South Australia, Tasmania, Victoria and Western Australia will need to be terminated. The determination of many of these issues could be facilitated by following as far as possible their resolution at the Commonwealth level. Consistency between the constitutional systems of the States and the Commonwealth should be the objective, at least so far as this is appropriate and conducive for stable and good government.

9.2.5 Entrenchment If a republic is achieved at the State level with referendum approval, conversion back to a monarchy would be unthinkable; but unless entrenched, it would be legally possible. Currently, the monarchical system is entrenched by referendum, at least in Queensland and Western Australia. But this is only because their Constitution Acts entrench the Queen as a constituent component of parliament, thereby attracting the binding force of s 6 of the Australia Acts 1986 which is 39 Winterton, above n 18, 119. 40 Gerard Brennan, One Hundred Years On: Strengths and Strains in the Constitution, delivered as the Fourth Geoffrey Sawer Lecture, published as ‘Law and Policy Paper 18’, Centre for International and Public Law and Federation Press, September 2001. 41 Constitution Alteration (Establishment of Republic) Bill 1999 cl 31.

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confined to matters ‘respecting the constitution, powers and procedure of the Parliament’. Since provisions relating to the Executive fall outside that characterisation, they are not easily entrenched. This poses a difficulty for entrenching a republican executive. One way is to follow the current position by including the republican ‘Governor’ as a component of parliament and then entrench this by requiring any change to the composition of parliament to be approved at a referendum. If, however, a republican Governor is not adopted at all in a State republic, the effectiveness of any restriction on the reintroduction of a monarchy would be doubtful unless reliance could be placed on one of the other doubtful grounds for binding manner and form (see Chapter 6). These difficulties indicate that the most reliable basis for entrenching the States as republics is to amend the Commonwealth Constitution pursuant to s 128 to require that the Commonwealth and all State and territory constitutional systems (current and future) be republics and to prohibit the reintroduction of any monarchy.

9.3 Legal obstacles to State republicanism The legal obstacles to the enactment of State legislation to convert a State to a republic remain to be considered. Surprisingly, the Commonwealth Constitution seems to pose little difficulty here. While it vests certain functions in the State Governor,42 there is no express requirement for a State Governor as such. Indeed, provision is made in s 110 for those functions to be performed by ‘the Governor for the time being of the State or other chief executive officer or administrator of the government of the State’ (emphasis added). Nor can reliance be placed on the preamble to the Commonwealth of Australia Constitution Act 1900 (Imp) which cites the formation of the Commonwealth under the Crown: Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland. (emphasis added)

A preamble is not prescriptive.43 Accordingly, there seems to be little basis for arguing that the States are prevented by the Commonwealth Constitution from removing the monarchy so long as the Sovereign remains head of state of the Commonwealth.44 Nonetheless, there are two other potential legal obstacles to the elimination by the States of their monarchies: ● s 7(1) of the Australia Acts 1986; and ● entrenched ‘manner and form’ provisions in several State Constitutions.45 42 See ss 7, 12, 15, 21, 84. 43 Winterton, above n 4, 116. 44 See the Advice of the Acting Solicitor-General Denis Rose in Appendix 8 to the Report of the Republic Advisory Committee, above n 1, Vol 2, 306 (para 42). See also Winterton, above n 18, 1–15. 45 Constitution Act 1902 (NSW) ss 7A and 7B; Constitution Act 1867 (Qld) s 53; Constitution Act 1934 (SA) ss 8 and 10a; Constitution Act 1975 (Vic) s 18; and Constitution Act 1889 (WA) s 73.

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9.3.1 Section 7 Australia Acts 1986 Section 7(1) of the Australia Acts 1986 provides: ‘Her Majesty’s representative in each State shall be the Governor’. Does 7(1) prescribe a monarchical system for each State or does it simply assume a monarchy by defining the relationship between the Queen and a State Governor for so long as the States maintain such a system? It is certainly arguable that s 7(1) implicitly prescribes a monarchical system for the States, since the provision is based on the premise that the Queen possesses certain powers and functions in respect of the States.46 If this is so, then s 7 needs to be repealed or amended before the States can adopt a republican system.47 The opposing viewpoint, advocated by Professor Winterton, that s 7 assumes a monarchy but does not prescribe one, is equally arguable.48 This interpretation relies on the primary purpose of the Australia Acts which was to sever the remaining constitutional links between the States and the United Kingdom by confirming in s 2(2) the plenary nature of State legislative power, subject only to those restrictions which are expressly retained. Section 2(2) provides that the powers of each State parliament include ‘all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State . . .’ Given the breadth of this power, the States are empowered to alter their constitutional systems in whatever way they deem fit – subject to the Commonwealth Constitution and the restrictions in ss 2, 5 and 6. Section 7, together with ss 8 and 9, deal with the relationship with the Crown and ought not to be interpreted as impliedly limiting the plenary legislative power in s 2(2). Even if this be the preferred view, the prudent course is to repeal or amend s 7 to avoid any doubt.49 There are two mechanisms for repealing s 7 available under s 15 of the Australia Acts 1986, both of which require legislation of the Commonwealth Parliament. The first, pursuant to s 15(1), is by an Act of the Commonwealth Parliament passed at the request of or with the concurrence of all State parliaments. If one State parliament refuses to agree to the proposed amendment, then only the second method pursuant to s 15(3) is available. This requires an amendment to the Commonwealth Constitution pursuant to s 128 conferring on the Commonwealth Parliament the power to make the necessary amendment to, or repeal of, the Australia Acts 1986.50 In 1999, the first of these methods was instigated by each State parliament enacting legislation to request the Commonwealth to amend s 7 by adding two new subsections (6) and (7): 46 Stephen Gageler and Mark Leeming, ‘An Australian Republic: Is a Referendum Enough?’ (1996) 7 Public Law Review 143, 153. 47 Amended to allow for the States to adopt a monarchy if they wish to. 48 George Winterton, ‘An Australian Republic’ (1988) University of Melbourne Law Review 467, 479; ‘The Constitutional Position of Australian State Governors’ in H. P. Lee and George Winterton (eds), Australian Constitutional Perspectives (Sydney: Law Book Company, 1992) 77; ‘The States and the Republic’, above n 4, 121. 49 Recommended by the Republic Advisory Committee Report. above n 1, Vol 1, 127; and George Williams, ‘The Australian States and an Australian Republic’ (1996) 70 Australian Law Journal 890, 894. 50 Cf Winterton, above n 4, 121 who notes that the New South Wales Government has submitted that s 15(3) cannot be used to amend the Australia Acts 1986.

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(6) The Parliament of a State may make a law providing that the preceding subsections do not apply to the State. (7) Upon the coming into effect in a State of a law referred to in subsection (6), this section ceases to apply to the State as provided by that law.51

As to the second way to amend the Australia Acts, an argument has been raised52 that an amendment by way of s 128 empowering the Commonwealth Parliament to amend or repeal s 7 of the Australia Acts 1986 to remove the Queen from the constitutional systems of the States requires, by virtue of the penultimate paragraph of s 128, the approval of the electors of each State: No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law. (emphasis added)

The argument relies on the italicised words. However, it seems clear that those words refer to the provisions of the Commonwealth Constitution relating to the limits of the State and its representation in the parliament, namely, ss 111, 123 and 124, not to those provisions which relate to the State Constitutions.53 Accordingly, the Commonwealth may be empowered to remove the paramount effect of s 7 of the Australia Acts 1986 if this is approved by a national referendum in four of the six States. Whether the Commonwealth can use s 128 to directly alter the constitutional system in a State is considered below.

9.3.2 Entrenchment of a monarchical system Except for Tasmania, all State Constitutions contain manner and form provisions for the enactment of laws amending or repealing provisions which either expressly prescribe the monarchical system for that State or assume such a system exists. In each case, a referendum is prescribed. Direct entrenchment of the monarchical system by way of a referendum requirement is effected by the Queensland and Western Australian Constitutions. Each Constitution Act entrenches those provisions which: define the parliament as including the Queen;54 vest the legislative power of the State in the Queen 51 See, for example, Australia Acts (Request) Act 1999 (NSW), Sch 1. 52 This was a submission from Australians for Constitutional Monarchy to the Republic Advisory Committee, above n 1, Vol l, 130–1. See also K. R. Handley, ‘Some Legal Aspects of Republicanism’, paper presented at the Australasian Law Teachers’ Association 49th Annual Conference, University of Tasmania Law School, Hobart, 29 September – 2 October 1994, 15–16. 53 Report of the Republic Advisory Committee, above n 1, Vol l, 130, relying on John Quick and Robert R. Garran, The Annotated Constitution of the Australian Commonwealth (Sydney: Angus and Robertson, 1901) 991; cf Geoffrey Sawer, ‘Some Legal Assumptions of Constitutional Change’ (1957) 4 University of Western Australia Annual Law Review 1, 4–5. 54 Constitution Act 1867 (Qld) s 2A(1), Constitution of Queensland 2001 (Qld) s 6; Constitution Act 1889 (WA) s 2(2).

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with the advice and consent of the Legislative Assembly in Queensland55 or with the advice and consent of both Houses in Western Australia;56 and require royal assent to be given to Bills passed by the parliament in order to become law.57 Since any repeal or amendment of those provisions relates to the constitution, powers or procedure of the parliament, they are effectively entrenched by s 6 of the Australia Acts 1986 unless their repeal or amendment is approved by a State referendum.58 Additionally in Western Australia, the Bill must pass both the second and third readings in each House by an absolute majority.59 Both Constitutions60 also purport to entrench the office of Governor but these attempts may not be effective as any Bill which affects the relevant provisions may not satisfy the characterisation test under s 6 of the Australia Acts.61 The Victorian Constitution also directly entrenches the monarchical system but relies more on a special majority requirement for the passage of legislation. For instance, any alteration to the Crown and to the composition of parliament, which is defined in s 15 as the Queen, the Legislative Council and the Legislative Assembly, must be passed by a three-fifths majority at the third reading in each House.62 In addition, since 2003, a referendum is now required before presenting to the Governor for ‘Her Majesty’s assent’ any Bill which amends or repeals a range of provisions (ss 26–41) concerned with both Houses.63 Since s 18(1B) effectively entrenches this requirement by a referendum requirement, it is strongly arguable that a Bill to abolish the monarchy in Victoria requires referendum approval. The Constitutions of New South Wales and South Australia do not directly entrench their monarchical systems. However, both Constitutions require Bills repealing or amending certain provisions (not concerned with the monarchy) to be approved by a referendum before they can be presented to the Governor for ‘Her Majesty’s assent’.64 These provisions are clearly based on the maintenance of a monarchical system in those States. Since a Bill to abolish the monarchy would indirectly amend those manner and form requirements involving the Governor and royal assent, so satisfying the characterisation test of s 6 of the Australia Acts 1986, such a Bill would need to comply with the referendum requirement.65 Importantly, all of the manner and form provisions in the five State Constitutions considered so far are doubly entrenched and so incapable of simple repeal 55 Constitution Act 1867 (Qld) s 2, Constitution of Queensland 2001 (Qld) s 8. 56 Constitution Act 1889 (WA) s 2(1). 57 Constitution Act 1867 (Qld) s 2A(2), Constitution of Queensland 2001 (Qld) s 6; Constitution Act 1889 (WA) s 2(3). 58 Constitution Act 1867 (Qld) s 53(1); Constitution Act 1889 (WA) s 73. 59 Constitution Act 1889 (WA) s 73(2)(f). 60 Constitution Act 1867 (Qld) ss 11A and 53(1), Constitution of Queensland 2001 (Qld) s 29; Constitution Act 1889 (WA) ss 50 and 73 (2). 61 The three doubtful alternative grounds to s 6 could entrench the office of Governor: the principle of The Bribery Commissioner v Ranasinghe [1965] AC 172; Trethowan’s reconstituted legislature; and s 106 of the Commonwealth Constitution. 62 Constitution Act 1975 (Vic) s 18(1A) and (2). 63 Constitution Act 1975 (Vic) s 18(1B). 64 Constitution Act 1902 (NSW) ss 7A and 7B; Constitution Act 1934 (SA) ss 8 and 10A(2)(d). South Australia also requires that alterations to the constitution of both of its Houses be approved by an absolute majority in each House at the second and third readings (s 8). 65 Cf Winterton, above n 4, 121, fn 72 queries this view on the ground that these provisions presume a monarchy but do not prescribe one.

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by ordinary legislation of the State parliament. Any law purporting to repeal or amend these manner and form provisions must itself comply with their requirements.66 This, however, is not the position in Tasmania where – although there is a purported indirect entrenchment of the role of the Governor in s 41A by requiring a two-thirds majority of the House of Assembly to amend s 23 which refers to the Governor’s power to dissolve the Assembly – s 41A is not doubly entrenched. Thus both ss 23 and 41A can be repealed or amended by ordinary legislation. Although the above survey indicates separate referendum approval is constitutionally mandated in each State (except Tasmania) for transformation to a State republic, it is well accepted politically that no State should convert to a republic without the approval of their electorate – irrespective of what the constitutional requirements may be. This means that if a State refuses to transform itself into a republic, two consequential issues arise: first, can a State remain monarchical within a Commonwealth republic; and second, can the Commonwealth override a recalcitrant State to impose a republican system. These issues are considered next in turn. Subject to the need to amend s 7 of the Australia Acts 1986, the States are sufficiently empowered to convert themselves to a republic by an exercise of their own legislative power. Prior to the enactment of the Australia Acts 1986, the States were regarded as lacking the legislative capacity to eliminate the requirement of royal assent for the enactment of law.67 This view was based first on the States’ incapacity to legislate repugnantly to imperial legislation which assumed the monarchical system in the States.68 Second, it was thought that the power given by s 5 of the Colonial Laws Validity Act 1865 (Imp) (CLVA) to ‘every representative legislature . . . [namely] . . . full power to make laws respecting the constitution, powers, and procedure of such legislature’, did not include the power to alter the constitution of the legislature by eliminating the Crown. Although this power enabled a bicameral legislature to convert to a unicameral legislature,69 the Crown was viewed as an indispensable component of the legislature. Since the CLVA and the doctrine of repugnancy no longer apply to the Australian States by virtue of s 3(1) and (2) of the Australia Acts 1986, the basis for the States being unable to remove the Crown from their constitutional systems has been removed. Reliance can now be placed on the legislative power conferred by s 2(2) of the Australia Acts 1986 to remove the Crown. This plenary power empowers each State parliament to make laws for the peace, welfare (or order) and good government of the State by declaring that the legislative powers of the parliament of each State include all legislative powers that the parliament of the United Kingdom might have exercised before the commencement of those Acts. 66 See Attorney-General for New South Wales v Trethowan (1931) 44 CLR 394. 67 See Taylor v Attorney-General of Queensland (1917) 23 CLR 457, 474, 481; Clayton v Heffron (1960) 105 CLR 214, 251; Re Scully (1937) 32 Tas LR 3, 42–5. 68 See Australian Constitutions Act 1842 (Imp) ss 30–3, 40; Australian Constitutions Act 1850 (Imp) s 12; New South Wales Constitution Act 1855 (Imp) s 3; Victorian Constitution Act 1855 (Imp); Western Australian Constitution Act 1890 (Imp); Australian States Constitution Act 1907 (Imp) s 1; Colonial Laws Validity Act 1865 (Imp) s 2. Also see Taylor v Attorney-General of Queensland (1917) 23 CLR 457 at 473–4, 481; Re Scully (1937) 32 Tas LR 3 at 42; Clayton v Heffron (1960) 105 CLR 214 at 251. 69 Taylor v Attorney-General of Queensland (1917) 23 CLR 457.

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9.4 A cocktail of republic and monarchy If republicanism is not voluntarily embraced by all Australians at the same time, is it legally and practically feasible for the federation to be comprised of a cocktail of monarchies and republics? At issue here is whether or not the conversion to republicanism must be ‘a boots and all’ affair for Australia. If the Commonwealth becomes a republic, does this remove the monarchy altogether from Australia so that no State can remain a republic? Or conversely, if one State (or even the Commonwealth) remains monarchical, does this prevent the others from becoming republics? A cocktail of constitutional systems seems constitutionally possible since the six States and the Commonwealth are separate polities, each a different emanation of the Crown. This may permit monarchical States within a republican Commonwealth,70 or even republican States within a monarchical Commonwealth, as was the case in the post-1871 German Empire.71 These situations may be anomalous but, as Professor Winterton72 points out, so was the position before the Australia Acts 1986 where the States, in theory at least, retained colonial status while the Commonwealth was upgraded to a dominion. Conversely, there is the argument that we have only one monarchy of Australia, albeit with different emanations,73 so that if the monarchy is abolished at the Commonwealth level, her role as Queen of Australia automatically ceases at the State level.74 The nature of the Australian monarchy is discussed in Chapter 8 where it is suggested that the better view is that there is only one monarchy with different Crown polities. To avoid any doubt arising over this issue in 1999, the Commonwealth Republic Bill expressly allowed the States to retain their monarchical system until they altered their laws to provide for a republic.75 It is unclear, though, whether such a measure can overcome the consequences of a single monarchy. If it can, there seems to be no reason in law for requiring consistency in the type of constitutional system operating at the Commonwealth and State levels. A State may adopt a presidential system of government while the parliamentary system is retained at the Commonwealth level, or vice versa.76 While the law may tolerate such differences within the federal system, how would it cope with such diversity – politically, economically and socially? The effect on the federal system is difficult to judge in the absence of overseas experience. More complicated 70 See G. Craven, ‘The Constitutional Minefield of Australian Republicanism’ (1992) Policy (Spring) 33, 35; Republic Advisory Committee Report, above n 1, Vol l, 125; Report of the Tasmanian Advisory Committee on Commonwealth/State Relations, ‘A Republican Australia? Issues for Tasmanians’ (The Bingham Report, June 1995) 27. 71 Winterton, ‘An Australian Republic’ above n 48, 470; Williams, above n 49, 892; cf ‘Opinion’ by Denis Rose to the Advisory Committee, above n 1, Vol 2, 305 (para 39). 72 Winterton, above n 18, 104–5. 73 Leslie Zines, The High Court and the Constitution (4th edn, Sydney: Butterworths, 1997) 314. 74 D. P. O’Connell, ‘Monarchy or Republic?’ in G. Dutton (ed) Republican Australia? (South Melbourne: Sun Books, 1977) 23, 38: it is ‘impossible’ to combine in the Australian federation a republic and a monarchy. 75 As provided by clause 5, Schedule 2 of the Constitution Alteration (Establishment of Republic) Bill 1999, following the recommendation of the Republic Advisory Committee Report, above n 1, Vol l, 125; followed the advice of Denis Rose in Appendix 8 to this same Report, Vol 2, 306–7 (paras 41–3). 76 Winterton, above n 18, 107.

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cooperative arrangements between the Commonwealth and the States may result. Negotiations may be necessary at both the executive and legislative levels in order for effect to be given to agreements where one of the parties has adopted a presidential system of government. On the other hand, there is much to be said in favour of consistency in a federal system. A lack of consistency in terms of Australia’s constitutional systems will increase public confusion and may reduce public confidence in government. This would be more so with a republican State in a monarchical Commonwealth than with a monarchical State within a republican Commonwealth.

9.5 Commonwealth power to impose State republics The final issue to consider is whether the Commonwealth has the legislative capacity to impose a republican system on the States if they refuse or are unable to adopt one. There are two potential sources of legislative power: s 51 (xxxviii) and s 128. Section 51 (xxxviii) can only be used with the cooperation of the State concerned. So it might enable the Commonwealth to assist a State to override an entrenched manner and form provision which is inhibiting the constitutional transformation. Section 128, which depends not on State cooperation but a successful national referendum, might empower the Commonwealth to alter the constitutional system of a State unilaterally.

9.5.1 Section 51 (xxxviii) This section provides: The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia.

It could be argued that at the request or concurrence of the State parliament, the Commonwealth Parliament could enact a law pursuant to s 51(xxxviii) repealing a State manner and form provision and/or the constitutional provisions entrenched by it. Such a law falls within s 51(xxxviii) on the basis that the power to repeal the manner and form provision by ordinary legislation could only be exercised by the United Kingdom Parliament at the establishment of federation. There are, however, difficulties with this view. It can be argued77 that the Commonwealth could not rely on this power to repeal a State manner and form because the States already have this power by complying with its requirements. Then again, they do not have the power to repeal the manner and form without 77 Ibid 142 – but Winterton accepts the Commonwealth could come within s 51 (xxxviii) if it simply empowers the State to just disregard the manner and form provision.

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complying with its requirements. So it depends on what is identified as the ‘power’ in s 51(xxxviii). A further difficulty may arise from the terms of the manner and form provision itself. The State legislation by which the request or consent is given might itself have to comply with the manner and form depending on its terms.78 This does not appear to be the case in relation to a manner and form provision, such as 7B of the Constitution Act 1902 (NSW), which applies only to a Bill which ‘expressly or impliedly repeals or amends’ certain sections. A State Bill which requests the Commonwealth to repeal or amend those sections does not have that result. Any repeal or amendment is effected by the Commonwealth Act. While the State Act is an essential prerequisite for the Commonwealth Act, it is not inconsistent with the entrenched provisions. The difficulty is more likely to arise in Queensland and Western Australia, where their respective manner and form provisions apply to any Bill which ‘expressly or impliedly in any way affects’ the entrenched provisions.79 It may be easier to establish that a State request or consent law indirectly affects those provisions by enabling the Commonwealth to repeal them, than to establish that the State Act indirectly repeals those provisions by enabling the Commonwealth to repeal them.80 But in saying that, it stretches the meaning of ‘affect’.81 Finally, it should be noted that, in view of the decision of the High Court in Port MacDonnell Professional Fishermen’s Assn Inc v South Australia,82 s 10683 cannot be relied on to prevent an exercise of Commonwealth power pursuant to s 51(xxxviii). That case upheld the validity of the Coastal Waters (State Powers) Act 1980 (Cth) under s 51(xxxviii) and concluded that s 106 was subject to any law made pursuant to this legislative power.84

9.5.2 Section 128 The other possible basis by which the Commonwealth may directly or indirectly alter the constitutional systems of the States is to rely on the amendment provision, s 128 of the Commonwealth Constitution. The possibilities here are that the Commonwealth Constitution could be amended to impose a republican system of government on the States, or to override State entrenched manner and form provisions, or to empower the States to abolish their monarchy when they want 78 Advice of Denis Rose in Appendix 8 to the Report of the Republic Advisory Committee, above n 1, Vol 2, 308 (para 49). 79 Queensland s 53; Western Australia s 73. 80 See also Winterton, above n 18, 142. 81 Legal, Constitutional and Administrative Review Committee of the Queensland Parliament, Review of the Queensland Constitutional Review Commission’s Recommendations Regarding Entrenchment of the Queensland Constitution, Report No 41, August 2003 recommended that State request and consent laws have to comply with any relevant manner and form provisions: Recommendation 12, p 30. 82 (1989) 168 CLR 340. 83 Section 106 relevantly provides: ‘The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth . . . until altered in accordance with the Constitution of the State.’ 84 Protection of State Constitutions derives instead from the Melbourne Corporation principle as interpreted in Austin v Commonwealth (2003) 215 CLR 185.

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to. All of these appear possible, since there is no relevant limit on the face of s 128 which prevents it from being used to enact these amendments.85 Any limitation must be implied from the Constitution itself. Yet, at least two arguments have been raised to support the view that the Commonwealth cannot use s 128 to alter directly a State Constitution by abolishing the monarchy without the approval of the State. The first argument is based on an interpretation of the penultimate paragraph of s 128, cited earlier, which requires the approval of each State, not just a majority of States, for any enactment which affects the provisions of the Commonwealth Constitution in relation to the State Constitutions. As noted earlier, this is a misinterpretation of the penultimate paragraph. The provisions of the Commonwealth Constitution referred to are those which concern the representation of the States in the Commonwealth Parliament and alterations to the limits of the States. The second argument is that since the Commonwealth Constitution is ‘a compact of States’,86 it follows that the creature of that compact, the Commonwealth, cannot alter the very parties to that compact (that is, the States) – unless those parties agree to their own restructuring. This would require a referendum in each State approving that restructuring or the vesting of such a power in the Commonwealth.87 There are several counter arguments to that view. First, the Commonwealth Constitution, including s 128, is binding on the States and their people by virtue of s 106, so that s 128 empowers the Commonwealth Parliament to change ‘the relationship between the Commonwealth and the States and the constitutional arrangements of the States themselves’.88 Second, s 106 incorporates the State Constitutions as part of the Commonwealth Constitution so they can be directly amended pursuant to s 128.89 Third, the Crown was never a fundamental term of the compact.90 Even Quick and Garran contemplated that s 128 might be used to abolish the monarchy.91 Even if the Commonwealth can, by a s 128 amendment, alter the constitutional systems of the States, such an amendment must be approved by a majority of voters nationally and in four States. And even if that approval is obtained, the imposition of republicanism on two non-approving States is very hard to justify. Ultimately, the conversion of Australia to a republic must be a coordinated operation agreed to by a majority of the electorate in each State. 85 See Geoffrey Sawer, ‘The British Connection’ (1973) 47 Australian Law Journal 113; R. D. Lumb, ‘Fundamental Law’ (1978) 9 Federal Law Review 148; D. P. O’Connell, ‘Canada, Australia, Constitutional Reform and the Crown’ (1979) 60 The Parliamentarian 5; Advice of Denis Rose in Appendix 8 to the Report of the Republic Advisory Committee, above n 1, Vol 2, 308 (para 47); George Williams ‘The Australian States and an Australian Republic’ (1996) 70 Australian Law Journal 890, 892; The Report of the Western Australian Constitutional Committee (January 1995) 81–92. 86 The High Court in the Engineers case (1920) 28 CLR 129 at 142 described the Commonwealth Constitution in the following way: ‘That instrument is the political compact of the whole of the people of Australia . . .’ 87 See ‘A Legal Opinion by Sir Harry Gibbs and the Legal Committee of Australians for Constitutional Monarchy in Response to the Republic Advisory Committee Report’, Appendix II in Stephenson and Turner, above n 4, 299. 88 Republic Advisory Committee Report, above n 1, Vol l, 131. See also Gageler and Leeming, above n 46, 152; Brennan CJ in McGinty v Western Australia (1996) 186 CLR 140 at 173. 89 See Winterton, above n 18, 141, relying on Quick and Garran, above n 53, 930. 90 Winterton, above n 4, 115. 91 Quick and Garran, above n 53, 295–6.

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9.6 Conclusion Whatever the scope of Commonwealth power in relation to the constitutional systems of the States, the adoption of republicanism at the State level must be resolved within each State by the political processes of that State, the final outcome of which is determined by the people of each State at a referendum. For the Commonwealth to otherwise impose on a State a republican system might have profound effects for federation itself. In view of the importance of this principle, it follows that the conversion from monarchy to republic must occur simultaneously at the Commonwealth, State and territory level. Approval at each of those levels may be achieved over a period of time,92 but the conversion should only occur once those approvals are in place – barring some constitutional emergency which would justify a diversity of systems to save federation. Every effort should be made to maintain consistency between the systems of government at these levels. There are cogent arguments for retaining in each State its own formal head of Executive to perform a constitutional and ceremonial role similar to that currently performed by the State Governor. This would be consistent with the uniquely individualistic character of the Australian States. It is obvious that the achievement of an Australian republic, even within the current Westminster system of government, involves a range of complex issues which require extensive consultation and community involvement. If the Westminster system of government was to be replaced with another quite different system, the task would be much more complex. 92 Multiple referenda will be required but there is no need for these to be held simultaneously.

10 Judicial protection

10.1 Introduction Since the nature of the State and territory judicial systems is adequately covered elsewhere,1 this chapter focuses on the constitutional protection afforded their courts both under their own State or Territory Constitution, as well as under Chapter III of the Commonwealth Constitution. It first considers to what extent the plenary legislative power of the States is restricted from interfering with their respective judicial systems, and then examines those restrictions which protect territory judicial systems. Restrictions are obviously needed to preserve the rule of law by ensuring, in particular, judicial independence in the exercise of judicial power. Specifically, these restrictions need to protect or deal with: ● the existence and jurisdiction of the courts; ● the separation of judicial and non-judicial power; ● legislative interference in the exercise of judicial power; and ● security of tenure of judges.2 Regrettably, it will become apparent that little if any protection is effectively provided here by State and Territory Constitutions or their own legislation. Fortunately, however, some protection is now available from Chapter III.

1 See Enid Campbell and H. P. Lee, The Australian Judiciary (1st edn, Cambridge: Cambridge University Press, 2001). 2 Enid Campbell, ‘Constitutional Protection of State Courts and Judges’ (1997) 23 Monash University Law Review 397.

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10.2 State judicial systems The judicial branch of each State comprises a hierarchy of courts at the apex of which is a Supreme Court. Most State Supreme Courts were established as superior courts of record prior to the attainment of responsible government.3 They retain unlimited jurisdiction for their respective State, except so far as statutory limitations have been imposed. Other courts below the Supreme Court have been created by statute: usually a District or County Court and a magistrates’ court. The judicial power of each State is vested in these courts, as well as in a number of quasi-judicial bodies.4 All State Supreme Courts and certain other State courts are also vested by the Commonwealth with federal judicial power pursuant to s 77(iii) of Chapter III.5 Section 77(iii) empowers the Commonwealth Parliament to vest jurisdiction relating to any of the matters listed in ss 75 and 76 (see below) in any State court.6 Consequently, most State courts exercise both State and federal judicial power. Federal courts, on the other hand, have been held by the High Court to be precluded by an implication from Chapter III from exercising State judicial power in addition to their federal judicial power.7 This implication was drawn from the absence of any comparable provision to s 77(iii) which expressly authorises the vesting of State judicial power in federal courts. According to the High Court, only the reverse pursuant to s 77(iii) was contemplated by the drafters of the Constitution as the autochthonous expedient.8 Also important to State judicial systems is s 73(ii) of Chapter III which confers a right of appeal to the High Court from all judgments, decrees, orders and sentences of State Supreme Courts,9 as well as from any other federal court or court exercising federal jurisdiction. The combination of this constitutionally guaranteed right of appeal under s 73 with the vesting of federal judicial power in State courts under s 77(iii) has led to acknowledgment of an ‘integrated Australian legal system’.10 From that system, the High Court has declared the existence of a single common law for Australia.11 These links between federal and State judicial systems have resulted in the extension to the States of Chapter III protection, at

3 New South Wales: 1824; Tasmania: 1828; South Australia: 1837; Victoria: 1852. 4 For instance, industrial commissions, small claims tribunals, residential tribunals, mining wardens, planning and licensing courts. 5 Judiciary Act 1903 (Cth) s 39. 6 State consent is irrelevant. 7 The cross-vesting scheme provided in the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) with complementary State and territory legislation was held invalid in Re Wakim; Ex parte McNally (1999) 198 CLR 511. 8 Re Wakim; ibid at 540 per Gleeson CJ. 9 A right of appeal is also conferred from other State courts ‘which at the establishment of the Commonwealth an appeal lies to the Queen in Council’. At federation, this only covered the Local Court of Appeal of South Australia: G. A. Moens and J. Trone, Lumb and Moens’ The Constitution of the Commonwealth of Australia Annotated (6th edn, Sydney: Butterworths, 2001) [568] 257. 10 Kable v Director of Public Prosecutions for New South Wales (1996) 189 CLR 51 at 102 per Gaudron J; at 114 per McHugh J; at 137 per Gummow J. 11 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563.

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least for the ‘institutional integrity’ of State courts.12 That protection is designed to maintain the independence and integrity of all repositories of federal judicial power, including State courts so vested. Additionally, s 73 can even be relied on to argue that the existence of State Supreme Courts is constitutionally guaranteed.13 State Constitutions ordain no comparable doctrine of separation of judicial power such as that which restricts Commonwealth power under Chapter III. Nonetheless, Chapter III now provides some protection for State courts – principally as a consequence of having been invested with federal judicial power. As repositories of federal judicial power, their courts must enjoy, and be seen to enjoy, judicial independence in respect of the exercise of that power. This constitutional requirement of ‘institutional integrity’14 is not confined though to the exercise of federal judicial power. By necessity, it must also extend to the exercise of State judicial power. To this extent, Chapter III restricts State legislative and executive power from undermining the independence and integrity of State courts in the exercise of both their State and federal jurisdiction.15 This is the overarching principle from Chapter III which imposes a fundamental restriction on State power. Significantly, this restriction is not equivalent to the Commonwealth’s doctrine of separation of judicial power, although it overlaps. Chapter III is not concerned with the vesting of State judicial power which remains capable of being exercised by State legislatures and executives. The focus of Chapter III is on the exercise of federal judicial power. Since that power is vested in State courts, Chapter III casts its protective shield over those courts as well. Despite recent High Court discouragement from taking a broad approach here, this chapter argues that the protection of Chapter III prevents the States from acting incompatibly with the maintenance of the institutional integrity of their respective courts vested with federal judicial power in the following ways: ● by vesting incompatible power in a State court; ● by vesting incompatible non-judicial power in a State judge persona designata; ● by interfering in an incompatible manner with the tenure of State judges; and ● by interfering in an incompatible manner with the judicial process of a State court. Chapter III now provides a safety net against certain abuses of the plenary power of State legislatures. This may have been one of the principles which the High Court had in mind in Union Steamship16 when it left open what limits apply to the peace, welfare and good government power of State legislatures.

12 13 14 15 16

See Fardon v Queensland (2004) 210 ALR 50. See Kable, above n 10, per Gaudron J at 101 and McHugh J at 111. Fardon, above n 12; and Baker v The Queen (2004) 210 ALR 1. North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146. Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1.

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10.3 State protection Since State parliaments possess plenary legislative power to enact laws for the peace, welfare (or order) and good government of their respective States, the only possible binding restrictions on that power in relation to the judicial branch of government – apart from those derived from the Commonwealth Constitution – are those which are created by way of manner and form. Yet the capacity of the States to entrench provisions relating to the judicial branch is doubtful. As Chapter 6 explained, entrenchment is most likely confined by s 6 of the Australia Acts 1986 to provisions concerned with the ‘constitution, powers or procedure of the parliament’. Since the provisions relating to the judiciary are not of that character, effective entrenchment is very dubious. Apart from this difficulty, there has never been much interest on the part of State governments to entrench protections for the judicial branch. No doubt this has been due in part to a desire to avoid the practical restraints imposed on the Commonwealth by the doctrine of separation of judicial power prescribed by Chapter III. Fortunately, instances of State interference in the exercise of judicial power have so far been rare. But where this has occurred, all challenges brought on the basis of a doctrine of separation of powers at the State level have failed either because of an absence of provisions from which the doctrine could be derived, or, where they existed, because they were not entrenched. Consideration is first given to those Constitutions which purport to entrench provisions relating to the judicial branch, before examining the issue of the doctrine of separation of powers at the State level.

10.3.1 Entrenched protection Only in New South Wales and Victoria is there an attempt to entrench provisions in relation to the judiciary. In the remaining States, their judicial systems are subject to legislative change without the protection of any manner and form provision. Any Bill amending or repealing the provisions of Part 9 of the Constitution Act 1902 (NSW) entitled ‘The judiciary’ requires referendum approval under s 7B.17 Those provisions purport to protect the holders of judicial office (as defined in s 52) in relation to their removal18 and suspension19 from office, and in the event their judicial office or court is abolished.20 Once appointed, each judicial officer is

17 This ‘entrenchment’ occurred in 1995 following the enactment of Part 9 in 1992: Constitution (Entrenchment) Amendment Act 1992 (NSW) s 3. Note: s 7B is doubly entrenched and s 7B(8) exempts from the referendum requirement an amendment to s 52 which extends the application of Part 9 to additional judicial offices or classes of judicial offices. 18 Section 53 prescribes removal only by the Governor on an address from both Houses in the same session for proved misbehaviour or incapacity. 19 Section 54 requires suspension to be in accordance with legislation and for remuneration to continue during the period of suspension. 20 Section 56 does not prevent the abolition of the judicial office, but confers a right of appointment to another judicial office at the same or higher status.

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also protected from any unilateral change in retirement age without that officer’s consent.21 In Victoria, any Bill amending or repealing the provisions of Part III of the Constitution Act 1975 (Vic) entitled ‘The Supreme Court of the State of Victoria’ must be passed in accordance with s 18(2AA)(b).22 However, the manner and form prescribed by s 18(2AA), in requiring the Bill to be passed by an ‘absolute majority’ at the third reading, fails to make clear whether this is an absolute majority of both Houses or only of one House. Only a ‘special majority’ is defined by s 18(1A). Since that requirement applies to both Houses, the reference to ‘absolute majority’ in s 18(2AA) should be similarly interpreted.23 Where a provision intends to amend or repeal s 85 without complying with this requirement, only that provision and not the entire Bill is rendered void.24 Section 85 prescribes the powers and jurisdiction of the Supreme Court, and purports to restrict any change to this by prescribing a manner and form.25 In contrast with the limited range of provisions intended to be referendum entrenched by the New South Wales Constitution, the relatively easier Victorian requirement of an absolute majority allows in a practical sense for a far wider coverage of provisions in Part III, such as the existence of the Supreme Court, its jurisdiction, the appointment of judges and their salaries and pensions. However, it seems the purported entrenchment of these provisions in the New South Wales and Victorian Constitution Acts is ineffective because any Bills repealing or amending those provisions, enacted in non-compliance with the manner and form requirements, will not satisfy the characterisation test of s 6 of the Australia Acts 1986. They would not be laws respecting the constitution, powers or procedure of the parliament. Unless the doubtful alternative grounds26 to s 6 apply, entrenchment is ineffective . This means that the capacity of a State parliament to entrench the Supreme Court or to protect the judicial branch from legislative interference is highly doubtful. This vulnerability may well have encouraged the High Court to find a way of protecting the State judicial system through Chapter III (see below).

10.3.2 Doctrine of separation of powers Despite the fundamental importance of both an independent judiciary and noninterference in the judicial process, no doctrine requiring a separation of judicial and non-judicial power has been derived from any State Constitution. Challenges to State law, brought on the basis of such a doctrine, have failed for two principal 21 Section 55. 22 This provision is doubly entrenched. 23 The alternative argument is that the omission in s 18(2AA) renders the requirement of ‘absolute majority’ meaningless and hence void. 24 Section 18(2A). 25 The requirements of which are: to expressly state an intention to repeal, alter or vary s 85, and the member introducing the Bill must state the reasons for this within a prescribed time. See Collingwood v Victoria [No 2] [1994] 1 VR 652. 26 These grounds are explained in Chapter 6 at 6.4.2.

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reasons: the inability to derive any intent from the State Constitution to vest the judicial power of the State exclusively in its courts, and the lack of entrenchment of those provisions which concern the judicial branch. A significant catalyst for these challenges was the Privy Council decision in 1967 in Liyanage v The Queen.27 Legislation enacted by the Ceylon Parliament in the aftermath of an attempted coup was held invalid for usurping the judicial process in breach of a doctrine of separation of powers necessarily implied from the text and structure of the Ceylon Constitution. The Privy Council relied on the division of the Constitution into separate parts: Part 3 The Legislature; Part 5 The Executive; and Part 6 The Judicature. Although Part 6 contained no express provision vesting judicial power in the courts, reliance was placed on its provisions dealing with the appointment of judges by a Judicial Service Commission, the exclusion from that body of members of parliament, the criminal offence of attempting to influence its decisions, and removal by the Governor-General on an address of both Houses, to conclude: These provisions manifest an intention to secure in the judiciary a freedom from political, legislative and executive control. They are wholly appropriate in a Constitution which intends that judicial power shall be vested only in the judicature. They would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legislature. The Constitution’s silence as to the vesting of judicial power is consistent with its remaining, where it had lain for more than a century, in the hands of the judicature. It is not consistent with any intention that henceforth it should pass to or be shared by, the executive or the legislature.28

The express vesting of judicial power, found in the United States and Commonwealth Constitutions, was explained as necessary for a newly created judicial system. But this was unnecessary in Ceylon where the Supreme Court had been established by the Charter of Justice of 183329 which vested the administration of justice ‘exclusively in the courts erected and constituted by this Our Charter . . .’. Although not emphasised by the Privy Council, the invalidity of the legislation derived not simply from infringing the separation of powers, but ultimately because it was inconsistent with an entrenched Constitution from which the doctrine was derived. To validly override or amend the Constitution, the legislation needed to be passed in accordance with a manner and form requirement of a majority of two-thirds of the parliament, certified by the Speaker.30 Non-compliance with that requirement rendered the legislation invalid. Had the legislation complied, no invalidity would have arisen. Yet, oddly, the Privy Council refused to comment on that scenario.31 This decision clearly encouraged similar arguments to be put in challenges to State legislation in New South Wales, Western Australia and South Australia 27 [1967] AC 259 (PC). This decision followed Bribery Commissioner v Ranasinghe [1965] AC 172 which held s 29(4) was a binding manner and form provision. 28 [1967] AC 259 at 287–8. 29 Ibid 286–7. 30 Section 29(4). See Bribery Commissioner v Ranasinghe [1965] AC 172. 31 [1967] AC 259 at 289.

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over the ensuing decade. On each occasion, the respective State Supreme Courts rejected the argument by distinguishing Liyanage on the basis of the difference between the provisions of their respective State Constitutions and those of the Ceylon and Commonwealth Constitutions. Primary significance was given to the lack of any provision vesting the judicial power in the State courts (to distinguish especially the Commonwealth), and the lack of any provision comparable to the Charter of Justice of 1833 which vested the judicial power of Ceylon exclusively in its courts. Interestingly, little reference is made in the later cases to the lack of entrenchment of the State provisions which provided an immediate basis for dismissing the challenge on this ground. Without entrenchment of the provisions relied on, whether in the Constitution or elsewhere, no effective constitutional restriction can be derived, since any inconsistent law effectively overrides those provisions. Some reliance was placed on this lack of entrenchment in Clyne v East32 where it was argued that the New South Wales Parliament had enacted a legislative judgment in relation to determinations made by the Fair Rents Board. The Full Court of the New South Wales Supreme Court unanimously rejected any doctrine of separation of power derived from the New South Wales Constitution. Sugerman JA (with whom Herron CJ and Asprey JA agreed) distinguished Liyanage after finding nothing in the structure or provisions of the New South Wales Constitution from which to derive such a doctrine. His Honour relied on the plenary nature of the legislative power, the location of all relevant provisions dealing with the judiciary in ordinary legislation, and the flexible uncontrolled nature of the New South Wales Constitution.33 A similar challenge to State legislation for interfering in the judicial process was unsuccessful in JD & WG Nicholas v Western Australia34 where the Full Court of the Supreme Court of Western Australia relied simply on the plenary nature of the legislative power and the uncontrolled nature of the Western Australian Constitution to reject any doctrine of separation of judicial power.35 The same view was adopted by the South Australian Full Court in Gilbertson v South Australia36 in rejecting a challenge to South Australian legislation which was argued to be repugnant to imperial law in conferring on the Supreme Court a function inconsistent with its judicial character. Bray CJ relied principally on the lack of specific constitutional provisions in Part IV of the Constitution Act 1934 (SA) which contained only two provisions dealing with the tenure and removal of judges. In particular, no provision specifically vested judicial power in the courts.37 Apart from referring to the sovereignty of parliament, no reference was made to the issue of entrenchment.38 Still, the Court affirmed the fundamental importance of the separation of judicial powers in the constitutional system.39 And more 32 35 37 38 39

(1967) 68 SR (NSW) 385. 33 Ibid 400. 34 [1972] WAR 168. Ibid per Jackson CJ at 173 with whom Virtue SPJ agreed, per Burt J at 175. 36 (1976) 15 SASR 66. Ibid 84–8. No further reasons added by Wells J at 141–2, Jacobs J at 153 and Zelling J at 109–10. In fact, Part IV was not entrenched. Ibid per Bray CJ at 85, Walters J at 95, Wells J at 141–2, Jacobs J at 156.

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significantly, Wells J40 and Zelling J41 (Jacobs J42 left the issue open) accepted that the South Australian Parliament was prevented from altering the essential character of the Supreme Court as a court of judicature since this would be repugnant to the imperial law which established the Court. Indeed, Zelling J in dissent found the impugned legislation to be invalid on this basis.43 In Victoria, the issue was also raised in Collingwood v Victoria [No 2].44 What distinguishes this case is that, at that time, the relevant provisions of the Constitution Act 1975 (Vic) were purportedly entrenched by ss 18 and 85. Yet Brooking J (with whom Southwell and Teague JJ agreed) found no basis in the provisions to derive a constitutional separation of judicial power, particularly since s 85(8) contemplated the vesting of judicial power in non-judicial bodies, concurrent with that of the Supreme Court.45 Interestingly, the entrenchment provisions were relied on to reject the doctrine as they impliedly indicated parliament’s intention to rely on entrenchment rather than such a doctrine.46 Since Clyne v East, two further challenges to New South Wales legislation have been brought on the ground that a doctrine of separation of judicial power existed under the New South Wales Constitution. The first was unsuccessful despite a clear violation of the doctrine. The second was also unsuccessful on that ground, despite relying on newly entrenched provisions, but it succeeded on the basis of Chapter III. The first of these challenges in Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (NSW BLF case)47 was made against New South Wales legislation enacted just prior to judicial proceedings challenging the government’s deregistration of a union, the New South Wales Builders’ Labourers Federation. Although the New South Wales Court of Appeal found the legislation usurped the judicial process, it unanimously followed Clyne v East, finding no basis in the New South Wales Constitution or other legislation for deriving a constitutional separation of judicial power. Street CJ regarded as a compelling consideration the impact such a doctrine would have on the State’s public administration.48 Kirby P49 and Priestley JA50 (with whom Glass AJ agreed) relied principally on the lack of any entrenchment of the provisions relating to the judiciary. Kirby P also found no statutory basis from which to derive the doctrine, particularly in view of the express power to abolish, alter and vary the courts conferred by s 49 of the New South Wales Constitution Act 1855.51 While not holding the legislation invalid, certain members of the Court were very critical of the interference in the judicial process. Street CJ warned that the legislation was ‘contrary both to modern constitutional convention, and to the public interest in the due administration of justice, for parliament to exercise that power by legislation interfering with the judicial process in a particular case pending before the Court.’52 40 43 44 47 50

Ibid 134 and 147. 41 Ibid 111. 42 Ibid 156. State laws are no longer invalid for repugnancy to imperial law: s 3(2) Australia Acts 1986. [1994] 1 VR 652. 45 Ibid 661–3. 46 Ibid 644. (1986) 7 NSWLR 372 (CA). 48 Ibid 381. 49 Ibid 400. Ibid 419. 51 Ibid 400–1. 52 Ibid 381.

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A decade later, another challenge was brought in Kable v Director of Public Prosecutions (NSW)53 in reliance on amendments made to the Constitution Act 1902 (NSW) since the NSW BLF case – the addition of Part 9 ‘The Judiciary’ in 1992,54 and its subsequent entrenchment under s 7B(1) of the Constitution Act.55 This was the first occasion the High Court was asked to rule on whether the doctrine of separation of powers applied under a State Constitution. A majority of the Court (Brennan CJ, Dawson, Toohey and McHugh JJ) concluded that those amendments made no difference. Their Honours followed the earlier authorities56 including Clyne v East in distinguishing Liyanage. Dawson J provided the most detailed reasoning for rejecting the doctrine, relying principally on the absence of any New South Wales provision, equivalent to s 71 of the Commonwealth Constitution, which vested judicial power only in New South Wales courts: While these provisions are concerned with the preservation of judicial independence, they cannot be seen as reposing the exercise of judicial power exclusively in the holders of judicial office. Nor can they be seen as precluding the exercise of non-judicial power by persons in their capacity as holders of judicial office. They clearly do not constitute an exhaustive statement of the manner in which the judicial power of the State is or may be vested.57

Toohey and McHugh JJ also relied on this ground to reject the challenge on the basis of Part 9.58 However, their Honours joined Gaudron and Gummow JJ in holding the New South Wales legislation invalid for infringing Chapter III (see analysis below). Gaudron and Gummow JJ made no reference to the Part 9 argument. In dissent, Brennan CJ agreed with Dawson J in rejecting the Chapter III argument. As noted earlier, there is a distinct difficulty in a State entrenching a constitutional separation of judicial and non-judicial powers. This is because proposed laws, which violate the separation of judicial power, are unlikely to be characterised as laws respecting the constitution, powers or procedure of the parliament within the terms of s 6 of the Australia Acts. But for this problem, even a simple requirement of a special parliamentary majority may suffice, as in Liyanage, to establish the doctrine, as well as to protect it from being undermined or abolished by legislation enacted in the ordinary way. Still, it seems most unlikely that any State government would allow parliament to subject itself to such a restriction on its legislative power – especially now, in view of the subjection of State power to Chapter III. 53 (1996) 189 CLR 51. 54 Constitution (Amendment) Act 1992 (NSW). 55 Constitution (Entrenchment) Amendment Act 1992 (NSW) s 3. 56 For NSW: Clyne v East (1967) 68 SR (NSW) 385 at 395, 400 and Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372 at 381, 407, 410, 419–20. For Victoria: Collingwood v Victoria (No 2) [1994] 1 VR 652. For SA: Gilbertson v South Australia (1976) 15 SASR 66 at 85, affirmed [1978] AC 772 at 783, (1977) 14 ALR 429; Grace Bible Church v Reedman (1984) 54 ALR 571, 36 SASR 376. For WA: JD & WG Nicholas v Western Australia [1972] WAR 168. 57 (1996) 189 CLR 51 at 77–8. Dawson J relied on all of the other reasons given in the earlier authorities, including the absence in New South Wales of any provision equivalent to the 1833 Charter of Justice for Ceylon and the power conferred on the New South Wales Parliament by s 49 of the Constitution Act of 1855, to distinguish Liyanage v R [1967] 1 AC 259. 58 Ibid per Toohey J at 93 and McHugh J at 109 and 118.

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The absence of any constitutionally prescribed separation of judicial power at the State level contrasts with the Commonwealth position. There, such a doctrine has been implied from the Commonwealth Constitution (especially Chapter III) to profoundly shape its judicial system. The States have escaped the practical constraints to which the Commonwealth is subject. They have been able to vest judicial power in non-judicial tribunals and to vest non-judicial power in their courts. The difficult distinction drawn at the Commonwealth level between judicial and non-judicial power has been neatly avoided. Despite the absence of a binding doctrine of separation of powers at the State level, that doctrine is nonetheless recognised as a powerful political doctrine of good government. It is the one constitutional principle, often used by media and opposition parties, to attack Government violations.59 Ultimately though, it has no legal force to protect State courts or their judges from legislative interference. That protection can now only be found in Chapter III of the Commonwealth Constitution.

10.4 Chapter III and the States Some measure of protection for State judicial systems is found in Chapter III. This occurs as a consequence of the vesting of federal judicial power in State courts.60 As repositories of federal judicial power, they must remain capable of exercising their federal jurisdiction in an impartial and independent manner. This requirement naturally extends to the exercise of their State jurisdiction as well, since judicial independence and integrity is not divisible between jurisdictions. This was first recognised in Kable v DPP (NSW)61 which has since been further explained in a trilogy of High Court decisions in 2004: North Australian Aboriginal Legal Aid Service Inc v Bradley,62 Fardon v Attorney-General for the State of Queensland63 and Baker v The Queen.64 A majority of the High Court in Kable65 held that the States were prevented from vesting powers in their courts incompatible with the exercise by those courts of federal judicial power. Accordingly, New South Wales legislation which empowered the New South Wales Supreme Court to order the continued detention of Gregory Wayne Kable if the Court were satisfied that he was ‘more likely than not to commit a serious act of violence’, was held invalid as incompatible with the exercise of federal judicial power because it tended to undermine public confidence in the independence and integrity of the Supreme Court as a repository of federal judicial power.

59 Ignorance of the doctrine is equally damning as the Queensland Premier, Sir Joh Bjelke-Petersen, discovered when he was unable to define what the doctrine meant under public cross-examination before the Fitzgerald Commission of Inquiry in 1992. The doctrine is also relied on by governments, such as when the Queensland Attorney-General claimed in 1992 that it was a breach of the separation of powers for the Chief Justice of Queensland to continue to advise the Governor-in-Council on the appointment of QCs – an exercise of royal prerogative power. Accordingly, the Attorney-General proposed to assume that role himself. 60 Judiciary Act 1903 (Cth). 61 (1996) 189 CLR 51. 62 (2004) 218 CLR 146. 63 (2004) 210 ALR 50. 64 (2004) 210 ALR 1. 65 Kable v Director of Public Prosecutions for New South Wales (1996) 189 CLR 51.

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The subsequent decisions in Bradley and Fardon refer to this notion of incompatibility as one concerned with protecting the ‘institutional integrity’ of State and territory courts. Reference to ‘public confidence’ is no longer made, for fear that it indicated a subjective test of what the judges thought of a particular law. But public confidence was never the touchstone of validity, only a rationale for the restriction. Kable is viewed now as a rare and exceptional example of a violation of a court’s institutional integrity. The joint judgment of the Court in Bradley extended Chapter III protection to territory courts in accepting that both State and territory courts must remain independent and impartial: [I]t is implicit in the terms of Ch III of the Constitution, and necessary for the preservation of that structure, that a court capable of exercising the judicial power of the Commonwealth be and appear to be an independent and impartial tribunal.66

The Court found no violation of this principle in the limited two-year agreed remuneration for the Chief Magistrate of the Northern Territory. The majority judgments in Fardon, delivered less than two months after Bradley, attempted to define the outer limits of what is termed the Kable principle. The most succinct statement is provided by Gleeson CJ: The decision in Kable established the principle that, since the Constitution established an integrated Australian court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role as a repository of federal jurisdiction, is invalid.67

This statement reformulates the Kable principle by requiring a ‘substantial impairment’ of the ‘institutional integrity’ of State courts. The latter expression is not comprehensively defined in any of the judgments. It is unclear whether the reference to ‘institutional’ integrity was intended to narrow the scope of the restriction compared with that contemplated in Kable. It should not be interpreted to exclude from the protection of Kable, the ‘operational’ integrity of State courts. The Kable principle should continue to protect the independence and integrity of the courts including their judges, officials and proceedings. The requirement of a substantial impairment reflects the high threshold adopted by the Court in finding any breach of the Kable principle. Fardon and Baker viewed the Kable principle as distinct from the Chapter III doctrine of separation of judicial power which is inapplicable to the States. The joint judgment of McHugh, Gummow, Hayne and Heydon JJ in Baker described the Kable requirements as ‘less stringent’68 in relation to the exercise of State judicial power than those imposed by Chapter III on the exercise of federal judicial power. Hence, the challenge in that case failed at the outset because it was 66 North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at [29]. 67 Fardon, above n 12 at [15]. Also stated in Baker v The Queen (2004) 210 ALR 1 per Gleeson CJ at [5]. 68 Baker v The Queen, ibid in the joint judgment of McHugh, Gummow, Hayne and Heydon JJ at [51].

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accepted by counsel that had the State legislation been enacted by the Commonwealth, no violation of Chapter III would have been found.69 Conversely in Fardon, a majority of the Court warned that it cannot be concluded that a State interference violates Chapter III just because it would violate Chapter III if done by the Commonwealth.70 The precise difference between (1) the restriction on State power from the Kable principle and (2) the restriction on Commonwealth power from Chapter III, remains unclear. But at least it seems the States remain free to vest their judicial power in whatever repository they prefer, and to vest their non-judicial power in their courts – provided in each case, this is not incompatible with the exercise of federal judicial power. What of the other restrictions on Commonwealth power which stem from the doctrine of separation of judicial power, such as the incapacity to interfere in the judicial process? It is argued here that all Commonwealth Chapter III restrictions, other than those which stem directly from the separation of judicial power, should apply to the States. Given that the purpose of those restrictions is to protect the independence and integrity of federal courts, they should equally protect State courts as repositories of federal judicial power. To appreciate how far the protective shield of Chapter III extends to the States, it is useful to begin with an outline of the Commonwealth position under Chapter III.

10.4.1 Commonwealth position The doctrine of separation of federal judicial power is derived from the fact that each of the Commonwealth’s legislative, executive and judicial powers is separately vested in different institutions by distinct chapters of the Constitution. In Chapter I, the legislative power is vested by s 1 in the federal parliament. In Chapter II, the executive power is vested by s 61 in the Queen, exercisable by the Governor-General. And in Chapter III, the judicial power is vested by s 71 in the High Court, other federal courts created by parliament and other courts vested with federal jurisdiction. These provisions have not been interpreted as incorporating a strict separation of legislative and executive power because of the principle of responsible government implicit in the Commonwealth Constitution, which requires ministers to be members of parliament.71 Accordingly, the delegation of legislative power to the Executive is allowed.72 However, there is implicit in s 71 a constitutional separation of judicial and non-judicial power which is reinforced by the importance attached to the judicial branch, especially the High Court, as the guardian of a fully entrenched Constitution: 69 Ibid [24]. The case involved a challenge to s 13A of the Sentencing Act 1989 (NSW) which required a prisoner, for whom the trial judge made a non-release recommendation, to establish special reasons before being permitted to seek a determination of a life sentence. 70 Ibid Gummow J [87] and [106]; Kirby J [144.4] agreeing with Callinan and Heydon JJ [219]. Consequently, one approach is to decide first whether a State law, if enacted by the Commonwealth, would violate Chapter III. If it does not, the challenge to the State law fails. But if it does, then closer consideration of the State law is required to determine if it breaches the Kable principle. 71 Essentially codified in s 64. 72 See Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (Dignan’s case) (1931) 46 CLR 73.

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The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction . . . (emphasis added)

From the opening words of s 71, three specific constitutional requirements have been derived: (1) Commonwealth judicial power can be vested only in those designated courts; (2) no other power can be vested in those courts; and (3) as a consequence of (1), parliament and the Executive are unable to exercise judicial power except so far as this is incidental to the exercise of their legislative or executive functions.73 Moreover, the High Court has also derived from s 71 an overarching principle: the judicial branch must be independent and be perceived to be independent of the legislature and the Executive. The integrity and independence of those courts vested with federal judicial power and their judges is the basic premise on which the doctrine of the separation of judicial and non-judicial power mandated by Chapter III rests. Accordingly, any Commonwealth law which undermines that integrity or independence will be invalid for infringing Chapter III. The range of laws which might infringe that principle extends well beyond the three instances above. They defy exhaustive definition as Kirby J in Nicholas v The Queen recognised: Between a Bill of Attainder (which amounts to a parliamentary finding of guilt and is thus offensive to the separation of powers) and a law of general application (which in some particular respects permissibly affects pending cases) lie a myriad of instances which fall on one side of the line of constitutional validity or the other.74

It is this fundamental principle of judicial independence found in Chapter III which also extends as a restriction on State and territory power. To understand the scope of that restriction, it is useful to consider briefly each of the restrictions on Commonwealth power listed above. 10.4.1.1 Commonwealth judicial power can be vested only in s 71 courts The exclusive repositories of Commonwealth judicial power are those courts listed in s 71: the High Court, other federal courts created by the parliament, and other courts vested with federal jurisdiction. This constitutional requirement was first established in the Wheat Case (NSW v Commonwealth)75 where Part V of the Interstate Commission Act 1912 (Cth) was held invalid for vesting judicial

73 New South Wales v Commonwealth (Wheat case) (1915) 20 CLR 54; R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, affirmed [1957] AC 319. 74 (1998) 193 CLR 173 at 256. 75 (1915) 20 CLR 54.

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powers76 in the Interstate Commission which was not a s 71 court. More recently, a further breach of this principle was found in Brandy v Human Rights and Equal Opportunity Commission77 in relation to the enforcement of determinations of the Human Rights and Equal Opportunity Commission under the Racial Discrimination Act 1975 (Cth). Since determinations of racial discrimination could not be enforced directly by the Commission – as this would be an exercise of judicial power other than by a s 71 court – an attempt was made to circumvent Chapter III by providing for the lodgment of the determinations in the Federal Court registry, where they were deemed to be an order of the Federal Court and enforceable as such. The High Court unanimously invalidated this scheme for attempting to achieve what could not be achieved directly. Mason CJ, Brennan and Toohey JJ succinctly stated the principle: ‘an order which takes effect as an exercise of judicial power cannot be made except after the making of a judicial determination. Thus s 25ZAB purports to prescribe what the Constitution does not permit.’78 It should be noted here that only Commonwealth, not State, judicial power can be vested in federal courts: Re Wakim; Ex parte McNally.79 Minor exceptions to this rule exist to the extent that powers of a judicial character are necessary for the exercise of legislative and executive functions, such as the power of each House of Parliament to punish for contempt,80 and the Executive’s capacity to discipline members of the defence forces81 and other public servants.82 10.4.1.2 Non-judicial power cannot be vested in s 71 courts This rule, which prevents the vesting of non-judicial power in s 71 courts – unless merely incidental to the exercise of their judicial power (for example, the power to make rules of court)83 – complements the previous rule to create what could be called the ‘sacred crucible of federal judicial power’. Federal judicial power is kept intact and untainted by Chapter III to protect the independence of the judiciary, as the Privy Council observed in Attorney-General (Commonwealth) v R; Ex parte Boilermakers’ Society of Australia (the Boilermakers case):84 . . . 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 and judicial power is to remove a vital constitutional safeguard.85 76 The Commission was made a court of record with power to award damages, issue injunctions and declarations. The powers went beyond those contemplated for the Commission by s 101 of the Constitution. 77 (1995) 183 CLR 245. 78 Ibid 260. 79 (1999) 198 CLR 511 – held invalid the cross-vesting of State jurisdiction in the Federal Court. 80 See R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157. 81 See R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452; R v Cox; Ex parte Smith (1945) 71 CLR 1; affirmed in Re Tracey; Ex parte Ryan (1989) 166 CLR 518; Re Nolan; Ex parte Young (1991) 172 CLR 460. Not challenged in Re Colonel Aird; Ex parte Alpert (2004) 209 ALR 311. 82 R v White; Ex parte Byrnes (1963) 109 CLR 665. 83 See R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556. 84 (1957) 95 CLR 529; affirmed the High Court decision: R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254. 85 (1957) 95 CLR 529 at 540.

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In accordance with this principle, the vesting of judicial and non-judicial powers in the Commonwealth Court of Conciliation and Arbitration was held invalid by both the High Court and the Privy Council.86 The adoption of this second rule, many years after the establishment of the first, has been criticised for overly complicating the vesting of power in Commonwealth judicial bodies.87 Difficult determinations arise whether a power is judicial or non-judicial when the demarcation between the two is impossible to define precisely. One solution has been to recognise that certain powers can be of either character depending on the body in which they are vested.88 Another solution has been to vest non-judicial power in federal judges persona designata, provided this occurs with their consent and is not incompatible with the exercise of federal judicial power. This doctrine of incompatibility could even develop to replace the Boilermakers doctrine.89 Since Kable90 and Bradley91 allow State and territory courts to be vested with non-judicial powers, provided they are not incompatible with the exercise of federal judicial power, this casts some doubt on the correctness of the Boilermakers doctrine which prohibits the Commonwealth from vesting non-judicial power in s 71 courts. If the mere vesting of non-judicial power in a State court by a State does not threaten to undermine the independence of that court in the exercise of its federal judicial power, how is it that any comparable vesting by the Commonwealth in a federal court is deemed to undermine the independence of those courts? Why should the Commonwealth not similarly be permitted to vest non-judicial power, provided this is compatible?92 The answer appears to lie in recognising that the doctrine of separation of powers, which Boilermakers implied from the text of the Commonwealth Constitution, is a related but distinct principle from that of judicial institutional integrity.93 10.4.1.3 Commonwealth Parliament and Executive cannot exercise judicial power It logically follows from the exclusive vesting of federal judicial power in s 71 courts that neither the Commonwealth Parliament nor the Executive can exercise judicial power. Specifically, this means that parliament is prevented from enacting legislative judgments, such as a Bill of attainder. Mason CJ in Polyukhovich v

86 Since the principal function of the Court was non-judicial – the arbitration and conciliation of industrial disputes – it was not a s 71 court and, accordingly, the vesting of judicial power to enforce its industrial awards was held invalid. But had the Court been found to be a s 71 court, the vesting of its non-judicial powers would have been held invalid. 87 See Barwick CJ in R v Joske; Ex parte Australian Building Construction Employees and the Builders’ Labourers Federation (1974) 130 CLR 87 at 90. See also Brian Galligan, Politics of the High Court (St Lucia: University of Queensland Press, 1987) 207–9. 88 See R v Davison (1954) 90 CLR 353 at 368–9 per Dixon CJ and McTiernan J. 89 Suggested by Anthony Mason, ‘A New Perspective on Separation of Powers’ (1996) Canberra Bulletin of Public Administration (No 82) 1, 5–6. 90 See above n 65. 91 North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146. 92 Mason supports this view: see above n 89. 93 Cf Kristen Walker, ‘Persona Designata, Incompatibility and the Separation of Powers’ (1997) 8 Public Law Review 153, 163.

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Commonwealth94 defined a Bill of attainder as ‘a legislative enactment adjudging a specific person or specific persons guilty of an offence constituted by past conduct and imposing punishment in respect of that offence’. It involves parliament engaging in the most blatant exercise of judicial power. Nonetheless, a criminal law which merely operates retrospectively is not a Bill of attainder,95 nor is a law which provides for mandatory sentencing.96 In Chu Kheng Lim v Minister for Immigration,97 Brennan CJ, Deane and Dawson JJ identified another instance of an invalid exercise of judicial power by parliament as a punitive law which provides for the involuntary detention of individuals other than pursuant to a court order. Non-punitive detention was exempted from this rule, such as detention to ensure attendance for trial, to protect the public from infectious disease, and to protect those suffering mental illness.98 10.4.1.4 Commonwealth Parliament and Executive cannot impermissibly interfere in the exercise of judicial power by undermining the integrity and independence of the courts This is the most general of the restrictions derived from Chapter III and the one most likely to be invoked to challenge Commonwealth law. It is based on the fundamental constitutional principle that the judges of the courts vested with federal judicial power must be independent and be perceived to be independent of the legislature and the executive. Accordingly, any Commonwealth, State or territory law which undermines that integrity or independence will be invalid for infringing Chapter III. Kirby J in Nicholas v The Queen indicated the range of cases which might infringe Chapter III in this respect defy exhaustive definition.99 They include laws which require the courts to act in a manner which is inconsistent with or repugnant to the traditional judicial process. Laws which direct courts ‘as to the manner and outcome of the exercise of their jurisdiction’ can also be viewed as an impermissible interference in the exercise of judicial power. They are inconsistent with the independent adjudication expected of a court. Although such laws might be regarded as an indirect legislative judgment where an individual or a group is being targeted in this way, such as in Liyanage v The Queen,100 this should not preclude them from being seen also as an impermissible interference in the exercise of judicial power. Further consideration of this restriction is given below in relation to the States.

94 (1991) 172 CLR 501 at 535. 95 Polyukhovich v Commonwealth (1991) 172 CLR 501 per Mason CJ at 536, Dawson J at 649 and McHugh J at 721; Deane J at 631–2 and Gaudron J at 704–8 found a breach of the doctrine; cf Toohey J at 688–9. 96 See Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100 at 119–20; Palling v Corfield (1970) 123 CLR 52 at 58; Moffat v The Queen [1998] 2 VR 229; Wynbyne v Marshall (1997) 141 FLR 166; Lloyd v Snooks (1999) 153 FLR 339. 97 (1992) 176 CLR 1 at 27. 98 Ibid 28–9. 99 (1998) 193 CLR 173 at 256. 100 [1967] 1 AC 259.

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10.4.2 Chapter III restrictions on State power Chapter III of the Commonwealth Constitution provides State courts with some measure of protection from State law. Primarily, it guarantees the existence of the State Supreme Courts, and it prevents legislative attempts to undermine the ‘institutional integrity’ of those State courts vested with federal judicial power. The latter protection may also provide State judges with some security of tenure. This protection applies whether the court is exercising State or federal judicial power.101 As a consequence of the coincidence of State courts being used as repositories of federal judicial power, any impermissible interference in the exercise of their State jurisdiction inevitably undermines their independence in relation to the exercise of federal judicial power. Clearly, their integrity and independence is not divisible between jurisdictions. This was recognised by McHugh J in Kable: Because the State courts are an integral and equal part of the judicial system set up by Ch III, it also follows that no State or federal parliament can legislate in a way that might undermine the role of those courts as repositories of federal judicial power.102

There is an analogy here with the reasoning in Stephens v West Australian Newspapers Ltd,103 which relied on the indivisibility of political affairs to include discussion of purely State affairs within the protection of the implied freedom of political communication under the Commonwealth Constitution.104 10.4.2.1 Existence of Supreme Courts The existence of a State Supreme Court at the apex of each State’s judicial system is implicitly recognised and hence guaranteed by Chapter III.105 Consequently, each State parliament is precluded from abolishing the Supreme Court and from leaving the State devoid of a State judicial system. Moreover, McHugh J suggested in Kable, without deciding the issue, that rights of appeal to a State Supreme Court from inferior State courts might also be guaranteed by the Constitution: [A] State law that prevented a right of appeal to the Supreme Court from, or a review of, a decision of an inferior State court, however described, would seem inconsistent with the principle expressed in s 73 and the integrated system of State and federal courts that covering cl 5 and Ch III envisages.106

Indeed, Professor Zines has suggested as arguable the proposition that this principle requires a right of appeal from any exercise of State judicial power to the 101 Fardon, above n 12, made it clear that no exercise of federal judicial power is required. Toohey J in Kable v Director of Public Prosecutions for New South Wales (1996) 189 CLR 51 relied on the fact that the proceedings in that case were an exercise of federal judicial power, although the other majority judgments merely relied on the fact that the New South Wales Supreme Court had been vested with federal judicial power. 102 Kable, see above n 65 at 116. 103 (1994) 182 CLR 211. 104 This approach is criticised in Chapter 4. 105 Section 73 confers a right of appeal from State Supreme Courts to the High Court. 106 (1996) 189 CLR 51 at 114.

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Supreme Court to ensure a right of appeal to the High Court. Since this would mean that all State judicial power needs to be vested in a State court, the States would be prevented, like the Commonwealth, from vesting their judicial power in a legislative or executive body.107 This would preclude, for instance, the enactment of a Bill of attainder by a State parliament and the vesting of State judicial power in an administrative body. This line of reasoning is unlikely to be adopted by the present High Court, but it provides the foundation for future recognition of a separation of judicial and non-judicial power at the State level. 10.4.2.2 Maintenance of ‘institutional integrity’ The High Court in North Australian Aboriginal Legal Aid Service Inc v Bradley108 accepted that Chapter III prevents the States and territories from undermining the integrity and independence of their courts vested with federal judicial power. The key submission accepted by the joint judgment without discussion was: [I]t is implicit in the terms of Ch III of the Constitution, and necessary for the preservation of that structure, that a court capable of exercising the judicial power of the Commonwealth be and appear to be an independent and impartial tribunal.109

The reference to a court ‘capable of exercising’ the judicial power of the Commonwealth presumably refers to State and territory courts which are vested with Commonwealth judicial power, rather than to any court which might be vested in the future. In Fardon v Attorney-General for the State of Queensland, the Court adopted the expression, ‘institutional integrity’, to describe the protection given by Chapter III for maintaining the judicial independence and integrity of State courts vested with federal jurisdiction.110 Members of the Court avoided describing the Kable principle in terms of preventing an impairment of public confidence in the judiciary, despite the use of that expression in the majority judgments in Kable. For instance, McHugh J had stated in Kable: [I]t is a necessary implication of the Constitution’s plan of an Australian judicial system with State courts invested with federal jurisdiction that no government can act in a way that might undermine public confidence in the impartial administration of the judicial functions of State courts.111

In Fardon, certain majority judgments downplayed this reference to public confidence. Gleeson CJ seemed to be concerned that any reference to public 107 Leslie Zines, ‘The States and the Constitution’ in Gabriel A. Moens (ed), Constitutional and International Law Perspectives (St Lucia: University of Queensland Press, 2000) 98, 113. 108 (2004) 218 CLR 146. 109 Ibid [29]. The judgment adopted by Gaudron J in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 363 [81] that Chapter III required State and territory courts to be constituted by judges who were impartial and appeared to be so. 110 (2004) 210 ALR 50 at [15] per Gleeson CJ, [37] per McHugh J, [102] per Gummow J, [141] per Kirby J, [198] per Hayne J; cf reference to ‘constitutional integrity’ at [213] per Callinan and Heydon JJ. 111 (1996) 189 CLR 51 at 118.

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confidence might suggest that the criterion of validity was the court’s opinion of its own standing.112 Gummow J (with whom Hayne J agreed) considered it merely an indicator, not a touchstone of invalidity.113 On the other hand, Callinan and Heydon JJ expressed no dissatisfaction with the reference to public confidence in Kable.114 Their approach, with respect, is the appropriate one. If a law is to be judged by reference to its tendency to undermine the institutional integrity of State courts, the effect of the law on public confidence in those courts is a significant factor. This is an objective test in the same way the common law rule of bias includes the appearance of bias as a vitiating factor. The joint judgment in Bradley even referred to this rule against bias as part of the protective shield of Chapter III.115 While not a touchstone of validity, public confidence remains one of the fundamental reasons for protecting the independence and integrity of the courts. With the ‘institutional integrity’ of the courts as the touchstone, the focus in Fardon was much more on whether the impugned law placed the courts or judges in a position where they were seen to be acting as an arm of the legislative or executive branches. It was on this basis that all the majority judgments distinguished the case from Kable.116 The power of the Queensland Supreme Court in Fardon to order the continued preventive detention of a prisoner – if the Court is satisfied that there is a high degree of probability that the prisoner will commit a serious sexual offence – was not one which was considered to be repugnant to the judicial process.117 The Court distinguished the New South Wales legislation in Kable on the grounds that there it was ad hominem and likely to create the impression that the Court was acting at the behest of the parliament or the executive. To that extent, it was incompatible with the exercise of federal judicial power. As Gummow J observed in Fardon, this notion of incompatibility is a close ‘if inexact’ analogy to that used to test the validity of the vesting of non-judicial functions in federal judges persona designata.118 In Wilson,119 the appointment of a federal court judge as a reporter to a minister was invalidated for being incompatible with the exercise of federal judicial power because the judge might have been perceived as part of the Executive. Similar appointments of State judges are also likely to violate the Kable principle. Clearly, there are other forms of incompatibility which tend to undermine ‘institutional integrity’. Any action on the part of a State which tends to undermine 112 Fardon, see above n 12 at [23]. 113 Ibid [102]. 114 Ibid [213]. 115 North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at [29]. 116 Fardon, see above n 12 per Gleeson CJ at [16], McHugh J at [33] and Gummow J at [107] with whom Hayne J agreed. 117 Note similar legislation arose in Victoria with the Community Protection Act 1990 (Vic) which provided for the preventive detention of Garry David. See Bryan Keon-Cohen, ‘Can the Victorian Parliament Abolish Fundamental Rights?’ in Sally-Anne Gerull and William Lucas (eds), Serious Violent Offenders: Sentencing, Psychiatry and Law Reform: Proceedings of a Conference held 29–31 October 1991 (Canberra: Australian Institute of Criminology, 1993). 118 Ibid [103]. His Honour noted the use of ‘repugnancy’ and ‘incompatibility’ in other constitutional doctrines; for example in reconciling conflicts between imperial law and colonial and State law, between Commonwealth and territory laws, and between statute and delegated legislation. 119 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (Hindmarsh Island case) (1996) 189 CLR 1.

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the independence and integrity of its courts vested with federal judicial power will be incompatible. That principle should also prevent interference in the judicial process which is repugnant to the ‘traditional legal process’. This was implicitly recognised in Fardon by Gummow J120 (with whom Hayne J agreed) and Callinan and Heydon JJ.121 Gleeson CJ upheld the Queensland legislation in that case on the basis that it authorised the Supreme Court ‘to act in a manner which is consistent with its judicial character’.122 Only McHugh J in Fardon suggested Chapter III is not violated just because a State law is repugnant to the judicial process. His Honour thought the mere vesting of a power or jurisdiction in a State court which is ‘repugnant to the traditional judicial process’ would seldom, if ever, compromise the institutional integrity of the court.123 States were free, in his view, to alter the burden of proof, the rules of evidence, or even empower courts to abrogate substantive rights on patently unjust grounds. This was consistent with the established principle that when the Commonwealth vests federal jurisdiction in State courts, it must take them as it finds them.124 His Honour warned that the circumstances in which a State law violates Chapter III must be rare, given ‘[t]he content of a State’s legal system and the structure, organization and jurisdiction of its courts are matters for each State’.125 However, he accepted that the Kable principle might be more likely invoked in relation to ‘the terms, condition and manner of appointment of State judges or in circumstances where State judges are used to carry out non-judicial functions’.126 In contrast, the dissenting judgment of Kirby J127 in Fardon described the Kable principle in the broadest terms, drawing on the majority judgments of Toohey, Gaudron, McHugh and Gummow JJ in Kable: It forbids attempts of State Parliaments to impose on courts, notably Supreme Courts, functions that would oblige them to act in relation to a person ‘in a manner which is inconsistent with traditional judicial process’.128 It prevents attempts to impose on such courts ‘proceedings [not] otherwise known to the law’, that is, those not partaking ‘of the nature of legal proceedings’.129 It proscribes parliamentary endeavours to ‘compromise the institutional impartiality’ of a State Supreme Court.130 It forbids the conferral upon State courts of functions ‘repugnant to judicial process’.131

This approach is, with respect, preferable to that suggested by McHugh J in Fardon. As the Commonwealth is precluded from interfering in the federal judicial process in ways repugnant to the traditional judicial process – in order to protect the institutional integrity of those courts vested with federal judicial power – so should Chapter III protect State courts vested with federal judicial power from similar State interference. Such a fundamental restriction on State power is not 120 (2004) 210 ALR 50 at [108] and [115]. 121 Ibid [220] and [233]. 122 Ibid [19]. 123 Ibid [41]. 124 Ibid [38] gives examples of features of State courts which the Commonwealth cannot change, including their structure, the use of masters, and absence of jury trials. 125 Fardon, see above n 12 at [40]. 126 Ibid [43]. 127 Ibid [141]. 128 Kable, above n 65 at 98 per Toohey J. See also Grollo v Palmer (1995) 184 CLR 348 at 363–5; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 8–9, 13–14, 20–2. 129 Kable, above n 65 at 106 per Gaudron J. 130 Ibid 121 per McHugh J. 131 Ibid 134 per Gummow J.

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equivalent to imposing the Commonwealth doctrine of separation of judicial power.132 This was made abundantly clear in Fardon.133 The focus of Chapter III in relation to the States is only to protect the exercise of federal judicial power. Accordingly, the States remain free to vest State judicial power in non-judicial tribunals or bodies134 and to vest non-judicial power in their courts – provided this is not incompatible with their exercise of federal judicial power.135 It may be that State legislatures are also not prevented from exercising judicial power themselves (even possibly by a Bill of attainder)136 since this involves no interference with the courts.137 But the States, like the Commonwealth, cannot undermine or impair the independence of their courts vested with federal judicial power. Accordingly, it is submitted that the Kable principle derived from Chapter III precludes the States from doing any of the following: ● vesting power in a State court which is incompatible with the exercise of federal judicial power (as in Kable); ● vesting non-judicial power in a State judge persona designata which is incompatible with the exercise of federal judicial power (as in Wilson); and appointing a State judge persona designata to a non-judicial body which is incompatible with the exercise of federal judicial power (as argued in Drake and Grollo); ● interfering with the tenure of State judges in a manner which undermines the institutional integrity of their courts; and ● interfering in judicial proceedings of a State court vested with federal jurisdiction, in a manner which undermines the institutional integrity of that court. Each of these restrictions on State power is considered in turn. Application of Kable principle A majority of the High Court in Kable v Director of Public Prosecutions (NSW)138 established the principle that the separation of judicial power prescribed by

132 Cf McHugh J, ibid 118–19. 133 Fardon, above n 12 per McHugh J at [40], Gummow J at [86] (with whom Hayne J agreed); Callinan and Heydon JJ at [219]. 134 Ibid [40] per McHugh J who suggests that State tribunals can be vested with power to determine criminal guilt or to sentence offenders; therefore, the States could abolish criminal trials and substitute an inquisitorial system for the adversarial system. An important qualification to that view is, however, that if Chapter III requires a State to maintain a State judicial system, a significant divestment of State judicial power from the courts to non-judicial bodies may be considered to breach that requirement. 135 Recognised in Kable, above n 65 per Gaudron J at 106; Fardon, above n 12 per McHugh J at [40]; Gummow J at [86]. Kirby J at [144.4] qualified the power to vest non-judicial power in State courts provided this did not go ‘beyond the traditional judicial process or [be] repugnant to the ordinary judicial role’. 136 In Fardon, above n 12, Gummow J at [118] and Callinan and Heydon JJ at [219] agreed that there was no Bill of penalties in that case. They did not explain what the position would have been had they found one. 137 See Kable, above n 65 per McHugh J at 121, see also Gaudron J at 103–4; Vicki Mullen, ‘Fundamental Rights and the Separation of State Legislative and Judicial Power’ (1999) 2 Constitutional Law & Policy Review 1, 7–8. But it could be argued that such usurpation of judicial power by legislatures does undermine judicial independence simply by undermining the rule of law. If this is so, the old adage that State legislatures could order the death of all blue-eyed babies would no longer be legally possible. 138 (1996) 189 CLR 51 per Toohey, Gaudron, McHugh and Gummow JJ; contra Brennan CJ and Dawson J.

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Chapter III of the Commonwealth Constitution prevents the vesting in State courts, vested with federal jurisdiction, of any non-judicial power which is incompatible with the exercise of federal judicial power. While the Court139 generally avoided any comparison with the doctrine of incompatibility applied in the Commonwealth persona designata cases, there appears to be little difference between the two tests of incompatibility. Both are concerned to protect the independence and integrity of the repositories of federal judicial power.140 Kable involved a challenge to the validity of the Community Protection Act 1994 (NSW), the express object of which in s 3(1) was ‘to protect the community by providing for the preventive detention (by order of the Supreme Court made on the application of the Director of Public Prosecutions) of Gregory Wayne Kable’. Kable was then in prison. He had been charged with the murder of his wife but his guilty plea to manslaughter was accepted by the Crown on the ground of diminished responsibility. While in prison, he wrote threatening letters to his deceased wife’s family in relation to his children who were in their care. Consequently, he was facing 17 charges under s 85S of the Crimes Act 1914 (Cth) for improper use of postal services. The Supreme Court of New South Wales was empowered by s 5(1) of the Act to order the detention in prison for maximum periods of six months of ‘a specified person’ if satisfied on reasonable grounds that he was more likely than not to commit a serious act of violence and it was appropriate for the protection of particular persons or the community that he be held in custody. Section 3(2) also provided that ‘[i]n the construction of this Act, the need to protect the community is to be given paramount consideration.’ The Act was originally drafted to apply to a class of persons but when enacted was confined to Kable although certain general terms of the legislation (of no significance in this case) were not deleted. The challenge to the Act was based principally on the doctrine of separation of powers applying in New South Wales and on Chapter III of the Commonwealth Constitution. The Court of Appeal of New South Wales upheld the Act and special leave was granted to appeal to the High Court. As noted earlier, the argument based on a State doctrine of separation of powers was rejected by Brennan CJ, Dawson, Toohey and McHugh JJ.141 But the second ground based on Chapter III succeeded and the Act was held invalid by a different majority of the Court (Toohey, Gaudron, McHugh and Gummow JJ; Brennan CJ and Dawson J dissented) on the basis that the vesting of the power in the Supreme Court of New South Wales to order the detention of Kable was incompatible with the exercise of federal judicial power vested in that Court pursuant to s 77(iii) of the Constitution and consequently infringed Chapter III. There are three essential steps to the reasoning of the majority:

139 Except for Toohey J at 95–6. 140 But Toohey J at 98 applied the same doctrine, while Gaudron J at 103 distinguished between the two. 141 Ibid Brennan CJ at 65 (agreed with Dawson J), Dawson J at 77–80, Toohey J at 92–4, McHugh J at 109.

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State Supreme Courts are part of the integrated Australian legal system as repositories of federal judicial power by virtue of s 77(iii) and s 39 of the Judiciary Act 1903 (Cth).142 As repositories of federal judicial power, State Supreme Courts are to be accorded the same protection of judicial independence as other federal courts – any suggestion that there exist two grades of judicial power was firmly rejected.143 Hence, the independence and integrity of State Supreme Courts cannot be undermined by State parliaments by, for example, vesting in them non-judicial powers which are incompatible with the exercise of federal judicial power.144 Such incompatibility arises where public confidence in the integrity or independence of those courts is eroded.145 The Community Protection Act 1994 (NSW) vested in the New South Wales Supreme Court such an incompatible power because public confidence in the Court’s independence was compromised by engaging in a non-judicial activity on behalf of the Executive in ordering preventive detention without finding any breach of the law.146 Gaudron J referred to this as the ‘antithesis of the judicial process’,147 while Gummow J described the power as ‘repugnant to the judicial process in a fundamental degree’.148

Toohey J adopted a slightly different approach to the other majority justices in clearly relying on the fact that the Supreme Court was actually exercising federal jurisdiction to apply Chapter III. Mr Kable had raised in the Court of first instance and in the Court of Appeal of New South Wales certain constitutional defences, namely, an implied right to equality and a right to trial by jury under s 80.149 But this appeared to have no relevance to the reasoning of the other majority justices.150 It is hard to see how this factor is relevant when any litigant can attract federal jurisdiction by raising a constitutional issue. Still, the strict ratio of Kable requires the Court to be exercising federal jurisdiction in line with the approach of Toohey J. Only Toohey J considered that the doctrine of incompatibility he applied was the same as that applied in Grollo and Wilson. The other majority justices either did not draw any comparison or distinguished the two doctrines. In Fardon, Gummow J regarded the Wilson notion of incompatibility as a close but inexact analogy151 because, no doubt, the Wilson notion applies to the persona 142 Ibid Gaudron J at 102, McHugh J at 111–15, Gummow J at 137–9; also necessarily implied from covering clause 5 and ss 51(xxiv), (xxv), 73 and 118 that there exist a State judicial system. 143 Ibid Gaudron J at 103; McHugh J at 114; Gummow J at 138. 144 Although Toohey J relied on the fact that the New South Wales Courts in this case were exercising federal judicial power, because Mr Kable had raised Chapter III, the other majority judgments appear not to rely on this fact. 145 Ibid Gaudron J at 104, McHugh J at 116 and 121, Gummow J at 133–4; cf Toohey J who at 96 and 98 relied on the doctrine of incompatibility applied in Grollo v Palmer (1995) 184 CLR 348. For criticism of this notion of ‘public perception’: see Hayne JA in R v Moffatt [1998] 2 VR 229 at 251 and Elizabeth Handsley, ‘Public Confidence in the Judiciary: A Red Herring for the Separation of Judicial Power’ (1998) 20 Sydney Law Review 183, especially 197. 146 (1996) 189 CLR 51 per Toohey J at 98, Gaudron J at 107, McHugh J at 123–4, Gummow J at 131–4. 147 Ibid. 148 Ibid 132. 149 Gummow J merely raised this point but appears not to base his judgment on it. 150 Ibid McHugh J at 621, Gummow J at 638; Gaudron J made no reference to this point. 151 (2004) 210 ALR 50 at 103.

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designata appointment of federal court judges, but the Kable notion applies to the vesting of power in State and territory courts. The dissenting judgments of Brennan CJ and Dawson J relied on the wellestablished principle in Alexander’s case152 that the Commonwealth takes State courts as it finds them when vesting them with federal judicial power. In other words, although the Commonwealth may prescribe the practice and procedure for the exercise of federal judicial power, it cannot alter the character or constitution of State courts.153 Brennan CJ confined the Grollo concept of incompatibility to the vesting of non-judicial powers in judges persona designata and the absence of any foundation in the text or structure of the Constitution for the majority’s view.154 Dawson J responded to the view of the integrated Australian judicial system by denying there was a unitary judicial system. The State courts were not merely a component of the federal judicature.155 Additionally, his Honour recognised that the Constitution draws a clear distinction between federal courts and State courts exercising federal jurisdiction because the Constitution does not provide security of tenure for State judges nor prevent the States from vesting nonjudicial power in State courts.156 Finally, Grollo’s concept of incompatibility was considered irrelevant, being derived from the separation of powers prescribed by the Constitution to which the States are not subject.157 The minority’s reliance on the principle in Alexander’s case, where the Commonwealth takes State courts as it finds them, is a powerful argument. It casts the onus on the Commonwealth to be satisfied that the repository of federal judicial power is appropriate. It also avoids the problem, not referred to in the majority judgments, where there is an incompatible power vested in a State court prior to the vesting of federal judicial power. Does the vesting of federal judicial power render invalid the incompatible power? Instead, why is the vesting of federal judicial power not invalid in such a case? The majority’s powerful reply is that the importance of protecting the independence of the exercise of federal judicial power is accorded paramountcy over the sensitivities of State autonomy. Here again, the necessity to protect Commonwealth constitutional guarantees inevitably means that those guarantees tend to creep – or even leap when necessary – into the State field.158 On the basis of the Kable decision, it has been suggested that the establishment of a State administrative review jurisdiction might be in doubt.159 The conferral of jurisdiction to give an advisory opinion might also be incompatible if the advice sought is political or non-judicial in nature.160 These suggestions must now be viewed in the light of the decision in Fardon which regarded Kable as a rare and 152 Federated Sawmill, Timberyard and General Woodworkers’ Employees’ Association (Adelaide Branch) v Alexander (1912) 15 CLR 308 at 313 per Griffith CJ. 153 (1996) 189 ALR 51 at 66–67 per Brennan CJ and at 82 per Dawson J. 154 Ibid 67–8. 155 Ibid 83–4. 156 Ibid 82. 157 Ibid 86. 158 A similar criticism is made of the implied freedom of political discussion as a restriction on State power in Gerard Carney, ‘The Implied Freedom of Political Discussion – Its Impact on State Constitutions’ (1995) 23 Federal Law Review 180, 187–92. 159 See Campbell, above n 2, 411. But McHugh J in Kable, above n 65 at 117 saw no difficulty with this. 160 Campbell, ibid 409–11. Cf Mellifont v Attorney-General of Qld (1991) 173 CLR 289.

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exceptional case. As noted earlier, the New South Wales legislation in Kable was distinguished in Fardon from the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) which conferred jurisdiction on the Queensland Supreme Court to order the continued detention of a prisoner if the Court is satisfied that there is a high degree of probability that the prisoner will commit a serious sexual offence. Kable was distinguished on the grounds that the New South Wales legislation was ad hominem (directed only to Mr Kable) and was likely to create the impression that the Court was acting at the behest of the parliament or the Executive. The Queensland Act avoided both of these indicia of incompatibility. Yet the significant difficulty in Kable remained in Fardon – the continued incarceration of prisoners on the basis of what they are likely to do, if released, not on the basis of what they have done. This point was particularly made in Kable by Toohey J and Gummow J. Toohey J found incompatibility because the New South Wales Act ‘requires the Supreme Court to participate in the making of a preventive detention order where no breach of the criminal law is alleged and where there is no determination of guilt’.161 Similarly, Gummow J regarded the most significant feature of the New South Wales Act was: . . . whilst imprisonment pursuant to a Supreme Court order is punitive in nature, it is not consequent upon any adjudgment by the Court of criminal guilt. Plainly, in my view, such an authority could not be conferred by a law of the Commonwealth upon this Court, any other federal court, or a State court exercising federal jurisdiction. Moreover, not only is such an authority non-judicial in nature, it is repugnant to the judicial process in a fundamental degree.162

The sole dissent of Kirby J is a passionate plea to restore effect to the Kable principle which had become a ‘chimera’ – a fanciful conception.163 His Honour emphasised its importance: . . . when the rights of unpopular minorities are committed to the courts. That is when legislatures may be tempted to exceed their constitutional powers, involving the independent judiciary in incompatible activities so as to cloak serious injuries with the semblance of judicial propriety. Against such risks, Chapter III of the Constitution stands guard. This Court should be vigilant to uphold such protection. That is what the principle in Kable requires.164

Bradley established that Kable is only one manifestation of the fundamental principle derived from Chapter III which prevents the States from undermining the independence and integrity of their courts vested with federal judicial power. The other restrictions which flow from that principle, suggested above, are now considered. Persona designata appointments of State judges Where a judge of a State court vested with federal judicial power is appointed in a personal capacity (that is, persona designata) to a non-judicial body or is 161 Kable, above n 65 at 98.

162 Ibid 132.

163 Fardon, above n 12 at [134].

164 Ibid [135].

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vested in a personal capacity with a non-judicial power, in each case this must be compatible with the exercise of federal judicial power. This requirement of compatibility was first established in relation to Commonwealth appointments which were permitted as an exception to the strictness of the Boilermakers principle. But, as McHugh J recognised in Kable,165 the same requirement must also extend as a restriction on State power to protect the independence and integrity of State courts. In addition to this requirement of compatibility is the requirement that the judges concerned must consent to their persona designata appointment.166 To understand how these principles apply to the States, it is worthwhile considering the Commonwealth position. The notion of persona designata appointments was first adopted in Drake v Minister for Immigration and Ethnic Affairs167 which upheld the appointment of a federal judge as President of the Administrative Appeals Tribunal – a nonjudicial body. The same approach was also applied in Hilton v Wells168 where a majority of the High Court (Gibbs CJ, Wilson and Dawson JJ) upheld the vesting in Federal Court judges persona designata of the non-judicial power of issuing interception warrants under the Telecommunications (Interception) Act 1979 (Cth). The minority of Mason and Deane JJ accepted the persona designata principle as an exception to the Boilermakers case but on the facts found that the power had not been vested in the judges in their personal capacity. Both the majority and minority judgments warned that the Boilermakers principle would invalidate the vesting of incompatible powers.169 After the 1979 Act was amended to overcome the doubts raised by the minority judgments of Mason and Deane JJ in Hilton v Wells, a further challenge was brought in Grollo v Palmer,170 mainly on the basis that this persona designata exception was unsustainable as a charade. The joint majority of the Court (Brennan CJ, Deane, Dawson and Toohey JJ; McHugh J in dissent) rejected the challenge on the ground that the two conditions prescribed by the minority judgment of Mason and Deane JJ in Hilton v Wells were satisfied: [F]irst, no non-judicial function that is not incidental to a judicial function can be conferred without the judge’s consent; and, second, no function can be conferred that is incompatible either with the judge’s performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power.171

The joint judgment suggested incompatibility might arise in the following ways:172

165 (1996) 138 ALR 577 at 116–17. 166 See the criticism of the appointment of New South Wales District Court judges to the Gaming Tribunal and the Police Tribunal by Street CJ in Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1 at 5 and 6. 167 (1979) 24 ALR 577. 168 (1985) 157 CLR 57. 169 Ibid 73–4 per the joint judgment of Gibbs CJ, Wilson and Dawson JJ. 170 (1995) 184 CLR 348. 171 Ibid 364. 172 Ibid 365.

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. . . so permanent and complete commitment to the performance of non-judicial functions by a judge that the further performance of substantial judicial functions by that judge is not practicable. . . . the performance of non-judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions with integrity is compromised or impaired. . . . the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions is diminished.

Their Honours went on to identify the principle underlying these examples of incompatibility: Judges appointed to exercise the judicial power of the Commonwealth cannot be authorised to engage in the performance of non-judicial functions so as to prejudice the capacity either of the individual judge or of the judiciary as an institution to discharge effectively the responsibilities of exercising the judicial power of the Commonwealth.173

This principle was said to be ‘implied from the separation of powers mandated by Chapters I, II and III of the Constitution and from the conditions necessary for the valid and effective exercise of judicial power’.174 Reference175 also was made to the approach taken by the United States Supreme Court in Mistreeta v United States: ‘The ultimate inquiry remains whether a particular extrajudicial assignment undermines the integrity of the Judicial Branch.’176 The joint judgment concluded that no incompatibility arose in this case despite the ‘troubling’ argument that the obligation of secrecy attaching to the proceedings for the issue of a warrant might place a judge in an invidious position if related legal proceedings were to be heard by that judge. Court practices would need to evolve to avoid this danger. While the joint judgment accepted that judicial participation in criminal investigation would be incompatible, the power in this case was not so regarded. Although the clandestine proceedings before a judge might be of concern, this secrecy necessitated the use of a judge whose: . . . professional experience and cast of mind of a judge is a desirable guarantee that the appropriate balance will be kept between the law enforcement agencies on the one hand and criminal suspects or suspected sources of information about crime on the other.177

In dissent, McHugh J concluded that the nature of the power to issue interception warrants to authorise an invasion of privacy for the purposes of a criminal investigation and the manner of its in camera exercise were likely to give rise to a direct conflict with the judges’ judicial functions which meant that ‘public confidence in the ability of the judges to perform their judicial functions in an independent and impartial manner is likely to be jeopardised’.178 This doctrine of incompatibility is equally applicable to the personal appointment of a federal judge to a non-judicial body such as the Administrative Appeals 173 Ibid. 174 Ibid. 175 Ibid. 176 (1989) 488 US 361 at 404. 177 (1995) 184 CLR 348 at 367.

178 Ibid 378.

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Tribunal in Drake v Minister for Immigration and Ethnic Affairs.179 A further opportunity to apply this doctrine of incompatibility to this type of case arose in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs,180 where the minister nominated a judge of the Federal Court to prepare a report under s 10(1)(c) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) on an area of Hindmarsh Island in South Australia to enable him to decide whether to issue a declaration to preserve the area as one of Aboriginal significance. The plaintiffs, nine Aboriginal women connected with Hindmarsh Island, challenged the validity of the appointment as incompatible with her Federal Court commission or with the proper performance of her judicial duties. This challenge was upheld by a joint majority of the Court (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; Kirby J dissented) on the basis181 of the third example of incompatibility given in Grollo v Palmer: . . . the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions is diminished.182

The joint judgment concluded that the appointment was incompatible since the judge was ‘firmly in the echelons of administration . . . in a position equivalent to a ministerial advisor’, required to make political decisions (for example, the extent of the area to be protected), nor was she required to act independently.183 In dissent, Kirby J found no incompatibility, given the clear divorce in law and appearance between the appointment as a judge and appointment as reporter; the duties of reporter were closer to judicial duties than those in Grollo; the appointment was to utilise her judicial qualities of detachment and was consistent with a century of experience of appointment of judges to troublesome inquiries.184 The primary concern of the majority was the use being made, particularly by the executive branch, of the judicial talents of those in judicial office. The same concern had been expressed by the United States Supreme Court in Mistreeta v United States: The legitimacy of the Judicial Branch ultimately depends upon its reputation for impartiality and nonpartisanship. That reputation may not be borrowed by the political branches to cloak their work in the neutral colors of judicial action.185

Although the joint majority indicated that the appointment of federal judges to head royal commissions and non-judicial bodies such as the Administrative Appeals Tribunal is not necessarily incompatible because they are required to act independently or judicially,186 Wilson has dissuaded the Commonwealth Executive from appointing federal justices to persona designata positions. The benefit of judicial impartiality cannot now be used for the purpose of defusing publicly 179 (1979) 24 ALR 577. 180 (1996) 189 CLR 1. 181 Ibid 230. 182 (1995) 184 CLR 348 at 365. 183 (1996) 138 ALR 220 at 230–3. 184 Ibid at 255–7. Yet his Honour could not point to any precedent where a federal judge had been appointed as an advisor to a minister. 185 (1989) 488 US 361 at 407. 186 Ibid 231.

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contentious issues without assessing the risk which judicial involvement may pose for public confidence in the impartiality of the judiciary. Instead, there is now greater reliance on retired judges to conduct public inquiries. This may reflect Commonwealth recognition of the artificiality of this device of persona designata.187 The Kable principle means that these principles, developed in relation to the persona designata appointment of federal judges, apply equally to the appointment of State judges. Accordingly, Chapter III also restricts State vesting of executive functions in a State judge persona designata (as in Grollo) and State appointments of State judges persona designata to a non-judicial body (as in Wilson). It follows from Fardon,188 that in each case, the vesting or appointment would be invalid if it gives the appearance that the State court as an institution is not independent of the Executive. McHugh J adverted to this in Fardon.189 But in Kable, his Honour acknowledged few judicial persona designata appointments made at the State level would be invalid. For instance, he saw no problem with the appointment of the Chief Justice as Lieutenant-Governor or of a judge as a member of an electoral commission with responsibility for fixing electoral boundaries, but thought the appointment of the Chief Justice of the Supreme Court to Cabinet might well be incompatible.190 With respect, even the first two instances of persona designata appointment are arguably incompatible. Interference with tenure of State judges Superior Court judges in all States are liable to be removed by the Governor on an address from parliament. In some cases, the grounds of removal are confined to proved misbehaviour or incapacity; in other cases, removal may be on any ground. Their appointment is not constitutionally guaranteed to a specified retirement age. Fixed term appointments are common. Except in New South Wales191 and Victoria,192 the security of tenure of State judges is precarious, as it is liable to normal legislative amendment. And even in New South Wales and Victoria, the purported entrenchment of their judiciary is unlikely to be binding.193 This contrasts with the security of tenure enjoyed by federal judges under s 72 of the Commonwealth Constitution who hold office until 70 years of age and can only be removed for proved misbehaviour or incapacity. Since Kable, it can be said that the protective shield of Chapter III prevents the States from interfering with the tenure of their judges in such a way as to undermine their independence and impartiality. Given the approach taken in 187 See Walker, above n 93. Cited there at 154 is Holmes v Angwin (1906) 4 CLR 297 which held that the non-judicial power to hear disputed election petitions in a Court of Disputed Returns was vested in Western Australian Supreme Court judges persona designata, and not in the Supreme Court of Western Australia. Hence, there was no right of appeal to the High Court pursuant to s 73 of the Commonwealth Constitution. See criticism of this case by Dixon J in Medical Board of Victoria v Meyer (1937) 58 CLR 62 at 97. 188 Fardon, above n 12 per McHugh J who recognised this at [43]. 189 Ibid. 190 On the other hand, Gaudron J did not extend the doctrine of incompatibility to this extent noting that it was different from the Grollo doctrine at 103–4. 191 Constitution Act 1902 (NSW) s 53. 192 Constitution Act 1975 (Vic) s 77. 193 See earlier in this chapter.

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Bradley, an extreme case appears needed to convince the present High Court of an impermissible interference. The Court in Bradley unanimously found that the unusual terms of appointment of the Chief Magistrate of the Northern Territory did not violate Chapter III. Although appointed to the age of 65, the incumbent’s salary was only determined for a period of two years, after which it needed to be renegotiated. Gleeson CJ observed that Chapter III tolerates a wide range of judicial tenure: Within the Australian judiciary, there are substantial differences in arrangements concerning the appointment and tenure of judges and magistrates, terms and conditions of service, procedures for dealing with complaints against judicial officers, and court administration. All those arrangements are relevant to independence. The differences exist because there is no single ideal model of judicial independence, personal or institutional. There is room for legislative choice in this area; and there are differences in constitutional requirements. For example, s 72 of the Constitution does not permit the appointment of federal acting judges. On the other hand, acting judges are commonly appointed for fixed, renewable, terms in some States and Territory courts.194

Given the leniency of this approach, extreme cases are needed to attract Chapter III protection. Legislative instances might include an attempt to remove a judge for reasons other than incapacity or misbehaviour, or the abolition of a court or the transfer of its jurisdiction in response to unfavourable decisions. It might also include executive manipulation, such as the appointment of judges, poor rates of pay for judges, public denigration of the court, and deprivation of funding for adequate staff and resources. In each case the position would need to be extreme to warrant the invocation of Chapter III. Still, at least Chapter III provides an ultimate safeguard, although not one which is likely to resist incremental erosion of judicial independence. Incompatible interference in the judicial process To effectively protect judicial independence, Chapter III must also prevent a direct assault on the independence and impartiality of the judicial process itself. As Fiona Wheeler has noted, there is little point in the Commonwealth Constitution vesting the federal judicial power in s 71 courts if these entities are required to act other than as ‘courts’ or other than in accordance with ‘the judicial process’.195 Consequently, from Chapter III a constitutional guarantee of due process exists which protects the essential character of a court and the judicial process. This restriction on Commonwealth power was succinctly recognised by the joint judgment of Brennan CJ, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration in holding that Commonwealth power cannot:

194 [2004] HCA 31 at [3]. 195 Fiona Wheeler, ‘The Doctrine of Separation of Powers and Constitutionally Entrenched Due Process in Australia’ (1997) 23 Monash University Law Review 248, 254.

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. . . extend to the making of a law which requires or authorizes the courts in which the judicial power of the Commonwealth is exclusively vested to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power.196

This statement drew on earlier recognition of Chapter III due process rights in Polyukhovich v Commonwealth197 by Deane, Toohey and Gaudron JJ. The foundation of these rights was explained by the joint judgment of Deane and Toohey JJ in Leeth v Commonwealth198 on the basis that Chapter III is concerned with both the allocation of judicial power and its exercise: Those provisions [of Ch III] not only identify the possible repositories of Commonwealth judicial power. They also dictate and control the manner of its exercise. They are not concerned with mere labels or superficialities. They are concerned with matters of substance. Thus, in Ch III’s exclusive vesting of the judicial power of the Commonwealth in the ‘courts’ which it designates, there is implicit a requirement that those ‘courts’ exhibit the essential attributes of a court and observe, in the exercise of that judicial power, the essential requirements of the curial process, including the obligation to act judicially.199

This aspect of Chapter III protection has the potential to prevent a wide range of legislative and executive interference, as discussed below.200 However, few infringements have been found. A further consequence of Kable is that the States must also be subject to the same constraint in relation to their courts vested with federal judicial power. On this basis, State parliaments are precluded from enacting legislation which impermissibly ‘interferes’ with those courts and the exercise of their federal jurisdiction. This protection must also protect the exercise of State jurisdiction, given that any impairment of their independence and integrity in the exercise of either jurisdiction will influence the other. Support for this restriction on State power is found in John Fairfax Publications Pty Ltd v Attorney-General (NSW)201 where Spigelman CJ observed that the reasoning of the majority in Kable was broad enough to extend Chapter III protection to the State judicial process.202 The same test, applied in Kable to the vesting of non-judicial power, was applied to an interference in the judicial process. In John Fairfax, the New South Wales Court of Appeal found no breach of Chapter III, upholding the validity of certain provisions of the Supreme Court Act 1970 (NSW) which required any appeal by the Attorney-General on a question of law against an acquittal for contempt of court to be held in camera and, in addition, prohibited publication of the submissions and of the identity of the respondent. The Chief Justice posed the test from Kable as to the validity of these restrictions by asking: 196 (1992) 176 CLR 1 at 27. 197 (1991) 172 CLR 501 at 607, 689, 703. 198 (1992) 174 CLR 455 at 486–7. 199 Ibid 487. 200 See, for example Wheeler, above n 195, 248. 201 (2000) 181 ALR 694.

202 Ibid 701 [32–4].

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[whether they] involve such an interference with the conduct of an appeal and a distortion of its predominant characteristics, as to involve the appellate court in the determination of questions otherwise than by the exercise of the judicial power of the Commonwealth?203

An impermissible interference in the judicial process might be one which targets specific proceedings, existing or pending, or it might be one which applies generally to legal proceedings. The former ipso facto offends the court’s independence, since it targets the adjudicative function of the judicial process. However, as with the Commonwealth restriction, a distinction needs to be drawn between an impermissible direction to the courts ‘as to the manner and outcome of the exercise of their jurisdiction’,204 and a valid declaration of substantive rights at issue in pending proceedings.205

Specific directions to a court A fine line needs to be drawn here between a law which directs a court as to how it should exercise its jurisdiction and a law which merely alters the substantive rights of the parties.206 The former is incompatible; the latter is not. Instances of an impermissible direction in specific legal proceedings are rare but they can be found in Liyanage v The Queen,207 the NSW BLF case208 and Chu Kheng Lim v Minister for Immigration.209 In Liyanage v The Queen, legislation enacted by the Ceylon Parliament in the aftermath of an attempted coup was held invalid for usurping the judicial process in breach of the doctrine of separation of powers which was necessarily implied from the text and structure of the Ceylon Constitution. The law applied only to those charged and in prison awaiting trial in relation to the coup; so their trial was to be heard by a special tribunal of three judges with no jury. Inadmissible evidence was permitted, and if convicted they faced a minimum sentence of 10 years’ imprisonment with their property confiscated.210 The Board viewed this as a legislative attempt to secure their conviction and constituted ‘a grave and deliberate incursion into the judicial sphere’.211 In the NSW BLF case, a week before the hearing by the New South Wales Court of Appeal of an appeal by the New South Wales BLF against its deregistration, the New South Wales Parliament enacted legislation212 which was held to constitute a direction to the Court in respect of that appeal in breach of the doctrine of separation of powers. The relevant provision was in these terms: 203 Ibid 703 [49]. 204 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 37 per Brennan, Deane and Dawson JJ. See also Liyanage v The Queen [1967] 1 AC 259. 205 See Australian Building Construction Employees’ and Builders’ Labourers’ Federation v Commonwealth (1986) 161 CLR 88 at 96–7; Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495 at 503–4, 579–80; R v Humby; Ex parte Rooney (1973) 129 CLR 231 at 250; Mabo v Queensland (1988) 166 CLR 186 at 202 per Wilson J with whom Mason CJ agreed at 195. 206 It is sometimes impossible to draw the line between these two situations: Liyanage v The Queen [1967] 1 AC 259 at 288–92. 207 [1967] 1 AC 259. 208 (1986) 7 NSWLR 372 (NSW Court of Appeal) Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations. 209 (1992) 176 CLR 1 at 27. 210 [1967] 1 AC 259 at 289–92. 211 Ibid 290. 212 Builders Labourers Federation (Special Provisions) Act 1986 (NSW).

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(1) The registration of the [NSW BLF] shall, for all purposes, be taken to have been cancelled on 2 January 1985 by the operation of, and pursuant to, the Industrial Arbitration (Special Provisions) Act 1984. (2) In addition, the action of the Minister administering the Industrial Arbitration (Special Provisions) Act 1984 in giving or purportedly giving, before the commencement of this Act, a certificate referred to in that Act shall (to the extent, if any, that that action was invalid) be treated for all purposes, as having been valid . . . (emphasis added)

At that time, no relief was granted because the doctrine of separation of judicial power was not binding in New South Wales. The outcome might well be different today on the basis of the Kable principle (see below). In Chu Kheng Lim v Minister for Immigration,213 s 54R of the Migration Act 1958 (Cth) provided that a ‘court is not to order the release from custody of a designated person’. This provision was enacted two days prior to the hearing of a challenge in the Federal Court to the detention of illegal immigrants. The joint judgment of Brennan, Deane and Dawson JJ and Gaudron J observed that this direction prevented the Court from ordering the release of a detainee who was being held unlawfully. Accordingly, s 54R was held invalid because ‘s 54R is a direction by the parliament to the courts as to the manner in which they are to exercise their jurisdiction . . . [and so constituted] an impermissible intrusion into the judicial power which Ch III vests exclusively in the courts which it designates’.214 It is evident from these decisions that the language of the statute is critical in finding an impermissible direction to the court. The italicised words in the above provision from the NSW BLF case were crucial in establishing a direction to the Court. That language must be contrasted with the text of the Commonwealth legislation enacted to deregister the federally registered BLF, which was challenged in Australian Building Construction Employees’ and Builders Labourers’ Federation v Commonwealth.215 Unlike the timing of the New South Wales legislation, the Commonwealth minister announced his intention to enact this legislation before the BLF applied for judicial review of various declarations made by the Australian Conciliation and Arbitration Commission. The impugned Commonwealth legislation216 simply provided: The registration of the [BLF] under the Conciliation and Arbitration Act 1904 is, by force of this section, cancelled.217

The joint judgment of the High Court held this did not deal with any aspect of the judicial process – it merely legislated ‘so as to affect and alter rights in issue in pending litigation without interfering with the exercise of judicial power’.218 Despite the intent to defeat the pending proceedings, this was irrelevant. 213 (1992) 176 CLR 1 at 27. 214 Ibid 37. 215 (1986) 161 CLR 88. 216 Builders Labourers’ Federation (Cancellation of Registration) Act 1986 (Cth). 217 Section 3. 218 Ibid 96.

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This appears an unsatisfactory result because it allows parliament to achieve its purpose by careful drafting.219 It is axiomatic now that form should not override substance.220 Yet, the manner in which legislation is drafted can damage the appearance of judicial independence and integrity. The outcome in the Commonwealth BLF case was exactly what the New South Wales BLF legislation sought to achieve. The difference between the two cases is simply the text of the impugned legislation. Since Kable, the NSW BLF case should now be decided differently, since the interference tends to undermine the independence and integrity of the court. It is doubtful, though, whether the present High Court would form such a view, given the very cautionary tone of the judgments in Fardon.

A general interference Even where no direction to a court is found in relation to specific proceedings, State legislation may still be invalid if it purports to direct a State court to exercise its jurisdiction in ‘a manner which is inconsistent with the essential character of a court or with the nature of judicial power’.221 What are the essential attributes of a court within Chapter III? And what are the essential requirements of the curial process? Guidance is provided by jurisprudential analysis of the rule of law, and by the traditions of the judicial process. A central attribute of the curial process are the rules of procedural fairness including the rules against bias. There is scope to claim other attributes. For instance, laws which are likely to infringe Chapter III for undermining the integrity and independence of the courts by interfering in the judicial process might include: a law to provide for the trial of certain coup leaders without a jury on inadmissible evidence to secure their conviction (Liyanage);222 a law directing the courts to disregard an illegality (Nicholas v The Queen223 per Kirby J224 and McHugh J in dissent); a law empowering a court to order the detention of a person for fear of what they might do if released – not for any breach of the law (Kable); and a law which deems a person to be convicted of an offence.225 An impermissible interference might also occur where a right of appeal is abolished or judicial review is denied in circumstances which undermine the perceived independence of the judicial system.226 Yet the acceptance in Abebe v

219 For example, see Bachrach Pty Ltd v Queensland (1998) 195 CLR 547. Note that at the Commonwealth level, a legislative abrogation of a vested chose in action constitutes a compulsory acquisition of property for which a right to fair compensation arises under s 51(xxxi): see Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297. No such guarantee exists under State Constitutions but there is under the ACT (Self-Government) Act 1988 (Cth) s 23(1)(a) and Northern Territory (Self-Government) Act 1978 (Cth) s 50. 220 Peter Gerangelos, ‘The Separation of Powers and Legislative Interference with Judicial Functions in Pending Cases’ (2002) 30 Federal Law Review 1. 221 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27 per Brennan, Deane and Dawson JJ, adopting similar comments in Polyukhovich v Commonwealth (1991) 172 CLR 501 at 607, 689, 703–4. 222 Liyanage v R [1967] 1 AC 259. 223 (1998) 193 CLR 173. 224 Ibid 264. 225 Cf Bennett v HREOC (2004) 204 ALR 119 where the High Court accepted the validity of the Crimes (Confiscation of Profits) Act 1998 (WA) which provided that a person is ‘taken to have been convicted of a serious offence’ if they die between being charged and determination of the charge, for purposes of forfeiture of property. 226 These two instances are cited by Campbell, above n 2, 412–13.

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Commonwealth227 and Plaintiff S157 v Commonwealth228 of the privative clauses in the Migration Act 1958 (Cth) which ousted judicial review by the Federal Court of a range of Commonwealth immigration decisions, suggests that Chapter III may have little or no role here, even at the Commonwealth level.229 A further instance of an impermissible interference, identified by Spigelman CJ in John Fairfax Publications Pty Ltd v Attorney-General (NSW),230 would be an in camera requirement for all or certain proceedings involving the State of New South Wales.231 The Chief Justice emphasised though that only State legislation of an ‘exceptional nature’ would be invalid.232 Like a string of other cases cited,233 this challenge was also unsuccessful, despite the erosion of the fundamental principle of open justice in this case, because the restrictions operated as ‘a limited and justifiable exception’ to that principle by allowing individuals the ‘right not to have an acquittal of a criminal charge called into question’. Accordingly, his Honour (with whom Meagher JA agreed)234 held that the restrictions in that case did not undermine the integrity or independence of the Court, or distort its predominant or essential characteristics.235 In contrast, the only236 successful invocation of Kable so far has occurred in Re Criminal Proceeds Confiscation Act 2002 (Qld),237 where the Queensland Court of Appeal238 accepted that the Kable principle239 prevented the State parliament from interfering with the judicial process of the Supreme Court in such a way as to be ‘repugnant to or incompatible with’ the exercise of Commonwealth judicial power. This was the position whether or not the Supreme Court was exercising federal jurisdiction. On that ground, the Court held invalid s 30 of the Criminal Proceeds Confiscation Act 2002 (Qld) which prevented the Supreme Court from hearing any application by the State for a restraining order to prevent dealings with property owned by persons suspected of being engaged in illegal activity, if 227 (1999) 197 CLR 510. But the minority of Gaudron J at [119] and [127], and Gummow and Hayne JJ at [170] found Chapter III infringed. The latter described the effect of the privative clause as to stultify the exercise of judicial power. 228 (2003) 211 CLR 476. 229 See the inconsistency between Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 and Abebe argued by Linda J. Kirk, ‘Chapter III and Legislative Interference with the Judicial Process: Abebe v Commonwealth and Nicholas v The Queen’, 140–1 in Adrienne Stone and George Williams (eds), The High Court at the Crossroads – Essays in Constitutional Law (Sydney: Federation Press, 2000) 119. 230 (2000) 181 ALR 694. 231 Ibid [72]. 232 Ibid [50]. 233 Ibid [51]: R v Moffatt [1998] 2 VR 229 (indefinite sentences); Wynbyne v Marshall (1997) 141 FLR 166 (mandatory sentencing); Felman v Law Institute of Victoria [1998] 4 VR 324 at 352–8 (supervisory jurisdiction of legal profession); Esso Australia Resources Ltd v Dawson (1999) 87 FCR 588 at 595–6 (denial of legal professional privilege); Lloyd v Snooks (1999) 153 FLR 339 (mandatory sentencing). 234 John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 at [163]. Priestley JA at 722 [161] dissented on the ground that these restrictions compromised the integrity and appearance of independence of the Court. 235 Ibid [73–5]. 236 Noted by Kirby J in Baker v The Queen (2004) 210 ALR 1 at [54]. 237 [2004] 1 Qd R 41. 238 Principal judgment delivered by Williams JA with whom White and Wilson JJ agreed. Williams JA considered the High Court in H A Bachrach Pty Ltd v State of Queensland (1998) 195 CLR 547 and in Nicholas v The Queen (1998) 193 CLR 173 accepted that the States were prevented by Chapter III from interfering in the judicial process. 239 Williams JA stated the Kable principle rather broadly: ‘a State Supreme Court as one of the judicial institutions invested with federal jurisdiction may not act in a manner inconsistent with the requirements of Chapter III of the Constitution’ [44].

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those persons were present in court. The Court of Appeal regarded this as making a ‘mockery’ of the judicial process, and ‘effectively . . . [directed] the court to hear the matter in a manner which ensures the outcome will be adverse to the citizen and deprives the court of the capacity to act impartially.’240 Delivered on the same day as Fardon, the judgments in Baker v The Queen241 rejected a challenge to one aspect of New South Wales legislation which empowered the New South Wales Supreme Court to convert an indeterminate sentence of imprisonment to a determinate sentence. The challenge was confined to the exclusion from this scheme of prisoners with a non-release recommendation, unless the Supreme Court was ‘satisfied that special reasons exist that justify making the determination’.242 The majority rejected the argument that this capacity to make a determination was a ‘charade’ which undermined the Court’s institutional integrity. The joint judgment of McHugh, Gummow, Hayne and Heydon JJ saw nothing repugnant to the notion of judicial power in the legislative scheme.243 In APLA Limited v Legal Services Commissioner (NSW),244 a majority of the High Court rejected a challenge to regulations made under the Legal Profession Act 1987 (NSW) which prevented lawyers advertising their services in relation to personal injury claims. The Court found no infringement of Chapter III nor any breach of the implied freedom of political communication. Justice Gummow observed that ‘[i]t is neither the essential nature of a Court nor an essential incident of the judicial process that lawyers advertise’.245 It is clear from these decisions that Chapter III will only be infringed by State laws which manifestly undermine the independence and integrity of the judicial process. Given the lack of any firm criteria defining the essential character of a court or of the judicial process, a more cynical perspective is that challenges will be decided on the basis of what the judiciary is prepared to tolerate. This is demonstrated by the range of laws which have been unsuccessfully challenged on this basis. These have included Commonwealth and State laws: regulating the practice and procedure of the courts (Nicholas v The Queen);246 altering the rules of evidence (Williamson v Ah On);247 reversing the presumption of bail (Chau v DPP);248 prescribing retrospective criminal offences (Polyukhovich v The Commonwealth);249 prescribing mandatory sentences (Wynbyne v Marshall250 and Lloyd v Snooks)251 and preventive detention; imposing and providing for the review of indefinite sentences (R v Moffatt);252 conferring supervisory 240 Re Criminal Proceeds Confiscation Act 2002 (Qld) [2004] 1 Qd R 41 at [57]. 241 (2004) 210 ALR 1. 242 Sentencing Act 1989 (NSW) s 13A. 243 Baker v The Queen (2004) 210 ALR 1 at [49]. 244 [2005] HCA 44: only Kirby J dissented. 245 Ibid 248. 246 (1998) 193 CLR 173. 247 (1926) 39 CLR 95 at 122. 248 (1995) 37 NSWLR 639. 249 (1991) 172 CLR 501. 250 (1997) 141 FLR 166 at 168–9. 251 (1999) 153 FLR 339 at 343–4. 252 [1998] 2 VR 229. The Court of Appeal of Victoria distinguished Kable in upholding provisions of the Sentencing Act 1991 (Vic) which permitted an indefinite sentence of imprisonment to be imposed on conviction for serious offences where the court is satisfied to a high degree of probability that the offender was a serious danger to the community. After the expiration of a nominal sentence, the court reviewed whether the indefinite sentence ought to be maintained. Hayne JA at 252–3 emphasised the long history of preventive and indefinite detention to conclude this was not antithetical to the exercise of judicial power. See Winneke P at 236–7 and Charles JA at 260.

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jurisdiction over the legal profession (Felman v Law Institute of Victoria);253 denying legal professional privilege before a royal commission (Esso Australia Resources Ltd v Dawson);254 allowing acting judicial appointments (Eastman v The Queen)255 and fixed term appointments (Bradley);256 and the power to convert indeterminate to determinate prison sentences if ‘special reasons’ exist (Baker v The Queen).257

10.5 Conclusion on State judiciary Clearly, the State judiciaries are no longer entirely at the mercy of their State legislatures and executives. By virtue of the vesting of federal judicial power in State courts pursuant to s 77(iii), those courts, their judges and the exercise of their jurisdiction (both federal and State) derive protection from Chapter III of the Commonwealth Constitution. The level of protection from State interference, accepted in Bradley and Fardon, is that the States cannot undermine the independence and integrity of those courts. Given the indivisibility of judicial independence, this protection applies whether those courts are exercising State or federal judicial power. Hence, Chapter III protection is effectively enjoyed by all courts vested with federal judicial power. Still, the States remain otherwise unrestrained by any doctrine of separation of judicial power comparable to that which the Commonwealth is subject. The Chapter III doctrine of incompatibility – given life in Grollo and Wilson at the Commonwealth level, and extended in a similar form to the States in Kable – has an operation which transcends those cases to define the overall protection given by Chapter III to State courts vested with federal judicial power. As a result, the independence and integrity of all three elements of the State judiciaries – the courts, their judges and the judicial process – are protected. Unless all three elements are safeguarded, the protection afforded one or more of them becomes illusory.

10.6 Territories Theoretically there are three potential sources of protection for the judicial systems of Commonwealth territories: Chapter III; the paramountcy of the Commonwealth Self-Government Acts; and potentially in the ACT, local entrenchment. Chapter III restricts Commonwealth and territory interference, while the Self-Government Acts would only restrict interference by the territory. Most 253 [1998] 4 VR 324. 254 (1999) 87 FCR 588 at 596. 255 (2000) 203 CLR 1. 256 [2004] HCA 31. The Court unanimously rejected the challenge to the appointment of the Chief Magistrate of the Northern Territory where his salary was determined only for a period of two years after which it required renegotiation. 257 [2004] HCA 45.

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significant for the protection afforded by Chapter III is the changing attitude of the High Court from the disjointed view of the territories to a more integrated position. Soon after federation, the Court adopted the view that the territories were not part of the federal system and so fell outside the operation of Chapter III. This disjointed view has now been rejected, although the precise extent to which the territories are covered by Chapter III remains unresolved. Nonetheless, this new perspective on the territories significantly enhances the level of protection for the judicial systems of the territories from both Commonwealth and territory interference. Of most recent significance is the potential for Chapter III to protect the institutional integrity of territory courts and their judicial systems as repositories of federal judicial power in the same way State judicial systems are protected by Chapter III. This only became possible once the High Court recognised in North Australian Aboriginal Legal Aid Service Inc v Bradley258 that territory courts can exercise federal judicial power. Thus, the protective shield of Chapter III prevents the Commonwealth and the self-governing territories from acting incompatibly with the maintenance of the institutional integrity of territory courts. The joint judgment of the Court accepted that each territory court ‘capable of exercising the judicial power of the Commonwealth be and appear to be an independent and impartial tribunal.’259 Since this protection extends equally to State and territory courts which are vested with federal jurisdiction, the same restrictions, listed earlier in relation to State courts, apply to protect territory judicial systems from Commonwealth and territory interference. Adapted for the territories, those restrictions prevent: ● vesting incompatible power in a territory court; ● vesting incompatible non-judicial power in a territory judge persona designata; ● interfering in an incompatible manner with the tenure of territory judges; and ● interfering in an incompatible manner in judicial proceedings of a territory court vested with federal jurisdiction. The effect and scope of each of those restrictions are sufficiently explained above in relation to the States. Whether the self-governing territories, like the States, are relieved from any doctrine of separation of judicial power is unsettled. The potential is there for such a restriction to be implied from their Self-Government Acts which have paramount force if a clear intent can be derived from the text or structure of each Act that the territory’s courts are the exclusive repositories of the judicial power of the territory. Only the Australian Capital Territory (SelfGovernment) Act 1988 (Cth) comes close to this by providing in s 48A(1) that the 258 (2004) 218 CLR 146 per joint judgment of McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ at [28]. 259 Ibid [29].

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‘Supreme Court is to have all original and appellate jurisdiction that is necessary for the administration of justice in the Territory’. No comparable provision exists in the Self-Government Acts of the Northern Territory260 or Norfolk Island.261 There remains to consider whether the acceptance in Bradley of territory matters falling within federal jurisdiction imports the Commonwealth doctrine of separation of judicial power at the territory level. If so, this may prevent the Commonwealth Parliament and the legislatures of the self-governing territories from exercising judicial power. And if this is so, it adds to the restriction which prevents them from undermining the institutional integrity of territory courts. In respect of each of the self-governing territories, the following two sources of protection are considered: first, the extent to which the Self-Government Acts as paramount Commonwealth laws protect territory judicial systems; and second, the extent to which the specific requirements of Chapter III extend to the territories.

10.6.1 Northern Territory Only the second of these sources of protection is relevant in the Northern Territory, where responsibility for the Territory’s judicial system was transferred262 to the new Territory government in 1978 without the specification of any minimum requirements in the Northern Territory Self-Government Act 1978 (Cth). Indeed, there is no reference in that Act to the judicial system of the Territory. Soon after self-government, the Assembly enacted the Supreme Court Act 1979 (NT) to provide for the Supreme Court of the Northern Territory of Australia.263 The judges of the Supreme Court are appointed by the Administrator by commission on the advice of the Territory’s ministry.264 Appeals from the Supreme Court to the High Court lie by special leave.265 There is no general right of appeal to the Federal Court.266 Accordingly, the only protection for the Territory’s judicial system is to be found in Chapter III.

10.6.2 Australian Capital Territory Both sources of protection, the Australian Capital Territory (Self-Government) Act 1988 (Cth) and Chapter III, are relevant in the ACT.267 Responsibility for its judicial system was not transferred in 1988 with the grant of self-government. This only occurred in 1992.268 The Self-Government Act entrenches certain 260 The Northern Territory (Self-Government) Act 1978 (Cth) makes no provision for the judicial system of the Territory. 261 Part VII of the Norfolk Island Act 1979 (Cth) deals with the judicial system. 262 See Leslie Zines (ed), Cowen and Zines’s Federal Jurisdiction in Australia (3rd edn, Sydney: Federation Press) 159. 263 The original Supreme Court of the Northern Territory was established by the Supreme Court Ordinance 1911 (Cth). 264 Supreme Court Act 1979 (NT) s 32. 265 Judiciary Act 1903 (Cth) s 35AA(2). 266 Section 24(1)(b) Federal Court of Australia Act 1976 (Cth). 267 And even the third source of protection by entrenchment is possible: s 26 ACT (Self-Government) Act 1988 (Cth). 268 ACT Supreme Court (Transfer) Act 1992 (Cth).

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fundamental requirements which the ACT Government and Assembly must comply with in relation to the jurisdiction and powers of the Supreme Court and the retirement and removal of its judges. Only the Commonwealth Parliament has the capacity to ignore, amend or repeal these requirements. Part VA of the SelfGovernment Act provides for a Supreme Court with ‘all appellate and original jurisdiction that is necessary for the administration of justice in the Territory’ (s 48A(1)). The judges of the Supreme Court are appointed by the ACT Executive for varying periods in a full-time or part-time capacity.269 Although there is no equivalent to the requirement in s 72 of the Commonwealth Constitution that justices be appointed until the age of 70 years, s 48B does prevent a new retirement age from being imposed on existing judges without their consent. Moreover, ss 48C and 48D reflect and even improve on s 72 in relation to the grounds of removal of a judge and the procedure to be followed. A judicial commission must be established by the Executive to investigate complaints concerning the conduct or the physical or mental capacity of a judge.270 Removal can only occur by the Executive if the Assembly has passed a motion requiring removal on the ground of misbehaviour or incapacity, after receiving a report from a judicial commission that ‘the facts so found could amount to misbehaviour or physical or mental incapacity (as the case may be) warranting the officer’s removal from office’.271 Since all of these requirements are prescribed by the ACT Self-Government Act, ACT legislation must comply with them, and to the extent they do not, will be repugnant and inoperative. Appeals from the ACT Supreme Court now lie to the ACT Court of Appeal from which there is a right of appeal by special leave to the High Court.272 This now appears to be fully or substantially secured by s 73(ii) of the Commonwealth Constitution (see below).

10.6.3 Norfolk Island The sources of protection for the Norfolk Island judicial system are the same as those for the ACT, the Commonwealth Self-Government Act and Chapter III. The judicial system of Norfolk Island, established by Part VII of the Norfolk Island Act 1979 (Cth), comprises the Supreme Court of Norfolk Island (s 52) and such other courts as are established by the Norfolk Island Legislative Assembly under s 60. Pursuant to this power, a Court of Petty Sessions was established.273 Although any courts created by Norfolk Island can be abolished or altered by the Island’s legislature, this is not the situation with the Supreme Court which is effectively entrenched by the Norfolk Island Act 1979 (Cth). The Commonwealth, however, has the power to abolish or alter that court, subject to Chapter III. Unlike the other self-governing territories, the Governor-General, rather than the local Executive, appoints the judges of the Supreme Court (including the Chief Justice) from among those who are already judges of a Commonwealth court, 269 Upheld in Re Governor, Goulburn CC; Ex parte Eastman (1999) 200 CLR 322. 270 Section 48C. 271 Section 48D. 272 Judiciary Act 1903 (Cth), s 35AA(2). 273 Court of Petty Sessions Act 1960 (NI), s 5(1).

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usually the Federal Court of Australia.274 Before advising the Governor-General on appointments, the Commonwealth Minister must consult the Executive Council of Norfolk Island.275 Security of tenure as a member of the Supreme Court of Norfolk Island is that accorded by the Commonwealth court of which they are already a member (s 53(5)). The jurisdiction, practice and procedure of the Supreme Court and of the Court of Petty Sessions are provided for in the Supreme Court Ordinance 1960. The Supreme Court can hear civil cases in the ACT, New South Wales and Victoria where this is not contrary to the interests of justice, but can only hear criminal cases on the Island. Appeals from the Supreme Court are provided to the Federal Court of Australia, and from there to the High Court.276

10.6.4 Other external territories In relation to four of the remaining seven external Commonwealth territories, the Commonwealth has vested jurisdiction in the closest territory Supreme Court – which is the Supreme Court of the ACT, Northern Territory or Norfolk Island – and whichever Supreme Court has jurisdiction, the laws of that territory apply to the relevant external territory. Accordingly, the ACT Supreme Court has jurisdiction in the Australian Antarctic Territory277 and the Heard and McDonald Islands.278 The Northern Territory Supreme Court has jurisdiction in the Ashmore and Cartier Islands.279 The Supreme Court of Norfolk Island has jurisdiction in the Territory of the Coral Sea Islands280 – although ACT law applies in that territory. Jurisdiction in the remaining two external territories, the Cocos (Keeling) Islands and Christmas Island, has been vested in the courts of Western Australia since 1 July 1992.281 Before then, each had its own Supreme Court.282 The only protection against improper Commonwealth interference with all these arrangements derives from Chapter III.

10.7 Chapter III and the territories One of the most difficult issues to arise under the Commonwealth Constitution is the extent to which the specific provisions of Chapter III of the Commonwealth 274 Norfolk Island Act 1979 (Cth), s 53(1). The appointment is terminated if the judge ceases to hold the other judicial office: s 53(5). 275 Ibid s 53(2). 276 See Federal Court of Australia Act 1976 (Cth) s 24(1)(b); Judiciary Act 1903 (Cth) s 35AA(2). 277 Australian Antarctic Territory Act 1954 (Cth) s 10(1). 278 Heard Island and McDonald Islands Act 1953 (Cth) s 9(1) – as if part of Jervis Bay for criminal cases, otherwise as if part of the ACT. 279 Ashmore and Cartier Islands Acceptance Act 1933 (Cth) s 12(1). 280 Coral Sea Island Act 1969 (Cth) s 8 (1) but not in relation to matters arising under the provision of or by virtue of the Petroleum (Submerged Lands) Act 1967 (Cth): s 8 (3). 281 This jurisdiction was transferred by the Territories Law Reform Act 1992 (Cth) and accepted by the Indian Ocean Territories (Administration of Laws) Act 1992 (WA) which Zines, above n 262, 161 notes was deemed necessary on the view then held that this jurisdiction was not federal. 282 Note that the Supreme Court of Christmas Island was abolished on 10 May 2002.

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Constitution apply to the territories.283 Essentially, this involves identifying the relationship between Chapter III and the Commonwealth power in s 122 to legislate for the territories, as well as considering the extent to which Chapter III applies to the laws and judicial systems of the self-governing territories. There being no reference to Commonwealth territories in Chapter III, these issues can only be resolved by constitutional implications from the text and structure of the Constitution. The derivation of these implications has aroused considerable debate within the High Court as part of the wider debate about the position of the territories in the federal system (see Chapter III). An attempt is made here to clarify the extent to which Chapter III restricts the Commonwealth’s territories power in s 122, as well as the power of the self-governing territories themselves. It is useful at this stage to outline those provisions of Chapter III which are potentially relevant to the territories: ● Section 71 vests the judicial power of the Commonwealth in the High Court, ‘and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction’. ● Section 72 prescribes the appointment, tenure and remuneration of the ‘Justices of the High Court and of the other courts created by the Parliament’. ● Section 73 vests the High Court with appellate jurisdiction from ‘all judgments, decrees, orders, and sentences . . . (ii) Of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State . . .’ ● Section 77 empowers the Commonwealth Parliament – with respect to any of the matters in ss 75 and 76 – in paragraph (i) to define the jurisdiction of any federal court (other than the High Court), and in paragraph (iii) to invest any state court with federal jurisdiction. Section 75 lists five matters which are vested in the original jurisdiction of the High Court, while s 76 lists an additional four matters which can be vested by parliament in the Court’s original jurisdiction. ● Section 80 requires trial by jury for indictable Commonwealth offences in the State where the offence was committed, or if committed outside a State, in such other place as parliament determines. The lack of reference to the territories in Chapter III is reflected in other sections of the Constitution. The High Court initially adopted what might be termed the disjointed view of the territories power in s 122, namely, that the territories are not part of the federal system, being within the exclusive power of the Commonwealth, and having nothing to do with the division of power between the Commonwealth and the States. On this basis, the judicial power in relation to the territories was distinct from federal judicial power. Since Chapter III was concerned with only Commonwealth or federal judicial power, its provisions 283 Cf the United States: territorial courts are not within Art III of the United States Constitution, see Zines, above n 262, 165–6.

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did not apply to the territories.284 Accordingly, the establishment and operation of the judicial systems within the territories proceeded on the basis that the constitutional requirements of Chapter III were not applicable. Territory courts were outside s 71 as they were not federal courts, nor were they vested with federal jurisdiction. They were created under s 122 to exercise territorial judicial power, rather than Commonwealth judicial power. Accordingly, their judicial officers were not appointed pursuant to s 72 and so lacked the constitutionally guaranteed security of tenure of federal judges. The Commonwealth was free under s 122 to establish territory courts with jurisdiction in any matter (that is, unconfined by the list of matters in ss 75 and 76), constituted by judges with limited tenure and liable to removal in any way. All this freedom derived from the plenary nature of the territories power in s 122. The consequential difficulty with this disjointed view of the territories was that no constitutional right of appeal from territory courts to the High Court was conferred by s 73(ii), since a territory court is not a ‘federal court, or court exercising federal jurisdiction’. This meant that a right of appeal to the High Court was dependent on the conferral of such a right by Commonwealth enactment pursuant to s 122. This option, however, appeared to conflict with the view of the High Court in In re Judiciary and Navigation Acts285 that Chapter III exhaustively defined the original and appellate jurisdiction of the High Court. The solution adopted by the Court was to confine the effect of that decision to the Court’s federal jurisdiction, thus allowing s 122 to confer additional non-federal jurisdiction on the High Court to hear appeals from territory courts.286 Recently, a more integrated view of the territories and of s 122 within the Constitution has evolved. It has obviously affected the relationship between s 122 and Chapter III, expanding the latter’s role in relation to the territories. This is driven by the concern of certain members of the High Court to include the territorial judicial systems within an ‘integrated Australian legal system’,287 in particular, to ensure a constitutional right of appeal to the High Court under s 73(ii). This concern has resulted in acceptance of the fact that territory courts do exercise federal judicial power when they hear matters arising under s 122 laws, and so a right of appeal is constitutionally provided for by s 73(ii).288 Less clear is whether matters which arise under the local law of a self-governing territory (statute or common law) fall within federal jurisdiction. It has been suggested that the three internal territories, the ACT, Jervis Bay and the Northern Territory, are more likely to be subject to Chapter III than the seven external territories. This distinction is based on the fact that as each of

284 R v Bernasconi (1915) 19 CLR 629; Porter v The King; Ex parte Yee (1926) 37 CLR 432; Spratt v Hermes (1965) 114 CLR 226. 285 (Advisory Opinions case) (1921) 29 CLR 257. 286 Upheld 4–3 in Porter v The King; Ex parte Yee (1926) 37 CLR 432. 287 Kable, above n 65 at 102, 114 and 137. 288 North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146.

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these territories once formed part of an original State289 and so formed part of the Commonwealth, it would not have been intended to deprive the former residents of those States of their constitutional rights. For instance, in Capital Duplicators PtyLtdv ACT290 Brennan, Deane and Toohey JJ distinguished between the internal and external territories in deciding that the Commonwealth’s exclusive power to impose customs and excise duties in s 90 of the Commonwealth Constitution extended as a restriction on the power of the ACT and the Northern Territory. But this was done to ensure that the constitutional objective of a free trade area within the geographical area of the original States was not undermined. Cowen and Zines291 suggest the distinction drawn here was for a specific purpose which is unlikely to be justified in other cases.

10.7.1 The disjointed view The first significant decision on Chapter III and s 122 was R v Bernasconi292 which held that the vulnerable293 right in s 80 to trial by jury, in respect of Commonwealth indictable offences, was inapplicable to offences prescribed by a territory Ordinance (that of the Territory of Papua) made under a s 122 law. Griffith CJ confined Chapter III to ‘the exercise of the judicial power of the Commonwealth in respect of those functions of government as to which it stands in the place of the States, and has no application to territories’.294 While holding the Ordinance was a Commonwealth law, Isaacs J295 relied principally on the policy consideration that not all territories would be in a position to provide the full range of constitutional protections prescribed by Chapter III. What level of protection should be afforded was a matter for the Commonwealth Parliament to determine within the scope of its plenary power in s 122, having regard to the particular circumstances in each territory. This decision led the High Court in Porter v The King; Ex parte Yee296 to hold that territory courts were neither a ‘federal court’ nor a ‘court exercising federal jurisdiction’ within ss 71 and 73. Accordingly, s 73(ii) afforded no right of appeal to the High Court from the Supreme Court of the Northern Territory. Commonwealth judicial power was confined to the ‘Commonwealth proper’ (that is, the area included within the States only) so that the ‘courts exercising federal jurisdiction’ in s 73 were only State courts.297 The central reason for this interpretation was that matters arising in relation to the territories were not ‘federal’. Federal courts and federal jurisdiction were concerned with federal matters only; namely, matters in relation to the division of powers between the Commonwealth and 289 At federation, both the ACT and Jervis Bay were part of New South Wales, and the Northern Territory was part of South Australia. 290 (1992) 177 CLR 248. 291 Ibid 164. 292 (1915) 19 CLR 629. 293 Since the Commonwealth determines whether an offence is indictable: R v Archdall (1928) 41 CLR 128. 294 (1915) 19 CLR 629 at 635. 295 Ibid 637–8. 296 (1926) 37 CLR 432. 297 Ibid at 440–1 per Isaacs J. Followed in Capital TV & Appliances Pty Ltd v Falconer (1971) 125 CLR 591 by Barwick CJ at 600, McTiernan J at 602, Menzies J at 608, Windeyer at 609, Owen J at 613, Walsh at 619–620, and Gibbs J at 627. See also Attorney-General of the Commonwealth of Australia v The Queen (Boilermakers’ case) (1957) 95 CLR 529 at 545.

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the States, involving the heads of power in ss 51 and 52. Since territory courts were vested pursuant to the Commonwealth’s territories power in s 122 with jurisdiction in relation to matters arising within or connected with the territory, they exercised territorial not federal jurisdiction. Therefore, there developed two forms of jurisdiction and of judicial power: federal and non-federal. A powerful consideration in the adoption of this disjointed view of the territories was the need to maintain flexibility in the judicial systems of a potentially diverse range of external territories which might come under Commonwealth control. Nonetheless, a majority in Porter298 recognised that a right of appeal from territory courts to the Federal and High Courts, provided for by s 21 of the Supreme Court Ordinance 1911–1922 (NT) (made under s 13 of the Northern Territory (Administration) Act 1910 (Cth)) could be provided under s 122 – on the basis that as the territory courts fall outside the federal judicial system, no exercise of federal judicial power is involved to concern Chapter III.299 The minority300 saw this as undermining the principle from In re Judiciary and Navigation Acts301 that Chapter III exhaustively defines the High Court’s original and appellate jurisdiction. Porter was followed in Spratt v Hermes302 where the validity of the appointment of a stipendiary magistrate to the ACT Court of Petty Sessions was challenged for non-compliance with the terms of s 72. The magistrate held office only at the pleasure of the Governor-General, unlike federal judges who can only be removed pursuant to s 72 by the Governor-General on an address from both Houses for proved misbehaviour or incapacity. Section 72 is expressed to apply to the High Court and to ‘the other courts created by the [Commonwealth] Parliament’. The Court rejected the argument that the reference to ‘the other courts’ included territory courts created by the Commonwealth. This category had to be interpreted in line with s 71 which vested Commonwealth judicial power in ‘such other federal courts as the Parliament creates’. Barwick CJ confined federal courts to those ‘created by laws made in pursuance of the “federal” legislative powers contained in s 51’.303 The Chief Justice relied on the federal nature of Chapter III to read down s 72 but was not prepared to hold that the whole of Chapter III was inapplicable to the territories.304 For instance, the Chief Justice found disturbing the suggestion that the High Court would lack jurisdiction under s 75(v) to hear an action against a Commonwealth officer for wrongful detention of an Australian citizen in a territory.305 His Honour accepted that Bernasconi established that s 80 does not apply to the territories because its offences were confined to statutes enacted under s 51, and that this intention was derived from the unlikelihood of finding juries in all potential territories and from, perhaps, an association between s 80 and ss 71 and 72.306 He was prepared to accept this 298 (1926) 37 CLR 432. 299 See Isaacs J at 441, Starke J at 449. Higgins J at 446 noted that the language of s 73 evinced no clear intention to exclude additional appellate jurisdiction. 300 See Knox CJ and Gavan Duffy J at 438. 301 (Advisory Opinions case) (1921) 29 CLR 257. 302 (1965) 114 CLR 226. 303 Ibid 243. 304 Ibid. 305 Ibid. 306 Ibid 244.

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interpretation in view of its longstanding reliability and the right afforded by s 80 being merely of a procedural nature.307 But there was, in his view, no basis for holding that the whole of Chapter III was excluded: There does not seem to me to be any single theme running throughout Chap III which requires it to be treated so much all of one piece that if any part of it relates only to federal matters, every part of it must likewise be restrained.308

Indeed, Barwick CJ listed ss 74, 75 and 78 of Chapter III as applying to the territories. Inter se questions under s 74 could arise involving the territories power where, for instance, a s 122 law claims to operate within a territory as in Lamshed v Lake,309 as well as under s 109 which gives paramountcy to all Commonwealth laws including s 122 laws. The original jurisdiction of the High Court in s 75 arises in respect of all Commonwealth laws, and wherever the acts concerned occurred, including within the territories.310 His Honour left open whether the parliament can give under s 122 original jurisdiction to the High Court in matters outside s 76 – although he saw no reason why this would not be possible since the right to confer appellate jurisdiction in territory matters was well established.311 Here the Court had jurisdiction under s 76(i). But he noted that the Court clearly had original jurisdiction in territory matters through s 75 which applies wherever the matter arises; for example, in an action between residents of two States relating to a wrongful act committed in a territory, or in granting relief against an officer of the Commonwealth within a territory.312 Kitto J in Spratt v Hermes313 read down the view expressed in Bernasconi that Chapter III has no application to the territories to: . . . mean only that the Chapter has no application to the exercise of that judicial power which exists as a function of government of a territory. The doctrine of the case does not set any limit to the operation which s 75 or s 76 have according to their terms . . .314

Hence, s 122 may confer on the High Court both original and appellate jurisdiction relating to matters arising under a territory law.315 Here, the charge under the Post and Telegraph Act 1901 (Cth) was heard in the ACT in the exercise of the judicial power of the Territory, not that of federal judicial power.316 Porter and Spratt v Hermes were followed in Capital TV & Appliances Pty Ltd v Falconer317 in holding that the ACT Supreme Court was not a federal court nor did it exercise federal jurisdiction. Accordingly, s 73(ii) conferred no right of appeal to the High Court from its decisions. Barwick CJ reaffirmed his view in Spratt v Hermes that Chapter III was confined to that jurisdiction exercised under laws 307 Ibid. 308 Ibid 245. 309 (1958) 99 CLR 132. 310 (1965) 114 CLR 226 at 245–6. 311 Ibid at 239–40. He noted that authority was equally divided: see (Advisory Opinions case) (1921) 29 CLR 257 – a majority held Chapter III exhaustively defined the High Court’s original jurisdiction. Cf Porter v The King; Ex parte Yee (1926) 37 CLR 432 at 438 per Knox CJ and Gavan Duffy J. 312 (1965) 114 CLR 226 at 241. 313 (1965) 114 CLR 226. 314 Ibid 253. 315 Ibid 257. 316 Ibid 259. 317 (1971) 125 CLR 591, at 599, 604, 615.

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made pursuant to ss 51 and 52 (that is, federal jurisdiction), despite his dislike of the distinction between federal and non-federal jurisdiction:318 I should accept the view that the judicial power to which s 71 refers is that part of the totality of judicial power which the Commonwealth may exert which can be called ‘federal judicial power’. The word ‘federal’ is not always used with precision or with uniformity. It seems to me that the sense of the word ‘federal’ in s 71 of the Constitution resulting from the decisions of this Court is that the federal judicial power is that which is called into exercise by or in connexion with legislation enacted pursuant to s 51 and s 52. The legislative power of the Commonwealth, although always resulting, as I think, in a ‘law of the Commonwealth’, is of different orders conveniently enough described as federal and non-federal. The federal powers are those which are shared with the States because of the concurrency of the powers, the powers granted by s 52 being included though because of their exclusive nature they are not in strictness shared with the States. Legislative power derived elsewhere than from s 51 and s 52 is of a different order to that derived from those sections, different because it is not referable to a subject matter: it can conveniently be described as non-federal.319

Menzies J accepted that it followed from Porter that both the High Court and the federal courts can be given jurisdiction regarding matters outside ss 75 and 76, such as pursuant to s 122.320 His Honour also regarded s 76(ii) as incorporating matters arising under a s 122 law, being a law of the Commonwealth, and refused to extend Bernasconi to preclude s 122 laws from that provision.321 But the exercise of judicial power pursuant to s 122 was not an exercise of federal jurisdiction. The reference to courts exercising federal jurisdiction in s 73(ii) can only refer to those State courts vested with federal jurisdiction pursuant to s 77.322 In Eastman v R,323 the Court was invited to take the radical step of overruling Spratt v Hermes324 on a challenge to the appointment by the ACT Government of Justice Carruthers as an Acting Justice of the ACT Supreme Court contrary to s 72. However, a majority of the Court refused to extend s 72 to territory courts. The joint judgment of Gleeson CJ, McHugh and Callinan JJ relied on the text of s 72, which was open to this restricted interpretation, and the sensible and practical outcome of that interpretation, given the diverse range of territories which can exist. Furthermore, it avoided a distinction otherwise arising between territory courts created by the Commonwealth (like the ACT Supreme Court) being subject to s 72, and those created by self-governing territories not subject to s 72.325 While Gaudron J preferred to read s 72 as applying to territory courts, she acceded to previous authority, parliamentary reliance on that and the dichotomy within s 71.326 Gummow and Hayne JJ were also sympathetic towards s 72 applying to territory courts, but left the issue open since they concluded that the ACT Supreme Court was created by the ACT, not by the Commonwealth.327 In sole dissent, Kirby J’s conclusion that s 72 applied to the ACT Supreme Court followed simply from his conclusion that it was a federal court. It applied 318 Ibid 598–600. 319 Ibid 599. 320 Ibid 604. 321 Ibid 605–6. 322 Ibid 606 and 608. 323 (2000) 203 CLR 1. 324 (1965) 114 CLR 226. 325 Ibid 332–3. 326 Ibid 340. 327 Ibid 348.

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whether the Court was created by the Commonwealth or the Territory.328 In fact, his Honour concluded that the ACT Supreme Court was still a valid Commonwealth court, but the appointment of Acting Justice Carruthers was invalid.329 His Honour accepted that at least internal territory courts are federal courts and that their judges must be appointed in accordance with s 72. He relied on a range of indicators including: the evidence from s 73 that Chapter III deals with the entirety of the Australian judicial system; the need to preserve the rights of the residents of the ACT and the Northern Territory prior to the surrender of their territory to the Commonwealth; and the absurdity of regarding the territories as outside the federal system.330 More significant, though, were two other factors: the need to ‘reconsider the constitutional text in a context inescapably affected by the development of the internal Territories, their full inclusion in the representative democracy of the Commonwealth of Australia and their full participation in Australia’s national life’;331 and the need to ensure a right of appeal to the High Court to avoid Re Wakim332 denying that right by refusing to expand the Court’s appellate jurisdiction under s 73.333 His Honour also warned: Although Spratt and Falconer are unanimous opinions of this Court, they rest, ultimately, on the shaky foundation of Bernasconi, variously expressed and undermined by the many misgivings stated in this Court since it was decided. So illogical is present authority – and so potentially serious in disjoining territory courts from a constitutionally protected relationship with the integrated Australian judiciary – that in my view this Court should approach the matter as one of principle rather than authority.334

The alternative argument that ACT courts were created under the seat of government power in s 52(i), not s 122, and so constituted a federal court, was rejected by the whole Court. The principle of Svikart v Stewart335 was affirmed – that s 122 is the source of power in relation to the government of the ACT.336 The view that s 72 does not apply to territory courts created under s 122 was acted on for the whole of the 20th century. It also facilitates the transfer of those holding judicial office in the territories to new courts established on the grant of self-government to those territories. Although it may have been the more desirable approach in the beginning to regard territory courts as subject to s 72, for the High Court to reverse the accepted position now, would require considerable remedial legislation to overcome the resultant invalidity of past decisions and orders.

10.7.2 The integration view As a consequence of the High Court’s recent rejection of the wide disjointed view of s 122, there has been growing recognition337 of territory matters falling within the federal jurisdiction of both federal and territory courts. First, matters 328 332 334 337

Ibid 379. 329 Ibid 380–1. 330 Ibid 374–6. 331 Ibid 377. Re Wakim; Ex parte McNally (1998) CLR 511. 333 Ibid 377. Ibid 382. 335 (1994) 181 CLR 584. 336 Ibid 333, 335–6, 353, 368–70. Eastman v R (2000) 203 CLR 1.

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relating to the territories can arise within the scope of federal jurisdiction, and so be validly vested in federal courts. Second, the courts of self-governing territories are now recognised as exercising federal jurisdiction, bringing them within the scope of s 73(ii), so there is a right of appeal in those matters from territory courts to the High Court. 10.7.2.1 Federal courts Federal jurisdiction is confined to those specific matters listed in ss 75 and 76 of the Commonwealth Constitution. Territory matters can arise under various paragraphs of s 75: (iii) where the Commonwealth is a party; (iv) where the matter involves a dispute between residents of different States; or (v) where a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. More significant is s 76(ii) in relation to matters arising under any law made by the Commonwealth Parliament – which would include matters arising under laws enacted under s 122. Early support for this new approach was given by Menzies J in Capital TV & Appliances Pty Ltd v Falconer.338 A similar view was adopted by Gummow J in Kruger v The Commonwealth in observing that the statutory foundation of a territory can provide the basis for federal jurisdiction: . . . [t]here may be a ‘matter [a]rising under’ a law made by the Parliament, within the meaning of s 76(ii) of the Constitution, although its interpretation is not involved; it is sufficient that the right or duty in question in the matter owes its existence to federal law or depends upon it for its enforcement.339

His Honour noted the mistake of treating Chapter III as reflecting the division of Commonwealth/State power when many matters within federal jurisdiction do not involve that issue.340 He also rejected the historical concern to avoid imposing onerous Chapter III requirements on the Commonwealth’s diverse external territories by emphasising the overwhelming need to protect the High Court’s role as guardian of the Constitution: The entrusting by Chapter III, in particular by s 73, to this Court of the superintendence of the whole of the Australian judicial structure, its position as ultimate interpreter of the common law of Australia and as guardian of the Constitution are undermined, if not contradicted, by acceptance, as mandated by the Constitution, of the proposition that it is wholly within the power of the Parliament to grant or withhold any right of appeal from a territorial court to this Court.341

Kruger342 involved a claim by several Aborigines against the Commonwealth for being unlawfully removed as children from their families and detained in institutions during the first half of the 20th century. They argued that the Ordinance made by the Governor-General under the Northern Territory Acceptance Act 338 (1971) 125 CLR 591 at 605–7. 339 (1997) 190 CLR 1 at 169 – cited LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581 which relied on R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154. 340 Ibid 170–2. 341 Ibid 175. 342 (1997) 190 CLR 1.

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1910, pursuant to which the Chief Protector of Aboriginals so acted, was invalid on a number of grounds. Included was the submission that the Chief Protector exercised Commonwealth judicial power in breach of the separation of judicial power effected by Chapter III. The Court found no exercise of judicial power. Brennan CJ,343 Dawson344 and McHugh345 JJ regarded in any event that the judicial power in the territories was not Commonwealth judicial power – so the doctrine of separation of powers was inapplicable to the territories. The other three majority judges, however, rejected the disjointed approach in Bernasconi, and were prepared to consider that certain sections of Chapter III might apply to the territories. Toohey J considered ‘very persuasive’ the view that Chapter III extended to the territories.346 While Gaudron J had difficulty with Barwick CJ’s approach in Spratt v Hermes which involved reading unnecessary limitations into ss 72 and 80, her Honour had even ‘greater difficulties’ in holding that Chapter III as a whole did not apply to the territories.347 While not prepared to express a concluded view, she saw no reason why s 71 did not include disputes arising under s 122 as an exercise of Commonwealth judicial power, nor why s 72 did not extend to territory courts.348 Her Honour left open the position under the laws of self-governing territories.349 Gummow J initially expressed his ‘tentative view’ that Chapter III does apply to the territories,350 acknowledging that the simple approach would have been to recognise that territory courts are federal courts exercising federal jurisdiction.351 His Honour then provides a long list of factors to demonstrate how the Court was mistaken in adopting the disjoinder view of s 122.352 Kruger has since been accepted in Northern Territory v GPAO353 as supporting the view that federal courts are exercising federal jurisdiction when matters arise in relation to the territories under any of the paragraphs of s 75 or s 76. The issue in GPAO was whether the Family Court (a federal court) was bound to observe Northern Territory law restricting the disclosure of information by a Territory welfare officer in proceedings involving the guardianship of ex-nuptial children in the Northern Territory. This depended on whether the Court was exercising federal jurisdiction, in which case s 79 of the Judiciary Act 1903 subjected the proceedings to Northern Territory law. The Family Court’s jurisdiction in this matter arose by virtue of provisions of the Family Law Act made pursuant to s 122. The majority354 of the Court accepted that the Court was exercising federal jurisdiction in respect of a matter within s 76(ii), as a matter arising under a law of the Commonwealth made under s 122. Although the case concerned the nature of the jurisdiction vested in a federal court, its finding that a matter arising under a s 122 law is a matter within s 76(ii) means that territory matters do give rise to federal jurisdiction. These views were rejected by McHugh and Callinan JJ in 343 345 347 351 354

Ibid 43–4. 344 Ibid 62. Ibid 142, agreed with Dawson J’s reasoning. 346 Ibid 84. Ibid 108–9. 348 Ibid. 349 Ibid. 350 Ibid 162. Ibid 168. 352 Ibid 170–2. 353 (1999) 196 CLR 553. Ibid; Gleeson CJ, Gaudron, Gummow and Hayne JJ; McHugh and Callinan JJ dissenting.

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dissent,355 following the Bernasconi view that federal jurisdiction covered only matters arising under ss 51 and 52. In their view, all the matters listed in ss 75 and 76 were not necessarily ‘federal’. Accordingly, since matters arising under s 122 were not federal, Chapter III had no application to the territories. Their Honours listed eight considerations in support of this approach.356 Nonetheless, the decision in GPAO was followed in Spinks v Prentice357 where the Federal Court was held to have been validly vested under the Corporations Act 1989 (Cth) with jurisdiction in relation to civil matters arising under the Corporations Law (ACT). 10.7.2.2 Territory courts There is growing recognition that the courts of the self-governing territories exercise federal jurisdiction in respect of all matters which fall within their jurisdiction. All such matters arise under a Commonwealth law, since the jurisdiction of territory courts is ultimately derived from their Self-Government Act which also provides for the continued application of all law existing at the time that Act takes effect. So, whether the matter arises under a territory law or the common law, it ultimately arises under a Commonwealth Act. Support for this line of reasoning is found in the judgment of Gaudron J in Northern Territory v GPAO.358 Although Gleeson CJ and Gummow J left open whether territory courts could be vested with federal jurisdiction, Gaudron J359 thought permissible the vesting of federal jurisdiction in territory courts. Her Honour did not regard this as precluded by its omission from s 77 which in paragraph (iii) provides for the vesting of federal judicial power in State courts. In her view, this was inserted merely to require the States to exercise whatever federal jurisdiction was vested in them. Also, s 76(ii) included matters arising under s 122 laws ‘because the right or duty in question must ultimately depend for its enforcement on the law creating that court’. She observed that this was consistent with the view in In re Judiciary and Navigation Acts,360 that Chapter III is exhaustive of the High Court’s original and appellate jurisdiction. Gaudron J repeated these views in Eastman361 that federal jurisdiction can be vested in s 122 courts whether created by the Commonwealth or by a selfgoverning territory; but only in respect of matters arising under or involving the application of a Commonwealth law in its operation in a territory, being matters which fall within s 76(ii).362 Similarly, Gummow and Hayne JJ observed that their preferred construction was that a s 122 court created by the Commonwealth Parliament may be vested with federal jurisdiction pursuant to s 122, bringing it within s 76(ii) as a court invested with federal jurisdiction.363 The joint judgment of Gleeson CJ, McHugh and Callinan JJ expressed no view on this issue. Kirby J in dissent avoided the issue by holding that the ACT Supreme Court was a federal court. 355 357 359 361

Ibid 622. 356 Ibid 616–17. Part of Re Wakim; Ex parte McNally (1999) 198 CLR 511. Ibid at 600–5. 360 (1921) 29 CLR 257 at 265. Ibid 341. 362 Ibid 339 and 341. 363 Ibid 348.

358 (1999) 196 CLR 553.

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The views of Gaudron, Gummow and Hayne JJ were expressly adopted by the joint judgment of McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ in North Australian Aboriginal Legal Aid Service Inc v Bradley.364 The judgment accepted without discussion that ‘a court of the [Northern] Territory may exercise the judicial power of the Commonwealth pursuant to investment by laws made by the Parliament’. Their Honours relied on statements to this effect by Gaudron J in Northern Territory v GPAO,365 and by her Honour and Gummow and Hayne JJ in Eastman.366 Once it is ascertained that the territory court is exercising federal jurisdiction, a right of appeal to the High Court is available under s 73(ii). What remains unclear is whether the jurisdiction must arise directly from a Commonwealth law, or if the Self-Government Act can be relied on to provide the ultimate source of authority regarding territory laws which confer jurisdiction. It has been persuasively argued by Cowen and Zines367 that all jurisdiction in the Northern Territory, both common law and statutory, is federal jurisdiction. Both forms of jurisdiction arise under a law made by the Commonwealth Parliament, namely, s 7(1) of the Northern Territory Acceptance Act 1910 (Cth) which continues in force all laws, including the common law, operating prior to becoming a Commonwealth territory. This view was cited favourably by Gummow J in Kruger.368 If Cowen and Zines369 are correct, this means that a right of appeal to the High Court exists under s 73(ii) for all matters before a territory court. In this way, territory courts are fully connected to Australia’s integrated judicial system. This would also overcome the difficulty posed by Re Wakim; Ex parte McNally370 in holding that Chapter III and, in particular, ss 75 and 76, exhaustively define the original jurisdiction of the High Court, and through s 77 that of the federal courts. Yet the joint judgment in Bradley does not affect the established view that territory courts are not federal courts within ss 71 and 72. It seems unlikely that the High Court would ever reverse that view. If they did, the constitutional consequences would be dramatic. Apart from Kirby J in Eastman, no Justice has suggested that territory judges need to be appointed in accordance with s 72.

10.8 Conclusion on territory judicial systems Following the High Court’s decision in Bradley,371 the following propositions372 attempt to define the impact of Chapter III in relation to the judicial systems of the Commonwealth’s territories:

364 [2004] HCA 31 at [28]. 365 (1999) 196 CLR 553 at 603–4 [127]. 366 (1999) 200 CLR 322 at 336–40 [25]–[36]; 348 [63]. 367 Zines, above n 262, 183–6. 368 Kruger v The Commonwealth (1997) 190 CLR at 168–9. 369 Zines, above n 262, 183–6. 370 (1999) 198 CLR 511. 371 (2004) 206 ALR 315. 372 Cf the summaries provided in Zines, above n 262, 186; and in Peter Hanks, Patrick Keyzer and Jennifer Clarke, Australian Constitutional Law – Materials and Commentary (7th edn, Sydney: LexisNexis Butterworths, 2004) 1090 [12.5.16].

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Territory courts created under s 122 are not ‘other courts created by the Parliament’ within s 72. Accordingly, their judges are not appointed or dismissed pursuant to s 72. Therefore, appointments can be made for a fixed period, and the procedure and grounds for removal are subject to Commonwealth or territory law. Matters relating to the territories may fall within federal jurisdiction under ss 75 and 76 (especially s 75(iii), (iv) and (v); and s 76(ii)), and thereby can be vested in the jurisdiction of the Federal Court. Territory courts are vested with federal jurisdiction in respect of matters which fall within ss 75 and 76. All such matters arising under s 122 Commonwealth laws fall within s 76(ii) as matters arising under a Commonwealth law. The better view is that matters arising under territory statutes or even the common law also fall within federal jurisdiction under s 76(ii). It follows that a right of appeal lies from a territory court to the High Court under s 73(ii) in relation to those matters which fall within federal jurisdiction. With any non-federal jurisdictional matters, the Commonwealth can provide a right of appeal to the High Court under s 122. The right to trial by jury under s 80 does not extend to offences under s 122 laws or the laws of the self-governing territories. The Commonwealth and self-governing territories are prevented by Chapter III from undermining the institutional integrity of territory courts. It remains unclear how far the doctrine of separation of judicial power restricts the power of the Commonwealth or of the self-governing territories in relation to the territories.

11 Commonwealth territories power

11.1 Introduction Since federation, the Commonwealth has had 13 territories, of which 10 remain under its jurisdiction. There is great variety in their geographical location, size, population and governance.1 Given their diverse geographical location, Sir Robert Garran’s reference to the ‘colonial Empire of the Commonwealth’ in 19352 remains as apt today. The three which are no longer Commonwealth territories have become two sovereign nations – Nauru, and Papua New Guinea. Of the remaining 10, three are mainland territories: the Australian Capital Territory (ACT), the Jervis Bay Territory and the Territory of Northern Australia. Of the seven external territories, three are inhabited: the Territories of Christmas Island, Cocos (Keeling) Islands, and Norfolk Island. The four essentially uninhabited external territories are: the Territory of Ashmore and Cartier Islands, the Australian Antarctic Territory, the Coral Sea Islands Territory, and the Territory of Heard Island and McDonald Islands. The location of each of these territories is depicted on the map on page I. The history of the acquisition of these territories is outlined in Chapter 12 where each of the territories is considered separately. The reasons for their acquisition vary. The only territory constitutionally required is the territory for the seat of government. Accordingly, the ACT was acquired in 1911 pursuant to s 125 of the Commonwealth Constitution for the establishment of the national capital, 1 Re Governor, Goulburn CC; Ex parte Eastman (1999) 200 CLR 322 at 331 per Gleeson CJ, McHugh and Callinan JJ. 2 Robert R. Garran, ‘The Law of the Territories of the Commonwealth’ (1935) 9 Australian Law Journal 28, 41. Similarly, Gough Whitlam when Leader of the Opposition in 1969 observed: ‘In both area and population, Australia now rules the largest empire in the world.’ House of Representatives Debates (13 August 1969) p 241.

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Canberra. Soon after, the Jervis Bay Territory was acquired to provide a seaport for the landlocked ACT. The other mainland territory, the Northern Territory, was surrendered by South Australia to the Commonwealth because of the difficulties administering it. The external territories were acquired by the Commonwealth for purposes of defence, fishing or scientific research. Regular appraisal is required to determine whether these territories should remain as such, or whether they should develop a form of self-government, evolve into new States, or ultimately become sovereign nations. Obviously, the adoption of any of these options involves highly sensitive issues for the residents of the inhabited territories. Despite the grant of self-government to the ACT, the level of autonomy from Commonwealth control remains a real issue. For the Northern Territory, the evolution into statehood is anxiously sought by some but transition was defeated in a 1998 referendum.3 The future of the Jervis Bay Territory remains in doubt following recommendations to return the Territory to New South Wales, as it is no longer required as a port for the ACT. None of the external territories was part of a State at federation. Norfolk Island had only a tenuous connection with New South Wales as a separate Crown possession. The majority of the residents of the inhabited regions – Norfolk Island, Christmas Island, and the Cocos (Keeling) Islands – would expect to remain part of Australia. The issue in relation to the latter two territories is whether they remain a Commonwealth territory or are transferred to Western Australia or the Northern Territory. For Norfolk Island, which enjoys a measure of selfgovernment, the issues are more complex (see Chapter 12). The principal factor in determining the future of the Commonwealth’s inhabited territories (except for the ACT which is effectively prescribed by the Constitution) should be the wishes of their respective residents. The original reason for the acquisition of the territories must take second place to the democratic will of their people. The key constitutional provisions in relation to the Commonwealth territories are ss 111 and 122 of the Commonwealth Constitution: 111. The Parliament of a State may surrender any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth. 122. The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on terms which it thinks fit.

The other significant provision is s 52(i) which confers on the Commonwealth exclusive power with respect to ‘the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes’. Although the ‘seat of government’ clearly refers to the place where the Commonwealth Parliament meets, its precise limits have not yet been defined. Section 125 requires the 3 The results of the referendum held on 3 October 1998 were: No 48 241, Yes 44 702, Informal 1068.

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seat of government to be in a territory of not less than 100 square miles, granted to or acquired by the Commonwealth within 100 miles of Sydney in New South Wales. Consequently, the seat of government is located in Canberra within the ACT. This chapter considers various constitutional aspects of Commonwealth territories: their birth; the scope of Commonwealth power over them; the grant of self-government; the range of constitutional restrictions on territory power; and representation in the Commonwealth Parliament. Chapter 12 outlines the constitutional systems of each territory. Additional commentary is provided in earlier chapters on those aspects of the territories which relate to the legislature, the executive and the judiciary.

11.2 The birth of Commonwealth territories Section 122 of the Constitution contemplates the birth of Commonwealth territories in three ways: ● by surrender of territory from a State which is accepted by the Commonwealth pursuant to s 111; ● when any territory is placed by the Queen under the authority of and accepted by the Commonwealth; and ● by other Commonwealth acquisition. It is important to note that the Commonwealth’s capacity to accept or acquire a territory in any of these ways derives not from s 122, but must be found in other provisions of the Commonwealth Constitution. Section 122 only vests legislative power in the Commonwealth Parliament to make laws for the government of its territories and to provide for their representation in the Parliament.4 In doing so, it merely refers to those three ways by which Commonwealth territories are acquired. Commonwealth territories have been acquired in all three ways contemplated by s 122.

11.2.1 State surrender Two States surrendered territory to the Commonwealth for the three mainland territories: the ACT, the Northern Territory and the Jervis Bay Territory. The Northern Territory was surrendered by South Australia in 1907 and accepted by the Commonwealth in 1910, becoming a Commonwealth territory from 1 January 1911. The ACT was surrendered by New South Wales and accepted by the Commonwealth in 1909, becoming a Commonwealth territory at the same time as the Northern Territory on 1 January 1911.5 The Jervis Bay Territory was 4 Until the Commonwealth accepts or acquires a territory, s 122 power does not arise. A parallel exists with s 51(xx) where the power over trading, financial and foreign corporations arise only when they are formed: New South Wales v The Commonwealth (The Incorporation Act case) (1990) 169 CLR 482. 5 Seat of Government Surrender Act 1909 (NSW), Seat of Government Acceptance Act 1909 (Cth).

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surrendered by New South Wales in 1915 and duly annexed by the Commonwealth to the ACT. Section 111 empowers a State parliament to surrender part of the State to the Commonwealth and on acceptance by the Commonwealth, it declares the territory to be within the Commonwealth’s exclusive jurisdiction.6 Although the surrender must be authorised by State legislation, s 111 appears to permit the Commonwealth Executive to accept the territory.7 Nonetheless, each acceptance of the three territories surrendered by the States so far was authorised or effected by Commonwealth legislation. Most striking is the absence of any requirement in s 111 for the approval of a majority of the people of the State or even a majority of those resident in or connected to the territory surrendered. This omission is difficult to reconcile with the requirement of electoral approval under s 123 for any alteration to the limits of a State. Such an alteration, which can only be effected by a Commonwealth law, must be approved by the State parliament and a majority of the State electorate. It is reasonable to argue that since a surrender of State territory pursuant to s 111 alters the limits of the State, the additional requirements of s 123 should be satisfied. However, the joint judgment of the High Court in Paterson v O’Brien8 rejected this argument in a challenge to the surrender by New South Wales of the ACT and to the surrender by South Australia of the Northern Territory. The Court held that s 123 does not qualify s 111. They were viewed as disparate provisions: s 111 confers a power on State parliaments to surrender territory to the Commonwealth, whereas s 123 empowers the Commonwealth to alter State limits. Although a surrender may alter the limits of the State, it is not an alteration initiated by the Commonwealth Parliament to which s 123 alone is directed. This explanation is not entirely convincing since the purpose of s 111 is to empower the States to surrender any part of their State to the Commonwealth, and to confer exclusive Commonwealth jurisdiction over that surrendered territory. It could be argued that a Commonwealth law which accepts the surrender of part of a State under s 111, also falls within s 123 since an alteration in the limits of a State inevitably occurs under such a law. This argument, however, was rejected in Paterson v O’Brien,9 holding that even when Commonwealth acceptance of a surrender occurs by enactment, this enactment cannot be regarded as altering the limits of the State.10 This interpretation is debatable for it fails to give adequate weight to the democratic principle implicit in s 123.11 Unless Paterson v O’Brien12 is overturned, s 111 ought to be amended to require majority State electoral approval for any surrender of State territory. 6 Thereby all State power is excluded: Svikart v Stewart (1994)181 CLR 548 at 566 per Brennan J. 7 Paterson v O’Brien (1978) 138 CLR 276 at 280–1. 8 Ibid 280. 9 Ibid. 10 Ibid 281. 11 The requirement for approval of a majority of electors of a State was only inserted at the Premiers’ Conference in 1899 to appease New South Wales: John Quick and Robert R. Garran, The Annotated Constitution of the Australian Commonwealth (Sydney: Legal Books, 1995) 580. 12 Ibid 280.

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11.2.2 Placement by the Queen and Commonwealth acceptance In Sue v Hill,13 the joint judgment of Gleeson CJ, Gummow and Hayne JJ interpreted placement by ‘the Queen’ in s 122 as referring to the ‘Crown acting on other than Australian advice’. Five territories have been placed under Commonwealth authority by the Queen in right of the United Kingdom: Norfolk Island (1914);14 Ashmore and Cartier Islands (1933);15 Australian Antarctic Territory (1933);16 Cocos (Keeling) Islands (1955);17 and Christmas Island (1958).18 The former Territory of Papua was the first to be placed by the British Crown under Commonwealth authority.19 The requisite Commonwealth acceptance of each placement occurred by Commonwealth legislation pursuant to the external affairs power (s 51(xxix)).

11.2.3 Commonwealth acquisition The Commonwealth acquired sovereign authority over two territories as part of Australia. Commonwealth sovereignty over the Heard and McDonald Islands was claimed in 1947 which was retrospectively confirmed by an exchange of notes with the United Kingdom in 1950. The Coral Sea Islands Territory was unilaterally claimed by the Commonwealth in 1969. Further, the Commonwealth acquired in 1920 as League of Nations mandates, the former German territories of Nauru and New Guinea.20 Since any Commonwealth acquisition of territory from a State falls within s 111, this third way of creating a Commonwealth territory can only arise where the Commonwealth acquires territory external to Australia. Such acquisitions are clearly supported by the external affairs power (s 51(xxix)). For instance, the High Court in Jolley v Mainka21 regarded Commonwealth acceptance of the League of Nations mandate over German New Guinea as supported by s 51(vi) the naval and military defence of the Commonwealth, s 51(xxix) external affairs, and s 51(xxxix) the incidental power. However, Evatt J regarded the mandated territory as not a territory within the scope of s 122 at all because the Commonwealth was precluded by the terms of the mandate from acquiring legal title. Nonetheless, the external affairs power empowered the Commonwealth to accept and govern

13 (1999) 199 CLR 462 at 496–7. Cf Jolley v Mainka (1933) 49 CLR 242 at 256 per Dixon J. 14 Imperial Order in Council (30 March 1914); Norfolk Island Act 1913 (Cth). 15 Imperial Order in Council (23 July 1931); Ashmore and Cartier Islands Acceptance Act 1933 (Cth) – effective 10 May 1934. 16 Australian Antarctic Territory Acceptance Act 1933 (Cth). 17 Cocos (Keeling) Islands (Request and Consent) Act 1954 (Cth), Cocos Islands Act 1955 (UK), Cocos (Keeling) Islands Act 1955 (Cth) – effective 23 November 1955. 18 Imperial Order in Council (13 December 1957), Christmas Island (Request and Consent) Act 1957 (Cth), Christmas Island Act 1958 (Imp), Imperial Christmas Island (transfer to Australia) Order in Council 1958, and Christmas Island Act 1958 (Cth) – effective 1 October 1958. 19 United Kingdom Letters Patent 18 March 1902 (SR&O 1902, p 594); Papua Act 1905 (Cth). 20 See H. Gibbs, Halsbury’s Laws of Australia (Sydney: Butterworths, 1992) Dependencies [155–45, 70–95, 105–45]. 21 (1933) 49 CLR 242 at 249–50 per Starke J.

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the mandated territory in accordance with its international obligations under the mandate. It appears that the Commonwealth can use its external affairs power to acquire and govern an external territory. But if it so acts, there is no doubt that the guarantee of just terms for the compulsory acquisition of property in s 51(xxxi) would apply, as well as all other restrictions on any exercise of Commonwealth legislative power under s 51. However, to provide for representation in the Commonwealth Parliament, s 122 would need to be relied on.

11.3 Nature of a territory The reference to ‘any territory’ in s 122 is rather vague. It seems to refer to a geographical area22 acquired by the Commonwealth, which is capable of being governed and of being represented in the Commonwealth Parliament. Doubts have been raised whether a s 122 territory can comprise entirely an area of sea.23 In the Seas and Submerged Lands Act case (New South Wales v Commonwealth),24 Mason J in the majority left this issue open while Gibbs J in dissent ‘gravely doubted’ whether s 122 extended to the ocean or to the continental shelf.25 His Honour thought s 122 was confined to land territory which, unlike an area of sea, was capable of being represented in parliament.26 The Commonwealth could still use its other powers, such as the external affairs power in s 51(xxix), to regulate the oceans. This limited view of Gibbs J has probably been surpassed by advances in technology which would allow the settlement of the seas. It is also unclear whether the Commonwealth must acquire any proprietary interest. The terms of s 122 suggest that the territory must at least come under exclusive Commonwealth authority.27 This appears to have been the view of a majority of the High Court in Jolley v Mainka28 in relation to the mandated Territory of New Guinea which was placed by the League of Nations under plenary Commonwealth control. Starke J29 regarded this as sufficient acquisition, just as s 122 contemplates the Queen placing a territory under its authority. Dixon J (with whom Rich J concurred) simply accepted that the mandated territory was a Commonwealth territory under s 122, having been effectively placed by the King under Commonwealth authority.30 On the other hand, Evatt J concluded that the mandated territory was not a ‘territory’ within the scope of s 122 because the terms of the mandate precluded the Commonwealth ever acquiring legal 22 Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 275 per Brennan, Deane and Toohey JJ, at 285 per Gaudron J. 23 This issue prevented the Commonwealth from claiming the Coral Sea Islands Territory until Art 10 of the 1958 Convention on the Territorial Sea and Contiguous Zone effectively recognised coral atolls as islands. 24 (1975) 135 CLR 337. 25 Ibid 389. 26 Ibid. 27 Cf G. R. Nicholson, ‘The Constitutional Status of the Self-Governing Northern Territory’ (1985) 59 Australian Law Journal 698, 700. 28 (1933) 49 CLR 242. 29 Ibid 249–50. 30 Ibid 256: because the mandate was assigned to King George V on behalf of the Commonwealth.

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title.31 In effect, his Honour correlated an acquisition under s 122 with that under the Commonwealth’s compulsory acquisition power in s 51(xxxi).32 Evatt J also thought s 122 contemplates the gradual absorption of a territory within the ‘existing organisation of the Commonwealth’.33 While this view gains some support from the location of s 122 in Chapter IV which is concerned with ‘New States’, it gains no support from the terms of s 122 itself.

11.4 The seat of government The seat of government is not a territory as such, although by s 125 it must be located within a Commonwealth territory. Following the defeat of the first constitutional referendum in New South Wales in June 1898, in part, because the Constitution Bill left the location of the national capital to the new Commonwealth Parliament, clause 125 was altered to ensure the capital would be in New South Wales, not less than 100 miles from Sydney, within a federal territory of not less than 100 square miles.34 Accordingly, the ACT was established within these parameters to house the seat of government. But it is clear that the ACT and the seat of government within it are not coterminous,35 unlike the position in the United States.36 They also have a different source of Commonwealth power. The Commonwealth’s legislative power with respect to the ACT is s 122.37 For the seat of government, it is the first limb of s 52(i) which confers on the Commonwealth Parliament exclusive power to make laws for the peace, order and good government of the Commonwealth with respect to ‘(i) the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes’. The scope of this power depends on the elusive meaning of ‘seat of Government’. Literally, it refers to the location of the Commonwealth Parliament and Executive. A broader view is that it refers to a designated area or place.38 Windeyer J in Spratt v Hermes39 thought ‘the seat of government’ had been used 31 Ibid 279. 32 See the concept of acquisition in s 51(xxxi) explained in Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1 at 145 per Mason CJ, at 181–2 per Murphy J and at 246–8 per Brennan J. 33 Jolley v Mainka (1933) 49 CLR 242 at 279. See also Howard Zelling, ‘The Territories of the Commonwealth’ in Else-Mitchell (ed), Essays on the Australian Constitution (2nd edn, Sydney: Law Book Company, 1961) 327, 328. 34 See Quick and Garran, above n 11, 979; Opinions of the Attorneys-General of the Commonwealth of Australia Vol 1 1901–1914 (1981) (Canberra: Australian Government Publishing Service) 244–6. 35 See Re Governor, Goulburn CC, above n 1 at 333 per Gleeson CJ, McHugh and Callinan JJ; Svikart v Stewart (1994) 181 CLR 548 at 561 per Mason CJ, Deane, Dawson and McHugh JJ; Spratt v Hermes (1965) 114 CLR 226 at 262 per Taylor J. 36 Cf where the whole of the District of Columbia is the seat of government: Art I, s 8, United States Constitution. 37 Svikart v Stewart (1994) 181 CLR 584; affirmed in Re Governor, Goulburn CC (1999) 200 CLR 322 at 333, 335–6, 368–70. 38 Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89 at 96–7 per Barwick CJ, at 114 per Menzies J, and at 124–5 per Windeyer J. 39 (1965) 114 CLR 226 at 273, citing the example of Ottawa as the capital of Canada under British North America Act 1867, s 16; see also Windeyer J in Worthing v Rowell and Muston, ibid at 124 where he says the seat of government, like a seat of learning or a seat of a bishop, cannot be precisely delineated.

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for centuries to refer to the nation’s capital. On this basis, the seat of government in Australia would be the city of Canberra.40 Another view is that the seat of government occupies an area of Canberra known as the parliamentary triangle, the three points being Parliament House, Civic (Canberra’s CBD) and the Defence Department buildings. If the seat of government is a ‘place’, the exclusive power in s 52(i) confers a fairly wide power with respect to that place. On the other hand, a more restricted view was expressed by Kitto J in Spratt v Hermes41 who confined the first limb of s 52(i) ‘to the making of laws on the subject of the seat of government as a specific and separate topic of legislation to be distinguished from more general topics which may affect a place in which the seat of government is or is to be’. His Honour suggested as examples of the former: the Seat of Government Act 1908 (Cth) and s 4 of the Seat of Government Acceptance Act 1909 (Cth).42 While the judgment of Mason CJ, Dawson and McHugh JJ in Capital Duplicators Pty Ltd v Australian Capital Territory43 merely noted these different views, the joint judgment of Mason CJ, Deane, Dawson and McHugh JJ in Svikart v Stewart44 favoured the narrower interpretation, as a power ‘concerned with its political or constitutional aspects, rather than with the government of the territory which it occupies.’45 The joint judgment relied on the plenary power in s 122 and the fact that the s 52(i) power is be exercised for the peace, order and good government of the Commonwealth.46 It was also consistent with the interpretation given in that case to the exclusive power in the second limb of s 52(i) – to make laws with respect to Commonwealth acquired places – that it did not extend to places acquired in the territories.47 The plenary nature of the s 122 power, combined with the Commonwealth’s exclusive jurisdiction under s 111 over surrendered territories, indicated that the powers in s 52(i) were to be read down.48 Examples of the exercise of this power are the enactment of the Parliament Act 1974 (Cth) which defines the site of Parliament House, and the Parliamentary Precincts Act 1988 (Cth). Section 29 of the Australian Capital Territory (SelfGovernment) Act 1988 (Cth) actually addresses the relationship between the ACT and the seat of government by empowering either House of the Commonwealth Parliament by resolution to deny prospectively the application of any ACT

40 Supported by Opinions of the Attorneys-General, above n 34. Note the ACT (Self-Government) Act 1988 (Cth) s 59 (1) refers to both ‘the national capital and the seat of government of the Commonwealth’ as distinct. 41 (1965) 114 CLR 226 at 258. See also Taylor J at 262–3. 42 Seat of Government Acceptance Act 1909 (Cth) s 4: ‘It is hereby declared and determined that the Seat of Government shall be in the Territory described in the Second Schedule to this Act.’ 43 (1992) 177 CLR 248 at 266–7. 44 (1994) 181 CLR 548 at 561. 45 Ibid (emphasis added). 46 Ibid. 47 Rather than view it simply as an independent source of power limited to political or constitutional aspects, Gaudron J in Re Governor, Goulburn CC (1999) 200 CLR at 335–6 preferred to interpret s 52(i) as merely rendering exclusive to the Commonwealth a power found elsewhere in the Constitution, presumably, in s 122. 48 This decision resolves any difference of opinion over the scope of the first limb of s 52(i) detected by the minority joint judgment of Mason CJ, Dawson and McHugh JJ in Capital Duplicators (1992) 177 CLR 248 at 266–7 from the decisions in Spratt v Hermes (1965) 114 CLR 226 at 258, 263 and in Worthing v Rowell and Muston, above n 38 at 106, 111–12, 134; cf Worthing v Rowell and Muston at 97, 114–15, 124.

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enactment to that House, to its members49 or in the parliamentary precincts as defined by s 3(1) of the Parliamentary Precincts Act 1988 (Cth).50 Note that there is judicial recognition for an implied constitutional freedom of access to the seat of government, or more generally to the institutions of federal government. Such an implied freedom under the United States Constitution was recognised by the United States Supreme Court in Crandall v State of Nevada.51 In reliance52 on that decision, Dixon CJ (with whom Fullagar J agreed) in Pioneer Express Pty Ltd v Hotchkiss53 recognised a freedom of access to the ACT as a restriction on State power: No one would wish to deny that the constitutional place of the Capital Territory in the federal system of government and the provision in the Constitution relating to it necessarily imply the most complete immunity from State interference with all that is involved in its existence as the centre of national government, and certainly that means an absence of State legislative power to forbid restrain or impede access to it.54

In that case, New South Wales licensing requirements regarding a passenger bus service between Sydney and Canberra were found not to violate this freedom. It must be remembered that the focus of the freedom is not the ACT, but the seat of Government located there. And, if it is a freedom to access the federal government as such, it should extend to all federal government offices throughout Australia.55 It is also a restriction on both State power and Commonwealth and territory power, especially that of the ACT. Nor is the freedom confined to physical access, extending as well to all forms of communication with government. This of course means that this freedom is now probably subsumed in the implied freedom of political communication.56 With the second limb of s 52(i), no overlap with s 122 is possible. A majority57 of the Court in Svikart v Stewart58 held that the reference to ‘places’ acquired by the Commonwealth referred only to places acquired in the States, not those acquired in the territories. Accordingly, the Traffic Act 1987 (NT) applied to the Royal Australian Air Force base in Darwin. The joint majority read down59 the second limb of s 52(i) by interpreting ‘exclusive’ in the opening words of s 52 to 49 The resolution needs to cover all members of the House, and presumably would be confined to their activities as members. 50 ACT (Self-Government) Act 1988 (Cth) s 29. 51 (1867) 73 US 35 at 44–5. Noted in R v Smithers; Ex parte Benson (1912) 16 CLR 99 at 108 per Griffith CJ, and 109–10 per Barton J. 52 Cf D. Mossop, ‘The Constitutional Basis for the Government of the Australian Capital Territory’ (1999) 6 Canberra Law Review 5, 24. 53 (1958) 101 CLR 536. 54 Ibid 550. Taylor J at 560 recognised an implication of this nature. 55 It might even extend to State and territory government offices, given the inseparability of political affairs: Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211. In Cunliffe v The Commonwealth (1994) 182 CLR 272 at 328 Brennan J left open whether there is a right of access to government or to the repositories of statutory power. 56 See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 73–4 per Deane and Toohey JJ; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 213–14 per Gaudron J; Theophanous v The Herald & Weekly Times Ltd (1994) 182 CLR 104 at 166 and 169 per Deane J; Kruger v The Commonwealth (1997) 190 CLR 1 at 116 per Gaudron J. 57 Mason CJ, Brennan, Deane, Dawson and McHugh JJ; contra Toohey and Gaudron JJ. 58 (1994)181 CLR 548 at 560–1. 59 Ibid at 560, followed Isaacs J in Nott Bros & Co. Ltd v Barkley (1925) 36 CLR 20 at 29.

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mean ‘exclusive of State power’. In distinguishing Capital Duplicators Pty Ltd v Australian Capital Territory,60 they accepted that ‘exclusive’ can have different meanings – even within s 52 itself. Brennan J also read down the second limb but only to exclude places in s 111 territories surrendered to the Commonwealth by the States. Since s 111 vested exclusive jurisdiction over those territories in the Commonwealth, for s 52(i) to apply to places in those territories would be otiose, and therefore its purpose was simply to oust State law.61 The dissenting judgments of Toohey and Gaudron JJ held the Traffic Act inoperable within the RAAF base, refusing to exclude territory places from the power. Both followed Capital Duplicators in holding that ‘exclusive’ in s 52 meant exclusive of any other law-making authority,62 and relied on the drafting history of s 52 during the Constitutional Debates in 1898 when the reference to places in the States was removed from the clause.63 Gaudron J also relied on a more fundamental reason for refusing to read down s 52(i): Whatever be the differences that the Constitution dictates for the territories and for territorians, there is, in my view, no basis for implications which exacerbate or add to those differences.64

This view should be encouraged, particularly for the self-governing territories, as long as there exists ambiguity in the application of the Commonwealth Constitution. With respect, the reconciliation of the second limb of s 52(i) and s 122 lacks such an ambiguity.

11.5 Commonwealth power over the territories Although the existence of federal territories is not uncommon in federal systems, their constitutional status within a federation and their relationship with the other federal components are often elusive. The principal Commonwealth power is the general power vested in the parliament by s 122 to ‘make laws for the government of any territory’ as well as to ‘allow the representation of such territory in either House of the Parliament to the extent and on terms which it thinks fit.’ It is implicit in s 122 that these powers are exclusive to the Commonwealth. The reference in s 111 to the ‘exclusive jurisdiction’ of the Commonwealth in relation to surrendered territories reinforces that implication. These provisions confer plenary legislative power on the Commonwealth as wide as that conferred on the States to make laws for the peace, order and good

60 (1992) 177 CLR 248. 61 Svikart v Stewart (1994) 181 CLR 548 at 566. 62 Ibid at 573 per Toohey J and at 579–80 per Gaudron J. Gaudron J could not accept that ‘exclusive’ would have two different meanings within the same section: s 52(i) and (iii). 63 See Official Record of the Debates of the Australasian Federal Convention (Melbourne) 4 March 1898, p 1874. Clause 53 was based on Art I, s 8(17) United States Constitution. 64 (1994) 181 CLR 548 at 581. Her Honour also expressed serious doubt whether traffic offences are laws with respect to a Commonwealth acquired place, but felt constrained by the authority of R v Phillips (1970) 125 CLR 93 to assume so.

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government of their State.65 Barwick CJ in Spratt v Hermes66 described the territories power in s 122 ‘as large and universal a power of legislation as can be granted’67 and he repeated this view in Teori Tau v The Commonwealth:68 ‘The grant of legislative power by s 122 is plenary in quality and unlimited and unqualified in point of subject matter.’69 In Australian National Airways Pty Ltd v The Commonwealth,70 Dixon J viewed it as not merely a power of a local legislature to make laws in and for a territory, but a ‘power to legislate upon a national basis with respect to the territories’. 71 The formula used in s 122, to make ‘laws for the government of any territory’, is a condensed form72 of the traditional State formula. It has been interpreted as no less in scope.73 Indeed, it tends to be even wider in empowering the Commonwealth to choose whatever form of government it desires, ranging from direct regulation through to full self-government as in the Northern Territory and the ACT.74 The position was succinctly described by Mason J, with whom Barwick CJ, McTiernan and Murphy JJ agreed, in Berwick Ltd v Gray: [I]t is wide enough to enable Parliament to endow a Territory with separate political, representative and administrative institutions, having control of its own fiscus.75

Consequently, the self-governing territories are not mere delegates of the Commonwealth, nor is their creation in breach of the principle articulated by the Privy Council in In re The Initiative and Referendum Act76 not ‘to create and endow with its own capacity a new legislative power not created by the Act to which it owes its existence’.77 Despite the grant of self-government, the Commonwealth retains the capacity under s 122 to override territory enactments by its own legislation: Northern Land Council v Commonwealth.78 To characterise a law within s 122, a sufficient nexus or connection between the law and the territory is required.79 Even an economic connection is sufficient. Hence, intrastate airline services on routes to and from the territories were 65 See Spratt v Hermes (1965) 114 CLR 226 at 241–2 per Barwick CJ; Teori Tau v The Commonwealth (1969) 119 CLR 564 at 570 per Barwick CJ; Capital Duplicators (1992) 177 CLR 248 at 271 per Brennan, Deane and Toohey JJ; Kruger v The Commonwealth (1997) 190 CLR 1 at 78 per Toohey J. 66 (1965) 114 CLR 226. 67 Ibid 242. 68 (1969) 119 CLR 564. 69 Ibid 570. 70 (1945) 71 CLR 29. 71 Ibid at 84, Dixon J viewed the s 122 power as equivalent to a head of power in s 51 (that is, a power to make laws for the peace, order and good government of the Commonwealth with respect to the territories). Dixon J, ibid, thought s 51(xxxix) might extend to s 122. 72 See Spratt v Hermes (1965) 114 CLR 226 at 242 per Barwick CJ. 73 Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 599 per Gummow J: Although the traditional formula of ‘peace, order and good government’ is omitted from the more condensed formula used in s 122, this is of no significance. But it does highlight the power to provide for the establishment of the constitutional arrangements for the territories (Capital Duplicators (1992) 177 CLR 248 at 271 per Brennan, Deane and Toohey JJ). 74 See R v Bernasconi (1915) 19 CLR 629 at 635 per Griffith CJ; Berwick Ltd v Gray (1976) 133 CLR 603 at 607 per Mason J; Kruger v the Commonwealth (1997) 190 CLR 1 at 41 per Brennan CJ. 75 (1976) 133 CLR 603 at 607. Endorsed in Capital Duplicators (1992) 177 CLR 248 at 265–6 per Mason CJ, Dawson and McHugh JJ, and at 271–2 per Brennan, Deane and Toohey JJ. 76 [1919] AC 935 at 945 which was adopted by Dixon J in Victorian Stevedoring and General Contracting Co. Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 95–6. 77 In re The Initiative and Referendum Act [1919] AC 935 at 945; Capital Duplicators (1992) 177 CLR 248 at 271–2 per Brennan, Deane and Toohey JJ. 78 (1986) 161 CLR 1. 79 Berwick Ltd v Gray (1976) 133 CLR 603 at 607 per Mason J; Kruger v The Commonwealth (1997) 190 CLR 1 at 41 per Brennan CJ.

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permitted in Attorney-General of the State of Western Australia (at the Relation of Ansett Transport Industries (Operations) Proprietary Limited) v Australian National Airlines Commission80 even though only undertaken for economic reasons. Laws pursuant to s 122 may also have extraterritorial effect. As Dixon CJ observed in Lamshed v Lake: ‘it operates as a binding law of the Commonwealth wherever territorially the authority of the Commonwealth runs’.81 Consequently, s 122 power is often used in conjunction with the Commonwealth’s other powers to implement national schemes in fields such as air navigation, matrimonial causes, and the service and execution of process.82 The difficulties involved in characterising those laws are considered below. Despite the plenary scope of the s 122 power, it is possible to identify laws which lack the necessary connection with a territory. An example is that suggested by Gummow J in Newcrest Mining (WA) Ltd v The Commonwealth83 – a law recruiting defence personnel from a territory for the defence of the Commonwealth. This is a law within the defence power s 51(vi), not s 122. Whether a Commonwealth law should be characterised within s 122 or some other head of power may affect the applicability of constitutional restrictions. Before considering those restrictions in detail, it is necessary to consider the status of the territories within the federal system.

11.6 Status of Commonwealth territories The constitutional status of the Commonwealth territories still requires High Court clarification: whether the territories form part of the Commonwealth, and/or whether they form part of the federal system; and whether the status of the mainland territories differs from that of the external territories. In Spratt v Hermes, three different perspectives were expressed. The narrowest view, given by Kitto J, simply confined the Commonwealth to the States.84 The middle view, given by Barwick CJ, distinguished between the territories forming part of ‘the Commonwealth’ in Chapter I of the Commonwealth Constitution, while not forming part of the federal system. The latter arose because the territories involved no division of power between the Commonwealth and the States.85 The widest view, given by Menzies J, rejected this distinction drawn by Barwick CJ as beyond his ‘grasp’, holding as ‘inescapable’ from covering clause 5 of the Constitution – which made the Constitution and Commonwealth law binding on the people of the States and ‘of every part of the Commonwealth’ – that the territories are part of the Commonwealth and thus part of the federal system.86 80 (1976) 138 CLR 492 – although not on interstate routes under s 51(i). 81 (1958) 99 CLR 132 at 141. 82 Ibid 145. Webb, Kitto and Taylor JJ agreed. 83 (1997) 190 CLR 513 at 605. 84 Ibid 259. 85 (1965) 114 CLR 226 at 247. Cf R. D. Lumb, ‘The Northern Territory and Statehood’ (1978) 52 Australian Law Journal 554, 560 regarded the territories as not ‘completely “fused” with the Commonwealth in its political sense’. 86 Ibid 270. A similar view was briefly expressed by Kirby J in Fittock v The Queen (2003) 197 ALR 1 at 7 [31].

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Menzies J then offered a fourth perspective if his wide view was unacceptable; that is, to recognise as part of the Commonwealth only those territories which were originally part of a State at federation. This distinction was originally suggested by Griffith CJ in Mitchell v Barker87 and was raised by Fullagar J in Waters v Commonwealth.88 It is consistent with the views expressed by Dixon CJ and Williams J in Lamshed v Lake that the Northern Territory is part of the Commonwealth within s 118 of the Constitution.89 Also, it accommodates the views expressed in Berwick Ltd v Gray by Barwick CJ and Mason J that Norfolk Island is part of the Commonwealth by virtue of being placed under New South Wales administration by an Imperial Order in Council of 1897.90 This fourth perspective means that only those territories which were originally part of a State are part of the Commonwealth, namely, the ACT, Territory of Jervis Bay, the Northern Territory and possibly Norfolk Island. This view was left open by the joint judgment of Brennan, Deane and Toohey JJ in Capital Duplicators91 who accepted that all current mainland territories were parts of States in 1901 and, as such, were parts of the Commonwealth and have remained so as territories.92 Their Honours considered that any territory not part of the States in 1901 did not become part of the Commonwealth, as the Commonwealth was coterminous with the States. They left open whether external territories only become part of the Commonwealth by being made a State under s 121 or included in the limits of a State under s 123.93 Similar views were expressed by Gaudron J94 who maintained it was obvious that the ACT and the Northern Territory were constituent parts of the Commonwealth, both geographically and politically. Also, the external territories which were League of Nations mandates and United Nations trust territories (that is, New Guinea and Nauru) could never be part of the Commonwealth. Given the diversity of territories capable of coming under Commonwealth jurisdiction, the drawing of a distinction can be justified between those territories which form part of the Commonwealth and those which do not on any of the following grounds: ● the territory once formed part of a State; ● the territory has expressed in unambiguous terms a desire to be integrated into the Australian community (as occurred on the Cocos (Keeling) Islands with the United Nations Act of Self-Determination in 1984); or

87 (1918) 24 CLR 365 at 367. 88 (1951) 82 CLR 188 at 192. 89 (1958) 99 CLR 132 at 142, 151. 90 (1976) 133 CLR 603 at 605, 608. This view is to be preferred to that expressed by Crawford’s Opinion of 9 August 1999, ‘The Constitutional Relationship between Norfolk Island and the Commonwealth of Australia’, that Norfolk Island is not ‘an integral part of the Commonwealth of Australia’. 91 Capital Duplicators (1992) 177 CLR 248. 92 Ibid 275. 93 Ibid 274. By footnoting Mason J in Berwick Ltd v Gray (1976) 133 CLR 603 at 608, they left open the possibility Norfolk Island is also a part of the Commonwealth. 94 Ibid 285–6: cites Barwick CJ in Attorney-General (NSW); Ex rel McKellar v The Commonwealth (1977) 139 CLR 527 at 533 – ‘unable to find any relevant distinction between the so-called internal Territories and the external Territories’.

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the Commonwealth has exercised a level of control which indicates its desire to regard the territory as part of the Commonwealth (this ground is particularly relevant to the uninhabited regions such as the Territories of Ashmore and Cartier Islands, Heard and McDonald Islands, and the Coral Sea Islands).

Despite the need to distinguish between the territories on one or more of these bases, Gaudron J was correct to acknowledge in Capital Duplicators95 that the political relationship between the residents of the territories and the Australian body politic ‘requires that s 122 be interpreted in a way that secures to territorians the same basic rights that the Constitution confers on other Australians, unless the contrary is clearly indicated.’96

11.6.1 Acts Interpretation Act 1901 (Cth) Although for administrative law purposes, the Commonwealth has excluded the external territories from ‘Australia’ when used geographically,97 this cannot alter the constitutional status of the territories. The Acts Interpretation Act 1901 (Cth) contains a number of provisions which affect the interpretation of Commonwealth legislation so far as it refers to the territories or their laws. Subject to a contrary intention, s 17(a) defines the Commonwealth of Australia, when used in a geographical sense, to include the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but ‘does not include any other external Territory’. The Act distinguishes between an ‘Internal Territory’ which is defined to refer to the ACT, the Jervis Bay Territory, and the Northern Territory (s 17(pe)), and an ‘External Territory’ which is defined to mean a ‘Territory other than an internal Territory’ (s 17(pd)). The exclusion of the external territories (other than the Territories of Christmas Island and of Cocos (Keeling) Islands) from Commonwealth enactments is designed primarily to maintain the special status of Norfolk Island. The other external territories are uninhabited with no form of resident governance. Despite the observation of Cowen and Zines98 of a tendency on the part of the Commonwealth parliamentary draftsmen in other legislation to regard only the internal territories as part of the Commonwealth, no implication can or should be drawn from these provisions in the Acts Interpretation Act to suggest that Norfolk Island and the other external uninhabited territories are not part of the Commonwealth as a constitutional entity. 95 Capital Duplicators (1992) 177 CLR 248. 96 Ibid 288. 97 Acts Interpretation Act 1901 (Cth) s 17(a). Several statutes have been enacted on the basis that the external territories are not part of the Commonwealth: for example, s 13 Statutory Declarations Act 1959 (Cth) that the Act extends to Norfolk Island and to such other territories not forming part of the Commonwealth as Governor-General declares. 98 Leslie Zines, Cowen and Zines’s Federal Jurisdiction in Australia (3rd edn, Sydney: Federation Press, 2002) 164–5, citing s 8 of the Bankruptcy Act (Cth) which was interpreted in Waters v The Commonwealth (1951) 82 CLR 188 at 192.

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11.7 Restrictions on section 122 territories power The Commonwealth has, by s 122, plenary power over the territories – subject to the Commonwealth Constitution. But it is that qualification which raises the most significant constitutional issue in relation to the territories: to what extent is the territories power in s 122 subject to the range of restrictions on Commonwealth power found throughout the Constitution? Central to the resolution of that issue has been the particular description given to the status of the territories. Yet, those descriptions have been notoriously confusing and unhelpful. What remains critical is the interpretation of the relevant constitutional provisions, paying due regard to the purpose which they are intended to serve. Since federation, the High Court has characteristically produced a range of views on the place of the s 122 territories power within the Constitution. All involve some degree of disjoinder from the rest of the Constitution but the Court has been split over the degree of this disjoinder. The debate has been notable for the range of persuasive arguments on each side. While clarification is still required, the trend in more recent times has been to confine the disjoinder narrowly, as Barwick CJ did in Spratt v Hermes99 where his Honour acknowledged that while the s 122 power is different from the other Commonwealth powers, that does not mean it is completely disjoined from the rest of the Constitution: It is non-federal in character in the sense that the total legislative power to make laws to operate in and for a territory is not shared in any wise with the States. But this does not mean that the power is not controlled in any respect by other parts of the Constitution or that none of the provisions to be found in chapters other than Chap VI are applicable to the making of laws for the Territory or to its government. It must remain, in my opinion, a question of construction as the matter arises whether any particular provision has such an operation, the construction being resolved upon a consideration of the text and of the purpose of the Constitution as a whole.

The range of views expressed by the High Court since federation must be viewed in their historical context. Certain decisions relate to territories, such as the mandated Territory of New Guinea, which were never intended to become part of Australia. Section 122 clearly contemplates a wide range of territories. Consequently, their status must accommodate this variety, as well as the fact that some territories continue to evolve. Given their multifarious nature and permutating capacity, it is impossible to define the status of the territories in any specific way. Their status can only be defined in very general terms vis-a-vis their relationship with the Commonwealth and the States.

99 (1965) 114 CLR 226 at 242.

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11.7.1 Supporting a wide disjoinder The disjoinder of s 122 is premised on the unchallenged view that the power is nonfederal and disparate.100 This means that the power is distinct from those powers found in s 51 which are concerned with the division of legislative power between the Commonwealth and the States.101 The legislative regime thereby established is one of essentially concurrent Commonwealth and State jurisdictions except for those powers made exclusive to the Commonwealth. Distinct from this regime is the territories power in s 122 which is only to be exercised for the territory and involves no State power. This reasoning led the High Court in several decisions to hold inapplicable to the s 122 power certain constitutional restrictions on Commonwealth power: the guarantee of just terms in s 51(xxxi) for the compulsory acquisition of property; the restrictions on taxation Bills in s 55; and those found in Chapter III in relation to the exercise of judicial power. The wide disjoinder of the s 122 power was justified on several grounds: the non-federal nature of the power; the plenary terms in which the power is described; and the range of different territories of varying political, social and economic standing which might fall under Commonwealth authority. This approach to s 122 was initially established in two early High Court decisions: Buchanan v The Commonwealth102 and R v Bernasconi.103 Both cases involved extraordinary circumstances. The first involved a challenge to the process by which the Northern Territory was transferred from South Australia to the Commonwealth. The second involved the judicial system of the external Territory of Papua. Buchanan held the second limb of s 55, which required Commonwealth laws imposing taxation to impose only one subject of taxation, inapplicable to s 122 tax laws. Accordingly, s 55 could not be relied on to challenge the Northern Territory Acceptance Act 1910 (Cth) and the Northern Territory (Administration) Act 1910 (Cth) on the ground that they contained transitional provisions for the continued application of South Australian taxation laws.104 Clearly intent on avoiding the profound inconvenience of invalidating these laws by which the Commonwealth accepted the Northern Territory from South Australia, the Court attempted to isolate or disjoint the territories from the rest of the Constitution. Apart from noting the location of s 122 in Chapter VI dealing with New States,105 two key factors justified this disjoinder from s 55: the Senate’s role as a States’ House; and the fact that the Commonwealth Parliament only represented the inhabitants of the States.106 Neither of these factors stands up today with 100 Attorney-General of the Commonwealth of Australia v The Queen (Boilermakers’ case) (1957) 95 CLR 529 at 545 per Viscount Simonds. 101 Teori Tau v The Commonwealth (1969) 119 CLR 564 at 570 per Barwick CJ. 102 (1913) 16 CLR 315. 103 (1915) 19 CLR 629. 104 Sections 7 and 5 respectively of these Acts provided for the continued operation as Territory laws of South Australian laws in force before the Commonwealth accepted the Territory. Included in this adoption were the Succession Duties Act 1893 (SA) and the Administration and Probate Act 1891 (SA) which imposed two different subjects of taxation. 105 Buchanan v The Commonwealth (1913) 16 CLR 315 at 327 per Barton ACJ. 106 Ibid 327–8.

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members of both Commonwealth Houses elected from the ACT and the Northern Territory, and with resident citizens of the other inhabited external territories included in mainland federal electorates. Bernasconi107 held the right to trial by jury afforded by s 80 for Commonwealth indictable offences did not extend to offences tried in the Territory of Papua pursuant to an Ordinance made by the Territory’s Legislative Council. Griffith CJ (with whom Gavan Duffy and Rich JJ concurred) merely raised the issue whether the Ordinance was a law of the Commonwealth – but appeared to assume that it was, in deciding the inapplicability of s 80.108 The Chief Justice relied on the view that laws enacted pursuant to s 122, like State enactments, were not laws of the Commonwealth.109 According to Griffith CJ, Chapter III did not extend to the territories at all – whether the s 122 power was exercised directly or through a subordinate legislature: In my judgment, Chapter III is limited in its application to the exercise of the judicial power of the Commonwealth in respect of those functions of government as to which it stands in the place of the States, and has no application to territories.110

More persuasive is the judgment of Isaacs J who regarded the territories as ‘in a state of dependency or tutelage’ and so ‘not yet in a condition to enter into the full participation of Commonwealth constitutional rights and powers’.111 Their protection lay with Parliament. Given the varying nature of potential territories (noting the possibility of acquiring recently conquered German and Polynesian territories), the Commonwealth should not be hampered in its administration by inappropriate requirements such as the British jury system. This wide disjoinder view, established in Buchanan112 and Bernasconi,113 was followed 50 years later in Teori Tau v The Commonwealth114 to immunise s 122 from the constitutional guarantee of just terms in s 51(xxxi) for the compulsory acquisition of property by the Commonwealth. The High Court held unanimously in a brief extempore judgment that this guarantee did not extend to a Commonwealth compulsory acquisition in the territories. Accordingly, Ordinances made pursuant to three Commonwealth Acts enacted under s 122 for the mandated Territory of New Guinea and later, for the Territory of Papua and New Guinea, which vested minerals in the Crown or the Territory’s administration, could not be challenged under s 51(xxxi). The Court relied on the plenary and unlimited nature of the territories power to reject the argument that the power to compulsorily acquire property in the territories was found only in s 51(xxxi) and not in s 122. Being ‘federal legislative powers as part of the distribution of legislative power between the Commonwealth and the constituent States’,115 none of the heads of power in s 51 qualified s 122.116 However, the Court did not suggest that 107 (1915) 19 CLR 629. 108 Ibid 634. 109 Similarly, s 122 laws were not laws of the Commonwealth within ss 41, 61 and 109 of the Commonwealth Constitution. 110 R v Bernasconi (1915) 19 CLR 629 at 635. 111 Ibid 637. 112 (1913) 16 CLR 315. 113 (1915) 19 CLR 629. 114 (1969) 119 CLR 564. 115 Ibid 570. 116 Ibid.

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s 122 was disjointed entirely from the Constitution.117 For instance, it accepted that s 122 was subject to the guarantee of freedom of religion in s 116. The Court was concerned only with the relationship between s 51 and s 122. But even on that issue, there is a paucity of reasoning to support the Court’s interpretation. No apparent significance was accorded to the nature of the Territory of Papua and New Guinea as an external and partly mandated territory. More recently, the relationship between s 51(xxxi) and s 122 has been the subject of detailed consideration by the High Court in Newcrest Mining (WA) Ltd v The Commonwealth.118 That case involved a challenge to proclamations made under the National Parks and Wildlife Conservation Act 1975 (Cth) on the basis that, so far as they extended the area of Kakadu National Park, they effected an acquisition of the appellant’s mining interests over that area other than on just terms. While the challenge was narrowly upheld, the majority divided on whether s 51(xxxi) applied to s 122 laws. Gaudron, Gummow and Kirby JJ were prepared to overrule Teori Tau; Toohey J was not. Although Toohey J was not prepared to hold that s 51(xxxi) restricted s 122, his Honour joined the majority in declaring the proclamations invalid by characterising them under the external affairs power s 51(xxix), rather than under s 122, since their purpose was to give effect to Australia’s international obligations under the World Cultural and Natural Heritage Convention. As laws with respect to s 51(xxxix), they were subject to the requirement of just terms in s 51(xxxi). His Honour thought few Commonwealth laws could be characterised exclusively within s 122 to the extent that they operated within self-governing territories. The minority of Brennan CJ, Dawson and McHugh JJ regarded Teori Tau as correctly holding s 51(xxxi) inapplicable to s 122. Their separate judgments rely on several key arguments for confining the extent to which s 122 is subject to the rest of the Constitution: First, the view that s 122 ‘stands outside the provisions which express the distribution of powers between the Commonwealth and the States’119 (Brennan CJ). Secondly, while the powers in ss 51 and 52 are to be exercised for the whole Commonwealth, s 122 is limited to laws for the government of a territory.120 Thirdly, s 122 needs to be accorded a plenary and unrestricted scope to enable the Commonwealth to address the diverse conditions which might exist in the range of territories which the Commonwealth might acquire. This is illustrated by the different types of territories so far vested in the Commonwealth: the territory in which the seat of government is located, other mainland territories, external territories, and those granted by United Nations or other international bodies.

All three arguments are encapsulated in this passage from the judgment of Brennan CJ: 117 Ibid. 118 (1997) 190 CLR 513. 119 Ibid 535. 120 Ibid 536 per Brennan CJ. Relied on Lamshed v Lake (1958) 99 CLR 132 at 141–2 per Dixon CJ; Spratt v Hermes (1965) 114 CLR 226 at 241–2 per Barwick CJ, and at 250–1 per Kitto J; Teori Tau v The Commonwealth (1969) 119 CLR 564 at 569–70 per Barwick CJ.

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Teori Tau rests on a principle ‘carefully worked out in a significant succession of cases’. The principle is that s 122 confers a power that is additional to the powers conferred by s 51 and is not qualified by that section, the s 122 power being conferred solely on the Commonwealth not for the government of the Commonwealth as a whole but for the government of Commonwealth territories. That is not to say that the scope of the power is not limited by implications drawn from the federal structure, but it is to say that no limiting implication is to be found in the text of s 51(xxxi). The principle of Teori Tau and the line of cases of which it is a part satisfied the political exigencies in which the Constitution was framed. The s 122 power was to be exercised in the diverse social and economic conditions of territories which might be accepted by the Commonwealth. It would have been improvident to place on the Parliament, as the sole legislature for the territories, the restrictions that limited the s 51 powers which were to be exercised in the government of the whole federal Commonwealth.121

Similar arguments are found in the judgments of Dawson J and McHugh J. Dawson J emphasised that ‘a law for the government of any territory is no more a law for the peace, order and good government of the Commonwealth than is a law for the peace, order (or welfare), and good government of a State’.122 His Honour succinctly expressed the fundamental premise on which the disjoinder is based: ‘the territories are not part of the federation, involving as it does a division of power between the Commonwealth and the States’.123 Additionally, McHugh J124 relied on the phrase, ‘subject to this Constitution’, which is found in s 51 but not in s 122. His Honour noted that as Constitutions may contain conflicting provisions, they may expressly or impliedly indicate that certain provisions be read subject to others. The phrase, ‘subject to this Constitution’, was in his view a ‘standard way of making clear’125 the unqualified provision is to prevail.126 Therefore s 122 must prevail over provisions which are made subject to the Constitution like ss 51 and 52.127 While these arguments present a persuasive case for acknowledging the disjoinder of s 122 from s 51, they are not particularly persuasive for a wide disjoinder from the rest of the Constitution. The most significant argument for the latter is that originally propounded by Isaacs J in Bernasconi128 – the potential diversity of Commonwealth territories requires a plenary power unhindered by those restrictions prescribed for the protection of the federal system including the residents of the States. Obviously, this approach relies on parliament to provide an appropriate level of protection for each territory. This flexibility may well be justified if the Commonwealth were to acquire in the future, as it has in the past, external territories of varying political, social and economic development. Still, it seems 121 Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 541–2 (footnotes deleted) (emphasis added). 122 Ibid 553. 123 Ibid 557. 124 Ibid 578: his Honour regarded the extent of disjoinder as dependent ‘upon the language, subject matter and purpose of [the constitutional] provisions, whether they are “subject to this Constitution”, and the extent to which they would support or undermine the object of s 122’. 125 See Harding v Coburn [1976] 2 NZLR 577 at 582. 126 Newcrest Mining (1997) 190 CLR 513 at 577. 127 Ibid 580. 128 (1915) 19 CLR 629.

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that this is unlikely to occur in the future with heightened global nationalism and a fierce sense of self-determination gripping struggling nations. Furthermore, the effect of the wide disjoinder approach is out of line with significant contemporary expectations and values, in particular, equality before the law as Australian citizens. Irrespective of State or territory residence, Australian citizenship should ensure equality of constitutional rights – this is the basic foundation of the sovereignty of the people.129 It also ignores the change which occurs in the constitutional status of the residents of those territories surrendered by the States to the Commonwealth, namely, the residents of the ACT, the Northern Territory and the Jervis Bay Territory. Why should the transition to a territory erode their constitutional status? The drafters of the Constitution appeared not to have considered this consequence. Today there is no reason to doubt that the pervading attitude within Australia is that the inhabitants of all the Commonwealth’s territories are entitled to the same rights and privileges as all other Australian citizens. Any suggestion that the inhabitants of the mainland territories – as well as those from the inhabited external territories of Norfolk Island, Cocos (Keeling) Islands and Christmas Island – should have second-class status within the Commonwealth would be rejected by most Australians. The principles of equality before the law and non-discrimination demand equal constitutional protection for the residents of all Commonwealth territories. The constitutional debate must be whether the Constitution is drafted in sufficiently flexible terms to support the extension of its terms to the territories. If not, the responsibility to provide this protection rests with the parliament until the Constitution is amended to extend all its guarantees to them.

11.7.2 Rejecting/confining disjoinder The case for rejecting the wide disjoinder of s 122 from the rest of the Commonwealth Constitution begins with the simple proposition that the section must be interpreted in the context of the Constitution as a whole. The presumption is that the Commonwealth’s power to make laws for the government of the territory is constrained by any restrictions on Commonwealth power except so far as those restrictions or s 122 evince a contrary intention. It is evident that the trend established in Buchanan and Bernasconi did not begin with that basic presumption. Nor has subsequent judicial support for their approach persuasively established the basis for immunity from constitutional restrictions. Central to the constitutional debate over the relationship between s 122 and the rest of the Constitution are two competing policies. In favour of a wide disjoinder is the range of territories which might come under Commonwealth authority – from internationally mandated territories destined for independence, to uninhabited islands used for scientific purposes, to mainland territories on the verge of statehood. To accord to each of them and their residents constitutional 129 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 138 per Mason CJ adopting G. Lindell, ‘Why is Australia’s Constitution Binding? The Reasons in 1900 and Now, and the Effect of Independence’ (1986) 16 Federal Law Review 29, 49.

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rights equal to those of the States, it is argued, is unrealistic. Conversely, in favour of a narrow disjoinder is the need to recognise that those Australian citizens who are residents of inhabited territories are not second-class citizens in a nation which cherishes the principle of equality before the law and the common sovereignty of the Australian people. These competing policies reflect the tension between pragmatic considerations of governance and individual rights. Their resolution is difficult. Ultimately, though, it must be found in the text and structure of the Constitution. This will depend on the interpretation of the relevant provisions in each case. The first significant challenge to the wide disjoinder view occurred in Lamshed v Lake which held that s 10 of the Northern Territory (Administration) Act 1910 (Cth), as a Commonwealth law enacted pursuant to s 122, overrode – pursuant to s 109 of the Constitution – inconsistent South Australian legislation which purported to regulate a carrier travelling between Adelaide and Alice Springs. A s 122 law was held to be a law of the Commonwealth which operated throughout the Commonwealth. Kitto J persuasively argued that s 122 is not completely disjointed from the rest of the Constitution: The fact that the section is found embedded in the agreed terms of federation, with every appearance of having been regarded in the process of drafting as a provision upon a matter germane to the working of the federation, seems to me to underline the necessity of adopting an interpretation which will treat the Constitution as one coherent instrument for the government of the federation, and not as two constitutions, one for the federation and the other for its territories.130

Dixon CJ repeated his view from Australian National Airways Pty Ltd v The Commonwealth131 in Lamshed v Lake:132 ‘I have always found it hard to see why s 122 should be disjoined from the rest of the Constitution and I do not think that Buchanan’s Case and Bernasconi’s Case really meant such a disjunction.’133 The Chief Justice also observed: ‘The Territory takes its place in the organisation of government in Australia with the six States though the States form part of the “federal system” and the Territory be governed only by one legislature.’134 On this basis, there appear to be four interpretative principles which support a limited disjoinder of s 122. The first is to identify that a law enacted pursuant to s 122 is ‘a law of the Commonwealth’ and that all Commonwealth territories are part of ‘the Commonwealth’.135 This was recognised by Barwick CJ in Spratt v Hermes:136 ‘law of the Commonwealth’ embraces every law made by the Parliament whatever the constitutional power under or by reference to which that law is made or supported: see per Dixon CJ in Lamshed v Lake.137 130 Lamshed v Lake (1958) 99 CLR 132 at 153; endorsed by Brennan, Deane and Toohey JJ in Capital Duplicators (1992) 177 CLR 248 at 272. 131 (1945) 71 CLR 29 at 85. 132 (1958) 99 CLR 132. 133 Ibid 145. 134 Ibid 148. 135 Whether a constitutional distinction should be drawn between those territories which were previously part of a State and those which were not, is considered further below. 136 (1965) 114 CLR 226 at 246–7; Also Menzies J at 270. 137 (1958) 99 CLR 132 at 148.

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Similarly with ‘the Commonwealth’: Although the territories may not be included in the federal system in the sense that the powers of the Commonwealth with respect to them are not fully circumscribed, they are, in my opinion, clearly included in the expression ‘The Commonwealth’, eg throughout Chap I of the Constitution.138

The second interpretative principle is the need to interpret each constitutional provision to determine its applicability to s 122. This is how Dixon CJ tackled the issue in Lamshed v Lake.139 His Honour concluded that while most of Part V of Chapter I (ss 51–60) did not apply to the territories power, many s 51 powers did extend to the territories. As well, s 49 (the powers, privileges and immunities of both Houses) applies to s 122 Bills; s 92 may also protect interstate trade through a territory from Commonwealth interference; territories were also included in ‘the Commonwealth’ for purposes of s 118; and ss 116 and 120 applied to s 122 laws.140 Similarly, Barwick CJ in Spratt v Hermes141 considered the specific provisions in Chapters I and II to determine their application. In Chapter I, the qualification and disqualification provisions in ss 43, 44, 45 and 46 applied to territory members, s 49 privileges applied to the passage of territory Bills, and a double dissolution under s 57 might be activated by a s 122 Bill. Under Chapter II, the duty of the executive branch to execute the laws of the Commonwealth included s 122 laws. The third interpretative principle is to recognise that a s 122 law can be the subject of multiple characterisation so that it may also be a law with respect to a head of power in s 51. Consequently, it attracts all the restrictions applicable to a s 51 law, irrespective of any disjoinder of s 122. Multiple characterisation is considered below. The fourth interpretative principle is to recognise that s 122, like all other sections of the Commonwealth Constitution, is implicitly ‘subject to this Constitution’. These interpretative principles are evident in the separate judgments of Gaudron, Gummow and Kirby JJ in Newcrest Mining (WA) Ltd v The Commonwealth.142 While accepting that s 122 is non-federal in the sense that it is not a power shared with the States,143 Gummow J, with whom Toohey144 and Gaudron JJ agreed, articulated the arguments for rejecting the wide disjoinder approach to ensure s 122 is not torn from the constitutional fabric.145 138 Spratt v Hermes (1965) 114 CLR 226 at 247. Cf Kitto J at 252–3 thought that the meaning of ‘the Commonwealth’ varies according to the context – narrower in Chapter III than in covering clause 5. Preferred ‘United States of Australia’ for Chapter III to make it clear that Chapter III refers to the polity consisting of the States. 139 (1958) 99 CLR 132 at 142–3. 140 Dixon CJ in Lamshed v Lake (1958) 99 CLR 132 at 142 endorsed the view expressed by Viscount Simonds for the Privy Council in Boilermakers’ case, above n 100 at 545, that the territories did not form part of the federal system. 141 (1965) 114 CLR 226 at 246. 142 (1997) 190 CLR 513. 143 Ibid 599. 144 His Honour agreed with Gaudron J except for overruling Teori Tau v The Commonwealth (1969) 119 CLR 564. Gaudron J, at 561, agreed with Gummow J that s 51(xxxi) applies to s 122 but preferred to approach the case by characterising the Commonwealth law within s 51(xxix), thereby attracting the requirement of just terms under s 51(xxxi). 145 (1997) 190 CLR 513 at 598.

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Essentially they were: • The basic proposition is that each provision of the Constitution, including s 122, is to be read with other provisions in the same instrument. Accordingly, at least prima facie, par (xxxi) of s 51 and s 122 should be read together. Section 122 is not to be torn from the constitutional fabric.’146 • To disjoin s 122 from s 51(xxxi) produces absurdities and incongruities,147 especially when the Northern Territory was protected by that provision before being surrendered by South Australia.148 • Many s 51 powers can be exercised in relation to matters in or connected with the territories, that is, a law can be supported by both s 122 and s 51 – multiple characterization.149 • The Commonwealth is empowered to make laws for the peace, order and good government of the Commonwealth which are binding by virtue of s 5 of the covering clauses on every part of the Commonwealth which includes the territories.150 • The Northern Territory and the ACT are represented in the Commonwealth Parliament.151 • A s 122 law can lead to inter se questions arising between the Commonwealth and the States, and it will override inconsistent State laws pursuant to s 109.152

Kirby J added that those who voted for federation would never have intended the territories to be ‘akin to federal fiefdoms’.153 Gummow J also addressed the arguments raised earlier in favour of a wide disjoinder, in summary form: • Section 122 is no less plenary if subject to s 51(xxxi) in the same way that the States possess plenary power despite their restrictions.154 • The omission of ‘subject to this Constitution’ in s 122 is irrelevant, because it is implied throughout the Constitution: ‘It can hardly be suggested that s 122 operates other than subject to the Constitution, and, in particular, that it is not to be read with the Constitution as a whole.’155 • The disjoinder view arose at a time when the Commonwealth’s territories included Papua New Guinea, that is, before the Papua New Guinea Independence Act 1975 (Cth): ‘The existence of so large and comparatively populous external territory appears to have been a consideration of some significance’.156

It is evident that no general principle can satisfactorily define the extent of disjoinder of s 122. This can only be determined on a case-by-case basis. In recent years though, there has been a gradual narrowing of the disjoinder. Precisely how 146 Newcrest Mining (1997) 190 CLR 513 at 597–8 per Gummow J. 147 Lamshed v Lake (1958) 99 CLR 132 at 144 per Dixon CJ. 148 Newcrest Mining (1997) 190 CLR 513 at 600–1 per Gummow J. Kruger v The Commonwealth (1997) 190 CLR 1 at 165–6, Gummow J thought it would be surprising if residents lose their constitutional protections as residents of a State on surrender to the Commonwealth. 149 Newcrest Mining (1997) 190 CLR 513 at 601 per Gummow J. 150 Ibid at 597 per Gummow J, as per Berwick Ltd v Gray (1976) 133 CLR 603 at 605 per Barwick CJ, at 606, 608 and 611 per Mason J; Capital Duplicators (1992) 177 CLR 248 at 274–5 per Brennan, Deane and Toohey JJ, at 286 per Gaudron J. 151 Western Australia v The Commonwealth (1975) 134 CLR 201 at 269–70 per Mason J. 152 Newcrest Mining (1997) 190 CLR 513 at 599 per Gummow J. 153 Ibid 654 per Kirby J. 154 Ibid 604–5 per Gummow J. 155 Ibid 606. 156 Ibid. Cited R v Bernasconi (1915) 19 CLR 629; Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 396–7.

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far that has gone is outlined below at 11.10, where the relevant constitutional restrictions are separately examined.

11.7.3 Characterisation of Commonwealth laws For a law to be within s 122, it must have a sufficient nexus or connection with the government of the territory. Unlike the heads of power in ss 51 and 52, the s 122 power is not described as one ‘with respect to’ a subject matter or activity. Rather, it resembles, albeit in a condensed form, the plenary power of the State parliaments to make laws for their State. As with State laws, where the law purports to regulate a matter within a territory, the requisite connection with the territory is obvious. Similarly, where the law is intended to extend beyond the boundaries of the territory, a sufficient nexus to the territory needs to be satisfied if the law is to be characterised within s 122. The position becomes more complex where the Commonwealth enacts a law which operates nationally; for example, where it regulates the Internet throughout Australia. Since Commonwealth laws are capable of being characterised under more than one head of legislative power, is such a law of national operation to be characterised within s 122 so far as it operates within the territories, leaving its operation in the States to be characterised within the communications power s 51(v)? Or does the law lose its characterisation under s 122 because of its national operation and is only to be characterised under s 51(v)? Or can the law, so far as it operates in the territories, simply be characterised under both powers? The issue here is critical if s 122 enjoys an immunity from certain constitutional restrictions applicable to s 51(v). The first approach of divisible characterisation was adopted by Kitto J in Spratt v Hermes157 in holding that the Post and Telegraph Act 1901 (Cth) operated within the territories by virtue of s 122 and in the States by virtue of s 51(v). However, the bulk of authority since then has supported either of the other approaches whereby the national law is characterised within the principal head of power alone or in conjunction with s 122. Each approach accepts that s 51 heads of power are capable of being exercised in relation to the territories. Dixon CJ in Lamshed v Lake158 recognised that: . . . many laws made by the Parliament in exercise of powers conferred by s 51 of the Constitution operate generally throughout Australia, including the territories, not merely within the areas of or by reference to acts, matters or things connected with the States.159

In Newcrest Mining (WA) Ltd v The Commonwealth160 proclamations made under the National Parks and Wildlife Conservation Act 1975 (Cth) purporting to extend Kakadu National Park in the Northern Territory were characterised within the external affairs power s 51(xxix), despite operating within a territory. 157 Spratt v Hermes (1965) 114 CLR 226 at 259. 158 (1958) 99 CLR 132 at 143. 159 Accepted by Gleeson CJ and Gummow J in Northern Territory v GPAO (1999) 196 CLR 553 at 581–2. 160 (1997) 190 CLR 513.

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Consequently, a majority of the High Court held them invalid under s 51(xxxi) to the extent they effected an acquisition of property from the appellant other than on just terms. The effect of extending Kakadu National Park was to preclude the appellant from mining in the extended area over which the company had mineral leases. The Commonwealth’s argument that the proclamations were immune from s 51(xxxi) because they fell within the scope of s 122 failed. According to three of the majority, Gaudron, Gummow and Kirby JJ, who were prepared to overrule Teori Tau,161 s 122 laws were subject to s 51(xxxi). Toohey J, who was not prepared to overrule Teori Tau, instead characterised the proclamations only within the external affairs power (s 51(xxix). His Honour considered that since the granting of self-government to the Northern Territory, it would be unlikely that a Commonwealth law could be characterised under s 122 as relating to the government of the territory: [it is] almost inevitable that any acquisition of property by the Commonwealth will now attract the operation of s 51 (xxxi) because it will be in pursuit of a purpose in respect of which the Parliament has power to make laws, even if that acquisition takes place within a Territory.162

Gaudron J163 (with whom Kirby J164 agreed on this point) also expressed a similar view, relying on her earlier comments and those of Deane and Toohey JJ in relation to Part IIID of the Broadcasting Act 1942 (Cth) in Australian Capital Television Pty Ltd v Commonwealth165 which their Honours held was unlikely to have a sufficient connection with the ‘government’ of the territory since the granting of self-government to the ACT and the Northern Territory.166 But her Honour167 also accepted that if such a law was characterised under both s 51 and s 122, it would be subject to s 51(xxxi) even if that constitutional guarantee did not extend to s 122 laws. Gummow J168 also accepted, for the reasons given by Gaudron J, that a law can be characterised under both s 51 and s 122. On the other hand, McHugh J169 thought s 122 irrelevant to a law applying nationally under a s 51 head of power ‘because, as a matter of construction, the law was intended to apply validly throughout Australia and not to be partially saved by reference to s 122.’ The principles to emerge from Newcrest Mining are that a national law operating within a territory is capable of dual characterisation and, where that arises, any immunity which s 122 might have afforded if the law was only in relation to the government of the territory, is lost. This means that a s 51 law can operate within a territory170 without losing its characterisation under s 51. What is difficult to accept from the case is the view espoused by Toohey and Gaudron JJ that a national Commonwealth law is unlikely to be characterised within s 122 so far as it extends to the self-governing territories, the ACT and the Northern Territory. 161 (1969) 119 CLR 564. 162 Newcrest Mining (1997) 190 CLR 513 at 560–1. 163 Ibid 567. 164 Ibid 661–2. 165 (1992) 177 CLR 106 at 176 and 224. See McHugh J at 245–6. 166 Ibid 176–7. 167 Newcrest Mining (1997) 190 CLR 513 at 567–9. 168 Ibid 614. 169 Ibid 582. His Honour at 581 saw no need, however, to rely on s 51 powers at all in relation to the territories given the width of s 122. 170 See Lamshed v Lake (1958) 99 CLR 132 at 143 per Dixon CJ; Newcrest Mining (1997) 190 CLR 513 at 566–7 per Gaudron J.

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11.8 Grant of self-government It is accepted that under s 122 the territories can be granted their own constitutional system or form of self-government,171 as Mason J (with whom Barwick CJ, McTiernan and Murphy JJ agreed) expressed in Berwick Ltd v Gray:172 ‘[the s 122 power] is wide enough to enable Parliament to endow a territory with separate political, representative and administrative institutions, having control of its own fiscus’.173 On this basis, the Commonwealth granted self-government to the Northern Territory in 1978 and to the ACT in 1988. Of the external inhabited territories, only Norfolk Island has been granted a limited form of self-government in 1979. The grants of self-government to the ACT and to the Northern Territory were unsuccessfully challenged in the High Court in Capital Duplicators Pty Ltd v Australian Capital Territory.174 The Court unanimously rejected the argument that the ‘exclusive’ power conferred by s 111 in respect of these territories surrendered by New South Wales and South Australia, precluded the conferral of a plenary legislative power to territory governments. Nor was there any violation of the In re The Initiative and Referendum Act175 principle, whereby a legislature is not ‘to create and endow with its own capacity a new legislative power not created by the Act to which it owes its existence’.176 Section 122 clearly contemplated such a grant of power by empowering the Commonwealth to make laws for the government of the territory. The Court also recognised that self-government created in each case a new body politic under the Crown. Hence, the self-governing territories were not mere delegates of the Commonwealth. Despite the grant of self-government, the Commonwealth retains the capacity under s 122 to override territory enactments by its own legislation: Northern Land Council v The Commonwealth.177 The Commonwealth cannot divest itself of its exclusive jurisdiction over a territory under s 111, until statehood is achieved.178 This does not preclude the evolution of constitutional conventions to enhance the territory’s autonomy from Commonwealth interference. So, there is scope for the adoption of a convention where the Commonwealth will refrain – except in exceptional circumstances – from legislating in respect of the purely internal affairs of the self-governing territories without their consent or request. The Commonwealth’s Euthanasia Laws Act 1997, which denied the three self-governing territories the legislative capacity to legalise euthanasia, can be confined as an exceptional case. Such a convention would also have no application to national 171 See Quick and Garran, above n 11, 972. 172 (1976) 133 CLR 603 at 607 (with whom Barwick CJ, McTiernan and Murphy JJ agreed). 173 Ibid. Endorsed in Capital Duplicators (1992) 177 CLR 248 at 265–6 per Mason CJ, Dawson and McHugh JJ, and at 271–2 per Brennan, Deane and Toohey JJ. 174 (1992) 177 CLR 248 at 271–2 per Brennan, Deane and Toohey JJ, and at 265–6 per Mason CJ, Dawson and McHugh JJ. 175 [1919] AC 935 at 945, which was adopted by Dixon J in Victorian Stevedoring and General Contracting Co. Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 95–6. 176 Capital Duplicators (1992) 177 CLR 248 at 271–2 per Brennan, Deane and Toohey JJ. 177 (1986) 161 CLR 1. 178 Nicholson, above n 27.

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laws. Support for this approach is evident in a parliamentary speech of Senator Humphries: [I]t is important that the exercise of this paramount power not undermine the balance of responsibility the conventions have developed in the Australian political system. The Commonwealth, of course, has a paramount power in respect of all territories but it rarely exercises that power – certainly not these days. To exercise the Commonwealth’s paramount power in a capricious or willy-nilly fashion is to erode the spirit and intent of the self-government which in each case the Commonwealth has granted to those territories. Territories in that sense are like children reaching adulthood – they are capable of making most decisions for themselves and they are better off if they are encouraged to make those decisions for themselves. Frequent parental intervention inhibits their capacity to make sensible decisions on their own behalf. It is clear that the Commonwealth power should be exercised sparingly.179

Then again, this is qualified by concern for the rights of Australian citizens: [I]t is important to bear in mind that the Australian parliament has an overarching responsibility to protect the rights of its citizens wherever they might live in the Federation. The parliament also has an obligation to ensure that the laws in all Australian jurisdictions are consistent with national obligations under international law.180

Further recognition of the development of constitutional conventions in relation to the territories is the defeat in the Senate in 2000 of an amendment Bill to alter the franchise on Norfolk Island because of insufficient consultation with the Island’s community.181 There is also a case for arguing that there is a convention which precludes the Commonwealth from revoking its grant of self-government without the Territory’s consent – unless part of an entirely new constitutional order.182 But it is unlikely that the s 122 power would be interpreted to preclude such a retraction.

11.9 Nature of legislative power of self-governing territories The ACT, Northern Territory and Norfolk Island Legislative Assemblies are vested with legislative power ‘to make laws for the peace, order and good government of the Territory’.183 While their legislative power is subject to various restrictions 179 Senate Hansard (3 March 2004) p 20 505. 180 Ibid p 25 334. 181 Second Reading Speech Norfolk Island Amendment Bill 2003, House of Representatives (4 March 2004) p 25 333. 182 G. R. Nicholson, ‘Constitutionalism in the Northern Territory and Other Territories’ (1992) 3 Public Law Review 50, 56. Nicholson, above n 27, 701, fn 23 notes that the Commonwealth Attorney-General’s Department, in its submission to the Joint Parliamentary Committee on the Constitutional Development of the Northern Territory in 1974, regarded revocation of self-government as ‘politically unthinkable’ except ‘in times of revolt or disorder’: First Report, Parliamentary Paper No. 281, 8; A. C. Castles, ‘The Northern Territory of Australia’ in A. P. Blaustein and D. B. Blaustein (eds), Constitutions of Dependencies and Special Sovereignties (June 1980) Vol III. 183 ACT (Self-Government) Act 1988 (Cth) s 22(1); Northern Territory (Self-Government) (Cth) Act 1978 s 6; Norfolk Island Act 1979 (Cth) s 19(1).

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imposed by the Commonwealth Constitution, as well as their own Constitution, the formula used indicates that they are conferred as plenary a power as that vested in the States by their respective Constitutions.184 Consequently, it can be argued that the Territory Assemblies occupy a similar position vis-a-vis the Commonwealth as the State parliaments occupied vis-a-vis the United Kingdom prior to the Australia Acts.185 The joint judgment of Brennan, Deane and Toohey JJ in Capital Duplicators Pty Ltd v Australian Capital Territory186 recognised the ACT Assembly powers as ‘not the Parliament’s powers but its own, being powers of the same nature as those vested in the Parliament.’187 This view was approved by the joint judgment of Mason CJ, Deane, Dawson and McHugh JJ in Svikart v Stewart188 which accepted that Capital Duplicators established that a territory legislature is a separate body from the Commonwealth. Toohey J in dissent agreed with this, noting that the Northern Territory legislature is not acting as a delegate of the Commonwealth Parliament.189

11.10 Constitutional restrictions Having considered the wide and narrow disjoinder views of s 122 in general terms, the position in relation to each of the constitutional restrictions which aroused this debate can now be examined. It is important to distinguish between those constitutional restrictions imposed on the Commonwealth when exercising its territories power under s 122, and those imposed on the powers of self-governing territories. They differ, because certain restrictions are, by their terms, confined to the Commonwealth. Moreover, the self-governing territories are subject to additional restrictions imposed by Commonwealth law.

11.10.1 Restrictions on Commonwealth power While the Commonwealth possesses in s 122 a plenary legislative power over its territories, certain constitutional restrictions nevertheless apply, even if the wide disjoinder view is accepted. More restrictions apply under the narrow disjoinder view. The general approach has been that restrictions found in s 51, such as the guarantee of just terms for the compulsory acquisition of property in 51(xxxi), do not apply to the territories power, but other constitutional restrictions outside s 51 may apply. On current authority, the Commonwealth’s power in s 122 is subject to certain provisions of Chapter III (the judicial power), s 116 (freedom of religion) and the implied freedom of political communication, but is not subject 184 Capital Duplicators (1992) 177 CLR 248 at 282 per Brennan, Deane and Toohey JJ; Svikart v Stewart (1994) 181 CLR 548 at 561–2 per Mason CJ, Deane, Dawson and McHugh JJ. 185 Capital Duplicators (1992) 177 CLR 248 at 281 per Brennan, Deane and Toohey JJ; See also Wilson J in R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 279 said the same of the Northern Territory (Self-Government) Act 1978 (Cth) s 6. 186 (1992) 177 CLR 248. 187 Capital Duplicators (1992) 177 CLR 248 at 282 per Brennan, Deane and Toohey JJ. 188 (1994) 181 CLR 548 at 561–2. 189 Ibid 574.

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to s 51(xxxi) and s 55 (taxation laws). It is argued below that this immunity from s 51(xxxi) and s 55 is not justified. Except for Chapter III (considered separately in Chapter 10), each of these restrictions is considered in turn. 11.10.1.1 Section 116 freedom of religion190 Section 116 imposes a restriction on Commonwealth legislative power: The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Constitution.

The disjoinder view of s 122 in R v Bernasconi191 led to doubts whether s 116 protected freedom of religion in the territories.192 Yet there is now significant obiter to support the freedom’s application to s 122. In Adelaide Company of Jehovah’s Witnesses Inc v The Commonwealth,193 Latham CJ194 and McTiernan J,195 without referring to the territories power, regarded s 116 as restricting all Commonwealth legislative powers. The rejection of a wide disjoinder of s 122 supports this approach: see Dixon CJ (with whom Webb, Kitto and Taylor JJ agreed) in Lamshed v Lake196 and the unanimous joint judgment in Teori Tau v The Commonwealth.197 On the other hand, Gibbs J in Attorney-General (Vic); Ex rel Black v The Commonwealth198 found this obiter support difficult to reconcile with Bernasconi199 but left the issue open. His Honour noted that if the freedom extends to s 122, it would have greater operation in the territories than in the States. A majority200 of the Court in that case, however, had no doubt that s 116 restricted all Commonwealth legislative power, in particular, the appropriation power in s 81 and the grants power in s 96. Both Murphy J201 and Wilson J202 expressly referred to s 116 restricting the territories power. Further support for this view is evident in the judgments of Toohey, Gaudron and Gummow203 JJ in Kruger v The Commonwealth.204 Toohey J205 and Gaudron J206 relied on the lack of any federal significance in s 116. Gaudron J went further by suggesting that in the absence of any constitutional right to self-government, all express constitutional guarantees ought to protect the territories unless their 190 Lamshed v Lake (1958) 99 CLR 132 at 143 per Dixon CJ with whom Webb and Taylor JJ agreed; AttorneyGeneral (Vic); Ex rel Black v Commonwealth (DOGS case) (1981) 146 CLR 559 per Barwick CJ, Murphy and Wilson JJ, but doubted by Gibbs J and Aickin JJ; Teori Tau v The Commonwealth (1969) 119 CLR 564 at 570 per Barwick CJ, McTiernan, Kitto, Menzies, Windeyer, Owen and Walsh JJ; Kruger v The Commonwealth (1997) 190 CLR 1 per Gaudron and Gummow JJ, contra Dawson and McHugh JJ. 191 (1915) 19 CLR 629. 192 See Spratt v Hermes (1965) 114 CLR 226 at 250 per Kitto J (similar view over s 118); Newcrest Mining (1997) 190 CLR 513 at 580 per McHugh J left open ss 116 and 118 but preferred the view s 122 not subject to these. 193 (1943) 67 CLR 116. 194 Ibid 123. 195 Ibid 156–7. 196 (1958) 99 CLR 132 at 143. 197 (1969) 119 CLR 564 at 570. 198 (1981) 146 CLR 559 at 593–4. 199 (1915) 19 CLR 629. 200 (1981) 146 CLR 559 at 635, at 576 per Barwick CJ, at 618 per Mason J, at 621 per Murphy J and at 649 per Wilson J. 201 Ibid 621. 202 Ibid 649. 203 Kruger v The Commonwealth (1997) 190 CLR 1 at 162 ‘his firm view’. 204 (1997) 190 CLR 1. 205 Ibid 85. 206 Ibid 122.

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terms clearly indicate otherwise.207 Gummow J relied on the weight of authority outlined above, Dixon CJ’s view in Lamshed v Lake which inevitably leads to the application of s 116, the general terms of s 116, and the capricious result if it depended on whether the law was enacted under s 51 rather than s 122.208 On the other hand, Dawson J (with whom McHugh J agreed) considered s 116 inapplicable to s 122, relying on Bernasconi and the purpose of s 116 revealed in the Convention Debates.209 That purpose was to protect the States from any possibility that the Commonwealth would exercise its powers to interfere with the traditional State responsibility of legislating for Sunday or other days of rest.210 This accounts in part for the location of s 116 in Chapter V ‘The States’, and its nonapplication to the States. Nonetheless it is clear that this original intent should not confine the literal meaning of the constitutional text, particularly in relation to a section which provides a fundamental guarantee of individual liberty. A different issue is whether s 116 applies to laws enacted by self-governing territories. As noted below, this appears doubtful.211 11.10.1.2 Implied freedom of political communication The implied freedom of political communication is a restriction on the power of the Commonwealth, the States and the self-governing territories which prevents them from imposing an impermissible burden on the communication of political and governmental matters. This restriction is fully considered in Chapter 4. The test, articulated in Lange v Australian Broadcasting Corporation, to determine whether a law infringes this implied freedom, has two limbs: First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end [in a manner]212 which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people . . . If the first question is answered ‘yes’ and the second is answered ‘no’, the law is invalid.213

This restriction derives from ss 7 and 24 of the Commonwealth Constitution which provide for the right of the people of the States to directly choose their parliamentary representatives, and the consequent need for the electors to be sufficiently informed of governmental affairs to make a meaningly decision. Section 7 refers to the people of each State choosing their senators. The reference in s 24 to the ‘people of the Commonwealth’ choosing the members of 207 Ibid 123. 208 Ibid 166–7. 209 Ibid 58–60. 210 See the speech of Mr Higgins in the Official Record of the Debates of the Australasian Federal Convention, Third Session (Melbourne) Vol II, 2 March 1898, 1769. 211 Gaudron J in Kruger v The Commonwealth (1997) 190 CLR 1 at 123. 212 Added in Coleman v Power (2004) 209 ALR 182 at [93] per McHugh J with whom Gummow and Hayne JJ agreed at [196] and Kirby J at [211]. 213 (1997) 189 CLR 520 at 567–8.

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the House of Representatives clearly refers to the people of the States since s 24 is concerned with the allocation of members in proportion to the number of electors of each State. While the restriction protects the discussion of Commonwealth affairs, it also protects the discussion of most State affairs, given their susceptibility to becoming a matter of Commonwealth concern.214 The discussion of territory affairs falls even more clearly within the scope of the Commonwealth implied freedom, since the government of the territories falls within the core of Commonwealth responsibility, in relation to which State electors need to be fully informed before casting their vote. It is not possible to separate territorial political issues from Commonwealth issues. Since those issues fall within the scope of the territories power, they are inextricably linked to Commonwealth affairs. The High Court has not yet reached a clear position on this. There is some comment on the issue in Australian Capital Television Pty Ltd v The Commonwealth (ACTV)215 which concerned a challenge to the validity of Commonwealth statutory controls on political advertising during federal, State, ACT and Northern Territory election campaigns. Since the regulation of the territory elections was based on the communications power in s 51(v), the scope of s 122 was not in issue. Nonetheless, Deane and Toohey JJ216 in their joint judgment were not persuaded that s 122 was immune from the freedom which was drawn from the Constitution as a whole. McHugh J217 viewed s 122 as unconstrained by the implied freedom which his Honour confined to federal elections. The issue arose more directly in Kruger v The Commonwealth218 where the Commonwealth was sued by several Aborigines for being unlawfully removed as children from their families and detained in institutions. They argued that provisions of the Aboriginals Ordinance 1918 (NT), made by the Governor-General under the Northern Territory Acceptance Act 1910 (Cth) and the Northern Territory Administration Act 1910 (Cth), pursuant to which the Chief Protector of Aboriginals so acted, were invalid on a range of grounds: unlawful detention in breach of Chapter III; breach of a right to legal equality; infringement of an implied freedom of movement and association for political, cultural and familial purposes; genocide; and a breach of the free exercise of religion under s 116. None of these grounds succeeded. Only three judgments directly considered whether the implied freedom of association and movement (and so also the implied freedom of political communication) restricted s 122. Adopting the view of McHugh J in ACTV,219 Dawson J220 rejected the application to s 122 of the implied freedom of political communication and of any other implied restrictions linked with that freedom (freedom of association and of movement) on the ground that there was no constitutional requirement of representative government for the territories, neither in their internal government nor in their relationship with the Commonwealth. McHugh J221 at least 214 See Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211. 215 (1992) 177 CLR 106. 216 Ibid 176. 217 Ibid 246. 218 (1997) 190 CLR 1. 219 (1992) 177 CLR 106 at 246. 220 Kruger v The Commonwealth (1997) 190 CLR 1 at 69–70. 221 Ibid 142–3.

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held the implied freedom inapplicable to the Northern Territory between 1918 and 1957 during which there was no constitutional right to vote. On the other hand, Gaudron J222 (with whom Toohey J agreed)223 accepted that the implied freedom of political communication extended to s 122. Although her Honour rejected the applicability of constitutional restrictions derived from the federal structure of the Commonwealth Constitution, given the non-federal nature of s 122, her Honour relied on the fact that the Commonwealth is responsible to the people of the Commonwealth for its exclusive governance of the territories, and that this necessitates the free flow of information in relation to all matters which bear on the government of the territory. This is, with respect, clearly the correct approach to take. The implied freedom of political communication and association must restrict the Commonwealth exercise of power under s 122, at least to protect the availability of information on the government of the territories for which the Commonwealth has ultimate responsibility. It should be noted that the challenge in Kruger v The Commonwealth224 to the provisions of the Aboriginals Ordinance 1918 (NT) was also brought in reliance on a point of characterisation, namely, that the Ordinance was not reasonably capable of being seen as appropriate and adapted for governing the Territory within s 122 because it effected an extraordinary intrusion on fundamental rights and common law liberties. Dawson J rejected this as contrary to the sovereign nature of the power.225 While both Toohey J226 and Gaudron J227 rejected the relevance of proportionality, their Honours recognised other limits. Toohey J accepted the possibility of implied constitutional restrictions applying to s 122, including those intimated in the Union Steamship case228 as deeply rooted in the Constitution. Gaudron J was prepared to go further to impose some limit on the Commonwealth’s capacity to rule its territories as ‘Commonwealth fiefdoms’: At least to the extent that the Constitution makes no distinct provision for the participation of the people of a Territory in any electoral processes, it may fairly be said that it allows for territories to be ruled as Commonwealth fiefdoms. That being so, the considerations which require that other grants of legislative power be construed without regard to possible abuse have no part to play in the construction of s 122. Rather, I would consider it much the better view that s 122 is to be construed in light of the fact, unlike other Australians, persons resident in a Territory have no constitutional right to participate in the democratic processes and, thus, have no protection on that account in the event of an abuse of power. And, I would consider that that approach requires that s 122 should be construed on the basis that it was not intended to extend to laws authorising gross violations of human rights and dignity contrary to established principles of the common law.229

Although the ground based on the Genocide Convention failed, no member of the Court230 raised any objection to the application of the rules of statutory 222 223 224 227 230

Ibid 117–18. Ibid 91–2, and also agreed with Gaudron J in ACTV (1992) 177 CLR 106, 215. (1997) 190 CLR 1. 225 Ibid 55. 226 Ibid 79. Ibid 104. 228 (1988) 166 CLR 1. 229 Ibid 106–7. For example, Kruger v The Commonwealth (1997) 190 CLR 1 at 71 per Dawson J at 71.

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interpretation in relation to the observance of international law to the Ordinance in that case. 11.10.1.3 Section 51(xxxi) Section 51 (xxxi) empowers the Commonwealth Parliament to make laws for the peace, order and good government of the Commonwealth with respect to: The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.

The non-applicability of the requirement in s 51(xxxi) to pay just terms for the compulsory acquisition of property effected by a law made under s 122 was first established in Teori Tau v The Commonwealth.231 As noted earlier, the brief unanimous judgment of the Court delivered extempore relied on the view that none of the restrictions in s 51 heads of power applied to s 122, given that those powers were concerned with the division of powers between the Commonwealth and the States. This case was affirmed by a bare majority of the Court in Newcrest Mining (WA) Ltd v The Commonwealth.232 Brennan CJ, Dawson and McHugh JJ considered Teori Tau to be correctly decided, since it was a unanimous decision which rejected a clearly insupportable decision, and had been followed in a line of cases. Reliance was also placed on two significant consequences of overruling the case: the territories would be denied the power of compulsory acquisition;233 and the uncertainty cast over the validity of all previous compulsory acquisitions could not be removed by retrospective legislation. Both Dawson J234 and McHugh J235 added that s 51(xxxi) was confined to acquisitions for specific purposes, not for a purpose within the general power in s 122. McHugh J236 also relied on policy and textual grounds: the decision has influenced legislative and executive policy and action;237 and that ss 122 and 51(xxxi) operate in different fields – ‘from any State or person’ in s 51(xxxi) suggests it is only concerned with acquisitions within the States.238 Pivotal to Teori Tau’s survival was Toohey J who was not prepared to overrule the case because it had been relied on for 30 years. But his Honour was of the view that few, if any, Commonwealth laws would avoid s 51(xxxi) where selfgovernment has been granted because they could no longer be characterised as laws for the government of the territory. Gaudron, Gummow and Kirby JJ in separate judgments were prepared to overrule Teori Tau. The principal judgment was delivered by Gummow J who built on his Honour’s earlier arguments for a narrow disjoinder of s 122 to argue persuasively that s 122 was subject to s 51(xxxi). A summary of his Honour’s reasoning follows:

231 233 236 237

(1969) 119 CLR 564. 232 (1997) 190 CLR 513. Ibid, McHugh J develops this too at 574–5. 234 Ibid 552–3. 235 Ibid 584. Ibid 585–6, his Honour also discussed compulsory acquisition power in relation to States and territories. Ibid 575. 238 Ibid 584.

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• The purpose in respect of which Parliament has power to make laws, referred to in s 51(xxxi), includes the purpose of making laws for the government of the territories within s 122.239 • The Commonwealth can use s 122 to compulsorily acquire property outside a territory within the States eg to acquire land in a State to build a territory tourist bureau. The disjoinder view would deny the protection of s 51(xxxi) to the private owner of that land.240 • Property within s 51(xxxi) eg patents and designs might lack any specific location within Australia.241 • Teori Tau242 should be overruled because judgment was delivered ex tempore, it was not part of a consistent body of authority, and in view of changed circumstances since it was decided in 1969, these being: the case concerned an external territory, Papua and New Guinea, which has since become a sovereign nation; the inclusion of the electors of self-governing territories in Commonwealth referenda by a 1977 amendment to s 128 of the Commonwealth Constitution; the provision for territory representation in the Commonwealth Parliament; and no reliance by the Commonwealth.243 • There is nothing in the terms of s 122 to deny the requirement of just terms in s 51(xxxi).

It is hoped that the cogency of these arguments will in time be recognised by a majority of the High Court to extend to the territories the constitutional protection of s 51(xxxi) in respect of Commonwealth acquisitions. Meanwhile, statutory protection is afforded the residents of the ACT and the Northern Territory by the requirement of just terms for compulsory acquisition effected by territory laws.244 Additionally, s 50(2) of the Northern Territory (Self-Government) Act 1978 (Cth) imposes such a statutory requirement on the Commonwealth in respect of the compulsory acquisition of property in that Territory. 11.10.1.4 Section 55: restrictions on laws imposing taxation Essentially, s 55 imposes two restrictions on the enactment of Commonwealth taxation laws. The first limb requires a taxation law to deal only with the imposition of taxation and renders invalid all other provisions not of that character. The second limb requires such a law to impose only one subject of taxation. Both restrictions are designed to ensure that the Senate’s incapacity under s 53 from amending taxation laws is not abused by tacking onto those Bills, other provisions which the Senate might otherwise be precluded from amending.245 The High Court in Buchanan v The Commonwealth246 relied on the role of the Senate as a States’ House and the fact that the Commonwealth Parliament only 239 Ibid 597. 240 Ibid 602, endorsed the argument of Leslie Zines, ‘Laws for the Government of Any Territory: Section 122 of the Constitution’ (1966) 2 Federal Law Review 72, 79, 85. 241 Newcrest Mining (1997) 190 CLR 513 at 602 per Gummow J. 242 (1969) 119 CLR 564. 243 Newcrest Mining (1997) 190 CLR 513 at 608–9 per Gummow J. 244 The territory legislatures are bound by this obligation: Northern Territory (Self-Government) Act 1978 (Cth) s 50; ACT (Self-Government) Act 1988 (Cth) s 23(1)(a). 245 See Air Cal´edonie International v The Commonwealth (1988) 165 CLR 462. 246 (1913) 16 CLR 315.

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represented the inhabitants of the States to hold that the second limb did not apply to s 122 tax laws. Accordingly, s 55 could not be relied on to challenge provisions in the Northern Territory Acceptance Act 1910 (Cth) and the Northern Territory (Administration) Act 1910 (Cth) which provided for the continued application of South Australian taxation laws.247 As noted earlier, the reasoning in Buchanan can no longer stand since the Senate has not acted as a States’ House almost since its inception, while all territory electors are entitled to vote in federal elections.248 Accordingly, there is no basis for holding that s 55 does not apply to laws enacted pursuant to s 122.

11.10.2 Restrictions on self-governing territories Apart from Chapter III (considered in Chapter 10), the following restrictions prescribed by the Commonwealth Constitution apply to the exercise of power by the self-governing territories: s 90, s 118 and the implied freedom of political communication. Those which do not apply are ss 51(xxxi), 109 and 116. It seems clear that the freedom of religion guaranteed by s 116 does not apply to laws enacted by a self-governing territory.249 However, restrictions equivalent to those prescribed by s 51(xxxi) and s 109 are imposed on self-governing territories by their own Constitutions. Each of these provisions is considered in turn. 11.10.2.1 Section 90 Section 90 relevantly provides: On the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and of excise, and to grant bounties on the production or export of goods, shall become exclusive.

A majority of the High Court in Capital Duplicators Pty Ltd v Australian Capital Territory250 held that s 90 prevented at least the mainland territories from imposing customs and excise duties. The power was exclusive to the Commonwealth and could not be granted to territory legislatures despite the plenary nature of the s 122 power. The majority also rejected the argument that the impugned ACT legislation was an exercise, as a mere delegate, of the Commonwealth Parliament’s power. It was regarded as an exercise of the independent and unqualified authority of the Legislative Assembly. The majority also relied on the requirement in s 51(iii) that bounties on the production or export of goods must be uniform throughout the Commonwealth. 247 Sections 7 and 5 respectively of these Acts provided for the continued operation as Territory laws of South Australian laws in force before the Commonwealth accepted the Territory. Included in this adoption were the Succession Duties Act 1893 (SA) and the Administration and Probate Act 1891 (SA) which imposed two different subjects of taxation. 248 See Zines, above n 98, 168. 249 Kruger v The Commonwealth (1997) 190 CLR 1 at 123 per Gaudron J, considered s 116 confined to laws made by the Commonwealth, not to those of self-governing legislatures. 250 (1992) 177 CLR 248 per Brennan, Deane and Toohey JJ and Gaudron J; contra Mason CJ, Dawson and McHugh JJ.

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Given that s 90 renders the imposition of these bounties exclusive to the Commonwealth, the requirement in s 51(iii) could only be complied with if the Commonwealth retains this exclusive power itself. Accordingly, neither power rendered exclusive by s 90 could be delegated to a territory legislature, otherwise ‘it would be a Trojan horse available to destroy a central objective of the federal compact and to defeat the express requirements of s 51(iii)’.251 Nor was reliance on the Commonwealth’s capacity to override territory law sufficient when the federal concept of a free trade area was for the benefit of the people of the Commonwealth, not just the Commonwealth itself.252 Gaudron J also observed that s 90 ‘exclusive’ meant exclusive of any legislature within the Commonwealth.253 In a significant dissent, the joint judgment of Mason CJ, Dawson and McHugh JJ interpreted the exclusivity of s 90 as ‘exclusive of other powers which are not themselves part of, referable to or derived from the power of the Parliament’.254 Accordingly, it did not prevent the Commonwealth from authorising territory legislatures to impose excise duties because ‘the territory legislature, in imposing such duties, would be exercising legislative power which is referable to, derived from and part of the power of the Parliament which is made exclusive by s 90.’255 In response to the argument that the territories might undermine Commonwealth policy in relation to the taxation of goods, the minority simply observed that this could be remedied by Commonwealth enactment.256 But for the complication over the need for uniform bounties, the minority approach is, with respect, more consistent with the plenary nature of the s 122 power and the obvious purpose of s 90 which was to preclude the States from imposing customs and excise duties. Also, the majority’s reliance on a free trade area, as if it is geographically and constitutionally frozen in time at 1901, raises a new form of constitutional implication which conflicts with the expectation in s 122 of changing Commonwealth limits and boundaries.257 11.10.2.2 Section 118: full faith and credit clause Section 118 provides: Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.

As part of the Commonwealth, the self-governing territories are subject to the obligation s 118 imposes of giving full faith and credit to the laws, public Acts, records and judicial proceedings of the States.258 Obviously, these territories do not enjoy the benefit of this provision which is confined to the States.259 They do, 251 Ibid at 279 per Brennan, Deane and Toohey JJ. 252 Ibid. 253 Ibid 290. 254 Ibid 262. 255 Ibid 263. 256 Ibid 262. 257 See the criticisms in D. Mossop, ‘Time to Reconsider Capital Duplicators’ (1998) 5 Canberra Law Review 143. 258 See Dixon CJ in Lamshed v Lake (1958) 99 CLR 132 at 142. 259 Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20 at 31 per Kitto J; Breavington v Godleman (1988) 169 CLR 41.

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however, enjoy the benefit of s 18 of the State and Territorial Laws and Records Recognition Act 1901 (Cth) which provides: All public acts records and judicial proceedings of any State or Territory, if proved or authenticated as required by this Act, shall have such faith and credit given to them in every Court and public office as they have by law or usage in the Courts and public offices of the State or Territory from whence they are taken.

Unlike s 118, this provision does not extend to territory or State statutes, since ‘public acts’ refers to acts of the Executive such as proclamations, orders and commissions.260 11.10.2.3 Implied freedom of political communication As discussed earlier, the implied freedom of political communication derived from the Commonwealth Constitution restricts the Commonwealth’s territories power in s 122. Similarly, it also restricts the exercise of power by the self-governing territories to an extent comparable with the restriction imposed on State power. Hence, territory legislatures cannot impermissibly burden communication on matters pertaining to Commonwealth, State and territory political affairs.261 A similar implied freedom could also be derived from the ACT, Northern Territory and Norfolk Island Self-Government Acts, given the provision made there for the members of the legislature to be elected by the people.262 11.10.2.4 Section 109 It is clear from Lamshed v Lake263 that under s 109, a law of the Commonwealth Parliament enacted pursuant to s 122 will invalidate an inconsistent State law.264 Since s 109 applies only to an inconsistency between a Commonwealth law and a State law, an inconsistency between a Commonwealth law and a territory law is clearly not covered.265 Instead, the common law doctrine of repugnancy applies to render the territory law inoperative and invalid to the extent of any inconsistency with Commonwealth law.266 Unlike the position under s 109, a territory law 260 Breavington v Godleman, ibid. 261 This was argued in Watson v Trenerry (1998) 145 FLR 159 in a challenge to convictions for disorderly behaviour under the Summary Offences Act 1923 (NT). Since Angel and Mildren JJ found that the burning of 20 flags of the Indonesian military forces outside the Indonesian Consulate in Darwin was not disorderly behaviour, the constitutional ground was not discussed. Yet their Honours reached this conclusion after surveying the fundamental right of freedom of expression (at 163–7). Only Gray A-J in dissent addressed the implied freedom by assuming the Commonwealth implied freedom applied but found no breach as the offence was reasonably appropriate and adapted to maintaining order in public places. 262 ACT (Self-Government) Act 1988 (Cth) s 66B; Northern Territory (Self-Government) Act 1978 (Cth) ss 13 and 17; Norfolk Island Act 1979 (Cth) ss 31 and 38. 263 (1958) 99 CLR 132; See also Gummow J in Kruger v The Commonwealth (1997) 190 CLR 1 at 164. 264 Nonetheless, Dawson J in Newcrest Mining (1997) 190 CLR 513 at 556–9 challenged this position including the view of Dixon CJ in Lamshed v Lake at 141 that a s 122 law operates ‘wherever territorially the authority of the Commonwealth runs’. Dawson J relied on the view expressed by Griffith CJ in R v Bernasconi (1915) 19 CLR 629 that s 109 does not cover s 122 laws, not being a law for the peace, order and good government of the Commonwealth. 265 Northern Territory v GPAO (1999) 196 CLR 553 at 580 per Gleeson and Gummow JJ. 266 See ibid at 576 per Gleeson and Gummow JJ (with whom Hayne J agreed generally), at 630 per Kirby J; See also University of Wollongong v Metwally (1984) 158 CLR 447 at 464 per Mason J; Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582 at 588 per Dixon J; Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 90 ALR 59.

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probably does not revive if the inconsistency or repugnancy disappears. This is because there is a lack of power to enact the territory law in the first place.267 So, the position before self-government – whereby Ordinances made by the Governor-General-in-Council for a territory inconsistent with Commonwealth legislation were repugnant as ultra vires their statutory authority – continues to apply after the grant of self-government.268 Except in the ACT, this doctrine has the same effect as s 109269 – whether the form of inconsistency is direct or indirect.270 The latter form of inconsistency arises where the Commonwealth law evinces an intention to ‘cover the field’ so that any territory which trespasses on that field is repugnant, even if no direct inconsistency exists. In the ACT, the Commonwealth has attempted, however, to preclude indirect inconsistency. Section 28 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) purports to preclude this form of indirect inconsistency where the two laws are capable of operating concurrently.271 But if a Commonwealth law enacted since 1988 clearly indicates parliament’s intention to cover a field nationally, this may have impliedly amended or repealed s 28. So there is a real issue here whether s 28 is protected from implied repeal by subsequent Commonwealth enactments. To overcome the traditional view that it is not protected, s 28 would need to be recognised as having an organic character which requires express rather than simply implied repeal. Of course, the Self-Government Acts are liable to be amended expressly or impliedly by Commonwealth legislation. However, territory legislation cannot be amended or repealed as such by Commonwealth law. Instead, Commonwealth legislation operates by paramount force to override any rights or obligations prescribed by territory law.272 This occurred when the Commonwealth enacted the Euthanasia Laws Act 1997 (Cth) to override the Rights of the Terminally Ill Act 1995 (NT), as well as amend all Self-Government Acts to restrict the legislative capacity of territories from enacting euthanasia laws.

11.10.3 Other restrictions on self-governing territories273 The restrictions listed above on the power of self-governing territories derive from the Commonwealth Constitution. Further restrictions are imposed by their Self-Government Acts to prevent the compulsory acquisition of property other 267 See Attorney-General (NT) ibid at 75 per Lockhart J (with whom von Doussa J agreed). 268 See, for example, Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582; See also Northern Territory v GPAO (1999) 196 CLR 553 at 577–8 per Gleeson CJ and Gummow J, citing Brennan J in Webster v McIntosh (1980) 49 FLR 317 at 320–1. 269 See University of Wollongong v Metwally (1984) 158 CLR 447 at 464 per Mason J citing in addition to Dixon J in Federal Capital Commission, ibid at 588: Webster v McIntosh (1980) 49 FLR 317 at 320–1; 32 Adelaide Law Review 603 at 605–6; R v Kearney; Ex parte Japanangka (1980) 49 FLR 394. But note that Mason J left open the issue whether there was a difference between the test of repugnancy under s 2 of the Colonial Laws Validity Act 1865 and s 109 inconsistency. 270 Northern Territory v GPAO (1999) 196 CLR 553 at 582 per Gleeson and Gummow JJ. 271 See ibid 582–3 per Gleeson CJ and Gummow J. 272 See ibid 581–2 per Gleeson CJ and Gummow J. 273 These are not derived from the Commonwealth Constitution.

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than on just terms, to protect freedom of trade, commerce and intercourse, and to prevent the legalisation of euthanasia. The ACT and Norfolk Island Assemblies are also subject to other specific restrictions which are covered in Chapter 12. In addition, restrictions which apply to State legislative power may also apply to the self-governing territories: the limit on extraterritorial competence; manner and form; and the effect of imperial paramount law. Each of these restrictions on the self-governing territories is examined in previous chapters.274 11.10.3.1 Compulsory acquisition of property The guarantee of just terms in s 51(xxxi) of the Commonwealth Constitution, being confined to laws enacted by the Commonwealth Parliament for the compulsory acquisition of property, clearly does not extend to laws enacted by a self-governing territory. Nevertheless, the ACT, Northern Territory and Norfolk Island Assemblies are subject to essentially the same restriction by virtue of their Self-Government Acts.275 Both Acts deny legislative power to make ‘laws with respect to the acquisition of property otherwise than on just terms’. The scope of this restriction is defined by reference to the interpretation of the comparable elements in s 51(xxxi), that is, what constitutes an ‘acquisition’ of ‘property’ on other than ‘just terms’.276 11.10.3.2 Freedom of trade, commerce and intercourse Since the freedom of trade, commerce and intercourse among the States guaranteed by s 92 of the Commonwealth Constitution is not directed to protecting the freedom of trade with the territories,277 a comparable freedom is statutorily prescribed for the ACT and the Northern Territory.278 These statutory freedoms differ, however, in their geographic scope. The freedom in the Northern Territory only extends to trade, commerce and intercourse between the Territory and the States. The freedom in the ACT extends also to interterritorial trade, commerce and intercourse between the ACT and four other territories: the Northern Territory, the Jervis Bay Territory, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands. The effect of this Commonwealth conferred freedom for the ACT is not only to invalidate ACT legislation, but also to invalidate any Northern Territory legislation which impermissibly burdens trade between the two territories, as well as invalidate State legislation between the ACT and

274 Chapter 5 Repugnancy, Chapter 6 Manner and form, and Chapter 7 Extraterritoriality. 275 Northern Territory (Self-Government) Act 1978 (Cth) s 50(1); ACT (Self-Government) Act 1988 (Cth) s 23(1)(a); Norfolk Island Act 1979 (Cth) s 19(2)(d) and (2A). 276 See G. A. Moens and J. Trone, Lumb and Moens’ The Constitution of the Commonwealth of Australia Annotated (6th edn, Sydney: Butterworths, 2001) 146–61. 277 Note that a territory law which impairs the freedom of trade, commerce or intercourse between two States (for example a Northern Territory law affecting trade between Queensland and Western Australia) might be invalid under s 92: Lamshed v Lake (1958) 99 CLR 132 at 143 per Dixon CJ. 278 Northern Territory (Self-Government) Act 1978 (Cth) s 49; ACT (Self-Government) Act 1988 (Cth) s 69(1).

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the States.279 Only in the ACT is the Commonwealth expressly excluded from this restriction.280 The nature of these statutory freedoms is equivalent to that prescribed for the States by s 92 of the Commonwealth Constitution. The freedom of interstate trade and commerce was authoritatively settled by a joint judgment of the High Court in Cole v Whitfield281 to invalidate any State or Commonwealth law which, in burdening interstate trade or commerce, confers a competitive advantage on the local or intrastate trade and is protectionist in character. A law will not be protectionist if it is designed to address a legitimate public interest and does so in a way which is reasonably appropriate and adapted to achieving that objective.282 Accordingly, by virtue of the statutory freedoms in the ACT and the Northern Territory, trade and commerce between the Northern Territory and the States is subject to this same protection, like trade and commerce between the ACT and the States or the other four territories mentioned earlier. Yet, successful challenges to ACT and Northern Territory legislation on the basis of this freedom are likely to be rare. A law which merely burdens interstate trade will not be invalid unless it also protects the local trade, that is, is protectionist in character.283 And even if the law protects the local trade, it will escape invalidity if it is reasonably appropriate and adapted to protecting a legitimate public interest. No attempt was made in Cole v Whitfield to clarify the scope of the freedom of intercourse in s 92, except to acknowledge that it did not have to follow that of the freedom of interstate trade and commerce.284 Accordingly, it appears to have a wider scope which protects the right of personal movement between the States, whether or not in the course of trade or commerce.285 It also appears to encompass all other forms of interchange between the States, such as communications.286 11.10.3.3 Euthanasia In response to the legalisation of euthanasia in the Northern Territory by the Rights of the Terminally Ill Act 1995 (NT), the Commonwealth enacted the Euthanasia Laws Act 1997 (Cth) to override that Act, as well as to deprive the ACT,287 the Northern Territory288 and Norfolk Island289 of the legislative power to enact euthanasia laws. Provision is made, though, for permitting 279 G. J. Lindell, ‘The Arrangements for Self-Government for the Australian Capital Territory: A Partial Road to Republicanism in the Seat of Government?’ (1992) 3 Public Law Review 5, 12, fn 31. 280 ACT (Self-Government) Act 1988 (Cth), s 69(2). But Commonwealth law can expressly or impliedly override the freedom in the Northern Territory. 281 (1988) 165 CLR 360. 282 Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436. 283 Not established in Wylkian Pty Ltd v ACT Government [2002] ACTSC 97 in relation to ACT controls on the sale of fireworks. Cf New South Wales restrictions on ACT bookmakers in Sportodds Systems Pty Limited v New South Wales [2003] FCAFC 237. 284 (1988) 165 CLR 360 at 394. 285 Gratwick v Johnson (1945) 70 CLR 1 at 17. 286 See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 55–6 per Brennan J, at 83 per Deane and Toohey JJ; George Williams, Human Rights under the Australian Constitution (South Melbourne: Oxford University Press, 2002) 135–7. 287 ACT (Self-Government) Act 1988 (Cth) s 23. 288 Northern Territory (Self-Government) Act 1978 (Cth) s 50A. 289 Norfolk Island Act 1979 (Cth) s 19(2)(d) and (2A).

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palliative care and other related procedures. The position is the same in all three territories. For instance, s 50A of the Northern Territory (Self-Government) Act 1978 (Cth) provides: (1) Subject to this section the power of the Legislative Assembly . . . does not extend to the making of laws which permit or have the effect of permitting (whether subject to conditions or not) the form of intentional killing of another called euthanasia (which includes mercy killing) or the assisting of a person to terminate his or her life. (2) The Legislative Assembly does have power to make laws with respect to: (a) the withdrawal or withholding of medical or surgical measures for prolonging the life of a patient but not so as to permit the intentional killing of the patient; and (b) medical treatment in the provision of palliative care to a dying patient, but not so as to permit the intentional killing of the patient; and (c) the appointment of an agent by a patient who is authorised to make decisions about the withdrawal or withholding of treatment; and (d) the repealing of legal sanctions against attempted suicide.

11.11 Representation in the Commonwealth Parliament The second limb of s 122 empowers the Commonwealth Parliament to ‘allow the representation of [a] territory in either House of the Parliament to the extent and on the terms which it thinks fit’. Only the ACT and the Northern Territory are represented as territories in both Houses. Australian citizens resident in the other four inhabited territories are all entitled to vote in federal electorates. Jervis Bay electors vote as if part of the ACT. The electors on Christmas Island and the Cocos (Keeling) Islands vote as if part of the Northern Territory. The electors on Norfolk Island are included in the ACT unless they specify a State electorate with which they were previously closely associated. The ACT was first represented by a member in the House of Representatives in 1948. Limited voting rights were accorded that member as there were insufficient electors to meet the quota for a State member.290 Full voting rights were conferred in 1966. Senate representation was achieved in 1975 with the election of two senators from both the ACT and the Northern Territory. Despite the Senate being described in s 7 of the Constitution as ‘composed of senators for each State’, the High Court in Western Australia v The Commonwealth (the First Territorial Senators case)291 narrowly upheld the Senate (Representation of Territories) Act 1973 (Cth) under the second limb of s 122. The majority292 read s 122 as qualifying ss 7 and 24, which on their face contemplated the representation of only the States. 290 See Robert R. Garran, Prosper the Commonwealth (Sydney: Angus and Robertson, 1958) 403–4. 291 (1975) 134 CLR 201. 292 Ibid 233–4 per McTiernan J, at 267–72 per Mason J, at 272–5 per Jacobs J, and at 280–7 per Murphy J.

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The minority were only prepared to allow non-voting senators.293 Following a change in the composition of the Court,294 a further challenge was brought in Queensland v The Commonwealth (The Second Territorial Senators case)295 where Gibbs and Stephen JJ joined the majority296 in affirming The First Territorial Senators case, as well as upholding the representation of the ACT and the Northern Territory in the House of Representatives with full voting members.297 In the Northern Territory, the right to vote in federal elections was first conferred in 1922 to elect a single non-voting member to the House of Representatives.298 Limited voting rights were conferred gradually on the member until full voting rights were attained in 1968. As noted above, representation in the Senate began in 1975 with the election of two senators from the Territory. On its face, there are no limits under s 122 to the terms on which the Commonwealth may provide for the representation of the territories in the Commonwealth Parliament. For instance, there is no express constitutional limit to the number of territory senators nor to the manner in which they might be elected. They could even be appointed by the Executive Council.299 However, there can be derived from ss 7 and 24 of the Commonwealth Constitution, a clear basis for a constitutional implication to protect the composition of the parliament from being undermined by disproportionate territory representation. The constitutional right conferred by those sections to directly choose the members of both Houses should preclude the swamping of the Houses with territory representatives.

11.12 Territory to statehood The transformation of a territory into a State could occur by Commonwealth enactment pursuant to s 121 of the Commonwealth Constitution. This provision empowers the Commonwealth to ‘admit to the Commonwealth, or establish new States’ and to ‘impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit.’ The conversion of a territory into a State would certainly entail the ‘establishment’ of a new State, although Professor Lumb suggested that a self-governing territory should simply be ‘admitted’ to the Commonwealth.300 On the basis of admission, the territory would be entitled to draft its own Constitution and thereby be admitted on Commonwealth approval.301 However, by empowering the Commonwealth 293 Ibid 226–33 per Barwick CJ, at 243–9 per Gibbs J, and at 255–60 per Stephen J. 294 Aickin J appointed on the retirement of McTiernan J. 295 (1977) 139 CLR 585. 296 That is, joined Mason, Jacobs and Murphy JJ; contra Barwick CJ and Aickin J. 297 See McHugh J in Kruger v The Commonwealth (1997) 190 CLR 1 at 143. 298 Northern Territory Representation Act 1922 (Cth). 299 See P. J. Hanks, Constitutional Law in Australia (2nd edn, Sydney: LexisNexis Butterworths, 1996) 43, relying on comments by Stephen J in Attorney-General (NSW); Ex rel McKellar v The Commonwealth (1977) 139 CLR 527 at 561–2. 300 Lumb, above n 85. 301 Quick and Garran, above n 11, 968–9 regarded s 121 as distinguishing between the admission of external polities and the establishment of new States from existing States and territories.

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to impose conditions on statehood, new States are not guaranteed membership of the federation on the same basis as the six original States. The only territory for which statehood appears a realistic option is the Northern Territory. In Capital Duplicators,302 doubt was cast on the capacity of the ACT ever to become a State. Brennan, Deane and Toohey JJ declared: ‘In our view, the Australian Capital Territory, unlike the Northern Territory, cannot become a new State. Section 52(i) precludes that possibility.’303 On the other hand, the minority judgment of Mason CJ, Dawson and McHugh JJ regarded it as an open question.304 Discussion in the Northern Territory for statehood officially began in 1985 with the appointment by the Legislative Assembly of a Select Committee on Constitutional Development. That Committee identified a wide range of issues for consideration.305 In 1998, a referendum on statehood in the Northern Territory was defeated. A further referendum is planned for 2008 in the hope that statehood might be achieved by the 30th anniversary of self-government on 1 July 2008.

11.13 Commonwealth surrender of a territory Finally, there is the issue – can the Commonwealth surrender a territory? It is arguable that, subject to the Constitution, the Commonwealth can achieve this in such manner as it thinks fit within the wide scope of the s 122 power. The power to accept a territory by implication must include the power to relinquish it. Yet that power is subject to a constraint in relation to those territories which form part of the Commonwealth. These territories would need to remain part of the Commonwealth (for example, become part of a State) and so could not be transferred to a foreign State, or be allowed to become a foreign State unless this is approved as a constitutional amendment pursuant to s 128 of the Commonwealth Constitution.306 No such difficulty arises for those territories which never became part of the Commonwealth.307 If the Commonwealth were to transfer a territory to a State, s 123 requires both the State parliament and its electorate to approve the transfer since this involves an alteration to the limits of the State. 302 Capital Duplicators (1992) 177 CLR 248 at 273 per Brennan, Deane and Toohey JJ. 303 Ibid. 304 Ibid 266. 305 See, for example, Legislative Assembly of the Northern Territory of Australia, Select Committee on Constitutional Development, Discussion Paper on a Proposed New State Constitution for the Northern Territory, October 1987; Information Paper No 1, Options for a Grant of Statehood; Information Paper No 2, Entrenchment of a New State Constitution. 306 R. D. Lumb, ‘Territorial Change in the States and Territories of the Commonwealth’ (1963) 37 Australian Law Journal 172, 175. 307 This occurred with the former territories of Papua and New Guinea and Nauru which became independent States.

12 Commonwealth territories

12.1 Introduction This chapter outlines the constitutional systems of each of the Commonwealth’s 10 territories. Of the five inhabited territories, only three have self-government: the Australian Capital Territory, the Northern Territory and Norfolk Island. The other two territories, Christmas Island and the Cocos (Keeling) Islands, are directly administered by the Commonwealth. For each of the three self-governing territories, consideration is given to their constitutional history, self-government structure and powers, restrictions on power, representation (if any) in the Commonwealth Parliament, and future development. Each of these self-governing territories possesses a ‘Constitution’, both in the narrow sense of a formal Constitution,1 and in the broader sense which includes unwritten constitutional principles and conventions. Each formal Constitution assumes these conventions, while allowing for other conventions to evolve. It is surprising the term ‘constitution’ is not commonly used in relation to the self-governing territories. The fact these Constitutions were drafted by the Commonwealth with no public consultation nor referendum approval and are capable of being altered by the Commonwealth as ordinary legislation, may explain but cannot justify this phenomenon. Indeed, in many respects their written constitutions are a superior version to most formal State Constitutions which retain their anachronistic 19th century language, fail to acknowledge significant fundamental constitutional principles like responsible government, and are almost entirely flexible (that is, not entrenched). The written Constitutions of the self-governing 1 AustralianCapitalTerritory(Self-Government)Act 1988 (Cth); NorthernTerritory(Self-Government)Act1978 (Cth); Norfolk Island Act 1979 (Cth).

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territories suffer few of these deficiencies. As organic documents, they deserve recognition as their Territory’s ‘Constitution’.2

12.2 Australian Capital Territory The ACT is a unique territory, being the location of the seat of government of the Commonwealth. For that reason, it is destined always to remain a Commonwealth territory. Like Norfolk Island, self-government has conferred responsibility for matters which span both State and local government.

12.2.1 Constitutional history The ACT was officially proclaimed on 1 January 1911, a decade after federation. It was established as a federal territory for the ‘Seat of Government’ which was required by s 125 of the Commonwealth Constitution to be located within territory, granted to or acquired by the Commonwealth, situated not less than 100 miles from Sydney in New South Wales. Pursuant to s 125, the Commonwealth Parliament determined that the seat of government would be in the inland district of Yass–Canberra in New South Wales3 , within a territory of not less than 900 square miles and have access to the sea.4 Subsequently, the Commonwealth and New South Wales entered into a formal agreement5 on 18 October 1909 whereby New South Wales agreed to surrender to the Commonwealth the designated territory, as well as other territory at Jervis Bay to serve as a seaport. The agreement also granted the Commonwealth the right to construct a railway or other means of communication between the ACT and Jervis Bay. This agreement was duly ratified in December 1909 by enactments of the New South Parliament6 and the Commonwealth Parliament.7 Pursuant to the Commonwealth enactment, the Governor-General declared by proclamation that the acceptance of the territory, to be known as the ‘Australian Capital Territory’, was to take effect on 1 January 1911. The Territory of Jervis Bay was subsequently accepted by the Commonwealth in 1915, following agreement reached with New South Wales on 23 September 1913.8 2 See G. J. Lindell, ‘The Arrangements for Self-Government for the Australian Capital Territory: A Partial Road to Republicanism in the Seat of Government?’ (1992) 3 Public Law Review 5, 7; cf G. R. Nicholson, ‘Constitutionalism in the Northern Territory and Other Territories’ (1992) 3 Public Law Review 50, 53–4. 3 Seat of Government Act 1908 (Cth) s 3. For the turbulent history behind the selection of the district of Yass–Canberra, see Ruth Atkins, The Government of the Australian Capital Territory (St Lucia: University of Queensland Press, 1978) Chapter 2. 4 Seat of Government Act 1908 (Cth) s 4. 5 Contained in the First Schedule of both the Seat of Government Acceptance Act 1909 (Cth) and the Seat of Government Surrender Act 1909 (NSW). 6 Seat of Government Surrender Act 1909 (NSW). 7 Seat of Government Acceptance Act 1909 (Cth). Corrections were made to the description of the territory in cl 5 of the 1909 Agreement by an amending agreement of 2 September 1920 – ratified by the Seat of Government Acceptance Act 1922 (Cth). 8 See the Schedule to the Seat of Government Surrender Act 1915 (NSW).

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While the seat of government is located within the ACT by s 4 of the Seat of Government Acceptance Act 1909 (Cth), its precise confines have never been defined by the Commonwealth Parliament under s 125 of the Commonwealth Constitution. It is clear that the ACT and the seat of government are not coterminous.9 If, as Windeyer J thought in Spratt v Hermes,10 ‘seat of government’ refers to the nation’s capital, then the seat of government is the city of Canberra which occupies 250 of the 2358 square kilometres of the ACT. An alternative view is that it is confined to the so-called ‘parliamentary triangle’: Parliament House, Civic (Canberra’s CBD), and the Defence Department building. The scope of the Commonwealth’s power with respect to the seat of Government in s 52(i) was considered in Chapter 11, section 11.4. The accepted view is that this power which is designated as ‘exclusive’ to the Commonwealth, does not preclude the exercise of the territories power in s 122 throughout the territory in which the seat of Government is located.11 Nor does it preclude the Commonwealth from establishing pursuant to s 122 a new body politic for that territory.12 Indeed, the principal power for legislating in relation to the ACT is s 122, not s 52(i).13 Accordingly, the power in s 52(i) was read down in the joint judgment of Mason CJ, Deane, Dawson and McHugh JJ in Svikart v Stewart14 as a power concerned with ‘political or constitutional aspects, rather than with the government of the territory which it occupies’.15 After the establishment of the ACT in 1911, the administration of the new Territory was left entirely in the hands of the fledgling Commonwealth government departments in Melbourne with Ordinances made by the Governor-General-in-Council. Certain departments, such as Defence, remained in Melbourne until the late 1950s. Despite Walter Burley Griffin’s designs for the capital of Canberra being accepted in 1912, little was achieved in the ensuing years until the 1920s when the Federal Capital Advisory Committee, chaired by Sir John Sulman, and the subsequent Federal Capital Commission chaired by Sir

9 Re Governor, Goulburn CC; Ex parte Eastman (1999) 200 CLR 322 at 333 per Gleeson CJ, McHugh and Callinan JJ; Svikart v Stewart (1994)181 CLR 548 at 561; Spratt v Hermes (1965) 114 CLR 226 at 262 per Taylor J. 10 (1965) 114 CLR 226 at 273, citing the example of Ottawa as the capital of Canada under s 16 British North America Act 1867. See also his judgment in Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89 at 124 where he says the seat of government, like a seat of learning or a seat of a bishop, cannot be precisely delineated. 11 Spratt v Hermes (1965) 114 CLR 226; Lindell, above n 2, 8. 12 See Advice to the Minister for Territories and Local Government: Parliamentary Paper No 139/1984 (Canberra: Australian Government Publishing Service, 1984) provided by the Task Force on Implementation of ACT Self-Government, paras 3.1–3.24. The grant of self-government to the ACT may not involve any delegation of the exclusive power in s 52(i): see Lindell, above n 2, 8, citing: Nott Bros & Co Ltd v Barkley (1925) 36 CLR 20 at 29 per Isaacs J; Golden-Brown v Hunt (1972) 19 FLR 438; John Quick and Robert R. Garran, The Annotated Constitution of the Australian Commonwealth (Sydney: Legal Books, 1995) 656. 13 Spratt v Hermes (1965) 114 CLR 226 at 241 per Barwick CJ, at 258 per Kitto J, at 262–4 per Taylor J, at 271 per Menzies J, at 273 per Windeyer J and at 281–2 per Owen J; Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89 at 101 per Barwick CJ, at 111 per Kitto J, at 114 per Menzies J, and at 124 Windeyer J. See criticism of this view by D. Mossop, ‘The Constitutional Basis for the Government of the Australian Capital Territory’ (1999) 6 Canberra Law Review 5, 10–13. 14 (1994) 181 CLR 548 at 561. 15 For example, the location of Parliament House, Government House and foreign embassies, and the provision of services, such as security.

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John Butters, completed the temporary Parliament House which was opened by the Duke and Duchess of York on 9 May 1927. At this time, the official residence of the Governor-General at Yarralumla was established. Also, certain government departments relocated to Canberra (such as the Attorney-General’s Department), although other department relocations were hindered by the Depression and the Second World War. In response to a scathing Senate Select Committee report in 1955, the Menzies Government established the National Capital Development Commission (NCDC) in 1958 to spearhead the future development of Canberra as the nation’s capital. On completion of Lake Burley Griffin in 1964, the city began to take shape with the National Library built in 1968, the High Court in 1980, the National Gallery in 1982 and the new Parliament House in 1988. The administration of the ACT involved no political representation for its residents until provision was made for the election of three (later increased to eight) members to an Advisory Council in 1930, following the demise of the Federal Capital Commission. The other four members of the Council were appointed by the Commonwealth Government. Although intended as a temporary measure, the Advisory Council existed until 1974 when the Whitlam Government replaced it with a Legislative Assembly of 18 elected members. The ACT was first represented in the House of Representatives in 1948 although its single member did not attain full voting rights until 1966. Since 1974, ACT residents have been represented by two members in the House of Representatives, and since 1975 by two senators who serve concurrent terms with the members of the House. The issue of self-government for the ACT had been officially discussed at least since 1967. A proposal for self-government was defeated at a referendum (63.5 per cent against) in 1978 – the same year the Northern Territory achieved selfgovernment. The Hawke Labor Government in the 1980s prepared the Territory for self-government by consolidating its administration within one department with a stand-alone budget.16 Federal political pressure for self-government grew as ALP federal members elected from the Territory wished to avoid involvement in local or State-type matters, and as evidence mounted from Grants Commission reports of Commonwealth overfunding.17 Senate approval for self-government was finally achieved once the d’Hondt voting system was adopted.18 Significantly, apart from the 1978 referendum, no attempt was made to seek approval from the residents of the ACT before self-government was conferred in 1988. This aroused public outrage which led to a ‘farcical’ election on 4 March 1989 for the new Legislative Assembly.19 Doubts were even raised about the constitutional validity of the grant of self-government to the ACT on at least two

16 Second Reading Speech for ACT (Self-Government) Bill, House of Representatives Hansard (19 October 1988) p 1923. 17 B. Juddery, ‘Self-Government for the Australian Capital Territory’ (1989) 48 Australian Journal of Public Administration 411, 415. 18 Ibid 419. 19 J. G. Starke, ‘Current Topic: Self-government for the National Capital, Canberra; Constitutional and Other Aspects’ (1989) 63 Australian Law Journal 310, 312–13. The metre-long ballot paper contained 117 candidates for 17 seats and included political parties such as the No Self Government Party: Juddery, above n 17, 411.

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grounds: the location within it of the seat of government;20 and the principle of In re The Initiative and Referendum Act,21 namely, not ‘to create and endow with its own capacity a new legislative power not created by the Act to which it owes its existence’. These doubts were removed in Capital Duplicators Pty Ltd v Australian Capital Territory22 which recognised that s 122 clearly contemplated a grant of self-government by empowering the Commonwealth to make laws for the government of the Territory, and that self-government created in each case a new body politic under the Crown.

12.2.2 Self-government: structure and powers The grant of self-government in 1988 involved a package of four Commonwealth enactments: Australian Capital Territory (Self-Government) Act 1988 (Cth); Australian Capital Territory (Electoral) Act 1988 (Cth); Australian Capital Territory (Consequential Provisions) Act 1988 (Cth); and Australian Capital Territory (Planning and Land Management) Act 1988 (Cth). 12.2.2.1 Legislative Assembly The first of these Acts, in effect the ACT Constitution, provides for a Legislative Assembly of 17 members with a Presiding Officer (and Deputy), a Chief Minister elected by the Assembly, a Deputy Chief Minister and Ministers appointed by the Chief Minister. The ACT Assembly is elected for a fixed term of four years, with the general election held on the third Saturday in February. Earlier elections can be held only in two situations: the Assembly is dissolved by the Governor-General under s 16; or the Assembly fails under s 48 to elect a successor within 30 days of passing a resolution of no confidence in the Chief Minister. These situations are further explained below. The ACT Assembly is vested with a plenary23 legislative power to make laws for the ‘peace, order and good government of the Territory’ (s 22(1)) – subject to the remaining provisions of Part IV and Part VA (The Judiciary), and extends to make laws ‘with respect to the exercise of powers by the Executive’ (s 22(2)). Section 23 excludes from this legislative power the various matters listed in subsections (1) and (1A). The former lists: (a) the acquisition of property otherwise than on just terms; (b) the provision by the Australian Federal Police of police services in relation to the Territory; (c) the raising or maintaining of any naval, military or air force; 20 Juddery, ibid 412. 21 [1919] AC 935 at 945, which was adopted by Dixon J in Victorian Stevedoring and General Contracting Co. Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 95–6. 22 (1992) 177 CLR 248 at 265–6 per Mason CJ, Dawson and McHugh JJ; at 271 per Brennan, Deane and Toohey JJ; followed Berwick Ltd v Gray (1976) 133 CLR 603 at 607. 23 R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 279 per Wilson J (with whom Aickin J agreed); approved by Brennan, Deane and Toohey JJ in Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 281.

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(d) the coining of money; (e) the classification of materials for the purpose of censorship; or (f) the matters that are the subject of the laws in force in the Territory relating to: (i) companies; (ii) close corporations; (iii) foreign corporations (iv) the acquisition of shares in bodies corporate; and (v) the regulation of the securities industry and the futures industry.

In relation to these matters, the Governor-General remains empowered to make Ordinances for the peace, order and good government of the ACT.24 This has occurred in relation to land use within Canberra.25 The Assembly is also prevented from impairing interterritorial trade, commerce and intercourse between the ACT and four other territories: the Northern Territory, the Jervis Bay Territory, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.26 As noted in Chapter 11, the effect of this Commonwealth conferred freedom for the ACT is not only to invalidate ACT legislation, but also to invalidate Northern Territory legislation which impermissibly burdens trade between the two territories, as well as to invalidate State legislation between the ACT and the States.27 The Commonwealth is expressly excluded from this restriction.28 In response to the legalisation of euthanasia in the Northern Territory by the Terminally Ill Act 1995 (NT), subsections (1A) and (1B) were added to s 23 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) by the Commonwealth Parliament in 1997 to prevent the enactment of euthanasia laws, while permitting palliative care and other related procedures.29 Subsections (1A) and (1B) provide: (1A) The Assembly has no power to make laws permitting or having the effect of permitting (whether subject to conditions or not) the form of intentional killing of another called euthanasia (which includes mercy killing) or the assisting of a person to terminate his or her life. (1B) The Assembly does have power to make laws with respect to: (a) the withdrawing or withholding of medical or surgical measures for prolonging the life of a patient but not so as to permit the intentional killing of the patient; and (b) medical treatment in the provision of palliative care to a dying patient, but not so as to permit the intentional killing of the patient; and (c) the appointment of an agent by a patient who is authorised to make decisions about the withdrawal or withholding of treatment; and (d) the repealing of legal sanctions against attempted suicide. 24 Seat of Government (Administration) Act 1910 (Cth) s 12. 25 See National Land Ordinance 1989 which remained as a Commonwealth Ordinance under Schedule 5 of the ACT (Self-Government) Act 1988 (Cth); ACT (Planning and Land Management) Act 1988 (Cth) under which the National Capital Authority regulates land use in Canberra. 26 ACT (Self-Government) Act 1988 (Cth), s 69(1). 27 Lindell, above n 2, 12 fn 31. 28 ACT (Self-Government) Act 1988 (Cth), s 69(2). But Commonwealth law can expressly or impliedly override the freedom in the Northern Territory. 29 The same restriction was imposed on the Northern Territory and Norfolk Island legislatures: Euthanasia Laws Act 1997 (Cth).

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Other restrictions on the power of the ACT Legislative Assembly (as well as on the other self-governing territories) derive from the Commonwealth Constitution: s 90 (excise); Chapter III (judicial power); s 118 (full faith and credit clause); and the implied freedom of political communication. These have all been covered in Chapter 11. Further restrictions on the Territory’s legislative power were addressed in the previous chapters on manner and form,30 extraterritoriality,31 and repugnancy.32 The most significant aspect of the ACT constitutional system is the absence of any representative of the Sovereign. This particularly affects the Assembly and the Executive. Enactments by the Assembly involve no royal assent. When Bills are passed by the Assembly, the Chief Minister is under an obligation33 to publish in the Territory Gazette a notice that the Bill has been passed, indicating where copies are available for purchase (s 25(1)). The Bill takes effect (is enacted) on the date of publication of this notice, unless the enactment provides otherwise (s 25(2)). While there is no prescribed period for publication, a failure to act in a timely manner could lead to a no confidence motion in the Chief Minister (s 40(3)). That is unlikely to occur now, since the delegation to the Parliamentary Counsel of the responsibility for arranging publication.34 The exclusion of the Crown from the process of law-making in the ACT is unique in Australia. It could be viewed as a further step in the democratic evolution of the parliamentary process. The subjection of the will of the legislature to the consent of the Crown does seem incongruous if the legislature alone represents the sovereign power of the electorate. This is so, even if consent is, by convention, never withheld. The validity of the Crown’s exclusion in the ACT law-making process does not seem to be in doubt,35 even if doubts exist over the position at the State level.36 In any event, the exclusion from the legislative process is really of less significance compared with the effect the absence of a vice-regal representative has on the Executive branch (considered below). There remains, however, a vice-regal presence in the ACT through the Governor-General’s supervisory role in relation to the Assembly and the legislative process – albeit a role performed on the advice of the Commonwealth Executive. The Governor-General is empowered by a written instrument to disallow an enactment within six months of being made (s 35(2)), or to recommend amendments considered ‘desirable as a result of considering the matter’ (s 35(4)). On publication in the Commonwealth Gazette of notice of disallowance, the enactment is effectively repealed (s 35(6)). This is avoided if either House of the Commonwealth Parliament vetos the instrument of disallowance pursuant to s 46A of the Acts Interpretation Act 1901 (Cth). This supervisory power has never been exercised. Given the successful implementation of self-government since 1988 and the retention of the Commonwealth’s paramount power in s 122 over 30 33 34 35

Chapter 6. 31 Chapter 7. 32 Chapter 5. Lindell, above n 2, 14–15 agrees it is unlikely that the Chief Minister could withhold notification. Legislation Act 2001 (ACT) ss 18–20. Lindell, above n 2, 28–9. 36 This issue was explored in Chapter 4.

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the territories, these powers to disallow territorial enactments or to recommend amendments to them should be removed, or at least confined to enactments which relate to the seat of Government. The Governor-General is also vested by s 16(1) with a discretionary power to dissolve the Assembly in two prescribed circumstances: If, in the opinion of the Governor-General, the Assembly: (a) is incapable of effectively performing its functions; or (b) is conducting its affairs in a grossly improper manner.

The two prescribed grounds are wider than the ground of persistent illegality which may justify an exercise of a State Governor’s reserve power of dismissal. However, s 16(1) confers no reserve power on the Governor-General who is required to exercise this power only on the advice of the Federal Executive Council.37 Moreover, an opinion must be formed as to the functioning of the Assembly, not the Executive as such. Yet where an Executive is acting in a ‘grossly improper manner’, an opinion could easily be formed that the Assembly is similarly acting if it fails to hold the Executive to account. Even so, a dissolution of the Assembly automatically terminates the Executive since all ministerial offices, including that of the Chief Minister, become vacant when their incumbents cease to be members of the Assembly (s 46). Consequently, on dissolution of the Assembly, the Governor-General is required to appoint a commissioner to perform the Executive function – subject to any directions from the Governor-General (s 16(2) and (4)). As for the two prescribed grounds in s 16(1), the first might arise where a stalemate arises within the Assembly over the annual appropriation Bills or over an entire legislative program. The second ground might arise where the Assembly deliberately enacts legislation which it knows is clearly beyond the scope of its power, or flagrantly violates restrictions on its powers. It could also arise where the legislature is acting other than for the peace, order or good government of the Territory. No other Australian legislature is subject to such review. As neither ground has activated this power of dissolution since the grant of self-government in 1988, a convention may have evolved to preclude the exercise of that power except in the most extreme situation. 12.2.2.2 The Executive Although not clearly declared by the Self-Government Act, the Executive comprises the Crown in right of the ACT.38 Section 36 establishes ‘an Australian Capital Territory Executive’ which comprises the Chief Minister and such other ministers as are appointed by the Chief Minister (s 39). Ministerial portfolios are allocated by the Chief Minister who is required to publish the allocation in the 37 Acts Interpretation Act 1901 (Cth) s 16A. 38 Section 7 merely establishes the ACT as a body politic under the Crown. In Capital Duplicators(1992) 177 CLR 248 at 267 Mason CJ, Dawson and McHugh JJ accepted that s 122 allowed for a ‘separate Territory fiscus’ (ie, public treasury).

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Territory Gazette (s 43). By convention, all ministers meet as a Cabinet, chaired by the Chief Minister, and serviced by a Cabinet Office. The principle of responsible government is expressly incorporated in Part V by providing for the following: ● the Chief Minister is to be elected by the Assembly from amongst its members at its first meeting after a general election (s 40(1)); ● the Chief Minister is to appoint the Ministers from the members of the Assembly (s 41(1)); ● the Assembly may pass a vote of no confidence in a Chief Minister, and proceed to elect a new Chief Minister (s 40(3)); and ● all Ministers lose office when the Chief Minister is replaced following the passing of a no confidence motion (s 46(1A)(3)). Where the Assembly passes a resolution of no confidence in the Chief Minister, it needs to elect a new Chief Minister within 30 days. Otherwise a general election must be held on a date specified by the Commonwealth Minister between 36 and 90 days from the expiration of that period (s 48(2)). These provisions, together with the Governor-General’s supervisory power to dissolve the Assembly – if the Assembly is incapable of effectively performing its functions or is conducting its affairs in a grossly improper manner – appear to avoid any difficulties which might have otherwise arisen from the absence of a vice-regal representative. As noted earlier, those grounds for dissolution encompass the Executive as well, since the Assembly will be deemed to be similarly affected if it fails or is incapable of taking any action against such a flawed Executive. A loss of confidence in the Executive leads to either a new Chief Minister who has the Assembly’s confidence or, failing this, to a general election. Given this coverage of possible constitutional crises, little or no scope remains for any exercise of reserve power. All of the GovernorGeneral’s statutory powers should be capable of judicial review – at least for improper purpose.39 But an exercise of the Chief Minister’s power to dismiss ministers might not.40 The executive power vested in the ACT Executive entails the following responsibilities under s 37 of the Australian Capital Territory (Self-Government) Act 1988 (Cth): The Executive has the responsibility of: (a) governing the Territory with respect to matters specified in Schedule 4; (b) executing and maintaining enactments and subordinate laws; (c) exercising such other powers as are vested in the Executive by or under a law in force in the Territory or an agreement or arrangement between the Territory and the Commonwealth, a State or another Territory; and (d) exercising prerogatives of the Crown so far as they relate to the Executive’s responsibility mentioned in paragraph (a), (b) or (c).

The long list of matters specified in Schedule 4, ranging from Territory insurance to scientific research, covers areas of responsibility of Commonwealth, State and local government.41 No specific areas are expressly excluded from the Executive’s 39 Lindell, above n 2, 10.

40 Ibid 25.

41 See Appendix 3 in this book.

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responsibility. The list of matters is regarded within the ACT as equivalent to the scope of State executive power – except for the areas precluded from the legislative power of the Legislative Assembly by s 23 of the ACT Self-Government Act and the reservation to the Commonwealth of land title in the Territory by the Australian Capital Territory Planning and Land Management Act 1988 (Cth). The inclusion of the ‘prerogatives of the Crown’ in s 37(d), so far as they relate to the three previous categories of responsibility, was added in 1994 to remove any doubt that the Executive possessed the common law Crown prerogatives by virtue of being a body politic under the Crown. In particular, this was done to ensure that the prerogative power to pardon was vested in the ACT rather than the Commonwealth. In the absence of an administrator who performs a vice-regal function, the existence and role of the Crown in the ACT is rather vague. While s 7 establishes the ACT as ‘a body politic under the Crown’, the only other references to the Crown in the Self-Government Act occur in s 37(d) (see above) and s 66A – both provisions inserted as amendments in 1994 and 1992 respectively. Section 66A expressly refers to ‘the Crown in right of the Territory’ as being bound by Part VIII on Assembly elections. In view of these meagre provisions, there can be no doubt that there is a Crown in right of the ACT, as there is in the Northern Territory.42 In accordance with Westminster principles, the Assembly is given financial control over the Executive in relation to appropriation of public money which must be authorised by enactment (s 58(1)). Such an enactment, vote or resolution can only be proposed by a minister, although an amendment can be moved by a member other than to increase the appropriation (s 65). While the ‘receipt, spending and control’ of the Territory’s public money is to be regulated by enactment (s 57(2)), surprisingly, the imposition of taxes is not expressly required to be by enactment – this, however, would be implied.43 The ACT is assured Commonwealth financial treatment on the same basis as the States and the Northern Territory, while having regard to the ‘special circumstances arising from the existence of the national capital and the seat of government of the Commonwealth in the Territory’ (s 59). Commonwealth lending is also expressly provided for (s 60). 12.2.2.3 The Judiciary The judiciary is covered by Part VA which provides for a Supreme Court with ‘all appellate and original jurisdiction that is necessary for the administration of justice in the Territory’ (s 48A(1)). Additional jurisdiction may be conferred on the Court by Commonwealth or ACT legislation (s 48A(2)). Since the Territory’s judicial system is not subject to all the restraints of Chapter III of the Commonwealth Constitution, acting and part-time judicial appointments are made, but 42 R v Toohey (1981) 151 CLR 170 where Wilson J at 279 (with whom Aickin J at 266 agreed) recognised the Administrator to be the representative of the Crown in right of the Northern Territory. 43 Implied in the Commonwealth Constitution: Commonwealth v Colonial Combing Spinning and Weaving Co Ltd (Wooltops case) (1922) 31 CLR 421.

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the Territory, like the States, is prevented from undermining the integrity and independence of its courts vested or capable of being vested with federal judicial power. The scope of this restriction was discussed in Chapter 10.

12.2.3 Commonwealth control The level of potential Commonwealth control in the ACT is greater than that which exists in relation to the Northern Territory. As noted earlier, the Commonwealth retains control of the list of matters in s 23(1) of the ACT Self-Government Act in relation to the Australian Federal Police, defence forces, coining of money, censorship classification, corporations and securities. The Governor-General is also empowered to disallow Territory enactments within six months (s 35(2)), to recommend amendments (s 35(4)), and to dissolve the Legislative Assembly (s 16(1)). None of these powers, which must be exercised on Commonwealth ministerial advice, has ever been exercised. In practice, there is little Commonwealth intervention in the general administration of the Territory.44 One exception to this is in relation to town-planning matters, especially within the parliamentary triangle. The mere existence of these supervisory powers is criticised for creating ‘an essentially anachronistic situation more suited to relations between State and municipal governments than the Commonwealth and a sovereign territory government’.45 Conversely, where an ACT law might purport to influence the Commonwealth, the Commonwealth enjoys at least the same level of immunity as it does in relation to State laws which purport to regulate the Commonwealth.46 More specifically, each House of the Commonwealth Parliament can, by resolution, deny prospectively the application of any ACT enactment to that House, to its members,47 or in the parliamentary precincts as defined by s 3(1) of the Parliamentary Precincts Act 1988 (Cth).48

12.2.4 The future The challenge for the ACT constitutional system is to enhance the capacity of a small Assembly of 17 members to provide both a workable ministry and an effective opposition to ensure accountability. Suggestions have been made to permit the separate election of a ‘Governor’ and the appointment of ministers who are not members of the Assembly.49 This would produce a system akin to 44 For instance, there is little if any contact between the Department responsible for the territories, the Department of Transport and Regional Services, and the ACT administration. 45 R. Follett, ‘Commonwealth–Territory Relations from an ACT Perspective’ (1992) 51 Australian Journal of Public Administration 405, 408. 46 See Re Residential Tenancies Tribunal of New South Wales; Ex parte Defence Housing Authority (Henderson’s case) (1997) 190 CLR 410. 47 The resolution needs to cover all members of the House, and presumably would be confined to their activities as members. 48 ACT (Self-Government) Act 1988 (Cth) s 29. 49 See Report of the Select Committee of the ACT Legislative Assembly on the Report of the Review of Governance (June 1999) 2.6–2.13.

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a local government with an elected mayor. There is little prospect of the ACT ever evolving into a new State of the Commonwealth since s 125 of the Commonwealth Constitution clearly contemplates the seat of Government to remain located within a Commonwealth territory.50 For the ACT to become a State, the Commonwealth would need to determine a new location for the seat of Government within another territory – provided s 125 contemplates such a change.

12.3 Jervis Bay Territory The Jervis Bay Territory comprises a promontory of 70 square kilometres and Bowen Island on the New South Wales coast, about 160 kilometres south of Sydney. In 1995, the area of land granted to the Wreck Bay Aboriginal Community which comprises Booderee National Park, was increased to 90 per cent of the Territory. The remaining area is occupied by the Royal Australian Naval College, HMAS Creswell, the Jervis Bay Village, and several private leases. According to the 2001 census, the total population was 611. This Territory was established to satisfy the requirement of the Seat of Government Act 1908 (Cth) for a seaport for the seat of Government. Agreement was reached in 1913 between the Commonwealth and New South Wales for the surrender to the Commonwealth of this area south of Sydney.51 Subject to statutory approval from both the Commonwealth and New South Wales, the agreement describes the area surrendered and makes provision for certain financial reconciliation in respect of land dealings. Pursuant to this agreement, New South Wales in 1915 surrendered52 the area to the Commonwealth which accepted it by the Jervis Bay Territory Acceptance Act 1915 (Cth). The Commonwealth also had a right to construct a railway from Jervis Bay to the ACT.53 The Commonwealth Minister for Local Government, Territories and Roads is responsible for the direct administration of the Territory. This is provided by the Jervis Bay Administration within the Department of Transport and Regional Services. The Governor-General-in-Council is authorised to make Ordinances for the peace, order and good government of the Territory (s 4F), subject to usual tabling requirements in both Houses (s 4G). However, until altered by Commonwealth Ordinance (s 4C), ACT law (apart from Chapter 2 of the Criminal Code) generally applies in the Territory as if it formed part of the ACT, so far as it is applicable and not inconsistent with Commonwealth Ordinances (s 4A(1)).54 50 In Capital Duplicators (1992) 177 CLR 248, Brennan, Dean and Toohey JJ at 273 cast doubt on the capacity of the ACT ever to become a State; cf Mason CJ, Dawson and McHugh JJ at 266 who left the issue open. See also Spratt v Hermes (1965) 114 CLR 226 at 638; W. H. Moore, The Constitution of the Commonwealth of Australia (2nd edn, Melbourne: Charles F. Maxwell, 1910) 593; the 1929 Report of the Royal Commission on the Constitution, 16. 51 See Schedule to the Jervis Bay Territory Acceptance Act 1915 (Cth). 52 Seat of Government Surrender Act 1915 (NSW). 53 Referred to in Robert R. Garran, ‘The Law of the Territories of the Commonwealth’ (1935) 9 Australian Law Journal 28, 30. 54 Also adopted are ss 6 and 7 of the Seat of Government Acceptance Act 1909 (Cth) and the whole of the Seat of Government (Administration) Act 1910 (Cth) except for ss 9 and 12 (s 4A(2)).

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Powers and functions vested in ACT officials or authorities are exercised by them in relation to the Territory unless the Governor-General otherwise vests the power or function (s 4B). Jurisdiction is vested in the ACT courts as if the Territory forms part of the ACT (s 4D). The sale of Crown lands in the Territory as freehold estate is prohibited (s 5). The residents of Jervis Bay are entitled to vote only in federal elections for ACT senators and as part of the ACT federal electorate of Fraser. As residents of a Commonwealth territory, they possess no franchise to vote in New South Wales elections. In 1991, the Islands in the Sun Report expressed concern with the increasing difficulty in ascertaining which ACT law is applicable to the Territory, and the denial of representation in State and local governments. Since there was no longer any need for the Territory as such, either as a seaport for the ACT or as the location for a nuclear reactor, the Report recommended that the Territory be reincorporated into New South Wales.55 Alternatively it recommended, as an interim measure, the transfer of administration of the Territory to the Shoalhaven City Council.56 To return Jervis Bay to New South Wales requires the approval of the Parliament and the people of New South Wales, since this involves an alteration to the limits of the State within s 123 of the Commonwealth Constitution.

12.4 Northern Territory 12.4.1 Constitutional history The Northern Territory was the unofficial name accorded the northern part of New South Wales which remained after the separation from the colony of the new colonies of South Australia in 1834, Victoria in 1851 and Queensland in 1859. It was bounded on the west by Western Australia. For a short period, it was known as the colony of North Australia.57 This area was eventually annexed to the colony of South Australia by imperial Letters Patent of 6 July 1863 which merely identified the area, not by any name, but simply by degrees of longitude and latitude.58 It was described, however, in the Commonwealth of Australia Constitution Act 1900 (Imp) as the ‘northern territory of South Australia’ and as such was expressly included as part of South Australia in the definition of ‘The States’ in covering clause 6. 55 Report of the House of Representatives Standing Committee on Legal and Constitutional Affairs, Islands in the Sun – The Legal Regimes of Australia’s External Territories and the Jervis Bay Territory (Canberra: Australian Government Publishing Service, March 1991) 6.14.6. See Recommendation 36, 6.14.7, 129. 56 Ibid, Recommendation 37, 6.14.8, 129. 57 Nicholson, above n 2, cites K. T. Borrow ‘‘The Northern Territory of Australia”, “North Australia” and “Alexandra Land”’ (1862–1900)’ (1954) 28 Australian Law Journal 148. 58 Made pursuant to the Australian Colonies Act 1861 (Imp) (24 and 25 Vic. Chapter 44). There had been previous unsuccessful attempts to establish permanent settlements until 1869 when the new town of Palmerston was surveyed, later called Darwin in 1911 on the surrender of the Territory to the Commonwealth: see entry for the Northern Territory in The Australian Encyclopedia (6th edn, Terrey Hills, NSW: Australian Geographic, 1995) Vol 6, 2269.

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Being referred to as ‘a Territory of the State of South Australia’59 has fuelled debate whether the Northern Territory was fully integrated into the colony and State of South Australia.60 However, the High Court at least assumed this was so in Paterson v O’Brien61 when it accepted that the Territory was validly surrendered to the Commonwealth pursuant to s 111 as ‘part of the State’ by South Australia.62 An agreement was reached on 7 December 1907 for the surrender of this northern territory to the Commonwealth.63 Both the surrender64 and acceptance were respectively ratified by the South Australian and Commonwealth Parliaments.65 Section 6 of the Northern Territory (Acceptance) Act 1910 (Cth) accepted the new territory under s 122 as the Northern Territory of Australia from 1 January 1911. It was thereby transformed from being part of a State (and so part of the Commonwealth by virtue of covering clause 6 of the Constitution) to a Commonwealth territory under s 122. The Northern Territory (Administration) Act 1910 (Cth) provided for the government of the Territory directly by the Commonwealth. An Administrator was appointed by the Governor-General to administer the Territory in accordance with ministerial instructions. Laws in the form of subordinate legislation, termed ‘Ordinances’, were made by the Governor-General (s 13). After a short period from 1926 when the Territory was divided into two separately administered territories of North and Central Australia,66 there began a slow evolution towards self-government. The next significant stage occurred in 1947 when the Northern Territory (Administration) Act 1910 (Cth) was amended to establish a Legislative Council composed of 13 members (seven appointed and six elected) to make laws with the Administrator’s assent for the peace, order and good government of the Territory.67 The proportion of elected members increased over time, until in 197468 the Legislative Council was replaced with the Legislative Assembly composed of 19 elected members. Throughout this period, Executive power remained with the Commonwealth. Impetus for the next stage of constitutional evolution came from the 1974 Report of the Joint Commonwealth Parliamentary Committee on the Constitutional Development of the Northern Territory69 and its supplementary report after Cyclone Tracy.70 While these reports recommended a substantial transfer 59 Garran, above n 53, 29. There seems to be no reason why a State cannot designate part of its territory to be a ‘Territory’ for its own administrative purposes, just as local councils are created by the States. There is no constitutional significance in the mere description of ‘Territory’. 60 See Nicholson, ‘The Constitutional Status of the Self-Governing Northern Territory’ (1985) 59 Australian Law Journal 698, fn 3; cf Borrow, above n 57, who argues not fully incorporated as the 1863 Letters Patent were revocable. See also Robert R. Garran in Opinions of the Attorneys-General of the Commonwealth of Australia, Vol 1, 1901–1914, No 341, 435–6. 61 (1977) 138 CLR 276. 62 The Court held that s 111 surrender did not require referendum approval under s 123 for an alteration to the limits of the State: see Chapter 11. 63 Referred to as ‘a constitutional retrogression’: R. D. Lumb, ‘The Northern Territory and Statehood’ (1978) 52 Australian Law Journal 554. 64 Quick and Garran, above n 12, 972 regarded the transfer of the Northern Territory to the Commonwealth (and similarly with the transfer of British New Guinea) would be the Queen placing it in the Commonwealth. 65 Northern Territory (Surrender) Act 1907 (SA); Northern Territory (Acceptance) Act 1910 (Cth). 66 Northern Australia Act 1926 (Cth). 67 Section 4U. 68 Northern Territory (Administration) Act 1974 (Cth). 69 PP 281. 70 PP 134.

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of powers to the Legislative Assembly, all that occurred was the establishment of an Executive Council in 1976 to advise the Administrator. Only members of the Legislative Assembly could be appointed to this Council, but this did not introduce a form of responsible government, as these Executive members acted on behalf of the Commonwealth and were not directly accountable to the Legislative Assembly.71 Finally, a substantial measure72 of responsible government was achieved on 1 July 1978 with the repeal of the Northern Territory (Administration) Act 1910 (Cth) by the Northern Territory (Self-Government) Act 1978 (Cth). Most significantly, this Act established a separate body politic under the Crown in the name of the Northern Territory of Australia with substantial executive power (s 5). Doubts were raised whether s 122 authorised this conferral of self-government to a territory and the creation of a new body politic under the Crown. Similar doubts were later raised in relation to the conferral of self-government for the ACT. Those doubts have been resolved in favour of validity by the High Court in Berwick v Gray73 which was affirmed in Capital Duplicators Pty Ltd v Australian Capital Television.74 The plenary nature of the territories power is clearly wide enough to authorise the conferral of self-government. The designation of the power as ‘exclusive’ to the Commonwealth did not restrict this capacity since it means exclusive of the States. Nor did the principle in In re The Initiative and Referendum Act75 prevent the creation of a new body politic.

12.4.2 Self-government: structure and powers 12.4.2.1 Legislative Assembly Legislative power is vested in the Legislative Assembly which, with the assent of the Administrator or Governor-General, has power ‘to make laws for the peace, order and good government of the Territory’ (s 6). This conferral of power is equivalent to that granted by the Imperial Parliament to the Australian colonies on attaining self-government and involves no impermissible delegation of power by the Commonwealth.76 Unlike the position in the ACT, the requirement of royal assent was not dispensed with in the Northern Territory. Section 7 confers the power to assent or withhold assent to all Bills on the Administrator. Bills on matters outside those for which the Territory has executive authority under s 35, may be reserved by the Administrator for the Governor-General’s pleasure (s 7(2)(a)). Pursuant to s 35, Regulation 4(1) of the Northern Territory (Self-Government) Regulations 1978 71 Nicholson, above n 60, 699. 72 Re Governor, Goulburn CC; Ex parte Eastman (1999) 200 CLR 322 at 331 per Gleeson CJ, McHugh and Callinan JJ. 73 (1976) 133 CLR 603. 74 (1992) 177 CLR 248 at 265–6 per Mason CJ, Deane and McHugh JJ. 75 (1919) AC 935. 76 Leslie Zines, The High Court and the Constitution(4th edn, Sydney: Butterworths, 1997) 161 questions the concept of an abdication of legislative power as noted in Capital Duplicators (1992) 177 CLR 248 at 265 by Mason CJ, Dawson and McHugh JJ.

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(Cth) confers on the Territory ministers executive authority in respect of a long list of matters, ranging from Territory insurance to censorship. The complete list is found in Appendix 2 to this book. By convention, Bills dealing with these matters will only be assented to by the Administrator on the advice of a Territory minister. Bills dealing partly or wholly with matters outside that list – that is, those which remain vested in the Federal Executive – are assented to by the Administrator or reserved for the Governor-General on the advice of a Commonwealth minister.77 These Commonwealth retained matters relate to uranium mining,78 Aboriginal land rights,79 specific national parks80 and conciliation and arbitration.81 What is the position if a mistake is made over this division of executive authority? For instance, a Bill concerned with a matter within Commonwealth residual authority is assented to by the Administrator on Territory advice pursuant to s 7(2)(a), instead of on Commonwealth ministerial advice pursuant to s 7(2)(b). Such a situation was alleged to have occurred in relation to the Administrator’s assent to the Rights of the Terminally Ill Act 1995 (NT). A majority of the Northern Territory Supreme Court (Martin CJ and Mildren J) upheld the validity of the Act in Wake v Northern Territory of Australia on the basis that it fell within three s 35 territory matters.82 Their Honours did not address the issue whether the Act would have been invalid had it dealt with Commonwealth reserved matters, merely noting that if they had found otherwise, ‘other considerations arise’. However, Angel J in dissent found the Act dealt with Commonwealth matters outside s 35 and simply concluded that since assent was not given pursuant to s 7(2)(b) or s 8, the Act was invalid.83 The view that the validity of the Administrator’s assent depends on whether the advice has been provided by the proper ministry is problematic. This places the Administrator and the general public in an invidious position, where reliance is placed on the enactment as having been duly assented to. This may be more a theoretical problem; since the grant of self-government on 1 July 1978, no Bill has involved a Commonwealth matter.84 The Administrator is also empowered to return the Bill, with recommended amendments, to the Legislative Assembly (s 7(3)). Similarly, the Governor-General can return any Bill reserved for their assent to the Administrator with recommended amendments for the consideration of the Assembly (s 8(2)). Within six months of the Administrator’s assent, the Governor-General 77 Northern Territory (Self-Government) Act 1978, ss 7(2)(b) and 32(3). 78 Expressly excluded by Reg 4(2)(a) (see Appendix 2 in this book) – regulated under the Atomic Energy Act 1953 (Cth). 79 Expressly excluded by Reg 4(2)(b) (see Appendix 2 in this book) – regulated under the Aboriginal Land Rights (Northern Territory) Act1976 (Cth). 80 Kakadu National Park and Uluru-Kata Tjuta National Park – regulated under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth). 81 Under the Workplace Relations Act 1996 (Cth) – s 53 Northern Territory (Self-Government) Act 1978 (Cth). 82 Reg 4 (1): ‘maintenance of law and order and administration of justice’, ‘private law’ and ‘the regulation of businesses and professions’. 83 Wake v Northern Territory of Australia (1996) 5 NTLR 170 at 313 per Angel J in dissent, at 300 per Martin CJ and Mildren J. 84 Nicholson, above n 60, 705.

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is empowered to disallow a part or the whole of a law (s 9(1)) and to recommend amendments (s 9(2)). The Administrator is required to table in the Legislative Assembly, within six sitting days, the reasons for any refusal to assent or for any disallowance (s 10). Similar powers are conferred by the Commonwealth and State Constitutions85 where the Queen and Governor have powers to refuse assent or to disallow – but these powers are now regarded as redundant. While they appear to be redundant also in the Northern Territory, where they have never been exercised, there is no suggestion that they might be abrogated by the Commonwealth until statehood is achieved. The Legislative Assembly is empowered to determine its own size but the SelfGovernment Act prescribes single member electorates with a maximum variation in the number of voters of 20 per cent (s 13(5)) and a four-year term (s 17(2)). 12.4.2.2 The Executive The Executive is headed by the Administrator who is appointed by the GovernorGeneral and holds office during the Governor-General’s pleasure (s 32(1)). In appointing an Administrator, the Governor-General acts formally on Commonwealth ministerial advice but, by convention, this is always in accordance with the advice tendered by the Chief Minister. The Administrator is charged with the duty of administering the government of the Territory (s 32(2)). The Act only expressly requires the Administrator to act on the advice of the Commonwealth ministry in relation to those s 35 matters retained within Commonwealth Executive authority, as well as in the exercise of ‘all powers and functions that belong to his office, or that are conferred on him by or under a law in force in the Territory’ (s 32(3)). The Act does not expressly require the Administrator to act on the advice of the Territory ministry86 in relation to Territory matters within s 35; instead, it specifically excludes these matters – as well as the powers and functions in ss 34 and 36 – from the requirement of acting on Commonwealth ministerial advice. Sections 34 and 35 cover respectively the power to determine the number and designations of ministers and the appointment and dismissal of ministers. Nonetheless, it is accepted that the Territory has adopted the Westminster conventions which require the exercise of those powers by the Administrator only on the advice of the Territory ministry – except when exercising a reserve power.87 The only reserve powers which might legitimately be exercised in the Administrator’s personal discretion are the powers in s 36 to appoint and dismiss ministers. An Executive Council, consisting of all the ministers, is required to advise the Administrator. Even in the Territory, as with most Australian Constitutions, the institution of Cabinet and the office of Chief Minister depend on convention. 85 See Chapter 3. 86 Section 33 (1) merely provides for an Executive Council to advise the Administrator. Note s 34 Interpretation Act 1978 (NT) requires any power or function vested in the Administrator by a Territory Act to be exercised with the advice of the Executive Council. 87 Nicholson, above n 2, 56.

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The Administrator alone convenes and presides at meetings of the Council, and may introduce any matter for discussion (s 33). The number of ministers and their respective designations are determined by the Administrator (s 34). As noted earlier, Commonwealth regulations determine the matters in respect of which ministers have executive authority (s 35). Section 36 entrenches the principle of responsible government by confining ministers to those who are members of the Legislative Assembly. Similarly, the requirement of statutory approval for the expenditure of public money is enshrined (s 45). The statutory prescription of these key Westminster conventions is a welcome improvement on their omission from State Constitutions. Conventions are, however, still needed to guide the exercise of the Administrator’s powers in relation to the issue of writs for elections (s 15), the appointment of sessions for the Assembly and its prorogation (s 22), and the appointment of ministers and their dismissal (s 36). This is where the conventions at the State level can be adopted. Whether self-government created a Crown in right of the Territory, as distinct from the Crown in right of the Commonwealth, was not clearly accepted at first.88 In Re Toohey; Ex parte Northern Land Council,89 Wilson J (with whom Aickin J agreed) accepted a separate Territory Crown was created but Gibbs CJ rejected their view. His Honour regarded the Crown in the Territory as the Crown in right of the Commonwealth with the Administrator as the representative of that Crown.90 Certainly, the creation by the Commonwealth of a new emanation of the Crown for the Northern Territory appears to have been a unique constitutional act, only previously performed by the Imperial Parliament.91 But Wilson J and Aickin J saw the relationship between the Territory and the Commonwealth as analogous to that which existed between the Australian colonies and the United Kingdom. The existence of this new emanation of the Crown stems from s 5 of the Self-Government Act which declares ‘The Northern Territory of Australia is hereby established as a body politic under the Crown by the name of the Northern Territory of Australia’. Wilson J considered this provision to be ‘of fundamental and far-reaching importance. It brings into being a new self-governing polity under the Crown’.92 This view is consistent with that expressed in Capital Duplicators Pty Ltd v Australian Capital Territory93 that the Commonwealth can, under s 122, establish a separate territory fiscus. Accordingly, the Administrator is regarded as the representative of a separate Territory Crown, despite having to act on Commonwealth advice in relation to the s 35 Commonwealth matters.94 When exercising executive power, the Administrator must act on the advice of the Territory’s ministry for s 35 matters (as well as 88 Recognised in s 51 of the 1978 Act. See R v Toohey (1981) 151 CLR 170 at 279. 89 Ibid. 90 Ibid 184–5. 91 See Nicholson, above n 60, 698 citing in fn 25 Sawer: ‘The Northern Territory: Constitutional Status, Present and Future’ in Small is Beautiful, Parliament in the Northern Territory, Working Paper No 3 (Canberra: Australian National University, 1981) 93. 92 R v Toohey(1981) 151 CLR 170 at 279. 93 (1992) 177 CLR 248 at 267 per Mason CJ, Dawson and McHugh JJ. 94 R v Toohey (1981) 151 CLR 170 at 278–80 per Wilson J (with whom Aickin J agreed at 266).

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those functions under ss 3495 and 3696 ) and on the advice of the Commonwealth ministry in respect of all residual matters (s 32(3)). The executive power is defined in s 31 of the Self-Government Act which provides: The duties, powers, functions and authorities of the Administrator, the Executive Council and the Ministers of the Territory imposed or conferred by or under [Part VI] extend to the execution and maintenance of this Act and the laws of the Territory and to the exercise of the prerogatives of the Crown so far as they relate to those duties, powers, functions and authorities.

Most significant is the confinement by s 35 of the territorial ministerial authority to those matters conferred by Regulation 4 of the Northern Territory (SelfGovernment) Regulations 1978 (Cth). Originally in 1978, a limited list of matters was prescribed by Regulation 4, but these were soon expanded to confer on the Territory, responsibility for virtually all matters within the power of the State Executives. The remaining areas of Commonwealth responsibility excluded from territorial executive power relate to uranium mining,97 Aboriginal land rights,98 specific national parks,99 and conciliation and arbitration.100 Express reference is also made to the prerogatives of the Crown which are vested in the Executive by s 31 so far as they relate to the duties, powers, functions and authorities vested by the Self-Government Act in the Administrator, the Executive Council and the Ministers. Included within the scope of the Territory’s executive power are, by virtue of being a body politic, the common law capacity to contract, engage in business enterprises, and to sue and be sued. The scope of these executive powers was discussed in Chapter 8 on the Executive. Distinctive to the Territory is the specification of the executive powers vested in the Territory Executive, compared with the general vesting of executive power in the State Executives. Yet the difference may be more apparent than real, if State executive power is confined by the division of legislative power between the Commonwealth and the States. What is distinctive is that the Territory’s legislative power – expressed in plenary terms – is necessarily broader than its executive power over specified matters. In other words, the Assembly can legislate on matters which fall outside the Territory’s executive areas of responsibility. However, this disjunction of power is partly alleviated by several factors: the very small number of matters retained by the Commonwealth; the Administrator must act on the advice of the Commonwealth in assenting to such laws or reserving

95 Determination of number of ministerial offices. 96 The appointment and dismissal of Territory ministers. 97 Expressly excluded by Reg 4(2)(a) (see Appendix 2 in this book) – regulated under the Atomic Energy Act 1953 (Cth). 98 Expressly excluded by Reg 4(2)(b) (see Appendix 2) – regulated under the Aboriginal Land Rights (Northern Territory) Act1976 (Cth). 99 Kakadu National Park and Uluru-Kata Tjuta National Park – regulated under the Environmental Protection and Biodiversity Conservation Act1999 (Cth). 100 Under the Workplace Relations Act 1996 (Cth) – s 53 Northern Territory (Self-Government) Act 1978 (Cth).

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them for the Governor-General’s assent; and the Commonwealth’s paramount power under s 122.101 12.4.2.3 The Judiciary The Self-Government Act makes no provision for the judiciary. The Supreme Court of the Territory of the Northern Territory is established by the Supreme Court Act 1979 (NT) as the superior court of record in the Territory (ss 10 and 12). There are also two types of magistrates’ courts: the Local Court102 to hear civil matters and the Court of Summary Jurisdiction103 for criminal matters. Since the Territory’s judicial system is not subject to all the restraints of Chapter III of the Commonwealth Constitution, acting and part-time judicial appointments are made, but the Territory – like the ACT and the States – is prevented from undermining the integrity and independence of its courts vested or capable of being vested with federal judicial power. The scope of this restriction was discussed in Chapter 10.

12.4.3 Commonwealth control The Territory, both theoretically and in practice, does not enjoy the same level of autonomy as a State. This is clearly evident in the appointment and role of the Administrator. Appointment is by the Governor-General on the formal advice of the Commonwealth, although in practice the appointee is selected by the Chief Minister (s 32(1)).104 Furthermore, the Administrator performs a dual function, acting on both Territory and Commonwealth ministerial advice. The appropriate Commonwealth Minister must instruct the Administrator on non-transferred matters (s 32(3)). This may involve reservation of Bills to the Governor-General whose assent is dependent on the advice of the Commonwealth ministry (s 8). Further, the Commonwealth, acting through the Governor-General, can disallow Territory legislation within six months (s 9).105 These Commonwealth controls are essentially theoretical, given that they rarely, if ever, are exercised. Commonwealth laws override inconsistent Territory laws, not on the basis of s 109, but on the common law principle of repugnancy.106 By virtue of the paramountcy of the territories power in s 122, the Commonwealth retains exclusive power to amend the Self-Government Act and to enact specific legislation where it sees the need to intervene. Both of these occurred in response to the Terminally Ill Act 1995 (NT). There is no process or capacity to enable the Territory itself to change the Act. The most dramatic illustration of the lack of territory autonomy compared with that of the States is the 1997 amendment to the Self-Government Act 101 Nicholson, above n 60, 705. 102 Established by s 4, Local Court Act 1989 (NT). 103 Established by s 41A, Justices Act 1928 (NT). 104 Whether the Commonwealth would simply act on the advice of the Chief Minister to dismiss an Administrator seems unlikely. 105 Nicholson, above n 2, 56, fn 43 suggests that there is a convention that the Commonwealth will not disallow Acts on Territory matters within s 35. No Act has ever been disallowed. 106 See Chapter 5.

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(s 50A) to override the Territory’s euthanasia legislation and to deny legislative capacity to all territories to enact such legislation.107 Such legislative intervention highlights the gulf which remains between a territory, even one on the verge of statehood, and a State. It seems unlikely that any convention could evolve to preclude the Commonwealth from enacting any legislation in relation to its self-governing territories without their consent or request. This convention evolved in relation to imperial United Kingdom law applying to the Commonwealth and the States, but a comparable convention between the Commonwealth and the self-governing territories is not feasible when valid Commonwealth laws extend nationally and override inconsistent State laws. To this extent, the analogous 19th century relationship recognised by Wilson J in Re Toohey; Ex parte Northern Land Council108 between the United Kingdom and the Australian colonies, cannot be applied fully. There is evidence, however, to support a more limited convention which precludes the Commonwealth from interfering in the internal affairs of a self-governing territory without its consent – unless exceptional circumstances arise, such as the euthanasia issue. More likely is a convention that the Commonwealth will not revoke its grant of self-government without the Territory’s consent – unless part of an entirely new constitutional order.109 Commonwealth control of the Northern Territory is further enhanced by deeming those Commonwealth Acts which bind the States or the Crown in right of each of the States, to also bind the Territory and the Crown in right of the Territory unless the Acts specifically provide otherwise (s 51).

12.4.4 Constitutional guarantees Part VI of the Self-Government Act provides for three specific guarantees which are beyond the competence of the Northern Territory Legislative Assembly to alter or abrogate: ● Section 49 provides a freedom of trade, commerce and intercourse between the Territory and the States. The scope of this freedom is intended to be commensurate with the equivalent freedom conferred by s 92 of the Commonwealth Constitution.110 ● Section 50 effectively provides a right to the payment of just terms on the acquisition of property. Like s 51(xxxi) of the Commonwealth Constitution, s 50 denies the power to enact laws effecting an acquisition of property otherwise than on just terms, rather than providing a positive right as such. No similar restriction applies to State power. But s 50(2) purports to restrict the Commonwealth, as distinct from the Territory, from effecting an acquisition of property within the Territory otherwise than on unjust terms.

107 Euthanasia Laws Act 1997 (Cth). 108 (1981) 151 CLR 170 at 280. 109 Nicholson, above n 2, 56. 110 See Chapter 11.

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While in practice this may be observed, it cannot fetter Commonwealth legislative power. A further restriction was added in s 50A in 1997 to prevent the enactment of euthanasia laws, while permitting palliative care and other related procedures (subsection (2)).

12.4.5 Financial arrangements The Second Reading Speech when enacting the Self-Government Act referred to the understanding that while the Commonwealth would continue to provide financial support, the Territory would raise some revenue along similar lines to the States: The Government has always made it clear that associated with the assumption of executive authority must be the responsibility to raise a reasonable level of local revenue using the revenue efforts of the States as a benchmark.111

A non-statutory Memorandum of Understanding agreed to prior to selfgovernment in 1978 between the Commonwealth and the Northern Territory Governments provided special Commonwealth funding arrangements. Since these arrangements were terminated in 1988, the Territory is funded on the same basis as if a State.

12.4.6 Representation Although Territory residents were initially entitled to vote in both South Australian and Commonwealth elections, they lost both franchises when the Territory was surrendered to the Commonwealth in 1911. Public discontent over the lack of parliamentary representation and the closure of Vestey’s meatworks in 1918 culminated in a march in December that year to Government House to demand the removal of the Commonwealth’s Administrator. In response to this ‘Darwin Rebellion’,112 the Commonwealth conferred in 1922 a right to vote for a single non-voting member of the House of Representatives.113 After this, the member’s voting rights gradually expanded until 1968 when full voting rights were conferred. Subsequently, the Commonwealth provided in 1975 for the election of two senators to represent each of the mainland territories.114 In 1977, the right to vote in s 128 referendums was extended to the electors in those territories represented in the House of Representatives. 111 House of Representatives Debate (11 May 1978) p 2260. 112 See F. X. Alcorta, Darwin Rebellion 1911–1919 (Darwin: History Unit, Northern Territory University Planning Authority, 1984). 113 Northern Territory Representation Act 1922 (NT). This followed the recommendation of the Ewing Royal Commission Report in 1920: see A. Heatley and G. R. Nicholson (eds), Selected Constitutional Documents on the Northern Territory (Darwin: Northern Territory Department of Law 1989) 230–3. 114 Upheld in Western Australia v The Commonwealth (1975) 134 CLR 201; Queensland v The Commonwealth (1977) 139 CLR 585.

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12.4.7 The future The Northern Territory awaits its constitutional destiny as a State. In 1998, the Territory’s electorate, not the Commonwealth, ruled out this transformation at a referendum. A further referendum is planned for 2008 in the hope that statehood might be achieved by the 30th anniversary of self-government on 1 July 2008. As noted earlier in Chapter 11, transition from a Commonwealth territory to a new State is constitutionally feasible under s 121 which empowers the Commonwealth Parliament to ‘admit to the Commonwealth or establish new States’. It has been suggested that the Northern Territory could become a State by both admission115 or establishment.116 In any event, constitutional convention requires the approval of the territory electorate before such a transformation occurs. The 1998 referendum in the Northern Territory is clear evidence of that convention. Discussion of the transition of the Northern Territory to statehood has provided the best opportunity for constitution-making in Australia since federation.117 In particular, there has been a focus on the Territory’s Indigenous people to determine how they might be recognised and provided for in whatever constitutional system is devised. Accordingly, the 1998 Draft Constitution recognised ‘rights in respect of language, social, cultural and religious matters’. It also recognised Aboriginal customary law: 1. Aboriginal customary law is recognised as a source of law in the State to be enacted as the written law of the State (within 5 years of the commencement date or such further period as Parliament determines) by the Parliament passing laws in substantial accordance with the results of negotiations and consultations between the State government and the representatives of the traditional Aboriginal structures of law and governance of the Aboriginal peoples of the Northern Territory providing for the harmonisation of the customary law with other laws in force in the State, including the common law. 2. Without limiting the generality of the matters that shall be negotiated mentioned in subsection (1), an Act may provide for: (a) recognition of traditional Aboriginal structures of law and governance; (b) delegation of powers and functions to the appropriate bodies under those structures in relation to the administration and enforcement of law and order in accordance with customary law; (c) co-operative arrangements between institutions and officers of the State (including judicial institutions) and traditional Aboriginal structures of law and governance; and (d) such other arrangements, including matters of Aboriginal governance, ‘as are agreed between the negotiating parties’.118

115 Lumb, above n 63, 559 argued that the Northern Territory would be admitted to the Commonwealth as an autonomous politic with its Constitution intact, while a new State is ‘established’ only when it is created out of an existing State, in which case the Commonwealth needs to create two new Constitutions, one for the new State and one for the reduced original State. 116 Quick and Garran, above n 12, 969. 117 See P. Loveday and P. McNab (eds), Australia’s Seventh State (Canberra: Australian National University, Law Society of the Northern Territory and the North Australia Research Unit, 1988) 135. 118 Denis Burke, ‘Northern Territory: 25 years of Self-Government – Challenges for the Future, Part 2’ (2004) 19 Australian Parliamentary Review 48, 54.

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Other inquiries have been held, particularly in New South Wales119 and Queensland,120 which have explored how the Aboriginal and Torres Strait Islander peoples can be specially recognised in those States’ constitutional systems. Special parliamentary representation is one obvious option.

12.5 External territories An external territory of the Commonwealth is one which is located beyond the mainland of Australia including Tasmania. The Commonwealth currently has seven external territories, three of which have permanent inhabitants with some form of government, while the remaining four are uninhabited except when used mostly for scientific purposes. The inhabited territories are: the Territory of Norfolk Island, the Territory of Christmas Island, and the Territory of Cocos (Keeling) Islands. The uninhabited territories are: the Territory of Ashmore and Cartier Islands, the Australian Antarctic Territory, the Coral Sea Islands Territory, and the Territory of Heard Island and McDonald Islands. Apart from the Australian Antarctic Territory, all the external territories are islands located in the oceans surrounding Australia. Three other external territories became sovereign independent States: the Territory of Papua, and the mandated/trusteeship Territories of New Guinea and of Nauru. It is beyond the scope of this book to explore the historical reasons for the Commonwealth possessing external territories and whether their continued retention as territories is in the best interests of Australia. It is evident their acceptance as Commonwealth territories was motivated by the benefits each would confer on Australia, ranging from maritime and fishing rights, and natural resources, to strategic defence advantages. Since these benefits are still accruing, the central constitutional issue is not whether the external territories ought to be retained, but whether they ought to be retained as Commonwealth territories or else transferred to an adjoining State or mainland territory. For the inhabited territories, the resolution of this issue should depend not simply on whether the benefits each territory confers on Australia will continue if transferred. Rather, given these inhabited territories have been part of Australia for over half a century, the paramount consideration should be the welfare of their inhabitants. This requires an assessment of how the transfer of their territory to an adjoining State or territory would benefit them economically, socially, politically and legally. Meanwhile it is pleasing to note that the Commonwealth’s administration of these external territories is now premised on the basis that the rights of their inhabitants 119 Parliament of New South Wales, Legislative Council Standing Committee on Social Issues, Enhancing Aboriginal Political Representation – Inquiry into Dedicated Seats in the New South Wales Parliament, Report No 18, November 1998. 120 Legislative Assembly of Queensland, Legal, Constitutional and Administrative Review Committee, Hands on Parliament – A Parliamentary Committee Inquiry into Aboriginal and Torres Strait Islander Peoples’ Participation in Queensland’s Democratic Processes, Report No 42, September 2003.

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should be, as far as possible, equivalent to those of their fellow Australians on the mainland. When considering a possible transfer of a territory to an adjoining State, the Commonwealth should be reassured that the width of its legislative and executive powers and the paramountcy of its laws under s 109 will most likely enable it to continue to use the former territory for Commonwealth purposes – albeit subject to any additional constitutional restrictions attracted as part of a State. Most of the Commonwealth’s external territories were originally British possessions acquired in the 19th century before being transferred by the Crown in right of the United Kingdom to the Commonwealth during the 20th century. Chronologically, the following territories were, within the terms of s 122, ‘placed by the Queen under the authority of and accepted by the Commonwealth’: Papua (1902), Norfolk Island (1914), Ashmore and Cartier Islands (1933), Australian Antarctic Territory (1933), Cocos (Keeling) Islands (1955), and Christmas Island (1958). Each placement occurred by an Imperial Order in Council followed by the enactment of Commonwealth legislation to accept the transfer of sovereignty and to provide for the governance of the territory. Both the Territory of Heard Island and McDonald Islands and the Coral Sea Islands Territory were claimed by the Commonwealth unilaterally, and thus ‘otherwise acquired’ within the terms of s 122. The former claim was made initially by an expedition, and after an exchange of Notes between the Commonwealth and British Governments, was confirmed by statute. The latter Territory was claimed by statute. The position with the mandated and trusteeship territories of New Guinea and Nauru is not so clear. The former was held by a majority of the High Court to have been either placed with or acquired by the Commonwealth within s 122 when first given as a mandate to the Commonwealth in 1920.121 Nauru was placed, both as a League of Nations mandated territory and subsequently as a United Nations trusteeship, jointly in Australia, New Zealand and the United Kingdom, although Australia administered the island until it achieved independence in 1968. There is considerable variation in the constitutional development of these inhabited external territories. Papua, New Guinea, and Nauru gradually achieved self-government before independence. The remaining inhabited territories, Christmas Island and the Cocos (Keeling) Islands, are governed directly by a Commonwealth appointed Administrator with the assistance in each territory of a local council. Arrangements are also made with Western Australian authorities for the delivery of State-type services. In contrast, Norfolk Island achieved a limited form of self-government in 1979, although its constitutional future remains unclear. There is a nine-member Legislative Assembly, a Chief Minister, an Executive Council, and an Administrator who not only represents the Commonwealth with its retained functions but is also an integral component of the Norfolk Island 121 Jolley v Mainka (1933) 49 CLR 242 at 250 per Starke J, at 256 per Dixon J (with whom Rich J agreed), contra at 278 per Evatt J.

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Government as head of State. The island’s constitutional future is unclear, given the difficulty in determining whether any consensus exists on the range of options from independence, full self-government or closer integration with Australia. Another key issue is the level of representation in the Commonwealth Parliament for the inhabited external territories. The inhabitants of both Indian Ocean territories are represented in both Houses by inclusion in the federal electoral division of Lingiari in the Northern Territory. Voting is compulsory. In contrast, the inhabitants of Norfolk Island have the optional right to be enrolled in any State electorate with which they have some former connection, or else in the federal division of Canberra. In the absence of any form of local government in the uninhabited territories, the Commonwealth exercises its power directly. The Governor-General is empowered to make Ordinances for the peace, welfare and good government of each territory. And the Department of Transport and Regional Services has responsibility for their administration. The most significant constitutional concern in relation to the uninhabited territories is the provision of an adequate legal regime to protect the territory and to regulate any activities which occur within it. Of particular concern is environmental protection and the regulation of criminal activity. Accordingly, the respective statutes in relation to these territories provide for the extension of the laws of the nearest State or mainland territory, and of the jurisdiction of their courts to deal with any legal issues which arise within or concerning these uninhabited territories.

12.6 Territory of Norfolk Island Norfolk Island is a small volcanic island lying almost midway between Australia and New Zealand, 1676 kilometres from Sydney and 1063 kilometres from Auckland. The Territory122 of Norfolk Island also includes two nearby uninhabited islands, Nepean Island and Philip Island.

12.6.1 Constitutional history123 Norfolk Island was discovered in 1774 by Captain Cook on his second voyage around the world. He named the island after the patron of his voyage, the Duchess of Norfolk. In accordance with Captain Arthur Phillip’s instructions, a settlement was established on the uninhabited island in 1788 to secure it from foreign occupation and later to provide food for Sydney. After abandoning the island in 1814, the second period of occupation occurred from 1825 to 1856 as a notorious penal 122 Unlike other Commonwealth territories, this added designation only appears in Schedule 1 to the Norfolk Island Act 1979 (Cth) and is given only passing reference in the definition of ‘Territory’ in s 4. 123 See the preamble to the Norfolk Island Act 1979 (Cth); Newbery v The Queen (1965) 7 FLR 34 per Eggleston J (Supreme Court of Norfolk Island); Report of the Royal Commission into Matters Relating to Norfolk Island, October 1976, PP 305/1976 (Nimmo Report) 5–64.

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settlement. Initially, the settlement was part of New South Wales until 1844 when it was transferred to the colony of Van Diemen’s Land.124 The granting of self-government in the mid-1850s to the Australian colonies coincided with the closure of the penal settlement on Norfolk Island. Accordingly, the Australian Waste Lands Act 1855 (Imp) empowered Her Majesty by Order in Council to separate the island from the colony of Van Diemen’s Land and to make provision for the government of the island as might seem expedient. At this time, British authorities arranged for the transfer of the descendants of the mutineers of the HMS Bounty from Pitcairn Island to Norfolk Island, having outgrown their former home. Consequently, by an Order in Council of 24 June 1856 (16 days after the arrival of the Pitcairn Islanders) and proclaimed 1 November 1856, Norfolk Island became a distinct and separate settlement, administered by a Governor. The administration of the island was vested, until further order by Her Majesty, in the Governor of New South Wales who also became the Governor of Norfolk Island with ‘full power and authority to make laws for the order, peace, and good government of the said island’ subject nevertheless to such rules and regulations as Her Majesty thought fit to prescribe.125 Pursuant to this power, the Governor of Norfolk Island (as well as Governor of New South Wales) Sir William Denison, enacted the ‘thirty-nine laws’ of 14 October 1857,126 which vested the executive government, in the absence of the Governor, in a Chief Magistrate and two Councillors, all of whom were elected annually by the community. Amendments and additions to those laws could be initiated by the Executive with community approval and took effect on the Governor’s confirmation. Laws on a subject of immediate importance could be acted on without that confirmation. Consequently, a period of local autonomy for nearly 40 years was enjoyed during which the inhabitants of the island managed their own affairs.127 This period of substantial self-government ended in 1895 with the appointment of a Chief Magistrate from New South Wales and the replacement in 1896 of the 39 laws with a new set of 23 laws by proclamation of the Governor of New South Wales and of Norfolk Island. Soon afterwards, an Imperial Order in Council was made on 15 January 1897 which effectively dispensed with the office of Governor of Norfolk Island by vesting the administration of the island in the Governor of New South Wales.128 Consequently, Norfolk Island appears to have become a dependency of New South Wales.129 While not part of New South Wales, the Order in Council referred to the prospect of annexation to New South Wales or to a federal body.130 Regrettably, self-government was not restored to 124 Effected by Letters Patent dated 24 October 1843. 125 The island was not annexed to New South Wales since the Law Officers advised that the Australian Waste Lands Act1855 (Imp) contemplated it as a Crown colony: see D. P. O’Connell and A. Riordan, Opinions on Imperial Constitutional Law (Sydney: Law Book Company 1971) 304, 306–7, 429. 126 Simply entitled the ‘Laws and Regulations for Norfolk Island’. 127 Garran, above n 53, 40. 128 Newbery v The Queen (1965) 7 FLR 34 at 37. 129 Islands in the Sun Report, 7.3.5, 133. Cf J. Q. Ewens, ‘Norfolk Island as Part of the Commonwealth’ (1980) 54 Australian Law Journal 68, 72 and note the reference in fn 17, 71 to a New Zealand attempt to annexe the island in 1886. 130 A new Order in Council was made on 18 October 1900 to refer to the new status of the State of New South Wales.

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the island until 1979. During the intervening period, only various advisory bodies were established.131 On 30 March 1914, an Imperial Order in Council was made to place the island under Commonwealth authority, which the Commonwealth had earlier declared its acceptance of by enacting the Norfolk Island Act 1913 (Cth). This transfer of authority took effect on 1 July 1914. Accordingly, Norfolk Island followed the Territory of Papua as the second Commonwealth external territory to be placed by the Imperial Crown under Commonwealth authority. Within the Norfolk Island community, it has been suggested at times that in agreeing to settle on the island, the Pitcairners were promised self-government and autonomy under the Crown.132 The imperial placement in the Commonwealth, as well as the repeal of the 39 laws in 1896, were unsuccessfully challenged in Newbery v The Queen133 on the ground that the Imperial Crown’s prerogative powers over the island were lost in 1857 with the establishment of a legislature. Eggleston J rejected this argument on the basis that the Crown had reserved to itself by the Order in Council in 1856 the power to revoke any arrangements for the island. His Honour also concluded that the Crown was empowered by the Australian Waste Lands Act 1855 (Imp) to place the island under Commonwealth authority within the scope of s 122. Under the Norfolk Island Act 1913 (Cth) the Governor-General was empowered to make Ordinances for the territory (s 8) and Administrators were appointed to govern the island. An Executive Council advised the Administrator until 1935 when it was replaced with an Advisory Council. The 1913 Act was replaced by the Norfolk Island Act 1957 (Cth) which was amended in 1963 to provide for an elected eight-member Norfolk Island Council to advise the Administrator. Following High Court recognition in Berwick Ltd v Gray134 of the plenary nature of the territories power in s 122 to grant self-government, the Report of the Nimmo Royal Commission in 1976 recommended this occur for the island. The Report’s recommendation to establish an elected Assembly vested with an extensive list of legislative and executive powers was implemented by the Norfolk Island Act 1979 (Cth).135 The preamble to that Act recognised a gradual assumption of self-government, noting: . . . it to be desirable and to be the wish of the people of Norfolk Island that Norfolk Island achieve, over a period of time, internal self-government as a Territory under the authority of the Commonwealth and, to that end, to provide, among other things, for the establishment of a representative Legislative Assembly and of other separate, political and administrative institutions on Norfolk Island.

131 Council of Elders (1897), Executive Council (1903), Advisory Council (1935), and the Norfolk Island Council (1963). See D. Buffett, ‘Democracy in a Bountiful Setting’ (1994) 75 The Parliamentarian – Norfolk Island Supplement 3. 132 See, for example, Time Magazine, 9 September 1991, 8. 133 (1965) 7 FLR 34. Challenge brought as part of an appeal against conviction under the Norfolk Island Council Ordinance 1960 for failing to apply to enrol. 134 (1976) 133 CLR 603. 135 Nimmo Report, above n 123.

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12.6.2 Self-government: structure and powers The constitutional arrangements for the Territory are prescribed by the Norfolk Island Act 1979 (Cth) (the 1979 Act) which serves as the Territory’s Constitution. That Act attempts to create a Westminster system of responsible and representative government under the Crown, represented by an Administrator. Consideration is given below to the peculiar difficulties which arise when implementing such a system within a small community. 12.6.2.1 Legislative Assembly The Legislative Assembly comprises nine elected members (s 31) for a three-year term.136 The 1979 Act prescribes qualifications for election (s 38) and grounds of disqualification (s 39). The Assembly must meet at least once every two months (s 40).137 The Assembly elects two of its members as Speaker and Deputy Speaker. The voting system for Assembly elections is a cumulative system where each elector casts a total of nine votes (as there are nine members) with up to four votes for one candidate.138 Notably, there are no political parties nor majority or opposition groups on Norfolk Island. So debate within the Legislative Assembly is informal with questions permitted and no prescribed time limits – much like an ordinary meeting. Government is conducted with a consensual approach to decision making. Critics of this feature of the island’s governance argue that it has resulted in a lack of effective decision-making and has undermined ministerial responsibility.139 Another viewpoint is that the Assembly uses the government to achieve its ends with each Minister taking their riding instructions from the Assembly.140 Still, there is the potential for executive disunity, given the absence of any principle of Cabinet or Executive solidarity.141 The Assembly is vested with legislative power to make, with the assent of the Administrator or the Governor-General, laws for the peace, order and good government of the Territory (s 19(1)). This power is subject to express restrictions, similar to those imposed on the ACT Legislative Assembly, which prevent: ● the acquisition of property otherwise than on just terms; ● the raising and maintaining of any naval, military or air force; ● the coining of money; and ● the legalisation of euthanasia or assisted suicide (s 19(2)). Significantly the Assembly, rather than the Commonwealth, regulates immigration and customs control. It is the only Australian territory which requires 136 Effectively full-time positions. 137 Although in practice, it meets formally once a month and informally every week in private: the 2003 Report of the Joint Standing Committee on National Capital and External Territories, Quis custodiet ipsos custodes? Inquiry into Norfolk Island Governance (2003 Joint Committee Report) at para 4.8, p 100. 138 Referred to also as the Illinois system. 139 2003 Report above n 137, para 4.19, p 105 and para 4.23, p 107. 140 E. Howard, ‘The Norfolk Island Parliament’ (1986) Part 1 Summary Report of Proceedings, Australasian and Pacific Regional Parliamentary Seminar 184, 190. 141 2003 Report, above n 137, para 4.18, p 104.

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Australian passports for entry. The Assembly is also authorised to declare by law its powers, privileges and immunities provided they do not exceed those of the House of Representatives (s 20). Withdrawals from the Public Account must be authorised by law (s 48). The provisions relating to the assent or disallowance of proposed laws resemble those found in ss 58 and 59 of the Commonwealth Constitution. The Administrator is empowered to assent or to withhold assent in relation to proposed laws which, in his opinion, make provision for or in relation to those matters listed in Schedule 2 or 3 of the Act.142 But the Administrator has no discretion in exercising this power. Where the proposed law, in the Administrator’s opinion, deals with a matter within Schedule 2, the Administrator must act in accordance with the advice of the Norfolk Island Executive Council (s 21(5)). The 93 matters in Schedule 2 are wide ranging across all three levels of government in Australia – from censorship, census and statistics, and telecommunications, to markets and street stalls, bees and apiaries. Where the proposed law, in the Administrator’s opinion, deals with a matter within Schedule 3, or within both Schedules 2 and 3, the Administrator must act on the instructions of the Commonwealth Minister (s 21(6)). Schedule 3 comprises only 10 matters of particular sensitivity or of national importance143 including fishing, customs, immigration, education, forms of quarantine, industrial relations, movable cultural heritage objects and social security. The Governor-General may disallow a law or a part thereof assented to by the Administrator within six months of that assent (s 23). Whenever assent is withheld or disallowed, the reasons for that action must be tabled in the Legislative Assembly (s 24). Laws on matters outside those listed in Schedules 2 and 3 must be reserved for the Governor-General’s assent (s 21). This has occurred in relation to Bills concerned with the Legislative Assembly, drugs, real property and planning. The Governor-General may also introduce, by message of the Administrator, a proposed law for the peace, order or good government of the Territory (s 26) – although this has never occurred. In the event the Assembly does not pass it within 60 days – and provided it does not relate to a matter within Schedule 2 or 3 – the Governor-General is empowered to make an Ordinance in the same terms (s 27(1)). Such an Ordinance can be made without being first introduced in the Assembly if it appears to the Governor-General that it ought to be made as a matter of urgency or for other special reason (s 27(2)). An Ordinance may be made in similar circumstances to provide for additional moneys from the Public Account (s 27(3)) if, for example, the passage of the budget through the Assembly is blocked. All Ordinances made by the Governor-General must be laid before both Houses of the Commonwealth Parliament and are subject to disallowance (s 28). 142 The preamble to the 1979 Act contemplated that parliament would consider within a period of five years an extension of powers for the island; this occurred only incrementally – but the list of matters in Schedules 2 and 3 has increased from 42 to over 90 matters. 143 Second Reading Speech of the Norfolk Island Bill 1978 (Cth), House of Representatives Debate (23 November 1978) p 3312.

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In the event of any inconsistency between an Assembly law and an Ordinance, the latter prevails (s 29). Interestingly, no provision is made for the Legislative Assembly to be dissolved. This contrasts with the position in the ACT where the Governor-General is empowered to dissolve the ACT Legislative Assembly if incapable of effectively performing its functions or is conducting its affairs in a grossly improper manner.144 The 2003 Report of the Joint Standing Committee on National Capital and External Territories, Quis custodiet ipsos custodes? Inquiry into Norfolk Island Governance (2003 Joint Committee Report),145 recommended that the Administrator of Norfolk Island be vested with the same power exercisable on identical grounds in respect of the Legislative Assembly.146 The Report also recommended that the Administrator be empowered to appoint, on the advice of the Commonwealth Minister, a non-elected and non-voting Speaker and Deputy Speaker.147 12.6.2.2 The Executive An Administrator is appointed during the pleasure of the Governor-General to administer the government of the Territory under the authority of the Commonwealth (ss 5–6). Unique among the Commonwealth’s self-governing territories, the Administrator has two distinct constitutional roles: one as the effective head of State for the Norfolk Island Government (the traditional role of a State Governor or Administrator); and the other as the Commonwealth’s representative. This dual role naturally involves certain inherent tensions. The Administrator is required to ‘exercise all powers and perform all functions that belong to his office, or that are conferred on him by or under law in force in the Territory, in accordance with the tenor of his Commission . . .’ (s 7(1)). These italicised words at least incorporate the instructions which accompany the Administrator’s commission of appointment. In exercising these powers and functions, the Administrator is required to act on the advice of the Executive Council of Norfolk Island, the Legislative Assembly, or the Commonwealth Minister. Where the Act does not otherwise specify whose advice is to be acted on, s 7 does: • where, in the Administrator’s opinion, it is in relation to a matter within Schedule 2 – must act on the advice of the Executive Council (s 7(1)(a)); • where, in the Administrator’s opinion, it is in relation to a matter within Schedule 3 – must act on the advice of the Executive Council – except if overridden by the advice of the Commonwealth Minister (s 7(1)(b) and (2)); and • in all other cases – must act on the advice of the Commonwealth Minister (s 7(1)(e)).

144 ACT Self-Government Act 1988 (Cth) s 16(1). 145 December 2003. The title translates to: ‘Who is to guard the guardians?’ 146 Recommendation 24. 147 Recommendation 20.

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While reflecting the fundamental Westminster convention, these requirements to act on advice extend it further by requiring the Administrator to act on the advice of bodies other than the Executive, namely, the Assembly and the Commonwealth Minister. Apart from deciding whether a matter falls within Schedule 2 or 3, these provisions leave no room for any exercise of reserve power by the Administrator. Nevertheless, as noted below, the Administrator is vested by s 13(2) with a reserve power to dismiss a minister in ‘exceptional circumstances’. The Act provides for an Executive Council to advise the Administrator on all matters relating to the government of the Territory (s 11(1)). The Administrator is entitled to attend all meetings of the Executive Council, and usually does. The Executive Council currently comprises four executive members: the Chief Minister and Minister for Intergovernmental Relations, the Minister for Finance, the Minister for Community Services and Tourism, and the Minister for Land and the Environment. The Legislative Assembly determines the number who hold executive office (normally four of the nine members)148 and their designations (s 12). They must be members of the Legislative Assembly and their appointments are made and terminated by the Administrator on the advice of the Assembly (s 13). By convention, those recommended for appointment by the Assembly are those four members who obtained the greatest proportion of the vote. The minister with the highest proportion of the vote is designated the Chief Minister – a position established only by convention. While officially there is no Cabinet, there are closed ‘Meetings of Executives’ which serve a similar function, aided by the Secretary to the Executive Council and the Chief Executive Officer of the Government’s administration. Yet there is no principle of Cabinet solidarity.149 All executive offices become vacant when the Assembly first meets following a general election (s 14(d)). Unlike the ACT, the Chief Minister has no power to dismiss a minister. That power rests with the Assembly who advises the Administrator to dismiss (s 13(1)(b)). Significantly, the Act also vests in the Administrator a reserve power to dismiss a minister, without Assembly advice, ‘if, in his opinion, there are exceptional circumstances that justify his so doing’ (s 13(2)). This power can only be exercised by the Administrator in the exercise of his or her discretion, not at the direction of the Commonwealth Minister (s 7(1)(d)). This reserve power, which exists in no other Australian jurisdiction, has never actually been exercised.150 Whether judicial review is available of any exercise of the power is debatable – particularly in the absence of any considerations or standards to restrict the apparently unrestricted nature of the discretion.

148 This results in a daunting list of ministerial responsibilities allocated to each minister. It is not surprising that this places enormous strain on the system of responsible government. 149 2003 Report, above n 137, para 4.18, p 104. 150 The accepted reserve power in other jurisdictions is confined to the dismissal of the ministry as a whole on the ground of illegality – see Chapter 8. Cf s 16(1) of the ACT (Self-Government) Act 1988 (Cth) which empowers the Governor-General to dissolve the ACT Legislative Assembly ‘[i]f, in the opinion of the GovernorGeneral, the Assembly: (a) is incapable of effectively performing its function; or (b) is conducting its affairs in a grossly improper manner.’ No reserve power appears to arise here in view of s 16A of the Acts Interpretation Act 1901 (Cth) whereby the Governor-General must act on the advice of the Federal Executive Council.

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A recommendation was made by the 2003 Joint Standing Committee Report to extend and clarify this power of dismissal by empowering the Administrator to dismiss a minister or the entire Executive if the Administrator is personally satisfied that they have acted ‘unlawfully or corruptly’.151 While these grounds are close to those which justify an exercise of the accepted reserve power of dismissal of a State ministry, the proposed Administrator’s power goes further by permitting dismissal of a single minister, as distinct from an entire ministry. As noted earlier, the Joint Standing Committee also recommended a power to dissolve the Legislative Assembly where it is ‘incapable of effectively performing its function or conducting its affairs in a grossly improper manner’.152 By making these powers of dismissal and dissolution exercisable at the Administrator’s own discretion, the Joint Standing Committee’s recommendations propose a significant expansion of the reserve power of the Administrator – greater than that which exists in any other Australian jurisdiction. Even the Governor-General’s power to dissolve the ACT Legislative Assembly can only be exercised on Commonwealth ministerial advice.153 The executive power of the Norfolk Island Government is not specifically defined by the Norfolk Island Act 1979 (Cth). The Act does, however, constitute the Norfolk Island Government under the name of the ‘Administration of Norfolk Island’ as a body politic with perpetual succession (s 5(2)). As s 5(3) confirms, this means that the Administration possesses the common law powers to sue and be sued, to contract, to acquire, hold and dispose of real and personal property, and do and suffer all other matters and things a body corporate may do or suffer. The remaining content of the executive power is found in the lists of matters in Schedules 2 and 3 of the Norfolk Island Act 1979 (Cth) in respect of which the executive members are conferred executive authority by s 12(2). 12.6.2.3 The Judiciary Part VII of the Act provides for the Territory’s judicial system which comprises the Supreme Court of Norfolk Island (s 52) and a Court of Petty Sessions made under s 60. The Governor-General is empowered to appoint as Chief Justice or as a Justice of the Supreme Court a person who is already a judge of a Commonwealth court (s 53), usually the Federal Court of Australia. Their security of tenure as a member of the Supreme Court of Norfolk Island is that accorded them by the Commonwealth court of which they are already a member (s 53(5)). The jurisdiction, practice and procedure of the Supreme Court and of the Court of Petty Sessions are provided for in the Supreme Court Ordinance 1960. Appeals from the Supreme Court are provided to the Federal Court of Australia, and then to the High Court.154

151 2003 Report, above n 137, recommendation 24. 152 Ibid. 153 ACT (Self-Government) Act 1988 (Cth) s 16, and Acts Interpretation Act 1901 (Cth) s 16A. 154 Federal Court of Australia Act 1976 (Cth) ss 24(1)(b) and 33.

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12.6.3 Legal regime The Territory’s legal regime comprises: Commonwealth statutes which extend to Norfolk Island; Ordinances made by the Governor-General; enactments of the Norfolk Island Legislative Assembly; Ordinances made by the Governor-General under the Norfolk Island Acts 1913 and 1957; the consolidated laws of the island as published in the New South Wales Government Gazette 24 December 1913; English statutes in force on 28 July 1828 capable of applying to Norfolk Island on 14 April 1960;155 and United Kingdom paramount laws.156

12.6.4 Commonwealth parliamentary representation Representation of the Territory in the Commonwealth Parliament was first provided in 1992, following a recommendation of the Islands in the Sun Report. Until then, it was the only territory where Australian citizens were not entitled to vote in federal elections. The Report recommended that residents who were Australian citizens be given an optional right to enrol.157 Optional rather than compulsory voting was suggested, given ‘strongly held views of elements of the Norfolk Island population, most likely a majority, for whom Commonwealth parliamentary representation is an anathema’.158 Accordingly under the Commonwealth Electoral Act 1918 (Cth), Norfolk Island residents who are Australian citizens, have the option to enrol in either a State federal electorate to which they have a relevant connection159 or, failing such a connection, in the Division for Canberra.160 If enrolled, they also have the right to vote in Commonwealth referenda under s 128 of the Commonwealth Constitution. The Norfolk Island Government opposed the attachment of the island to a single mainland electorate for fear that this would result in a loss of identity.161 The inclusion of less than 2000 voters in a mainland electorate would not deliver effective parliamentary representation of the Territory’s interests, while reinforcing the Commonwealth’s claim to regulate local affairs. Nonetheless, the 2003 Report of the Joint Standing Committee repeated the recommendation of the Nimmo Report162 that Norfolk Island be included in the federal electorate of Canberra and that voting be compulsory.163 155 Judicature Ordinance 1960 (NI). H. E. Renfree, The Federal Judicial System of Australia (Sydney: Legal Books, 1984) 757–8. 156 D. K. Srivastava, ‘Law in Norfolk: The De Facto Position’ (1990) 16 Commonwealth Law Bulletin 634, 637–41; F. C. Hutley, ‘Sources of the Law of Norfolk Island’ 24 Australian Law Journal 108. 157 Report of the House of Representatives, above n 55, Recommendation 39, 7.10.7, 148. 158 Ibid 7.10.5, 147. 159 Whichever first applies: the State electorate where last enrolled, or the State of next of kin, or of birth, or other ‘close connection’. 160 Commonwealth Electoral Act 1918 (Cth) ss 95AA–95AC as a result of the Norfolk Island (Electoral and Judicial) Amendment Act 1992. Once enrolled, voting is then compulsory. 161 Second Reading Speech for Norfolk Island (Electoral and Judicial) Amendment Bill 1992, House of Representatives Debate (25 June 1992) p 4003. Howard, above n 140, 198 noted that in 1978 the Norfolk Island Council which was only an advisory body to the Administrator, attempted unsuccessfully to raise with the United Nations Committee of 24 concerns over the future of the island, in particular, the recommendation of the Nimmo Report (above n 123) to give the island representation in the Commonwealth Parliament by being attached to the federal division of Canberra. 162 Recommendation 3. 163 Recommendations 27 and 29.

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12.6.5 Norfolk Island electoral system Until 2004, the local franchise was confined to residents aged 18 years and over who had resided on the island for 900 days (approximately two-and-a-half years) during the four-year period preceding enrolment.164 Australian citizenship was not required. This position was criticised by the 2003 Report of the Joint Standing Committee165 which repeated two key recommendations made in its earlier report in 2002, Norfolk Island Electoral Matters:166 the expansion of the local franchise in line with the Commonwealth Electoral Act to require Australian citizenship for new enrolments and to be qualified for election to the Legislative Assembly (Recommendation 1); and a six-month residency requirement to be enfranchised, instead of the present period of two-and-a-half years (Recommendation 3). The 2003 Report rejected changes to the franchise, proposed by the Legislative Assembly Amendment Bill 2003 (NI), reducing the period of residence to 12 months during the two-and-a-half-year period preceding the application for enrolment, and requiring Australian, United Kingdom or New Zealand citizenship. The 2003 Report regarded Australian citizenship as vital to Australia’s national interest, given the Norfolk Island Government’s participation in matters which have national significance for Australia (para 4.98). And since the period of residence proposed was longer than that prescribed by other Australian jurisdictions, this violated the right to vote in Article 25 of the International Covenant on Civil and Political Rights.167 Accordingly, the Norfolk Island Amendment Act 2004 (Cth) gives effect to the recommendations of the 2003 Report by amending the Norfolk Island Act 1979 (Cth) to confer in s 39A a right to be enrolled to all persons of 18 years and over who have Australian citizenship and are ordinarily resident within the Territory for six months immediately before enrolling. Subsection 39A(5) expressly overrode the franchise prescribed by subsections 6(1) and (2) of the Legislative Assembly Act 1979 (NI). Given criticisms of the cumulative or Illinois voting system for allowing sectional groups to stack the outcome of an election, the Joint Standing Committee also recommended its replacement with the ‘block vote’ variation of the firstpast-the-post method of voting.168

12.6.6 Referenda The demographics of the island clearly allow for different forms of participatory democracy. Referenda under the Referendum Act 1964 (NI) are not uncommon.169 A limited form of citizen-initiated referendum is provided for, where one-third of the enrolled electors can require a referendum to be held on any question 164 Legislative Assembly Act 1979 (NI), s 6(1). 165 Recommendation 28. 166 June 2002, Canprint, Canberra, Recommendations 1 and 3. 167 See the report of the Human Rights and Equal Opportunity Commission, Territorial Limits: Norfolk Island’s Immigration Act and Human Rights (Sydney: J. S. McMillan Printing Group, 1999). 168 Recommendation 25. 169 Between 1979 and 2003, 15 referenda held, of which four initiated by electors and 11 by the Norfolk Island Legislative Assembly or Government: see the 2003 Report, above n 137, para 4.25, p 109.

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relating to the peace, order and good government of the island, other than one relating to ‘the constitution of the Assembly’ (s 6).170 Referenda can also be instigated by either the Commonwealth Minister or the Assembly on any such matters (without the restriction)(ss 4 and 5), although the Minister can only do so with a view to introducing a proposed federal law relating to the matter (s 4). Voting is compulsory for referenda.171 The accepted practice is that if the referendum question is affirmatively answered (that is, the yes votes exceed the no votes by 10 per cent),172 it is acted on by the Norfolk Island Government.173

12.6.7 Taxation regime Norfolk Island has managed to retain immunity for its residents from Commonwealth taxes, including income tax. This is a political concession on the part of the Commonwealth. The High Court in Berwick Ltd v Gray174 accepted that the Commonwealth could impose income tax on Norfolk Island residents pursuant to s 51(ii) and s 122. In that case, the Court upheld Commonwealth legislation to close a tax avoidance scheme on the island by imposing Commonwealth income tax on residents whose income was applied for or may be applied for a non-resident. The paramount objective of the island’s leadership to maintain its tax haven status underlies, at least in part, their concern to maintain the greatest level of independence – especially financial independence – from the Commonwealth.175 This explains their opposition to any extension of Commonwealth social security and health benefits to the island’s residents, as well as their rejection of significant federal funding of capital projects, like a much-needed port facility. No memorandum of understanding comparable to that reached on the Cocos (Keeling) Islands in 1991 – where the Commonwealth agreed to provide the same level of assistance as on the mainland in return for the imposition of Commonwealth taxes – has ever been agreed to by Norfolk Island. To date, the Norfolk Island Government has insisted on funding itself through its own taxes. For this reason, it has also resisted any attempt by the Commonwealth to confer a federal franchise on its residents. Official reports have been critical of the position taken by the Norfolk Island Government against Commonwealth funding. Following the decision in Berwick Ltd v Gray,176 the Nimmo Report177 in 1976 recommended the extension of Commonwealth income tax to the island’s residents, as well as a limited form of self-government. In response, the Fraser Government conferred self-government by enacting the Norfolk Island Act 1979 (Cth), but did not extend income tax 170 Note this is narrower than the Constitution of the Territory as such. It may prevent a referendum on whether the Assembly should be dissolved: see the 2003 Report, ibid, para 4.32, p 111. 171 Referendum Act 1964 (NI), s 25. 172 Ibid, s 24. 173 This practice was criticised by the 2003 Report, above n 137, para 4.37, p 113 as an abrogation of responsibility. 174 (1976) 133 CLR 603. 175 See the impressions given in the Nimmo Report, above n 123, in section 2(f) 63–4. 176 (1976) 133 CLR 603. 177 Recommendation 39 of the Nimmo Report, above n 123. John Nimmo was the Royal Commissioner.

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liability to the island. The Islands in the Sun Report in 1991 was only prepared to recommend continuation of this position if adequate social services were funded by the Territory.178 However, the Commonwealth Grants Commission later found in 1997 that this condition remained unfulfilled, despite a substantial untapped tax base which could fund social services at an appropriate level.179 A further cost incurred in protecting its tax haven status has been the inability to develop an offshore financial centre (OFC). Such a centre was established in 1966 but a federal assault against tax avoidance forced its closure in the 1970s.180

12.6.8 The future The constitutional relationship between Norfolk Island and the Commonwealth is delicate and fluid. It has been the subject of two significant parliamentary inquiries, both of which have recommended continuation of self-government provided there are improved mechanisms of government accountability and an expansion of representative democracy at both the federal and territory level. If these recommendations are not addressed, future parliamentary inquiries are likely to recommend replacement of self-government with a constitutional arrangement similar to that established in the Territories of Christmas Island and of the Cocos (Keeling) Islands. In those territories, local government functions are performed by a Shire Council while other State-type functions are provided by Western Australian authorities through various service delivery arrangements. Similar agreements with New South Wales or Queensland authorities might be easily negotiated for Norfolk Island. The unique history of Norfolk Island requires that every effort be made to avoid such an outcome. This requires reasonable expectations on the part of all concerned to develop a system of government which adequately addresses the concerns of the entire island community. Emotionally charged statements, such as that made by one of Norfolk’s most famous residents, Dr Colleen McCullough Robinson, in her submission to the Joint Standing Committee on National Capital and External Territories inquiry into Norfolk Island Governance, do little to resolve the problems unearthed by the Committee: We of Norfolk Island are treated by Canberra with arrogance, lack of compassion, wilful misunderstanding, toplofty superiority, and a degree of hardheartedness tantamount to cruelty. Canberra ignores our local referendums, which reflect the views of the majority of the people of Norfolk Island; Canberra blocks our efforts to be self-sustaining; and Canberra is now embarking upon an undemocratic, biased and discriminatory local electoral program that is aimed at reducing Norfolk Island to a shire council, shorn of its last vestige of autonomy, stripped of its right to manage its own affairs for the well-being of Norfolk Island . . .181 178 At 7.20. 179 See Commonwealth Grants Commission, Report on Norfolk Island 1997, 164. 180 Anthony Van Fossen, ‘Norfolk Island and Its Tax Haven’ (2002) 48 Australian Journal of Politics and History 210, 213. 181 Submission No. 4, p 3: <www.aph.gov.au/house/committee/ncet/norfolkgov/subs.pdf> (accessed 11 November 2005).

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More constructive suggestions include the implementation of appropriate mechanisms of government accountability to reinforce public confidence in the integrity of the local political process. For instance, the Islands in the Sun Report recommended extension of the federal Administrative Appeals Tribunal, Ombudsman and Freedom of Information legislation to the Norfolk Island Government until the establishment of a local Administrative Review Tribunal (Recommendation 42).182 It may also be that a more robust political process should be encouraged to provide more decisive decision-making in the interests of the Territory as a whole.183 The first and fundamental recommendation of the 2003 Report of the Joint Standing Committee184 was the continuation of self-government only on the basis that there be ‘timely implementation of the specific external mechanisms of accountability and reforms to the political system recommended in [its] report.’ The specific mechanisms of accountability185 included the adoption of a range of legally enforceable public integrity measures for members of the Legislative Assembly, such as a code of conduct, register of pecuniary and non-pecuniary interests, and tighter ad hoc disclosure requirements of conflicting interests. Enforcement was to be vested in an independent corruption agency, such as the New South Wales Independent Commission Against Corruption (ICAC), with enhanced criminal offences for corruption. The Legislative Assembly in 2004 adopted a code of conduct and register of interests. While the enforcement regime is tighter than in other Australian jurisdictions (except New South Wales), these mechanisms fail to address the responsibilities of members in their ministerial capacity. Further accountability measures recommended were the appointment of the Commonwealth AuditorGeneral as the island’s auditor-general,186 extension of the Joint Committee’s role to examine the financial affairs of the Territory,187 and a requirement for the Territory Government to report annually to the Legislative Assembly, a copy of which to be ultimately tabled in the Commonwealth Parliament for review by the Joint Committee.188 These mechanisms should encourage an honest assessment by the Norfolk Island Government of what, on balance, is in the best interests of the island as a whole, in particular, what level of services is required to meet the needs of the whole community and how they are to be funded. A fundamental problem identified by the Commonwealth parliamentary inquiries is the lack of public confidence in the present decision-making processes of the Norfolk Island Government. Part of this problem was seen as a failure to make difficult decisions. Until confidence is restored, little progress seems possible. The 2003 Joint Committee Report also recommended reforms to the structure of government, particularly to the franchise and to the office of the Chief 182 At 7.3.16 at 135. 183 The 2003 Report, above n 137, para 4.38, p 113 concluded that successive governments have been unable to address long-term strategic needs or carry through unpopular decisions. 184 December 2003. See above n 137. 185 See Recommendations 3–7. 186 Recommendation 14. 187 Recommendation 15. 188 Recommendation 16.

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Minister, along with clarification of the powers of the Administrator in relation to the dismissal of ministers and the dissolution of the Legislative Assembly. The recommendations in relation to the franchise were outlined earlier and have been partly implemented by the Commonwealth.189 The recommended reforms to the office of Chief Minister and to the powers of the Administrator bring the system of government closer in line with that in the ACT and, similarly, codify certain fundamental constitutional conventions of responsible government. Recommendation 17 proposed that the Norfolk Island Act 1979 (Cth) expressly designate the office of Chief Minister as the leader of the government who is to be chosen at the first meeting of the Legislative Assembly after a general election from among its members. The Assembly should be expressly empowered to dismiss the Chief Minister by a vote of no confidence passed by two-thirds of the members, whereupon the Assembly is dissolved (Recommendation 18). The Chief Minister should be expressly empowered to appoint up to three ministers, allocate their portfolios, and dismiss them at any time. As noted earlier, the recommendations in relation to the Administrator enhance the powers of that office to include: the power to appoint, on the advice of the Commonwealth Minister, a non-elected and non-voting Speaker and Deputy Speaker;190 the power to dismiss a Minister or the entire Executive if the Administrator is personally satisfied that they have acted ‘unlawfully or corruptly’; and the power to dissolve the Legislative Assembly where the Administrator is personally satisfied that the Assembly is ‘incapable of effectively performing its function or conducting its affairs in a grossly improper manner’.191 This power of dissolution is in the same terms as that vested in the Governor-General to dissolve the ACT Legislative Assembly192 – except the Governor-General has no reserve power here and must act on the advice of the Commonwealth ministry. By rendering these powers of dismissal and dissolution exercisable at the Administrator’s own discretion, these recommendations propose the conferral of reserve power on the Administrator – wider in scope than that which exists in any other Australian jurisdiction. Other recommendations related to the Legislative Assembly include: four-year terms;193 meetings with seven days’ notice called by the Speaker on the advice of the Chief Minister; and all meetings to be held in public except when debating employment conditions of public officers.194 The official response from the Norfolk Island Government to the 2003 Joint Standing Committee’s Report is that its recommendations ‘would weaken government and democratic processes in Norfolk Island’ as ‘[t]hey would shift power away from the community toward the Administrator and bureaucratic officials, appointed by the Federal Government’.195 The response argues that the Committee failed to appreciate the island’s ‘consultative model of government’ and to understand the ‘democratic mechanisms of government in Norfolk Island, which 189 192 193 195

See 12.6.5. 190 Ibid, Recommendation 20. 191 Ibid, Recommendation 24. ACT (Self-Government) Act 1988 (Cth), s 16(1). Recommendation 23. 194 Recommendation 21. Response to Quis custodiet ipsos custodies? Inquiry into Governance on Norfolk Island, p 1.

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provide for a very close and constant scrutiny of the actions of Ministers and Members of the Legislative Assembly by the community and the Assembly as a whole’.196 In February 2006 the Commonwealth announced the island’s governance arrangements were financially unsustainable and needed to be replaced with either some form of self-government involving greater Commonwealth control or a form of local government. A decision is envisaged by the end of 2006 after extensive consultation with all stakeholders.197

12.6.9 Conclusion Debate continues over the relationship between the Norfolk Island Government and the Commonwealth. At least certain members of the Norfolk Island Government desire a relationship where there is minimal interference from and involvement with the Commonwealth. They argue the Commonwealth should retain power only in relation to matters which are truly in the national interest. All other power should be vested in the Norfolk Island Government. Under this model of self-government, representation in the Commonwealth Parliament is seen as unnecessary and indeed inimical to the interests of Norfolk Island. Some support is said to be derived from alleged promises made by Queen Victoria that when the Pitcairners agreed to accept the offer of resettlement on Norfolk, they were promised self-government and considerable autonomy under the Crown.198 The difficulty with this model of self-government is that a nine-member parliament, four of whom form the Executive, raises difficulties of accountability and the avoidance of conflict of interest. The financial sustainability of selfgovernment is also of concern, especially given a permanent population of less than 2000, and the absence of income tax, land rates and other common forms of government taxation such as payroll tax. Offers of Commonwealth financial assistance are refused for fear that this will further compromise the island’s autonomy. Consequently, government services are limited and under strain in areas of health, aviation, roads and even in the administrative support for Executive members. There are also deficiencies in the island’s legal regime, such as the lack of a statute of limitations, compulsory third-party motor vehicle insurance, breathalyser testing and seat belt regulations. Human rights concerns have also been raised. Legally, the destiny of Norfolk Island lies in the hands of the Commonwealth. Politically, it lies in part in the continuing negotiations between the Commonwealth and the Norfolk Island Government. But so long as doubts remain over 196 Ibid 3. 197 Public Statement 20 February 2006, Norfolk Island’s Future Governance, by the Hon Jim Lloyd, Minister for Local Government, Territories and Roads, <www.ministers.dotars.gov.au/jl/releases/2006/ February/l15 2006.htm> (accessed 28 February 2006). 198 Reported in Time Magazine, 9 September 1991 that members of the Society of Pitcairn Descendants claim that Queen Victoria promised them ownership of the island as an incentive to leave Pitcairn. Society President, Ken Nobbs is reported as saying: ‘We are not Australians and, if it was a choice between integration and independence, it would be independence – the full thing.’ (p 8)

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the capacity of the Norfolk Government to adequately represent the range of different views of its residents on the future governance of the island, these inter-governmental negotiations alone will not culminate in any lasting solution. Whether a consensus is achievable is unclear. But as the submission199 of the former Commonwealth Attorney-General, Mr R J Ellicott QC, to the 2003 Joint Standing Committee inquiry observed, the residents of the island, given their diverse and unique cultural background, will have a different perspective to mainland Australians on how they should be governed.

12.7 Indian Ocean Territories: Christmas Island and the Cocos (Keeling) Islands Beside their relative geographical proximity 900 kilometres apart in the Indian Ocean, the Territories of Christmas Island and of the Cocos (Keeling) Islands share several unique features. They were each British possessions as part of the Settlement of Singapore; each lacked an indigenous people but were populated by imported ethnic Chinese or Malay workers; each was accepted as a Commonwealth territory for the benefits they conferred: phosphate (Christmas Island) and an airstrip (Cocos (Keeling) Islands); in respect of each, the Commonwealth has entered into arrangements with Western Australia for the provision of specific services and the exercise of certain powers, including judicial power by the courts of that State;200 and each fall under the authority of a single Administrator who has responsibility for the governance of both territories. Despite being deemed part of Australia by s 17(a) of the Acts Interpretation Act 1901 (Cth), both territories (along with the Territory of Ashmore and Cartier Islands), are currently excised from the Australian Migration Zone.201 Prior to this, both territories became the focus of national attention in relation to the arrival of asylum seekers to their shores. Both territories are represented in the Commonwealth Parliament as if part of the Northern Territory. For the House of Representatives, their electors are enrolled in the federal seat of Lingiari in the Northern Territory, while they vote for the two senators who represent the Northern Territory in the Senate.202 According to a recent report of the Joint Standing Committee on the National Capital and External Territories, ‘the Commonwealth’s preferred long-term solution for the territories is the incorporation of the Indian Ocean Territories (IOTs) into an existing State or territory, with Western Australia as the preferred option’.203 The Committee noted though the lack of consultation with the resident population of these territories over the adoption of this policy. Indeed, it received 199 Dated 29 April 2003. 200 See the Indian Ocean Territories (Administration of Laws) Act 1992 (WA). 201 Migration Amendment (Excision from Migration Zone) Act 2001 (Cth). This restricts any person who unlawfully enters Australia through these territories from making a valid visa application. 202 Commonwealth Electoral Act 1918 (Cth), ss 40(7) and 48(2C). 203 Para 2.6 of the Indian Ocean Territories: Review of the Annual Reports of the Department of Transport and Regional Services and the Department of the Environment and Heritage (August 2004).

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submissions which argued instead for a form of limited self-government for a single new territory, called the Indian Ocean Territory, with an elected legislative assembly. This was seen as overcoming the lack of political representation at the territory level as distinct from the local government and federal levels which were covered. Meanwhile the Committee was advised that the Commonwealth Government was undertaking a major reform process in relation to the service delivery, administrative and management arrangements to replicate the position as if the territories were part of Western Australia.204

12.7.1 Territory of Christmas Island Christmas Island is situated in the Indian Ocean, approximately 380 kilometres south of Java Head and approximately 2650 kilometres from Perth. It has an area of 135 square kilometres, rising to 360 metres, surrounded by a rugged coastline of cliffs. The uninhabited island was named on Christmas Day 1643 by Captain William Mynors as he sailed past, leaving to William Dampier the honour of first landing ashore in 1688. The island remained uninhabited until the discovery of phosphate deposits. Then it was annexed by the United Kingdom in 1888 and placed under the Governor of the Straits Settlements before being incorporated in the Settlement of Singapore in 1900. A 99-year mining lease was granted by the United Kingdom to the Christmas Island Phosphate Company in 1891 which imported ethnic Chinese and Malays to work the phosphate mines. In 1957, the island was made a separate Crown colony from the Colony of Singapore before being placed under Commonwealth authority as a territory on 1 October 1958.205 After transfer to the Commonwealth, the island continued as a company town run by the British Phosphate Commissioners and later by the Phosphate Mining Company of Christmas Island, both of which acted as managing agents for the Christmas Island Phosphate Commission which was jointly owned by the Australian and New Zealand Governments. The Malay and Chinese workers were treated harshly by the British Phosphate Commissioners.206 The island’s current ethnic mix reflects this migration history with 60 per cent Chinese, 25–30 per cent Malays and 10–15 per cent European. While limited phosphate mining continues, much of the island now constitutes the Christmas Island National Park. Proposed developments on the island include a spaceport for launching satellites. The principal enactment is the Christmas Island Act 1958 (Cth) which empowers the Governor-General to make Ordinances for the peace, order and good government of the Territory (s 9). One Administrator is now appointed by the Governor-General for both Indian Ocean Territories. The Administrator – who acts on the advice of the Federal Minister for Territories, Local Government and 204 Ibid 2.7. 205 This transfer was effected by a series of Orders in Council and statutes: Imperial Order in Council (13 December 1957), Christmas Island (Request and Consent) Act 1957 (Cth), Christmas Island Act 1958 (Imp), Imperial Christmas Island (Transfer to Australia) Order in Council 1958, and Christmas Island Act 1958 (Cth) – effective 1 October 1958 (celebrated as Territory Day). 206 Second Reading Speech, Christmas Island Administration (Miscellaneous Amendments) Bill, Vol 138, House of Representatives Hansard (5 September 1984) pp 664–5.

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Roads – and the Official Secretary reside on Christmas Island. In addition, the Shire of Christmas Island has an elected Council comprising a President, Deputy President and eight councillors. The Council was first established pursuant to the Local Government Act 1995 (WA) (CI) in 1993. While local government matters are the responsibility of the Shire Council, responsibility for most State-level matters has been delegated to Western Australian authorities by ‘service delivery arrangements’ (SDAs).207 This leaves a limited range of services for the Territory’s Administration to provide through the Department of Transport and Regional Services208 and other Commonwealth Departments.209 The legal regime between 1955 and 1992 was a complex amalgam of English paramount statutes and common law, Singapore and Commonwealth law, and local Ordinances. It was substantially simplified by the Territories Law Reform Act 1992 (Cth) which repealed all laws in force in the Territory except for specified Ordinances in the Schedule, and replaced them with certain Commonwealth laws and all Western Australian law capable of being applied as in force from time to time. This applied Western Australian law can be amended, repealed or suspended by Ordinance made by the Governor-General.210 All non-judicial powers in applied Western Australian laws are vested in the Commonwealth Minister for Territories.211 On the abolition of the Supreme Court of the Territory in 2002, all territory jurisdiction was transferred to the courts of Western Australia (s 14H).

12.7.2 Territory of Cocos (Keeling) Islands The Cocos (Keeling)212 Islands comprise 27 small coral islands located in the Indian Ocean, over 2770 kilometres north-west of Perth. Although their total land area is only 14 square kilometres, the airstrip on West Island provides them with a strategic advantage as the ‘sentry box’ of the Indian Ocean. By comparison with the rugged cliffs of Christmas Island, the highest point on the Cocos (Keeling) Islands is a six-metre sand dune. Only two islands are inhabited: Home Island, originally settled by an Englishman, Alexander Hare, in 1826; and West Island, settled by Captain John Clunies Ross in 1827 who had worked for Hare. Clunies Ross obtained sole possession of both islands in 1831 before their annexation by the United Kingdom in 1857. Like Christmas Island, they later formed part of the Straits Settlement and of the Settlement of Singapore in 1903.213

207 Section 8H of the Christmas Island Act 1958 (Cth) authorises the Commonwealth to enter into these arrangements with Western Australia for their officials and authorities to exercise powers and functions in relation to the island. For the list of matters covered by these SDAs: see <www.dotars.gov.au/ terr/xmas/index.htm> (accessed 25 August 2005). 208 Such as electricity, water and sewerage, health services, airport and port management. 209 Such as police, immigration, customs and excise. 210 Christmas Island Act 1958 (Cth), s 9. 211 Ibid, s 8G. 212 Captain Keeling visited the islands in 1609 and his name is included to distinguish the islands from Cocos Island which lies in the eastern Pacific Ocean between Costa Rica and the Galapagos Islands: House of Representatives Hansard (8 June 1955) p 1530. 213 This history is covered in G. M. Kelly, ‘Constitutional Confusion in the Cocos Islands: The Strange Deliverance of Lim Keng’ (1983) 13 Federal Law Review 229.

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Despite British annexation, the Clunies Ross family, which established extensive copra plantations, effectively ran the islands until the 1970s. Meanwhile, the islands became a Commonwealth territory in 1955 on the transfer of sovereignty by the United Kingdom to the Commonwealth.214 As with Christmas Island, the transfer of authority was authorised by imperial enactment rather than by Order in Council. It appears Australia accepted this transfer to secure its airstrip on West Island and to deny control to Singapore and Indonesia.215 Before their transfer to the Commonwealth, the islands were listed in 1947 as a non-self-governing (British) territory under Chapter XI of the United Nations Charter. Accordingly, when they became a Commonwealth territory, Australia assumed the responsibilities under Chapter XI to ensure the advancement of the population, the development of self-government, and the provision of periodic reports to the Secretary-General of the United Nations. After United Nations missions to the islands in 1974 and 1980, the enrolled Cocos Islanders in 1984 exercised an Act of self-determination under United Nations supervision, choosing overwhelmingly to integrate with Australia, rather than gain independence or enter a ‘free association’216 with Australia. Their decision was subsequently approved by resolution of the United Nations General Assembly.217 Integration involved Australia’s undertaking to accord the inhabitants of the islands equal rights to those on the mainland. Meanwhile, the dominance of the Clunies Ross family was significantly reduced in 1978 when the Commonwealth purchased their entire land holdings, originally acquired from Queen Victoria by indenture in 1886, except for their home, Oceania House, and five hectares of land on Home Island. Even this remaining holding was acquired in 1983 before the islanders exercised their right to self-determination. The principal Act, the Cocos (Keeling) Islands Act 1955 (Cth), empowers the Governor-General to make Ordinances for the peace, order and good government of the Territory (s 12). The Administrator of the Territory now acts also as Administrator of the Territory of Christmas Island. From 1979 until 1992, an elected Cocos (Keeling) Islands Council advised the Administrator and was responsible for municipal functions. Responsibility for local government matters is now vested in an elected Shire Council of seven members.218 Similar service delivery arrangements to those made for Christmas Island have been arranged 214 Cocos (Keeling) Islands (Request and Consent) Act 1954 (Cth), Cocos Islands Act 1955 (UK), Cocos (Keeling) Islands Act 1955 (Cth) – effective 23 November 1955. 215 M. Mowbray, ‘The Cocos (Keeling) Islands: A Study in Political and Social Change’ (1997) 51 Australian Journal of International Affairs 383, 385. 216 This option entailed Australia assuming responsibility for defence and foreign affairs, while internal regulation would be vested in the islands’ community. 217 Resolution 39/30. For an account of this significant development in international law, see: ‘International Legal Notes’ (1985) 59 Australian Law Journal 238; J. Brown (ed), ‘Australian Practice in International Law 1984–1987: Sovereignty, Independence, Self-Determination’ (1984–1987) 11 Australian Yearbook of International Law 171, 179–84; P. Tahmindjis, ‘Australia, the Cocos Islands and Self-Determination’ (1985) 1 Queensland University of Technology Law Journal 177. 218 Local Government Ordinance 1992 made under the Cocos (Keeling) Islands Act 1955 (Cth) to amend the Local Government Act 1960 (WA) (CKI). See Mowbray, above n 215, 389–90 for the difficulties faced by the Council having to review all new laws before being tabled in parliament.

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by the Commonwealth for the provision of a wide range of services to the islands by Western Australian authorities. This leaves the Department of Transport and Regional Services, through the Administrator, responsible for a similar limited range of matters.219 The Cocos islanders are mostly Malay descendants whose forebears were brought over to work on the copra plantations under oppressive conditions. As an Islamic community, they lead a traditional life on Home Island. An attempt is made to protect this unique feature among the Commonwealth territories by providing in s 18 of the Cocos (Keeling) Islands Act 1955 (Cth) that: The institutions, customs and usages of the Malay residents of the Territory shall, subject to any law in force in the Territory from time to time, be permitted to continue in existence.

While this confers no constitutional protection from Commonwealth legislation, it restricts the powers of the Administrator, the Commonwealth Government and the Shire Council from failing to recognise and respect their institutions, customs and usages. In 1991, the Islands in the Sun Report expressed concern over the denial of certain basic human rights, such as punishment by whipping, lack of legal services and legal aid, non-compliance with International Labour Organisation (ILO) convention rights, and a legal regime which was not readily ascertainable or accessible.220 In response to this criticism, a Memorandum of Understanding was signed by the Commonwealth and Cocos Islander leaders in 1991 to provide for mainland equivalent living standards, services and wages in return for equivalent mainland charges, rates and taxes. Social security benefits were also extended to the island. The complexity of the Territory’s legal regime was addressed by the Territories Law Reform Act 1992 (Cth). Prior to this reform, there was, as in Christmas Island, a complex range of laws221 which French J described in Re Clunies-Ross; Ex parte Totterdell and Another as ‘Byzantine in its complexity’.222 Following the recommendation of the Islands in the Sun Report,223 the 1992 Act repealed all laws in force in the Territory except for specified Ordinances in the Schedule (s 8) and incorporated all Western Australian law capable of being applied as in force from time to time (s 7A). This applied Western Australian law can be amended, repealed or suspended by Ordinance made by the Governor-General.224 All nonjudicial powers in applied Western Australian laws are vested in the Commonwealth Minister for Territories.225 As for Christmas Island, the Supreme Court of the Territory was abolished in 1992 (s 15AAG) with jurisdiction transferred to the Western Australian courts (s 15AAB). 219 See <www.dotars.gov.au/terr/cocos/cocos2.htm> (accessed 25 August 2005). 220 At 78–84. See further criticism by French J in Re Clunies-Ross; Ex parte Totterdell (1989) 82 ALR 475. 221 For instance, it included Ordinances in force in Singapore on 31 December 1957. 222 (1988) 82 ALR 475 at 487. 223 Islands in the Sun Report, see n 55. Recommendation 17 at 93 was that Western Australian law apply with necessary modifications. 224 Cocos (Keeling) Islands Act 1955 (Cth) s 12. 225 Ibid, s 8G.

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12.8 Uninhabited territories 12.8.1 Territory of Ashmore and Cartier Islands The Ashmore and Cartier Islands are four coral and sand cays, located in the Timor Sea 320 kilometres off the north-west coast of Australia and 100 kilometres south of the Indonesian island of Roti. They are the closest Commonwealth territory to Indonesia. The United Kingdom annexed the Ashmore Islands in 1875 and Cartier Island in 1909. The Commonwealth accepted their transfer from the United Kingdom in 1933 to regulate fishing.226 The islands were annexed by Commonwealth legislation and deemed to be part of the Northern Territory. On the granting of self-government to the Northern Territory in 1978, the islands returned to direct Commonwealth control.227 The principal Commonwealth enactment remains the Ashmore and Cartier Islands Acceptance Act 1933 (Cth) which empowers the Governor-General to make Ordinances for the peace, order and good government of the territory.228 The laws of the territory comprise Commonwealth law (s 8) as well as those in force in the Northern Territory from time to time.229 The Minister may arrange with Northern Territory officials and authorities to exercise powers in relation to the Territory.230 Jurisdiction is conferred on the courts of the Northern Territory.231 Although the islands were originally accepted as a territory for control of fishing,232 they are significant today for their location near the Jabiru oil field in the Timor Sea and for generating their own continental shelf and fishing zone close to Indonesia. Since the Commonwealth will derive significant income from mining in the Timor Sea, this will affect any decision to transfer the islands to the Northern Territory.233

12.8.2 Australian Antarctic Territory The Australian Antarctic Territory comprises around 6.1 million square kilometres234 of that part of the continent of Antarctica immediately south of Australia. Excluded from this area is a strip of French territory known as Adelie Land. This area of Antarctica, having been claimed by the United Kingdom in 226 Imperial Order in Council 23 July 1931; Ashmore and Cartier Islands Acceptance Act 1933 (Cth) as from 10 May 1934. 227 Ashmore and Cartier Islands Acceptance Amendment Act 1978 (Cth) inserted s 9(1) in the Ashmore and Cartier Islands Acceptance Act 1933 (Cth) to empower the Governor-General to make Ordinances for the good government of the Territory. 228 Ashmore and Cartier Islands Acceptance Act 1933 (Cth) s 9. 229 Ibid s 6. 230 Ibid s 11A. 231 Ibid s 12. 232 Garran, above n 53, 29. 233 Prime Minister Hawke affirmed Commonwealth control in the public interest: House of Representatives Debate (1984) pp 762–3. However, incorporation in the Northern Territory was recommended by the Report of the House of Representatives Standing Committee on Legal and Constitutional Affairs, above n 55, Recommendation 4, 31. 234 Said to be 42% of the continent: W. Fletcher, ‘Enforcing Laws in a Remote Location – Antarctica’ in Cunningham et al. (eds), Environmental Crime: Proceedings of a Conference held 1–3 September 1993, Hobart (Canberra: Australian Institute of Criminology, 1995).

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1908 and previously administered as part of the Atlantic Falkland Islands Territory, was placed under Commonwealth authority by a United Kingdom Order in Council and accepted by the Commonwealth: s 2 of the Australian Antarctic Territory Acceptance Act 1933 (Cth).235 According to Sir Robert Garran, the primary reason for acquiring this territory in 1933 was to control whaling in the adjacent seas following the signing of the 1931 International Convention for the Regulation of Whaling.236 Today, scientific research is its primary function, conducted at three permanent research stations on the mainland at Mawson, Davis and Casey, as well as on Macquarie Island. The validity in international law of the Commonwealth’s claim of sovereignty over the Australian Antarctic Territory has been debated, since only four countries have accepted the claim.237 Nonetheless, the distinguished international law jurist, Mr Lauterpacht QC, in 1977 regarded Australia’s claim as soundly based in international law on the basis of discovery and occupation.238 The Antarctic Treaty Act 1960 (Cth) gives effect to the Antarctic Treaty of 1959, Article IV of which essentially prevents the terms of the treaty being used, or any activity occurring during the currency of the Treaty from being relied on, to assert or deny sovereignty.239 Section 4, the only specifically operative provision of the 1960 Act, extends territory law to Australian citizens who are scientific personnel on exchange to other parts of Antarctica, while immunising non-Australian citizens from territory law who are on scientific exchange to the Territory. The principal enactment is the Australian Antarctic Territory Act 1954 (Cth) which adopted the same legal regime as that adopted the year before for the Territory of Heard Island and McDonald Islands.240 Accordingly, all prior law ceases to operate (s 5), while ACT law (including Jervis Bay criminal law) applies (s 6) and Commonwealth laws only apply if expressed to do so (s 8). The ACT courts have jurisdiction (s 10). The catalyst for this clarification of the legal regime was the establishment of a permanent base at Mawson. A readily ascertainable system of law was needed to cope with any legal issues which might arise there. Difficulties arose the year before over certain fatalities on Heard Island and McDonald Islands because of the lack of an adequate legal regime which would permit a coronial inquiry and the registration of deaths.241 The Australian Antarctic Territory Act 1954 (Cth) empowers the GovernorGeneral to make Ordinances for the peace, order and good government of the Territory (s 11), subject to the usual requirements of tabling in both Houses (s 12). Direct Commonwealth regulation in relation to the Territory is primarily 235 The United Kingdom Order in Council was proclaimed to take effect on 24 August 1936. 236 Garran, above n 53, 29. 237 D. W. Grieg (ed), ‘Australian Practice in International Law 1978–1980’, 8 Australian Yearbook of International Law 302, 306–7; Fletcher, above n 234. 238 Evidence given to the Parliamentary Sub-committee on Territorial Boundaries and extracted in Grieg, ibid. 239 J. Crawford and D. R. Rothwell, ‘Legal Issues Confronting Australia’s Antarctic’ (1992) Australian Year Book of International Law 53. 240 Heard Island and McDonald Islands Act 1953 (Cth). 241 Second Reading Speech, House of Representatives Debate (22 September 1954) p 434.

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directed to environmental protection; in particular, the implementation of four international conventions to which Australia is a party: the Protocol on Environmental Protection to the Antarctic Treaty (the Madrid Protocol); the Convention on the Conservation of Antarctic Marine Living Resources; the Convention for the Conservation of Antarctic Seals; and the Convention for the Prevention of Pollution from Ships. Implementing these conventions are: the Antarctic Treaty (Environment Protection) Act 1980 (Cth); the Antarctic Marine Living Resources Conservation Act 1981 (Cth); the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth); and the Antarctic Mining Prohibition Act 1991 (Cth).242 In 1992, the Report of the House of Representatives Committee on Legal and Constitutional Affairs on Australian Law in Antarctica243 recommended that the law of a single jurisdiction replace the matrix of laws currently in place for the Territory. In line with the approach taken in the Islands in the Sun Report, the closest mainland jurisdiction was recommended, namely, that of Tasmania (Recommendation 5). Inadequacies in the current regime were identified in relation to tourism regulation and environmental protection. This Report highlighted the difficulties in the enforcement of Australian law in these isolated territories, such as the need to extend the powers of arrest and detention to station leaders at bases such as Mawson.244

12.8.3 Coral Sea Islands Territory The Coral Sea Islands Territory comprises all of the islands within an area of 780,000 square kilometres of the Coral Sea bounded in its extremities by the outer edge of the Great Barrier Reef and longitude 159 10 E between latitudes 12S and 30 3S.245 Except for the staffed meteorological station on Willis Island, the islands are uninhabited. The significance of the Territory for the Commonwealth is that it extends Australia’s maritime boundaries (particularly in relation to New Caledonia), enables the regulation of shipping routes, and facilitates protection of the Great Barrier Reef.246 The Territory, like the Heard and McDonald Islands, was claimed or ‘otherwise acquired’ in 1969 by the Commonwealth, rather than ‘accepted’ within the terms of the territories power in s 122. The claim was made legislatively in s 3 of the Coral Sea Islands Act 1969 (Cth). The Commonwealth wanted to claim the islands before the Second World War but doubts were raised by the United Kingdom whether sovereignty could be claimed since they were not capable of occupation and use. The 1958 United Nations Convention on the Territorial

242 Fletcher, above n 234, 148–9. 243 PP 252/92. 244 Criminal Procedures Ordinance 1993 – which appoints the leaders at the stations of Casey, Davis and Mawson as special constables and allows charges to be laid electronically with an ACT magistrate and heard upon return – referred to in Fletcher, above n 234, 150 and 154. 245 They were enlarged in 1997: Environment, Sport and Territories Legislation Amendment Act 1997 (Cth). 246 H. Burmester, ‘Outposts of Australia in the Pacific Ocean’ (1983) 29 Australian Journal of Politics and History 19.

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Sea and Contiguous Zone removed these doubts by defining an island as ‘a naturally-formed area of land, surrounded by water, which is above water at high tide’ (Article 10). Accordingly, the Commonwealth concluded that by its own actions it had established sovereignty according to international law.247 A further area of 1880 square kilometres of seabed around Elizabeth and Middleton Reefs was claimed by amendment to the Coral Seas Islands Act 1969 (Cth) in 1997. The principal enactment remains the Coral Sea Islands Act 1969 (Cth) which empowers the Governor-General to make Ordinances for the peace, order and good government of the Territory (s 5(1)), subject to any Commonwealth statutes which expressly apply (s 6). Usual requirements for tabling Ordinances apply (ss 7–7C). The Application of Laws Ordinance 1973 applies applicable laws of the ACT as laws of the Territory, other than Commonwealth laws which otherwise do not extend to the Territory. Apart from Ordinances made by the GovernorGeneral under s 5 and Commonwealth statutes which extend to the Territory under s 6, those laws previously in force in the Territory, before becoming a territory, continue to apply (s 4). The Islands in the Sun Report recommended that the Commonwealth identify those laws previously in force.248 Jurisdiction, except for matters arising under the Petroleum (Submerged Lands) Act 1967 (Cth), is vested in the Supreme Court of Norfolk Island which may sit in the Territory, in Norfolk Island or in Australia (s 8). The Islands in the Sun Report recommended that the Commonwealth discuss with the Queensland Government the future status of the Territory, the possible application of Queensland law and jurisdiction, and even possible incorporation in Queensland.249 As well, it recommended that the Territory be assessed as a national park.250

12.8.4 Territory of Heard Island and McDonald Islands Heard Island and the McDonald Islands are in the sub-Antarctic zone, 4100 kilometres south-west of Fremantle, midway between Australia and South Africa. A maritime delimitation agreement exists with the French Kerguelen Islands 440 kilometres north-west of the Territory. After being abandoned by American sealers in the 1880s, the United Kingdom asserted sovereignty by granting whaling licences in 1910 and 1926. The Australian National Antarctic Research Expedition claimed sovereignty over these islands on behalf of Australia in 1947 which was recognised retrospectively by an exchange of notes with the United Kingdom in 247 H. Burmester, ‘Island Outposts of Australia’ in Australia’s Offshore Maritime Interests (Canberra: Australian Centre for Maritime Studies, 1985) 55 and 57. 248 Recommendation 30 at 5.2.8, 106. 249 Recommendation 31 at 5.7.7, 109. 250 Recommendation 33 at 5.8.12, 111. So far, two nature reserves were proclaimed in 1987: Lihou Reef and Coringa-Herald National Nature Reserve, and the Elizabeth and Middleton Reefs Marine National Nature Reserve.

COMMONWEALTH TERRITORIES

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1950. A statutory regime was subsequently enacted: Heard Island and McDonald Islands Act 1953 (Cth).251 This was the first territory independently acquired by the Commonwealth within the third of the options specified in s 122 (that is, ‘otherwise acquired’). Since then, the only other territory so acquired is the Coral Sea Islands Territory in 1969.252 However, the basis for the Australian claim over the islands depends on acts of continuing sovereignty which are difficult to maintain over uninhabited islands.253 Originally, they were important for obtaining scientific weather data and for their strategic position in relation to Antarctica and South Africa.254 In more recent times, their significance has also related to their 200 nautical mile fishing zone.255 The Report of the House of Representatives Committee on Legal and Constitutional Affairs on Australian Law in Antarctica (PP252/92) recommended discussions with Tasmania for the possible incorporation of Heard Island and McDonald Islands in that State (Recommendation 11). The principal enactment remains the Heard Island and McDonald Islands Act 1953 (Cth) which empowers the Governor-General to make Ordinances for the peace, order and good government of the Territory (s 10). The laws in force in the Territory (other than criminal laws) are those in force from time to time in the ACT as if the Territory formed part of the ACT. The criminal law in force in the Jervis Bay Territory is similarly adopted (s 5). Commonwealth Acts only extend if expressed to do so (s 7). All previous laws cease to exist (s 4), while jurisdiction is vested in the courts of the ACT (s 9).

12.9 Former territories 12.9.1 Papua New Guinea The first Commonwealth territory was the Territory of Papua which was placed under Commonwealth authority in 1902 by the United Kingdom256 and was duly accepted by the Papua Act 1905 (Cth).257 This territory occupied the 251 The Second Reading Speech refers to the United Kingdom transferring its sovereignty to the Commonwealth and that by Australia establishing effective Australian control, the Commonwealth had acquired the territory: House of Representatives Debate (18 March 1953) pp 1199–200. The 1953 Act was probably prompted by certain fatalities which the Speech refers to as occurring on Heard Island the previous year when no clear legal regime applied to allow for a coronial inquiry and registration of deaths. 252 The former ‘acquired’ territories, New Guinea and Nauru, were not claimed as such by the Commonwealth, but were placed under its authority as mandated and trusteeship territories. 253 Burmester, above n 247, 58; D. J. Millard, ‘Heard and McDonald Islands Act, 1953’ (1953) 1 Sydney Law Review 374. Cf S. Kaye, ‘An Examination of Australian Sovereignty over the Heard and McDonald Islands Territory’ [1990] Australian International Law News 14, who concludes at 18 that Australia can establish sufficient title. 254 See House of Representatives Debate (18 March 1953) p 1200. 255 Brought to international prominence in September 2003 when an Australian naval vessel chased the Uruguay-flagged Viarsa 1 across the Indian Ocean for illegally fishing Patagonian toothfish within that zone. 256 By Letters Patent dated 18 March 1902. 257 Effective as from 1 September 1906 after resolutions from both Houses of the Commonwealth Parliament indicated they were prepared to accept the territory.

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south-eastern quarter of the island of New Guinea near the tip of Queensland’s Cape York. Known before this as British New Guinea, the colony of Queensland had sought to annexe it in 1883. Although the United Kingdom immediately renounced this attempt, it proclaimed the territory as a British Protectorate in 1884 before formally annexing it in 1888.258 This was done as part of a European carve-up of the island with the north-eastern quarter becoming German New Guinea and the western half of the island becoming Dutch Irian Jaya. Imperial Letters Patent of 8 June 1888 established a Constitution for the Protectorate comprising an Administrator, an Executive Council and a Legislative Council. The Administrator’s instructions required him to report to and to seek advice from the Queensland Governor, whose role was analogous to that of the colonial secretary.259 Under the Papua Act 1905 (Cth), the Territory was governed by a Lieutenant-Governor, appointed by the Governor-General and advised by an Executive Council. A Legislative Council, comprising the Lieutenant-Governor, the Executive Councillors and certain non-official members, was vested with legislative power to make Ordinances for the peace, order and good government of the Territory. Following the defeat of Germany in the First World War, the Commonwealth acquired260 in 1920 a League of Nations mandate over the former German New Guinea, as well as a mandate over Nauru.261 Both were C-class mandates, which conferred complete legislative and administrative power with obligations to promote the wellbeing of the people, prohibit both the slave trade and the supply of intoxicating liquor, and ensure freedom of conscience as well as the free exercise of religion.262 The New Guinea mandate given to ‘His Britannic Majesty for and on behalf of the Government of the Commonwealth of Australia’, to be known as the Territory of New Guinea, was accepted in advance by the New Guinea Act 1920 (Cth).263 An Administrator was appointed; the Governor-General was vested with the power to make Ordinances for the Territory; and all German laws ceased to apply.264 In 1932, an Executive Council and Legislative Council were appointed in line with that provided for the Territory of Papua.265 In 1946, the Territory of New Guinea became a United Nations trusteeship under Commonwealth authority to be exercised in accordance with the provisions of the United Nations Charter. Pursuant to the trusteeship agreement, the

258 Garran, above n 53, 29. Note the north-eastern part of the island was annexed by Germany in 1884 as German New Guinea. 259 Strachan v Commonwealth (1906) 4 CLR 455 at 461–2 per Griffith CJ. 260 Within s 122 – Jolley v Mainka (1933) 49 CLR 242. 261 Under the Covenant of the League of Nations 1919. 262 Garran, above n 53, 30. 263 Proclaimed to commence 9 May 1921. In relation to s 122, different bases for acquiring the territory recognised in Jolley v Mainka (1933) 49 CLR 242 at 250 per Starke J considered it as a territory ‘otherwise acquired by the Commonwealth’; at 256 per Dixon J (with whom Rich J agreed) regarded it as placed by the King under Commonwealth authority; at 278 Evatt J rejected both these bases – as a mandated territory it was not acquired in any sense and therefore not a territory at all within s 122 – but the power to accept the mandate derived from the external affairs power s 51(xxix). 264 Laws Repeal and Adopting Ordinance 1921. 265 Garran, above n 53, 38–9.

COMMONWEALTH TERRITORIES

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Papua And New Guinea Act 1949 (Cth)266 joined the Territory of Papua with the Territory of New Guinea into an administrative union, where the former remained a Crown possession and the latter a United Nations trust territory. This union, called the Territory of Papua and New Guinea, then progressed gradually towards independence. In 1963, a House of Assembly replaced the Legislative Council. The territory was renamed Papua New Guinea, the year before self-government was granted in 1973. The United Nations General Assembly resolved in 1974 that the trusteeship of the Territory of New Guinea would cease on the date sovereign independence was attained. This occurred on 16 September 1975 with the Commonwealth renouncing its sovereign rights by the Papua New Guinea Independence Act 1975 (Cth).

12.9.2 Nauru Nauru is a coral island in the Pacific Ocean, 3000 kilometres north-east of Australia, with an area of 21.2 square kilometres. As the world’s smallest independent republic, Nauru’s capacity to function as a sovereign State remains in doubt. Adding to this doubt is the predicted rise in the world’s oceans as a result of climate change which would submerge the island altogether. Until the First World War, Nauru was part of the German Marshall Islands Protectorate. The League of Nations mandate for Nauru issued in 1919 was in slightly different terms from that for the former German New Guinea, in that it was vested in ‘His Britannic Majesty’, that is, the British Empire, not just in the Commonwealth. This occurred because Australia, New Zealand and the United Kingdom assumed ownership of the island’s phosphate deposits and vested these in a Board of Commissioners to confine the sale of phosphate to their own countries for home consumption. Accordingly, an agreement was reached between the rival governments, ratified by their parliaments,267 that Australia would appoint the first administrator for five years with subsequent appointments approved by all three governments. After that, however, all administrators were to be appointed by the Commonwealth.268 After the Second World War, the island became a United Nations trust territory still under the joint authority of Australia, New Zealand and the United Kingdom, although administered by Australia. On the basis of this joint authority, Professor Lumb argued that Commonwealth power over Nauru derived from its external affairs power (s 51(xxix)) and not s 122.269 The Nauru Act 1965 (Cth) established a Legislative Council, an Executive Council, and a judicial system. By s 4(2) of the Nauru Independence Act 1967 (Cth), the Commonwealth of Australia declared that it ‘shall not exercise any powers of legislation, administration or jurisdiction 266 Upheld under s 122 rather than under s 51(xxix) in Fishwick v Cleland (1960) 106 CLR 186 at 197. An earlier Act, the Papua–New Guinea Provisional Administration Act 1945 (Cth), began this union. 267 Nauru Island Agreement Act 1919 (Cth). 268 Garran, above n 53, 30. 269 R. D. Lumb, ‘Territorial Changes in the States and Territories of the Commonwealth’ (1963) 37 Australian Law Journal 172, 175.

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in and over Nauru’. Accordingly, the island gained independence with effect from 31 January 1968. Nonetheless, a judicial link remains between the two nations with a right of appeal still available in certain cases from the Supreme Court of Nauru to the High Court of Australia (Cth).270 This right of appeal was recently upheld by the High Court in Ruhani v Director of Police (through the Secretary of Justice as Director of Public Prosecutions) as an exercise of original jurisdiction by the High Court within s 76(ii) of the Commonwealth Constitution, being a matter arising under Commonwealth law, the Nauru (High Court Appeals) Act 1976 (Cth).271 270 Nauru (High Court Appeals) Act 1976 (Cth) s 5. The right to appeal is regulated by the terms of the Agreement of 6 September 1976 between the Governments of the Commonwealth and Nauru, found in the Schedule to the Act. 271 (2005) 219 ALR 199.

APPENDIX 1 Constitutional Conventions adopted by Resolution of the Australian Constitutional Convention, Brisbane 29 July–1 August 1985∗

A. B.

C.

D.

E.

F.

G. H.

The basic principle is that the Ministry has the confidence of the House of Representatives. Following a general election in which the Government is defeated, the Governor-General, having taken the advice of the outgoing Prime Minister as to the person who the outgoing Prime Minister believes can form a Ministry that has the confidence of the House of Representatives, appoints as Prime Minister the person who, in his opinion, can form a Ministry that has the confidence of the House of Representatives. If the Prime Minister resigns, the Governor-General, having taken the advice of the resigning Prime Minister as to the person who the Prime Minister believes can form a Ministry that has the confidence of the House of Representatives, appoints as Prime Minister the person who, in his opinion, can form a Ministry that has the confidence of the House of Representatives. If the Prime Minister dies in office, the Governor-General, having taken the advice of the next most senior Minister as to the person who that Minister believes can form a Ministry that has the confidence of the House of Representatives, appoints as Prime Minister the person who in his opinion can form such a Ministry. If following a defeat in the House of Representatives, the Prime Minister, acting in accordance with Practice F, advises the Governor-General to dissolve the House of Representatives or to send for the person who the Prime Minister believes can form a Ministry that has the confidence of the House of Representatives, the Governor-General acts on the advice. In advising the Governor-General for the purpose of Practice E, the Prime Minister acts in accordance with the basic principle that the Ministry should have the confidence of the House of Representatives and if, in his opinion, there is another person who can form a Ministry which has the confidence of the House of Representatives, he advises the Governor-General to send for that person. The Governor-General appoints and dismisses other Ministers on the advice of the Prime Minister. The resignation of a Prime Minister following a general election in which the government is defeated or following a defeat in the House of Representatives terminates the commissions of all other Ministers, but the death of a Prime 489

490

I. J.

K. L.

M.

N.

O.

P. Q. R.

APPENDIXES

Minister or his resignation in other circumstances does not automatically terminate the commissions of the other Ministers. The Governor-General dissolves the House of Representatives only on the advice of the Prime Minister. When a Prime Minister who retains the confidence of the House of Representatives advises a dissolution of the House of Representatives, the GovernorGeneral acts upon that advice. ... All advice tendered by the Prime Minister to the Governor-General in connection with a dissolution of the House of Representatives or a dissolution of both Houses of Parliament and the Governor-General’s response thereto, should be committed to writing and published before or during the ensuing election campaign. In advising a dissolution, the Prime Minister must be in a position to assure the Governor-General that the government has been granted sufficient funds by the Parliament to enable the work of the administration to be carried on through the election period or that such funds will be granted before the dissolution. Subject to the requirements of the Constitution as to the sittings, the GovernorGeneral acts on prime ministerial advice in exercising his powers to summon and prorogue Parliament. In advising a prorogation, the Prime Minister must be in a position to assure the Governor-General that the government has been granted sufficient funds by the Parliament to enable the work of the administration to be carried on through the period of prorogation or that such funds will be granted before the prorogation. ... ... In the exercise of his constitutional powers and responsibilities, the GovernorGeneral always has the right to be consulted, to encourage and to warn in respect of Ministerial advice given to him.∗

∗ Item No B1, Structure of Government (Conventions of the Constitution) – Proceedings of the Australian Constitutional Convention, Brisbane, 29 July–1 August 1985, 389–91 (paragraphs K, P and Q deleted here as of no significance to the States or self-governing territories).

APPENDIX 2 Northern Territory (Self-Government) Regulations 1978 (Cth) – Reg 4

Matters in respect of which Ministers of the Territory have executive authority (1)

Subject to subregulations (2) and (4), the Ministers of the Territory are to have executive authority under section 35 of the Act in respect of the following matters: Remuneration, allowances and other entitlements in respect of services of members of the Legislative Assembly, members of the Executive Council and Ministers of the Territory, including matters in respect of which enactments may be made under section 54 of the Act Territory insurance Territory banking Taxation, including stamp duty Provision of rural, industrial and home finance credit and assistance The Public Service of the Territory Courts (including the procedures of the courts and the remuneration of the judiciary but not including the construction, at Alice Springs, of buildings for use by superior courts) Legal aid Maintenance of law and order and the administration of justice Correctional services Police Private law The legal profession Administration of estates and trusts Civil liberties Inquiries and administrative reviews (including matters relating to a Territory ombudsman) Markets and marketing Corporate affairs Marketable securities Consumer affairs

491

492

(2)

APPENDIXES

Sales and leases of goods, supply of services, and security interests in or over goods Prices and rent control Industry (including forestry, fisheries, pastoral, agricultural building and manufacturing) Regulation of businesses and professions Tourism Printing and publishing Labour relations (including training and apprenticeship and workers’ compensation and compulsory insurance or indemnity therefor) Industrial safety Mining and minerals (including gases and hydrocarbon fuels) Land, public and private (including internal waters) Land use, planning and development Civil aviation within the Territory Surface transport regulation (including traffic control, carriers, railways, roads and bridges, vehicle registration and compulsory third party insurance, driver licensing and railway and road safety) Ports and harbours Marine navigation Environment protection and conservation (including parks, reserves and gardens and preservation of historical objects and areas) Flora and fauna Fire prevention and control Water resources Energy planning and regulation Public utilities Public works Registration of land titles, instruments, and births, deaths and marriages Local government Housing Public health Education Territory archives Child, family and social welfare Museums, libraries and art galleries Scientific research Recreation, entertainment and sport Community, cultural and ethnic affairs Lotteries, betting and gaming Liquor Firearms, explosives and hazardous and dangerous substances Civil defence and emergency services Censorship Subject to subregulation (6), a matter specified in subregulation (1) shall not be construed as including or relating to:

APPENDIX 2

(3)

(4)

(5)

(6)

493

(a) the mining of uranium or other prescribed substances within the meaning of the Atomic Energy Act 1953 and regulations under that Act as in force from time to time; or (b) rights in respect of Aboriginal Land under the Aboriginal Land Rights (Northern Territory) Act 1976. Subject to subregulations (2) and (4), the inclusion of any matter in subregulation (1) (whether with another matter or as a separate matter) does not derogate from or affect the generality of any other matter specified in that subregulation. A matter specified in subregulation (1) shall be construed subject to the provisions of this regulation, the Act and any other Act and regulations under another Act in force in the Territory, and so as not to be inconsistent with those provisions, to the intent that, where such a matter would, but for this subregulation, have been construed as being so inconsistent, it shall nevertheless be a matter for executive authority under section 35 of the Act to the extent to which it is not so inconsistent. The Ministers of the Territory are also to have executive authority under section 35 of the Act in respect of the following matters: (a) matters in respect of which enactments may be made under sections 12 and 13 and Part V of the Act; (b) matters in respect of which duties, powers, functions or authorities are expressly imposed or conferred by or under another Act in force in the Territory, or by or under an enactment or an agreement or arrangement referred to in paragraph (f), on the Administrator or a Minister or officer of the Territory; (c) matters under an enactment (including the making of regulations, rules, by-laws and other instruments) made for the purposes of, and to the extent provided by, such another Act that expressly provides for the making of such an enactment; (d) the making of instruments (including regulations, rules or by-laws) under enactments other than those referred to in paragraph (c) or (f), not being instruments making provision for or in relation to a matter referred to in paragraph (a), (b), (c) or (d) of subregulation (2) (sic); (e) matters under instruments made under regulations, rules or by-laws; (f) agreements and arrangements between the Territory and the Commonwealth or a State or States, including the negotiation and the giving effect to any such agreement or arrangement by the Territory by way of enactment, regulations or other instrument, or otherwise; (g) enactments making provision in general terms in relation to a matter specified in subregulation (1) and only incidentally extending to a matter referred to in subregulation (2); (h) matters incidental to the execution of any executive authority vested in the Ministers of the Territory. Subregulation (2) does not apply to a matter specified in subregulation (1) if the matter is also included in the matters specified in subregulation (5).

APPENDIX 3 Australian Capital Territory (Self-Government) Act 1988 – Schedule 4

Matters concerning which the Executive has power to govern the Territory Section 37 Remuneration, allowances and other entitlements in respect of services of members of the Assembly, the Chief Minister, the Deputy Chief Minister, Ministers, the Presiding Officer, the Deputy Presiding Officer, and the holders of offices established by or under Assembly Law Territory insurance Territory banking Taxation Provision of rural, industrial and home finance credit and assistance The public service Legal aid Correctional and remand services Private law Administration of estates and trusts Civil liberties and human rights Inquiries and administrative reviews (including matters relating to a Territory Ombudsman) Markets and marketing Consumer affairs Sales and leases of goods, supply of services, and security interests in or over goods Control of prices and of rents Industry, including primary production Regulation of businesses, professions, trades and callings (excluding the legal profession) Tourism Printing and publishing Industrial relations (including training and apprenticeship and workers’ compensation and compulsory insurance) Occupational health and safety Exploration for, and recovery of, minerals in any form, whether solid, liquid or gaseous 494

APPENDIX 3

495

Territory Land as defined in the Australian Capital Territory (Planning and Land Management) Act 1988 Use, planning and development of land Civil aviation Regulation of transport on land and water (including traffic control, carriers, roads, tunnels and bridges, vehicle registration and compulsory third party insurance, driver licensing and road safety) Environment protection and conservation (including parks, reserves and gardens and preservation of historical objects and areas) Flora and fauna Fire prevention and control Water resources Use and supply of energy Public utilities Public works Registration of instruments Registration of births, deaths and marriages Local government Housing Public health Public safety Education Territory archives Welfare services Territory museums, memorials, libraries and art galleries Scientific research Recreation, entertainment and sport Community, cultural and ethnic affairs Gambling Liquor Firearms, explosives and hazardous and dangerous substances Civil defence and emergency services Territorial censorship, except classification of materials Landlord and tenant Co-operative societies The Public Trustee and the Youth Advocate Matters in respect of which the Assembly may make laws under section 24 Matters in respect of which powers or authorities are expressly conferred on the Chief Minister, the Deputy Chief Minister, a Minister or a member of the public service by or under any law in force in the Territory (including an enactment or subordinate law) or an agreement or arrangement referred to in paragraph 37(c) Matters provided for by or under a law made by the Assembly under another Act that expressly provides for the making of such a law Making instruments under enactments or subordinate laws Matters arising under instruments made under enactments or subordinate laws

496

APPENDIXES

Entering into, and implementing, agreements and arrangements with the Commonwealth, a State or the Northern Territory Matters incidental to the exercise of any power of the Executive Law and order Legal practitioners Magistrates Court and Coroners Court Courts (other than the Magistrates Court and Coroners Court)

APPENDIX 4 Ten Lessons from the Crisis over the Governor-General, Dr Peter Hollingworth (May 2003)∗

(1) The background of the appointee should be thoroughly checked, following a public process of consultation. It should be a bipartisan appointment. (2) A religious leader should not be appointed to avoid the perception of a church– State relationship which the Constitution expressly forbids in s 116. (3) An appointment as Governor-General should not be accepted if this is likely to arouse personal attacks against the appointee. (4) If personal attacks are made, a written response may be required from the Governor-General. If necessary, an independent arbiter should be appointed to assess any serious allegations. This function could be performed by a Council of constitutional advisors (see paragraph 8 below). This reduces the opportunity for trial by media. (5) Past conduct is relevant to maintaining public confidence in the office. It will usually be judged on the basis of contemporary standards. (6) The Government and the Opposition parties must realise that as soon as either side of politics withdraws support for the Governor-General, the incumbent’s resignation is inevitable. The capacity to perform the functions of the office impartially and in a politically neutral way is fatally undermined by such a loss of confidence. (7) Before the Government or the Opposition withdraws their support, they must be satisfied that there are verified grounds which render the incumbent unfit for the office of Governor-General. Such a position is reached when there is such a loss in public confidence that the Governor-General is reasonably seen to be unable to perform the ceremonial and constitutional duties of the office. (8) Verification of allegations ought to be undertaken by a small Council of independent constitutional advisors. Such a Council should be permanently in place to advise the Governor-General; its members appointed jointly by the Prime Minister and the Leader of the Opposition. (9) The office of Governor-General lacks any formal constitutional protection to prevent arbitrary removal. Other officeholders, such as judges and statutory officials, enjoy security of tenure until removed by the Governor-General-inCouncil on an address from both Houses of the Commonwealth Parliament for either proved misbehaviour or incapacity. Confining removal on these grounds,

497

498

APPENDIXES

however, cannot be applied to the Governor-General because, unique among public officeholders, the incumbent must retain the highest level of public confidence as de facto head of state. Unless serious allegations are quickly answered satisfactorily to the suggested Council of constitutional advisors so as to restore public confidence, the incumbent should resign. (10) Failure to resign, when warranted, damages the office of Governor- General. ∗ Extract from Gerard Carney, ‘A Unique and Precarious Office: The Office of the Governor-General’, (2002) April, Legal Eagle, pp 6–7.

Index

Aboriginal customary law, 35–6, 458 reconciliation, 31–2 accountability, 20, 41, 50, 65–6, 85, 283, 300, 446 Norfolk Island, 472, 473, 475 ACT Law Reform Commission, 147 Administrative Appeals Tribunal, 473 Administrators, 80, 271, 278 Anson, W. R., 183 appropriation power, 85–8, 89–91, 421 Ashmore and Cartier Islands, 380, 397, 406, 476, 481 Australia Acts 1986, 13, 28, 47, 66–74, 136 amendment of, 71, 72, 74 characterisation test, 202, 204, 333, 344 effect of, 145–6, 270 entrenchment under, 199, 200 extraterritoriality, 220–2 factors leading to enactment of, 67–8 legislative package, 68–9 legislative power, 103, 116, 118, 334 manner and form, 159–79 prerequisites of section 6, 161–78 republic, 331–2 repugnancy, 141 royal assent, 83 Australian Antarctic Territory, 380, 397, 481–3 environmental protection, 483 Australian Capital Territory, 148, 395, 405, 437–47 Advisory Council, 439 appointment and dismissal of ministers, 304 Bill of Rights, 30, 206 Chief Minister, 442, 443 Commonwealth control, 446 Commonwealth territories power, 438 Constitution, 30, 86, 437–40 constitutional history, 437–40 dissolution of the Legislative Assembly, 101, 443, 444 electoral system, 206, 439

enactment of legislation, 79 entrenchment, 151, 204–6 Executive, 257, 309, 321, 440, 443–5, 447 executive power, 303–5, 444–5 extraterritoriality, 210, 253 finance, 445 future of, 446–7 Governor-General, 305, 441, 442, 443, 444 judicial protection, 378–9 judiciary, 440, 445–6 Legislative Assembly, 205, 439, 440–2, 443 legislative power, 113, 440 manner and form, 205 no representative of the Crown, 78, 304, 442 parliamentary privilege, 99 parliamentary triangle, 446 prorogation, 101 referendum requirement, 205, 208 representation in Commonwealth Parliament, 433, 439 repugnancy, doctrine of, 430 responsible government, 444 restrictions on power, 427–32 royal assent, 32, 80, 83 royal prerogative powers, 309, 445 seat of government, 28, 314, 394, 399–402, 437–40, 447 self-government, 79, 147, 403, 418, 439, 440–6 statutory protection of residents, 426 Supreme Court voting rights, 433, 439 Westminster principles, 445 Australian Constitutions Act (No 2) (1850), 42, 43, 50 Australian Loan Council, 11 Australian Natives’ Association, 62 autocratic rule, 37–9, 268 autrefois acquit and autrefois convict doctrines, 241, 248

499

500

INDEX

Bagehot, W., 277, 293, 294, 322 Bailey, Kenneth, 7, 260, 266 Balfour Declaration, 260, 263, 290 Bashir, Governor Marie, 308 Bentham, Jeremy, 38 Bigge Reports, 38 Bill of attainder, 354, 355, 357, 360 Bill of Rights, 30, 111, 112, 165, 206 Bjelke-Petersen, Premier Joh, 26, 283, 286, 349 Blackstone, William, 137, 139, 141, 306 Commentaries, 137, 139, 306 Bogdanor, Dr Vernon, 267, 273, 274 Boilermakers’ principle, 365 Boothby, Justice, 47, 143, 151, 166–8, 181 Auld v Murray, 181 Driffield v Registrar-General, 180 Re Ware; Ex parte Bayne, 180 boundaries, land, 211–12 boundaries, sea, 212–15 Bowen, Sir George, 55, 260 Bryce, Lord, 183, 278 Cabinet, 258, 298–9 Campbell, Sir Walter, 38, 283, 286 State Governors, 248, 260, 273, 274, 309 Canada, 27, 68, 227, 233, 250, 253, 309, 325 Charter of Rights and Freedoms, 156 dominion status, 260, 263 executive power, 252, 325 refusal of dissolution, 291 responsible government, 45, 46, 259 caretaker governments, 288, 302–3 Ceylon, 187, 188, 345, 346, 348, 371 Charter of Justice (NSW), 37, 38, 39, 48 Chief Ministers, 302 choice of law rules, 242, 243–7, 251 Christmas Island, 380, 394, 397, 406, 460, 476–7, 478 Administrator, 477 consultation of residents, 476 judicial powers, 380, 478 legal regime, 478 phosphate mining, 477 representation in Commonwealth Parliament, 433, 461, 476 citizen initiated referenda, 84 citizenship, Australian, 26, 265, 412, 419 Norfolk Island, 470 Clunies Ross family, 478, 479 coastal waters, 234, 235–7 Cocos (Keeling) Islands, 380, 394, 397, 405, 406, 460, 476–7, 478–80

consultation of residents, 476, 479 executive, 479 recognition of Malay customs, 480 representation in Commonwealth Parliament, 433, 461, 476 common law, 131, 241, 251 inheritance of, 98, 139 principles of, 98, 99, 152 rules of statutory construction, 154 single in Australia, 240, 244, 341 statutory presumption, 224, 238 Commonwealth Constitution amendment of, 6, 27, 145, 331–2 Braddon Clause, 8 Chapter III, 380–91 disjoinder of s 122, 383–91, 408–15, 420, 421 draft Bill, 1891, 62 drafting, 62, 63 entrenchment, 207–8, 209 extraterritoriality, 221, 253 implied freedom of political communication, see freedom of political communication implied nationhood power, 29 powers vested in State Governors by, 282 protection of democratic government, 117 reference power, 14–17 relationship between s 51 and s 122, 407–15 republic, 336–8 restrictions on powers, 407–17, 420–33 restrictions on State legislative power, 103, 116–17, 119 sections 106 and 107, 63–5, 189–91 State Parliaments, 119 territories power, 393–433, 435 Commonwealth Grants Commission, 10, 439, 472 Commonwealth Human Rights Bill 1973 clause 5, 208 clauses 5(2) and (3), 157, 208 Commonwealth of Australia Constitution Act 1900 (Imp), 1, 26, 63, 65, 136 paramountcy, 142, 145 preamble, 5, 27, 263, 264, 330 Commonwealth Prime Ministers’ Conference 1952, 263 Commonwealth–State Ministerial Council, 11 Commonwealth–State offshore settlement of 1979, 214–15

INDEX

Commonwealth–State relations, 5, 13–21 see federalism constitutional, 8–28, 65 financial, 7, 8–11 Mutual Recognition Scheme, 12 reference power, 14–20 Commonwealth territories, 436–88; see also external territories, territories, and names of individual territories consolidated revenue fund, 86 Constitution Alteration (Establishment of Republic) Bill 1999, 268, 319, 327, 329, 335 appointment of the President, 321, 326 Constitution of Queensland 2001, 30, 55, 105, 150, 196, 197–8, 261 amendment of, 157 Chapter 7, 33 control of finance, 86 entrenchment of, 200 responsible government, 45 Constitutional Commission, 14, 33 Constitutional Conventions, 5, 62, 267, 284, 291, 294, 489–90 States, 2, 190, 402 republic, 22, 322, 323–4, 325 constitutional conventions, 256, 284, 418, 419, 436, 456, 458 constitutional evolution, 6, 263 constitutional reform, 5, 19 contracts and business enterprises, power to engage in, 306, 312, 315–16 Convention on the Continental Shelf, 213 Convention on the Territorial Sea and the Contiguous Zone, 213, 398, 483 conventions and customs, 45, 46 Coombs Royal Commission, 20 cooperative federalism, 11–21, 25–6 cooperation, intergovernmental, implied principle of, 18 federal cooperation, history of, 11, 13 cooperative schemes, 20–1 Coral Sea Islands Territory, 397, 406, 460, 483–4 corporations power, 4, 11, 17, 395 Council of Australian Governments (COAG), 12, 22–3, 24, 25, 28 courts, 340, 352–4, 355, 362, 369 federal courts, 388–90 institutional integrity, 342, 350 territory courts, 390–1 crimes at sea, 242–3 criminal jurisdiction, 238–42, 243

501

Crown: see Sovereign Crown in right of a jurisdiction, 262 customs and excise duties, 8, 9, 114, 314, 427–9 Dampier, William, 477 Darling, Sir Ralph, 39 Darwin Rebellion, 457 de Chair, Sir Dudley, 269, 292 deadlock avoidance procedures, 77, 89–94, 95, 97, 98, 171 financial Bills and, 89–91 Deakin, Alfred, 2, 6 defence power, 117–22, 135, 313, 397 democratic government, protection of, 117–35 Denison, Sir William, 462 Deputy Governor, 271 Dicey, A. V., 106, 108, 109, 183, 208, 306 dominion status, 260, 263 Durham Report, 259 electoral franchise, 40, 44, 56, 470, 474 Elgin, Lord, 46 enactment of legislation, 79–85 English law, inheritance of, 137 English law, reception in Australia, 137–41 English statute law, application in Australia, 139–41 entrenchment, 159–91, 343 see manner and form double, 151, 191, 192, 193–5, 205 electoral, 168–70 parliamentary, 199 referendum requirement, 199 single, 151, 192, 193, 205 equality before the law, 412, 413, 423 euthanasia, 432–3, 441, 455 Executive Chapter 8, 255–317 appointment of, 299–302, 324–6, 327 constitutional and ceremonial roles, 339 and enactment of legislation, 82, 83 entrenchment of, 329–30 Governor in Council, 294 judicial power, 354–5 position in ACT parliament and the, 116, 325 powers and functions of, 317, 327–9 the Queen in, 256 removal, 327 royal assent and, 32 structure, 261–7, 305 Territories Administrators, 309 Executive Council, 277, 294–8, 299

502

INDEX

executive power, 255–61, 269–313, 315–16, 317, 334 Cabinet, 298–9 caretaker governments, 302–3 delegated power, 317 ministers of state, 299–302 office of the Governor, 270–1 power to engage in contracts and business enterprises, 315–16 powers of the Queen, 267 Premiers and Chief Ministers, 302 reform of, 303 reserve powers, 282–94 restrictions on, 252–3 role of Governors, 268–94 royal prerogative powers, 306–8 abrogation, 311 division, 313 judicial review, 313 scope of, 305–17 external affairs power, 11, 19, 67, 213, 242, 397, 416 external territories, 405, 459–61 constitutional development, 460 environmental protection, 461 judicial protection, 380 regulation of criminal activity, 461 representation in Commonwealth Parliament, 461 rights of residents, 459, 460 extraterritoriality, 116, 210–54 Australia Acts 1986, 220–2 categories of, 228–43 and choice of law rules, 243–7 coastal waters and territorial sea, 235–7 Commonwealth Constitution s 92, 253 concept of, 215–16 court proceedings and, 251–2 criminal jurisdiction, 233–4, 237, 238–43 high seas, 237–8 incapacity to change law of another jurisdiction, 222 inconsistent State laws, 247–51 jurisdiction, 222, 238–43 land boundaries, 211–12 legal foundation of restriction, 216–19 maritime laws, 234–8 rationale for, 219–24 restriction on executive power, 252–3 restriction on State power, 219–24, 252–3 restrictions on territories, 253–4 sea boundaries, 212–15 Seas and Submerged Lands Act, 213–14 Section, 92, 953

service and execution process, see court proceedings stamp duty and, 233 statutory presumption, 222–4, 238 sufficient connection, 217, 218, 224–8, 233 Federal Capital Commission, 438 Federal Council of Australasia, 60 Federal Courts, 341, 388–90 federal funding, conditions on, 9, 10, 12 federal judges, appointment to royal commissions and non-judicial bodies, 367 federalism, 3, 5 cooperative, 3, 11–13, 17–18, 325 coordinate, 2 executive, 20 renegotiation of, 29 and the republic, 319 and responsible government, 258 federation, 1, 35, 59–65, 264, 306, 402, 415 constitutional evolution, 6 future, 7, 12 new States, 435 principles for and structure of, 61–2 referenda on, 63 role of Governors, 268 support for, 60 finance, 85–9 consolidated revenue, 86, 87–9, 279 constitutional principles, 86–7 Financial Agreements, 11, 287 procedural requirements, 87 fishing offences, 237 Fitzgerald Commission of Inquiry, 297, 349 Fitzroy, Governor, 59, 60 Forsey, Dr Eugene, 293 forum non conveniens, 421 freedom of access to the seat of government, 401 of association, 423, 424 of information, 473 of movement, 423, 432 of religion, 410, 420, 421–2, 427 of speech, 99 of trade and commerce between the States, 253 freedom of political communication, implied, 8, 30, 122–35, 356, 401, 422–5 implication from State Constitutions, 131–3 and legislative power, 103, 122–35, 420 territories, 133–5, 429

INDEX

503

full faith and credit, 114, 428–9 fundamental rights, protection of, 108–13

Human Rights and Equal Opportunity Commission, 353, 470

Game, Sir Philip, 285, 287–8, 292, 293 Gipps, Governor, 41, 57 goods and services tax, 9 Governor accountability, 41 acting on advice, 82, 260, 261, 276, 277, 278, 283, 292–3 appointment of, 260, 269, 270, 271–2 assent, 80, 85, 279 constitutional rights, 262, 277, 293, 294, 322 discretion of, 283, 293 dismissal of, 273, 274 dismissal of Premiers, 287 office of the Governor, 270–1 powers of, 42, 46, 274–81, 282 powers vested in State Governors by the Commonwealth Constitution, 282 reserve powers, 82, 282–94 role of, 85, 259–60, 268–94, 297 Royal Instructions to, 276 sovereign immunity, 308 tenure, 273–4 Governor-General, 60, 80, 266 and the ACT, 442, 443, 444 constitutional crisis, 274 disallowance of legislation, 80 Northern Territory, 451, 452 reserve powers, 276, 282–94, 443 Governor-in-Council, 261, 275, 281–2, 294–8 Grey, Earl, 41, 59

Illinois electoral system, 464, 470 Imperial Conferences, 260 imperial law, repugnancy to, 143–4 imperial power and restrictions, 66–74 implied freedom of political communication, see freedom of political communication incompatibility, doctrine of, 354, 358, 362, 365–6 inconsistency, 143–4, 147, 430 India, 325 of State laws, 247–51 Indian Ocean territories, 476–7 Indigenous people, 31–2, 252, 423 institutional integrity, 357–76 judicial, 342, 350, 354, 356, 359, 392 Inter-State Commission, 13 interference in the judicial process, 369–76 intergovernmental agreements, 9, 21–5, 28 International Covenant on Civil and Political Rights, 470

Hannah, Sir Colin, 270, 272 Hasluck, P., 67, 272, 278, 291, 296 Governors-General, 266, 277, 283, 293, 297–8 Heard and McDonald Islands, 380, 397, 406, 460, 484–5 High Court, 4, 6 right of appeal to, 13, 341, 368, 382, 383, 387, 391, 392, 488 high seas, 234, 237–8 Hindmarsh, Governor, 52 Hobson, Captain William, 57, 58 Hollingworth, Dr Peter, 273, 274, 497 honours, imperial, 308 horizontal fiscal equalisation, 10 House of Representatives Committee on Legal and Constitutional Affairs on Australian Law in Antarctica, 483, 485

Jenks, Edward, 36, 44, 259, 300 Jennings, Sir Ivor, 152, 184 Jervis Bay Territory, 394, 395, 433, 437, 447–8 Joint Committee on Constitutional Review, 5 Joint Petroleum Development Area, Timor Sea, 242 Joint Standing Committee on National Capital and External Territories, 464, 466, 468, 469, 470, 472, 473, 474, 476 judges, 358, 364–8 security of tenure, 356, 360, 363, 368–9 judicial independence, 340, 352, 353–4, 355, 362, 364, 367, 376 judicial intervention in legislative process, 96 interference in judicial process, 369–76 interference in judicial tenure, 368–9 judicial power, 345, 349, 352–5, 360 Commonwealth Constitution, Chapter III, 308, 356–76, 380–91; restrictions on State power, 357, 376 Commonwealth Parliament, 354–5 Commonwealth position, 351–5 Commonwealth power and s 71 courts, 352–4 entrenched protection, 343–4 Executive, 354–5 institutional integrity, 357–75 Kable principle, 360–4

504

INDEX

judicial power (cont.) persona designata appointments, 364–8 public confidence, 358 separation of powers, 344–9 State protection, 341–2, 343–9 Supreme Courts, 356 judicial power and the territories, 310–11, 376–80 ch III, 380 disjointed view, 383–7 integration view, 387–91 summary, 391–2 judicial review, 87–9, 94–6, 99, 100, 152, 172 Kable principle, 350, 351, 357, 358, 359, 360–4, 368, 374 Keith, Arthur Berriedale, 191, 193–292 responsible government,106, 107, 218, 259 Kerr, Sir John, 273, 285, 290, 327 La Trobe, Charles, 53 Lang, Permier Jack, 269, 285, 287–8, 292 Laverack, Lt-Gen Sir John, 269 law of the forum (lex fori), 244, 245, 250 laws, process of enacting, 78–85 League of Nations, 397, 398, 460, 486, 487 Legislative Councils, 32, 39–40, 41, 89 legislative power, 83, 103–13, 135, 164, 175–9, 313 colonial parliaments, 47, 49, 216 extraterritorial, 67, 224, 252 fundamental rights, 108–13 grant of, 217, 218 plenary power, 106–7, 149, 340, 402 restrictions on, 159, 175, 216–19 scope of, 314, 316 States, 63, 65, 104–13, 334 legislative process, 82–5, 94 judicial intervention, 96–8 judicial review, 94–6 legislature, 76–102, 182, 209 bicameral, 77, 119 capacity to entrench legislation, 179, 182 ‘constitution’ of, 167, 168, 180 parliamentary terms, 101 prorogation and dissolution, 101–2 reconstituted, 179, 183–7, 207, 208 lex fori, 244, 245, 250 lex loci delicti, 244, 245, 246 Liberal Party, policy on federalism, 12 Lieutenant-Governor, 271 local government recognition of, 33–4 Lord Birkenhead LC, 158

Macquarie, Governor, 57 Madison, James, 2 Magna Carta, 140, 141 manner and form, 116, 149–81, 189, 209 adoption and management of provisions, 200 characterisation test, 164, 165, 166, 179, 196, 202, 204 Commonwealth, 207–8 and deprivation of power, 178 entrenchment of provisions, single and double, 191–2, 195–204 and exercise of power, 178 grounds, 154, 158, 179–91 judicial review, 172 parliamentary sovereignty, 152–3 prerequisites for, 161–78 relation to the legislative process, 172–9 requirements, 170–2, 178, 183, 194, 202, 205 severance, 195 States, 159–91, 195–204 Territories ACT, 204 Norfolk, 207 NT, 206 Melbourne, A.C.V., 36, 37, 38, 39, 42, 45 responsible government, 45 State Constitutions, 43, 57 Melbourne Corporation principle, 8, 250, 309, 337 members of parliament, qualifications of, 168 Ministerial Councils, 22, 24 ministerial responsibility, 258, 299, 464 ministers, 261, 283, 299, 300, 301 Mitchell, Sir James, 269 monarchical system, entrenchment of, 332–4 money Bills, power over, 77 Napier, Governor, 50 National Capital Authority, 441 National Capital Development Commission, 439 National Competition Policy, 22 National Crime Authority, 19 National Electricity laws, 18 National Land Ordinance 1989, 441 National Rail Freight Scheme, 22 National Road Transport Scheme, 22 National Water Initiative, 11 Native title, 139 Nauru, 397, 435, 460, 485, 487–8 New Guinea, 397, 398, 407, 409, 435, 460, 485

INDEX

New South Wales, 36, 37, 211 British intervention, 269 Constitution, 43–4, 86, 88, 179 deadlock avoidance procedures, 90, 91, 92, 93, 95 entrenchment, 195–6, 333, 343–4 Executive Council, 39 fixed term of Parliament, 279–80 constitutional history, 37–48 Governor’s discretion, 279–80 Independent Commission Against Corruption, 473 inheritance of English law, 40, 137 Law Reform Commission, 267, 308 Legislative Assembly, 44 Legislative Council, 38, 39–40, 41–2, 44, 92 Privy Council Appeals Abolition Bill 1979 (NSW), 67 responsible government, 42–8 Scrutiny Committee, 21 statutory protection, 426 Supreme Court, 38, 39 New Tax System of 1999, 7 New Zealand, 46, 57–9, 109, 185 Constitution, 57–9 dominion status, 58, 260, 263 House of Representatives, 58 Legislative Council, 58 legislative power, 58 Norfolk Island, 394, 397, 405, 406, 461–76 accountability, 472, 473, 475 Administrator, 460, 465, 466, 467, 474 assent or disallowance of laws, 465 Chief Minister, 460, 474 citizen-initiated referenda, 470 code of conduct for members of the Legislative Assembly, 473 constitutional evolution, 461 constitutional history, 461–3 decision-making processes, 464, 473, 475 descendants of Bounty mutineers, 462, 463, 475 dismissal of ministers, 467, 468 dissolution of the Legislative Assembly, 466, 468, 474 electoral system, 464, 470 entrenchment, 151, 207 Executive, 257, 325, 462, 466–8 Executive Council, 380, 460, 463, 467 executive power, 468 extraterritoriality, 210, 253 franchise, 470, 474 future of, 472–5

505

Governor, 462 immigration and customs control, 464 independence from the Commonwealth, 471 judicial protection, 379–80 judiciary, 379, 468 legal regime, 469, 475 Legislative Assembly, 460, 464–6, 474 legislative power, 113, 464 ministerial responsibility, 464, 467 Norfolk Island Council, 463 parliamentary privilege, 99 prorogation, 101 referenda, 208, 470–1 relationship with the Commonwealth, 472, 475 representation in Commonwealth Parliament, 433, 461, 469, 475 representative government, 464, 472 reserve powers, 467, 468 responsible government, 464 restrictions on legislative power, 464 royal assent, 465 self-government, 79, 460, 462, 464–8, 475 structure and powers, 464–8 taxation regime, 471–2 ‘thirty-nine laws’, 462, 463 voting rights, 469 Westminster conventions, 466 Norfolk Island Amendment Bill 2003, 419 Northcott, Lt-Gen Sir John, 269 Northern Territory, 52, 395, 405, 408, 448–59 Administrator, 80, 325, 449, 451–2, 453, 455 assent of the Administrator, 79 Cabinet, 452 Commonwealth control, 451, 454, 455–6 Constitution, 30, 86, 449, 456–7, 458 constitutional guarantees, 456–7 constitutional history, 448–50 disallowance of legislation, 455 entrenchment, 151, 206–7, 208 euthanasia, 432–3, 441, 455 evolution into statehood Executive, 257, 450, 452–5 Executive Council, 452 executive power, 454 extraterritoriality, 210, 253 federal jurisdiction, 391 finance, 457 future of, 458–9 Governor-General, 451, 452

506

INDEX

Northern Territory (cont.) judicial protection, 378 judiciary, 455 Legislative Assembly, 449, 450–2 Legislative Council, 449 legislative power, 113 parliamentary privilege, 99 prorogation, 101 representation in Commonwealth Parliament, 433, 434, 457 reserve powers, 452 responsible government, 453 royal assent, 450 royal prerogative powers, 309–10 Select Committee on Constitutional Development, 435 self-government, 79, 403, 417, 418, 449, 450–5 statehood, 28, 394, 435, 458 structure and powers, 450–5 Supreme Court, 378, 451, 455 voting rights, 434, 457 Westminster conventions, 452, 453 O’Connell, D. P. extraterritoriality, 216, 219, 254 Imperial constitutional law, 180, 195, 462 republic, 335, 338 special majority requirement, 150, 180 Offshore Settlement, 214 offshore waters, 248 coastal waters, 234, 235–7 high seas, 234, 237–8 internal waters, 213 territorial sea, 234, 235–7 Ombudsman, 116, 473 Pakington, Sir John, 42, 43 Papua New Guinea, 485–7 Executive Council, 486 House of Assembly, 487 legal regime, 486 Legislative Council, 486 Papua, Territory of, 397, 408, 409, 435 paramount law, 73, 136, 141–3, 150, 181, 376 parliament, 77, 116, 119–22, 176, 186 control of finance, 85–7 exercise of its power, 176, 177 Governor’s powers, 278–81 judicial power, 354–5 legislative power, 176

power to bind its successors, 152, 153–9 powers delegated to the Executive, 115, 306, 317 prorogation and dissolution, 101–2 reconstruction of, 186, 187 terms of, 101 unicameral, 77 parliamentary privilege, 81, 87, 95, 96, 98–101, 172 exercise of, 100 immunities, 98 judicial review, 99, 100 powers, 98, 99 parliamentary scrutiny committees, 21 parliamentary secretary, 301 parliamentary sovereignty, 115, 152, 153, 158–9, 183, 185 parliamentary terms, 101 parliamentary triangle, 438, 446 peace, order and good government, 217, 218, 342 penal settlement, 137 persona designata cases, 361, 362, 363, 364–8 Phillip, Captain Arthur, 37, 268, 461 political association, freedom of, 122, 123, 134, 135 power to engage in contracts and business enterprises, 306, 312, 315–16 Premiers appointment of, 285, 302 dismissal of, 285–90 refusal of dissolution, 290–2 Premiers’ Conferences, 21, 23 Privy Council, appeal to, 66, 67 Committee for Trade and Plantations, 59 Judicial Committee of, 84 procedural fairness, 273, 286, 373 property, acquisition of, 420, 425, 426, 431 proportional representation, 77, 206 Queen, 66, 78, 265, 266–7 acting on advice, 263 head of State, 266 powers of, 29, 256, 267 relationship with Commonwealth ministry, 264 relationship with the States, 264, 265 reserve powers, 283 Queensland, 55, 240 assent of the Governor, 82 boundaries, 55 Constitution, 55, 86, 200, 316, 332 Constitutional Convention, 31

INDEX

Queensland (cont.) constitutional history, 55 Constitutional Review Commission, 29, 31, 158, 175, 290 Electoral and Administrative Review Commission, 21 entrenchment, 196–200, 271 franchise, 56 Legal, Constitutional and Administrative Review Committee, 81, 87, 157, 199–200, 337 Legislative Assembly, 56 Legislative Assembly, Members’ Ethics and Parliamentary Privileges Committee, 301 Legislative Council, 56, 57, 77 legislative power, 56 manner and form, 187 recognition of Indigenous people, 31, 32 recognition of local government, 33, 34 representative government, 56 responsible government, 55–7 Scrutiny of Legislation Committee, 21, 200 separation from NSW railways, 13, 60 Ranasinghe principle, 186, 187–9, 206, 207 reconciliation, 31–2 reference power, 13, 14–16, 18–20 representative government, 1, 40–2, 59, 121, 259, 268, 321 evolution of, 40, 47 and manner and form, 149 and responsible government, 120 republic, 74,265, Chapter, 9 318–39 combination republic and monarchy, 335–6 Commonwealth Constitution, 336–8 Commonwealth power to impose State republics, 336–8 entrenchment of, 329–30 entrenchment of monarchy, 332–4 formal head of executive, 321–4 appointment, 324–7 powers, 327–9 removal, 327 title, 324 forms of, 320–3, 330, 335–6 key issues, 328 legal obstacles to, 330 office of the Governor, 270 political principles involved, 319 Republic Advisory Committee, 294, 318, 331, 332

507

scope of Commonwealth power, 339 State advisory committee on, 318 repugnancy, doctrine of, 116, 118, 136–48, 161, 359, 455 abolition of, 67, 73, 118, 334 effect of Australia Acts, 145–6 inconsistency, 143–4, 430 and paramount imperial law, 47, 84, 141–4 and State law, 334, 358, 359 and territory law, 146–8, 429, 430 reserve powers, 256, 276, 284, 293–4, 322, 328–9 responsible government, 42–7, 59, 257–61, 268, 305 conventions of, 258 executive branch and, 256 and federalism, 258 principles of, 20, 91, 115, 259, 317, 321, 351 and representative government, 120 and the republic, 322 reserve powers and, 282 restrictive procedures, see manner and form royal assent, 32, 61, 79, 83, 91 instructions for, 82 removal of, 83 State Constitutions, 43, 44, 50 territories, 32, 80, 83, 450, 465 Royal Commission into Matters Relating to Norfolk Island (Nimmo Report), 461, 463, 469, 471 Royal Commission on the Constitution, 5 Royal Instructions to Governors, 276 royal prerogative powers, 306–15 classification of, 308 division between the Commonwealth, the States and the territories, 313–15 domestic prerogatives, 308–9 executive power and, 259, 306 extraterritoriality, 252, 253 judicial review, 310–11 responsible government and, 259 self-governing territories, 309–10 source of, 307–8 statutory abrogation, 311–13 royal style and title, 263, 265 Seas and Submerged Lands Act, 213–14 seat of government, 314, 394, 399–402, 437–40, 447 secession, 26–8 self-government, right to, 421 Senate, 2, 4, 13, 24, 29, 426, 433, 434

508

INDEX

separation movements, 6 separation of powers, 108, 114–16, 344–9 Commonwealth doctrine of, 342, 343, 351–5, 360, 366, 378 entrenchment of, 348 State Constitutions, 342, 357, 361 territories, 377, 392 South Australia, 29, 33, 52, 87, 167 Boothby affair, 151, 166–8, 180 boundaries, 51, 211 Constitution, 31, 44, 51–3, 88, 93, 179, 333 constitutional history, 51 deadlock avoidance procedures, 90, 91, 92, 93, 96, 200 dissolution of the House of Assembly, 53, 101, 280 entrenchment, 200–1 inheritance of English law, 138 Legislative Council, 42, 52, 53, 200 responsible government, 51–3 Sovereign, 262, 318 constitutional and ceremonial roles, 320 divisibility of, 262, 263, 265, 335 sovereignty of the people, 32, 65–6, 83, 158, 209 State Constitutions, 63, 65, 187 Bill of Rights, 30 enactment of legislation, 79 entrenchment, 30, 195–204 executive branch, 255, 257 Governors and, 268 legislative power, 104 ‘patriation’ of, 264 political communication, implied freedom of, 131–3 power of Commonwealth amendment, 336–8 protection of democratic government, 118 references to the Queen, 320 reform of, 29, 34, 303 responsible government, 261 royal assent, 43, 44, 50 separation of powers, 342 status as local Acts, 105–6 State courts, federal jurisdiction in, 13 State Governors, 13, 321, 330 constitutional and ceremonial roles, 321, 323 political neutrality, 323, 325 powers and functions of, 327–9 reserve powers, 322 statehood, 59–65, 434–5, 447

States, 1, 2–7, 8–28, 67, 210, 238 Commonwealth Constitution s 106, 63, 65, 356–76 constitutional evolution, 35–75, 263 creation of new, 13 extraterritoriality, 216 financial assistance to, 8, 10 freedom of trade and commerce, 253 future of, 1, 74–5 goods and services tax, 9 incapacity to change law of another jurisdiction, 222 judicial power, 356–76 judicial protection, 343–9 judicial systems, 341–2, 356 legislative power, 8, 78, 104–13, 214, 218, 221, 334 legislatures, 76 manner and form provisions, 157, 336 offshore waters, 225 plenary power, 149, 340 referrals to the Commonwealth, 16–17 republic, 318, 320–30, 336–8 restrictions on legislative power, 103, 116–17, 356–76 separate Sovereign, 264 sovereign rights of, 213 template Acts, 18 Strickland–Holman crisis, 269 Strickland, Sir Gerald, 260, 292 Supreme Courts, 341, 356 surrender of State or territory, 13, 52, 393–35 Tasmania, 48, 137, 291 Constitution, 44, 88, 91, 334 constitutional history, 48 entrenchment, 201 Executive Council, 48 Legislative Council, 42, 48 responsible government, 48–9 taxation, 8, 85, 86, 279, 426–7 territorial sea, 234, 235–7 territories, 1–2, 28–9, 146, 398–9, 402–4 Acts Interpretation Act 1901 (Cth), 406 Assemblies, 420 capacity to contract and to engage in business, 310, 432 Commonwealth acquisition birth of, 395–8 Commonwealth Constitution, Chapter III, 380–92, 402–4, 416 Commonwealth surrender of, 435

INDEX

compulsory acquisition of property, 431 Constitutions, 29–34, 105, 380–91, 436 constitutional conventions, 419 constitutional status of, 2, 404–6, 407 courts, 390–1, 392 customs and excise, 427 disjoinder of s122, 383–91, 408–15, 420, 421 euthanasia, 432–3 evolution to statehood, 434–5 executive, 257, Chapters 11 and 12 external, 380, 405, 406, 459–61 formation of, 395–6, 397–8, 460 former territories, 485–8 freedom of trade, commerce and intercourse, 432 implied freedom of political communication, 429 inconsistency with Commonwealth law, 429 Indian Ocean territories, 476–7 internal, 406 Islands in The Sun Report, 448, 462, 469, 472, 473, 480, 483, 484 judicial protection, 376–92 legislative power, 113–14, 146, 253, 254, 419–20 paramount law, 136 part of the federation, 405, 411 reasons for acquisition, 393–4 representation in Commonwealth Parliament, 433–4 representative government, 134 and the republic, 320 residents’ rights, 2, 28, 29, 111, 412 restrictions on, 133, 253–4, 257, 427–33 statehood, 434 seat of government, 399–402 self-governing territories, 146–8, 418–20, 431 legislative war, 4–19 restrictions on, 427–33 self-government, 28, 136, 394, 418–19, 436 scope of s122 power 402–4 status of, 404–6 uninhabited, 481–5 territories power, 18, 28, 310, 393–435 characterisation, 416–17 disjoinder, 408–15 entrenchment of legislation, 208 executive branch, 257 paramount law, 146

509

restrictions on, 133, 257, 407–17, 420–7 acquisitions power, 425 freedom of religion, 421–2 implied freedom of political communication, 422–5 taxation, 426 Territory of the Coral Sea Islands, 380 Townsley, W. A., 48 Treaties Council, 22, 23–4 Uniform Tax Scheme of 1942, 7, 9 Uniform Taxation cases, First and Second, 66 uninhabited territories, 481 United Kingdom and Australia, constitutional links, 66–73 United Nations, 126, 460, 479, 486, 487 United States Constitution, 345, 381, 399, 401 presidential model, 320 Van Diemen’s Land: see Tasmania vertical fiscal imbalance, 3, 8, 9–10 Victoria, 42, 53, 54, 138 boundaries, 54, 211 Constitution, 43, 47, 53–5, 93, 96, 333, 344 Constitution Commission, 202 constitutional history, 53 deadlock avoidance procedures, 90, 91, 93 entrenchment, 201–3 Federal–State Relations Committee, 21 inheritance of English law, 138 Legislative Assembly, 54, 280–1, 291 Legislative Council, 54 recognition of local government, 33, 34 referendum requirement, 201 responsible government, 53–5 Scrutiny Committee, 21 Supreme Court, 202 Wade, H.W.R., Sir William, 152, 184, 292 Wakefield, Edward Gibbon, 51 Wentworth, William Charles, 39, 41, 45 Western Australia, 36, 50, 138 Commission on Government, 82 Constitution, 30, 49–51, 65, 88, 121, 332 constitutional history, 49 electoral system, 120 entrenchment, 203–4, 271 Executive Council, 49, 50 external territories and, 478, 480 Legislative Assembly, 42, 51

510

INDEX

Western Australia (cont.) Legislative Council, 49, 50, 51 office of the Governor, 204 prorogation, 102 representative government, 50 responsible government, 49–51 Royal Commission Report on Parliamentary Deadlocks, 90

secession, 26 Uniform Legislation and General Purposes Committee, Western Australia, 21 Westminster conventions, 257, 299, 300, 328, 339 Wheare, K. C., 6, 263 Young, Governor, 60